Zampolit Angela McCaskill, Report For Reeducation

258 Comments

ParatrooperJJ • Oct 11, 2012 @8:09 am

I'm not sure why people didn't expect this. The leaders of the gay rights movement have been very clear that this is what they want to happen. I expect to see in my lifetime criminal charges being applied for not supporting gay marriage.
Ken • Oct 11, 2012 @8:11 am

@Paratrooper: have there been criminal charges applied for not supporting interracial marriage?
TJIC • Oct 11, 2012 @8:18 am

It seems like all of modern political thinking is trying to splice epicycles onto an inherently flawed idea in order to make it (sort of) work.

Instead of junking the idea "the government should be vast, should define marriage, and should stick its nose into every single corner of marriage", we ("we") junk the ideas that

(a) reasonable people can disagree
(b) it's OK to be polite to your neighbor and still not love everything about him
(c) you're allowed to have privacy in your own mind
etc., etc. etc.

As I alluded to the other day, I was fired from a contract gig with a prominent left-wing "wonderful things" enthusiast because of my off-the-job political opinions, once they became known.

This didn't remotely hurt me – I lost out on the sale of an article that was going to net me $500 max. This is nothing compared to someone losing their full time 40 hrs/week day job for their personal beliefs…but it's still indicative that many – if not most – people in American 2012 think that it's actively good to replace free expression and diverse opinions with an EXPRESSION of ideological uniformity, no matter how deep the hypocrisy that underlays it.

I find this…confusing.
tsrblke • Oct 11, 2012 @8:26 am

The Scene: one of my annual ethics conferences
The Players, me and a bunch of *ethicists* from various hospitals.
The occurance: It was suggested by a smaller hospital that perhaps we should be administering tests to determine the political leanings of an individuals before hiring them to these hospitals. It was hidden under the guise of "mission" (although the person who said it clearly stated "mission and political allignment of the institution.")
The result, my jaw and the floor meeting.
Oh and you're likely assuming that this is because someone got up and screamed "Abortion for all!" (yes this was a religious group of hospitals). Nah, I think it was on Welfare to work requirements or something that doesn't even really have an "official teaching". In any case: Welcome to the future.
Wilhelm Arcturus • Oct 11, 2012 @8:31 am

Wow, was it really "ideological noncompliance?" Those exact words?

Takes me back to my Soviet studies days. Zampolit action indeed.
That guy • Oct 11, 2012 @9:25 am

Hey, Ken, have you seen this? The U.K. is still trolling you.

http://barthsnotes.com/2012/10/10/uk-thug-uses-us-dmca-takedown-notice-to-suppress-information-about-him/

http://boingboing.net/2012/10/10/uk-website-taken-down-by-spuri.html

http://torrentfreak.com/online-thug-dmcas-critics-site-off-the-internet-over-16-word-rant-121011/
Andrew Roth • Oct 11, 2012 @9:25 am

@tsrblke:

I love me some hospital administrative bullshit! It's hard to think of a more useless, disruptive and self-important group of smarmy, preening dipshits than hospital administrators. Actually, come to think of it, that group is school administrators.

I really wish more good people fell through the cracks, but they don't, and those who do seem to give up in short order and then just stick around for the free donuts at the meetings. Maybe the biggest problem is that those who actually enjoy teaching students or treating patients have no interest in running their institutions, so that the only ones volunteering for administrative duties are haughty shits who probably shouldn't have been hired in the first place. If these idiots can't get administrative positions, they can always write preachy case studies for the Journal of the California Medical Board.
M. • Oct 11, 2012 @9:37 am

I see no one really learned anything from the whole Chik-Fil-a flap.
ShelbyC • Oct 11, 2012 @9:51 am

It's import to note that McCaskill was not simply engaging in expression, she was also engaging in direct democracy. Signing a petition of this nature is as comprable to voting as it is to expression. So even though first amendment protections for public employees are far too weak, you would think that signing a petition of this nature would have more protection.

And according to DB at Volokh, Ms McCaskill was the first deaf African-American woman to received a Ph.D. from Gallaudet.
ElSuerte • Oct 11, 2012 @9:55 am

@ken Same-sex marriage activists have used public accommodations laws to sue and impose fines on wedding photographers and event venues. It's possibly a distinction with out a difference if civil penalties can be as onerous as criminal penalties. Additionally, the CRA of 1964 explicitly does not prevent criminal remedies for such things. So it's not inconceivable that people could face criminal charges for their lack of support of gay marriage.
C. S. P. Schofield • Oct 11, 2012 @10:05 am

Since it has always been possible to get canned by Those In Power for Wrong Thinking, what this means is that the Political Left cannot pretend to be even slightly different from any other power elite. That should really steam them, since they LOVE to think of themselves as the first moral people, ever … which makes them no different from any other power elite.

The Political Left is one more in a long series of self selected elites that have run or tried to run the lives of the lesser folk for as long as we have recorded history. They have come from what we consider the Left and what we consider the Right and from directions we don't even recognize. Many, if not all, of them have had their good points. But they have all believed that they were put upon this Earth by Divine Providence to tell the rest of us what to do. On which basis, screw them AND the horse they rode in on.
denbigh • Oct 11, 2012 @10:06 am

Let's review this again: As the school's diversity officer, she signed onto advocating against giving equal legal rights to a minority group.

If she had engaged in advocacy for banning interracial marriage, or demanding that the citizenship of accused terrorists be revoked, or suggested a return to sterilization of the "feebleminded," you would see just how unfit this makes her for her position, and how appalling a human being she is. But because it's ewwwww, icky perverted homos in question here, she's a free-thinking hero to you people. I wonder what that means, hmmm…
Curmudgeonly Ex-Clerk • Oct 11, 2012 @10:15 am

Ken,

Your response to ParatrooperJJ would be more convincing but for incidents like the New Mexico photography case referenced by a commenter above. Criminal charges? No. But a fine of approximately $7,000, is sufficiently analogous to criminal punishment for most small business owners to give ParatrooperJJ the better of the argument. (And that does not account for the legal expenses one would incur in defending himself in such a "civil" matter.)
Jim March • Oct 11, 2012 @10:20 am

The other issue is that this will aid the push to keep the petition forms out of the realm of public records, to prevent this sort of retaliation. That in turn will lead to more fraud on the forms as there will be fewer eyeballs looking at them.
Ken • Oct 11, 2012 @10:21 am

@denbigh:

But because it's ewwwww, icky perverted homos in question here, she's a free-thinking hero to you people. I wonder what that means, hmmm…

It means that you are functionally illiterate, or too lazy to read the post, or too partisan to be honest.
Ken • Oct 11, 2012 @10:34 am

@Curmudgeonly:

our response to ParatrooperJJ would be more convincing but for incidents like the New Mexico photography case referenced by a commenter above. Criminal charges? No. But a fine of approximately $7,000, is sufficiently analogous to criminal punishment for most small business owners to give ParatrooperJJ the better of the argument. (And that does not account for the legal expenses one would incur in defending himself in such a "civil" matter.)

It's silly to argue "people are going to be prosecuted criminally for opposing gay marriage," and then when that proposition is questioned, resort to "you're being hyper-technical, civil suits are practically as bad as criminal prosecution."

That is not serious treatment of the subject.

The New Mexico case — which Eugene Volokh has been blogging about and participating in – is indeed troublesome. I think Volokh's argument about expressive works is persuasive.

Other cases tend to be misreported or misrepresented by advocates. For instance, the frequently cited Ocean Grove Camp Meeting Association case raises the issue of whether religious groups can offer facilities on the market to non-church members as public accommodations, but then deny access to some in violation of anti-discrimination laws. Though some have tried to make such cases about gay issues, they really stand more broadly for the question of how anti-discrimination laws accommodate, or don't, religious beliefs generally. Ocean Grove would have been in the same spot if they had denied an interracial couple based on religious beliefs.

Gay marriage illuminates existing tension between anti-discrimination laws and the First Amendment. Anti-gay-marriage advocates often attempt to misrepresent the legal landscape to argue that there is something unique about the way gay marriage poses this problem. But the problem could just as easily be posed by any church refusing any marriage.
Demosthenes • Oct 11, 2012 @10:43 am

denbigh sez:

"Let's review this again: As the school's diversity officer, she signed onto advocating against giving equal legal rights to a minority group."

Actually, let's do review this again.

1) She did not act as the school's diversity officer in this matter. She signed a petition in her capacity as a private citizen. Had she signed a petition in her official capacity, you might have a point. As it is, you're defending the termination of someone based on their exercise of their First Amendment rights. So, I take it you're a big believer in crimethink?

2) Further, as Ken's post clearly indicated, there were at least some people at the school who considered her an ally to the LGBT community on campus. So, whatever her views on gay marriage or on civil unions, the evidence suggests that she was able to separate those views from her performance of her job duties. (That the student and staff member wish to remain anonymous is disheartening, but then again, they just witnessed what happens when you have the temerity to sign your name to something.)

3) If you still have trouble understanding 1) and 2) after you go back and read the post — I'm guessing for the first time — then you may need some help. If I might make a suggestion, there's an enormous yellow bird who's been in the news lately. He helps teach those with young minds. I think you might be a good candidate.
ChicagoTom • Oct 11, 2012 @11:26 am

Just to be clear, the only reason this is problematic is because of the fact that the School is a quasi-public institution? Everyone agrees that if it was a private institution that retaliated against an employee for their political beliefs that would be A-OK right? Like the employer who threatened there would be layoffs if Obama wins, or the Yankees releasing John Rocker.

Also, and I don't know the particulars about this specific case, but in general I don't really believe it should be problematic to remove someone from a position of diversity officer if it is found out that their personal beliefs actually are against diversity and bigoted and discriminatory or they are politically . How would that be different than removing the head of your Biology department if you find that he/she doesn't believe in Evolution and believes the earth is a few thousand years old and that Jesus rode dinosaurs?

To me this isn't a clear cut case of discrimination. It's protecting the university's image. If the public finds out that the diversity officer is a bigot, that could lead to protests and boycotts and other public pressure. Why is the university not allowed to protect itself from that?
ShelbyC • Oct 11, 2012 @11:29 am

"It's silly to argue "people are going to be prosecuted criminally for opposing gay marriage,""

I'm not sure it's silly, though I wouldn't make that arguement. There is a real danger of Eurpean style "inciting hatred" type laws being passed in our lifetimes.
Ken • Oct 11, 2012 @11:35 am

@Shebly: You cut the quote it half, thereby completely changing its meaning. The full quote:

It's silly to argue "people are going to be prosecuted criminally for opposing gay marriage," and then when that proposition is questioned, resort to "you're being hyper-technical, civil suits are practically as bad as criminal prosecution."
Ken • Oct 11, 2012 @11:41 am

ChicagoTom:

Just to be clear, the only reason this is problematic is because of the fact that the School is a quasi-public institution? Everyone agrees that if it was a private institution that retaliated against an employee for their political beliefs that would be A-OK right? Like the employer who threatened there would be layoffs if Obama wins, or the Yankees releasing John Rocker.

The law treats public and private institutions differently. Recognizing that the law might not prevent a private entity from retaliating against employee speech is not the same as applauding or endorsing that.

Also, and I don't know the particulars about this specific case,

Did you read the post, or any of the links, before commenting?

but in general I don't really believe it should be problematic to remove someone from a position of diversity officer if it is found out that their personal beliefs actually are against diversity and bigoted and discriminatory or they are politically . How would that be different than removing the head of your Biology department if you find that he/she doesn't believe in Evolution and believes the earth is a few thousand years old and that Jesus rode dinosaurs?

Are you asking as a matter of law, or as a matter of good practice?

Whether or not you have a problem with it, I don't think your statement that it is not problematic is a correct statement of law.

As to the biology professor, I'd want to know if they can teach and research effectively despite their personal religious views.

To me this isn't a clear cut case of discrimination. It's protecting the university's image. If the public finds out that the diversity officer is a bigot, that could lead to protests and boycotts and other public pressure. Why is the university not allowed to protect itself from that?

So are you OK with the university firing someone who signs a petition in favor of gay marriage if that's unpopular in their local community?
Ken • Oct 11, 2012 @11:41 am

Seriously, what is up with reading comprehension this week?
C. S. P. Schofield • Oct 11, 2012 @11:42 am

ChicagoTom,

Regardless of the public or provate nature of an institution, it is always worth noting which institutions will not tolerate dissent. They may have no legal obligation to tolerate dissemt. They may have excellent practical reasons to not tolerate dissent. The dissent in question may even be repugnant.. It is still worth noting.
ElSuerte • Oct 11, 2012 @11:55 am

@ken That is a bit rich to criticize bringing up cases were people were sued over their non-support of gay marriage in a discussion about people being penalized for their non-support of gay marriage.

I don't follow the logic that it's misrepresentation to say that a gay-marriage public accommodations lawsuit is about the defendant's views on gay-marriage, because the law also applies to interracial marriage. It's also exceptionally loaded to equate opposition to gay marriage with opposition to miscongeniation. If I hadn't read more of your stuff, I'd suspect you of bad faith.

FWIW, you can get criminally prosecuted for anti-gay marriage speech in the UK.

For the record, I'm not anti-gay marriage or civil union. I have been critical of some of the methods used to pursue legalized gay marriage, (I think it would have been more proper and would have caused less backlash to obtain legalized gay marriage legislatively rather then judicially or executively.) I'm also opposed to the thuggishness that went on during the Prop 8 battle here in CA.
ElSuerte • Oct 11, 2012 @11:59 am

Probably also should add Hurley v GLIB to the list of gay public accommodation cases.

As far as reading comprehension goes, I blame my high school English teacher, and most definitely not high school ElSuerte.
ShelbyC • Oct 11, 2012 @12:03 pm

" You cut the quote it half, thereby completely changing its meaning. "

Fair enough, I appoligize. Based on your other comments I took the half-quote to be a fair assessment of your position, but maybe I shouldn't have.
TJIC • Oct 11, 2012 @12:15 pm

@ken:

> It's silly to argue "people are going to be prosecuted criminally for opposing gay marriage," and then when that proposition is questioned, resort to "you're being hyper-technical, civil suits are practically as bad as criminal prosecution."

Ken,

I suggest that you're a lawyer and have been a lawyer for decades and before that were in law school and before that were INTERESTED in the law, and thus your ability to use terms like "criminal" and "civil" and know what they each mean is somewhat better honed than that of the average citizen.

I'd be willing to bet that 90% of the population does not know the difference between the two, and/or use the word "criminal" to mean "you know, stuff that's handled by the courts".

While your responses to Paratrooper JJ have been 100% correct, I'd be inclined to cut a bit more slack on the topic. Given that people HAVE been hauled into court and slapped with fines for such things, and given that there are "protected groups" that one can be fined for discriminating against, etc., it is clear that the government truly is using the aparatus of power to punish certain opinions on the topic of homosexuality.

tl;dr: you're entirely correct on the facts … and Paratrooper JJ raises a valid point, even if he blunders over technical terms.
ShelbyC • Oct 11, 2012 @12:16 pm

FWIW, I believe the correct legal position in this case, under GUARNIERI, is that the court has to balance the McCaskill's interest in expressing her position with the University's interest in having a diversity officer that hasn't opposed gay marriage. There should be more protection.
ChicagoTom • Oct 11, 2012 @12:26 pm

Recognizing that the law might not prevent a private entity from retaliating against employee speech is not the same as applauding or endorsing that.

Obviously. The point I was making is that none of us commenters would be troubled, as a matter of law, about this happening in a private institution because private actors can (unless barred by contract) fire their employees for whatever reason they want. (For the most part)

Did you read the post, or any of the links, before commenting?

I read your post and your write up of the events. I didn't go to the source because my comments weren't specifically aimed at this one particular incident, but rather the general idea that it is unlawful to penalize someone based on their personal and political beliefs.

I believe legally it isn't as clear cut as you make it seem.

Are you asking as a matter of law, or as a matter of good practice?

I am asking as a matter of law. I am not concerned in this context about what morally good or bad. Just what is legal and what isn't.

So are you OK with the university firing someone who signs a petition in favor of gay marriage if that's unpopular in their local community?

This isn't what I am arguing. I am not arguing mob rule or populat vs unpopular. I am arguing that an institution, even a public has the right to protect it's image and reputation and has a right to take action against employees who bring disrepute upon their employer via their private actions.

I am not a lawyer, but I think, in general even a public university could legally justify terminating the contract of a geology professor who publicly espouses flat-earth beliefs, regardless of whether they .

If Ms McCaskill were a math teacher and had the same beliefs and was fired, I think legally it would be much more cut and dry that she was improperly fired and deserves some kind of restitution/protection. But since her position is diversity officer, and she is supporting discrimination of people who she interacts with and would have to counsel and support, I think that muddies the water a bit. Can that potentially make her less effective at her job? If those beliefs becomes public will the student body not respect her or her position because of those beliefs. Would gay students feel less comfortable coming to her with issues if they know she is hostile to them and their sexual orientation?

Legally, I believe, those things would make a difference and factor in to whether her firing was inappropriate. A legal case can be made, in good faith, that they aren't necessarily discriminating against her because of her beliefs, but that her beliefs could cause problems and make her less effective in her current position, or students would be less willing to reach out to her or bring disrepute to the university and create a perception that the university is not really being serious about diversity. And I don't say this strictly about this case. One might be a great history teacher, but if it comes out that said teacher is also a holocaust denier, the school might have a problem with that — it looks bad and embarrasses the school and creates the perception that the university endorses that view in their history department.
Ken • Oct 11, 2012 @12:28 pm

@ken That is a bit rich to criticize bringing up cases were people were sued over their non-support of gay marriage in a discussion about people being penalized for their non-support of gay marriage.

It's a bit rich to describe and link to actual facts about cases being discussed in the abstract, in order to demonstrate what they actually said, instead of accepting broad generalizations about them?

I don't follow the logic that it's misrepresentation to say that a gay-marriage public accommodations lawsuit is about the defendant's views on gay-marriage, because the law also applies to interracial marriage. It's also exceptionally loaded to equate opposition to gay marriage with opposition to miscongeniation. If I hadn't read more of your stuff, I'd suspect you of bad faith.

It's misrepresentation because anti-gay-marriage activists suggest — falsely — that gay marriage creates a unique conflict between freedom of expression/religion and anti-discrimination laws. The cases and the law demonstrate that the conflict already existed. Gay marriage is simply another application.

In other words: before gay marriage became an issue, then a photographer who refused to photograph an interracial marriage could have run afoul of the same laws. A church that rented out its boardwalk space to all and sundry, but refused to rent it out to a divorced person getting remarried, could have run afoul of the same laws. The tension between anti-discrimination laws and freedom of expression and freedom of religion has always been present. Pretending that it's a new thing created by gay marriage is wrong.

Also: I don't really care if you don't like the comparison to interracial marriage. Some churches still oppose it.

FWIW, you can get criminally prosecuted for anti-gay marriage speech in the UK.

I know. The United Kingdom's bad speech laws, and hate speech laws in general, are a constant subject on this blog. But bringing them up is changing the subject. "There is a danger that America will yield to hate speech laws in Canada and England" is a proposition that can be tested. The proposition that the legalization of gay marriage will cause America to change its First Amendment interpretations radically — even though they haven't already in the face of pressure to create race-based hate speech laws — is extremely dubious.
Ken • Oct 11, 2012 @12:29 pm

TJIC:

While your responses to Paratrooper JJ have been 100% correct, I'd be inclined to cut a bit more slack on the topic.

Except that it's not "the distinction between civil and criminal is a bit hazy to people who aren't lawyers." It's "people are going to go to jail for their beliefs if we legalize gay marriage," which is propaganda.
ChicagoTom • Oct 11, 2012 @12:34 pm

Correction this :
I am not a lawyer, but I think, in general even a public university could legally justify terminating the contract of a geology professor who publicly espouses flat-earth beliefs, regardless of whether they .

Should read :
I am not a lawyer, but I think, in general even a public university could legally justify terminating the contract of a geology professor who publicly espouses flat-earth beliefs, regardless of whether they teach in class or how effective they are as a teacher if they can show that it harms the university as a whole or bring disrepute to the geology dept.
ShelbyC • Oct 11, 2012 @12:43 pm

"The proposition that the legalization of gay marriage will cause America to change its First Amendment interpretations radically — even though they haven't already in the face of pressure to create race-based hate speech laws — is extremely dubious."

Certainly. Maybe I missed it, but has anybody made this proposition? The assertion that Paratrooper made was somewhat different.
Ken • Oct 11, 2012 @12:45 pm

Certainly. Maybe I missed it, but has anybody made this proposition? The assertion that Paratrooper made was somewhat different.

I was responding to this quote:

FWIW, you can get criminally prosecuted for anti-gay marriage speech in the UK.

What's the relevance of that claim in this context, if not to suggest that gay marriage further imperils free speech here? Was it a non sequitur?
Demosthenes • Oct 11, 2012 @12:50 pm

ChicagoTom sez:

"If the public finds out that the diversity officer is a bigot, that could lead to protests and boycotts and other public pressure. Why is the university not allowed to protect itself from that?"

…and also sez:

"Would gay students feel less comfortable coming to her with issues if they know she is hostile to them and their sexual orientation?"

What complex questions. Not in the sense that they're difficult to answer. In the sense that they're unfairly presumptuous. I might just as easily say, what loaded questions.

As I said to denbigh earlier, if you take a look at the quotes of people who knew and who worked with this person — and you don't have an excuse, because Ken cited them — you would see that the evidence does not weigh in favor of the idea that McCaskill is "hostile" to LGBT students.

And as I will say to you now, you have absolutely no evidence that McCaskill is a bigot. Bigotry implies hatred and/or intolerance; ergo, you can be opposed to gay marriage without being a bigot, since neither hatred of gay people nor intolerance of same is a necessary component of an opposed stance. You may disagree with both of those sentences, and I'd bet you do given the tenor of your commentary. Nevertheless, they are true, whether you like it or not.

In conclusion: You, ChicagoTom, are free to have your own opinions on this case, but not your own facts. And the facts do not support your opinions that this woman is either hostile or bigoted toward a population that (from all available evidence that we have) she served without bias or prejudice.
corporal lint • Oct 11, 2012 @12:53 pm

the Yankees releasing John Rocker

Baseball pedant notes that Rocker was suspended by Major League Baseball, not released by anyone. He played for Atlanta at the time.
James Pollock • Oct 11, 2012 @12:56 pm

"what this means is that the Political Left cannot pretend to be even slightly different from any other power elite."
Whoops… attributing the actions of a few to a large group is false logic. Or do all conservatives share Rep. Akin's views on rape? (or substitute whatever other fringe viewpoint you'd be horrified to have ascribed to you because someone in your half of the political spectrum said it.)
James Pollock • Oct 11, 2012 @1:13 pm

"As I said to denbigh earlier, if you take a look at the quotes of people who knew and who worked with this person — and you don't have an excuse, because Ken cited them — you would see that the evidence does not weigh in favor of the idea that McCaskill is "hostile" to LGBT students."

Demo, this isn't quite the question. The question isn't about what Ms. McCaskill ACTUALLY does, believes, or says. It's about the public perception of what Ms. McCaskill does, believes, or says, and how it affects the institution as a whole.
Heck, I think there's a whole different argument lurking here (doesn't "diversity" include people who are opposed (for whatever reason) to gays, gayness, and gay marriage? Doesn't the diversity office need to accommodate those people, as well?)
Another parallel is that of actors, directors, etc. with regard to the studios that employ them. If an actor does (or tweets) something that severely damages the opening-weekend box office of the movie they're in, does the studio have any recourse? (Yes, it's different because the tension is created by contract law rather than by first amendment law, but the overriding principle is the same… does the group have the right to punish the individual for taking actions harmful to the group.)
ChicagoTom • Oct 11, 2012 @1:17 pm

And as I will say to you now, you have absolutely no evidence that McCaskill is a bigot.

Maybe we have a different definition of intolerance. In my definition, petitioning your government to forbid gay people from marrying the people they love and denying them the rights that everyone else has because you don't agree with their choice/lifestyle is intolerance, and prima facie evidence of bigotry. But your definition may be different than mine. I just don't see how anyone who supports bans on gay marriage is anything but bigoted against gay people. Petitioning your government and working towards a ban on behavior you don't agree with, is the epitome of intolerance, IMHO.

In conclusion: You, ChicagoTom, are free to have your own opinions on this case, but not your own facts. And the facts do not support your opinions that this woman is either hostile

Which is why I tried to make my comments more general, and why I stated that I wasn't commenting specifically just about this case, but about the idea that generally speaking, a diversity officer being fired for agitating against gay marriage and supporting state discrimination against members of the student body that she would work with is not inherently discriminatory towards the diversity officer. I am not trying to case aspersions on Ms McCaskill. I am saying that other factors matter, and even if Ms McCaskill is great at her job, there are other factors that can justify terminating her without it being a clear case of political discrimination. Mainly protecting the reputation of the university and ensuring that your students feel comfortable reaching out to her.

The whole point is that, to me this post, treats the topic as though there is no justifiable reason, other than Ms McCaskill not being good at her job, that her job should be at risk. I dont believe the law supports that proposition. I believe the law allows for other factors to come into play and that even though Ms. McCaskill may be good at her job, the school could conceivable justify firing her for her beliefs without being deemed to have discriminated against her for her political beliefs.
John • Oct 11, 2012 @1:21 pm

Honestly, I think this might be one of the extremely rare occasions when private political views might actually impact someone's ability to do their job – at least if they were to become known. As diversity officer, it is her job to be there for gay students when they need help. That means she both needs to be approachable, which it sounds like she was, and to be *seen* as approachable. If gay students are afraid to go to her with an issue because they've heard she privately hates them, which is how many of them are likely to interpret that signature, then she is no longer able to do her job properly – however she acts when in the office.

Bear in mind that a substantial proportion of them are going to have parents who would disown them or send them off to be "cured" if they found out they were gay. Gay students being afraid to go to someone who is on record as being anti-gay in their personal life is not a far-fetched scenario, regardless of how professional they are in the office.

I agree that this is a massive PR victory for the anti-marriage side, but that's a separate issue. Also, if she'd been in pretty much any job other than diversity officer for an educational institution, I'd agree it was wrong to sack her. As to the questions you posed in your post, they all allow some wiggle room in a way that I don't think gay marriage does – there are plenty of people who oppose female genital mutilation without hating all Muslims for example, but I've never seen anyone seriously opposing gay marriage who wasn't anti-gay.

ElSuerte: I'm definitely not going to defend the current state of hate speech law in the UK, but anti-gay marriage speech alone is *not* enough to get anyone arrested. Using anti-gay slurs or quoting the wrong parts of Leviticus in public would, probably, but that's going a lot further. If you're claiming otherwise I'd like to see sources – googling turned up nothing.

(It's worth remembering that most of the Conservative party, most tabloid journalists, and maybe 35-40% of the population are still against gay marriage. Use common sense, please…)
Ken • Oct 11, 2012 @1:27 pm

@John:

She goes to a church where the pastor spoke out against gay marriage.

Is that enough to fire her, because it makes gay students uncomfortable with her?
Jenny • Oct 11, 2012 @1:28 pm

I think ChicagoTom raises some important points that are worthy of consideration.

Specific facts matter. Maybe we'll all come to the conclusion that free speech for public employees should be a cut and dry analysis: if its not on the government's time, then it doesn't matter what they say or do as long as its legal. But, maybe its not that simple.

Public employees are representatives of their employer. If a police officer is videotaped on his own time participating in a non-violent KKK rally, it raises questions about his ability to perform his job and appropriately represent the police department that employs him. Contrast that with a teacher that strips on her off time. Is there a difference? Should there be?

Deciding "where" to draw the line is hard, fuzzy, and creates its own set of unique problems. Maybe that's why we need a hard and fast rule. But I think its at least worth a discussion.
ChicagoTom • Oct 11, 2012 @1:29 pm

Heck, I think there's a whole different argument lurking here (doesn't "diversity" include people who are opposed (for whatever reason) to gays, gayness, and gay marriage? Doesn't the diversity office need to accommodate those people, as well?)

Interesting point, although, to be fair what one would want in their diversity officer is tolerance. Tolerance of intolerance and bigotry as well as tolerance of differences.

If a diversity officer were to be publicly espousing negative things about anti-gay students and agitating for laws to penalize "hate speech", that would be problematic to me as well and would justify firing. The point of diversity is in fact to enable a market place of ideas even abhorrent ones. Once you accept such a position you have to expect some kind of public scrutiny of your actions and speech in public outside of your work.

Another thing that troubles me is…if Ms McCaskill's views on gay marriage had been known prior to her being hired in that position, would the school be justified to not offer her that position? I think it would be. Why then is it problematic to fire hire once her views come to light. In both cases the schools deems those beliefs inappropriate for the position of diversity officer.
ChicagoTom • Oct 11, 2012 @1:35 pm

She goes to a church where the pastor spoke out against gay marriage.

Is that enough to fire her, because it makes gay students uncomfortable with her?

No that isn't. She shouldn't be responsible for what her pastor says. But that isn't what happened is it?

She signed a petition opposing gay rights. Now the beliefs are hers — she owns them at that point, or at the very least supports and agrees with them. And adding "at the urging of her pastor, in church" in my mind doesn't mitigate that fact. In fact it makes it worse. The implication is that she was somehow pressured to sign it. So she doesn't have the courage of her convictions to stand up against something she doesn't believe in??

So either she has a problem with gays getting married, or she is too weak to stand on a principle when she is surrounded by a peer group.
ShelbyC • Oct 11, 2012 @1:38 pm

@Ken: "What's the relevance of that claim in this context, if not to suggest that gay marriage further imperils free speech here? Was it a non sequitur?"

I assume it's a response to the discussion started in the first post, where Paratrooper asserted that the leaders of the gay rights movement wish to protections for speech critical of gay marriage weakened. These claims are different than claims that allowing gay marriage might lead to criminal prosecution of speech. Hell, I support gay marriage, but I also fear that there might be some truth to Paratrooper's suspicion.
James Pollock • Oct 11, 2012 @1:52 pm

"If a police officer is videotaped on his own time participating in a non-violent KKK rally, it raises questions about his ability to perform his job and appropriately represent the police department that employs him."

The city of Portland, OR, had a police officer who enjoyed dressing up in a Nazi uniform (in his off-hours, of course).
PhilG • Oct 11, 2012 @1:53 pm

@Ken

Except that it's not "the distinction between civil and criminal is a bit hazy to people who aren't lawyers." It's "people are going to go to jail for their beliefs if we legalize gay marriage," which is propaganda.

Forgive me if I missed something, but prior to that no one had actually mentioned jail. The only example punishment I recall reading was a civil fine which was equated to damaging a small business in an equivalent matter to a criminal charge. i.e. Being fined in a civil or criminal context is equally damaging and, in real-word consequences to a small business, can have the same net effect. I think, and obviously I don't know here, that @Curmudgeonly Ex-Clerk was simply saying criminal or civil punishments can have a similar net effect on a person.
Demosthenes • Oct 11, 2012 @1:55 pm

@ James Pollock:

"Demo, this isn't quite the question…It's about the public perception of what Ms. McCaskill does, believes, or says, and how it affects the institution as a whole."

Actually, it is the question. I refer you to ChicagoTom's actual words: "Would gay students feel less comfortable coming to her with issues if they know she is hostile to them and their sexual orientation?" That's not couched as an issue of perception. It's couched as an issue of fact.

Had the choice of phrase been "if they believe" instead of "if they know," you'd be on stronger ground. Even then, though, I'd still be arguing with ChicagoTom. A fuller examination into the issue would reveal McCaskill's apparently non-discriminatory attitude toward the LGBT community at Gallaudet. That this likely wouldn't be part of the public "perception" says a great deal more about the public, and about Gallaudet's willingness to defend its employees from a headline-news grasp of reality, than it ever would about McCaskill.
Ken • Oct 11, 2012 @1:58 pm

Forgive me if I missed something, but prior to that no one had actually mentioned jail. The only example punishment I recall reading was a civil fine which was equated to damaging a small business in an equivalent matter to a criminal charge. i.e. Being fined in a civil or criminal context is equally damaging and, in real-word consequences to a small business, can have the same net effect. I think, and obviously I don't know here, that @Curmudgeonly Ex-Clerk was simply saying criminal or civil punishments can have a similar net effect on a person.

I don't think anyone who has ever been charged criminally would share that view.

And I don't buy that "charged criminally" is being thrown around only to invoke thoughts of fines.
Jay Z • Oct 11, 2012 @1:59 pm

I never thought of Libertarians as gay marriage supporters, but I guess life isn't as black and white as I once hoped it to be.

At the end of the day, can't we treat other people with compassion and kindness instead of dehumanizing them?
Demosthenes • Oct 11, 2012 @2:00 pm

@ ChicagoTom:

"In my definition, petitioning your government to forbid gay people from marrying the people they love and denying them the rights that everyone else has because you don't agree with their choice/lifestyle is intolerance, and prima facie evidence of bigotry. But your definition may be different than mine."

I'd say it is. And sorry, but yours is a Humpty Dumpty definition. Words do not mean just what you choose them to mean, neither more nor less. Even if McCaskill has a strong moral conviction against gay marriage, you have no evidence whatsoever that she is either intolerant of or bigoted toward gay people. That is what is important, in her official capacity as a diversity officer.

Plus, your definition will get you into some considerable trouble. Let's look at two examples:

"Petitioning your government and working towards a ban on behavior you don't agree with, is the epitome of intolerance, IMHO."

So, would the Civil Rights Movement of the 1960's be an example of an intolerant movement? It seems to fit your definition.

"…even if Ms McCaskill is great at her job, there are other factors that can justify terminating her without it being a clear case of political discrimination. Mainly protecting the reputation of the university and ensuring that your students feel comfortable reaching out to her."

So her JOB is at the mercy of other people's FEELINGS about her SPEECH. Gotcha. What, then, is the principled difference between this case and a case where conservative students going to college in a conservative community agitate to get an outspoken liberal faculty/staff member fired? (Please note: I said principled, not legal.) After all, they have the reputation of the university to consider, don't they? And will conservative students ever really feel safe coming to that professor? What is the principled difference?

"The whole point is that, to me this post, treats the topic as though there is no justifiable reason, other than Ms McCaskill not being good at her job, that her job should be at risk. I dont believe the law supports that proposition. I believe the law allows for other factors to come into play…"

The law does allow for other factors to come into play, in some circumstances. But you have not shown that these circumstances would qualify. And though you say you're speaking generally, you're really not…saying that your comments could apply toward ANY diversity officer who publicly opposed gay marriage is NOT a generalization.

Does your employer have the legal right to fire you for engaging in unpopular and/or embarrassing (to them) public speech? Should they have that legal right? Regardless of the answers to #1 and #2, do you believe it would be a morally defensible thing to do?
Demosthenes • Oct 11, 2012 @2:03 pm

@ John:

"Gay students being afraid to go to someone who is on record as being anti-gay in their personal life…

For the last time: being anti-gay marriage does not equal being anti-gay. And discussions on the subjects of gay marriage, gay rights, and gay people would be much more civilized if half the country would learn to stop conflating the two.
delurking • Oct 11, 2012 @2:05 pm

Ken, my problem here is that I am not clear on your position after reading your post and your responses. You gave a list of hypothetical questions that is quite good, and illustrates a problem quite well. Please allow me to add some to the beginning of the list, because it seems you intended to put the list in order of difficulty.

-2. Must a diversity officer privately oppose the legality of ownership of black people by white people?

-1. Must a diversity officer privately believe that interracial marriage is not inherently immoral?

0. Must a diversity officer privately support the legality of interracial marriage.

1-5. your questions

Clearly, the following discussion applies only to government jobs. Also, clearly, those private beliefs only become an issue if they become known to the public.

Now, if you feel that a diversity officer can go out and sign a petition calling for the enslavement of all black people within our borders, and suffer no job consequences as long as her on-the-job performance of her stated duties is always good, that is a statement of principle and a form of due process that I understand.

If you feel that on some issues, off-the-job beliefs made public can be allowed to result in on-the-job negative consequences, that is also a statement of principle and a form of due process that I understand, but obviously requires a follow-on discussion of which beliefs made public can result in negative job consequences. The conclusion must be made on a case-by-case basis.

I personally favor the latter policy, though I recognize that there will far less consistency than there would be with the former policy. I suspect you favor the latter policy also, and are simply ridiculing the Gallaudet president for what you think is a poor decision, but your comment about the biology professor gives me pause. So, you've responded Socratically to John by asking a question that is closer to the line. I can play that game. Are you willing to give us a hypothetical petition this person could have signed that you believe should result in negative job consequences?
Ken • Oct 11, 2012 @2:05 pm

@ChicagoTom:

Imagine a school that has been troubled of late by "hate speech" incidents. Slurs are written on walls, someone writes an op ed suggesting that gay marriage is wrong because it is unnatural and homosexuality is Biblically wrong, a few screaming matches break out, a few racists hurl the n-word.

Some students — of the groups demeaned by the words — advocate for a campus hate speech policy.

The school's diversity officer very strongly opposes them. She says that there is no right not to be offended. She says that their feelings do not outweigh freedom of expression. She says that they have to endure the grave hurt they are feeling because that's the price of living in a free society.

The students are very upset. They feel that the diversity officer's position shows that she does not take their pain seriously, that they are not respected, and that they are not valued. They feel these things very sincerely, and lose trust in her.

Should she be fired?
Gail • Oct 11, 2012 @2:08 pm

Ken, I have to quibble with you on one point. "If Dr. Angela McCaskill erred, it was in forgetting what kind of job she had." No. She did err, and she erred by supporting a law that would deny LGBT people basic civil rights. I agree that her error should not be a firing offense, but it is still wrong. If her church takes the position that it does not want to sanctify gay marriage, than it can choose not to allow its clergy to perform such weddings. But nobody has the right to insist that other people be denied their most fundamental human rights on account of their own religious beliefs.
Mary • Oct 11, 2012 @2:14 pm

@Demosthenes

And how is deeming someone unfit, by sexuality, to enter legal contract with a spouse-partner, not anti-[that sexuality]?

It is of course possible to like gay people and suppose they should not be married, as it is possible to find women delightful and suppose they are not fit to vote. But it is to accept that they are second class citizens.

But wait– what if she supports civil unions, with equal legal rights, without the name of 'marriage'? After all, marriage has religious connotations.

In this case I will take her more seriously. As soon as she signs a petition against atheist marriage.
Demosthenes • Oct 11, 2012 @2:20 pm

@ Gail:

"She did err, and she erred by supporting a law that would deny LGBT people basic civil rights…nobody has the right to insist that other people be denied their most fundamental human rights on account of their own religious beliefs."

I don't know where you live, but I'm unaware of any state that refuses the right of marriage to gay people. I live in a Bible Belt state, and even here, homosexuals can get married. They just have to find a member of the opposite sex, not too closely related to them, who's both willing and able to consent. Those are the same conditions my state places on heterosexuals seeking marriage. That's equality, no?

Before anyone fires off a response accusing me of missing the point, let me assure you that I know exactly what Gail was saying. My only point in making this statement is to put forth the following contention: language matters. The whole point of contention in the gay marriage debate is whether a union between same-sex couples is a fundamental human right. You cannot simply assume that it is in order to dismiss your opponents, any more than they could assume that it isn't in order to dismiss you — which is what I was doing above, just as Gail did it before me. The difference between me and Gail is that only one of us did it intentionally.
James Pollock • Oct 11, 2012 @2:20 pm

OK, so there are some people so opposed to gays being covered by public accommodation laws that they're willing to ignore those laws and continue to deny service to gay patrons. I see a direct parallel to the protests that took place before there was public accommodations laws, wherein people would come into a business establishment and ask to be served despite the business owner's having posted that they would not be served. At that time, the law favored the business owners and it was the sit-in protesters who were hauled off to jail, fined, and in many cases, roughed up along the way. The tide of the law has turned, and it now favors the protesters rather than the business owners (assuming the protesters are in a "protected class", of course).
I don't see any difference between the civilly disobedient then and the civilly disobedient now; to your supporters, you are noble and true and standing up for all that is right and pure and holy, and you should let nothing stand in your way. To your opponents, you are obnoxiously standing in the way of the way things ought to be, and the full force of law and society should be mobilized to stop you from carrying out your evil, evil plan.
I favor gay marriage as a civil rights issue with the proviso that legalizing gay marriage only guarantees the ability to get a license at the courthouse; churches will remain free to decide if and when (and how) they want to be involved in the process. If a church (or a churchmember) wants to say "those people are gay, therefore God doesn't really think they're married and neither to do I.", that's fine. There's lots of people who are legally married to one person but the Catholic Church considers them to be married to someone else. I think at least some of the people who oppose gay marriage do so because they incorrectly assume that their churches will be required to perform them.
HangOn • Oct 11, 2012 @2:24 pm

@Demosthenes

For the last time: being anti-Black marriage does not equal being anti-Black. And discussions on the subjects of Black marriage, Black rights, and Black people would be much more civilized if half the country would learn to stop conflating the two.

Do you believe that the above is a reasonable position to take? Do you find it easy to accept that someone who opposes the marriage of Black couples isn't a racist?
James Pollock • Oct 11, 2012 @2:31 pm

"Actually, it is the question. I refer you to ChicagoTom's actual words: "Would gay students feel less comfortable coming to her with issues if they know she is hostile to them and their sexual orientation?" That's not couched as an issue of perception. It's couched as an issue of fact."

Back up. How do the students "know" that she is hostile to them? (particularly since, as we've seen reported, that actual current students say that she sure didn't SEEM hostile when they interacted with her?) I think we can agree that if she was openly hostile to subgroups of the student body, that SHOULD disqualify her as "diversity officer", can't we? And we are agreed that that ISN'T actually what kind of case we have here.

"A fuller examination into the issue would reveal McCaskill's apparently non-discriminatory attitude toward the LGBT community at Gallaudet. That this likely wouldn't be part of the public "perception" says a great deal more about the public, and about Gallaudet's willingness to defend its employees from a headline-news grasp of reality, than it ever would about McCaskill."
True. But that's one of the dangers of a public-facing job.
Grifter • Oct 11, 2012 @2:31 pm

@Demosthenes:

In order to debate that topic with you, you'd have to assert whether marriage is a right, and what the intent of that right is. If marriage is a right, and the intent is to protect loving couples, then you are denying that right to the gays. If it is not a right, then it's just a law that protects one orientation more than another, which would seem patently unconstitutional.

So I would say you have to assert whether you think "regular" marriage is a right, and what the right is, without begging the question.
ChicagoTom • Oct 11, 2012 @2:34 pm

Even if McCaskill has a strong moral conviction against gay marriage, you have no evidence whatsoever that she is either intolerant of or bigoted toward gay people.

That's the most asinine thing have ever heard. To me she is bigoted against gay people. You don't work to deny them equal rights if you are being tolerant toward them. In fact gay marriage bans are efforts to keep those relationships classified as illegitimate and un-natural. That isn't tolerance. Whether she hides her bigotry very well doesn't change the fact that her beliefs are intolerant and bigoted. She believes GAY PEOPLE shouldn't have the right to marry

You can pretend that she isn't against "gay people" just against "gay marriage" but that's a distinction without a difference. She isn't taking some principled stance like get government out of marriage altogether, or espousing the belief that churches should not be forced to recognize them. She is singling out one group and saying "those people don't deserve the same rights as me and the state shouldn't recognize their unions as legitimate". If that's not bigotry and intolerance, than what is it in your view? Is that tolerance, acceptance? If it's some kind of principles stand, than what is the principle?? She *IS* hostile to gay people, regardless of how well she hides that hostility. Being against the state recognizing and allowing homo-sexual marriage is a position hostile to gay people. You don't get to claim tolerance while working to deny rights to people. That's absurd.

And though you say you're speaking generally, you're really not

Except I really am. That's why I added other examples. A flat earth geologist, a biologist who doesn't believe in evolution or carbon Had the choice of phrase been "if they believe" instead of "if they know," you'd be on stronger ground.dating, a holocaust denying history or jewish studies professor.

Any of these situations are not clear cut cases of political discrimination as far as the law is concerned.

What, then, is the principled difference between this case and a case where conservative students going to college in a conservative community agitate to get an outspoken liberal faculty/staff member fired?

I don't believe this comparison is apt. If Ms McCaskill wasn't the diversity officer then we wouldn't be having this conversation. I would agree that she was obviously wronged. But she is the diversity officer.

If a liberal professor was hired to teach the Greatness of Reagan 101, and s/he publicly espoused that Reagan was the worst president in the history of the USA, then I don't see a problem with firing that person from that position. Let them teach something else or go elsewhere.

Does your employer have the legal right to fire you for engaging in unpopular and/or embarrassing (to them) public speech? Should they have that legal right?

I work for a private entity in an at-will state. I can be fired for any reason whatsoever.

But I don't want to engage in a moral debate — my only interest in discussing this is about the legal aspect of this. I haven't taken a moral stand one way or another. This is a matter of law, and as far as the law is concerned, I don't believe this specific instance is a clear-cut case of discrimination against Ms. McCaskill.
James Pollock • Oct 11, 2012 @2:35 pm

"being anti-gay marriage does not equal being anti-gay."
No, but the overlap is pretty significant.
James Pollock • Oct 11, 2012 @2:47 pm

"I don't know where you live, but I'm unaware of any state that refuses the right of marriage to gay people. I live in a Bible Belt state, and even here, homosexuals can get married. They just have to find a member of the opposite sex, not too closely related to them, who's both willing and able to consent. Those are the same conditions my state places on heterosexuals seeking marriage. That's equality, no?"

This argument is the functional equivalent of pointing out that the law prevents both rich people AND poor people from sleeping under the public bridges.
ChicagoTom • Oct 11, 2012 @2:53 pm

Imagine a school….

Should she be fired?

Ken,

Why do I get the idea that you are setting me up with this example??

1. I don't think she should be fired. But this example is limiting everything regarding her employment to how she is performing her duties. Is it your position that the only thing that legally matters is how you do your job? Espousing opinions that make your employer lose faith that you will be able to continue to do your job properly never matters? Espousing opinions that affect the perception of your employer doesn't matter?

2. Since we are talking hypotheticals, What if in your hypothetical, the diversity officer, in her off hours as a private citizen was organizing with those hate-espousing students, hosting meetings at her house and counseling and advising them on how to protest and what messages to spread? What if outside of work she was actively supporting the hateful messages and espousing solidarity with those messages. Should she be fired from her position as diversity officer?
Shane • Oct 11, 2012 @3:08 pm

Arggghh my frustration with this and other issues like it makes me want to stab my genitalia repeatedly with a fork. Why is it so damn important that the government have power to decide marriage, can't we leave this up to the churches or individuals? What possible compelling interest could this possibly be for the "public" good? The more that this gets thrown around the more stupid, twisted and convoluted the whole thing becomes. And the funniest, I mean absolutely funniest part is the part were people find a way around the stupidity (he's not my gay domestic partner, he is my brother, cause see we have the same last name). The less than funny part is that we have become a nation that thumbs our nose at rule of law because there are million laws like this.

So lets pass some more laws to fix the law that never really did anything other than to force other people to act the way some group expected them to, and when this creates a series of weird consequences then let's pass some more laws. Let's just keep passing laws until this whole thing gets fixed and then pass some more laws just in case.
ChicagoTom • Oct 11, 2012 @3:19 pm

Why is it so damn important that the government have power to decide marriage, can't we leave this up to the churches or individuals?

Marriage in the eyes of the state is a contract. There are inherent rights that come with marriage. If you take your position to it's logical conclusion, then everyone has to go through a lawyer and contract for basic things like inheritance, end of life decisions, custody of children, Automatic Housing Lease Transfer, Immunity from Testifying Against Spouse, Assumption of Spouse’s Pension, Hospital Visitation rights, etc.

Without the government automatically conferring these benefits, everyone would have to privately contract these things. Poor people who can't afford the lawyer fees would be at a disadvantage. And then those contracts could get tied up in court (look at a per-numptual agreement — even after both parties have agreed, courts invalidate them all the time)

Quite honestly, your position would make life much much more difficult for everyone. And for what purpose? Wouldn't it be simpler, and cheaper and better for everyone to let consenting adults enter into a union, register it with the state and automatically grant them these rights?
Mary • Oct 11, 2012 @3:20 pm

@Shane I don't find it particularly convoluted. I would like to be able to join with the woman I love in a government-notarized contract that comes with certain legal and tax statuses. If she were a man, we would go and obtain (despite both being atheists with no plans to set foot in a church) something called a 'marriage license.'

Currently– in some but not all states– I could obtain a 'civil union' license instead.

Demosthenes will point out as is his wont in discussions of gay marriage that I could choose a male atheist off the street today and with his agreement get a marriage license. I question whether there is a legal reason– besides the weight of history– that the tax and legal status I mention requires a male and female participant. It does, today, contain that requirement– but I have never heard an argument not rooted in an assumption that homosexuality is inherently immoral– why it should.

It's really just another legal issue in the end.
Demosthenes • Oct 11, 2012 @3:29 pm

@ HangOn:

Since I don't accept the analogy (which is unclear in the first place — are you talking about mixed marriages, or marriages between two black people, or both?), you'll have to try again. Race and sexual orientation aren't equivalent.

The properly analogous case would be to take out the word "gay" and substitute another sexual orientation. And for the record, although I would find it a bizarre philosophical position to take (not surprising, given my cultural biases), I would say that someone could be "anti-straight-marriage" and not be "anti-straight."

@ James Pollock

"How do the students 'know' that she is hostile to them?"

You'd have to ask ChicagoTom. They were his words, not mine.

"This argument is the functional equivalent of pointing out that the law prevents both rich people AND poor people from sleeping under the public bridges."

To extend that analogy…Gail's argument, then, would be the functional equivalent of saying that anyone who publicly opposed a law saying that poor people had the right to live in mansions was supportive of denying them basic human rights. Will you also criticize her for that? (If you don't like the rebuttal, kindly remember that you were the one who insisted on boiling a complex socio-economic spectrum of people down to a simplistic rich-poor dichotomy, solely so you could make a point about a dichotomous conundrum.)

@ Grifter:

"In order to debate that topic with you, you'd have to assert whether marriage is a right, and what the intent of that right is."

That's true…as far as it goes. Or more properly, both parties would have to answer those questions before a real discussion could begin. Of course, I wasn't actually trying to debate the topic. I was trying to point up Gail's blinkered attitude on the question by assuming what I consider to be an opposed yet equally blinkered answer. She didn't want to discuss; she wanted to assume, and then browbeat. I thought it would be amusing to respond in kind.
Demosthenes • Oct 11, 2012 @3:34 pm

@ Mary:

"Demosthenes will point out as is his wont in discussions of gay marriage that I could choose a male atheist off the street today and with his agreement get a marriage license."

Sorry. It is not my "wont" to point that out. It is, however, my "wont" to amuse myself by responding in kind to people who insist on stacking the terms of a debate in their favor ab initio. But I understand your confusion. As long as gay-marriage supporters continue to practice that strategy, I grant you the overlap will be significant.
Grifter • Oct 11, 2012 @3:36 pm

@Demosthenes:

Gail was just begging the question; assuming a commom definition regarding the "right" of marriage and the "purpose" of marriage. If you accept that marriage is a right, and that the right is to allow two people in love to get married, then anyone opposed to it is obviously an idiot or something worse. I grant that. Your response, by not pulling from the "common definition", seemed confusing glib, but did not seem to have actual substance. It seems to me it would be akin to saying, in response to "why does that man have the right to free speech, but I don't!", "You have the same right to speech he does…so long as you're him".
Mary • Oct 11, 2012 @3:47 pm

@demosthenes inasmuch as Gryfter got to the point before I could bring the discussion that far, what do you think the intent of marriage is, and whether it is a right.

(It was not us who stacked the deck, by the by– unless you think the petition Mckaskill signed was to refuse the right of homosexuals to marry anyone. But I am perfectly happy to say that I think it is unfair, specifically, that I cannot marry the consenting adult with whom I am in love, and who I am not closely related to.)

You say that both sides must define the intent of marriage. I find this odd, as the institution is old and surely there must have been and still be a legal reason to keep handing out licenses. As a woman who has no desire to spend the rest of her life in legal union with a man, but a considerable desire to do so with a woman, I am willing to answer any questions you have.

And I still contend that the requirement of a man and a woman is arbitrary.

I do not find it particularly amusing, of course, considering that the issue impacts me directly and means that I am going to have to move away from my state of residence at some expense in order to marry the woman I love– I have this pesky thing about wanting the same rights that other committed couples have– but I respect that it is great fun for you.
Caleb • Oct 11, 2012 @4:08 pm

@ChicagoTom

If you take your position to it's logical conclusion, then everyone has to go through a lawyer and contract for basic things like inheritance, end of life decisions, custody of children, Automatic Housing Lease Transfer, Immunity from Testifying Against Spouse, Assumption of Spouse’s Pension, Hospital Visitation rights, etc.

This is laughable. Do you have to go to a lawyer every time you buy a car, rent an apartment, or do any other legally complex but mundane thing? Of course not, that's what standard form contracts are for. In fact, that's what marriage is now: a single, state-drafted standard form contract (with lots of eligibility restrictions). What makes you think that there would be no standard form contracts at all if the state got out of the game. (Or, if the state let others get into the game.)

And then those contracts could get tied up in court (look at a per-numptual agreement — even after both parties have agreed, courts invalidate them all the time)

Take a look at your local court's family court docket sometime. Private marriage contracts would have to fail spectacularly to outweigh the current marriage-centric case load. Also, most pre-nups are invalidated on state family law grounds. Get rid of those laws, get rid of those problems.

And for what purpose?

To provide freedom to any adult consenting parties to contract as they will without subjecting their rights to the highly subjective and polarized world of politics. That's a pretty good purpose, I'd say.
Demosthenes • Oct 11, 2012 @4:16 pm

@ ChicagoTom:

"That's the most asinine thing have ever heard."

Funny. That was exactly the same sentence I was going to use with respect to your very next sentence: "To me she is bigoted against gay people." You don't write the English dictionary all by yourself. So I don't care what a word means to you. I care what a word means.

"You don't work to deny them equal rights if you are being tolerant toward them."

Tolerance toward people is not necessarily the same thing as tolerance toward their beliefs or their behavior. And I refuse to allow you to use loaded phrases without a challenge — as I said to Gail, on one view of "equal rights," marital rights are already equal.

"You can pretend that she isn't against 'gay people' just against 'gay marriage' but that's a distinction without a difference."

Well, to me, it isn't. (Said with malice aforethought.)

No, seriously. That isn't a distinction without a difference. And all your subsequent ad nauseam ranting doesn't count as an argument in favor of this claim. Especially the part where you effectively declare what her motives are…without any proof to back up your arguments. What gives you the right to determine someone's motives? What evidence do you have for your position?

"Except I really am. That's why I added other examples."

I was responding to this sentence of yours: "…I stated that I wasn't commenting specifically just about this case, but about the idea that generally speaking, a diversity officer being fired for agitating against gay marriage and supporting state discrimination against members of the student body that she would work with is not inherently discriminatory towards the diversity officer."

So, according to your own words, you weren't just speaking about THIS diversity officer being fired for THIS "agitation against gay marriage." You were speaking about ALL such cases. Please. And when I condemn Michael Vick for participating in dogfighting, I'm not just talking about his specific case…I'd come down just as hard on any NFL quarterback who participated in dogfighting. See? I'm being general.

If a liberal professor was hired to teach the Greatness of Reagan 101, and s/he publicly espoused that Reagan was the worst president in the history of the USA, then I don't see a problem with firing that person from that position. Let them teach something else or go elsewhere.

First, this is an absurd case. Not even Liberty University would offer a course called "The Greatness of Reagan." So, let's make it a little less absurd. Let's say a liberal professor were hired to teach a course on "The Philosophy of Capitalism," and then stated publicly (outside class, on his own time) that he was against many of the actual practices of capitalists today, and favored outlawing them. That would at least be more analogous.

Going with that example: What would be the problem? You don't have to believe that the practice is right to be an effective teacher of the philosophy, and you don't have to believe in the legitimacy gay marriage to be an effective advocate for the concerns of gay students. That you appear to think such is the case is beyond depressing.

"But I don't want to engage in a moral debate — my only interest in discussing this is about the legal aspect of this. I haven't taken a moral stand one way or another."

You…you don't want to engage…

:::snicker:::

You haven't taken a…st–stan–

BWAHAHAHAHAHAHAHAHAHAHAHA!!!!!!!

Okay. I feel better.

That's right. You don't want to engage in a moral debate. That's why you began by using terms like "bigot" and "hostile," which have no moral implications whatsoever. That's why you've declared that anyone who is against the legalization of gay marriage must ipso facto be against gay people…because that's absolutely a "legal" issue, and there's no "moral stand" in there whatsoever. No, you just want to talk about the legal aspects of whether this (in your view) hostile bigot should be fired from her job for being all (in your view) hostile and bigoted, even though all available evidence indicates that she is neither hostile nor bigoted on the job, which is the only place that matters.

And that's not even taking into account that "your view" is far from being indisputable.

ChicagoTom, it is my sad duty to inform you that you have now crossed the Mendoza Line of silliness. Shoo.
Demosthenes • Oct 11, 2012 @4:37 pm

@ Mary:

"I still contend that the requirement of a man and a woman is arbitrary."

Okay. Let's say, for the sake of argument, that you're right. So, let's start with a "traditional" definition of the word 'marriage':

A legal union of two people, of different genders, who are both of the age of consent (or who are of a lesser age and have parental/guardian permission), who have the necessary mental capability to enter into a contract, who are willing to do so, and who are not too closely related by blood.

I take it we can agree that a relationship of this type would be defined as a marriage in all fifty states, and D.C. as well.

Is there a part of that definition that (on your view) wouldn't qualify as arbitrary? Because really, the only part of it that I can see as being totally unchallengable on your view is the "willing" part, without which the very idea of contracts (and law in general) would totally break down.

Why not "two or more" people — what justification is there against polygamy? Why shouldn't I be able to marry my sister or my mother (or, for that matter, my brother or my father)? As long as she (or he) is willing, why shouldn't I be able to enter into a marital relationship with a minor, whether their parents consent or not?
Mary • Oct 11, 2012 @5:04 pm

@Demosthenes

Being of the age of consent or having a guardian's permission is not arbitrary– there are both science and history behind the decision to set a difference between a minor and adult as far as it comes to decision-making and legal action. There is, I grant you, no to-the-day switch that biologically signifies the end of hormonal disturbance and the beginning of judgement, but 18 is good enough to vote, and I do not challenge the legal age.

If you want to argue that the age of legal majority should be changed, it is certainly within your purview.

-Why not two or more people?
It certainly has been in times of old, but current legality applies to two adults acting in tandem: marriage law is not currently set up for precedence between three partners when it comes to inheritance and legal decision, but it is set up to deal with two. Its functionality would work for man and man or woman and woman as well (however well you feel that is) as it does to man/woman couples.

-In the case of blood relations, there are medical issues if pregnancy is an issue– and more broadly, there are consent issues that come into play when one partner has been in a position of authority (as an older sibling or parent) for the other partner's entire life. Between those separated at birth? Less so. But I freely admit that I am not going to fight that fight one way or another when the separated-at-birth or fraternal-twin contingent steps up.

In my view and to the best of my understanding, a marriage license is issued with the intent and functionality that two adults, having decided to live together, make significant financial and medical decisions together, and to care for any children resulting (by birth or adoption) shall be treated as a unit by the state.

I will argue that 'man and woman' is an artifact of a social assumption that only man-and-woman relationships are healthy, similar to the cultural view that only landed white males are fit to make decisions about their government.

Since, then, I feel that it should be my right not just to marry but to marry the consenting adult of my choosing, I do feel that efforts to keep that right from me are discriminatory.

I say nothing about the intent of those who choose to do so– in fact, many who oppose my right to marry (a woman) are far from anti-gay. (If I am right that anti-gay means that they are against the existence and public appearance of individuals who are homosexual.) Unfortunately, the friendly intent of their actions does not render them any less a legal inconvenience to me.
TJIC • Oct 11, 2012 @6:26 pm

@ken:
> It's "people are going to go to jail for their beliefs if we legalize gay marriage," which is propaganda.

Valid point.

I retract my statement.
eigenperson • Oct 11, 2012 @6:42 pm

I must say I do not see the issue here. Dr. McCaskill's job description seems to have included upholding a particular ideology. As you say, she is a zampolit — a political officer. Her job is to ensure that other people at the institution follow the tenets of the ideology.

If she doesn't uphold the ideology herself, I can see why one might decide that she is not the person for the job.

That's true whether or not I agree with the ideology. If you work as a zampolit at, say, Liberty University, and you sign a petition in favor of gay marriage, and they fire you, I don't think that's wrong either.

Now, if you are a janitor, and you get fired for your political views on gay marriage, that's a different matter. It's clearly not relevant to your job.
Curmudgeonly Ex-Clerk • Oct 11, 2012 @7:15 pm

Ken,

For the record, I am a lawyer as well, so the distinction between civil and criminal law is not lost on me. But I think you overstate the difference where the New Mexico photography case is concerned.

If you are comparing the fine levied in the New Mexico case (approximately $7,000) with serious felonies for which real terms of incarceration may result, then there's a very real and substantial difference. I readily concede this.

But a $7,000 fine is a good deal higher than the fines for most state criminal misdemeanors. In Texas, for example, criminal misdemeanor fines appear to max out at $4,000, depending on what is charged. (Tex. Penal Code 12.21-.23.)

Sure, you also could see some jail time for a misdeameanor (up to a year), and that's a meaningful difference too. But jail time is not a given for a misdemeanor, not even in a hang 'em high state like Texas.

I think imposition of a civil fine thousands of dollars in excess of criminal misdemeanor fines for refusal to photograph gay nuptials blurs the line between civil and criminal offenses. You may be freer than criminals actually sentenced to jail time, but I think most citizens on the receiving end of these civil fines would perceive themselves as being less than free and punished by the state in a way customarily associated with a prosecution. "Toe the approved ideological line, or the state will put you out of business and/or ruin you financially" warrants that sentiment, in my book.
James Pollock • Oct 11, 2012 @7:15 pm

"A legal union of two people, of different genders, who are both of the age of consent (or who are of a lesser age and have parental/guardian permission), who have the necessary mental capability to enter into a contract, who are willing to do so, and who are not too closely related by blood.

I take it we can agree that a relationship of this type would be defined as a marriage in all fifty states, and D.C. as well."

Well, in some circumstances, this would NOT be called a "marriage" but would be referred to as a "general partnership", and in some others it might form a "Limited Liability Company".

"Why not "two or more" people — what justification is there against polygamy?"
Why, indeed? There are some things that might need some tweaking (for example, right now marriage automatically creates a medical power of attorney… a spouse can make medical decisions regarding medical treatment when the other is incapacitated. Polygamy produces possible a possible monkey wrench into the problem: what if spouse A approves of the treatment, but spouse B doesn't?) There's nothing inherent in polygamy that would prevent the state from recognizing by official act that a polygamous relationship exists, and the problems have already been worked out in business law, which permits an unlimited number of partners in a general partnership. You'd just have to adjust family law to reflect the changes.

"As long as she (or he) is willing, why shouldn't I be able to enter into a marital relationship with a minor, whether their parents consent or not?"
Well, as a matter of law, the choice is removed from children on the theory that even if they want very much to enter a contract, they don't fully understand all the ramifications of entering a contract. Of course, the actual truth varies significantly from person to person, with some people quite competent when younger than 18, and some people still not truly competent when older than 18, but the law finds that arbitrary delineations are easier to adjudicate, so that's what we have.
Grifter • Oct 11, 2012 @7:37 pm

@Curmudgeonly Ex-Clerk:

You said you were a lawyer… I would think you would understand that there is a difference between a "fine" and "paying the legal fees of your opponent".

From the appeal:

"The NMHRC ordered Elane Photography to pay Willock
$6,637.94 in attorney fees and costs. Willock did not seek monetary damages."

Had Elane Photography sent an email saying "we don't photograph miscegenation weddings. Thanks!", the result would have been identical.
Shane • Oct 11, 2012 @7:38 pm

@ChicagoTom So lets see, Inheritance: wills will be made by both spouses anyway; end of life decisions are usually articulated in a living will because a parasite family member can come out and contest a spouse (Terry Shaivio); custody of children … really? Blood test $20; Automatic Housing lease transfer, I don't even know what this is but thank gawd I am married and the state will confer this upon my blessed soul; Immunity from testify against spouse, I am really not getting this because no one can compell me to testify; Assumption of Spouse's Pension … one word … will; Hospital Visitation rights, I take it you have never had a loved one in the hospital. So what we have now is better and fairer to the "poor" people. I fully understand that marriage is a contract in the eyes of the state. So if we are to go with your position a contract that is ever changing and evolving based on the whims of your neighbors is still a contract?

How about a clear articultion of said contract where you sign on the line which is dotted, because you either had the contract interpreted for you by a lawyer or you understand it yourself. It seems that buying a house has a lot of legal hokus pokus but we don't farm this out to the state just because it is complicated for the "dumb" people.

I can not fathom why these would be reasons for the state to make a contract that has no explicit obligations or remedies for which two people must be of the opposite gender to sign. So lets look at it this way: What if two parties w/e their gender could enter into a contract that they designate the terms and conditions of? What if that contract is agreeable to those parties? What if they never really need to change the contract because they are happy with it? What if they decide to have kids? What if they decide to raise those kids as they see fit? … what does this cost me and the rest of the country … if you guessed nothing you are right. And if you think for a moment that your great for everyone marriage proposal is so wonderful, ask either spouse how it went when they got a divorce … hell ask the "poor" people how it is in a divorce. Ask them if they understood what was going to happen if they broke the "contract".

What saddens me is that people want this. They want a sign that says please discriminate against me. If you are gay and you want a civil union then here you have it. This is it the ever changing ever shifting whomever is in power dictating to you what you will and will not do. Would it be better if the shoe was on the other foot and the government said that a marriage was between two people of the same sex. This is possible, and people want it.
Shane • Oct 11, 2012 @7:42 pm

Disregard my previous post @Caleb said far more articulately than I ever could what I really wanted to say. Thank You @Caleb
Curmudgeonly Ex-Clerk • Oct 11, 2012 @8:01 pm

Grifter:

A news story I had read characterized the New Mexico case as involving a fine. But you are right; it's attorneys' fees and costs. That's what I get for relying on a news story. I ought to know better; press coverage of legal issues is abysmal.

Thank you for bringing that to my attention. I genuinely appreciate the correction.

That may change my mind about this matter altogether; I need to think about it. It places it in a different light. Costs and fees assessed in favor of a party for asserting violation of a statute is not the same as the state levying a fine (though functionally it perhaps may be the same in effect).
James Pollock • Oct 11, 2012 @8:06 pm

"It seems that buying a house has a lot of legal hokus pokus but we don't farm this out to the state just because it is complicated for the "dumb" people."

Um, who do you think keeps the authoritative records of who owns real property?

Ownership of a house confers a set of rights all automatically at once (see, e.g., "castle doctrine"). Sure, you can contract for some of those rights, but ownership grants them automatically. When you buy a house, you don't negotiate separately for mineral rights under it, air rights over it, rights of privacy within it, or right to exclude others for it. You buy the house, and all those other rights are understood to flow from your ownership of the property.
denbigh • Oct 11, 2012 @8:13 pm

Ken, Demosthenes, I know you're having a ball with your insults, but just remember this: thirty or forty years from now, you people are going to look just as ignorant and pitiful as the anti-miscegenation bigots of the 60s look to us today. Enjoy that thought while you rail against us mean ol' intolerant faggots, boys.
perlhaqr • Oct 11, 2012 @8:14 pm

Gay marriage illuminates existing tension between anti-discrimination laws and the First Amendment. Anti-gay-marriage advocates often attempt to misrepresent the legal landscape to argue that there is something unique about the way gay marriage poses this problem. But the problem could just as easily be posed by any church refusing any marriage.

See, and I do wonder about this. I'm an ex-Mormon. My father is still a church member. The official position of the LDS church about why they oppose gay marriage is because of the concern that they would be forced to perform Temple Marriages for homosexual couples.

And, honestly, I think this is ridiculous, because I have some idea of how that works. You have to be eligible for a current temple recommend in order to get into the temple, and presumably, homosexuals wouldn't qualify any more than I do. And since I can't imagine that any court wouldn't laugh me right out of the building for trying to sue the LDS church for not letting me marry my (also not mormon) wife in the temple… I don't really see how this is likely to be a problem, but I am not a lawyer.

Any thoughts on that?
Ken • Oct 11, 2012 @8:16 pm

@denbigh: And you, if you are still alive, will still be either illiterate, stupid, or dishonest.

Or did you not see that the post stated that I support gay marriage unequivocally, was proud of my co-blogger's series opposing the anti-gay Amendment One, and praised Walter Olson's advocacy to support gay marriage in Maryland?
perlhaqr • Oct 11, 2012 @8:16 pm

denbigh: Ken supports gay marriage. You're a fucking moron. That has nothing to do with your sexual orientation. Thank you for playing.
Troutwaxer • Oct 11, 2012 @10:11 pm

I have no sympathy whatsoever for Dr. McCaskill:

1.) How incredibly dumb is this woman? Any person with a Ph.D should be aware that any petition to the state will be part of the public record and her name, address etc., might also be entered into some kind of database. And she should also be aware of the possibility that someone from the University's Sociology or Political Science Depts. is studying the issue she's signing a petition about. Signing that petition is really, completely, stupidly dumb from the standpoint of simple self-preservation.

2.) If she's going behind the backs of the "diverse" students on this matter, what else has she done? Is this her only "mistake" or are we seeing the tip of the iceberg? The diversity officer at a major university could be a major danger to any of the communities she deals with and this could happen either by accident or design. It's already clear that she's not very bright.

3.) Note the following quote from the top post:

"She's been a great ally to the LGBT community and supported many of the LGBTQA Resource Center's programs," said one student, who asked to remain anonymous. "I'm heart broken about this."

McCaskill has done quite a bit of damage, and not just where her relationship with the Gay community is concerned. We're talking about an appalling level of insensitivity here.

4.) I am the father of a Gay child, and I believe that my child deserves to be treated as the equal of anyone else in America. Despite my love for free speech, I don't just want to see McCaskill fired, I want that prejudiced, superstitious, lying, hypocritical danger to my child's well-being tarred, feathered, and ridden out of town on a rail.

Why do I bring my personal stuff to discussion which is hopefully calm and rational? It's because I think I'm a fairly typical Liberal/Moderate parent of a Gay child. If my kid actually attended Gallaudet I would be on the phone with the highest ranking person I could find, and I would be explaining that if McCaskill kept her job, I'd be keeping my money and my kid would be going to a different school next semester. I'd also be discussing the issue very, very loudly. If I were a Gay alumnus, I wouldn't be giving them any money this year.

5.) It's McCaskill's job to understand everything I've brought up and apply it in her day-to-day life.

So she's dumb, we don't know what else she has done to undermine her employer/students, she's insensitive to the communities she is supposed to serve, her actions will cost her employer both students and donations, and she clearly doesn't understand basic issues that go along with her job.

Does McCaskill deserve the freedom to practice whatever politics she's prefers? Yes, of course she does. But her behavior also has consequences in the real world, and Gallaudet will be lucky if McCaskill's screwup costs them less than 7 figures.
John • Oct 12, 2012 @3:42 am

@ken

People disagree with their pastors on isolated issues all the time, just like people vote Republican without agreeing with every single issue. Her going to a church with an anti-marriage pastor implies nothing about her actual view on the issue.

And in reference to this:

"So her JOB is at the mercy of other people's FEELINGS about her SPEECH. Gotcha. What, then, is the principled difference between this case and a case where conservative students going to college in a conservative community agitate to get an outspoken liberal faculty/staff member fired? (Please note: I said principled, not legal.) After all, they have the reputation of the university to consider, don't they? And will conservative students ever really feel safe coming to that professor? What is the principled difference?"

The principled difference (ignoring the reputation argument) is that I would be incredibly surprised if a conservative student was actually afraid of going to a liberal professor or vice versa. I would also be incredibly surprised if some gay students weren't afraid of going to an anti-marriage diversity officer. This is for two reasons.

The first is that people go to professors for different reasons than they go to diversity officers. If I go to a professor as a conservative student, it's because I'd like help with my classwork or something similar – my politics don't come into it, except insofar as they've already come into my classwork if I'm in a liberal arts course. (And my sexuality doesn't come into it at all!) If someone is afraid of revealing their views, they have no actual need to reveal them.

If I go to the diversity officer as a gay student, it's because my dorm-mate is severely anti-gay and I can't take it any more. Or because I'm being discriminated against or verbally abused by a member of staff. Or because I've been closeted for the last ten years. In other words, gay students going to the diversity officer generally have problems directly linked to their sexuality, so they pretty much have to disclose it.

Their problems are also significantly more personal and they make themselves significantly more vulnerable when discussing them. In many cases there's also (as I mentioned earlier) the perceived risk of being outed to their parents. Meanwhile, the most a professor can really do in most cases is deny you a makeup test. So the scope for potential discrimination is much greater as well.

The second reason is that an overwhelming majority of liberals don't discriminate against conservatives in a professional setting, and vice versa. At least a substantial proportion of anti-marriage advocates would happily discriminate against gay people in a professional setting. (Indeed, so would a substantial proportion of the general population.) So there's much more likely to be fear of discrimination on the gay student's part, and if there is fear it's much more likely to be justified.
delurking • Oct 12, 2012 @6:12 am

Hi Ken, I think you missed my post, probably because it was tl, so you dr. But I am genuinely interested in your philosophy, so here is a shorter version:

Is there any petition the diversity officer could have signed, in her private capacity, that you think should result in negative job consequences (for example, signing a petition calling for the enslavement of all blacks within our borders, or for making interracial marriage illegal again)?

The reason I ask is that I understand taking a hard line supporting the free expression and petition rights of government employees. I don't, however, ultimately support a policy where no out-of-work expression or political activity can be considered when judging on-the-job performance. I realize that this means things will have to be decided on a case-by-case basis by managers, which means policies will be inconsistently applied. Nevertheless, we know enough about human nature and unconscious bias that I think the cost to the functioning of government organization of ignoring some grossly inappropriate personal opinions made public would be higher than the cost of the inconsistency that results from the policy.

So, I think you are criticizing the Gallaudet president's decision, not making a blanket argument about the free speech and petition rights of government employees, but I am not sure.
Ken • Oct 12, 2012 @6:25 am

Hi Ken, I think you missed my post, probably because it was tl, so you dr.

No, I just got busy, first with work, then with getting home through the rain in LA rain-addled traffic, then with livetweeting the debate, then with falling asleep on the couch.

I'm going to try to revisit the thread this afternoon and respond to a bunch of posts.
ParatrooperJJ • Oct 12, 2012 @7:31 am

For the record I did say "in my lifetime" and not "currently."
John David Galt • Oct 12, 2012 @7:32 am

The questions posed in this article are tough, and in my mind they depend on just what it means to be a "diversity officer." I'm very much a fan in general of an absolute right to express (off work) whatever opinions you want without retaliation by the boss — but I make an exception if you are a manager who makes decisions about whom to hire/fire/promote, or whom to admit to a school, because in those positions your opinions can't help but directly affect how well you do your job. So if you believe that those decisions should ever be non-color-blind, I don't ever want you to have the authority to make them.
PhilG • Oct 12, 2012 @7:41 am

From the appeal:

"The NMHRC ordered Elane Photography to pay Willock
$6,637.94 in attorney fees and costs. Willock did not seek monetary damages."

How is that not functionally the same as Elane Photography being assessed a fine?
Ken • Oct 12, 2012 @7:59 am

And, in advance of returning and discussing in detail, a little related post — scummy anti-gay activists misappropriate couple's wedding picture to use in attack ad. A perfect example of something that's verminous but may well be protected.
Pierce Nichols • Oct 12, 2012 @8:33 am

Event halls and photography businesses are public accommodations. In New Mexico, providers of public accommodations may not discriminate based on a list of factors, which include sexual orientation. Therefore, the legal judgement against the photography business was exactly the sort of judgement they would have faced had they turned away a couple for being interracial, and properly so.
Grifter • Oct 12, 2012 @8:35 am

@Ken:

I don't think that's protected at all. It's pretty clearly malicious copyright infringement, no?
Pierce Nichols • Oct 12, 2012 @8:36 am

@Demosthenes: A person who opposes marriage equality is a bigot in the same way and for the same reasons that a person who opposes interracial marriage is.

A person who opposes marriage equality believes that LGBT folks ought to be second class citizens. There's really no way around that fact.
Curmudgeonly Ex-Clerk • Oct 12, 2012 @8:41 am

PhilG:

I assume your comment is directed to me.

Here is what I gather from an exceedingly quick skim of the case-related materials I've now managed to look at. Disgruntled would-be customer filed complaint that photographer violated her rights by refusing to photograph gay wedding. Disgruntled would-be customer claimed no damages whatsoever. (From the Human Rights Commission opinion: "Ms. Willock asserted at the hearing that she was not seeking a monetary award for actual damages, and, when given a specific opportunity at the hearing to offer proof in support of a monetary award for actual damages, she declined to do so." From the appellate opinion: "Willock did not seek monetary damages."). At any rate, it's hard to imagine there generally would be meaningful economic damages in a case like this.

So the New Mexico statute permits a party to file a human rights complaint, and saddle its opponent with thousands of dollars in costs and attorneys' fees (the latter likely are going to account for the lion's share), where there are no actual damages, to vindicate the state's declared civil rights policy. Not quite a fine, but no different functionally than if the Commission itself were assessing fines for such violations. (The net effect on the violator is little different.)

Bear in mind the general American rule that parties bear their own attorneys' fees outside of a few well established contexts like contract. Typically, when statutes provide for shifting of fees, the legislative goal is to incentivize these suits or at least render them economically viable. It is a sort of "private attorneys general" approach to the enforcement of the state's human rights statute.
Luke • Oct 12, 2012 @8:46 am

MCCaskill signed a petition to put a bill up for a referendum vote. Why are people assuming they know how she will actually vote on that referendum? So far I haven't seen any public comments from her one way or the other.

I have signed quite a few petitions for ballot initiatives and referendum votes on issues that I disagree with, both when I was in college and when I lived in DC. Why? A) I happen to be a firm believer in democracy, initiatives and referendums let me get directly involved and B) winning a popular vote is a good way to shut up the opposition.

If she had made public comments I may feel differently, but simply signing a petition should not levy any sort of punishment or this level of criticism. What's next? Asking people to prove that they voted for candidate X so they can keep their job?
Grifter • Oct 12, 2012 @9:00 am

@Luke:

That seems an oversimplification of an issue. If there were, say, a petition for a referendum to sterilize african-americans, I doubt you'd sign it, even if it did make you feel "directly involved" in democracy as a result. I grant that that is not directly similar to the case at hand, but I'm using it to point out that there is a point at which "simply signing a petition" should warrant criticism.
James Pollock • Oct 12, 2012 @9:05 am

Probably a privacy tort, too.
Luke • Oct 12, 2012 @9:31 am

@Grifter -

I see your point. Yes, there are certainly examples of things I would not sign petitions for. Replacing our constitution with the New Socialist Republic one springs to mind, the Mall attracted quite a few other interesting characters with petitions as well.

My comment about criticism wasn't to say that any and all criticism is unwarranted but about the level/type of the criticism. I don't feel it should be turned up to 8, much less 11. I should have been more clear.
different Jess • Oct 12, 2012 @9:36 am

The real tragedy here isn't that Catholic priests are going to be forced at gunpoint to perform gay marriages; the real tragedy is after gay marriages are performed in every church, synagogue, mosque, and temple in the country, the Democratic Party will have no issue remaining over which to exploit the hyperpolitical gay citizen. Maybe they can convince the gays to start segregating themselves into ghettos or something.
Kevin Kirkpatrick • Oct 12, 2012 @10:28 am

I'm not sure if a person's qualification for a job can always be assessed independently of her public proclamations of her personal beliefs. I would expect the position of "diversity officer" means being a person whom students feel safe approaching with issues related to diversity (and perceived intolerance thereof).

Father to college-aged daughter: Why are you crying?
Daughter: I want to drop out of my school. My teacher made a wisecrack about gays, even though he knew I was a lesbian!
Father: That's horrible. Did you complain to the school administration?
Daughter: No – there's nobody to complain to!
Father: Wait! I thought your school had a "diversity officer" – according to the brochure, her whole job is to advocate for minorities experiencing intolerance and discrimination.
Daughter: Oh, HER? Whatever – she doesn't even think gays should be getting married. In fact, she's so openly anti-gay that she signed a public petition to that effect.
Father: Well, what about anyone else on the administration?
Daughter: Obviously, if they're employing a self-professed anti-gay bigot as "diveristy officer", I can guess at what their reaction will be to this situation.

I think the above dialog exactly captures how the decision to keep Ms. McCaskill on as "diversity officer" would be a horrible idea.

IN DIRECT CONTRAST, if Ms. McCaskill were the Biology teacher, and were fired for a similar act, THEN there would be a legitimate case of wrongful discrimination.
princessartemis • Oct 12, 2012 @11:05 am

@Troutwaxer

If my kid actually attended Gallaudet I would be on the phone with the highest ranking person I could find, and I would be explaining that if McCaskill kept her job, I'd be keeping my money and my kid would be going to a different school next semester.

Given this is a university…this strikes me as a rather bossy measure to take regarding the education of an adult daughter.

This is not in any way meant to disrespect your obviously strong feelings; protective fatherly feelings are important to have of course, so long as respect for the adulthood of daughters is leavened in. If your daughter is old enough to attend a university, she is old enough to make decisions on which university to attend, regardless of who they employ.
Kevin Kirkpatrick • Oct 12, 2012 @11:21 am

First – trailing word in original comment should be "termination", not "discrimination".

Second…
I'd like to play "School Administrator's Advocate" here.

1. Must a diversity officer privately support affirmative action, or may she agree with some challenges to it?

For stances on an issue like affirmative action, it would depend. There are certainly non-bigoted reasons that many people, even people of color, would put forth for not being supportive of affirmative action. However, if our diversity officer signed a petition indicating that she felt black men of equal technical qualifications should be paid less than their "naturally superior" white counterparts, then we'd fire her on the spot. Such a public pronouncement would absolutely disqualify her as a trustworthy advocate for our students of color. (quick aside: petitions are – by definition – public pronouncements; regardless of whether they're signed during services in the privacy of a church or between the last push and reaching for the toilet paper in the privacy of ones bathroom).

I digress. The key is: we need a diversity officer that minority students feel safe approaching with issues of intolerance and discrimination.

2. Must a diversity officer privately support university codes prohibiting "hate speech," or may she question them on First Amendment grounds?

See "the key" in my answer to #1. If she's signing public petitions indicating that "hate speech" codes violate First Amendment rights, then there's no issue whatsoever (although, naturally, we'd expect her to clearly and unambiguously denounce any of the actual sentiments expressed in said 'hate speech'). On the other hand, if she takes an open stance against "hate speech" prohibitions on the grounds that she really believes e.g. 'Mexicans are incredibly lazy'… well, hopefully you'd understand us actually kind of hoping, just a little, to see the door hit her butt on her way out…

3. There are many divergent opinions on the best way to regulate immigration in the United States. What opinion must a diversity officer hold privately?

Until we have a mind-reading machine that projects peoples thoughts into the public square, I couldn't give two shits. Sorry, forgot, I'm playing an administrator. Ahem… If she signed a public petition indicating she was going to vote for a law requiring government officials to immediately track down and deport all illegals, we might at least give her a voice to explain her rationale. Ultimately, though, we'd be faced with a simple yes/no question: might her public pronouncements make minority students feel that she is not a safe person to speak with about their treatment. See "the key" in my answer to #1.

4. May a diversity officer privately condemn female genital mutilation, or would that be anti-diverse?

This is getting a bit repetitive. If she signed a petition indicating a personal stance on FGM – or any other issue – we're going to come back to the same question: will the viewpoints she's publicly expressed give any students the reasonable impression that their "diversity officer" is not somebody who will advocate for them while fighting against whatever discrimination they may be facing?

5. Is it prohibited for a diversity officer to believe and espouse, privately, that the Americans with Disabilities act has been abused and should be amended?

Let's say she signed a petition advocating against a law making voting booths wheel-chair accessible because "the opinions of handicapped people are worth less than people who can walk". Um, yeah, pretty much fired on the spot.

Those are just a few questions. Once we accept that private ideology is a suitable subject for regulation, there will be many, many more.

Absolutely. Take as many hypothetical situations as you need. The "key" thing I wrote in #1 is nuanced, and explaining it from different perspectives may be the only way to make it graspable to certain audiences.
Alison • Oct 12, 2012 @12:13 pm

One thing, "the deaf"? Replace that with "the gay" or "the black" etc and hopefully I've got my point across.
Orv • Oct 12, 2012 @1:07 pm

@Shane: I agree that getting the government out of the marriage business would be agreat idea, but it's a pipe dream — doing so would be seen as the government reducing the power of religious institutions, and that wouldn't be politically acceptable in any version of the US I can imagine in my lifetime.

It's also a mistake to assume this is just about the word "marriage." Several states have passed initiatives or constitutional amendments prohibiting the state from recognizing same-sex couples in any way that *provides the same rights as marriage*, even if it's not called a "marriage." These laws were specifically aimed at blocking civil unions.
I was in Michigan when they passed such a law. It resulted in the same-sex partners of state employees losing their health benefits, because those benefits were considered the state recognizing a same-sex union. There was some question about whether it would invalidate the wills of same-sex couples, but as far as I know that hasn't been
tested in court.
Earle • Oct 12, 2012 @1:18 pm

Alison,

I'm afraid you haven't made your point. If you wish to convince others that it is wrong to refer to schools that serve to teach deaf people as "schools for the deaf", then you've got a long row to hoe.

http://lmgtfy.com/?q=school+for+the+deaf
Earle • Oct 12, 2012 @1:30 pm

Piling on a bit, but there's the following national and world organizations:

http://www.nad.org/
http://www.wfdeaf.org/

It seems where someone may justly scold Ken is not recognizing the distinction between 'deaf' and 'Deaf'.

http://www.nad.org/issues/american-sign-language/community-and-culture-faq

And now I'm probably headed for link purgatory on the blog
Shane • Oct 12, 2012 @1:41 pm

@James Pollock, last closing document I signed included mineral rights (and not for me). And I don't see how your examples changes the point that I am trying to make that two parties should be allowed to contract as they see fit. Implied provisions are a shortcut for what would have been included into the contract anyway and is the legal system's way of simplifying the process. But my main point still holds WHY does the state insist that it determines the sole way in which two parties may contract for domestic partnership.

I am sick of people telling other people how to run their business. What do I care what contract you set up with your business partner your leasing agent or any other damn party you wish to contract with. You are responsible for it and when it breaks you will work it out in court.
princessartemis • Oct 12, 2012 @1:53 pm

I have not encountered an issue with such a name before, though not being Deaf or deaf, it's not that familiar to me. Some issues such as that are self-evident; I am uncertain this is one of them. "The deaf" is plural, not singular, and therefore is not at all similar to "the black" or "the gay". Some people have an issue with "blacks" and "gays" ("whites"? "males" as opposed to male people?) as a usage, of course, though such a usage always struck me as economy of language and not dehumanization. Nevertheless, I tend not to use such forms myself because they seem awkwardly lumpy.

Alison, does the Deaf community have an issue with that usage, and if so, would you make it clearer what that issue is?
Earle • Oct 12, 2012 @2:12 pm

princessartemis,

I have a second comment in moderation due to a few links. They point to the World Federation for the Deaf and a National Association of the Deaf. There may be some deaf people who take offense at the collective noun usage, but given the evidence before me I think it's a bridge too far to take Ken to task on it.
Alison • Oct 12, 2012 @2:36 pm

@Earle those are names of organisations (not people), and old ones at that. NAD describes deaf people as "deaf and hard of hearing individuals" and will use the term "deaf people". WFD also uses the phrase "deaf people".

@princessartemis the issue is the need to use "deaf people". Deaf community or deaf individuals is also fine. Likewise, it is not "the blind" but blind people. You would not say, "this was at a university for the black," or "the gay are now allowed to get married". I understand your references to d/Deaf (or even Deafhood), that isn't what I was getting at in my comment above.
mojo • Oct 12, 2012 @2:44 pm

Ah, so you have to be a "true believer" in order to enforce a set of rules?

Cops would disagree, I think.
James Pollock • Oct 12, 2012 @2:54 pm

You would not say, "this was at a university for the black,"

The correct term is "historically black college(s)" AFAIK, this is not a reference to the color of the actual buildings.
Grifter • Oct 12, 2012 @2:56 pm

@Alison:

Before you trot away on your high horse, feeling better for having "corrected" Ken's language, you may want to reference here:

http://www.gallaudet.edu/mssd.html

Where Gallaudet refers to their "Model Secondary School for the Deaf".
Earle • Oct 12, 2012 @3:12 pm

Alison,

I don't doubt that there are myriad ways to refer to persons who are deaf. And I don't doubt that you feel that a name or organization that is old is less preferable to one that is young. I just don't buy that you've got a valid argument to chastise someone for referring to an institution with a term that is … institutional.

Thankfully we would never do the same and refer to the 1%, would we?
Kevin Kirkpatrick • Oct 12, 2012 @4:17 pm

Earle,

If a group of people are disadvantaged or have an underprivileged minority status in a given society, they face obstacles in life that go WAY beyond trying to pick words that don't come across as denigrative. If blind people feel that being referred to as "the blind" is derogatory, dehumanizing, or otherwise disrespectful… then just don't do it. And when they point out as much to others… listen. I mean, if somebody says to you, "Please don't refer to black people as 'colored people'", do you understand how inappropriate it would be to say, "Oh yeah? Guess what NAACP stands for! Checkmate!"?? Rather, if you're truly confused (i.e. if you feel you're getting inconsistent messages from minority groups of what constitutes offensive labeling), take a lesson from princessartemis above, who seems to be engaging Alison in a constructive and respectful mannner.

Right now, this argument thing you're doing – well, you're coming across as an asshole. In a bad way. What it comes down to is this – you'll finish this internet debate; and maybe you'll feel like you won or lost some internet points against some pedantic person trying to speak out for those who are deaf or hard of hearing. And then you'll listen to the radio. Or watch a youtube video without closed captioning. Or do any of the million other activities you get to do without auditory feedback from the world around you. And with all these countless advantages going your way as a result, do you have any IDEA how shitty and classless you look by refusing to show just a little empathy and respect to those who are not so privileged?
Grifter • Oct 12, 2012 @5:12 pm

@Kevin Kirkpatrick:

Just….no. Not every complaint is valid, and this one clearly is not, despite your appeals to privilege.
Orv • Oct 12, 2012 @5:13 pm

The trend in such things is to move toward language that describes a person as having a particular attribute, instead of language that reduces that person to a label based on their disability. For that reason, you're probably safest saying "people who are deaf" instead of "deaf people." It may seem like semantics, but the way we describe people affects how we think of them on a subconscious level.
Derpus • Oct 12, 2012 @5:32 pm

Wow, thread went full-on tumblr.txt right at the end, huh?
princessartemis • Oct 12, 2012 @6:11 pm

@Orv, I'd just as soon describe people the way they ask me to, if there is an issue Personally, as a disabled person, I don't like "person with disability" because it gets turned into an acronym way too fast and that is worse, to me.

@Alison, thanks for explaining. Not sure Ken had it 'wrong' since he called the university the way it calls itself, but I'm glad to know for myself.
Josh C • Oct 12, 2012 @6:24 pm

I may be late to the party here, but why would anyone bother talking about whether she "should" be fired?

Either her employment is at-will, and her employer can fire because she cheers for the wrong sports team, let alone makes them feel sad with her wrong-think, or it is somehow conditional on performance. If it's conditional on performance, then we would need to know what performances, specifically it's conditional on. Since we don't know that, then any discussion beyond "it's terrible that she was fired for not toeing all the appropriate lines" is nothing more than textual onanism.
Damon • Oct 12, 2012 @6:45 pm

I suppose it would be pointless to contrast the howls of moral outrage on display here with the argument that libertarians inevitably make to defend employers' rights to fire members of minority groups.

When you're firing a gay employee for being gay, well, we can frown on that (or pretend to) but the important thing is to defend your unlimited right to free association. But when someone gets fired for some other non-job-related aspect of their personal life, as this woman did, it's an outrage.

Thankfully I have not been holding my breath waiting on libertarians to demonstrate consistency.
delurking • Oct 12, 2012 @6:59 pm

Damon,
Stereotype much?
Kevin Kirkpatrick • Oct 12, 2012 @7:00 pm

"I'd just as soon describe people the way they ask me to."

I think that about sums it up for me too.
Earle • Oct 12, 2012 @7:31 pm

Kevin Kirkpatrick,

It seems the internet is populated in equal measure with insensitive assholes as self-righteous pricks. Good rant sir, props!

Alison,

My 1% snark at the end of my prior comment was over the top and I apologize.
AlphaCentauri • Oct 12, 2012 @8:10 pm

What is a "diversity officer's" real job? If she was hired to hold an opinion, then she signs a petition that says she doesn't hold that opinion, and there isn't any other real work involved in her job, it's not just a case of judging her on what she does in her free time.

But I agree that in this particular case, if the petition was only asking for a referendum for-or-against gay marriage, it's not the same as her actually espousing a position for or against. Ten years from now, gay marriage proponents will be circulating petitions asking for referendums over gay marriage, because at the rate public opinion is evolving, the pro-gay-marriage point of view will start winning those referendums.

The right thing to do would have been for Gallaudet to have a teach-in for students and faculty to discuss the issue and for the diversity officer to defend her own position, hopefully without parents like Troutwaxer inserting themselves in the process.

Since deafness is a communication issue, and since attitudes change based on the communication of ideas, it's logical to expect a slight lag time before attitudes change in the Deaf community compared to the hearing community. Deaf culture values honest, open, frank communication (often perceived as rudeness by those unfamiliar with it), and I expect that Gallaudet students are perfectly capable of having a spirited debate over an issue without anyone feeling offended.

I also disagree that no one can oppose gay marriage without being anti-gay. If you just want the word "marriage," call yourselves married. Not all religions even require the approval of a minister or other third person for a marriage to occur, only witnesses to a couple's commitment to each other. Start your own religion if you want. But once you get into legal rather than religious marriage, then it's not as simple as slapping a label on it. Marriage isn't a homogenous legal concept — a woman's right to property purchased with her husband's earnings is different in different states, for instance. Most marriage law was created with the presumption that once a couple marries, one partner will be the major breadwinner because the other will be pregnant more or less continuously. Now that families are smaller and women are more likely to be committed to careers, many laws based on marital status can seem illogical. No one wants to open up the whole can of worms and try to completely redefine heterosexual marriage for the 21st century, but they also may not want to extend that unsatisfactory body of law to a whole new group of people without looking at what makes sense.
Damon • Oct 12, 2012 @9:34 pm

delurking — I dunno, is it stereotyping to guess at the opinions of specific people whose past comments I'm familiar with? Should I pretend that TJIC is staunchly in favor of legal protection against employment discrimination against gay people because otherwise I'm "stereotyping"?

Besides, it's not "stereotyping" to say that libertarians oppose laws against employment discrimination, any more than it is to say that republicans favor lowering taxes, or that democrats favor expanding the scope of welfare programs? Sure, there are some edge cases in which any of the above might not be true in some particular instance, but they're certainly true as a general rule. Summarizing the shared views of voluntary groups of people that only exist because they coalesced around their shared views is not really what the term "stereotyping" is normally used to describe.

And it seems, well, off-base at best to be outraged about the occasional case of people who suffer from workplace discrimination for being anti-gay if you're part of a group of people whose principles include the right of employers to discriminate against employees for being gay.
Kevin Kirkpatrick • Oct 12, 2012 @9:53 pm

Earle, I'll have you know that I am simply too good of a person (of a quality of character that basically outstrips language itself) for an asshole like you to label me as self-righte… oh, um, never mind.

On a serious note, I do hope Ken makes a showing on this thread, would love to read his counters to many of the points made later in. I don't recall a blog post of his where I've felt more strongly that he "got it wrong".
Grifter • Oct 12, 2012 @10:50 pm

@AlphaCentauri:

I happen to disagree with your disagreement on subject of whether "one can oppose gay marriage without being anti-gay."

I think it can reasonably be said (and that the university can't be faulted for holding) that anyone who is against gay marriage (in this sense by signing a petition, or advocating to the government stepping in…as opposed to personally not liking it) is either bigoted (hate gays), theocratic (think their religious interpretation should be the rule), hypocritical (the entire "because men and women can have children" argument, considering we don't actually factor that or any of the other "arguments" for why there needs to be heterocity in marriage into hetero marriage at all), or foolish (legitimately do not understand the issue, their own arguments, or how to argue a point well enough, yet having an opinion anyway).

There is literally no argument that I've heard against gay marriage that didn't factor into one of those positions.

Unfortunately, that means I classify your argument as "ignorant". Both of your own points and of the broader context. You have to give some actual argument for a difference, and appealing to tradition ain't a good one. Also, I feel it is ignorant to somehow pretend there is any qualitative difference between het and hom marriage. Can you name one? No? Even your "breadwinner" argument is invalid, in that there is nothing about being gay that precludes one partner from being the primary breadwinner.

To paraphrase you: "once you get into legal rather than religious marriage, then it's not as simple as slapping a label on it". It's not. And that's the point. It's not easy or, in some cases, possible, to get all the equivalent benefits of marriage for gay couples. The only defense of that from you is "Used to be, there was a primary breadwinner".

Now I don't know whether you are actually in favor of gay marriage or not, but it's neither here nor there to the fact that it isn't just orientation discrimination, it's gender discrimination; in response to the "gays can marry the opposite sex, just like straights", I'd point out that, beyond the asininity of that argument, it isn't even valid: a man can marry Mrs. X, but a woman cannot marry Mrs. X, and that is straight-up gender discrimination.

While many people say they "aren't against gays, just against gay marriage", I just don't think it's possible to unpack that opinion without being bigoted (or ignorant), even if you don't realize that is what you are. Cognitive dissonance FTL.
Grifter • Oct 12, 2012 @10:54 pm

@Damon:

At issue here is something I'll presume you glossed over in your detailed reading of the article: Gallaudet is a "federally-entwined school". The government doesn't have the same rights as private companies to maintain ideological purity. There is no inconsistency to the arguments presented; the view you ascribe to some posters here is that private entities should have the right to hire and fire at will. In much the same way as our discussions go when there is a violations of students' rights to free speech at public vs. private universities. I'm actually a little unclear on whether Gallaudet is federally-entwined enough, but that's because I haven't actually looked into it. If you pointed out to those posters whom you accuse of inconsistency that this was, in fact, a fully private university (if such is the case), I believe they'd change their position accordingly.
Damon • Oct 13, 2012 @12:08 am

Grifter:

Sorry, maybe I'm uninformed — was the employee under question not employed at-will? Because your phrasing here: "private entities should have the right to hire and fire at will" seems to suggest that public entities (which Gallaudet, as Ken mentioned, maybe kinda sorta, but not unequivocally, is) don't also hire their employees at will. Is there some law banning the federal government from hiring employees at will? Because certainly state governments can do so; I have even been an at will state employee.
princessartemis • Oct 13, 2012 @1:24 am

What I understood was at issue here was a woman's federally-entwined job is at stake because she expressed some views via a signature which her federally-entwined employer didn't like enough to suspend her. Which means that a somewhat federal employer is using its power to tell her, in a way, that if she wishes to remain employed, she must not exercise her right to free speech on this issue.

Of course, I may have misunderstood, but if I have not, it is not inconsistent for someone to, on one hand, state that a private employer may exercise free association, while on the other hand, a federally-entwined employer is perhaps out of bounds attempting to retaliate against an employee's free speech in her private time. That said, I haven't seen anyone stating such (haven't been here long enough to get to know the regulars).
Dreampod • Oct 13, 2012 @5:10 am

Damon:

There are certain actions that the Government is not permitted to take that private employers are that are not related to the form of employment (at-will or contracted) but rather a matter of abiding by the Constitution. Specifically in this case the issue is with the First Amendment. If the Government fires someone for an undesirable opinion it amounts to Government censorship because it is using its State power to suppress speech. Federally financed institutions are (sortof sometimes) bound by these same restrictions as a consequence of their acting on behalf of the Government. As such firing Ms. McCaskill needs to be justified on the basis that her signing the petition prevents her from properly fulfilling her job requirements either because gay students are afraid to approach her or she would not advise or aid them properly because she opposed their rights.
Joe Pullen • Oct 13, 2012 @6:48 am

@princessartemis – I think you have the gist of the post nicely summarized.

@Ken – reading comprehension may be down or it just may be tough for some people to understand the line between thoughts and actions.
Troutwaxer • Oct 13, 2012 @8:24 am

Given this is a university…this strikes me as a rather bossy measure to take regarding the education of an adult daughter.

This is not in any way meant to disrespect your obviously strong feelings; protective fatherly feelings are important to have of course, so long as respect for the adulthood of daughters is leavened in.

In this hypothetical situation, I wouldn't call the University because I'm bossy. I'd call the University because I've got my daughter's back and I know how she feels.

The important thing here is that everyone who might interact with a university's diversity officer (and those people might not be people I'd like) can safely believe that the "referee" doesn't favor one team over another.
James Pollock • Oct 13, 2012 @8:30 am

Grifter, I'm going to challenge your claim that a person can't be against gay marriage without also being anti-gay, while freely admitting that that IS the way it usually works out, and it's reasonable to assume one from the other absent countervailing context.

There are some people who prefer a set of principles, which we can call "Conservative" and posit occupy the far end of a range that has "liberal" on the other end, and hopefully have a shared general understanding; I REALLY don't want to expend any electrons in explaining the differences and they don't really matter. Conservatives oppose public recognition of gay-anything, and thus gay-marriage is not something they accept, welcome, or desire.
There's another group of people, partly overlapping and partly not, who don't like things to change. We'll call this group "conservative" with a lower-case c. This group of people (which includes some people who are NOT Conservative) would oppose gay-marriage not because of any factor involving gayness or marriage, but just because the current status quo does not permit gay people to get married, and they see the disruption to society caused by allowing gays to marry (each other) as less desirable than achieving marriage parity and overall fairness. I suggest that it is even possible that some gay people are included in this grouping. (There were leaders of the black community opposed to the civil rights movement not because they were opposed to civil rights, but because the pushback from the sheet-wearing community made it not worth it in their eyes; they favored a slower, more evolutionary response. MLK addressed them in the "Letter from Birmingham Jail".)
But, if we limit our discussion to people who are VOCAL in their opposition to gay marriage, then, yeah, I think the number of lower-case conservatives amongst the upper-case Conservatives approaches zero.
Grifter • Oct 13, 2012 @8:33 am

@James Pollock:

Well, I did say that the opponents might also just be ignorant. And to oppose other peoples' rights purely on the grounds of "I don't like change!" is an ignorant argument.
Kevin Kirkpatrick • Oct 13, 2012 @8:46 am

Hi princessarteemis – I definitely hear what you are saying. But I think you may be missing the point I was trying to make: if Ms McCaskill were, say, a math instructor, you and Ken would be 100% spot-on in your assessments. However, she has a job where she is supposed to be a school administrator who minority students feel will sincerely advocate for their equal rights and fair treatment.

Allow me to eliminate the shades of gray here. If we were discussing a "diversity officer" who'd written a newspaper op-ed arguing against interracial marriage (heck, let's go with restrooms, to make the point even more clearly); would you concede that he/she would probably not be fit to advocate for the rights and interests of black students on campus?
Grifter • Oct 13, 2012 @8:56 am

@Kevin Kirkpatrick:

princessartemis was just expressing (in a better fashion than I did) how the things that Damon glibly proclaimed to be inconsistent were not necessarily so, I don't think that they were necessarily defending the point or making one outside of that.

To the broader consistency point, I would also point out that the posters who are so in favor of the private rights of private individuals have never expressed any opposition to calling those exercising those rights "dicks", so even if this university was wholly private, so long as they aren't advocating legal intervention, they aren't being inconsistent.
James Pollock • Oct 13, 2012 @9:21 am

"to oppose other peoples' rights purely on the grounds of "I don't like change!" is an ignorant argument."
It certainly is not, and I presented a case where it demonstrably was not.
Any change made to a functioning system creates a risk of unintended consequences, and unintended consequences may be harmful. Now, you may say "this change is important enough to risk any unintended consequences", but that doesn't make someone else's opinion that it isn't "ignorant" by category.

I find it interesting that you consider the opinions of some gay rights activists (who did NOT push for immediate gay marriage legalization for fear of provoking exactly the result they got… constitutional amendments in dozens of states that prevent the legislature from creating even civil unions) as "ignorant" on the subject of… gay rights.
Jess • Oct 13, 2012 @9:38 am

@Kevin – I think one of the key points however was that

There's no indication whatsoever that Dr. McCaskill, in her role as diversity officer, was less than fully supportive of gay students.

I believe it is entirely possible to hold a personal viewpoint that may be inconsistent with one’s public actions and responsibilities. For example, while I personally find abortion to be a terrible thing, I absolutely defend a woman’s right to choose. I don’t necessarily find the two positions to be incompatible as the first is purely about how I govern myself and the other is the knowledge I have no legitimate right to force that viewpoint onto someone else and accordingly they should have the right to govern how they manage their own bodies.

If I were to work for the ACLU and hold that same opinion, should it affect my work there? I don’t think so. How I feel about a situation and how I choose to express that opinion on my own time would not impact my capability or my diligence in doing my job of protecting a woman’s right to choose. One might argue successfully that it could influence the public’s opinion of my capability to perform the job but not necessarily my actual capability to perform the job.
princessartemis • Oct 13, 2012 @9:43 am

@Kevin, I have not stated my views here. I summarized Ken's post as I understood it, then used that summary to attempt to show Damon why if some are displeased by this event, it does not make them hypocritical to also support private employer free association rights. I appear to have missed putting an @ in front of my post to make my intent clearer.

Anyhow, based on quotes in Ken's post, it appears this particular diversity officer may indeed have been demonstrating an ability to advocate for her students in ways that satisfied them to this point. Perhaps more care should be taken to discover whether or not she really is incapable of doing her job now post-signature as she was pre? I think it's possible that she may not be a fit advocate, lacking any further evidence, and the situation merits observation rather than decisive action. She signed a petition, she didn't write an op-ed. She didn't announce anything to the world (her employers, on the other hand, did, which would very likely make it harder to do her job), she wrote her name on a petition, which is a very quiet, albeit public, thing to do. Maybe she has a bad habit of signing every petition that crosses her path. Her actions are described by her as thoughtless. Observation in such a case strikes me as a better course of action.

@Troutwaxer, I did not see in your comment anywhere where your daughter's opinion that she would refuse to go to a school that employed such a diversity officer was expressed. If I missed this, my apologies. I was not suggesting that calling the school was bossy–I was suggesting that removing funding and disallowing your daughter from attending would be. Perhaps your daughter is still young, so that how you mentally view such a call would still be communicated the way one would speak to a preschool or scout troop.
Grifter • Oct 13, 2012 @10:37 am

@James Pollock:

To be against something not because you're actually against it, but rather because you're afraid of what the bigots might do, is not to actually be against it.

And no, you did not present a case where it demonstrably was not. You presented a case of someone who doesn't want to make something that exists fair to the rest of the people also in the system. There is not a single "unintended consequence" that doesn't already happen to het couples, because they are functionally identical. To say "but there might be some!" is ignorant, because that's just hating change for no reason. And to do it on this subject alone is foolish; to pretend that these people refuse to allow any change whatsoever is simply disingenuous (you haven't said that, but just in case you were going to).

For the sake of our discussion, please give me one single unintended consequence to hom marriage not already present in het marriage, that isn't a public backlash of bigotry, because that is a stupid reason to deny someone rights.

Oh, and on a final note, I didn't say that they were ignorant on the subject of gay rights, I said they were ignorant of their arguments, if they were against gay marriage (which, by your description, they actually aren't, they're just afraid of what would happen if they tried for it, in the same vein a battered spouse is afraid of what happens if she leaves her husband). You can say that the earth moves around the sun, and be right, but say it's because the Cosmic Turtle flies us on his back, and I'll say that's ignorant. The fact that they are gay rights advocates does not necessarily mean every argument they have is perfect on the subject. That's the argument from authority fallacy.
Mary • Oct 13, 2012 @11:22 am

@Jess

I believe it is entirely possible to hold a personal viewpoint that may be inconsistent with one’s public actions and responsibilities. For example, while I personally find abortion to be a terrible thing, I absolutely defend a woman’s right to choose. I don’t necessarily find the two positions to be incompatible as the first is purely about how I govern myself and the other is the knowledge I have no legitimate right to force that viewpoint onto someone else and accordingly they should have the right to govern how they manage their own bodies."

Seems to ignore the fact that McCaskill went beyond having an opinion– 'I do not think that people should marry those of the same sex'–and moved onto advocating for legal changes to enforce her view– and did so in a public venue, so that her privacy cannot even be said to have been challenged.

I can certainly accept that there are those who are uncomfortable with my aims who are not working against them, but McCaskill is not one of those people. She is advocating for her values to be legally applied to people who do not share them.

Would you be suited to work for the ACLU if you were currently lending your support to a Roe V. Wade overturn initiative? Or work as a woman's counselor in a pregnancy crisis center?

It is possible to care for and love and think you are doing the best by the sinners under your care. I believe that McCaskill was nothing but kind to gay students who came to her. But she has shown in a public forum that her idea of what is best for them will not always jive with their own, and that she considers her values more important than theirs.
Jess • Oct 13, 2012 @12:42 pm

@Mary – you make some interesting points. Let me clarify a bit further.

McCaskill may indeed be advocating overturning Maryland's Civil Marriage Protection Act, but the act of signing the petition was one of a single person’s own personal opinion and viewpoint not the act of someone in legislative authority to actually make such a thing happen. If she had instead been in a position of legally impacting this issue – State legislature, judge, etc. I can assure you I would have an entirely different viewpoint on her actions and would indeed consider that grounds for termination.

McCaskill should be entitled to express her personal opinion on the subject via other channels without fear of termination from her position – especially if it is with a Federal employer. Do I “feel” personally that she is wrong and that she made a mistake – absolutely – I am very much an advocate for gay rights. But again, that is not the point.

Would you be suited to work for the ACLU if you were currently lending your support to a Roe V. Wade overturn initiative?

Actually yes – my opinion as an individual has nothing to do legally with how such an initiative would be decided. I am only one person, I am not a State or Federal judge deciding said case. As long as I am performing the job during work hours to the specification’s laid out by the ACLU, my private opinions are just that private, my own opinions, and none of the business of my employer.

Or work as a woman's counselor in a pregnancy crisis center?

Yes –it is possible to separate one’s “feelings” from one’s job. I do not consider those who have a difference of opinion from me on abortion to be sinners. I do not look down on them for their choice. That assumes I am evaluating them in comparison to myself and from an emotional or religious viewpoint – I don’t. My personal choice is just that and nothing more. I’ve two close friends, both of who have had abortions. I don’t judge them for that because I understand what is right for me is not necessarily right for someone else.
AlphaCentauri • Oct 13, 2012 @12:48 pm

A single instance of unintended consequences?

Okay, consider the hypothetical small business that still offers health insurance benefits for families/children of employees. He doesn't have to offer this benefit, and a lot of competitors already don't. This employer has been hiring without discriminating on the basis of sexual orientation and has a number of gay employees. He supports gay marriage in principle, but his business is likely borderline breaking even right now, and he isn't minting money in the back room. Anything that increases expenses must be paid for by cutting back on some other expense. The health insurance benefits he decides to provide are dictated by the number of employees enrolled and the generosity of the benefits for each employee. It's not fair that the gay employees aren't getting spousal benefits now, but if there is an increase in the number of employees who wish to have spousal benefits (because significantly more employees will be legally married), it's more likely the business will stop providing them to anyone since there isn't money to provide them to any more employees than already get them. (I suspect there would also be a big increase in the cost to employers to provide spousal benefits, since insurers hate risk and would not be anxious to extend coverage to a new class of people without having some data on how much it is going to cost them.) It is reasonable to hold the opinion that the health insurance system needs to be reformed first, even if you support legalizing gay marriage as well.
Joe Pullen • Oct 13, 2012 @1:42 pm

@AlphaCentauri – Would it not be more accurate to state that the health insurance system needs to be reformed needs to happen irrespective of gay marriage? I’ve seen no evidence that gay marriage and subsequent spousal coverage has increased employer insurance spend any more than, oh let’s say, that of covering employees who are smokers or who are overweight.
Damon • Oct 13, 2012 @2:34 pm

@princessartemis — so because her job is "federally entwined" (although she's not a federal employee), her free speech rights mean she can't be fired for anti-gay speech on her own time. On the other hand, let me point something out: gay people don't constitute a suspect class according to existing federal jurisprudence.

In summation, it's unacceptable to fire her for being anti-gay, but it would be fine to fire her for being gay.

Yes. I'm familiar enough with libertarian thought that I am already aware that this is the typical attitude of libertarians. I'm not obligated to pretend that it's the result of some consistent application of fundamental principles, though.
James Pollock • Oct 13, 2012 @2:35 pm

"For the sake of our discussion, please give me one single unintended consequence to hom marriage not already present in het marriage, that isn't a public backlash of bigotry, because that is a stupid reason to deny someone rights."

My first reaction was similar to the one AlphaCentauri stated above, but here's another: Actuarial tables for joint survivorship, which is what many defined benefit pension and annuities are built around, all assume one male spouse and one female spouse. There is a substantial difference in how long men and women live. Those tables will have to be rebuilt, twice, to account for male-male marriages and female-female marriages.

Here's another: Lots of places have preprinted forms that pertain to marriage, from the courthouse to the insurance company to many business' HR department. Those forms also pre-suppose that any marriage will involve one man and one woman; when gay marriage becomes legal those forms need to be changed and reprinted (or supplemented with separate forms that are specific to gay marriage.) Thus, gay marriage imposes a financial burden on a lot of people who aren't particularly interested in having a gay marriage themselves.

Just because YOU can't think of any unintended consequences doesn't mean they don't exist. (And just because I can find unintended consequences doesn't mean that I don't think they can't be overcome.)

"to pretend that these people refuse to allow any change whatsoever is simply disingenuous (you haven't said that, but just in case you were going to)."
There were people who didn't support gay marriage, but did support civil unions; are they only half-way ignorant?
indyreader • Oct 13, 2012 @2:46 pm

There are diversity standards that support equality under the law for everyone, and then there are examples of diverse opinions that intrinsically support inequality under the law for some. While I'm not sure this individual should be fired for her opinion, don't pretend that the two kinds of things are morally equal.
James Pollock • Oct 13, 2012 @2:48 pm

There are some public-sector jobs which are "political", in the sense that the executive may hire and fire based on whether or not the person in that job shares political thought with the executive. So, for example, the head of the department of State is selected by the executive and may be fired by the executive for having a public disagreement with him (or, someday, her). If you are the President's spokesperson, and you opine in the NYT that he is a lying sack of honeydew melon (privately, on your own time), you should be getting your resumes out and updating your LinkedIn profile.
University politics are different, in that often tenure is involved, so I'd be interested to learn if being sacked as "diversity officer" means "pack up your stuff from the big office in the administration building and move it back to the tiny faculty office you used to have" as opposed to "… and take it home with you."
Grifter • Oct 13, 2012 @2:58 pm

@AlphaCentauri and James Pollock:

That is an asinine and insulting argument that is akin to "I have to keep stealing from you, because of the unintended consequences if I stopped. Why, if I stopped, I'd have less money!"

Those are not unintended consequences. They are intended consequences.
Grifter • Oct 13, 2012 @3:00 pm

@James Pollock:

And the "forms" argument is insultingly asinine as well, since any law legalizing gay marriage could, in the same manner, allow the existing forms to continue existing. So, not valid at all.

As regards to the civil-unions: Yes. Because they fail to see that "separate but equal" has never worked, either philosophically or practically.
Grifter • Oct 13, 2012 @3:09 pm

@James Pollock:

And, also, those actuarial tables already exist, so, no, they won't have to be rebuilt. That's just not a true statement.
Damon • Oct 13, 2012 @3:14 pm

The reason I'm opposed to marriage equality isn't that I don't think gay people should have the same rights. It's that it's just so much trouble to reprint all those forms and change the words "husband" and "wife" to "spouse". I mean, come on, there are so many forms printed up already! Can you imagine how much work it'll be to reprint all of them?
princessartemis • Oct 13, 2012 @3:18 pm

@Damon, I have not seen anyone here state that it would be acceptable to fire her for being gay, given her employer is federally-entwined. Would you please point out where this has been stated?
Damon • Oct 13, 2012 @3:25 pm

@princessartemis — sorry, I guess I'm unclear. You and others seem to be equivocating between making an argument over what is right and an argument over legal rights.

Surely you concede my point that there is not, as yet, federal recognition of gay people as a suspect class (there may be jurisprudence to that effect in some circuits but it's certainly not generally true). There are not federal anti-discrimination laws that protect those employed by "federally-entwined employers" from being fired for being gay.

So if you maintain that this constitutes a violation of her rights because her "federally-entwined" employer is bound by the constitution, it then follows that your argument is that legally, someone employed in a similar position may be fired for being gay, but not for being anti-gay.
James Pollock • Oct 13, 2012 @3:41 pm

Damon, are you confused? At the risk of invoking Donald Rumsfeld, you're mixing up a known consequence and the unknown quantity and severity of the unknown consequences.

Any time you change a working system, there WILL be unintended consequences. It is unreasonable to assume that there will be none. For simpler systems, it's possible to predict what they will be, but the more complex the system, the harder it gets to predict accurately what unintended consequences will manifest.

Here's a different example. Everyone knows that the metric system is vastly superior to the English standard measurement system still in use in the USA. So why don't we switch over to metrics like the rest of the world? Answer: There are a lot of hidden costs in converting. Sure, there are some savings, too, but some of the costs will come as a surprise. Example: You save money by being able to use the same tools as everyone else because they're all using metric nuts and bolts. But you have to go back and adjust EVERY PIECE OF LAND IN THE COUNTRY to fix the land-recording office's records of where all the property lines are in metric (and if you make any errors during all those calculations, you have to re-survey… want to give odds that all those land-recording office employees can do the math correctly?). You have to replace all the speed-limit signs in the country, and rewrite the statutes to specify metric speeds.

The point isn't "oh, this one trivial example is what's driving decisions!" It's "what are the unknown side effects of change that might rear up and bite us when we aren't looking?"
Engineers are PAID to think this way.
James Pollock • Oct 13, 2012 @3:47 pm

"someone employed in a similar position may be fired for being gay, but not for being anti-gay."

The answer, of course, is "it depends", because there are sources of law other than federal. Several states have, in fact, extended job protection to gays (as I recall, Colorado's efforts in that area wound up in the federal courts.)
Besides the states offerings, there's also private law… most universities, public and private, have limitations on firing faculty that are enmeshed in policy, procedure, and contract. Certainly, if a public institution has a policy in place for deciding whether or not to terminate someone's employment, they MUST follow their own policy; to do otherwise would invoke the magic code words "arbitrary" and "capricious".
Grifter • Oct 13, 2012 @3:56 pm

"Any time you change a working system, there WILL be unintended consequences."

That is an untrue statement. Just, flatly. While it is often a safe assumption, it is by no means a guarantee.

For example, if I bought a new seat cover for my car, that weighs the same and is made of the same material, but is grey instead of black, I think I can safely assume there will be no unintended consequences save for the possibility of a person going crazy from the color grey. That is a change to the existing system, yet there are no unintended consequences.

You have yet to come up with a single "unintended consequence"; considering the nature of this issue, I feel it's safe to say there aren't any. Until you come up with one, I'm standing by that, and the more you fail to do so, the more confident I am.
Grifter • Oct 13, 2012 @3:59 pm

And, again, fear of unknown unintended consequences on this issue alone smacks of hypocrisy. Unless the person refuses to ever make any changes whatsoever for fear of the maelstrom of possibility.
Grifter • Oct 13, 2012 @4:03 pm

And since you felt the need to throw in the engineer comment, I'm tempted to make a snarky crack questioning your competency. But I will refrain.
James Pollock • Oct 13, 2012 @4:45 pm

"Any time you change a working system, there WILL be unintended consequences."

That is an untrue statement. Just, flatly. While it is often a safe assumption, it is by no means a guarantee."

The second law of thermodynamics disagrees with you.

"For example, if I bought a new seat cover for my car, that weighs the same and is made of the same material, but is grey instead of black, I think I can safely assume there will be no unintended consequences save for the possibility of a person going crazy from the color grey."

Oops. Did you intend the heat retention properties of your car's interior to change? Because that'll change.

I think you're confusing the significance of the unintended changes with the existence of them; you might well be right that there aren't any changes you'll notice, or that there aren't changes that would affect your choice. Or possibly it's the likelihood of the changes you're confused about. Perhaps the difference in reflectivity in your seat cover is the difference between getting a clear shot of you in the red-light camera and getting one that's too fuzzy to use. Likely? No. Possible? Yes, if the conditions are JUST RIGHT. (of course, this one could go either way… not all unintended consequences are bad).

"You have yet to come up with a single "unintended consequence".
No, I offered three. Your handwaving at them failed to make them dematerialize.

"And, again, fear of unknown unintended consequences on this issue alone smacks of hypocrisy."
Um, OK. Where was somebody talking about fear of unknown unintended consequences on this issue alone? People who are moderate politically (preferring the status quo for whatever reason rational or not) tend to be moderate politically on pretty much all the issues, except where there's a fairly obvious opportunity for personal gain.

"since you felt the need to throw in the engineer comment, I'm tempted to make a snarky crack questioning your competency."
Crack away. I'm interested in learning what my opinion of engineers has to do with my competency. I'm not anti-engineer, some of my best friends are engineers. Heck, my sister MARRIED one.
princessartemis • Oct 13, 2012 @4:56 pm

@Damon, I have not made an argument for my own opinions on this matter yet, so not sure if I have been equivocating.

I'll take your word for it that there isn't federal recognition of homosexuals as a class. How would a federal employer recognize a gay employee? Via behavior? Opinion? Disclosure? Something else which is not very likely to be protected expression? Now I will tell you my opinion on the matter. Justly, a federal employee would only know someone's sexuality based on their free expression, I would think it shouldn't be legal for them to fire over it, and I would be upset if they were. The government doesn't get the same rights as private individuals do, so free association does not apply. Clearly, a good few stupid laws need to be wiped from the books so that this can be the case more often.
Grifter • Oct 13, 2012 @4:56 pm

That's not at all what the second law of thermodynamics says. I took your previous comment to mean that you were one…it's apparent now you are not. Entropy is not inherently unintended. At all. To say otherwise is to clearly not know what "unintended" and "consequence" mean. (the thermal change would be, btw, small enough as to be…wait for it…inconsequencal
Joe Pullen • Oct 13, 2012 @5:16 pm

@Damon

In summation, it's unacceptable to fire her for being anti-gay, but it would be fine to fire her for being gay.
Yes. I'm familiar enough with libertarian thought that I am already aware that this is the typical attitude of libertarians.

Damon you’re free of course to express your political opinions in whatever manner suits you but you seriously impugn your credibility by engaging such generalist statements in relation to a discussion topic that actually has nothing to do with politics and which is not supported by any factual evidence.
James Pollock • Oct 13, 2012 @5:43 pm

"the thermal change would be, btw, small enough as to be…wait for it…inconsequencal"

So I was right. You can't tell the difference between the existence of consequences from their magnitude.

Alternative: You're playing word games, substituting one defintion of "consequence" for another:
1. the effect, result, or outcome of something occurring earlier: The accident was the consequence of reckless driving.
4. importance or significance: a matter of no consequence.
(http://dictionary.reference.com/browse/consequence?s=t)
James Pollock • Oct 13, 2012 @5:48 pm

How about if I turn the table and ask you to defend your premise, specifically:

not (in favor of full gay marriage rights immediately) = anti-gay
Grifter • Oct 13, 2012 @6:24 pm

@James Pollock:

Let's make this REAL simple for you, since I must charitably say your reading comprehension skills are clearly lacking on this subject (otherwise, you're being disingenuous, and I give you more credit than that).

We aren't talking about whether there are ANY consequences, we are talking about whether there are unintended consequences. And, as I said, you haven't shown a single one.

But since I've said that already, I suppose I'll have to spell it out for you:

Unintended

un·in·tend·ed ( n n-t n d d). adj. Not deliberate or intentional; unplanned

To spell it out further:
If I PLAN for it, it is not UNINTENDED. It might be UNWANTED, but that's something else entirely.

By definition.

You see, if I know it's coming, and I am okay with that, it is no longer an unintended consequence, it's just a consequence.

As in your attempt at a counterexample, where you mentioned the thermal aspect; in that case it's a negligible amount that has no actual consequence for me personally, since I cannot even detect it, and I know it's technically there, since I have a basic understanding of how thermal energy works.

You may as well say "Yeah, well, an unintended consequence of changing the color is that the wavelength of light hitting your eye will be different!"

I know it will happen, and it is a consequence I am okay with. My pun regarding inconsequential clearly went over your head, so sorry.

An unintended consequence would be if I ran into a person who was thrown into rages by grey. I didn't expect it or plan for it, and it didn't factor into my decision. Everything you've pointed out for gay marriage is just a consequence. Not an unintended one.

I still maintain that, as a philosophical concept, there are no inherent unintended consequences. Now if, say, the law was written such that not only was gay marriage legal, but also marriage between sheep and people, I would say "hey, that's an unintended consequence, because you didn't tighten the language to specify consenting adults!" But that's not the case here, because we're dealing with pure concept (which is why your paperworkd example fell so flat, because it was something not inherent to the concept, that also would be trivially easy to fix when writing the legislation. If the legislation didn't fix it, you might have a point. But until it does or does not, it simply does not factor in.
delurking • Oct 13, 2012 @6:31 pm

Damon,
Try rereading your post. Don't forget the last sentence.
Grifter • Oct 13, 2012 @6:32 pm

@James Pollock:

I already defended that premise in my initial statement. You've been trying to attack that by showing an argument that doesn't meet one of those elements, and I've shown that your "unintended consequences" argument falls completely flat when talking about the concept. I have not said that it would fall as flat if there were an actual law on the table.

Now, if there were an actual LAW on the table, and we weren't just talking about the philosophical concept, then it MIGHT be plausible that a person could be against that law, but not anti-gay. Like if it was the "Letting Gays Marry And Teaching Kids How Awesome Hitler Was Act of 2012", voting against it would not necessarily make someone stupid or anti-gay.
Joe Pullen • Oct 13, 2012 @6:33 pm

@Grifter @James – aaagggghhhhhhhh.
Jess • Oct 13, 2012 @6:55 pm

@delurking – agreed but probably a pointless request.

@DamonYou and others seem to be equivocating between making an argument over what is right and an argument over legal rights.

Damon are you sure you actually “read” what Ken wrote and what princessartemis wrote because that is not at all what either of them appear to be stating.

I suppose it would be pointless to contrast the howls of moral outrage on display here with the argument that libertarians inevitably make to defend employers' rights to fire members of minority groups.

Damon. Yes in fact it would be pointless. We we get that your are anti “libertarian”. Truly we all get it. Please for the love of God we GET IT. We also get that you want to turn this into a political argument/discussion. There are other blogs for that. Please can you go troll them instead?
James Pollock • Oct 13, 2012 @7:03 pm

"If I PLAN for it, it is not UNINTENDED. It might be UNWANTED, but that's something else entirely.
By definition. "

Not intentional = unwanted. Not something else entirely.
And you criticize MY reading comprehension? You don't even understand YOUR OWN SOURCES.

"why your paperworkd example fell so flat, because it was something not inherent to the concept, that also would be trivially easy to fix when writing the legislation"
Please enlighten me how you can write legislation that will cause printed forms sitting in warehouses to change by themselves.
Lizard • Oct 13, 2012 @7:04 pm

I'm a little late to the party here, so, just some quick notes:
a)On what weird planet would anyone think libertarians would NOT support gay marriage? I do not see how anyone could honestly call themselves a libertarian, and then claim the government ought to restrict the kind of contract two consenting adults are allowed to enter into. The role of government is in enforcing contracts and arbitrating disputes. Its only role in determining if a contract can be entered into in the first place is to make sure all parties are consenting and are able to make the contract (mentally fit to understand the terms, etc.) Anyone who says they're "a libertarian" and who then says they oppose gay marriage is lying about being a libertarian. Period, full stop, we're done here.

b)It also doesn't surprise me that there's a large group of people who can't grasp the concept someone can support the right to do something while also believing it's not the right thing to do. It reveals a lot about someone (nothing good) when they indicate they think anything which person X feels should be legal is something person X condones or approves of.

c)The very idea of a "diversity officer" is sufficiently Orwellian that I have to take some ironic pleasure in one being pilloried for failing to conform to this week's party line, and I do admit I suspect she has, in her past, used her job to compel conformity from others. Goes around, comes around, etc. That said, to the extent this school is federally funded, it must abide by federal law. As Ken notes in other posts, you don't have to agree or disagree with a law to agree it should be following until it is formally changed. Letting the law be "whatever people want it to be" is never going to end well. There's something of a Catch-22 here, as it is generally illegal for the government to fire someone because of their political opinions, while, at the same time, an argument can be made that someone whose opinions are, on the surface, in opposition to her job, is self-disqualifying; a science teacher who believes in Creationism, for example, is inherently suspicious, even if he claims to follow the textbook and not place his opinions into the course. So, I dunno. I have a lot of personal biases here: I support gay marriage and oppose the Ministry of Love… I mean, "diversity officers", so the person in question has two strikes from my emotional, judgmental, side. I don't have enough facts to appease my logical side and draw what I'd like to pretend is a semi-unbiased conclusion.
Lizard • Oct 13, 2012 @7:17 pm

I just skimmed a few more posts… wow, there's some seriously wonky ideas being bandied about here.

People of different ethnicities have varying lifespans and health issues.
Prior to the decriminalization of interracial marriage, it could be assumed all marriages were between people of the same ethnicity.
Clearly, the decriminalization of interracial marriage led to the total collapse of the insurance industry, as they had to rework all those actuarial tables that assumes whites married whites and blacks married blacks.

The bind moggles.

Given that a majority of marriages end in divorce, requiring massive paperwork, and given that only a small percentage (5-10%) of the population is gay, easy and cheap divorce has far more effect on the courts, insurance, property, and all that rot than gay marriage ever will. Somehow, though, the country survives — and, oddly, the quadruply divorced Republicans who are the strongest opponents of gay marriage never bring this up. Funny, that. Further, the extreme diversity of marriage laws in America — age of consent, legality of marrying first cousins, etc — has not proven to be an intolerable burden. States where divorce is difficult must recognize divorces performed in states where it is easy. States where the age of consent is 18 must recognize marriages in states where it's 16, or even younger. States where cousins cannot marry do not auto-divorce married cousins when they move into those states. Etc, etc, etc.

If we can handle THIS, we can handle "Husband and Husband" and "Wife and Wife". The law can require that a marriage declare one partner to have, for legal purposes only, the "Husband" title, and one the "Wife" title — and this can be true for heterosexual marriages, if there's some legal advantage to a male wife or a female husband.

Yeah, there'll be consequences. There are consequences to freedom of speech, such as the Muslim world rioting. There are consequences to freedom of religion. The issue is, do you deny people their basic rights because there might be "Consequences"? No. YOU DO NOT.
Jess • Oct 13, 2012 @7:37 pm

@Lizard • Oct 13, 2012 @7:04 pm – my applause sir on all points.
Grifter • Oct 13, 2012 @7:41 pm

@James Pollock:

Unintentional is not at all the same as unwanted. And nowhere in the definition I posted does it say they are the same, so to try to attack my comprehension when it is not in there is foolish.

Example:

I might, say, accidentally knock over a book. But it opens to a bookmark I had that was a winning lottery ticket! Everything about that was totally unintentional. But not unwanted. You are conflating non-equivalent terms.

And as regards to your paperwork rebuttal: As I said, it would be trivially easy to write the law so that paperwork could still be used and thus did not need to be changed. I said that, and your response is to ask how it would be trivially easy to change the paperwork in the warehouse. WTF?

@Joe Pullen:

Sorry! But, to quote Lizard (and I'm totally stealing this): the bind moggles.
James Pollock • Oct 13, 2012 @8:05 pm

Lizard, you've made a basic error, in assuming that interracial was ever illegal in all of the states. Interracial marriage wasn't decriminalized, prohibition of interracial marriages was made unconstitutional. This had an effect in Virginia, but not so much in the states that never got around to prohibiting interracial marriages in the first place.

"The issue is, do you deny people their basic rights because there might be "Consequences"? No. YOU DO NOT."
Well, sometimes you do, especially if not everybody has agreement on what things are "rights" and what things are not "rights", or what rights are "basic" and which are not (and, alas, to a lesser degree, if you haven't quite worked out what "people" means, either.)
So, under law, we restrict the some of the "rights" of minors. We restrict some of the "rights" of felons. We restrict some of the "rights" of foreigners. Sometimes we even restrict the "rights" of everyone. Do we debate the impact of proposed changes before we make them? Sometimes yes, sometimes no.

How about a short example: Do we let blind people, 5-year-olds, or untreated epilectics drive cars? We do not… because there would be CONSEQUENCES. OK, that isn't a perfect example, because although freedom of movement IS a right, driving a car is not.

OK. Do we let people walk in and out of the jail whenever they want, carrying whatever items they want to? No, there would be CONSEQUENCES.

How about an example? Perhaps it seems to me, and a majority of legislators in my state legislature plus the executive, that my right to be free of the threat of gun violence isn't quite as strong as it should be, and a few, tiny, trivial regulations on the sale of guns would strengthen my right to be free of the threat of gun violence. Should the legislature rush to enact these tiny, trivial regulations because my basic rights are threatened? Or should they examine how these tiny, trivial regulations will affect people who want to lawfully purchase and responsibly bear the weapons of their choice? (Since, obviously, the law regulations only INTEND to prevent unlawful, irresponsible gun purchasers, any consequences affecting lawful, responsible gun purchasers are UNINTENDED, as would any consequences that affected me (such as if the tiny, trivial regulations (as I see them) are seen as so onerous and unfairly restrictive that formerly lawful gun purchasers become unlawful gun purchasers, and a thriving unregulated underground market in guns develops, and instead of reducing the overall threat of gun violence, the threat is actually increased.)

Wait.. there's a flaw in the original argument. My claim is that there are some people who are reluctant to make changes (the bigger the change, the more resistance to making the change) to law or society. The question "Do you deny people their basic rights because there might be consequences?" doesn't address that claim… because people already have their basic rights. Thus, the people who are resistant to change would OPPOSE denying people basic rights, because that would be a change, and they are resistant to change.
James Pollock • Oct 13, 2012 @8:29 pm

"I might, say, accidentally knock over a book."
I suppose you might. Did you intend to knock over the book? If yes, it was what you wanted to do. "intend" implies volition, that you meant to have something happen. That you wanted it to happen, and so you took steps (of whatever kind) to make it happen.

" But it opens to a bookmark I had that was a winning lottery ticket! Everything about that was totally unintentional. But not unwanted."
This is an example of an unintended consequence. Whatever you were trying to do that caused you to accidentally knock over the book is the intended consequence. The things that you didn't plan to have happen, but happened as a result of your taking action, are the unintended consequences. The result of unintended consequences might well be positive and welcome (to stick to your lottery theme, perhaps I regularly play the same numbers, but today when I go to buy the ticket, the clerk mis-hears the numbers I ask for and gives me a ticket with numbers selected that are other than the ones I regularly play. That's an unintended result. If the numbers I regularly play are tonight's winners, I have a very bad, unwelcome unintended result. If the numbers on my ticket are tonight's winners, then I have a very good, welcome unintended result. Neither branch here changes the fact that what I intended to do (buy my regular numbers) didn't happen and something else did.

"And as regards to your paperwork rebuttal: As I said, it would be trivially easy to write the law so that paperwork could still be used and thus did not need to be changed."
It would be trivially easy to go out to every office in the state that does anything remotely related to marriage, check the forms they use, and write into the legislation the necessary language to make all those different types of forms usable? I think that's even more ridiculous than magically changing the forms in the warehouses.
Or are you claiming sufficient knowledge of all those different forms that all of them will require no changes even if instead of one type of marriage we switch to three?

But there's another issue… under what authority does the state even have the power to tell private entities what forms are acceptable, and why is it dictating the internal forms used by businesses?
AlphaCentauri • Oct 13, 2012 @9:24 pm

We are getting so far off topic …

Paper forms are the least of our worries. Computer software is written with certain defaults that cannot be overriden, in order to prevent clerical errors. I'm sure a high percentage of demographic utilities absolutely refuse to accept genders other than "male" and "female," and that they assume spouses are of opposite gender. The software needs to be rewritten. (And Internet Explorer 6 needs to be sunk to the bottom of the ocean, but there are still plenty of private and governmental offices that continue to use it because they haven't yet rewritten in-house software to be compatible with other browsers, either.)

But does everyone agree on what the new conventions should be?

A similar example: The high percentage of families in which both parents have health insurance covering the children led to problems with children being covered by two different insurance companies. Which company has to pay the claim? The children are equally related to both parents, and we no longer assume the father is the head of the household for financial purposes. The parents naturally want the one with the better coverage to pay, but each insurer wants the other one to pay. The insurance industry came up with a common agreement to use the policy from the parent whose birthday comes earlier in the calendar year. It's not anything that would solve itself automatically without an industry standard being established. And it's something people not working in the health insurance industry might not anticipate.

In the case of marriage demographics, the need for detail for a company that just needs to know whether to address your form letters as "Mr. and Mr. Jones" or "Ms. Smith and Ms. Jackson" is different from a doctor's office that needs to know if Ms. Smith needs to be offered birth control if Ms. Jackson might be transsexual. In a perfect world, we'd all keep a sense of humor and work it out. But in the real world, a data entry clerk with a religious belief against homosexuality might start editing demographics as a matter of conscience and cause all kinds of mischief before his employer realized what was going on.

Marriage equality won't equal divorce equality, either. People enduring divorce often have complaints about the current system of dealing with contested divorces and child custody agreements, even though they theoretically don't favor one or the other parent. Custody agreements when one woman gave birth to a child but both women raised it from birth get very messy.

Don't get me wrong … I personally think we need to get on with it and just legalize gay marriage. But I also think it's unfair to assume that no rational person would hold a different opinion.
Grifter • Oct 13, 2012 @10:31 pm

@AlphaCentauri:

But you haven't given any rational reasons not to. And that's my point. There are a lot of positions people hold that they do not rationally analyze; this one happens to dehumanize an entire chunk of the population, which is why I refuse to let them do it.
James Pollock • Oct 13, 2012 @11:34 pm

Grifter, I think you've confused "rational" with "good enough to satisfy me". You're convinced that gay marriage is an important enough topic that achieving marriage parity is so important that it must be accomplished now. This is not a universal opinion, and the people who don't share it have many reasons (some good, some not, some rational, some not). Dismissing them all as ignorant and irrational will not win you any converts.

Now, when you get to dismissing the people who've been on your side for 5, 10, 20 or more years for not being ideologically pure enough (yes, you did this, upthread.) that doesn't help, either.
csh • Oct 14, 2012 @8:10 am

It seems clear to me that unless you've seen the text of the petition she signed, along with a very complete job description of her position at the university, anything ANYONE posts about this topic is just noise.
Grifter • Oct 14, 2012 @9:23 am

@James Pollock:

You still haven't given a single rational reason, or inherent unintended consequence.

And no, I didn't say they weren't ideologically pure enough; now you're just being disingenuous, and I don't appreciate it. I said that their position, as stated by you, was not actually against gay marriage, but rather against the possible consequences of trying to fight for gay marriage, which is akin to a battered woman not leaving her husband for fear of the violence he might do her.

And I said that if they were against it for some other reason, it was entirely possible that they had made a wrong argument. No one is perfect, not even if they mostly agree with you. Perhaps that's a lesson you haven't learned?

Either make a valid point, or admit defeat. That's how debate is supposed to work. You have yet to do so; at this point our debate has begun to devolve into you just saying "nuh uh!" and insulting me. You haven't shown any unintended consequences or rational argument against the subject. I have pointed out exactly how you are wrong and you have yet to be able to attack those points; to try to pretend now that I'm "confus[ing] "rational" with "good enough to satisfy me"." is just wrong and one of those "nuh uh you doodyhead" responses.

However, you clearly cannot be convinced, so I think we are done. You see, when I debate, I can be convinced of the opposing position. Had you, for instance, come up with an actual reason that didn't fit into my original list, I would have amended my position; you clearly have no such "here is how I could be wrong" point, on this subject at least. You are not attempting to reach the truth in this debate, but rather to show everyone else how right you are; since I don't agree that you are right, I feel we'll go in circles all day.
James Pollock • Oct 14, 2012 @3:22 pm

Let's see. I pointed out people who are objectively in favor of gay rights who are not immediately in favor of gay marriage, your response was "oh, they're not really against gay marriage."

When presented with several perfectly rational (though some are admittedly trivial), you dismiss them as "not rational". (You did NOT say that there are not any rational arguments which are not trivial, you said that there are not any rational arguments. Period.)

You still haven't addressed one reason: small businesses which offer insurance for spouses do so with a budget in mind based on the number of spouses their employees have. Of course that number may change through single employees marrying and married employees getting divorced or widowed. If you make a substantial change to the rules of who may marry, you risk throwing off their budgeting processes and saddling them with unanticipated costs… which they may not be able to bear in the short term.
(yes, this, like pretty much any other objection, can, and eventually, will, be overcome. I suppose you can argue that maybe that business should have been providing coverage for spouses and partners all along… but you're on thinner ice there. I suppose you'll wind up handwaving at this one, too, by explaining "Oh, they'll fix that when they write the statute" just like the forms will magically change and the computer programs will re-write themselves.)
But there's nothing irrational in the people who have spousal insurance coverage now worrying that adding "gay spouses" to the mix might cause them to lose part, or all, of their spousal coverage. (And that's not even including the real danger for people that work for the sort of people who'd take away a benefit from everyone if that was the only way to make sure the gays don't get it.)

Or, I could take up your debate style:
every example you gave doesn't apply
OK, the ones that do apply aren't rational
why won't you make any rational arguments? I might be convinced by RATIONAL arguments…
Grifter • Oct 14, 2012 @4:17 pm

@James Pollock:

"You still haven't addressed one reason: small businesses which offer insurance for spouses do so with a budget in mind based on the number of spouses their employees have"

Apparently, I have to say things several times for you to understand them, since I did already address it. So I'll spread it all out for you:

You originally brought it up as part of your "unintended consequences" argument. I said, quite rightly, that it is not an unintended consequence, it's a wholly intended consequence.

Further, I pointed out the absurdity of the argument already. It is not a rational argument against gay marriage. That is an argument on par with "I have to keep stealing from you, because if I don't, I will have less money!"; if you consider that a rational objection to stopping ongoing theft, then I suppose we differ on what a "rational objection" is.

In your scenario small business owners/straight employees are getting a "benefit" to which they are not entitled. To object that if gay marriage is legalized they will lose that is absurd. It is not a rational objection; that is an irrational objection that only works if you presuppose you're doing gay folks a "favor" instead of giving them their rights, because no one would argue that about any other right.

To analogize:

These benefits you speak of are like a pie. Up until now, 4 people have had this pie, so they each get a quarter. There is, though, a 5th person, who has an equal right to the pie. Up until now, they've been telling him to fuck off while they eat. Now you say that it is a rational objection to say "Well, if they had to share, they'd have less pie!" Of COURSE they'd have less pie; but that's not a legitimately rational objection, if we agree that the 5th guy is entitled to the pie, is it? He's entitled to just as much frigging pie as the other 4, and up until now they've taken his fifth and divided it amongst themselves.

If you don't agree that he's entitled to the pie, then the fact that it decreases the total pie amount is irrelevant to the argument about whether the 5th person is entitled to the pie.
AlphaCentauri • Oct 14, 2012 @7:11 pm

Grifter, what you are saying is absolutely logical and fair. But health insurance isn't logical or fair. The analogy would be more like, if you want to cut the pie in 5ths, the guy selling pies will charge twice as much for the same pie, and the guy who previously got a quarter of the pie but was purchasing for the whole pie for everyone else will just say "screw it" and not buy pie for anybody, and he'll keep the money he would have spent on pie so he can buy himself a pint of ice cream.

The thing that will change that situation is people like yourself standing up for your rights and not letting anyone make excuses, so definitely, keep holding people's feet to the fire.
Grifter • Oct 14, 2012 @7:45 pm

@AlphaCentauri:

Thanks, I will!

Just to clarify, though; I am not in that particular demographic, not that it would matter if I was. Principles transcend, and all that jazz.
James Pollock • Oct 14, 2012 @7:53 pm

"You originally brought it up as part of your "unintended consequences" argument. I said, quite rightly, that it is not an unintended consequence, it's a wholly intended consequence. "

If straight people losing their spouse's insurance coverage is a wholly intended consequence of voting in gay marriage, I'd say it's rational for them to be voting the other way.

"In your scenario small business owners/straight employees are getting a "benefit" to which they are not entitled."
OK. nobody's entitled to have their spouse's (or anyone else's) insurance covered because of employment, so we're agreed that the straight employees are getting a benefit to which they aren't entitled. (The ACA muddies this up a bit, but the principle is there.) I'm afraid I don't see how the small business is getting a benefit to which they are not entitled, so I'm going to ignore that claim.

Whether they're entitled to spousal insurance coverage or not, some people are lucky enough to get it, and they're likely to object when you suggest that it should be taken away. This is not irrational. Selfish, it is, but it is NOT irrational.
And it's not like stealing, no matter how attractive you think that argument is. Are they also stealing from the single employees? If so, there's a bigger can of worms, because most employers have more single employees than gay ones who'd be married if only the state would let them.

"Well, if they had to share, they'd have less pie!" Of COURSE they'd have less pie; but that's not a legitimately rational objection, if we agree that the 5th guy is entitled to the pie, is it?"
But what if we DON'T agree that the 5th guy is entitled to any pie? Or what if, as presented in the hypothetical, the end result is not LESS pie, but NO PIE AT ALL?

Now, the INTENDED RESULT of your vision of gay marriage is that 5 people each get 1/5 of a pie. One possible UNINTENDED RESULT is that the employer says "providing spousal insurance coverage is expensive, and if we have to extend it to the gays as well as the straights, it is too expensive, and we'll have to drop it." resulting in 0/5 of a pie for everyone and nobody liking the guy who cost them their spousal coverage. This is not a win for the gay guy. (Do the many other benefits outweigh the limited impact of this one? That's an entirely different question, one which we agree on. But I'm not declaring someone who believes that trading in their spouse's insurance coverage is NOT worth it as "irrational" because they place the needs of their spouse over someone else's. Criticizing this decision as "selfish" is fair; calling it "irrational" is just incorrect.)

"Gay" marriage is a bit of a misnomer, since what it actually does is create a new right (the right to marry someone of the same gender) and award it to all citizens. Limiting spouses to opposing genders is unfair to people who would choose spouses of the same gender, but it is not unfairly applied… it is applied equally to both gays and straights. It is just not the case that prohibiting same-gender is removing a right from only one group of people. Rather, gay marriage is the extension of a new right, to all citizens, to increase their options in selecting a marriage partner.
IF you can wrap your head around that different viewpoint, then your pie analogies start to fall apart, as you have a fifth guy trying to get the guys with pie to share, because he doesn't have a right to any pie to begin with. Maybe he succeeds, maybe he doesn't… either way, he has no right to pie until and unless the guys with pie extend it to him.
Of course, most of the gains of allowing people to marry other people of the same gender do not require a corresponding loss by the people who choose to marry people of the opposing gender. And it is very, very likely that most to nearly all of the losses of whatever kind involved are trivial and easily absorbed. For the people adversely affected by the ones that aren't to object is rational. For the large number of people who do not know whether or not they would be adversely affected and if so, by how what to ask for a delay while these answers is worked out is also rational (and, because it IS rational, it can be addressed by actually working out the side effects and addressing them, this group of people will turn to support of gay marriage as that happens. Calling them irrational in the meantime will not speed their pace.).
Grifter • Oct 14, 2012 @8:52 pm

I return, James Pollock, to asking if you think this is a rational objection:

"I can't stop stealing from you, because if I did, I'd have less money!"

If the answer is yes, then you and I have vastly different definitions of "rational objection". If the answer is "No", then your health insurance example is not a rational objection.

But of course, you think gender discrimination is completely ok (I've already pointed out that prohibiting gay marriage is not just orientation discrimination, but gender discrimination as well, which is part of why your argument that gays and straights have the same rights to marry the opposite gender is the same as saying that men and women had the same rights to vote before women's suffrage. "Women have the same rights to vote as men…men couldn't vote if they were women, either!")
Grifter • Oct 14, 2012 @8:55 pm

"One possible UNINTENDED RESULT is that the employer says "providing spousal insurance coverage is expensive, and if we have to extend it to the gays as well as the straights, it is too expensive, and we'll have to drop it."

And to me, that's not an unintended consequence of gay marriage specifically, considering it would be just as likely to happen if a bunch of straight people got married, too, so there's nothing inherent to gay marriage and different from straight marriage that would be an unintended consequence.

However, I've done your job for you and thought of a single unintended consequence of gay marriage: Bigoted business owners deciding to stop offering to anyone to prevent offering to gays. That is not a valid reason to oppose gay marriage, but it is a single plausible unintended consequence that is inherent to gay marriage. In the same way that all those folks opposed to miscegenation dropped health insurance when interracial marriage was legalized.
James Pollock • Oct 14, 2012 @11:50 pm

""I can't stop stealing from you, because if I did, I'd have less money!"
If the answer is yes, then you and I have vastly different definitions of "rational objection". If the answer is "No", then your health insurance example is not a rational objection.
Health insurance is stealing?

"But of course, you think gender discrimination is completely ok"

Oops. There goes your credibility for reading comprehension. Allow me to quote myself "I believe in gay marriage as a civil rights issue"
http://www.popehat.com/2012/10/11/zampolit-angela-mccaskill-report-for-reeducation/#comment-901871

"Do the many other benefits outweigh the limited impact of this one? That's an entirely different question, one which we agree on."
http://www.popehat.com/2012/10/11/zampolit-angela-mccaskill-report-for-reeducation/#comment-903214

"And to me, that's not an unintended consequence of gay marriage specifically, considering it would be just as likely to happen if a bunch of straight people got married, too."

I didn't claim that permitting gay marriage was the only thing that could have this result. There's a bunch of other things this could be the unintended consequence of. Doesn't make it not a possible unintended consequence of gay marriage, but rather, it makes it a possible unintended consequence of gay marriage, and also a possible unintended consequence anything else that might cause a large number of single people getting married in a short period.
The fact that a single effect may have multiple independent causes doesn't break the cause-and-effect link… it just means that there's more than one of them.
Example of your logic in action:
Increasing the tax rate would cause my property tax bill to be higher. But wait! Increasing the assessement on my property would ALSO cause my property tax bill to be higher. So there's nothing inherent in raising tax rates that causes property tax bills to go up.

"I've done your job for you and thought of a single unintended consequence of gay marriage: Bigoted business owners deciding to stop offering to anyone to prevent offering to gays."
Perhaps you were able to think of this because I previously referred specifically to this possibility? (but wait… being against something because of fear of what the bigoted might do is not being against something, remember?)
Grifter • Oct 15, 2012 @7:36 am

@James Pollock:

First off, you mentioned the fear of bigots writing laws. You didn't mention the fear of bigots turning off insurance, certainly not specifically that scenario.

So you are wrong. Your snark fails. And you have been dishonest in your debate. Please, think of that as you type your reply. You are provably wrong. A quick search of the page for "insurance" shows your arguments about the hypothetical shoestring small business owner, but not a single mention of a hypothetical bigoted one. So, as you formulate your response, bear in mind here is a case where you are flatly wrong, and if you cannot either show where you did (hey, perhaps I missed it), or acknowledge that you just made a point you are 100% wrong on, then this debate is called on account of your disqualification for dishonesty.

Second off:

I concede that my last bit of rhetoric was inaccurate: Better would be to say you think that gender discrimination is rational, since that's the position you're defending.

Third:

You still haven't given a rational objection to the right of gay marriage. Debating the consequences of a right is irrelevant to its existence. It muddies the waters, and I regret even engaging with you on it. The objections you note are, as I said, similar to the "I have to keep stealing" argument, which to me makes them irrational; even if they are common and self-interested, they also have nothing to do with whether as a concept gay marriage should exist. I'm sure if women's suffrage was being debated today, some people would bring up possible unwanted repercussions of women voting…and it would be completely irrelevant to the point, and would add not one iota of rationality to the debate.

I repeat that there is no rational argument for not allowing gays to marry, because any argument about it must settle on the reasons for marriage, and gays fit the bill for all the reasons we actually have for marriage. (people's religious objections are irrelevant to the discussion, as are the "children" argument, since we allow infertile couples without a blink).

Pure selfishness based on no logic is not rational. Someone who wants to pass laws that exempt only themselves from taxes is not making a rational argument, even though they are acting in their own self-interest. And your attempts to give arguments against gay marriage are not against the concept, but about what you perceive to be the consequences, from an illogical, 100% selfish perspective that I do not find to be rational, since it is built on only self interest (on the part of those who might lose insurance).

Here is a hypothetical parallel argument: "Well, black people can't be citizens, because if they were, they'd qualify under labor laws for minimum wage, which might bring the wages down for everyone else, and might even cause layoffs!"

Is that a rational argument for preventing black people from being citizens?
James Pollock • Oct 15, 2012 @8:55 am

Grifter:
"First off, you mentioned the fear of bigots writing laws. You didn't mention the fear of bigots turning off insurance, certainly not specifically that scenario.
So you are wrong. Your snark fails. And you have been dishonest in your debate. Please, think of that as you type your reply. You are provably wrong."

"that's not even including the real danger for people that work for the sort of people who'd take away a benefit from everyone if that was the only way to make sure the gays don't get it.)"

http://www.popehat.com/2012/10/11/zampolit-angela-mccaskill-report-for-reeducation/#comment-903158

So I was proved right. Think about that as you type.

… then you revert back to "any argument I don't agree with is irrational."
So, I concede. There is, in fact, no argument for delaying or preventing gay marriage laws that you won't call irrational.
Grifter • Oct 15, 2012 @9:13 am

@James Pollock:

I owe you an apology. I missed it, I assume originally since I didn't remember and on relookup.

Of course, then you resume your snark. I like how you have no response except to insult; that shows you've really put thought into your position.

I repeat the question at the end of my last post: Is that a rational argument? Because we must establish what rational means in terms of "rational argument", as well as a debate about whether the example was equal (because if you don't think the gays have equal rights as straights, just as blacks have a right to citizenship, then ancillary consequences are irrelevant, as I believe has already been established). If you don't think that last point I used as an example was "rational", and agree that it is equivalent to the current discussion, then no argument you have put forward is rational.

So answer the question, please.
Grifter • Oct 15, 2012 @9:44 am

And for the record, I think I would like to repeat my original position, in case at some point I gave any other impression (and if I did, mea culpa):

"I think it can reasonably be said that anyone who is against gay marriage (in this sense by signing a petition, or advocating to the government stepping in…as opposed to personally not liking it) is either bigoted (hate gays), theocratic (think their religious interpretation should be the rule), hypocritical (the entire "because men and women can have children" argument, considering we don't actually factor that or any of the other "arguments" for why there needs to be heterocity in marriage into hetero marriage at all), or foolish (legitimately do not understand the issue, their own arguments, or how to argue a point well enough, yet having an opinion anyway)."

To that I would add "Or are afraid of the actions of extremist bigots", and thank James Pollock for helping me add that to the list, even if I still maintain that those folks are not actually against the concept.

I feel like we've gotten bogged down in "rational" when my original point was "foolish"; a selfishness argument might be twisted into a semblance of rationality, but the necessary consequences of it make it an either hypocritical (the premises would not be accepted if they were reversed on the person making them) or stupid (bogging down into just not making sense as an argument against the concept as a right) argument.

For example: I concede that a theocratic argument is "rational" to the holder (since they've accepted certain premises as truth), but it is also hypocritical and foolish once you see it in full context. I would hope we can agree on that. Where we seem to disagree is on this insurance thing; I feel it is the same type of red herring that appears rational depending on how much context you give it, because the broader context is that gays shouldn't ever have been discriminated against in the first place, so the system that is currently in place shouldn't have been. If you feel that the discrimination was okay in the first place, then you don't really agree that it's a right.

I can look back on slavery and say "that was bad". Not "that would be bad if it happened now", but "that shouldn't have happened in the first place", and I don't have sympathy for slave owners who may have lost their "investment" when slaves were freed, nor do I feel they had a rational argument against freeing them.
Dictatortot • Oct 15, 2012 @10:25 am

One can also be in favor of ACTUAL civil rights all around, while believing that "gay marriage" is, definitionally, a metaphysical incoherency akin to entering into a legal contract with the color blue, or with passing legislation that defines how much an inch weighs. Reasonable men can believe all three to be linguistically possible, but semantically empty. If so, a jurisprudential system that seriously entertained or enshrined any of the above notions has assigned itself reality-moulding powers that belong to no human being, and that is not merely lawless, but corrosive of law itself. If that amounts to bigotry, then fetch me my brown shirt.
Grifter • Oct 15, 2012 @10:35 am

@Dictatortot:

Please explain how "gay marriage" is a metaphysical incoherency?

In the case of "how much an inch weighs", you have a unit of length being combined with a unit of weight (or at least the concept of weight).

I believe that you're trying to make the point that marriage is currently defined in law as man/woman, so changing the definition is demonstrating "reality-moulding powers that belong to no human being". That is, of course, absurd, so I hope that is not your argument. Marriage was once acceptable between children and adults (not to take a crack at Muslims), between multiple adults (not to take a crack at Christians), and heck, I believe Caligula married Incitatus! (his horse) The strict definitional requirement of who can enter the contract has changed multiple times throughout history.
Grifter • Oct 15, 2012 @10:39 am

Further research makes me think the Caligula thing was even more apocryphal than I thought. I withdraw it.
James Pollock • Oct 15, 2012 @10:52 am

Yes, yes. We've already established that by the defintion of "rational" that you choose to apply, there are no rational arguments.

But… the gay-rights opponents are correct to note that at present, everyone has the same right (to marry the person of the opposed gender of their choice, within restrictions). Yes, that right is far more valuable to straight people who want to be married than it is to gay people who want to be married (some of whom, it should be noted, ARE married).
Marriage parity proponents are noting the perceived unfairness to them; the fact that they (like all citizens) may marry a person of opposed gender is of little value to them while the prohibition on same-gender marriage affects them greatly; a straight persons existing right to marry an opposed-gender person is valuable to them while the prohibition on same-gender marriage troubles them very little. To you (and to me) the fairness of this situation is improved if anyone can marry anyone, without a gender requirement, but that doesn't change the fact that what the marriage parity proponents are asking for is to create a new right which has never existed before, to be given to all citizens… specifically, the right to marry someone of the same gender.

That's why this is different from extension of the franchise to black persons or female persons; before you carry out those changes, one group has the right to vote and another group doesn't. That's a different case from marriage parity, which is a change from "nobody has the right to marry a person of the same gender" to "everybody has the right to marry a person of the same gender".

Now… what's the argument for "this right should exist"? It's "because it would be fairer". There are lots of laws which affect different people differently, and that can seem unfair or perfectly reasonable depending on viewpoint. An increase in property tax rates only affects people who own property (or might own property in the future). Is it fair that people who don't own property get to vote on property taxes rates? Alternatively, property taxes fund vital services. Would it be fair to allow only property owners to set tax rates (thereby affecting the ability to pay for, and thus the availability of, vital services)?

So. We're not, and never have been, talking about whether or not "such a right exists". In some states, it objectively does exist, while in some states, it objectively does not exist. What is under debate is NOT a challenge to whether or not a right to marry a person of the same gender exists. It is a challenge to whether or not, in those states where the right does not exist, it should exist.
Grifter • Oct 15, 2012 @11:07 am

@James Pollock:

The prohibition on same-sex marriage is flatly gender discrimination.

Mrs. X wants to be married.

Mr. Y and Mrs. Z want to marry her.

But Mrs. Z cannot marry her, due entirely to her gender. That is gender discrimination. She does not have the right to marry Mrs. X, even though Mr. Y does.

That is why I equated it to saying to women "You could vote if you were a man, just like they couldn't vote if they were women!"
Dictatortot • Oct 15, 2012 @11:13 am

Actually, Grifter, that particular criterion has been tenacious and widespread enough through human history to make it far from "absurd"–you're setting your rhetorical bar implausibly high here. It might prove incorrect, but it strikes me as an entirely consequential basis for argument, one that is consistent with intellectual seriousness, and with goodwill towards the parties involved.

(And thanks for correcting the historical record: I was about to observe that throwing in "but Caligula did X!" is seldom helpful when trying to prove that variations on X are time-honored and unobjectionable.)
James Pollock • Oct 15, 2012 @11:16 am

"I can look back on slavery and say "that was bad". Not "that would be bad if it happened now", but "that shouldn't have happened in the first place", and I don't have sympathy for slave owners who may have lost their "investment" when slaves were freed, nor do I feel they had a rational argument against freeing them."

Now, if some of the slaves say "but… if we all get freed at once, that will ALSO free the slaveowners of their responsibility to provide basic care for us. Where will we live, and what shall we eat, if we suddenly find ourselves freed?"
They're not against the idea of freedom, but they might have counseled a delay in the process to address their concerns. (but wait! Isn't fearing being ejected from (former) master's house just a case of fearing the actions of bigoted extremists? No… it's possible that the former slaves might be ejected because the ravages of the war imposed economic hardship on the family, and they simply could not afford to continue to feed, clothe, and house the former slaves.

Now, from my remote view, it seems that freedom is worth a little bit of temporary hardship. Perhaps even a great deal of ongoing hardship. But I can also accept that my opinion on the subject might be different if it were going to be MY hardship. I say it's even more likely that my opinion would be different if it were somehow going to be MY hardship to secure THEIR freedom. (for an interesting examination of the converse, see Ursula LeGuin's "The Ones Who Walk Away From Omelas".) So I won't dismiss objections out-of-hand or rail against people who come to different conclusions.
Grifter • Oct 15, 2012 @11:25 am

@Dictatortot:

You still have not explained your original point or position.

@James Pollock:

There is a difference between being against a concept entirely, and wanting to move slowly toward a concept.

Further, you must keep in mind that if some slaves want to be freed now, and some want to wait, the ones who want to wait have to give a justification to the ones that don't, and "I'm afraid of what we'd lose if we get our rights, therefore you cannot have your rights because I don't want mine" is not an argument that I would consider rational.
James Pollock • Oct 15, 2012 @11:30 am

"The prohibition on same-sex marriage is flatly gender discrimination.
Mrs. X wants to be married.
Mr. Y and Mrs. Z want to marry her.
But Mrs. Z cannot marry her, due entirely to her gender. That is gender discrimination. She does not have the right to marry Mrs. X, even though Mr. Y does. "

Nope. neither X, nor Y, nor Z has the right to marry a person of the same gender, and that prohibition applies equally to both genders. You'd have gender discrimination if men were allowed to marry either another man, or a woman but a woman may only marry a man. Or, the more common variant, (anthropologically speaking), that a man may marry multiple women but a woman may be married to only one man. In those cases, the law is different depending on which gender you are. Prohibition of same-gender marriage is applied equally to both genders; both are equally prohibited from marrying another person of the same gender.
The law against robbing banks applies equally to people who want to rob banks and people who don't want to rob banks.
Grifter • Oct 15, 2012 @11:44 am

@James Pollock:

In this portion of the debate, I have posited "only one gender is allowed to marry person X, which is gender discrimination."

Your response appears to be: "Well, nobody's allowed to get gay married, even the straights, therefore it's not gender discrimination" That does not address the point as made.

"Oh, well, anyone's free to marry so long as it's the opposite gender", and "Anyone can vote as long as they're a race we approve of" appear to be equivalent arguments to me.
James Pollock • Oct 15, 2012 @11:49 am

"not an argument that I would consider rational."
Yes, I know, arguments you disagree with are not rational.

Ahem. If my neighbor wants to get the law changed so that every person in the county has the right to fire off large numbers of lead projectiles in their backyard, is it rational to for me to object because one of those bullets just might adversely affect my personal bodily integrity, adversely affect my children's health, or damage my property?
"I'm afraid of what we'd lose if we get our rights, therefore you cannot have your rights because I don't want mine"
Oh. Fire away, then.
Dictatortot • Oct 15, 2012 @11:56 am

My apologies, Grifter; thought I'd been fairly clear. I was answering your assertions by describing at least one known "thumbs-down" stance on the gay-marriage issue that doesn't appear to relay on bigotry, lack of reasoning power, or theocratic ambitions. If so, there's no reason to assume that Ms. McCaskill's suspension (and potential firing) is condign punishment for possessing or exhibiting any such traits. Q.E.D.
James Pollock • Oct 15, 2012 @12:01 pm

""Oh, well, anyone's free to marry so long as it's the opposite gender", and "Anyone can vote as long as they're a race we approve of" appear to be equivalent arguments to me."
Well, they're not. Closer would be "anyone can vote, but you can only vote for candidates qualified to be on the ballot."
Or perhaps
"you're registered as a Republican, so you don't get to vote in the Democratic primary election. He's registered as a Democrat, so he doesn't get to vote in the Republican primary election. She's registered as "unaffiliated", so she doesn't get to vote in either the Republican OR the Democratic primary elections."
There's flaws in both of my comparisons, but they're closer to "everyone has the right to choose a spouse from amongst the eligible members of the opposite gender, and nobody has the right to choose a spouse from the eligible members of the same gender" than is ""Anyone can vote as long as they're a race we approve of"
Grifter • Oct 15, 2012 @12:10 pm

@Dictatortot:

I assert that it does, since the "appeal to tradition" is a well-known logical fallacy.

@James Pollock:

I agree with your hypothetical regarding projectiles. In that case, you can make a compelling argument that, first, he does not have the RIGHT to do that, and second, that if he were granted that privilege, it would infringe on your own rights. Equating that to gay marriage, however, if foolish considering I am making the assertion that they DO have the right.

As regards to the primaries…in some states, you do, in fact, have that right.

And more to the point, even in the states where you cannot, you may change your party affiliation with no negative consequences to yourself. You cannot change your gender to be "acceptable".
James Pollock • Oct 15, 2012 @1:11 pm

"Equating that to gay marriage, however, if foolish considering I am making the assertion that they DO have the right."
Fair enough. You're limiting your discussion to those jurisdictions where they do have that right. I had assumed you were referring to those jurisdictions where they do not.
James Pollock • Oct 15, 2012 @1:21 pm

"And more to the point, even in the states where you cannot [vote in the primary elections of parties to which you are not affiliated], you may change your party affiliation with no negative consequences to yourself. You cannot change your gender to be "acceptable".

First off, I noted that the comparisons were flawed. Second, of course, this is NOT one of the flaws, as you CAN change your gender if it is important enough to you that you do so. My understanding is that this is not usually associated with marriage parity, but most of the organizations that I'm familiar with that support gay rights (notably but not exclusively marriage parity) also promote social acceptance of and legal protections for trans-sexuals. Third, in a closed-primary state, choosing to change your political affiliation
does have consequences, as it alters which ballot will be offered to you during primary elections, and for some, changing political parties may trigger significant and extensive repercussions (see Specter, Arlen.)

Can a person change their race? Ask noted Cherokee political figure Elizabeth Warren.
Grifter • Oct 15, 2012 @1:42 pm

@James Pollock:

In Loving v. Virginia, the Supreme Court said that bans on interracial marriage were unconstitutional, despite the fact that the rule wasn't racist according to your logic because everyone was held to the "marry only within the same race" criteria.

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Gender has long been considered equal to race in terms of discrimination; you could replace the racial language with gender language and not change the logic.

The Supremes ruled in Craig v. Boren that:

"To regulate in a sex-discriminatory fashion, the government must demonstrate that its use of sex-based criteria is substantially related to the achievement of important governmental objectives."

That is why there must be a reason for the discrimination inherent in the marriage laws to exist, and why without such reason, the laws should not stand.

(The Elizabeth Warren thing still baffles me, but I'm not going to reopen that can of worms here, there's a whole Popehat post on the subject from awhile back).
Lizard • Oct 15, 2012 @1:49 pm

@James: If you can show me that gay men and women belong to the broad category of "people who are either incapable of granting meaningful consent to complex, life-changing, agreements" (such as children and younger teens) or the broad category of "people who have demonstrated gross irresponsibility, so that they must be restricted based on their proven past actions" (such as felons), I'll say you might have a point. Good luck with that, by the way.

There is no reason to limit the right of consenting adults to marry. It's an arbitrary denial. Denying gays the right to marry is as foolish, and immoral, as denying, say, the right of a Taurus to marry a Sagittarius. "We've always done it that way!" is not an excuse, not when you can't show any good reason to have always done it that way and any severe consequences to NOT doing it that way. Polygamy? I have no objections on MORAL grounds, but I will say we lack a sufficient legal framework currently, and it would be far more difficult than extending current law from "husband and wife" to "two people of whatever gender". You have failed to show the difficulty of reforming the law meets the high bar required to keep an arbitrary and baseless restriction in place.
Dictatortot • Oct 15, 2012 @1:59 pm

Actually, Grifter, though the "appeal to tradition" is a logical fallacy in certain contexts, it's essential (and not at all fallacious) when it comes to establishing what a word happens to mean, or what a named concept entails in the vernacular and legal realm alike.
Grifter • Oct 15, 2012 @2:05 pm

@Dictatortot:

But appealing tautologically to a definition defined by past practice which itself makes no sense, while ignoring the context and the intent, is also fallacious.

"Voters" used to just mean "white guys with property", after all, yet of the many arguments against expanding voting rights, "they never could before therefore they never should!" was never particularly compelling.

Also: See Lizard's post.
James Pollock • Oct 15, 2012 @3:06 pm

Grifter:
"In Loving v. Virginia, the Supreme Court said that bans on interracial marriage were unconstitutional, despite the fact that the rule wasn't racist according to your logic"
The prohibition against interracial marriage isn't racist according to any logic and it wasn't overturned because it was racist, it's just stupid and accomplishes nothing. Loving isn't a 14th amendment case, it's a ninth amendment case.

"Gender has long been considered equal to race in terms of discrimination"
No. They are held to different standards (strict scrutiny vs. intermediate scrutiny). The equal rights amendment, which would have corrected this disparity, did not pass.

"That is why there must be a reason for the discrimination inherent in the marriage laws to exist, and why without such reason, the laws should not stand."
First, you have to establish that the Constitution creates and protects a right to marry a person of the same gender. THEN you can argue that any law that impairs that right cannot stand. (You'd very likely be right.) But you're tripping over the first step, assuming that it is a given when it is not. Alternatively, you can ALSO proceed by claiming that the various state Constitutions convey such a right even if the federal one does not. This is how the people legally married to people of the same gender in California got the right; the California Supreme Court found such a right in the California state constitution. I do not live in California and I assure you that MY state's constitution provides no such right; this was tested when three members of a county commission decided that it did and ordered county commissioners to offer marriage licenses to same-gender couples who applied for them. Litigation ensued, and the county lost; the several hundred tempororily-happily-married couples woke up one morning to learn that their marriages were void and the state would not recognize them. Subsequently, the state constitution was amended to place the different-gender requirement in the state constitution, where it sits today.

Lizard:
"@James: If you can show me that gay men and women belong to the broad category of "people who are either incapable of granting meaningful consent to complex, life-changing, agreements" (such as children and younger teens) or the broad category of "people who have demonstrated gross irresponsibility, so that they must be restricted based on their proven past actions" (such as felons), I'll say you might have a point. Good luck with that, by the way."
Well, I'm going to assume that there are some people who would prefer to marry a person of the same sex (if that option were available) who are underage, demonstrably incapable of sound judgment, or felons. If I looked long and hard enough, I might even find someone who'd prefer to marry a person of the same sex even though one or even both of them are not gay. What does this have to do with anything? You only have to have one of the disqualifying factors, not all of them.

"There is no reason to limit the right of consenting adults to marry."
Consanguinity? Duress? Fraud? The fact that a state's constitution forbids it to recognize some marriages?

"You have failed to show the difficulty of reforming the law meets the high bar required to keep an arbitrary and baseless restriction in place."
Well, no wonder, what with me not even TRYING to show anything of the sort. You've tripped over the same fundamental assumption that Grifter did… assuming that a right to marry someone of the same gender exists in the Constitution, when it does not. The state has broad powers to enact arbitrary and even baseless restrictions, UNLESS THE CONSTITUTION SAYS THEY CAN'T. 20 MPH in a school zone? Arbitrary and baseless. Doesn't mean I won't get a ticket.

Once more for the record: Yes, the state should extend marriage to otherwise-qualified same-gender couples, because that's fairer. Yes, I think that the tide is turning in that direction, and more states will extend recognition of marriage between same-gender pairs. No, I don't think that anyone who disagrees is stupid and/or irrational. Yes, there are some perfectly valid problems that would surface (many at the interfaces of religious institutions that perform non-religious activities, which is not specific to same-gender marriage, and some of the objections are selfishly made, and some involve possibilities that have exceedingly low probability, and none of which presented (to my knowledge) that cannot be overcome by a society that seeks to improve fairness.

If it were as cut-and-dried as you imagine, it would be a done deal.
Dictatortot • Oct 15, 2012 @4:31 pm

Well, Grifter, if one could make a reasonable argument that "white guy with property" had nearly always been a defining or essentially limiting quality of the word "voter"–rather than an incidental or non-limiting connotation–then I'd object to using the words "vote" or "voter" in their modern contexts, and would propose some other coinage that described the situation adequately. In the present case, though, past practice gives strong reasons for considering the sex of the participants a limiting quality (in the linguistic sense) of the word "marriage," which covers both context and intent. And there's nothing about this past usage that fails to "make sense" … unless you mean by this that it fails to suit your druthers.
Grifter • Oct 15, 2012 @6:28 pm

@James Pollock:

Did you really just say that Loving v Virginia was not a Fourteenth Amendment case? Or that it wasn't considered racism?

"The U.S. Supreme Court overturned the convictions in a unanimous decision (dated June 12, 1967), dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment."

Potter Stewart filed a brief concurring opinion where he reiterated his opinion from McLaughlin v. Florida 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."

And I question whether you really think it would pass constitutional muster if you swapped out "race" and put in "gender".
Grifter • Oct 15, 2012 @6:37 pm

@Dictatortot:

"If one could make a reasonable argument that "white guy with property" had nearly always been a defining or essentially limiting quality of the word "voter"–rather than an incidental or non-limiting connotation–"

That was flatly the case for all of the history of democracy up until the late 1800s, at which point the argument was made that "hey, though that's how you've always defined it, we (meaning minorities and women) would point out that's not a legitimate definition".

In much the same way, the gendered aspects of "marriage" serve no purpose (taking into account the fact that bearing children is not a requirement of marriage). It is an arbitrary addition to the definition, and your argument for keeping it is "that's how it always was!" While you may hold the position for yourself, to force that arbitrariness based on gender discrimination on others through the law of the land goes against the principles of America in the same way denying the vote to minorities and women did.

You claim that calling a committed gay couple "married" and giving them the civil protections inherent in that title is akin to "entering a contract with the color blue". That is not a rational argument. I could just as easily say that "not letting gays marry is like punching Jesus in the face"; it doesn't make sense, it doesn't correllate, and I sound foolish for saying it without some sort of basis.
James Pollock • Oct 15, 2012 @9:46 pm

"Did you really just say that Loving v Virginia was not a Fourteenth Amendment case?"
Yes. That's not to say the 14th is unrelated; any time a state (as opposed to the federal government) attempts to limit your rights it's actually the 14th amendment that keeps them from doing so because of "incorporation" of the Bill of Rights into the due process requirement of the 14th.
The core holding that required invalidating Virginia's miscegenation statute was the holding that marriage is an unenumerated fundamental right. It's the ninth amendment that provided that. The 14th is just the mechanism that applies it to the states as well as the federal government.

"And I question whether you really think it would pass constitutional muster if you swapped out "race" and put in "gender"."
It would not have a problem passing "constitutional muster". There hasn't been a successful legal challenge to any state that has placed opposite-sex marriage into the state constitution based on the federal constitution; they've come about because state courts have been convinced the state constitution allows same-gender marriage. (That's how same-sex marriage became legal in California, too… Perry v. Brown is about keeping it legal, not making it legal, and that changes the argument.)

"your argument for keeping it is "that's how it always was!""
"That's how it always was", usually given as "as it was, so should it be", is the central tenet of the common-law legal system.

"that arbitrariness based on gender discrimination"
It's still not gender discrimination. Each gender has the same restrictions placed upon it.

"goes against the principles of America in the same way denying the vote to minorities and women did."
No, it doesn't, for two reasons. First the extension of the franchise to minorities and to women was accomplished via constitutional amendment. Well, actually some states had already extended the franchise to women before the amendment extending it across all the states was passed. Get your "marrying someone of the same sex is a fundamental right and the states may not infringe it" amendment through the Congress and then 38 state legislatures, instead of looking for a shortcut, and the debate is over.
Secondly, the franchise was held by one group of people and denied to another group of people in the cases of extending the franchise. (Also, you missed on, as there is ANOTHER group who received the franchise due to constitutional amendment. This is left as an exercise for the reader.) In those jurisdictions that still don't recognize same-gender marriage, there's currently nobody who has the right to marry a person of the same gender. You're conflating "we have this but we won't let you have what we have" with "we don't need or want this so we don't care if the law is that nobody can have it."
So, if there was a marriage rule that said "straight people can marry people of either gender but gay people can only marry people of opposed gender", THEN denying gay people the right to marry people of the same gender would be similar to denying the franchise to women or to minorities (or 18-21 year olds). THAT would be a pretty clear equal protection violation.
Grifter • Oct 15, 2012 @10:00 pm

"The prohibition against interracial marriage isn't racist according to any logic and it wasn't overturned because it was racist, it's just stupid and accomplishes nothing. Loving isn't a 14th amendment case, it's a ninth amendment case."

Everything about that is wrong. It WAS a 14th amendment case in addition to a ninth amendment case, and it was considered racist. I quoted the damn ruling, where it was called such. For you to continue on as though that's not the case is simply disingenuous.
Grifter • Oct 15, 2012 @10:09 pm

@James Pollock:

As regards to enfranchisement, that had to be fixed by amendment because it had been defined by amendment. Marriage, as has been noted, is not in the constitution.
Dictatortot • Oct 16, 2012 @8:48 am

Grifter, I'm still not sure you're grasping the difference between limiting and non-limiting connotations of a word or concept. Though it might seem like a jaunt into the semantic and linguistic weeds, the distinction is highly trenchant when defining them … and when debating their legal implications. Depending on how that analysis pans out, the "entering into a contract with the color blue" comparison you dismiss is not merely rational, but decisive. You've done nothing to show that the issue is easily dismissible, much less prima facie dismissible. So it won't do to take your pet connotations as self-evident.

When it comes to this issue, one keeps noting an aggrieved drive to define away or invalidate objections, rather than refute them. Fair warning: that sort of thing can be corrosive to the moral capital that so many proponents–including you–are partially relying on. It's the same polemical Wille zur Macht that the Gallaudet case reeks of, and though I don't like to speak for Ken, he appears to sense that it's a recipe for failure … maybe even for sacrificing one's perceived political & moral high ground before it can be fully used. In the end, "gay marriage" proponents might have to–horrors!–make their case just like any other grown-up confronted with serious, unpersuaded interlocutors. I trust this isn't beneath you?
Grifter • Oct 16, 2012 @2:29 pm

@Dictatortot:

You have equated two consenting adults entering into a specific type of contract is equivalent to attempting to engage in a contract with a color. I asked you to explain that further since that does not make sense at all to me, even just from a consent perspective. As I understand it, your response is that because the contract I speak of involves a modification of the definition you have chosen to accept, it turns the entire concept into "metaphysical incoherency". That does not make sense to me.

Why is it metaphysically incoherent for two people of the same gender to enter into a marriage agreement? I maintain that there is nothing inherent to marriage which requires that the genders of the participants be of different genders. You seem to maintain that there is, so I would ask why?

I feel you beg the question when you define the terms and then say that X can't be because it doesn't fit the definition you've premised. I do not accept your premise; just as formerly you had to be a white property owner in order to vote, formerly you had to be two different genders to marry (and, formerly, love didn't factor in nearly as much as "arrangement" and "family politics"). Now, the first example was enshrined in the constitution specifically, so as our understanding changed, and we realized that we were being inconsistent with our values, we changed it through changing our constitution. No such constitutional change is necessary here and, in fact, I still maintain that the change is required by the language we already have.

So, to toss your own language back to you: I would like you to explain why the gendered aspect of marriage is a necessary limiting factor of the concept. "I trust this isn't beneath you?"
Dictatortot • Oct 17, 2012 @8:37 am

Not at all! (Frankly, fewer things are beneath me than I care to think about.) However, the real question-begging happens when we assume that everyone's agreed on which connotations we can strip from the word and still preserve the word's "meaning" (philosophically and legally, a thornier concept than commonly assumed). Need "marriage" apply strictly to 2+ people? Could we treat the "interpersonal relationship" aspect as inessential, and use the word "marriage" to refer to the status or viewpoint of a single individual, without necessarily implying a partner in marriage, or reference to any other individuals at all? If not, what's essential & defining about that aspect that ISN'T essential or defining about, say, the physical and metaphysical complementariness between man and woman? Such a question is surprisingly hard to answer without resorting to bald assertions.

In other words, what we have here is FAR from a slam-dunk argument for either side. Even if "gay marriage" should prove to be conceptually defensible and an appropriate subject of jurisprudence, its proponents still have some intellectual heavy lifting to do. In light of that, asserting that any opposition must stem from bigotry or stupidity is an indulgence in false, impertinent strawmanning … and perhaps a strategically fatal indulgence, as Ken seems to be implying.
Grifter • Oct 17, 2012 @9:12 am

@Dictatortot:

I disagree. I think it can is quite easy to define marriage as a lifelong contract of committment between two consenting persons; to pretend that such an idea is equivalent to "entering a contract with the color blue" is ludicrous.

Now, one can say, "but that's not how I define it!" And that's fine, as far as it goes. Personally, you may decide to define marriage however you choose. But when you are advocating the government support your position, you must have a good reason.

A person could easily argue that "consenting adults" wasn't a necessary limiter for marriage for the vast majority of human history; we would say such a person was obviously wrong. We would base that argument on the fact that there are very good reasons to limit marriage to consenting adults. A person could argue that polygamy laws are wrong, and I would agree with them in principle (though I think there are some challenges of practicality); however, I would say that that is not a constitutional issue, since there is nothing limiting the state from setting an arbitrary number of people allowed to enter any individual contract.

But the state cannot discriminate based arbitrarily on gender.

You say that calling gender a necessary limiting factor in marriage is a legitimate argument, and that if we say it is not, then there are no necessary limiting factors; I point out that is nothing more, as far as you've presented it so far, than an argument from antiquity which, without any other support, is fallacious, particularly considering the other equally valid "arguments from antiquity" that could be used that are clearly such. Every other aspect of marriage (that it be a contract, that it be consenting adults…) that I think we do agree on is a necessary one to achieve the ends of the state (a stable coupling…if there's a further end, please state what you think it is); gender does not do that, as far as you've presented. Therefore, I would say that the argument you've presented thus far is a foolish one, which begs the question if taken on its own because it presumes a full acceptance of a definition as premise without taking into account the possible legitimacy of another definition.

Now, you may have other arguments, and I'd love to read them. But the one you've presented so far is simply not sufficient.
Grifter • Oct 17, 2012 @9:24 am

Marriage was also, for most of history, an inherently religious ceremony; that is a "necessary limiting factor" to the Catholic church, for example, and they do not officially consider marriages that aren't done in their religion by their rules "real marriages".
Dictatortot • Oct 17, 2012 @10:55 am

I'll repeat that lexicographically, an "argument from antiquity" is nothing less than an argument based on agreed precedent, which couldn't be more salient in establishing the meaning of a word. It's a logical fallacy in many contexts, but decidedly not here.

Secondly, determining which connotations of "marriage" are essential, and which represent what logicians would call a "fallacy of accident" is crucial to conducting any jurisprudence that relies on such connotations–or the lack thereof. And as I just said, the term's semantic history is an entirely valid consideration (though not the only one) when making such determinations.

Not sure we're on the same page w/r/t marriage and "the ends of the state." The state does have legitimate interests in familial stability, and it may acknowledge a citizen's marital status for certain ends. However, the state is the cart, and wedlock is the horse. The state is recognizing, but not establishing marriage–the latter is what it is, however the state, its representatives, or its citizens feel about it. If (a big "if," I grant) marriage should have INHERENT implications that are inimical to the state's understanding of civil rights, or that fail to make its benefits available to the whole spectrum of adult citizens, that's the state's and the affected citizens' problem.

In short, the state's legitimate ends are strictly circumscribed by the semantic value of the word, which serious men cannot and will not parse to suit their own sociopolitical ends. Which brings us full circle.
Dictatortot • Oct 17, 2012 @11:00 am

As for your second post: since marriage preceded the Catholic Church, and since it appears to exist universally across cultures, independent of what religions they observe and not consistently buttressed by religious motivations, it seems likely that we're dealing with an inessential, non-defining trait of marriage. As a concept, it's demonstrably more separable than the participants' sex.
Grifter • Oct 17, 2012 @11:17 am

@Dictatortot:

"The state is recognizing, but not establishing marriage"…and some gay people consider themselves married, and want the state to recognize it. As Dan Savage says about his partner: "My boyfriend in the US, my husband in Canada".

"the latter is what it is, however the state, its representatives, or its citizens feel about it. If (a big "if," I grant) marriage should have INHERENT implications that are inimical to the state's understanding of civil rights, or that fail to make its benefits available to the whole spectrum of adult citizens, that's the state's and the affected citizens' problem."

I agree! Now, we have a class of citizens who want to be married in the eyes of the state. To say "that won't be so" is to say "this definition is more legitimate than yours". To do that, you have to back it up. And simply pointing to an argument from antiquity, while that points to how the word has been used, it does not address whether the state may recognize it in that way, any more than saying "well, the Catholic church doesn't recognize your marriage" does. The Constitution draws a line between the church and the state, and says that all citizens should be treated equally.

On the same subject, I concede that marriage has been around longer than the Catholic church; I was merely pointing out that the things we today accept as part of the "definition" of marriage have not at all always been there, so while some elements have arguably been, the instability of the definition means that we have to actually break it down and understand what it shall be defined by the state as (again, the religious aspect of marriage was inherent to it for all of its history up until the US drew a line between church and state…but the religious aspect is not now considered "inherent")

You say "Not sure we're on the same page w/r/t marriage and "the ends of the state." ", so please state your opinion of them, and how the gendered aspect is required to meet those ends.
Grifter • Oct 17, 2012 @11:18 am

A further thing to bear in mind is that for various periods and places in history (including now, in some countries) being gay was a capital offense, and there was no inherent right acknowledge to be gay; in an atmosphere where being gay is a crime, of course it would be illegal to be gay married.
James Pollock • Oct 20, 2012 @1:39 pm

"A person could easily argue that "consenting adults" wasn't a necessary limiter for marriage for the vast majority of human history; we would say such a person was obviously wrong."
Why would we say that, exactly? Arranged marriages have existed for the vast majority of human history.

"there is nothing limiting the state from setting an arbitrary number of people allowed to enter any individual contract."
Except that they're specifically denied the power to limit the obligation of contract in Article 1, section 10.

"I would say that the argument you've presented thus far is a foolish one, which begs the question if taken on its own because it presumes a full acceptance of a definition as premise without taking into account the possible legitimacy of another definition."
This is, in a nutshell, the criticism of your own position. Instead of arguing why the definition of "marriage" should be expanded, you presume that it already has, and anybody who clings to the historical meaning of the word is irrational or bigoted.

P.S. equating gender discrimination with racial discrimination in Constitutional law is not accurate. Racial discrimination receives "strict scrutiny", while gender discrimination receives "intermediate scrutiny" (and sexual orientation discrimination receives only "rational basis" scrutiny). No, no list of cases. Feel free to consult the Wikipedia page for "Intermediate scrutiny" and/or "strict scrutiny for a list of suggestions.
James Pollock • Oct 20, 2012 @1:54 pm

"Now, we have a class of citizens who want to be married in the eyes of the state. To say "that won't be so" is to say "this definition is more legitimate than yours". To do that, you have to back it up."

Some states have two different forms of marriage, one simply called "marriage" and the other called "covenant marriage" (as I understand it, the chief difference lies in how hard it is to obtain divorce.) If two people in a covenant marriage decide that they'd rather have a plain, vanilla marriage, is the state required to honor their wish?
Grifter • Oct 20, 2012 @10:46 pm

@James Pollock:

Just to clarify, are you taking the position that one does not have to be consenting and an adult in the eyes of the law (with narrow age exemptions) to be married?

The contract clause relates to modifying existing contracts, not disallowing contracts of a type in the first place.

As regards to my supposed "begging the question", I am not assuming an expansion per se, but rather requiring a coherent justification for the definition used and any discriminatory aspect of it.

To quote Wikipedia on the subject of discrimination:

In Mississippi University for Women v. Hogan in 1982, the United States Supreme Court ruled that the burden is on the proponent of the discrimination to establish an "exceedingly persuasive justification" for sex-based classification to be valid.[5] As such, the Court applied intermediate scrutiny in a way that is closer to strict scrutiny[6] and in recent decisions the Court has preferred the term "exacting scrutiny" when referring to the intermediate level of Equal Protection analysis. For example the Court applied similar exacting intermediate scrutiny when ruling on sex-based classifications in the education environment in both J.E.B. v. Alabama and United States v. Virginia.

I do not believe "that's how we've done it" is an "exceedingly persuasive justification" considering every court case comes about because that's how they've done it.
Grifter • Oct 20, 2012 @10:54 pm

As regards to covenant marriage: States with them, to my knowledge, allow an "upgrade" if both partners consent from "regular" to covenant. By their nature, they do not allow a "downgrade", although if both parties really wanted to, they could go to a no-covenant state, obtain their divorce, and remarry under non covenant terms. But a covenant marriage was (ostensibly) entered into freely by both partners. I don't see how the very binding nature of those contracts correlates to preventing partners from entering in the first place.
Grifter • Oct 20, 2012 @10:58 pm

Oh, and for the record, to my knowledge that difficulty of divorce is the ONLY difference between "regular" and covenant marriage. (I think the concept is stupid, but I see no strong civil rights reason to prevent its existence)
James Pollock • Oct 22, 2012 @3:19 am

"Just to clarify, are you taking the position that one does not have to be consenting and an adult in the eyes of the law (with narrow age exemptions) to be married?"

Depends on where you happen to be standing, I suppose, which makes a great deal of difference as to what the "eyes of the law" will countenance. I believe that there are still quite a few places where arranged marriages exist; (no, I'm not going to do a multinational survey for them. Make of that what you will.) In any case, this is irrelevant to your claim, as arranged marriages have definitely existed "for most of history", and arranged marriages have often involved persons who were neither "consenting" nor "adult".

"I am not assuming an expansion per se, but rather requiring a coherent justification for the definition used and any discriminatory aspect of it."
The justification for the defintion of a word is "that's what people mean when they use this word". When you want to say "but the word should also mean something else", you have to justify the change; you don't get to require the people already using it to justify keeping a word meaning the same thing it always has. "Marriage" means "blah blah blah between two persons of opposite gender" in most states. Why should it mean something else? Make that case. (Suggested start: "Everybody should have the right to legally marry a person of the same gender because…"

"for the record, to my knowledge that difficulty of divorce is the ONLY difference between "regular" and covenant marriage"
Nope. Covenant marriage is both harder to get into and harder to get out of. There's waiting periods and premarital counseling requirements. I don't know if a couple, already in a covenant marriage, may "drop" to an ordinary marriage (presumably in order to divorce for one of the reasons available to ordinary marriage but not to covenant marriage.)

"I don't see how the very binding nature of those contracts correlates to preventing partners from entering in the first place."
Me either. But it fully demonstrates that states may maintain more than one type of "marriage". (Perhaps we need a variety of offerings from the state, with appropriate forms available at the courthouse window.)

Let me lay a trap, which I will fully disclose to be a trap right up front. Should we invent a legal right to be married to the person you want to be married to (assuming they also want to be married to you, of course)?
Grifter • Oct 22, 2012 @7:13 am

@James Pollock:

Your argument that the state has created multiple different kinds of marriage seems confusing to me. Are you arguing that "therefore, the state could create a separate form of marriage just for gay people"? That would fail, since they haven't, and since, again, it would be treating gender differently for no reason. Covenant marriage is open to anyone who can be legally married.

Oh, and it's not more difficult to get into if you're already married. Then all you have to do is sign the affidavit, at least in some jurisdictions. And the "premarital counseling" only has to hit a few certain points, it doesn't have to be extensive.

As regards to your trap:

The Supremes said "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival….", but I do not believe anyone has a right to marriage, per se. But they do have a right to equal treatment under the law.

I want the government to not discriminate arbitrarily. That means they can either have no marriage recognition by the state (so no tax breaks, no hospital and medical decision rights, no property rights), or recognize gay, straight, and interrracial marriage.

If the argument is "marriage is inherently discriminatory", then that argument says to me "Marriage should not be recognized by the state".
James Pollock • Oct 22, 2012 @10:53 am

"Your argument that the state has created multiple different kinds of marriage seems confusing to me. Are you arguing that "therefore, the state could create a separate form of marriage just for gay people"? That would fail, since they haven't, and since, again, it would be treating gender differently for no reason. "

Really? I live in a state that created a special form of marriage just for same-sex couples, and it survived court challenges from both sides.
Then, there is the fact that A) it still isn't gender discrimination, as the law applies equally to both genders, and B) even if it was gender discrimination, the equal rights amendment failed. It is still Constitutional to treat the genders differently.

"Covenant marriage is open to anyone who can be legally married."
So is every other kind of marriage.
Grifter • Oct 22, 2012 @11:09 am

@James Pollock:

You are correct that "some" states have allowed same-sex marriage. I meant "the state" as a whole, but I understand how it was imprecise usage.

Of course:
"A) it still isn't gender discrimination, as the law applies equally to both genders"

Is a type of argument the Supreme Court has thrown out (again, the interracial marriage case…which we've already gone over)…and was specifically held that way in Hawaii's Baehr v. Miike. (They ultimately lost that case, as the state constitution was modified to expressly allow gender discrimination in marriage, but the argument was held to be sound)

and "B) even if it was gender discrimination, the equal rights amendment failed. It is still Constitutional to treat the genders differently" is not true. The Supreme court has said treating genders differently is only constitutional if there is "exceedingly persuasive justification", and "we've always discriminated" cannot possibly be taken, by reasonable people, to be an "exceedingly persuasive justification" to continue doing so.

So: What is your "exceedingly persuasive justification", James?
Grifter • Oct 22, 2012 @11:23 am

Perhaps you should read more about Perry v. Brown?

Your two arguments are increasingly being struck down by appellate courts; likely sometime in the very near future it will be going to the Supremes.

To quote wikipedia quoting the case in question:

"Judge Walker characterized the right at issue as "the right to marry", which, he wrote, "has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", citing Loving v. Virginia and Griswold v. Connecticut. He went on to say that "[r]ace and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage".

Before analyzing Proposition 8 under the applicable level of review (strict scrutiny for fundamental rights), Walker noted that California's domestic partnership laws do not satisfy California's obligation to provide gays and lesbians the right to marry for two reasons: (1) domestic partnerships do not provide the same social meaning as marriage; and (2) domestic partnerships were created "specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples."

Judge Walker then found Proposition 8 unconstitutional because it does not pass even a rational-basis review (as he explains in the Equal Protection context), much less strict scrutiny."
James Pollock • Oct 22, 2012 @8:32 pm

"Is a type of argument the Supreme Court has thrown out…the interracial marriage case…"
Go back and read it again. The state tried to justify it by pointing out that the punishment was the same for both members of forbidden marriage. The law, however, was not applied equally, only inter-racial marriages involving a white person were criminalized. The equivalent in same-gender marriages would be if straight people were allowed to have same-gender marriage but gay people were not. (or vice versa, although there'd probably be less complaint that way.)

"and was specifically held that way in Hawaii's Baehr v. Miike…They ultimately lost that case, as the state constitution was modified to expressly allow gender discrimination in marriage, but the argument was held to be sound"
Something's wrong with your analysis, because the state constitution can't overrule the federal one. Therefore, if the state constitution was the deciding factor, then the federal Constitution doesn't apply. As this is the opposite of the point you're trying to make, I can only assume you've made a mistake of some kind.

"What is your "exceedingly persuasive justification", James?"
For what? I advocated no change to law, therefore I have no burden of proof to meet.

"Perhaps you should read more about Perry v. Brown?
Why? That's a different kind of case. Perry v. Brown is about removing rights, not extending them. The rules for removing rights, once granted, are not at all the same as the rules for creating those rights in the first place.
Judge Walker and the 9th circuit have it correct, and I strongly suspect that the Supreme Court will deny cert. This is not a precedent that will create a right to same-sex marriage in the other 10 states of the 9th circuit, as you seem to think. It will prevent any state which has recognized same-sex marriages from attampting to stop doing so without a rational basis.
Perhaps YOU should learn more about Perry v. Brown. And stop relying on Wikipedia for legal research. Good news! The ninth circuit put not only the opinion, but all the briefs filed in the case online. There were a LOT of amici in this one, approaching the matter from many different directions.
Grifter • Oct 23, 2012 @7:35 am

@James Pollock:

I think, rather, that you should go back and read it again. The court pointed out it was applied unevenly, but also noted that didn't matter, and that it would have been unconstitutional even if it had been applied equally. The fact that it wasn't was just an icing on the cake.

The Hawaiian case was in State Court. I am not confused, you just couldn't be bothered to take three seconds to Google it. The Hawaiian case wasn't about the US constitution, but about their state constitution, which had an equal protection clause that was cribbed from the federal one. My point (since it seems to have sailed over your head) was that the court interpreted language that was substantially similar to the US constitution's language in a manner that was as I described.

What is your "exceedingly persuasive justification", James?"
"For what? I advocated no change to law, therefore I have no burden of proof to meet.

And you are wrong. Just as in Loving v. Virginia, where the state defended their law by attempting to provide justification for their discriminatory law, the fact that the discriminatory law is in place does not mean its existence doesn't have to be justified. If there is no justification for the discrimination whatsoever, then there is no defense. You've put yourself into the defense position.

Regarding Perry v. Brown, while the apellate court narrowed their finding, (which was under Perry v. Schwarzenegger…I didn't think I had to quote every case name, particularly since what I quoted was from the original ruling. If it goes to the Supremes, it will be Hollingsworth v. Perry), and focused solely on the fact that rights were removed that had been granted, they didn't disagree with the original findings of the original court; they simply ignored them. The Supremes may just deny ceriorari, of course, particularly since the original plaintiffs themselves asked them to, but I think there's a decent chance they'll hear it along with Gill.
James Pollock • Oct 23, 2012 @8:06 am

"My point (since it seems to have sailed over your head) was that the court interpreted language that was substantially similar to the US constitution's language in a manner that was as I described."

My point (since it seems to have sailed over your head) is that they DECCLINED to read the language of the U.S. Constitution in a manner that was as you described, or the wording of the state constitution wouldn't have mattered. The fact that they addressed the state constitution AT ALL indicates that the federal Constitution does not resolve the issue.

"Regarding Perry v. Brown, while the apellate court narrowed their finding, (which was under Perry v. Schwarzenegger…I didn't think I had to quote every case name, particularly since what I quoted was from the original ruling. If it goes to the Supremes, it will be Hollingsworth v. Perry), "
WTF does the name of the case have to do with anything? A: Nothing.
In addition to learning how to do legal research, you apparently also need to learn how the appeals court process works, or you REALLY need to clean up sloppy language on the subject.
#1: OF COURSE an appeal is narrower than the case it's drawn from. This is how appeals work.
#2: OF COURSE the appeals court didn't touch Judge Walker's findings of fact. They aren't allowed to.

But that's you chasing a tangent again, so never mind.
Perry v. Brown is a fundamentally different case from one where a state that doesn't offer same-gender marriage is forced to begin offering them. Perry is a case where the state previously had allowed same-gender marriage, and an attempt was made to remove that right. Perry isn't about whether a right to same-sex marriage exists; it's about whether such a right, once it exists, can be taken away. (Note: Neither side maintains that a right to a same-gender marriage is rooted in the federal Constitution. Rather, the question before the court was whether or not a right not to have one's rights removed exists. It does, which is why the Supreme Court won't touch this case. If they agree that gay marriage should exist, they need do nothing, and if they don't, then this isn't the case to overturn it.)
Of course, Perry, interpreted correctly, is a PR problem for gay rights activists, since it suggests that legalization of same-gender marriage is a one-way street… once done, it cannot be undone. This may hamper efforts to win public support from people who are still undecided.)
Marriage parity will come, as the dire predictions of the opposition fail to come true and it turns out to be no big deal to the vast majority of people. However, acceptance by the public, the real goal, remains a case-by-case struggle.
Grifter • Oct 23, 2012 @1:17 pm

@James Pollock:

The case was brought on Hawaii-constitution grounds, so what they "DECCLINED" to do was overreach into a subject not brought up by the moving party.

As regards California:

I noted the case name change, since you seemed to have completely ignored the original case, which did address my points, in detail, when finding for the plaintiffs. Which was why I quoted Walker, the judge in the initial case; your response spoke only of the appellate court's ruling. Furthermore, you keep trying to be the arbiter of what cases are "about"; it doesn't work when the case itself clearly contradicts you. Just as your statements about Loving v. Virginia have been inaccurate, it is inaccurate of you to claim or imply that this case was solely about taking away rights that had been given.

For the record, those rights had been "given" because the Supreme Court of the state said that preventing gay marriage was against the state's constitution; this wasn't a legislative move in the way you seem to be implying. In response, the electorate voted for Prop 8, to explicitly bar same-sex marriage (and return to the status quo). And they are losing.

The relevant clause in their constitution was: "(a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws;"

Vastly different from our own due process clause, I know. (Though it then goes on at length about schools, and near the bottom is the anti-gay-marriage amendment).

The California Supreme Court disagreed with your assessment that it isn't discrimination, and disagreed that it was allowed by the constitution. Again, they were discussing only the state constitution at the time, so the bigots (and, again, all this legal talk hasn't obfuscated the fact that you haven't come up with a legitimate argument against having the state recognize same-sex marriage except for "I define it to exclude that") got a state constitutional amendment passed.

The notion that it's a "PR problem" to treat people equally under the law is so ridiculous on its face that I hesitate to even contradict it, since you must be trolling. Was it a PR problem that once miscegenation laws went away, they couldn't be brought back? But then, I guess you're the only one who can "interpret [it] correctly".
James Pollock • Oct 23, 2012 @2:58 pm

"Furthermore, you keep trying to be the arbiter of what cases are "about"; it doesn't work when the case itself clearly contradicts you. "
The case is about whether or not the people of California may, by initiative, remove a right previously granted, and if so, under what circumstances. Find something with legal authority that contradicts that, and we'll talk.

"For the record, those rights had been "given" because the Supreme Court of the state said that preventing gay marriage was against the state's constitution; this wasn't a legislative move in the way you seem to be implying."
Your inferral is entirely flawed, in the sense that A) I've never suggested or implied that California's law on this matter was achieved legislatively (although other states will have to) and B) I actually referred to it as a case of the state being forced to recognize gay marriage.
Once again… Perry is about preserving the right once it's been extended, and it is not about extending the right in the first place. When the dust settles, Perry will have re-established the rights of Californians to enter same-sex marriages, and it will have no effects on the other 10 states in the ninth circuit. If, as I guess, the USSC declines to take cert. in the case, it will also have no controlling legal authority in the other 39 states (although it is persuasive).

"The California Supreme Court disagreed with your assessment that it isn't discrimination."
Mind providing a legal citation to where the California Supreme Court (or any other) labels same-sex marriage a matter of gender discrimination?

"I guess you're the only one who can "interpret [it] correctly"."
Now that you've admitted that, perhaps you'll stop trying to drag in inapplicable comparisons to Loving. But I doubt it.
Grifter • Oct 23, 2012 @4:56 pm

@James Pollock:

I had a very long post with multiple citations. (The courts have rejected your argument, but they have also affirmed it…but the Supremes haven't touched it since the 70s).

But such wallsotext just encourage a lack of reading, and aren't the point anyway. My original point was that there was no reason to oppose same-sex marriage that didn't fall into one of the categories I listed; whether the courts recognize it or not is, frankly, immaterial. The courts have protected a right to douchery before.

The "it's not gender discrimination" argument is identical in kind to the "it's not racial discrimination" argument, and your only argument against that is "well, gender is different in the eyes of the law", which is a cop-out that doesn't actually address any meritorious difference to this argument.

To say "that's not what marriage has meant historically" is to ignore the fact that "historically", being gay was criminal, even in this country.
James Pollock • Oct 29, 2012 @12:10 am

"The "it's not gender discrimination" argument is identical in kind to the "it's not racial discrimination" argument"
No, it's not.
Compare "the law forbids both rich and poor men from sleeping under the bridge". This is a law of unequal impact which nevertheless can be enforced fairly… by rousting whoever you find under the bridge, every time. Not all laws are fair, and the Constitution does not require them to be so; it requires them to be administered fairly.

Next, two different versions of anti-miscegenation statutes:
#1: No person may marry a person who is of a different race.
#2: No white person may marry a person who is of a different race.
Can you see the difference between these two? One embodies clear and obvious racial discrimination (and would have to pass strict scrutiny); the other does not (and would have to pass rational basis scrutiny). Note: I am not maintaining that it would. However, until fairly recently, if strict scrutiny was applied by the Supreme Court, the suspect statute was ALWAYS stricken. If rational basis scrutiny was applied, the statute was NEVER stricken. Not because it had to be that way; that's just the way it always worked out.
The notion that different kinds of discrimination are treated differently by the law might lead to a different legal analysis depending on what kind of discrimination is under discussion seems like a fairly non-controversial concept, to me anyway. Not sure why it bothers you. Fact: under the federal constitution, you are free to discriminate freely against gay persons, left-handed persons, redheads, or anything else except for a fairly small listing of categories. Federal statutes and state laws extend the protected categories in various ways, but most discrimination remains quite legal, and rightly so. (For example, I strongly prefer that airlines use "ability to operate a passenger jet" in their hiring decisions, and discriminate blatantly against the blind, the epileptic, and the stupid. Federal law actually REQUIRES them to discriminate against the drug-users.)

"To say "that's not what marriage has meant historically" is to ignore the fact that "historically", being gay was criminal, even in this country."
That's a non-sequitur.
Or, I guess, to say "that's not what marriage has meant historically" also ignores the fact that "historically" AND "presently", being a bigamist is criminal, even in this country.
There's still the fact that you don't have to be gay to enter a same-sex marriage (in those places where it has become legal for anyone to enter a same-sex marriage, of course).
Whether or not words take on new meanings based on what used to be illegal seems a rather dubious line of argument. Can we now define "witch" as "any unmarried woman over the age of 50"? After all, to point out that this is not at all what the word "witch" has historically meant completely ignores the fact that historically, witchcraft was illegal… even in this country.
Grifter • Oct 30, 2012 @10:56 am

@James Pollock:

The argument about racial discrimination was: "Hey, it's not racist, because all the races are prohibited from intermarrying", and while, as you noted, the law was not actually enforced evenly, the courts and most people reject that logic even if it is enforced evenly. The courts, for example, expressly rejected your #1. As I have said already. And most people today would also reject #1 today. So the fact that #1 and #2 are different (yup, I already noted this), has no bearing on the discussion at hand.

But let's go down that road, since you brought it up and I'll give you the benefit of the doubt that you aren't being disingenuous: would #1 be constitutional or just in your mind? Because I think you'd be pretty much alone in that.

So, again, the arguments are identical in kind. Your bridge analogy fails completely; to draw it out to its analogies, I suppose the "rich person" is one gender, the "poor person" another, and the "bridge" is a person of X gender… which would mean that one person would be allowed to sleep under it, but not the other.

As regards to bigamy: historically illegal? Wow. You'll have to let the sultans, the Mormons, the people expressly mentioned in the bible know that, then. That, or you are flatly wrong. I wonder which it is?

And your witch analogy is stupid, and insulting. Could we redefine it to mean that? Perhaps. But is the "magic" element of witch necessary to it? I would generally argue "yes", that "witch" inherently requires "magic", or at least some sort of religious affiliation, with a connotative link to "magic", in much the same way that "priest" has some specific requirements.

Or are you claiming that witch normally requires "satanism" too, despite the fact that's not its origin? (Why, that might mean we don't all agree on the specific definiton! Uh, oh!)

Do witches (an inherently religious thing, much like priests) get state benefits denied to those who are witches in every way except magic?

Let's look at "priest" instead of "witch". I could start calling myself a priest tomorrow, and it would be perfectly legal to do so; the state could not prevent me. I couldn't call myself, for example, a Catholic priest. But I could be priest of Secularism. My soon to be wife could call herself a priest, despite the fact that for nearly 2000 years priests could "only" be male; again, the state would not prevent it. Yet, if Mrs. Grifter and I were of the same gender, we would not be able to get married in a few days; the state steps in and says "not valid".

Banning gay marriage is gender discrimination.

It is also (for the record, since I don't think I mentioned it) a form of religious discrimination, in that it is the state refusing to recognize something that some religions want to recognize; it legitimizes one religion's interpretation of marriage over another's.

Again, give some kind of reason why marriage must be between separate genders. You can't, I don't believe, which is why we come back to my original point.

People were ignorant. Look up the origins of "hysteria" some time. To ignore the ignorance of the past and try to point to the past as authoritative is a fool's game. Slavery was justified once upon a time by people.

And, for the record again, there were forms of same-sex unions in ancient times:

(Not posting a link to avoid being moderated, but this is from Wikipedia's "history of same sex unions" page)

To the point where

"A law in the Theodosian Code (C. Th. 9.7.3) was issued in 342 AD by the Christian emperors Constantius II and Constans, which prohibited same-sex marriage in ancient Rome and ordered that those who were so married were to be executed."

Again, not ever as common as bigenderal marriage, but then, homosexuality isn't as prevalent as heterosexuality, and has traditionally been frowned upon by many (how likely would you be to fight for equality in a society where as soon as the state religion changes you could be put to death?)

I believe in a world of reason, where things are justified. I believe in a country that treats all of its citizens equally. So I want a justification for why marriage must be bigenderal. And you have yet to come up with one, nor has the state, nor have any of the proponents of so-called "traditional" marriage.

Trying to say "it's not discrimination" when it clearly is does nothing to further the discussion; and even if it is deemed constitutional, it still fails the test of whether it is just; my original point was that there are no legitimate arguments for banning same-sex marriage, and we have been sidetracked a few times on whether it withstands Constitutional scrutiny: That doesn't matter.

Romney himself thinks that whether same-sex partners get to visit their loved ones in the hospital is a "benefit", not a right, and something that's up to the states; he wouldn't dare say the same thing about opposite-sex partners, now, would he? Do you consider that idea "just"? Sorry, honey, you got hurt in Utah, I can't sit by your side as you die.
Grifter • Dec 9, 2012 @10:48 am

And, while I know this is an old and presumably close-to-closed post(it's like a 60 day window now, right?), I would like to round out the comments and point out that contrary to certain people's expectations, the USSC on Friday granted certiorari on both cases before it, though there are some standing issues that they are asking be addressed. It'll be an interesting next few months.

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