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PostPosted: Mon Aug 09, 2010 2:58 am 
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IJ wrote:
I have a friend who is madly in love with two others--and who knows, if this goes on for a few years, perhaps they would want to marry as a group. I don't see that as a threat to me, but it does require complicated inheritance, etc rules.


<sigh> The reason I say gay marriage is inevitable is because I think the "separate-but-equal-is-not-equal" argument has traction once we accept that homosexuals are A) normal and B) not a choice group. It is probably impossible, politically, to get the US Constitution amended to forbid gay marriage, but it is very possible, even probable I think, that the US Constitution would eventually be amended to forbid polygamy, if necessary. After all, there are laws against polygamy in all 50 states already.

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PostPosted: Mon Aug 09, 2010 5:13 am 
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Agreed--I don't think it's going to happen (sanctioned polygamy), at least anytime soon. It's viewed as coercive and often is... and whether or not marriage has always been a romantic bond between two people, that's the way everyone conceives of it. There is precious little in the way of polyamorous culture to change things or to provide a reason to change. Although I don't think it will take a Constitutional amendment.

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PostPosted: Mon Aug 09, 2010 6:31 pm 
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IJ wrote:
On the other hand, Mormon polygamy seemed (and fundamentalist current practice seems to be) a terrible, forced, often pedophilic arrangement. People might well "consent" under terrible pressure, after indoctrination and rigid conditioning to a sheltered extremist lifestyle. For those unlucky enough to be born into it, "religious freedom" isn't exactly the word.


Actually, Mormon polygamy was originally to keep them alive... It was initiated as a practice because many Mormon men were being murdered and that was leaving a lot of widows with children around. The practice was started so that other men could take those widows as wives. Remember that at that time in history men owned property and women did not... also men were obligated to provide for their families. Initially, this allowed these widows to retain (through their new husband) the property and also meant that the new husband was agreeing to take on the obligations of support for her and her children. The most common polygamous marriage at the time happened when a man was killed and his wife was taken in and married by his brother or father or similar who already had a wife and children. At that time and in that manner, it really wasn't about "multiple sex partners" as it has been perverted into under current practices. The Mormon Church (Church of Jesus Christ of Latter Day Saints) abolished the practice in the late 1800s for a number of reasons... Certainly one was National public sentiment, but they were in the process of doing away with the practice before it became a National issue/scandal. They were stopping the practice because it had mainly become unnecessary by that point... (No, I'm not Mormon... never have been...)

Quote:
Age of consent works the same way too. *I* was certainly ready to consent before the law thought I was; I've declined offers from others who were well beyond legal but I felt not ready at all (this was a while ago, people).... the practice varies widely, but I guess that's state's rights and the freedom of communities to decide how their culture works. I think there should be some "out" for mature younger people... maybe "consent" even if legal at 16 to a 40 year old is actually just coercion and rape-light (I'd say so) but if a minor had the ability to make a plea to a court for early emancipation to chose a partner they felt was appropriate... again not sure what the best system is. You would just eliminate age of consent?


That's not the way it works either really... For example, In Massachusetts if one person is 16 and the other is older (16+ ... all the way up to "one leg in the grave") there is NO crime. The younger person has reached the arbitrary "age of consent". Take the same exact situation and make the younger person 16 MINUS one day and it is a crime because they are not deemed to be of the age of consent. While most times when this case comprises a young couple where one is just under 16 and the other is fairly close in age (say 16+ upto nearly 18 or so), it isn't prosecuted. At least extremely rarely in Massachusetts. However, prosecutions have occurred in such instances (usually when the younger person is female and the daughter of "connected" parents making a stink) in Massachusetts and have been reported on a number of occasions in other States. My problem is simply that I don't think that 16 or 14 or 18 or any arbitrary number for age "magically" makes someone able to consent or not consent from a standpoint of having some "magical" knowledge about the repercussions of their consent. Same goes for contract law. What makes an 18 year old (in Massachusetts) suddenly "old enough" to enter into a contract, but if they happen to be 17 years, 360 days old they can't be legally held to a contract. Doesn't make sense to me.

Quote:
What to do with the "now I think I was molested" "she's just angry it didn't work out" disputes?


Why is that any different than the same things being said by people who are in their 20s, 30s, and up? And why should it be treated any differently? Either an assault occurred or it didn't. I'm against assaults and/or coercion regardless of the age.

Part of this has come about because of our "modern" society. In previous times (say 150 or so years ago), there were (young) men & women who struck out on their own at an age when today they would still be in elementary school! Or at least "middle" school. Those (young) men and women got married, fended for themselves, made family decisions, had children of their own, worked (or worked the land), and lived their lives. Some learned quickly while others did get taken advantage of... at least for awhile. I know people who were out on their own (even in today's "modern society") by their early teenage years and had a very hard time because their mental maturity was far greater than their physical age maturity... and wasn't recognized by the State. I've heard from more than one that they felt abandoned by the State because if they even tried to obtain legal permission to "be an adult" they feared the State would confine them into some foster care system or something similar. In all my years (over 1/2 a century) I only know of one case where someone under 16 actually got themselves deemed "an adult" and tried to live that way openly on their own. He had to jump through tremendous hoops and go through a number of mediaries to get that court paper and even then "society" did not treat him like he was "old enough". The others mainly lied about their age as much as possible to get by. (Nice lesson... :roll: )

I can COMPLETELY understand the position of most parents in wanting to protect their children. I'm a parent myself... and they go from 30 down to 3... but I also know that some are more mature at various ages than others. In my case... and I can say this because they don't read this forum... at least I hope they don't... :wink: I have one who's mid-20s that is a LOT less mature - even tho I would get major disagreement on that opinion - than one who's just now passed 20! Case in point, the older one refuses to listen to anything that contradicts their preconceived opinion and the younger one is in the process of buying a house... which we just provided some well-deserved and needed additional down-payment funds to help with. The younger one has made different life choices and is much farther ahead in life because of it. Before anyone thinks the younger one is getting any preferential treatment, we've been very careful to make certain they've all been given the same support, encouragement, access to funds, actual funds, etc. To wit, the older one is now on the 4th expensive vehicle (we're talking BMW, Benz type vehicles that are WAY nicer than anything my wife or I drive)... previous ones have all been wreaked or destroyed somehow... and part of the "issue" now is that funding has been totally stopped... wreak/destroy it, deal with it! We're not paying anymore...

Sorry for the long and rambling story...


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PostPosted: Mon Aug 09, 2010 6:37 pm 
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IJ

Love how you can focus on my.......what was it... "rambling" etc yet can't seem to address any key issues on your part save personal assertions and attacks.
And its always telling when someone stoops to invictive and ad hominem attacks....its a sure sign that they don't have anything substantive to offer. :oops:

And "incoherent".....never.

I have asked you to present specific ways in which DP/CU fall short......and you have failed to do so.
Oh, you do the whole "argument by link" thing your so fond of........and of course you claim that they are detailed in the ruling.
But it begs the question, why, if its as you claim "well addressed" are you are so loath to present them? ;)

And why the need to ask me to "google" them for you?
Being such a good speller and proofreader and all I kinda expected you know that the burden of proof was always on the person making the claim.
So why ask me to do your research for you? :oops:

I also enjoy the way you dodged any question of a legally protected group making demands for equality.
Bit hard to demand "equality" while receiving special protections. Or it would be if you were being intellectually honest.

Oh, BTW "jenius" ;) I used the term "hassle" because its the term you used. A weak term that implies a non-serious problem. I would have used a more exact term that reflects the seriousness of the issue, but you did spell it correctly so I guess that makes it ok. :roll:

Since you have now used the term "substantially burden" please tell me there IJ exactly what do you mean by that?

I also presented direct quotes from a now SCOTUS judge--whose on the record opinion is that no such right is extent in the Constitution. Which is 180 degree from the lower court's opinion.

And again, the stuggle for black civil rights and the stuggle to be able to call yourself "married" is not the same thing. I know it feels good to wrap yourself in the verbage. But the cause lost serious support from the black community when they last did so.......so you might just want to go a bit easy on that one.

Oh, and again love how you treat people that are on your side. :roll:
It is no wonder that you can't win hearts and minds when you insult and belittle people that want marriage to be open to all.
People like you are pretty much why people are not free to marry as they would........but like many progressives you won't accept any personal responsibilty for your actions.

More the pity.

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HH


Last edited by cxt on Mon Aug 09, 2010 7:47 pm, edited 5 times in total.

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PostPosted: Mon Aug 09, 2010 7:16 pm 
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Oh... One thing I didn't address from before.

In the case of "The War on (some) Drugs"... I don't do them, but I also don't care if you do. Your choice. If you want to smoke some weed, I don't care. I'm not sticking around because it's illegal, but I'm not going to go off and cry to some "authority" about you either.

People should realize that prohibition didn't work for alcohol (way back when everyone knew that taking such action required a Constitutional Amendment rather than Congressional whim) and it won't work for other arbitrarily disliked drugs (which have been prohibited by that un-Constitutional stroke of a legislative pen). The State(s) (in cahoots with the major Pharma lobbies) are the biggest "drug pushers" around! You just need a slip of paper from the right person to get them.

The truth is that since 1965 this country has arrested over 20 MILLION people for simple possession of pot (over 700,000 in one year alone). We're not talking pushers and dealers, we're talking the kid who gets caught taking a puff or the old lady using it to help her get over the pain from her cancer... Non-violent offenders which cost the rest of us Tens of Billions of dollars to hunt down, catch and incarcerate. It's currently estimated that over 80 MILLION Americans have or do smoke pot...

The argument that it is a "gateway drug" is BS. Both tobacco and alcohol are more addictive.

Every year alcohol kills ~50,000 people, tobacco kills around 8 TIMES that many each year... Pot? There has never been anyone who died from pot. It just isn't toxic enough, so it doesn't kill.

In the case of "harder" drugs... Don't harm anyone else and I don't care what you do. And don't ask for me to pay to get you "clean"... I've helped people get off drugs privately without using other people's money obtained by force to do it. I would more than likely voluntarily donate to an organization that did such things, but I am adamantly opposed to having my (or anyone else's) hard-earned funds taken under the threat of a gun in order to get someone "clean" who's made bad life choices.

And I reiterate for those who missed it at the top... I don't do or condone drug use. I just don't see it as the big "tough issue" the way some other people see it. I've got much "tougher issues" on my mind and in my life...

:wink:


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PostPosted: Mon Aug 09, 2010 7:46 pm 
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Panther

As long as the what people do does not harm others.....sure. What a person chooses to do wit their body is their business..... or should be.

But I should not have to pay for medical treatment for someone elses addiction.

And choosing to use drugs/alcohol should not get you a lesser sentence should someone using drugs/alcohol injures someone.

IMO.

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PostPosted: Mon Aug 09, 2010 7:46 pm 
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Panther wrote:
You just need a slip of paper from the right person to get them.


The only experience I have with narcotics is post-surgical, and I have never even finished a bottle of vicodin or the like. I don't like being under the influence of a central nervous system depressant (not over-fond of caffeine, either, actually), and if you're not having a good time, what's the point? However, I do feel that the war on drugs has been a terrible waste of resources, destructive, too. Some drugs are very harmful, so why not develop safer, better recreational drugs, then regulate and sell them legally? For that matter, I've read that ecstasy is probably about as safe as any drug at an appropriate dosage level. I don't think it is addictive in the same sense as narcotics are addictive, and here is a drug that, in addition to euphoria, tends to make people feel less anxious or depressed and more intimate towards one another. Sounds evil, right? It is so evil, in fact, that it cannot even be prescribed. But would sir like a narcotic instead?

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PostPosted: Tue Aug 10, 2010 4:01 pm 
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Interesting comment on the mormon polygamy. Having read two longish books on them, and having sat through a 4 hour documentary on them, and reading their response to "Under the Banner of Heaven," and comments from the leaders about the practice, I don't recall survival ever coming up. Nor is there really a reason for marrying people who lost their husbands. Or might lose them. They could simply raise the communities kids communally. Hardly explains why the prophet needed 50 wives, not frequently widowed ones as I understand it, why many of them were teens without kids, why the practice was basically a shock to the mormon rank and file, why it only took off with the rich elite of the group because of the cost, or why they ended up expelling young men from the communities to avoid competition. In fact, if you've married a dozen women and made 3 dozen babies, you've actually hugely multiplied the problem of their care when you get killed. Now instead of 1 widow 3 kids you have 12 times the problem. What WOULD help of course is women with multiple husbands so they have a spare. We never saw THAT happen, and in fact the women had to be coerced or ordered to deal with the situation most of the time, starting with Smith's first wife. Timing wise, the practice really only took off after the move to Salt Lake, at which time the Mormons were doing more of the killing than being killed because they might pick off traveling groups (the meadow massacre) but weren't inflaming neighbors anymore. As for the end of the practice, they were under tremendous pressure and had no choice, although the final ruling from the elders was not strongly worded and not made out to be a revelation, hence, many committed mormons took it to be a forced and false statement and an inducement to continue practicing. Again, in the books and documentaries, no evidence this practice was ending before pressure was applied was mentioned.

I would be keenly interested in any other data which sheds light on the practice. Fascinating phenomenon (mormonism).

I agree with the arbitrary nature of age of consent laws, but, the alternative is some kind of eligibility testing for judgment. How is a state to do that? Maybe for contracts and driving for tweeners, but sex? Maybe parental approval? They're not exactly unbiased. If the rules are eliminated would we have 12 year olds pressured into sex and 15 year olds signing business contracts? My partner believes you should have to see child psychiatry until you're 25--that may be pushing it, but not sure what the answer is. The reason why it's different with 12 and 50 instead of 25 and 30 is that the first is more often a predatory relationship AND those kids REALLY do not have the cognition / judgment to consent. Their brains are NOT ready. Picking an age of consent higher at least increases the odds someone will be ready and decreases the odds that an assault victim is squished into compliance by the attacker. Afterall, kids that age will often believe they had to do what the adult said. Dad can easily take advantage of a kid, but try it when junior is 25, for example.

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PostPosted: Tue Aug 10, 2010 4:28 pm 
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"its a sure sign that they don't have anything substantive to offer. Embarassed."

--Nope. To the extent you raised issues, they were clearly addressed. E.g.:

"I have asked you to present specific ways in which DP/CU fall short......and you have failed to do so."

--Factual mistake. These were clearly presented several times. Why links? Because I justify my opinions, instead of just blurting something out. Don't blame me if you can't google, or even read a 2 page link provided. Fail a class and blame the teacher for giving you textbooks? Fail indeed. And you KNOW I didn't just tell you to do your research--I pointed out your unwillingness to educate yourself on the matters you ramble about, BUT I also did your work for you with TWO links. I won't cut and paste anymore than I'm tying your shoes for you.

"Bit hard to demand "equality" while receiving special protections. Or it would be if you were being intellectually honest."

Oh please. Read the ruling. Know what you're talking about. Pay 1% attention to my request at the first post. The right to marry the consenting adult of your choice is NOT a special protection, it IS equal. Passing a law attacking only a few percent of the population for no legitimate reason IS SPECIAL, but it's a special assault, not and special right.

"Since you have now used the term "substantially burden" please tell me there IJ exactly what do you mean by that?"

Again? Still? You don't get it? STOP babbling and go read the decision and the conveniently provided link OR look it up yourself and stop blaming others for not spoon feeding you.

"I also presented direct quotes from a now SCOTUS judge--whose on the record opinion is that no such right is extent in the Constitution."

Yes, you did, and I responded.

"And again , the stuggle for black civil rights and the stuggle to be able to call yourself "married" is not the same thing. I know it feels good to wrap yourself in the verbage. But the cause lost serious support from the black community when they last did so.......so you might just want to go a bit easy on that one."

Opinion noted. We disagree. Besides, you have again missed the point, this isn't JUST about the ability to say one is married, it is about a large number of real differences between a DP and a marriage which DO impact our families, if you would only bother to know. There IS a clear analogy between the rules against interracial marriage and the rules against gay marriage including a majority pushing a law without legitimate state purpose on a less powerful minority which resorted to the courts for protection. There are differences; an analogy is not an equality. But there is clearly an analogy.

"People like you are pretty much why people are not free to marry as they would........but like many progressives you won't accept any personal responsibilty for your actions."

Listen--you're the most "argue for no real reason" discussion disrupter on the forum. You even claim you agree, and you're arguing about whether I should spoon feed you DP-marriage differences when the material is right at your fingertips. I'm short with you for exactly that reason. I have had lengthy and polite discussions with people who think I'm going to hell for my sins and similar discussions with people who state their opinion that the Framers' didn't intend for same sex marriage and the courts are overreaching the boundaries of their power. I asked for a meaningful discussion with other people informed about the issue, and I get your posts instead (rather, in addition--thanks, others!). Then you turn THAT around and only see it being my fault for not welcoming your BS. More the pity, indeed.

Your next post, however provocative you make it, will get a reply from me ONLY if you stop nitpicking about whether links constitute presenting information etc, make yourself informed of the issues and not just blindly opinionated, and construct a post that displays a basic level of organization and proofreading (NB: the red underlined words may be misspelled). Otherwise: goodbye :)

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PostPosted: Tue Aug 10, 2010 5:09 pm 
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IJ

Sorry IJ......but if you presented them as requested then please post exactly what it was.
All you did was make nebulous comments to the case and asked me to "google."
Maybe I missed them in between your bellyaching invictive about my spelling. (actually poor typing ;) )
If so, then please post specific's and we can discuss it/them.

Unless of course you went and re-edited after I posted. ;)

"The ruling" has nothing to do with the point I made about the intellectual challanges with a protected class making demands for equality.....you seem to be confusing the 2 different points.....and given your clear intellect I can only assume that your doing so:

A-On purpose

B-Your not really reading what I posted

And if you don't think the man in the street isn't very aware of the advantages (in general) of being in a protected class.......well I don't know how I can help you.

I asked YOU to define "substantially burden" and you ask me to "read the decision." Again, quoting you.
So why can't you/why are you unable to simply offer a defination/examples yourself?
I mean you either have them or you don't.
Either way please quit asking me to do your research and posting for you.

That the black community, in general, is not happy with their stuggle for civil rights being co-opted for "marriage" issues is not a "opinion." Its fact. We can discuss just how much or how far reaching such a feeling might be.

And no.....I don't agree that interracial marriage has much in the way of workable analogy........there was one with the specific issues raised in this case..
I know it was a main point of the argument raised by the guy that won the case.
But overall/in general, outside of it...... not so much.
The more so that even the interracial example presumes different genders.

I don't "claim" I agree, I do agree. Marriage should be a basic right.......gender or sexual preference should play no role.

Dude "I'm" the most argue for no real poster", funny, that is pretty much as I see you. You can't even tolerate even minor disagreement from someone that agrees with you on this issue.......you, for some unfathomable reason, see the need to insult and belittle me even when I agree with you, but differ on how things might best be presented for best effect.

I still think that if you had listened to me prior to the Prop 8 thing it might well have gone the way we wanted.

And again, if you really care about the issue then look at how you treat/interact with someone on your side.
If your willing to be so nasty to me---whom agrees with you........then how in god's (small "g") name do you treat/interact those who don't?
How do you treat people that have not already made up their minds?
How do you try and sway those whom might very well be convienced to see marriage as a basic right?

The smug, superior, arrogant, smarter than everybody else, I'm going to talk down to you little people, Lefty attitude, not only grates, it turns people off. Esp the independent voter whom has become a crucial factor.

Like I said prior IJ, drive by postings don't really do much for me.
If you have something to say---then say it and stick around and defend it.
If not, then the whole "I'm going to give you a shot in the mouth (rhetorically speaking) then run away and hide before you can respond" does not do much for me.

Also speaks volumes about you. :(

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Last edited by cxt on Tue Aug 10, 2010 6:43 pm, edited 4 times in total.

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PostPosted: Tue Aug 10, 2010 6:27 pm 
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IJ wrote:
What WOULD help of course is women with multiple husbands so they have a spare. We never saw THAT happen, and in fact the women had to be coerced or ordered to deal with the situation most of the time, starting with Smith's first wife.


Not with Mormons, I presume, but polyandry does exist in the world. Of course the elephant in the room with all heterosexual polygamy involving an unbalanced sex ratio is that the natural human sex ratio is approximately balanced. Homosexuals need not worry about such things, of course, but I think it might be impolitic to call attention to this point whilst arguing that homosexual marriage should be the same as heterosexual marriage.

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PostPosted: Tue Aug 10, 2010 6:54 pm 
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mhosea

Another "elephant in the room" is that of the perception of growing the influence Shiria law.

5 years ago the notion that somebody would use gay marriage legislation to demand the right to "marry" a multiple women was largely laughable.
Sure people said it....but few rational people took them seriously.

Not so much anymore........Canada and GB do not allow multiple wives.......but if you already have them when you immigrate then "exceptions" can be made for social services etc.

I'm no longer sure that marriage can be presumed as a basic human right and still keep from including people and cultures that feel multiple wives are "normal."

Sooner or later that is going to become an issue.......one people need to be ready to address.
If folks wait until they need it then it likley will be too late.

Mark Steyn once quiped that if the Islam ever came to power in the West, he would, as social conservative be more readly able to adapt or... "pick up a couple of extra wives and keep his head down."
His main concern was what such a State would do those of the leftist/progressive outlook.

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PostPosted: Tue Aug 10, 2010 9:41 pm 
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"Not with Mormons, I presume, but polyandry does exist in the world. Of course the elephant in the room with all heterosexual polygamy involving an unbalanced sex ratio is that the natural human sex ratio is approximately balanced. Homosexuals need not worry about such things, of course, but I think it might be impolitic to call attention to this point whilst arguing that homosexual marriage should be the same as heterosexual marriage."

It does seem that a guy with 20 wives or a woman with 20 husbands is not going to make for a stable homogenous culture. You have to either drive out the boys or some up with something else, like killing female fetuses in China, although that's not about unbalanced marriage. However, I don't think the ~1:1 ratio of men and women means that people can't have more than one partner. I just finished reading "Sex at Dawn," which is an account of prehistoric cultures and related apes approach to mating. Suffice to say that our close relatives chimps and bonobos have similarities to us (foraging bands; minimal sex dimorphism; oversized genitals) and practice promiscuous strategies using sex for bonding and stability not just reproduction. Gorillas compete for a harem, have huge sex dimorphism, tiny gonads and a one inch penis (they compete with muscles rather than at the level of "sperm competition). Only gibbons mate monogamously, and they generally save sex for reproduction and are distantly related.

There's also plenty of evidence that traditional cultures did (do) have promiscuous social patterns with communal raising of kids, often lacking the idea kids have one father, with assumptions that normal people have multiple partners. The authors believe that the introduction of agriculture, staying put, property, and so on created famines and disease outbreaks which led to stress never before seen in the foraging communities in our past, and mostly that before land and property, there wasn't much to fight about, as bands almost never ran into each other and there was no cause for conflict. Concern about parentage was minimal because all resources were pooled anyway. They conclude that the 1:1 marriage eternal concept is new to our species and that the universal presence of adultery and dissatisfaction across cultures is more evidence we're wired for some novelty and have an ability to share mates without jealousy. (Lest anyone get too excited about these wacko theories, the entire book is by and for and about heterosexuality).

With the recent spate of high profile adultery cases and examples of moral hypocrisy, perhaps we will someday remember that it doesn't reflect poorly on the love of your life that you want a little excitement now and then, and that a key to a healthy marriage may be an understanding about infidelity, rather than a rule about fidelity. I know we're down on the French but they seem to get it.

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PostPosted: Wed Aug 11, 2010 5:47 am 
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Prop. 8 waiting game: Three big issues hang over case
Lisa Keen - Keen News Service | Tue, 08/10/2010 - 9:57am | Login to
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ENLARGE

Judge Vaughn Walker
The waiting game around the Proposition 8 challenge in a federal court
in San Francisco grows curiouser and curiouser.

U.S. District Court Judge Vaughn Walker issued his decision in the
case on Aug. 4, ruling that the voter-approved amendment to the state
constitution that barred same-sex marriages in California is
unconstitutional. He said it violates the federal Constitution’s
guarantees of equal protection and due process. He also issued a
temporary “stay” – or delay of the enforcement of his decision.

Now, people interested in the case are waiting again – this time, for
Judge Walker’s decision on whether to approve a permanent “stay” until
the Ninth Circuit U.S. Court of Appeals can weigh in on the merits of
the case.

That decision – on whether to extend the stay on when to make his
ruling enforceable -- could come any day now. Some thought it might
come as early as last Friday, when briefs were due from attorneys
challenging Proposition 8. Those attorneys – from the Ted Olson-David
Boies legal team and the city of San Francisco -- did not support a
stay.

But the bigger surprise last Friday was that California Gov. Arnold
Schwarzenegger and state Attorney General Jerry Brown also opposed the
stay. Schwarzenegger had twice vetoed bills from the legislature that
sought to allow marriage licenses for same-sex couples. As governor,
he and the attorney general are, technically speaking, the defenders
of the state constitution, including Proposition 8. In court, they
were identified as the defendants.

In the Perry v. Schwarzenegger lawsuit, however, the state declined to
defend Proposition 8. And in the governor’s brief concerning the stay,
his attorneys say there is no burden on the state to implement
Walker’s ruling now and that “implementing the Court’s order now,
without further delay, serves the public interest.” A briefer document
from Attorney General Brown essentially agrees.

If Walker denies the request for the extended stay, then same-sex
couples can begin seeking marriage licenses again in California – at
least until a higher court reverses Walker’s ruling – something that
may or may not happen.

Jon Davidson, legal director for Lambda Legal Defense and Education
Fund, told reporter Karen Ocamb at LGBTPOV.com that Schwarzenegger and
Brown’s filings opposing a stay “have dramatically changed the
likelihood” that Walker will grant the stay.

“This is an unusual situation,” Davidson said, because the state,
which Walker’s ruling orders to stop enforcing Proposition 8, has
asked Walker to deny the stay.

More importantly, Davidson noted, the Olson-Boies team and San
Francisco argue that Yes on 8 may have no right to appeal Walker’s
ruling.

When the California government declined to defend Proposition 8, Yes
on 8, the coalition that campaigned for the amendment, took over that
role. Yes on 8 was identified in court as “defendant-intervenor” and
“proponents.”

Because the government-defendants, California’s government, are
apparently not going to appeal Walker’s decision, Davidson said,
“there will be a legal question of whether, when those who are ordered
to do something don’t appeal, someone not ordered to do anything has
any right to appeal.”

“To understand this,” Davidson told Ocamb, “one has to appreciate a
few things about federal courts.”

“Federal courts can only hear cases where there is what’s called a
‘case or controversy,’ ” Davidson said. So, to have an appeal heard,
the party that requests the appeal must show that it has a “direct
stake in the outcome” of the appeal decision. And, Davidson said, it
must also show that it has been “injured” by the lower court ruling in
a “concrete manner that is particularized to that party and different
from citizens at large who may not like the judge’s ruling.”

In a case involving Arizona’s constitutional amendment declaring
English the “official language” of the state, Davidson said, the U.S.
Supreme Court said it had “grave doubts” about whether proponents of
that ballot initiative could appeal lower court decisions that found
the initiative unconstitutional. The Arizona government did not
appeal. In that case, Arizonans for Official English v. Arizona, the
Supreme Court, in 1997, decided the case on other grounds, “but its
comments strongly indicate that the proponents may have no right to
appeal if the other defendants do not,” Davidson said.

“A definitive ruling on whether the proponents have a right to appeal
if the defendants do not,” Davidson said, “is not likely to be made in
connection with” the ruling about the Proposition 8 stay. But, he
said, “Judge Walker or a higher court may comment on the issue” and
“…if [Yes on 8 has] no right to appeal, they obviously can’t show they
likely would prevail on an appeal.”

So, if the California government -- the defendants -- do not appeal
Walker’s ruling on the merits of the case within 30 days from the day
the judge actually “enters” his judgment in the case (which has not
yet happened), “then the plaintiffs and San Francisco could file a
motion to dismiss the appeal that has already been filed by [Yes on 8]
on the ground that the proponents have no right to appeal.”

Therefore, three issues are now in waiting:

• Whether Walker will issue a more extended stay
• Whether the government will file an appeal on the merits
• Whether the Ninth Circuit will take the appeal filed by Yes on 8

If the Ninth Circuit does take Yes on 8’s appeal, it will first be
heard by a three-judge panel and then, almost certainly, by the Ninth
Circuit sitting en banc. While, in some circuits, sitting en banc
means every judge of the circuit hears the case, in the Ninth’s
unusually large circuit, Davidson said, it means “a panel of 11
randomly assigned” judges.

If the Ninth Circuit refused to hear an appeal from Yes on 8, the
group could appeal to the U.S. Supreme Court. The group, Davidson
said, “could ask the Supreme Court to decide whether they have a right
to appeal. “

“If the Supreme Court declines to hear that, the case is over,”
Davidson said. “If the Supreme Court agrees to consider the question,
it could decide that [Yes on 8 has] no right to appeal and, again, the
case would be over.”

But if the Supreme Court said Yes on 8 does have a right to appeal,
Davidson said, it would “likely” send the case back to the Ninth
Circuit for three judges to rule on the merits of the appeal,
“resulting in a delay of the final determination of the validity of
Prop 8 for some time.”

Davidson said that even if Walker does deny Yes on 8’s request for a
stay, he could extend his temporary stay for a brief period of time (a
week or so) in order to give the proponents time to ask for a stay
from the Ninth Circuit while there’s a temporary stay in place.

“The Ninth Circuit would then apply the same test as Judge Walker did
in deciding whether or not to issue a stay of Judge Walker’s order
pending the appeal,” Davidson said. “If they deny a stay as well, the
proponents could ask Supreme Court Justice Anthony Kennedy (who
reviews such matters arising out of the Ninth Circuit) to issue a stay
pending the appeal. If he also denies a stay, the proponents could
seek a stay from the full Supreme Court.”

Meanwhile, at least a couple of dates are penciled in. The Ninth
Circuit has given Yes on 8 until Nov. 12 to file its appeal brief, and
given the plaintiffs until Dec. 13 to file their response. Davidson
said Yes on 8 would then have until Jan. 12 to file any brief in
response to plaintiffs.

Any oral argument of the appeal, Davidson said, would “not likely”
happen until late 2011.

“It is not unusual for it to take more than a year from the date of
argument until the appeal is decided by the Ninth Circuit,” Davidson
said. “Once the case is decided, the losing party can seek review” en
banc, and “that could add another year or more before the case is even
in a position for a party to seek Supreme Court review.”

“Thus, if the appeal is not dismissed, it is possible that a request
to the Supreme Court to hear the case might not even have been made by
the time of the November 2012 elections,” Davidson said. “If an effort
to repeal Prop 8 is made that year and succeeds, it could ‘moot’ the
case (meaning that there would no longer be any ‘live’ dispute because
Prop 8 would no longer be in effect) and the appeal could be dismissed
for that reason.”

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--Ian


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PostPosted: Wed Aug 11, 2010 6:51 am 
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Joined: Fri Jun 30, 2006 9:52 pm
Posts: 1146
Location: Massachusetts
I don't think what is natural to the human animal is a great argument. Civil rights and a host of other good things are new to the species as well.

IJ wrote:
With the recent spate of high profile adultery cases and examples of moral hypocrisy, perhaps we will someday remember that it doesn't reflect poorly on the love of your life that you want a little excitement now and then, and that a key to a healthy marriage may be an understanding about infidelity, rather than a rule about fidelity. I know we're down on the French but they seem to get it.


You wish. I personally don't think the French (or anybody else who might think an open marriage is the key to a healthy anything) are especially enlightened, but truffles and foie gras are both pretty wonderful.

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