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Is gender equality violated by OMOW laws?

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  • Is gender equality violated by OMOW laws?

    Topic: Is gender equality violated by OMOW laws?
    Format: No format, just private debate/discussion between Ignatius and Skallagrim
    Timelimit: Open end, no hurry.
    Wordlimit: Please prevent a “text wall of death”

    I need to clarify terms since I am from Germany
    We have only one word for gender / sex I am in danger of using the words inappropriately.
    I prefer not using the word 'sex' since the same word in Germany refers solely to the act of having it.
    The word for gender/sex in German refers to ones physical attributes and legal status.

    Gender:
    When I use the word gender I will generally refer to the legal status of ones gender,
    not to social behaviour or look.


    What I hope to gain from this conversation is, a better understanding about what convinces people that OMOW laws does not violate gender equality.
    The best outcome for me would be to be shown that I understood something wrong.
    The worst outcome would be parting, not an ounce wiser as before

  • #2
    “Equality before the law” as described by Article 7 of the Universal Declaration of Human Rights
    Originally posted by Human Rights
    All are equal before the law and are entitled without any discrimination to equal protection of the law.
    “Equal protection” is granted by the Fourteenth Amendment.
    Originally posted by 14th Section 1
    [...]No State shall make or enforce any law which shall [...] deny to any person within its jurisdiction the equal protection of the laws.
    Here a definition of equal protection: thefreedictionary.com
    Originally posted by TheFreeDictionary
    The constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness.
    Ignatius, if everything is fine so far;
    since we still need to agree upon the implications of “Equality before the law".
    It would be great, if you could give your me understanding of it, or, since I am the one questioning the legality of OMOW based on it, it might be reasonable for me to give my understanding of it with my next post.

    So long.
    Last edited by Skallagrim; 05-23-12, 12:41 PM.

    Comment


    • #3
      Thank you for the opportunity to converse with you in this format about this topic.

      Before we get too far ahead of ourselves I think its fair to inform you I will not recognize the "Universal Declaration of Human Rights" as a document bindiing on my conscience. Nor will I consider it in the formation of my opinion since the United States Constitution is the only document I recognize as guideline for the protection of rights of citizens of the United States of Amercia.

      I would love to hear your thoughts on this matter. Thank you
      "Now, what is the Sacrament of the Altar!
      Answer: It is the true body and blood of our Lord Jesus Christ, in and under the bread and wine which we Christians are commanded by the Word of Christ to eat and to drink."

      Martin Luther "The Large Cathechism"

      Comment


      • #4
        Originally posted by ignatius View Post
        Thank you for the opportunity to converse with you in this format about this topic.
        Glad you try sparing some time to have this discussion, I value it a lot.

        Originally posted by ignatius View Post
        Before we get too far ahead of ourselves I think its fair to inform you I will not recognize the "Universal Declaration of Human Rights" as a document bindiing on my conscience. Nor will I consider it in the formation of my opinion since the United States Constitution is the only document I recognize as guideline for the protection of rights of citizens of the United States of Amercia.
        The legal status is the interest of mine, not the moral status.
        If the 14th Amendment is at odds with OMOW or not, is so regardless of conscience.
        But you will be glad to hear that the Fourteenth Amendment will be my main focus on the issue, so I do not mind disregarding the "Universal Declaration of Human Rights".

        Originally posted by ignatius View Post
        I would love to hear your thoughts on this matter. Thank you
        Likewise.

        A statement of my understanding of the Fourteenth Amendment, explicitly the equal protection clause, will follow in my next post.
        If I write something ambiguous, please do not hesitate to ask for clarifications.

        Comment


        • #5
          Originally posted by Skallagrim View Post
          Glad you try sparing some time to have this discussion, I value it a lot.


          The legal status is the interest of mine, not the moral status.
          If the 14th Amendment is at odds with OMOW or not, is so regardless of conscience.
          But you will be glad to hear that the Fourteenth Amendment will be my main focus on the issue, so I do not mind disregarding the "Universal Declaration of Human Rights".


          Likewise.

          A statement of my understanding of the Fourteenth Amendment, explicitly the equal protection clause, will follow in my next post.
          If I write something ambiguous, please do not hesitate to ask for clarifications.
          I am looking forward to the discussion myself.

          I agree and acknowledge this is a legal question and not a moral one. So if we are focused on the 14th amendment then we should have no problems.

          I am looking forward to your thoughts.
          i would ask if I do the same you will tell me so I can clarify as well.
          "Now, what is the Sacrament of the Altar!
          Answer: It is the true body and blood of our Lord Jesus Christ, in and under the bread and wine which we Christians are commanded by the Word of Christ to eat and to drink."

          Martin Luther "The Large Cathechism"

          Comment


          • #6
            Since the “Equal Protection” part is the one in question, I will go directly to it.
            I hope you do not mind.
            My understanding is reflected in this Quote and my short version after it:
            Originally posted by Nolo's Plain-English Law Dictionary: Equal Protection
            The right, guaranteed by the Fourteenth Amendment to the U.S. Constitution, to be treated the same, legally, as others in the same situation. If a law discriminates between one group of people and another, the government must have a rational basis for doing so. A law that discriminates on the basis of a supect classification -- that is, it makes a distinction based on race, gender, or another trait that has historically resulted in discriminatory treatment -- is constitutional only if there is a very compelling reason for the distinction.
            Nolo's Plain-English Law Dictionary ( emphasis mine )

            In short:
            The Equal protection clause is to prevent arbitrary, unreasonably discrimination’s of groups.

            How we find out what classifications are “arbitrary”, we can discuss later.
            Since it is an dictionary, not binding to law, are there any disagreements already?
            Last edited by Skallagrim; 06-01-12, 12:57 PM.

            Comment


            • #7
              Originally posted by Skallagrim View Post
              Since the “Equal Protection” part is the one in question, I will go directly to it.
              I hope you do not mind.
              My understanding is reflected in this Quote and my short version after it:

              Nolo's Plain-English Law Dictionary ( emphasis mine )

              In short:
              The Equal protection clause is to prevent arbitrary, unreasonably discrimination’s of groups.

              How we find out what classifications are “arbitrary”, we can discuss later.
              Since it is an dictionary, not binding to law, are there any disagreements already?
              No there no disagreements on the definitions. Application is another matter but we will certaintly pursue that in subsequent correspondences.

              I would however like to pay special attention to the last line. I will post it here just as a matter of ease of reference: " A law that discriminates on the basis of a supect classification -- that is, it makes a distinction based on race, gender, or another trait that has historically resulted in discriminatory treatment -- is constitutional only if there is a very compelling reason for the distinction."
              "Now, what is the Sacrament of the Altar!
              Answer: It is the true body and blood of our Lord Jesus Christ, in and under the bread and wine which we Christians are commanded by the Word of Christ to eat and to drink."

              Martin Luther "The Large Cathechism"

              Comment


              • #8
                Originally posted by ignatius View Post
                No there no disagreements on the definitions. Application is another matter but we will certaintly pursue that in subsequent correspondences.
                Glad to hear. Yes I hope we will

                Originally posted by ignatius View Post
                I would however like to pay special attention to the last line. I will post it here just as a matter of ease of reference: " A law that discriminates on the basis of a supect classification -- that is, it makes a distinction based on race, gender, or another trait that has historically resulted in discriminatory treatment -- is constitutional only if there is a very compelling reason for the distinction."
                The discussion about this part is something I am particular excited about having.
                But I sadly have to slow down myself, to go one little step at a time. The risk is to high to miss an important disagreement, which without solving, any further discussion would be futile.

                Two questions for now:
                Do we agree that discrimination based on legal gender is a “suspect classification”?

                Can we agree that a classification that leads to one person not treated the same, legally, as others in the same situation, is an arbitrary classification?

                Comment


                • #9
                  Originally posted by Skallagrim View Post
                  Glad to hear. Yes I hope we will


                  The discussion about this part is something I am particular excited about having.
                  But I sadly have to slow down myself, to go one little step at a time. The risk is to high to miss an important disagreement, which without solving, any further discussion would be futile.

                  Two questions for now:
                  Do we agree that discrimination based on legal gender is a “suspect classification”?

                  Can we agree that a classification that leads to one person not treated the same, legally, as others in the same situation, is an arbitrary classification?
                  I'd prefer to talk this very slowly myself, one step at a time to ensure we fully understand one another.

                  First question: I agree it could be but again the devil is in the details. In other words its about the application since a "compelling" reason nullifies any discrimination.

                  Second question: No we can not because nothing has been shown to prove the classification is "arbitrary". A classification is not necessarily "arbitrary" because it effects how people are treated.
                  "Now, what is the Sacrament of the Altar!
                  Answer: It is the true body and blood of our Lord Jesus Christ, in and under the bread and wine which we Christians are commanded by the Word of Christ to eat and to drink."

                  Martin Luther "The Large Cathechism"

                  Comment


                  • #10
                    Originally posted by ignatius View Post
                    I'd prefer to talk this very slowly myself, one step at a time to ensure we fully understand one another.

                    First question: I agree it could be but again the devil is in the details. In other words its about the application since a "compelling" reason nullifies any discrimination.
                    Partially agree. Reasons do not nullify discrimination, but can justify it. (we might mean the same)
                    Originally posted by ignatius View Post
                    Second question: No we can not because nothing has been shown to prove the classification is "arbitrary". A classification is not necessarily "arbitrary" because it effects how people are treated.
                    Sorry a misunderstanding. My fault, I see now how I worded my question badly/wrong.
                    I try to correct my question, I hope I can formulate it well this time:

                    Can we agree that a classification that leads to one person not treated the same, legally, as others in the same situation, is an arbitrary discrimination?
                    Last edited by Skallagrim; 06-01-12, 05:25 PM.

                    Comment


                    • #11
                      Originally posted by Skallagrim View Post
                      Partially agree. Reasons do not nullify discrimination, but can justify it. (we might mean the same)

                      Sorry a misunderstanding. My fault, I see now how I worded my question badly/wrong.
                      I try to correct my question, I hope I can formulate it well this time:

                      Can we agree that a classification that leads to one person not treated the same, legally, as others in the same situation, is an arbitrary discrimination?
                      Well the definition you posted said that a compelling reason can justify discrimination.

                      We agree it could be
                      "Now, what is the Sacrament of the Altar!
                      Answer: It is the true body and blood of our Lord Jesus Christ, in and under the bread and wine which we Christians are commanded by the Word of Christ to eat and to drink."

                      Martin Luther "The Large Cathechism"

                      Comment


                      • #12
                        Originally posted by ignatius View Post
                        Well the definition you posted said that a compelling reason can justify discrimination.

                        We agree it could be
                        Great, I was worried for a moment.

                        Now it would be useful for my argument, to find out the relevant situations that need to be look at in order for me to claim a “same situation” but different treatment legally.
                        For this I guess looking at the requirements set by state law is a first way to go...
                        But it seems OMOW is the only relevant part, which is the very thing I question.
                        The next step for me is to find an agreement about, what is the relevant required obligations of a marriage?

                        I think we can agree, that it is not important in this case what the state/us law ought to say the obligations of marriage is, but what the law actually demands. ?

                        I also hope we agree that even if a state has a certain intention, an intention does not imply a required action or that this intention is ought to be fulfilled. ?
                        I think it is only meaningful to restrict ourselves to the obligations (by law) a marriage has to achieve.

                        Since I can not find such a thing I get the strong feeling you will disagree with at leased one of my points and I will stop here.

                        I am really at a loss here at the moment, I was seriously expecting there to be a list of obligations, but I can't find anything like it.
                        Is there maybe something like “the state is required to ensure that ….” anchored into law that can be interpreted to apply to marriage?
                        Hope you can help me out, either by disagreeing or pointing to a source, thanks.

                        Comment


                        • #13
                          Since I am not happy the way I formulated my questions, I gave it another try:

                          I think it is only meaningful to restrict ourselves to the obligations (by law) a marriage has to achieve.
                          What is the obligations a couple has(or has to be able) to archive to be eligible to marry, and is set as official requirement?

                          Oddly I can not find such obligations that have been set as official requirement.
                          Last edited by Skallagrim; 06-02-12, 06:15 AM.

                          Comment


                          • #14
                            Originally posted by Skallagrim View Post
                            Since I am not happy the way I formulated my questions, I gave it another try:

                            I think it is only meaningful to restrict ourselves to the obligations (by law) a marriage has to achieve.
                            What is the obligations a couple has(or has to be able) to archive to be eligible to marry, and is set as official requirement?

                            Oddly I can not find such obligations that have been set as official requirement.
                            These are good questions. I will reply only to this second post since it has the rephrased question. This whole issue started in Massachusetts where he state constitution did not define wh could marry. John Adams wrote the constitutionof Massachusettes in the 1700s. I suspect he didnt imagine it would ever be a question as to who could marry so there was no need to include a definition. Never at any time in US history or aywhere in the country have same sex" marriages"
                            been allowed.
                            "Now, what is the Sacrament of the Altar!
                            Answer: It is the true body and blood of our Lord Jesus Christ, in and under the bread and wine which we Christians are commanded by the Word of Christ to eat and to drink."

                            Martin Luther "The Large Cathechism"

                            Comment


                            • #15
                              Originally posted by ignatius View Post
                              This whole issue started in Massachusetts where he state constitution did not define wh could marry. John Adams wrote the constitutionof Massachusettes in the 1700s. I suspect he didnt imagine it would ever be a question as to who could marry so there was no need to include a definition. Never at any time in US history or aywhere in the country have same sex" marriages" been allowed.
                              Quite right.
                              I had a very interesting read yesterday: The state interest in marriage
                              An article going through the previous cases about same sex marriages.
                              In the first part the article is summarizing the court opinions and responses to proffered justifications.
                              (it is a pro OMOW article by the way, my blood is still boiling from the read )

                              It starts with this:
                              In contrast to the tradition of individual liberty in the United
                              States, “[t]he ‘family tradition’ . . . has been such an obvious
                              presupposition of our culture that it has not been well articulated, let
                              alone explained or justified.”
                              [Bruce C. Hafen, Puberty, Privacy, and Protection: The Risks of Children’s “Rights,” 63 A.B.A. J. 1383, 1383 (1977).]
                              The “state interest” in marriage, that courts have recognized so far, seem to have been reasoned like this:
                              “our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children.”
                              [Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974)]
                              Which sums it up.
                              The state interest in marriage was so far based on public opinion.
                              This is a horrible way in my opinion, even if the opinion in shifting currently.

                              Comment

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