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Sunday Independent Stupid Statement of the Week February 16, 2014

Posted by Garibaldy in Sunday Independent Stupid Statement of the Week.
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Emer O’Kelly, who is annoyed at Rory O’Neill, may in fact be writing for the wrong paper. Or she hasn’t really thought her column through. I wonder which is more likely.

I may loathe individual gays, or individual black people, because they’re unpleasant, ignorant, violent, right-wing, cruel, or criminal.

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1. CL - February 16, 2014

“Yet when it comes to same-sex marriage, it is not necessarily homophobic to oppose it”-Emer O’Kelly.
So one can oppose equal rights for same-sex couples and not be homophobic. Likewise one can oppose equal rights for black people and not be racist?

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ivorthorne - February 16, 2014

Well, put it this way: If asked plenty of people would say they are in favour of equal rights for people with intellectual disabilities but are not concerned about the fact that they are often held in residential institutions against their will, prohibited from having romantic or sexual relationships within (or indeed outside of) these institutes etc.

In fact, many people might think it a terrible idea to “allow” such people have sex with each other while claiming that they had nothing against such people and wanted nothing but the best for them.

With regard to dole cuts for the young, there are plenty of people who would claim they are not ageist but that they support the move to cut the dole for the young because this will incentivise them to find work. Similarly, they will be happy to deny these same young people free fees because of another adult’s income for no real reason, but still claim that they are not ageist.

Let’s not even think about the fact that the president has to be over 35.

Best not to attribute views to malice when stupidity is a sufficient explanation.

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CL - February 16, 2014

Whether based on stupidity or malice the denial of equal rights to blacks or to gays cannot be justified.

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ivorthorne - February 16, 2014

Nor should it be on the basis of disability, sex or age.

The debates usually happen when people disagree about what constitutes a right.

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2. CL - February 16, 2014

The discussion is about the right to marry,-a contract between two adult, competent people. People of opposite sex have the right to marry. To deny this right to people of the same sex is discrimination. Just as denying equal rights to people based on skin colour or ‘race’ is discrimination.

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ivorthorne - February 16, 2014

The discussion was about O’Kelly’s comment.

The point of the above examples was to illustrate that people sometimes think that treating people differently/discrimination is not a bad thing. We don’t typically start calling them names or assume malice (as is implied by the term homophobe).

Arguments in favour of gay marriage that draw upon parallels between racist practices like opposition to inter-racial marriage and opposition to gay marriage are all fine and well, until they start talking about them as though they were identical. There’s an element of trying to persuade people through emotional arguments. What is required is rational debate.

Within the current context, it would be much nicer if people would explain why marriage as opposed to civil unions are required by any couple when they are denied to many other people. Most of the arguments in favour of gay marriage that draw on legitimate parallels with other groups who were discriminated against function just as effectively as arguments against recognising marriage as a legal institution.

Gay couples are not the only social units who are discriminated against under the current system and a more compete and rational debate might allow us to reform the system so that these people would also stop experiencing illogical discrimination.

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3. CL - February 16, 2014

Making an analogy between gay people and those with intellectual disabilities is unfortunate and does not help your argument.
Those who are against gays having the same rights as straights are being discriminatory in the same way as those who oppose equal rights for blacks are.
The logic of your argument amounts to saying because blind people are not allowed drive cars gays should not be allowed marry.

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ivorthorne - February 16, 2014

To be frank CL, I think you miss the point. I think that the mistreatment of people with intellectual disabilities is – to paraphrase Gilmore – the civil rights issue of this generation. The same people who can’t figure out how people tolerated industrial schools and laundries pass residential “homes” for such people which are based along the same models. Even the various scandals that have broke over the past couple of decades have done little to improve the lot of these people.

It is not an insult to be compared to somebody with Down syndrome any more than it is to be compared to somebody who has black skin or red hair. If somebody were to compare me to an individual who had Down syndrome or autism, I would not be insulted. I would, however, be pretty damn pissed off if they tried to use such a comparison as an insult.

“The logic of your argument amounts to saying because blind people are not allowed drive cars gays should not be allowed marry.”

I have never said that gay people should not be allowed marry.

I have said that people need to justify marriage as a legal institution given that it gives rise to inequalities within society and that I don’t think that a failure to support gay marriage should be regarded as proof of homophobia.

What the current situation looks like to me is a scenario where men were allowed to own guns and women were not. Supporters of women’s rights turned around and campaigned for the equal right to gun ownership. I’m standing there thinking that somebody should probably put forward a good argument for why anybody should be allowed own a gun.

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4. CL - February 16, 2014

You are using various ‘divarsions’ to deflect form the weakness of your argument.
‘All men are created equal’, says the American Declaration of Independence. And in Ireland the 1916 Proclamation guarantees ‘equal rights’ .
These are the bedrocks on which these two republics are founded. Once one accepts these principles then discrimination on the basis of race, gender or sexual orientation is unacceptable.
In the U.S. legal prohibitions against gays are falling by the wayside as judges implement the U.S. constitution.
” A federal judge struck down Virginia’s ban on same-sex marriage as unconstitutional late on Thursday, saying it denied gay couples a fundamental freedom to marry.”

http://www.reuters.com/article/2014/02/14/us-usa-gaymarriage-virginia-idUSBREA1D05B20140214

Note that phrase: ‘a fundamental freedom to marry’. Denying this ‘fundamental freedom’ to gays is equivalent to denying equal rights to blacks.
Prohibitions on gay marriage is a denial of this fundamental freedom, and resort to the ‘right to the dole’ or to the disabilities of those incapacitated in various ways is a red herring.
Opposing equal rights for same sex couples is equivalent to opposing equal rights for blacks or women and is repugnant to the principles on which the American and Irish republics were founded.
Diversionary tactics and illogical argument give camouflage to the religious mumbo-jumbo of the Iona Institute anti-rationalists.

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ivorthorne - February 16, 2014

“You are using various ‘divarsions’ to deflect form the weakness of your argument.”

Humour me Xavier: What exactly do you think my argument is? Because you’re claiming its weak, but you haven’t actually once tried to justify marriage.

The fact that a US court regards it as a “fundamental freedom” doesn’t exactly seem relevant given that we don’t actually live there and US courts have similar views on gun ownership. Would you take the rulings of US courts regarding the right to bear arms as an indication that we should start adopting similar gun “control” policies here? I’m guess not. So why is it important in this case?

And besides all that, all citizens have the same marriage rights. It’s at the unit of the couple and family that discrimination comes into play. Homosexual couples are not the only types of social units who are discriminated against as a result of the current marriage status quo. If we are going to reform one of the oldest legal institutions in the State, why not look at those other units as well?

Would it be such a terrible thing if we tried to make sure that we were minimising the effects of discimination on people in non-conventional relationships, in families made up of two people who are dependent on each other but who do not have a sexual relationship etc. If all men are created equal, why not these people?

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Michael Carley - February 16, 2014

If I have you right here, your argument is not that you object to *gay* marriage, but that you object to gay *marriage*, because you object to marriage (at least as presently constituted).

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ivorthorne - February 16, 2014

Yes.

I think that there is a genuine opportunity to address other inequalities within the system if we either (a) get rid of marriage or (b) state its purpose so that we can make sure that it is open to all types of couples (or potentially other units) to whom it is relevant.

I think that by solely focusing on the discrimination against people who are gay/lesbian while largely ignoring others, we run the risk of isolating those people even more.

I genuinely find it hard to believe that anybody approaching the issue from a human rights perspective cannot see this but these factors are rarely raised as part of the debate.

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Michael Carley - February 16, 2014

Peter Tatchell has made a similar point about heterosexuals being barred from civil union.

If you think of marriage (in a register office) as essentially an arrangement about tax, inheritance, custody, and who is next-of-kin, there is no reason to bar gays from it, but there is also no reason to call it marriage. I think Tatchell has pointed out that there are heterosexual people who do not want to have sex with each other who want to be in a civil union. The example was someone with a terminal illness who wants a good friend to be next of kin, and to take custody of children. The same could apply to two siblings.

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ivorthorne - February 17, 2014

If we introduce gay marriage, what will happen to civil unions? Will they continue to exist? I certainly wouldn’t want to see that.

I don’t particularly care if it is called marriage or a civil union, but I think that these legal arrangements need to be made open to people who aren’t in romantic or sexual relationships and in a way that does not put single people at a disadvantage – especially when they have children.

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5. CL - February 16, 2014

Marriage is a right enjoyed by straight people. You argued that because its O.K to treat intellectually disabled people differently than people who are not so disabled so its O.K to deny to gays the right to marry. This is equivalent to saying that because blind people are not allowed drive cars therefore its O.K that gays should not be allowed marry. Ludicrous, and illogical.

This discussion began with my comment on Emer O’Kelly’s ‘homophobic’ statement: “Yet when it comes to same-sex marriage, it is not necessarily homophobic to oppose it”- I appended a question mark to my comment. But based on our discussion let me correct that:

The right to marry is a fundamental right.
Those who oppose this fundamental right for same-sex couples are homophobic, just as those who oppose equal rights for blacks are racist.

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ivorthorne - February 17, 2014

Not even close. But let’s leave it at that.

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6. sonofstan - February 17, 2014

I’m not really much enamoured of ideas about ‘fundamental rights’ for reasons that would take too much explaining in this context, but, given that we talk about rights all the time, and it’s a convenient way for people to understand their relationship to society and reciprocal obligations that obtain in that relation, then i see no harm in defining a right – under law and not ‘fundamental’ – are being the entitlement to have access to a social good that one cannot reasonably be denied except on grounds that your access to this would endanger the access of others to the same – or other – goods.

Further, some goods can only reasonably be such if and only if universality is guaranteed – if not, they become privileges, which are entirely different. It might indeed, be argued that a right that is unreasonably denied others who might avail of it, devalues the possession of it by those who can avail of it. The ‘universal’ franchise as exercised by white men in the USA in 1850 was surely a travesty of its own notional intent by the denial of the same right to all women and black men.

By analogy, the extension of the right to marry to gay people should, if anything, strengthen the institution. If I were ever to abandon my state of confirmed, but hetero, bachelorhood, I would feel that, under the law as it stands, in availing of the state’s blessing on my union, I would be claiming a privilege that was unfairly granted to me – and denied to others – on irrelevant grounds.

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CL - February 17, 2014

My understanding as a republican is a little different. The state does not grant us privileges. And rights do not come from the state. ‘We hold these truths to be self-evident, that all men are created equal’. And in Ireland the ‘sovereignty of the people’ gives rise to many referendums. Therefore the state, in Ireland or in the U.S should not have the power to deny to certain categories of the population the rights to a marriage contract. Hence in the U.S. the rulings of federal judges that laws prohibiting same sex marriages are unconstitutional and in Ireland the upcoming referendum to legalize same sex marriage.

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yourcousin - February 17, 2014

Whiich is why so many of the court cases here are overturning voter approved bans on same sex marriage, like the one in California for instance. Or you know you could just totally take one line from a document and build an entire argument around it totally disregarding the fact that it was then as it is now, a living document written by slave owners who took 14 amendments to overturn Dred Scott (although in fairness it was the supreme court who decided that African Americans could not be citizens, not the founding fathers and obviously only took 9 years to overturn).

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CL - February 17, 2014

YC,-I’m not so sure what point you’re trying to make.

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7. yourcousin - February 17, 2014

Well two things

1-Constitutional rights by referendum do not necessarily mean more rights as many of the laws banning gay marriage are voter approved. So your comparison between federal courts supporting gay marriage as inevitable and your support for a gay marriage referendum are contradictory. Will you still support the voice of the people if like in America they support a ban on gay marriage.

2-To take one line from the preamble without taking it into context is just plain silly as many of the men who wrote it were slave owners. The supreme court of which you seem to be so fond of has made erroneous judgements before (hence the reference to the Dred Scott case).

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CL - February 17, 2014

Nothing contradictory here at all. I support equal rights for gay people. In the U.S. judges are ruling that it is unconstitutional to discriminate against gays by making gay marriage illegal.
In Ireland there is going to be a referendum to make gay marriage constitutional.
So I support judges in the U.S. who strike down on constitutional grounds bans on gay marriage, and in Ireland I support the constitutional change which will make gay marriage legal. How the referendum turns out remains to be seen.
I have made no reference to the supreme court.

‘We hold these truths to be self-evident’ comes from the Declaration of Independence, not from the U.S constitution. I cited it as one of the founding documents of the American republic, That commitment to equality is now being implemented by judges ruling that gays have a constitutional right to marry,-just like heterosexuals. These judges are in effect ruling that the ‘inalienable rights’ mentioned in the Declaration, and given constitutional effect in the Bill of Rights, cannot be abrogated by governments denying gays the right to marry.
I don’t think its silly at all to refer to one of the main founding documents of the American Republic,-the Declaration of Independence. It was the lodestar of the political beliefs of Abraham Lincoln.

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yourcousin - February 18, 2014

CL,
You’re trying to make a connection between the declaration and the constitution and modern day court rulings (which stem from the supreme court’s ruling on doma and California’s prop. 8) as if they were a linear straight line, if A then B. I’m pointing out that it is certainly not that simple or neat. Not only that but that the very institutions you’re lauding (the judiciary up to and including the supreme court) have in the past made decisions that denied the very inalienable rights that you are applauding them for upholding. That’s my point. I’m sorry but to laud judicial actions striking down voter approved measures while lauding an upcoming referendum without even acknowledging the contradiction is irrational something which you seem to reserve for the likes of the Iona folks. Also to refer to the religious beliefs as mumbo-jumbo does no service to the fight for equality.

While I’m sure that the state of Illinois appreciates your adoration of their first son and I have used him in arguments before he was not some messianic figure, but a very real and flawed man. This doesn’t detract from what he did, but we are doing ourselves no favors by acting as if citing him proves a point and ends debate. The tea party movement is built on this kind of logic in which citing the founding fathers ends debate on governance or is seen as sufficient evidence prove a point. Again this is just not logical, and if I’m not mistaken that was the argument you were making.

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CL - February 18, 2014

Certainly there’s a connection between the Declarations assertion that ‘all men are created equal’ and the Constitution’s provision of equal protection under the law.
At this point numerous judges have ruled that gays have a constitutional right to marry. These modern day rulings rely on the Constitution; I cited the most recent one in Virginia. The judge said “Virginia’s constitutional ban on same-sex marriage violated the right to due process and equal protection of the law under the U.S. Constitution.”

http://www.reuters.com/article/2014/02/14/us-usa-gaymarriage-virginia-idUSBREA1D05B20140214

“The American Foundation for Equal Rights, which brought the Virginia case, said Allen’s ruling upheld core U.S. principles of equality.” – core U.S principles of equality. Now that is a direct connection to the Declaration’s assertion that ‘all men are created equal’. And it is logical and rational to make that connection.
It is of course common knowledge that in times past courts up to and including the U.S. supreme court have denied, especially to blacks, certain ‘inalienable rights’.
I’m not lauding anyone or any institution; merely stating what’s happening and giving a historical and constitutional context for recent court rulings upholding gay rights to marry.
A referendum is the way Ireland changes its constitution. It is proposed to have one next year to make gay marriage constitutional. I hope it passes. Just because I take this position it does not logically follow that I must therefore support referendums in the U.S. which aim to deny the very right the Irish one proposes to affirm. It would be inconsistent and illogical for me to do so.

‘The constitutional inevitability of same sex marriage’ was outlined a few years ago by Professor Tribe “, the Justices must do as constitutional principle requires and strike down laws that limit marriage to opposite-sex couples…

The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner.”

http://www.scotusblog.com/2011/08/the-constitutional-inevitability-of-same-sex-marriage/

Since then the ‘constitutional imperative’ he discerned has become even stronger.

“18 court decisions have addressed an issue of equality based on sexual orientation. And in those 18 cases, equality has won every single time.”

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/virginia_s_gay_marriage_ban_ruled_unconstitutional_a_perfect_record_for.html

Regressive elements in the U.S., and also in Ireland, are outraged by these advances for human dignity and equality. Although the movement is on the side of progress, the struggle is not yet over. But it looks as if the troglodytes are going to lose.

On this constitutional inevitability I rest my case.

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RosencrantzisDead - February 18, 2014

If I understand yourcousin correctly, he is saying that you cannot use a Constitution, or any other document, to buttress an argument about fundamental rights. ‘Fundamental rights’ are said to accrue to you prior to the writing of any document and repose in your human person irrespective of the content of any document or the utterance of any other human being. The phrase, ‘All men are created equal’ can only be a recognition of a ‘fundamental right’. This is doubly true of a referendum on a fundamental right since a referendum could result in such a right being ‘denied’. And yet, it must still exist despite such a result.

This, in turn, requires that someone set out how fundamental rights are recognized and how it can be said that ‘All men are created equal’ is a proper recognition. This process is further complicated by the fact that it is acknowledged that other fundamental rights were not recognized in the Declaration of Independence or other documents. How is it that certain rights can be recognized and others cannot until either much later (or not at all)? Even allowing that certain groups in the past were mistaken does not assist us, as it can be equally true that we are mistaken.

Even casting fundamental rights aside, drawing a straight line from ‘all men are created equal’ to gay marriage requires you to become Ronald Dworkin, or some variation of a natural law theorist. Laurence Tribe is pushing a weaker version of this: he is claiming that a SCOTUS decision favouring gay marriage/marriaage equality rights is the upshot of a series of judgments the court made as recently as 2008. This is like saying that, towards the end of a game of chess, it is inevitable that I shall move my bishop to f6. He may be right. But it is still a world away from saying, before I take my first move, that it is inevitable that I shall have to move my bishop to f6 (which is the argument you need to make if you want to claim that gay marriage is a result of ‘all men are created equal’.)

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sonofstan - February 18, 2014

Yes, indeed….

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RosencrantzisDead - February 18, 2014

I am open to correction or counter-argument, of course, but I agree with yourcousin (if I have him right).

Ultimately, this reduces to a question of power and whether it will be exercised in favour of LGBT people or against. Most of us want the former, but I would hazard a guess that, of we are all honest, this is probably as much a result of a feeling on our part as it is logical argument. This does not imply that the other side are coldly rational – they may be even greater slaves to their passions or certain repressed aspects of their psyche.

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yourcousin - February 18, 2014

Yeah that about sums it up.

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yourcousin - February 18, 2014

CL,
You’re setting up a straw man here. I’m not arguing that there is no connection between the founding documents and modern court rulings on the constitutionality of state and federal laws. Only that it is not nearly as simple and neat as you are making it out to be. There is a difference.

You’re also conflating rhetorical elements surrounding the foundation of the American Republic with the nuts and bolts of modern constitutional law as if they are one and the same. They are not and acting as if they are sheds no light on where we are or where we want to go as a society.

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