Attorney Discerning

Just another poor dumb sinner; trying to do what he can for Christ & His Church

Monday, October 02, 2006


The problem with the transsexual “movement” does not start when a person surgically altered applies for a marriage license. It is not commonly known, but mainstream medical establishments have discontinued this practice.

“Quite clearly, then, we psychiatrists should work to discourage those adults who seek surgical sex reassignment. When Hopkins announced that it would stop doing these procedures in adults with sexual dysphoria, many other hospitals followed suit, but some medical centers still carry out this surgery.” 1

(1) Paul McHugh is University Distinguished Service Professor of Psychiatry at Johns Hopkins University.

The entire article can be found at

It strikes me as common sense that we as a society should help and encourage those who feel they require such surgery to learn to live with the sex they are born to. Rather than offer a permanent and unsatisfactory mutilation.

The “libertarian” arguments presented above is anything but that. Lead by Reason magazine and the like, this new breed of libertarian jettisons there most noble and intellectually serious legacy.

If the goal is less government, anything that threatens the natural family has been proved (in the most real world & dramatic fashion) to lead to much, much more government.

A example of this common sense classical libertarian understanding can be found in our Defend Marriage Resource page.

April/May – 05 Policy Review By Jennifer Roback Morse
Marriage and the Limits of Contract
Overview- A principled libertarian argument for why preserving traditional marriage is essential for limited government.

The sophomoric, indeed juvenile “libertarianism” expressed by statements like, “lets just get the government out of marriage” or “its just another contract” dismisses the well established libertarian understanding of the natural family as a “mediating institution” between the individual and the State.

It not only acts as a bulwark against State encroachment, but acts as a mini-society that lifts the burden off government and puts it on the people responsible.

The more infantile libertarianism is simply a species of leftism meant more to undermine society than intellectually enlighten.

It would seem that the emphasis on a genetic predisposition for homosexuality is politically driven. Eliminating the specter of choice seems to buttress calls for protected status and “equal rights”.

(Note the centrality this argument is given by the Log Cabin Republicans)
The Only Question That Matters: Do People Choose Their Sexual Orientation?
By Chandler Burr

At the same time its understandable that men of the left would want to distance themselves from genetic arguments. Larry Summers can get driven out of academia for merely referencing genetic differences, while whole political movements predicate themselves on the importance of gender.

The homosexual movement affirms that gender is a deeply important human category. Sexual orientation as a concept presumes that gender exists and is an important category for human relationships. It would be odd to presume that gender is all important to adult romantic relationships, yet retains no significance beyond that.

The problem with the (horribly over used) Loving example is its power comes from mere analogy. The problem with analogy is it is exactly that: an analogy.
Its weight raises and falls on the strength of the analogy. Courts have been quick to dismiss this characterization of marriage law with racial segregation. The point of ant—miscegenation laws were to keep the races apart. No one would seriously argue that that is the point of marriage law. Quite the opposite, the intention of marriage law is to bring the two sexes together.

Note this quote rebuke of same-sex “marriage” offered by the plurality in Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

“[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.”

The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

As dismissals of the Living v Virginia case goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually a analogy that doesn’t hold up precisely because it is not the same kind of things being compared.
Actually uou dont need a reason to dismiss the anology.

As the Washington dicesion illustrates

We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State’s DOMA. The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the
dissents’ disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the “color-blind” constitution articulated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman. Here, in contrast, the State’s DOMA simply confirms the common law understanding of marriage as a union of a man and woman. It is the dissent that would abrogate the common law understanding through judicial fiat.

Ramza (wrote)

“Your quoted paragraphs don't really help your point Fitz. First the Washington Supreme court was a 5-4 decision, the 4 said it was unconstitutional. “

And Goodridge was 4 -3. This is not germane except to say others disagree. We all know that.

“Second the two paragraphs you quoted are pretty much this. Marriage is one man one women, anything that not one man one women isn't a marriage, thus there is no equal protection violation. Of course as other pointed out this is a tautology, it is circular logic.”

Hardly, As Justice Cordy wrote in dissent, the majority of the court had -

“transmuted the "right" to marry into a right to change the institution of marriage itself.”1

"only by assuming that 'marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry'.”2

"[i]n context, all of these decisions and their discussions are about the 'fundamental' nature of the institution of marriage as it has existed and been understood in this country, not as the court has redefined it today.” 3

Maintaining that marriage's - “'fundamental' nature is derivative of the nature of the interests that underlie or are associated with it” -and that a an - “examination of those interests reveals that they are either not shared by same-sex couples or not implicated by the marriage statutes.”4

1,2,3,4, - Goodridge v. Dept. of Pub. Health,798 N.E.2d 941, 955 (Mass 2003)
(Justice Cordy dissenting)

“It doesn't help your point, nor does it help the other person's point. It merely distracts. It wastes space in the debate.”
Hardly, numerous courts have rejected the loving v Virginia reasoning as inapplicable. Even the Goodridge court refused to give homosexuals strict scrutiny protection as Loving accorded to race.

”Now will you actually answer the logical underpinnings of Loving? What basis invested in a legitimate state interest does the state have to discriminate? Furthermore this discrimination must be central to upholding that state interest you are trying to further?”

I could do that, except your not being very polite. If you noticed, I only weighed in to reject the Loving analogy. I have done so, as has every court. It simply does not apply, as the NY court says it is of a different “kind”
"Loving is not an entirely perfect analogy in all ways, but it is for a certain set of objections:"
"but marriage has traditionally not included X form of relationship";

As the courts point out (numorious times) anti-misegenastion laws were part and parcel of Jim Crow. Not of marriage law, separation of the races does not equal a fundamental change in the nature of the institution.

"but plaintiff isn't barred from getting married, they are just barred from marrying a certain class of people";

But barring that class (race) does not redefine the fundamental right involved, while including that class (gays/gender) does redefine the fundamental right involved.

"it's not proper to get the courts involved in this"; etc.

Loving –(as it states) is predicated on three separate Constitutional Amendments, the 1957 civil rights act…etceteras. The trend with homosexual rights has no such lineage nor moral weight.

”The "procreation is the core of marriage" argument still suffers from the obvious objection, "but we don't bar folks who can't or don't want to have kids from marrying." Saying such folks are only a minority doesn't advance the ball, because of course gays/lesbians are a minority.”

Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children. Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.

Beyond that, I still haven't heard any explanation of how my sister's marriage to her partner in Mass. a couple of years ago has had any negative effect on any marriage of any heterosexual, including the opponents of gay marriage on this thread. Speaking of forests and trees and some general "devaluation of marriage" is meaningless. You need specifics — how will this hurt whom, exactly, and in what way?

It might interest you to know that before the move was made to “no-fault” divorce” a common refrain among the reformers was.

"What do two people getting divorced have to do with your marriage?"

Gay marriage opponents can't do that because in fact there is no harm to their marriage, my marriage, or anybody else's marriage. For instance, can anybody honestly say that their own, heterosexual marriage, is "devalued" because my sister and her partner are now legally wed?

Most people are heterosexual and only opposite sex pairs can conceive children. Your standard explicitly states that a child’s natural Father (or Mother) is non-essential to marriage, that any combination of adult is sufficient. It further reinforces and locks in the notion that all family forms are inherently equal. They are not. Yes, there is a philosophical maxim that reads – “If it’s everything it’s nothing”. We can’t defend what we can’t define. You are attempting to severe marriage from its historical and biological heritage. The effect is to say that marriage is outdated and any family form including single parenting is acceptable

“Your argument that Loving is distinguishable because it didn't involve "fundamentally redefining the right to marriage" is a tautology.”

No it is not.

“Prior to Loving, black folks in some areas had no fundamental right to marry white folks.”

But they had a fundamental right to “marry” that was being infringed. That right carries with it the very definition that you claim to be some sort of “tautology”

"Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510, 534- 535), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to “marriage,” but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings." 1

1- In re Marriage Cases, Cal. App. 2006, McGuiness, P. J. (writing for the majority.)

your misreading of Supreme Court case law on the subject of marriage: you are making the same mistake the New York Court points out in its recent decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)

Judge Graffeo noted….

“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”2

2 - Andersen v. King County (J. Graffeo concurring)

You use the phrase "necessary link with childbearing" regarding marriage. How many times must it be repeated that there is no legal "necessary link" for heterosexuals?

Yes there is, (read my statement again: this can be reduced to a logical proof) The “necessary link” between childbearing and marriage, is that the later is exclusively limited to the only class of couples capable of bearing children.

Nobody asked me, "so, you wanna have kids, right?" as a precondition to me getting married. Nobody is revoking the marriage license of my straight, married friends who don't want kids, never wanted kids, and aren't going to have kids.

No, the limitation that makes for the “necessary” connection to childbearing is not desire or even ability: rather it is membership within the class capable of childbearing.

Professor Germain Grisez: “Though a male and a female are complete individuals with respect to other functions – for example nutrition, sensation, and locomotion- with respect to reproduction they are only potential parts of a mated pair, which is the complete organism capable of reproducing sexually. Even if the mated pair is sterile, intercourse, provided it is the reproductive behavior characteristic of the species, makes the copulating male and female one organism”