# Looks like someone enjoyed her time in jail



## Homicidal_Squirrel (Sep 14, 2015)

She seems ready to go back. She was already sent to jail for violating the law. Now she wants to violate it again. Listening to her speech made me laugh, especially her complaint that others aren't being "tolerant" of her beliefs.


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## billd91 (Sep 14, 2015)

I think the question has to be asked, if a license is filled out properly, fees are paid, and the couple seeking the license are legally allowed to marry... does she even have the authority to not authorize the license? If she doesn't have any defined discretion, her authority is a rubber stamp and always was. Her whole refusal and everything along with it is just stupid political pageantry.


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## Dioltach (Sep 14, 2015)

I seem to remember reading when she was originally released that her staff were specifically instructed by the court that they could issue the licences without needing her say-so.


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## tomBitonti (Sep 14, 2015)

What messes up my analysis of this issue is that the clerk has an elected position.  She isn't just a hired administrator.  Since the legislative district has chosen to place an elected official in the post, that seems to grant additional options to the official.  That is, if the voters decide that they want a clerk who does not issue licenses, even though that seems to be a disservice, they are getting what they voted for.

If those voters then decide that they don't want the clerk, then there should be an official process to remove her from office.  

Also, I would expect there to be a stated minimum standard to which the state can avail itself to remove the clerk, and that citizens could sue the state to force it to effect a removal based on that standard.

That is, if the clerk just decided (for no reason other than laziness) to not bother to show up to work, the state presumably would have a process to remove the clerk for failing to do the minimum necessary work.

Thx!

TomB


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## Hand of Evil (Sep 14, 2015)

Just create a stamp, "approved by the office" as she does not want to put her name on the documents but as an elected official, she has an obligation to follow the rules.  It is not just equal rights but also separation of church and state.


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## Umbran (Sep 14, 2015)

Dioltach said:


> I seem to remember reading when she was originally released that her staff were specifically instructed by the court that they could issue the licences without needing her say-so.




My understanding is thus:  She has the authority to delegate her deputies to issue licenses.  Originally, she was not issuing them, and also not allowing her deputies to issue them.  She was released under the agreement that she would allow her deputies to do so (this is called "accommodation" and it is required by law that the employer at least try to give reasonable accommodation so long as it doesn't cost too much).  She agreed.

Then, there have been rumors that she would renege on that, as the licenses have *her* name on it, and she claims she cannot in conscience issue the license with her name on it.  The Governor has (again, if I recall correctly) stated that he does not personally have the authority to change the form requirements - it requires the legislature to do that, and the legislature is not in session at the moment.


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## Morrus (Sep 14, 2015)

So obnoxious. Forget the legality of it - what about basic human decency? Is that no longer a Christian value?


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## Umbran (Sep 14, 2015)

tomBitonti said:


> What messes up my analysis of this issue is that the clerk has an elected position.  She isn't just a hired administrator.  Since the legislative district has chosen to place an elected official in the post, that seems to grant additional options to the official.  That is, if the voters decide that they want a clerk who does not issue licenses, even though that seems to be a disservice, they are getting what they voted for.
> 
> If those voters then decide that they don't want the clerk, then there should be an official process to remove her from office.




Actually, the legislature of the State can remove her from office.  An informal poll of the legislature has, to my understanding, shown that they already would have removed her from office, if they'd been in session, but this has all gone on while they were officially off for the summer.  Calling back into a special session is an expenditure of several hundred thousand dollars.  

Once they are in session, her continued position is likely question.  I have heard many of the State legislators are mightily cheesed off that she's making the State look like bumpkins.


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## billd91 (Sep 14, 2015)

Morrus said:


> So obnoxious. Forget the legality of it - what about basic human decency? Is that no longer a Christian value?




Given a fairly bloody history, was it ever? Certainly not as we conceive of basic human decency today.


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## Janx (Sep 14, 2015)

Morrus said:


> So obnoxious. Forget the legality of it - what about basic human decency? Is that no longer a Christian value?




I recall hearing of the ancient British tradition of Resigning in Protest (on NPR, so blame them for stereotyping you guys and me for spelling it wrong).

It seems like that would have been the proper way for her to show her objection to the Supreme Court order.

Based on other info about her, instead this is just more data-points in the bucket that she is a low class, hate mongering nepotist.


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## Dannyalcatraz (Sep 14, 2015)

In no particular order:

1) Yes, basic human decency IS a Christian value.  It is just that not all Christians practice it.  A saying has often been attributed to Gandhi, “I like your Christ, I do not like your Christians. Your Christians are so unlike your Christ.”  

FWIW, the same could be said of almost any major faith tradition- most enshrine some form of The Golden Rule among their fundamental tenets (in Christianity, it's #2, according to JC Himself), but practitioners, being human, often fall short of the ideal.

Look at the history of nearly any major religion, and you'll find at least one period of fanatical, violent, militant "evangelization" or intolerance.  To paraphrase a certain commercial series, it's what people do.

2) American religious conservatives have lost sight of the true purpose of enshrining the separation of Church & state, the anti-establishment clause, the Federal RFRA act and countless legal decisions: they're aegises against persecution and arrest, not swords to be used against those who believe & behave differently.

Because the USA is a nation of laws that is merely demographically Christian and not- as some believe- a Christian nation, the religious right has bible-blinders on.  They cannot envision scenarios in which- if their interpretation of religious freedom laws were upheld- they would end up suffering because others could make similar religious claims to deny services.

An Inuit clerk whose faith bars women from hunting could deny Sarah Palin a gun license.  Orthodox Jewish or Hindu city inspectors could deny key licenses to restaurants serving pork or beef, respectively.  There is even a recent case of a Muslim stewardess who may have been been fired for not serving alcohol to passengers who could legally order it.

Heck- it wouldn't even have to be another faith, just another sect: there are over 30,000 sects of 
Christianity  and not all are OK with divorce.  #1 on THAT list would be Roman Catholicism, which also happens to be the biggest branch in the world, and- surprising to some- the most numerous even here in the USA.  So what happens if an old-school Opus Dei type clerk decides against issuing marriage licenses to the divorcees out there?

3) there is a very real sense in which the action of the Kentucky clerk may violate not only discrimination laws, but also the anti-establishment clause.  The gist is this: she has used her government position to enforce a particular religious viewpoint on a legal practice to the exclusion of other religious or non-religious interpretations.

U.S. Code Title 18 Part I Chapter 13 § 242 covers "color of law" abuses:



> Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.




Here's a breakdown from the DoJ's website:


> Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
> 
> For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.




So not only could she face more jail time based on renewal of the contempt charge, she could- and should, IMHO- face even more time under Federal law.  If you hear about FBI involvement in this case, you'll know it's based on this.


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## Umbran (Sep 14, 2015)

Dannyalcatraz said:


> 3) there is a very real sense in which the action of the Kentucky clerk may violate not only discrimination laws, but also the anti-establishment clause.  The gist is this: she has used her government position to enforce a particular religious viewpoint on a legal practice to the exclusion of other religious or non-religious interpretations.
> 
> U.S. Code Title 18 Part I Chapter 13 § 242 covers "color of law" abuses:




I'm not sure how I see it applies.  It specifically states it is about "on account of such person being an alien, or by reason of his color, or race"

This law does not seem to apply to action against someone based on sexual orientation.  It should, or some law should, but this one doesn't seem to.


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## tomBitonti (Sep 14, 2015)

Janx said:


> I recall hearing of the ancient British tradition of Resigning in Protest (on NPR, so blame them for stereotyping you guys and me for spelling it wrong).
> 
> It seems like that would have been the proper way for her to show her objection to the Supreme Court order.
> 
> Based on other info about her, instead this is just more data-points in the bucket that she is a low class, hate mongering nepotist.




I can't speak to the latter, but maybe we don't have to go there?

I'm with a resignation in protest, except, as an elected official, she can make a case that she was elected based on her character, and that she cannot in due conscious, administer the laws as they have been newly presented.  Then, as an elected official, she could claim a duty to make decisions based on her character as an elected official.

A question would be the particular oaths she was required to take when she took office, and what priorities are expressed by those oaths.

Thx!

TomB


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## Dannyalcatraz (Sep 14, 2015)

Umbran said:


> I'm not sure how I see it applies.  It specifically states it is about "on account of such person being an alien, or by reason of his color, or race"
> 
> This law does not seem to apply to action against someone based on sexual orientation.  It should, or some law should, but this one doesn't seem to.




Currently, is IS an ill-fitting shoe, but some of the cases under it have included some expansive language where judges have opined about other applications of the law where the discriminatory practices are similar.  This dicta (as it is called) would indicate a judicial system that is open to the possibility of applying it to analogous circumstances if such a claim was made.

...which _would_ result in a trip to the SCOTUS, no question.

And it isn't like Title 18 §242 is the only color of law statute out there- they exist at the state & municipal level as well.


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## Dannyalcatraz (Sep 14, 2015)

tomBitonti said:


> I can't speak to the latter, but maybe we don't have to go there?
> 
> I'm with a resignation in protest, except, as an elected official, she can make a case that she was elected based on her character, and that she cannot in due conscious, administer the laws as they have been newly presented.  Then, as an elected official, she could claim a duty to make decisions based on her character as an elected official.
> 
> ...




She can't win.  Here are the oaths in question:

http://www.lrc.state.ky.us/legresou/constitu/228.htm
http://www.lrc.ky.gov/statutes/statute.aspx?id=21176

The key is in section 228 of the Kentucky Constitution, the first oath:



> ...I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States...




You'll note that she- like all government officials- is sworn to uphold the laws of the US Constitution.  Since marriage has been defined as a right under said document, applicable to hetero- AND homosexual couples, she has no basis upon which to say she won't issue marriage licenses without violating her oath.


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## tomBitonti (Sep 14, 2015)

Dannyalcatraz said:


> She can't win.  Here are the oaths in question:
> 
> http://www.lrc.state.ky.us/legresou/constitu/228.htm
> http://www.lrc.ky.gov/statutes/statute.aspx?id=21176
> ...




Yeah, looks like all she can do is resign in protest.  Her duty is to carry out the law.  To show character, she would have to administer the law despite her personal disapproval.

Quoting the first, since I'm finding the section on duels to be humorous:



> Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of .... according to law; and *I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God. *




Bold added by me.

Edit: Seems that other folks find it ... odd ... as well.  See, for example: http://www.npr.org/templates/story/story.php?storyId=124616129

Thx!

TomB


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## miniaturehoarder (Sep 14, 2015)

Some folks feel laws are written by legislature not activist judges.

Me, I'm enjoying the spectacle.


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## Homicidal_Squirrel (Sep 14, 2015)

Morrus said:


> So obnoxious. Forget the legality of it - what about basic human decency? Is that no longer a Christian value?



Nope, and it probably never was.


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## Dannyalcatraz (Sep 15, 2015)

As for the idiotic debate over the validity of licenses issued against her will/without her signature...according to KY statute 61.035, “Any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.” 

http://www.lrc.ky.gov/statutes/statute.aspx?id=22875

Scarily, it took me minutes to find that, using an iPad & search engine, located in Texas.  I didn't even use specialty law databases, just Safari. Imagine what it would be like if politicians, lawyers and media types in KY put in as much effort as I did.

I swear, there is a creeping laziness in legal research being done out there that I first noticed in the run up to Obama's first election...


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## Dannyalcatraz (Sep 15, 2015)

miniaturehoarder said:


> Some folks feel laws are written by legislature not activist judges.




A central function of a judge's job is to interpret laws.  Has been throughout US legal history.  Conservatives & liberal justices alike use that power.  

IOW, "judicial activism" is really just "I didn't like that ruling that went against me".


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## cmad1977 (Sep 15, 2015)

Judicial activism is code for judges doing their jobs.


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## Dannyalcatraz (Sep 15, 2015)

cmad1977 said:


> Judicial activism is code for judges doing their jobs.




Well...yeah, but the phrase is never used by the people who are happy with the verdict, which is why I said what I said.


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## Ryujin (Sep 15, 2015)

Typical case of a "Christian" applying the Old Testament (fire, brimstone, judgment) to others, but claiming the New Testament (love, forgiveness) for herself. She refuses to permit the marriage of people for whom there are statements against in the old book but, by that book, should be stoned or burnt herself. I rather like this little piece from "The West Wing":

[video=youtube;DVL-gA1KpxQ]https://www.youtube.com/watch?v=DVL-gA1KpxQ[/video]


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## Umbran (Sep 15, 2015)

Ryujin said:


> Typical case of a "Christian" applying the Old Testament (fire, brimstone, judgment) to others, but claiming the New Testament (love, forgiveness) for herself.




And, claiming the Freedom of Worship clause to herself, but denying the Establishment Clause to others.

Something that many seem to miss, is that she's not an "employee".  She's *part of the government*, and that constrains her rights. This is beyond the question of whether a baker can be forced to make a cake for a gay wedding.  If she puts her personal interpretation of God's law into policy in her workplace, she's in pretty direct violation of the Establishment Clause.

George Takei had a piece on this.  He's not a lawyer, but much of the reasoning is sound.  http://www.thedailybeast.com/articles/2015/09/14/how-kim-davis-violated-the-first-amendment.html


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## Ryujin (Sep 15, 2015)

Umbran said:


> And, claiming the Freedom of Worship clause to herself, but denying the Establishment Clause to others.
> 
> Something that many seem to miss, is that she's not an "employee".  She's *part of the government*, and that constrains her rights. This is beyond the question of whether a baker can be forced to make a cake for a gay wedding.  If she puts her personal interpretation of God's law into policy in her workplace, she's in pretty direct violation of the Establishment Clause.
> 
> George Takei had a piece on this.  He's not a lawyer, but much of the reasoning is sound.  http://www.thedailybeast.com/articles/2015/09/14/how-kim-davis-violated-the-first-amendment.html




I read that. Like many, I follow Takei on Facebook. She's in breach of her oath. If she wants to deny people their Constitutional Rights based on her religious belief, then let her become a martyr to her cause.


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## Janx (Sep 15, 2015)

Ryujin said:


> I read that. Like many, I follow Takei on Facebook. She's in breach of her oath. If she wants to deny people their Constitutional Rights based on her religious belief, then let her become a martyr to her cause.




That wouldn't be good.

We have a bunch of religious extremists like her looking to make our country match their vision or religious law.

I'm pretty sure my brand of "kill 'em all" while entertaining in a Bruce Willis film kind of way, will just feed these kind of zealots.

There's got to be a better way of dealing with people with really really bad ideas.


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## Ryujin (Sep 15, 2015)

Janx said:


> That wouldn't be good.
> 
> We have a bunch of religious extremists like her looking to make our country match their vision or religious law.
> 
> ...




I should have put the word martyr in quotes because by that I actually meant impeached, prosecuted, and jailed rather than stoned for adultery, or burnt for wearing cloth of mixed type


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## Ryujin (Sep 15, 2015)

Dannyalcatraz said:


> Well...yeah, but the phrase is never used by the people who are happy with the verdict, which is why I said what I said.




It also seems to be a social conservative catch-phrase meaning "upholding The Constitution for something in which I do not believe."


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## Janx (Sep 15, 2015)

Ryujin said:


> It also seems to be a social conservative catch-phrase meaning "upholding The Constitution for something in which I do not believe."




Much like "legislating from the bench" being another catch-phrase they use for the same thing.

Or like "cram it down our throats" being used for every law that passed a vote that the opposition didn't like.

These tend to be the same people who threatened to leave the country when Obama got elected or have Texas secede.

One of the many things that rub me wrong is these folks claim to be patriots, yet act like poor sports when their side loses to the process of an election or vote, which is the very mechanism that they should be patriotic about.


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## Dannyalcatraz (Sep 15, 2015)

Janx said:


> That wouldn't be good.
> 
> We have a bunch of religious extremists like her looking to make our country match their vision or religious law.




I don't know if anyone noticed that some of her grassroots supporters are asking that her deputies be put on trial for issuing licenses...



> I'm pretty sure my brand of "kill 'em all" while entertaining in a Bruce Willis film kind of way, will just feed these kind of zealots.
> 
> There's got to be a better way of dealing with people with really really bad ideas.



Well...I don't have an answer beyond "keep talking to them", plus the classic admonishment:


> He who fights with monsters should be careful lest he thereby become a monster. And if thou gaze long into an abyss, the abyss will also gaze into thee.
> 
> ~ Nietzche, Beyond Good and Evil


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## Janx (Sep 15, 2015)

Dannyalcatraz said:


> I don't know if anyone noticed that some of her grassroots supporters are asking that her deputies be put on trial for issuing licenses...
> 
> 
> Well...I don't have an answer beyond "keep talking to them", plus the classic admonishment:




I never subscribed to the heroic "if I kill the bad guy, I'll be just like him" saturday morning cartoon ethics lesson.  Sometimes it's pretty clear that the wife beater, the racist and the power hungry deputy are bad guys and you just need to shoot them before more damage happens.  Other times, it's not clear or there's a softer approach that'd be better.  I suspect the distinction is partly that Merle is here, he is actively a dick, and bang, problem solved.  Versus the faceless horde of nutjobs who support a variety of bad ideas.

In any event, the right wing extremists will at some point be more than happy to shoot, poison or blow-up us regular folk.  Oh wait, since 9/11, they been the majority of US terrorism already.

It really bums me out that there's not a solution. Shooting them will just escalate them, and talking to deaf people is a waste of breath.


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## Ryujin (Sep 15, 2015)

Dannyalcatraz said:


> I don't know if anyone noticed that some of her grassroots supporters are asking that her deputies be put on trial for issuing licenses...
> 
> 
> Well...I don't have an answer beyond "keep talking to them", plus the classic admonishment:




An excellent use of that quote. Many vocal Atheists could learn much from those few words. There is no need for attack, when defence speaks volumes.


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## Janx (Sep 15, 2015)

Ryujin said:


> An excellent use of that quote. Many vocal Atheists could learn much from those few words. There is no need for attack, when defence speaks volumes.




On the vocal atheism front, I've got a few friends who are fond of frequently posting "why religion is badwrongfun" type stuff.  I just don't see the point of being aggressive on topics like that.

I know the Pledge of Allegiance was written by a minister.  And it did not originally have "Under God" at the end.  And that Congress added it in 1950-something as an anti-communism PR move.

I don't feel an overwhelming need to correct that situation.  I can always leave off "Under God" when I say the pledge if it comes up.

I don't see it as my job or duty to point out all the inaccuracies, contradictions in somebody's religion.  It's not appropriate to convert them.  It's only appropriate for all of us to act in a way that remains compatible with each other.  Which is what the separation of church and state concept helps address.

I've seen the atheism meme around about being against the "Coexist" bumper sticker.  This mindset leads to the extremism like we see from religious fanatics and the subject of this very thread.  Refusing to adopt a mindset that will allow you to work with, do business with, live near people with differing views/religions/lifestyles places that person in a bucket where they are effectively an enemy of modern cooperating society.


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## was (Sep 15, 2015)

...IMO, the main issue is not about her personal religious beliefs.  It's about her being able to fulfill her duties as a government official.  As an individual, she's free to hold whatever views she likes.  As an employee of the state, she's required to comply with whatever directives are issued by that state.  If she feels unable to follow those directives, she is free to seek new employment.


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## Ryujin (Sep 15, 2015)

Janx said:


> On the vocal atheism front, I've got a few friends who are fond of frequently posting "why religion is badwrongfun" type stuff.  I just don't see the point of being aggressive on topics like that.
> 
> I know the Pledge of Allegiance was written by a minister.  And it did not originally have "Under God" at the end.  And that Congress added it in 1950-something as an anti-communism PR move.
> 
> ...




Full disclosure: In high school I was "bullied" by Evangelical Christians who told me that I was going to Hell, because I hadn't been born again.

Where things like the contradictions in religion are concerned, I consider that to be the sort of thing that you bring up when you are under attack by religious zealots. For example my response to the "born again" thing, in high school, tended to be something along the lines of, "Well excuse me for getting it right the first time and not needing an ecclesiastical Mulligan." My previous comments regarding the person under discussion being rather selective in which parts of the Bible she chooses to adhere to are in response to her public declarations and I would not otherwise have typed them.

And, as I said, defence is frequently more effective than attack. It's fairly easy to make a foaming at the mouth zealot look the fool. Call it the parry/riposte of the debating world


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## Dannyalcatraz (Sep 15, 2015)

Janx said:


> I never subscribed to the heroic "if I kill the bad guy, I'll be just like him" saturday morning cartoon ethics lesson.  Sometimes it's pretty clear that the wife beater, the racist and the power hungry deputy are bad guys and you just need to shoot them before more damage happens.  Other times, it's not clear or there's a softer approach that'd be better.  I suspect the distinction is partly that Merle is here, he is actively a dick, and bang, problem solved.  Versus the faceless horde of nutjobs who support a variety of bad ideas.



I don't think it is all that cartoonish.

If you shoot evil killer guy #1, how you react to that- regretful, repulsed...exultant- may affect your comfort with use of deadly force.  Travel far enough down that path and you become a violent vigilante...which gets you squarely in the sights of law enforcement.

Or consider how many Americans are willing to enact the same kind of religious-based indoctrination here that they find so repulsive in the Middle East.



> In any event, the left wing extremists will at some point be more than happy to shoot, poison or blow-up us regular folk.  Oh wait, since 9/11, they been the majority of US terrorism already.




Umm...you mean right wing, don't you?


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## Dannyalcatraz (Sep 15, 2015)

was said:


> ...IMO, the main issue is not about her personal religious beliefs.  It's about her being able to fulfill her duties as a government official.  As an individual, she's free to hold whatever views she likes.  As an employee of the state, she's required to comply with whatever directives are issued by that state.  If she feels unable to follow those directives, she is free to seek new employment.



That is it in a nutshell.


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## Ryujin (Sep 15, 2015)

Dannyalcatraz said:


> I don't think it is all that cartoonish.
> 
> If you shoot evil killer guy #1, how you react to that- regretful, repulsed...exultant- may affect your comfort with use of deadly force.  Travel far enough down that path and you become a violent vigilante...which gets you squarely in the sights of law enforcement.
> 
> ...




Ah, yes. That ever so narrow line between doing what needed to be done based on the situation, and falling into the "he done needed killin'" mindset.


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## Dannyalcatraz (Sep 15, 2015)

Ryujin said:


> Full disclosure: In high school I was "bullied" by Evangelical Christians who told me that I was going to Hell, because I hadn't been born again.
> 
> Where things like the contradictions in religion are concerned, I consider that to be the sort of thing that you bring up when you are under attack by religious zealots. For example my response to the "born again" thing, in high school, tended to be something along the lines of, "Well excuse me for getting it right the first time and not needing an ecclesiastical Mulligan." My previous comments regarding the person under discussion being rather selective in which parts of the Bible she chooses to adhere to are in response to her public declarations and I would not otherwise have typed them.
> 
> And, as I said, defence is frequently more effective than attack. It's fairly easy to make a foaming at the mouth zealot look the fool. Call it the parry/riposte of the debating world




I was just reading an article a couple days ago wherein the writer- a Mormon- listed incidents in which religious conservatives berated his children for not being the right kind of Chrisitans...and this was done by someone who was actively evangelizing for converts.

Clearly, someone was unclear on the concept of who can be called for conversion (namely, anyone) and how best to do it (don't insult them, at least).

In my own past, I had run-ins with fellow Chrisitians.  My HS- a private Catholic* all-boys school- made national news back in the early 1980s when a Baptist private school decided they were not going to play us anymore because we were Catholics...nevermind they had been playing us for years, and that the fact of our Catholicism was easily discernible since the school's name is one that goes back to the roots of the monastic tradition and has only ever been associated with Catholicism.

IOW, Gandhi had us pegged.

As for your methodology...well let's stipulate that I'm a typical American Catholic: my reading of the bible has been limited to chunks here & there.  But despite my not reading it cover-to-cover, my scholarship over what I HAVE read is good enough that when I get drawn into debates, the aphorism about the Devil quoting scripture often gets lobbed in my general direction.  

I had some Word of Faith devotees- you know, those who followed televangelist Bob Tilton?- approach me (and some of my fellow HS grads) one night.  By the time I was finished arguing with them about the Gift Of Tongues, they were in full, stammering retreat.









* as in, owned & operated by Catholic monks, but open to boys of any faith.


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## Janx (Sep 15, 2015)

Dannyalcatraz said:


> Clearly, someone was unclear on the concept of who can be called for conversion (namely, anyone) and how best to do it (don't insult them, at least).



It is against my religion to convert anybody.  To do so is to have the hubris to assume that you have chosen a religion more rightly than somebody else's choice.  Somebody wants to learn about my religion, they can ask.  And I sure don't want to hear about theirs unless I ask.




Dannyalcatraz said:


> In my own past, I had run-ins with fellow Chrisitians.  My HS- a private Catholic* all-boys school- made national news back in the early 1980s when a Baptist private school decided they were not going to play us anymore because we were Catholics...nevermind they had been playing us for years, and that the fact of our Catholicism was easily discernible since the school's name is one that goes back to the roots of the monastic tradition and has only ever been associated with Catholicism.




Something like this happened to a friend of mine out your way in Denton when he was a teen.  His baptist church got it in their head to write letters to Catholics because "they weren't Christians."  Which considering the Catholic church pretty much saved the day getting the religion past the dark ages, I call BS on the baptists just for that nonsense.  He told them where to stick their letters.



Dannyalcatraz said:


> As for your methodology...well let's stipulate that I'm a typical American Catholic: my reading of the bible has been limited to chunks here & there.  But despite my not reading it cover-to-cover, my scholarship over what I HAVE read is good enough that when I get drawn into debates, the aphorism about the Devil quoting scripture often gets lobbed in my general direction.
> 
> I had some Word of Faith devotees- you know, those who followed televangelist Bob Tilton?- approach me (and some of my fellow HS grads) one night.  By the time I was finished arguing with them about the Gift Of Tongues, they were in full, stammering retreat.




One of those weird stats I heard is that atheists score higher on "bible knowledge" than Christians do.  As NBC says, "the more you know..."

I don't mean that as a diss on the religion, but it seems the folks doing the worst behavior sure don't really know what's in their own book.


----------



## Ryujin (Sep 15, 2015)

Dannyalcatraz said:


> I was just reading an article a couple days ago wherein the writer- a Mormon- listed incidents in which religious conservatives berated his children for not being the right kind of Chrisitans...and this was done by someone who was actively evangelizing for converts.
> 
> Clearly, someone was unclear on the concept of who can be called for conversion (namely, anyone) and how best to do it (don't insult them, at least).
> 
> ...




Tilton. Yeesh. One of the "send me money and be saved", "cast your bread upon the waters" frauds.


----------



## Dannyalcatraz (Sep 15, 2015)

Janx said:


> One of those weird stats I heard is that atheists score higher on "bible knowledge" than Christians do.  As NBC says, "the more you know..."
> 
> I don't mean that as a diss on the religion, but it seems the folks doing the worst behavior sure don't really know what's in their own book.




Oh, you got THAT right.  One of the aforementioned Word of Faithers trying to convert me asked me about who would save us from the "Powers, Thrones, Principalities and Dominions" if not ministers like Tilton.

I pointed out to him that, along with Seraphim, Cherubim, Archangels, Virtues, etc., those were ANGELS.


----------



## Umbran (Sep 15, 2015)

Janx said:


> On the vocal atheism front, I've got a few friends who are fond of frequently posting "why religion is badwrongfun" type stuff.




The usual term for this is not "atheist" but "anti-theist".  Not just, "I don't believe," but, "I don't believe, and I find that belief in others is harmful."



> I just don't see the point of being aggressive on topics like that.




There often isn't a real point - it isn't as if the believer is going to be moved by it.  But...



> I don't feel an overwhelming need to correct that situation.  I can always leave off "Under God" when I say the pledge if it comes up.




Some would say the precedent matters, as does the indoctrination of kids who have to say it every day in school.



> I don't see it as my job or duty to point out all the inaccuracies, contradictions in somebody's religion. It's not appropriate to convert them.  It's only appropriate for all of us to act in a way that remains compatible with each other.  Which is what the separation of church and state concept helps address.




There is something to be said for pointing them out when the religious are shoving themselves in your face.  If you are living your life, and your religion is in your heart, that is good.  If you come after my gay friends using Leviticus quotes as justification, then it is time for a few words.  Not that the believer will change their position, as it isn't about converting the believer, but 1) my gay friends need to see that I support them, and 2) making public some of what should be our common precepts for governance, behavior, and decision making has value.  The believer may have forgotten them, or thrown them aside, but I can reinforce them in those who haven't gone to that extreme.


----------



## Dannyalcatraz (Sep 15, 2015)

Ryujin said:


> Tilton. Yeesh. One of the "send me money and be saved", "cast your bread upon the waters" frauds.




Yeah.

After he got run out of Texas exposed as a fraud in the early 1990s, he moved to Florida and started over with something called "Success in Life" or some such.  Same basic message as in other "prosperity gospel" sermons- including his own- but secularized.  Made a bunch of episodes, and started airing them in the mid/late 1990s.

He's still raking in millions annually, last I checked...and when last I checked, he hadn't made a new episode in this century.


----------



## Ryujin (Sep 15, 2015)

Dannyalcatraz said:


> Yeah.
> 
> After he got run out of Texas exposed as a fraud in the early 1990s, he moved to Florida and started over with something called "Success in Life" or some such.  Same basic message as in other "prosperity gospel" sermons- including his own- but secularized.  Made a bunch of episodes, and started airing them in the mid/late 1990s.
> 
> He's still raking in millions annually, last I checked...and when last I checked, he hadn't made a new episode in this century.




I recently watched a documentary about their con. Can't remember where I picked it up, but it was likely via Youtube. Reminded me of Sunday morning channel flipping, running across Ernest Angley with his brazen, "Send me five dollars, ten dollars, twenty dollars.... whatever you can afford and you WILL BE SAVED!"


----------



## Dannyalcatraz (Sep 15, 2015)

I found this:
http://www.huffingtonpost.com/lisa-...esus_b_8134048.html?ncid=txtlnkusaolp00000592

What compelled me to post that link was a paragraph towards the end, in which the atheist writer exhorts moderate & liberal  Christians in the USA to do exactly what many Americans have asked of moderate Muslims: speak up against the conservative and radical right who are presenting the most visible and audible messages of their faiths.

Good message.

Re: televangelists

A couple years ago, I stumbled on a blog by an evangelical minister.  Not my usual read, but he got my attention.  In his post, he did a wonderful takedown on the big name televangelists- and some unknown to me, at least- who were preaching some kind of variant of the prosperity gospel.  I should have bookmarked it, because it's was a well thought-out, theologically grounded, thorough, and scholarly piece.  But as a blog, it probably only reached a few thousand of his followers and some random traffic like myself.

Edit: this isn't it, but it covers much of the same ground:

http://www.huffingtonpost.com/pastor-rick-henderson/osteen-meyer-prosperity-gospel_b_3790384.html


----------



## Ryujin (Sep 16, 2015)

I've never understood this "Prosperity Gospel." It's as if they're preaching you can fool God into believing that you're giving of yourself without ulterior motive, so that you can become a millionaire. What use a god who can be tricked with such a moral shell game?


----------



## Rabulias (Sep 16, 2015)

John Oliver did an episode of _Last Week Tonight_ about televangelists. Robert Tilton was a prominent focus.

https://www.youtube.com/watch?v=7y1xJAVZxXg


----------



## Ryujin (Sep 16, 2015)

Rabulias said:


> John Oliver did an episode of _Last Week Tonight_ about televangelists. Robert Tilton was a prominent focus.
> 
> https://www.youtube.com/watch?v=7y1xJAVZxXg




I saw that. In fact I think it was from that, that I was forwarded to the doc I remember watching.


----------



## Homicidal_Squirrel (Sep 16, 2015)

Rabulias said:


> John Oliver did an episode of _Last Week Tonight_ about televangelists. Robert Tilton was a prominent focus.
> 
> https://www.youtube.com/watch?v=7y1xJAVZxXg




Sadly John Oliver and Wanda had to shut it down.


----------



## Mustrum_Ridcully (Sep 16, 2015)

tomBitonti said:


> I can't speak to the latter, but maybe we don't have to go there?
> 
> I'm with a resignation in protest, except, as an elected official, she can make a case that she was elected based on her character, and that she cannot in due conscious, administer the laws as they have been newly presented.  Then, as an elected official, she could claim a duty to make decisions based on her character as an elected official.
> 
> ...



I don't know much about the USA, but I storngly suspect that just because you're elected doesn't allow you to ignore or violate the law. For example: 
Even if everyone in your community agrees that serving alcohol to minors is fine, if it's against the law, an elected sheriff would most likely still do something against people giving alcohol to minors.

That someone is elected into office mostly represents that you trust this person to uphold the law and act within the constraints of the law to improve  and support your community.


----------



## tomBitonti (Sep 16, 2015)

Mustrum_Ridcully said:


> I don't know much about the USA, but I storngly suspect that just because you're elected doesn't allow you to ignore or violate the law. For example:
> Even if everyone in your community agrees that serving alcohol to minors is fine, if it's against the law, an elected sheriff would most likely still do something against people giving alcohol to minors.
> 
> That someone is elected into office mostly represents that you trust this person to uphold the law and act within the constraints of the law to improve  and support your community.




What would matter is how the position is represented.  That's why I asked about the oaths.  If there something in the oath that expressed a strong representation of the voters or brought up personal character the issue seems more complex.

But I think you are right.  An elected official, even if they take an oath to represent the ideals of a community and act with good character according to the standards of the community cannot deprive folks of their rights.

Maybe a stretch: If congress blocks funding overall to pay for medical expenses because of objections to medically necessary abortions, how much different is that?

Thx!
TomB


----------



## Janx (Sep 16, 2015)

tomBitonti said:


> What would matter is how the position is represented.  That's why I asked about the oaths.  If there something in the oath that expressed a strong representation of the voters or brought up personal character the issue seems more complex.
> 
> But I think you are right.  An elected official, even if they take an oath to represent the ideals of a community and act with good character according to the standards of the community cannot deprive folks of their rights.
> 
> ...




I suspect the difference is that congress gets to make laws.  And paying for something or not paying for something isn't necessarily a right.

Whereas, the County Clerk's job is largely to hand out pieces of paper with a signature on it.  In theory, the only lawful reason she can refuse service is if a person was fixing to do something unlawful with that piece of paper.  Like marry a pig.

I'm not even sure why a County Clerk is needed, other than bureaucracy.  Surely a robot or web form could replace her entire office.


----------



## Umbran (Sep 16, 2015)

tomBitonti said:


> What would matter is how the position is represented.  That's why I asked about the oaths.




Detailed oaths aside - the 14th amendment (and the Equal Protection clause) has already been ruled to apply to all levels of government - Federal, State, and Local.  The highest court of the land has ruled that Equal Protection applied to gays and marriage.

This is not objecting to some podunk local ordinance.  This is the Constitution we are talking about.  Even if the local oath did not say, "...and uphold the Constitution of the United States," that does mean the law does not apply.



> Maybe a stretch: If congress blocks funding overall to pay for medical expenses because of objections to medically necessary abortions, how much different is that?




In a legal sense, very different.  The issue at hand isn't just applying religious law instead of the law of the land.  The Constitution guarantees equal protection under the law.  You cannot offer a legal status (married) to one group of people, but not another.  If Congress chose to fund abortions to one class of people, but not another, that would be a violation of Equal Protection.  Pulling funding entirely is providing the same (lack of) service to all, and so would not be an issue in this sense.

It is possible for folks to have objections to abortion without religious motivation, and thereby the choice to fund or not is not necessarily an Establishment Clause violation.  Note that the Bible says, "Thou shalt not commit murder," but we have laws against murder, and that's okay.


----------



## tomBitonti (Sep 16, 2015)

I was wondering the same thing about this being an elected position.  Maybe the position had more to it years ago?  Or maybe it's a juicy bit of pork for the dominant party?  That the position is an elected one seems very strange to me.

I don't think the oath or the mechanism for removal matters for whether the clerk would go to jail, but it might matter as to whether she would be removed from office.

For Congress, there have been a lot of laws which were struck down because they did not include an exception for medically necessary abortions.  (That is my recollection.)  What if Congress imposes a shutdown because they won't allow any abortions in a particular funding bill (even medical ones)?

Thx!

TomB


----------



## Ryujin (Sep 16, 2015)

Mustrum_Ridcully said:


> I don't know much about the USA, but I storngly suspect that just because you're elected doesn't allow you to ignore or violate the law. For example:
> Even if everyone in your community agrees that serving alcohol to minors is fine, if it's against the law, an elected sheriff would most likely still do something against people giving alcohol to minors.
> 
> That someone is elected into office mostly represents that you trust this person to uphold the law and act within the constraints of the law to improve  and support your community.




This is where the judiciary acts as a check and balance against abuses by elected officials. Sure, she can claim that she's acting on behalf of the electorate, but then the judiciary can (has) slap her down for failing to do her elected duty. Hopefully the cycle will repeat and when she feels enough like a whack-a-mole, she'll finally give up and resign.


----------



## Dannyalcatraz (Sep 16, 2015)

I forget where it was, but there was another clerk who was opposed to gay marriage.  That one, however, didn't make news because- among other things- he/she suggested that the state could accommodate both sides by making the process of getting a marriage license as simple as downloading a form from tehnstwte's computers.


----------



## Janx (Sep 16, 2015)

Umbran said:


> In a legal sense, very different.  The issue at hand isn't just applying religious law instead of the law of the land.  The Constitution guarantees equal protection under the law.  You cannot offer a legal status (married) to one group of people, but not another.  If Congress chose to fund abortions to one class of people, but not another, that would be a violation of Equal Protection.  Pulling funding entirely is providing the same (lack of) service to all, and so would not be an issue in this sense.




One legal loophole the KY Clerk seems to have used is that she refused to grant ANY licenses.  Thus, though her reason was discriminatory/religious, her actions were technically not.  Odds are a lawyer (on her side) told her to play it that way when she decided to start this little strike.


----------



## Dannyalcatraz (Sep 16, 2015)

Janx said:


> One legal loophole the KY Clerk seems to have used is that she refused to grant ANY licenses.  Thus, though her reason was discriminatory/religious, her actions were technically not.  Odds are a lawyer (on her side) told her to play it that way when she decided to start this little strike.




It is only a loophole in the sense that, by doing so, she is attempting to avoid the claim that she is singling out gays.

It isn't a loophole in the sense that she's denying guaranteed fundamental Constitutional rights to everyone, and not performing the duties of her office.  IOW, even while attempting to appear non-discriminatory, she still runs afoul of other laws.


----------



## Janx (Sep 16, 2015)

Dannyalcatraz said:


> It is only a loophole in the sense that, by doing so, she is attempting to avoid the claim that she is singling out gays.
> 
> It isn't a loophole in the sense that she's denying guaranteed fundamental Constitutional rights to everyone, and not performing the duties of her office.  IOW, even while attempting to appear non-discriminatory, she still runs afoul of other laws.




by hook or by crook, she's guilty of something.

I merely suspected that she denied all services in order to avoid "actually discriminating".  You figure at some point, all protests as some point have to break a law to make their point, and you have to choose which law that is, and make sure you do your best on the others.  She knew that if she simply refused to service gays, she'd be off to FPMITA prison for sure.  So she likely weaseled to the plan she did.


----------



## Umbran (Sep 16, 2015)

Janx said:


> One legal loophole the KY Clerk seems to have used is that she refused to grant ANY licenses.  Thus, though her reason was discriminatory/religious, her actions were technically not.




She began by denying them to gays back on June 26th, then expanded to refusing to issue all licenses.  It is on July 1 that four couples (two gay, two hetero) she had denied filed a lawsuit, and the court got involved.

When she phrases it as, "I will not grant any licenses because I must grant them to gays, and that is against my religion" she is in violation of both the Establishment and Equal Protection clauses.  I presume she gave her reasons in court - I have not read transcripts.  But, she made such a statement on August 31st, in response to the U.S. Supreme Court's refusal to grant her stay request:

"I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God's definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God's Word."

So, no shelter for her.

Among her duties as clerk is to process licenses along well-defined guidelines.  As soon as she refuses, she's not doing her job.  As soon as she gives those reasons, she's also in violation of Constitutional law.


----------



## tomBitonti (Sep 16, 2015)

I was wondering about that.

If your _intent_ is to deny licenses to gay couples, and you _means_ is to deny licenses to everyone, it would seem that you still intended to discriminate.

It seems to be a fine line.

Although, technically, you aren't discriminating against specific couples based on their race, so I'm not sure if racial discrimination charges apply.

And, not sure how you would prove intent in a general case.  In this case, because of specific statements which were made, I'm thinking that wouldn't be a problem.

At some point, one gets to feel a bit of consternation over what is, basically, sophistry.  I wonder what a typical judges response would be, or, are they very good at seeing through pretense.  If I were judging the situation, trying to cleverly avoid a law would not be greeted very well.

(I see this in code a lot.  My basic rule is to weed out _unnecessarily clever_ code, rather with prejudice.)

Thx!
TomB


----------



## Umbran (Sep 16, 2015)

tomBitonti said:


> Although, technically, you aren't discriminating against specific couples based on their race, so I'm not sure if racial discrimination charges apply.




Of course not.  But the 14th has been extended to gay marriage rather directly.  There's no need for race to be involved.



> And, not sure how you would prove intent in a general case.




There is no general case.  There are only specific cases.  They are handled by a court, so they ask and investigate.  Rarely is there going to be such a case where the person is denying to do their job, with *no explanation whatsoever*.   And it isn't like giving no explanation actually works out well for you, either.  



> At some point, one gets to feel a bit of consternation over what is, basically, sophistry.  I wonder what a typical judges response would be, or, are they very good at seeing through pretense.  If I were judging the situation, trying to cleverly avoid a law would not be greeted very well.




Well, the SCOTUS reply to her request for an appeal was a single line.  "The application for stay presented to Justice Kagan and by her referred to the court is denied."  My understanding is that means it isn't just Kagan, but the entire SCOTUS just went.  "No."  No commentary or discussion.  Just, "Denied."


----------



## Ryujin (Sep 16, 2015)

tomBitonti said:


> I was wondering about that.
> 
> If your _intent_ is to deny licenses to gay couples, and you _means_ is to deny licenses to everyone, it would seem that you still intended to discriminate.
> 
> ...




Usually, in discrimination cases, there's some question as to whether or not there actually was discrimination. From where I sit there's absolutely no question, in this case, because the chief witness for the Prosecution would be the Accused.


----------



## Dannyalcatraz (Sep 16, 2015)

In Wills & Estates, we were taught that the most dangerous weapon to your unsupervised client was a pen & legal pad.

In criminal cases, it is an open mic.  Can't effectively plead the 5th when you blab to the media.


----------



## Ryujin (Sep 16, 2015)

Dannyalcatraz said:


> In Wills & Estates, we were taught that the most dangerous weapon to your unsupervised client was a pen & legal pad.
> 
> In criminal cases, it is an open mic.  Can't effectively plead the 5th when you blab to the media.




I believe the expression is "declaration against penal interest", no?


----------



## Dannyalcatraz (Sep 17, 2015)

Got it in one


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## Janx (Sep 17, 2015)

Umbran said:


> She began by denying them to gays back on June 26th, then expanded to refusing to issue all licenses.  It is on July 1 that four couples (two gay, two hetero) she had denied filed a lawsuit, and the court got involved.
> 
> When she phrases it as, "I will not grant any licenses because I must grant them to gays, and that is against my religion" she is in violation of both the Establishment and Equal Protection clauses.  I presume she gave her reasons in court - I have not read transcripts.  But, she made such a statement on August 31st, in response to the U.S. Supreme Court's refusal to grant her stay request:
> 
> ...




I'm good with that.  I'm simply outlining what may have been her chain of "legal" reasoning.  She's still a nepotistical active violator of plenty of other things in the Bible that she seems keen to ignore on, so if one of them big stone 10 commandment statues were to fall on her, I'd probably smile.


----------



## nightwind1 (Sep 19, 2015)

Janx said:


> ...
> 
> Or like "cram it down our throats" being used for every law that passed a vote that the opposition didn't like.



Actually, that phrase is almost always used in the case of right-wingers protesting about gay rights legislation. Which makes me wonder what they are thinking about in their spare time...


----------



## Dannyalcatraz (Sep 19, 2015)

Something is rotten in the state of Kentucky.
http://news.yahoo.com/attorney-kentucky-clerk-interfered-judges-order-202819766.html

This woman cannot even step aside with grace.


----------



## Homicidal_Squirrel (Sep 19, 2015)

Like I said, she seems to have enjoyed her time in jail. She may be wanting to go back.


----------



## Dannyalcatraz (Sep 22, 2015)

ROUND 3!
_*ding*_

http://news.yahoo.com/kentucky-clerk-davis-rejects-marriage-licenses-invalid-abc-125551704.html

I'm predicting a certain judge will be issuing orders for her re-arrest soon.


----------



## Homicidal_Squirrel (Sep 22, 2015)

Hopefully this time she stays in jail far longer.


----------



## Istbor (Sep 23, 2015)

What a piece of work. 

She also needs to stop making Christians look like stubborn, narrow-minded jerks.


----------



## Raloc (Sep 23, 2015)

This crap is a distraction, nothing more. 

Case in point, this executive order issued Tuesday, calling for psychological manipulation of the public.


----------



## Kramodlog (Sep 23, 2015)

So scary.


----------



## Silverblade The Ench (Sep 23, 2015)

Morrus said:


> So obnoxious. Forget the legality of it - what about basic human decency? Is that no longer a Christian value?





Organized religion, and a spiritual belief (faith) aren't the same things at all
same with politics and the parties that are supposed to _represent_ certain political beliefs

I've had a near death experience and bunch of things after that...let's just say that I think the hate-filled, greedy flumph-licking twerps like this woman, and extremists of all types, and sociopaths-by-choice Oligarchs, well, they are in for one hell of a surprise 
Each to their fate, leave them to it, until they seriously harm or risk others.
Gay, straight, white, black, Moslem, Christian, Atheist, 1st ed, 3rd Ed....who cares, it's all flavour or the world would be boring!


----------



## Silverblade The Ench (Sep 23, 2015)

Homicidal_Squirrel said:


> Hopefully this time she stays in jail far longer.




and have her visited there everyday by missionaries etc of every creed, and of every type of person under the sun


----------



## Homicidal_Squirrel (Sep 23, 2015)

Raloc said:


> This crap is a distraction, nothing more.
> 
> Case in point, this executive order issued Tuesday, calling for psychological manipulation of the public.




I take it you believe there is some nefarious motivations behind this executive order.


----------



## Homicidal_Squirrel (Sep 23, 2015)

Silverblade The Ench said:


> and have her visited there everyday by missionaries etc of every creed, and of every type of person under the sun



Prison sex should be a daily thing for her.


----------



## Umbran (Sep 23, 2015)

Homicidal_Squirrel said:


> Prison sex should be a daily thing for her.





And here, ladies and gents, we've gone a tad too far.

It is okay to not like what someone has done, and right now we can talk about it.  But some decorum is still called for.  Bring it back a few steps, please.


----------



## Raloc (Sep 23, 2015)

Homicidal_Squirrel said:


> I take it you believe there is some nefarious motivations behind this executive order.




You don't find psychological manipulation to be nefarious? I would say that's your failing, not mine.

Regardless of how you feel about the government conducting psychological manipulation on citizens without their knowledge or consent (not even remotely ethical, and _by definition, is nefarious_) Kim whatever is a distraction from more important issues, and giving her the limelight _for literally months_ over what amounts to a total non-issue outside of her podunk locality, is simply playing into that.


----------



## tomBitonti (Sep 23, 2015)

Raloc said:


> This crap is a distraction, nothing more.
> 
> Case in point, this executive order issued Tuesday, calling for psychological manipulation of the public.




That is one bizarre executive order.

"By executive order, all class rooms are to use erasers with their chalk boards, as these have been shown to extend the useful lifetime of the chalk boards."

Psychology and behavioral science, has been used for government propaganda, both good and bad, since forever.

Thx!

TomB


----------



## Umbran (Sep 23, 2015)

Raloc said:


> You don't find psychological manipulation to be nefarious? I would say that's your failing, not mine.




Technically, he asked about whether the motivation was nefarious, not whether the tool itself was nefarious.  Reading over that executive order, most of it isn't "psychological manipulation".  It is more like "effective User Experience and marketing".  

They talk, for example of having an agency consider "how the timing, frequency, presentation, and labeling of benefits, taxes, subsidies, and other incentives can more effectively and efficiently promote" people to save money, or complete education programs.

That's totally nefarious!

You don't like the idea that the government should prepare its materials and presentations based n how people actually think and take in information?  You would prefer they remain *ignorant* of real human behavior when trying to serve the populace?

Even the most basic of e-mail marketers today count the rates at which you open e-mails, and how often you click through to the website, and how often you purchase something, so they can figure out what presentations work, and what don't.  You think that the government should avoid availing themselves of that kind of information?


----------



## Raloc (Sep 24, 2015)

Umbran said:


> Technically, he asked about whether the motivation was nefarious, not whether the tool itself was nefarious.  Reading over that executive order, most of it isn't "psychological manipulation".  It is more like "effective User Experience and marketing".




And you don't think it's nefarious to treat citizens as little more than disposable resources to be marketed to, rather than performing their actual role, which is to provide services for said citizens.

Psychological manipulation is not a useful service, except to fascists, and should not be conducted in this fashion, no. If you are incapable of understanding such a concept, that's really not my problem.


----------



## Kramodlog (Sep 24, 2015)

Raloc said:


> You don't find psychological manipulation to be nefarious?



That is not what the order says. Read it again.

What it is saying is that, for example, "default settings" of programs and policies should be changed. Instead of having people opting in a program as the default setting, people should be enrolled automatically and opting out should be the option. 

People can make terrible choices in life for various reasons. Sometimes because of ignorance, sometimes its laziness, sometimes just bad info, etc. The book Nudge presents the reasons why people make bad choices all the time. Just changing the defaults of programs helps people make better choices while preserving liberty of choice. 

The book sites among varous example a governmental retirement plan in Sweden. From memory, the government gave people money to invest in retirement plans. People got to choose their portfolio from the various ones the private sector created for the public. If someone didn't choose any portfolio, the governement had expert make a portfolio for those people as the default setting instead of not investing the money at all. The governement understood that for various reasons people didn't always take care of their retirement as  they should and that some people wouldn't take the time to choose a vehicule to invest their moneuy. This is better than not investing the money at all (don't you agree?), but it also turned out that people who used the governement's portfolio had a better return on their investments than 97%* of the people who choose their portfolio. People aren't great at making choices when it comes to investments because of biases, lack of education on investments, superstition, lack of experience in the investment sector, etc. 

Of course, feel free to panick and see nefarious conspiracies were there aren't any. 


*From memory.


----------



## Homicidal_Squirrel (Sep 24, 2015)

Raloc said:


> You don't find psychological manipulation to be nefarious?



Depends on how you define _psychological manipulation_. 







> I would say that's your failing, not mine.



I'd say you failed to understand the purpose and scope of the executive order. Maybe you should read it again. It's not as scary and evil as you think.



> Regardless of how you feel about the government conducting psychological manipulation on citizens without their knowledge or consent (not even remotely ethical, and _by definition, is nefarious_) Kim whatever is a distraction from more important issues, and giving her the limelight _for literally months_ over what amounts to a total non-issue outside of her podunk locality, is simply playing into that.



It seems you also fail to see how it affects people in her "podunk locality." A crime is a crime regardless of where it takes place, and a violation of people's constitutional rights should not be swept aside and ignored because you don't feel it affects a significant enough number of people or occurs in a insignificant and small town.


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## Dannyalcatraz (Sep 24, 2015)

The order basically boils down to telling agencies to make effective use of known behavioral science to improve the efficiency and quality of services being offered.  IOW, experiential marketing.

That can mean a lot of things: using diffused lighting to soften shadows and minimize harshness, reducing eyestrain and overall stress- great for an agency's waiting room.  Certain color combinations- like black/white/red- are high in contrast and attract attention- perfect for labeling key signage.  Narrow aisles between tables or shelves have been shown to increase agitation and significantly minimize the amount of time spent browsing, so an agency that distributes a lot of fliers might want to make sure the space near those distribution points are free of clutter.

A personal acknowledgement of your presence within a minute or so of arrival has been shown to greatly improve the experiences of customers.

Etc.


----------



## Dannyalcatraz (Sep 24, 2015)

Raloc said:


> Kim whatever is a distraction from more important issues, and giving her the limelight _for literally months_ over what amounts to a total non-issue outside of her podunk locality, is simply playing into that.




To echo HS, the constitutional right to marry is NOT trivial.  That this is playing out primarily in a small municpality is immaterial: there are literally dozens if not hundreds of similar battles being fought right now across the nation.  Hers is just the worst exemplar to date.  Other like-minded government officials are STILL trying various tactics to deny marriage equality, including "judicial nullification".

You may not realize it, but this is affecting hundreds of thousands of Americans right now, with millions awaiting final affirmation of their equality.


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## Umbran (Sep 24, 2015)

Raloc said:


> And you don't think it's nefarious to treat citizens as little more than disposable resources to be marketed to, rather than performing their actual role, which is to provide services for said citizens.




I think that, in the process of providing services to citizens, they must *interact* with the citizens - there is information to be distributed, choices to be made, and so on.  I think that ought to be done taking the reality of human nature into account.  I would like the government's approaches to things be reality-based.

I don't think there is anything about, "treating citizens as little more than disposable resources," anywhere in that order.  I think that is something you are inserting, not found in the text.



> Psychological manipulation is not a useful service




Understanding human psychology is useful in determining what services you should offer, and how to present them and design processes around them so that people understand what is being offered, make well-informed choices, and can easily get the services they need.

The irony being - if they had a better handle on human behavior, they might have been able to present this order in a way that would more likely avoid reactions like the one you're displaying here.


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## Ovinomancer (Sep 24, 2015)

Dannyalcatraz said:


> Well...yeah, but the phrase is never used by the people who are happy with the verdict, which is why I said what I said.



I used it, on this very topic, and I support and advocate for homosexual marriage.  This ruling got the right result, but otherwise was absolutely horrible.  It used arguments that rest on emotion and not jurisprudence ( and there is good and clear jurisprudence to make a proper ruling) and it will have unintended consequences and problems due to its poor construction.  It was a case of activist judges doing the expedient thing rather than the right thing, even as I was happy for the outcome.


Umbran said:


> And, claiming the Freedom of Worship clause to herself, but denying the Establishment Clause to others.
> 
> Something that many seem to miss, is that she's not an "employee".  She's *part of the government*, and that constrains her rights. This is beyond the question of whether a baker can be forced to make a cake for a gay wedding.  If she puts her personal interpretation of God's law into policy in her workplace, she's in pretty direct violation of the Establishment Clause.
> 
> George Takei had a piece on this.  He's not a lawyer, but much of the reasoning is sound.  http://www.thedailybeast.com/articles/2015/09/14/how-kim-davis-violated-the-first-amendment.html



No, this isn't a violation of the Establishment clause.  If she applied a religious test for getting a license, that's a violation of the Establishment clause.  But using her own moral conscious (whether you agree with it out not, and I don't), even if based on her religion, is not.  The Establishment cause doesn't prohibit any religious reasons in government, it prohibited the establishment of religious requirements for the operation of government.  To clarify that, that means rules, laws, and practices that favor a religion it set of religious beliefs, NOT that elected officials cannot make decisions within those authority on religious beliefs.  



Dannyalcatraz said:


> It is only a loophole in the sense that, by doing so, she is attempting to avoid the claim that she is singling out gays.
> 
> It isn't a loophole in the sense that she's denying guaranteed fundamental Constitutional rights to everyone, and not performing the duties of her office.  IOW, even while attempting to appear non-discriminatory, she still runs afoul of other laws.




Thing is, that rights are negative with respect to government.  The governed can't deny you a marriage certificate while granting it to others based on protected class markers.  That  doesn't mean the government must issue a license.  Marriage is still controlled my state law, and in this case the law reads 'may issue' not 'must issue.'. This means that it's perfectly legal to deny all certificates, even if the underlying reason is discriminatory.  It's within the scope of the law, and the right to marriage doesn't override because it's a right to not be discriminated against, not an absolute right to be able to marry ( you can't Mary your sister, frex).

That said, she's clearly in violation of the intent of the position, but that's a matter for the voters and/or governed to recall/impeach her for it.  This is the train that no one is addressing her for not issueng licenses.



Umbran said:


> I think that, in the process of providing services to citizens, they must *interact* with the citizens - there is information to be distributed, choices to be made, and so on.  I think that ought to be done taking the reality of human nature into account.  I would like the government's approaches to things be reality-based.
> 
> I don't think there is anything about, "treating citizens as little more than disposable resources," anywhere in that order.  I think that is something you are inserting, not found in the text.
> 
> ...




Re: psych experimentation:

I'd be fine with this if it was entirely transparent: what's being done and why.  It's not, and that's the problem.  

All government actions should be considered under the metric of imagining your opposing political viewpoints having complete control of that policy and what they could/would do with it.  If you're still okay with it after that, cool.  In this case, imagine the religious right doing it, or the TEA party, or the communist party, or the socialist party, or the Donald.  Still sound kosher?


----------



## Homicidal_Squirrel (Sep 24, 2015)

Turns out Kim Davis does have gay friends, and he is angry with her.


----------



## Ryujin (Sep 24, 2015)

Ovinomancer said:


> I used it, on this very topic, and I support and advocate for homosexual marriage.  This ruling got the right result, but otherwise was absolutely horrible.  It used arguments that rest on emotion and not jurisprudence ( and there is good and clear jurisprudence to make a proper ruling) and it will have unintended consequences and problems due to its poor construction.  It was a case of activist judges doing the expedient thing rather than the right thing, even as I was happy for the outcome.
> 
> No, this isn't a violation of the Establishment clause.  If she applied a religious test for getting a license, that's a violation of the Establishment clause.  But using her own moral conscious (whether you agree with it out not, and I don't), even if based on her religion, is not.  The Establishment cause doesn't prohibit any religious reasons in government, it prohibited the establishment of religious requirements for the operation of government.  To clarify that, that means rules, laws, and practices that favor a religion it set of religious beliefs, NOT that elected officials cannot make decisions within those authority on religious beliefs.
> 
> ...




You would be hard pressed to prove that a government official, acting based on the teachings of a particular religion, isn't violating the Establishment Clause.

As to the 'manipulation', the word 'marketing' has been used correctly.


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## Ovinomancer (Sep 24, 2015)

Ryujin said:


> You would be hard pressed to prove that a government official, acting based on the teachings of a particular religion, isn't violating the Establishment Clause.




Perhaps if they weren't elected. But she is and that's a big difference.  As an elected official you can loudly proclaim your faith, display it publicly, and even cite it as the basis for your decisions.  So long as you do not create the need or appearance of the need to follow a religion or religious belief set as a cost of doing business with the government, that's peachy.

The establishment clause doesn't prohibit religion in government, it prohibited the requirement for religion on government.  Officials in government can act religiously in many regards.

The is doubly true in this case, where the actor in question (brain fart on the name right now) isn't requiring a test of faith to get a certificate, but instead is citing her faith for why she's discriminating against a protected class.  This has nothing to do with the Establishment clause, it's just garden variety discrimination.  That's bad enough, no need to stretch for an Establishment clause violation that doesn't exist.


----------



## Ovinomancer (Sep 24, 2015)

Ryujin said:


> As to the 'manipulation', the word 'marketing' has been used correctly.




Pulled this out as a separate discussion.

I don't follow you, are you agreeing with me, or do you think it's fine for government to get into marketing?  Please answer the question as if the Donald is sitting in the White House with full TEA party supermajorities in each house.


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## Ryujin (Sep 24, 2015)

Ovinomancer said:


> Perhaps if they weren't elected. But she is and that's a big difference.  As an elected official you can loudly proclaim your faith, display it publicly, and even cite it as the basis for your decisions.  So long as you do not create the need or appearance of the need to follow a religion or religious belief set as a cost of doing business with the government, that's peachy.
> 
> The establishment clause doesn't prohibit religion in government, it prohibited the requirement for religion on government.  Officials in government can act religiously in many regards.
> 
> The is doubly true in this case, where the actor in question (brain fart on the name right now) isn't requiring a test of faith to get a certificate, but instead is citing her faith for why she's discriminating against a protected class.  This has nothing to do with the Establishment clause, it's just garden variety discrimination.  That's bad enough, no need to stretch for an Establishment clause violation that doesn't exist.




No, it really isn't different. She is citing religion as a reason not to follow law, that states equality of treatment is mandatory and not optional. She is a representative of government. Elected, appointed, or run of the mill bureaucrat is immaterial. As a representative of government it rises to the level of Constitutional protection.


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## Ryujin (Sep 24, 2015)

Ovinomancer said:


> Pulled this out as a separate discussion.
> 
> I don't follow you, are you agreeing with me, or do you think it's fine for government to get into marketing?  Please answer the question as if the Donald is sitting in the White House with full TEA party supermajorities in each house.




I'm disagreeing with you. Marketing may be manipulative, by its very nature, but it isn't outright manipulation. An example of manipulation would be the various untruths used by the Bush government to support the invasion of a sovereign nation, that had no part in the acts that were attributed to it. Putting a colourful picture and some catchy phrase on a pamphlet doesn't rise to that level.


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## Ovinomancer (Sep 24, 2015)

Ryujin said:


> No, it really isn't different. She is citing religion as a reason not to follow law, that states equality of treatment is mandatory and not optional. She is a representative of government. Elected, appointed, or run of the mill bureaucrat is immaterial. As a representative of government it rises to the level of Constitutional protection.



Yes, it is very much different.  Let me give you a counterfactual to show my point.

Imagine that the law says that homosexuals cannot marry.  Further imagine that a county clerk began issuing marriage licenses to homosexual couples in violation of the law.  The clerk cites her faith as the reason she began issuing licenses.  God told her to.  This is not a violation of the Establishment clause either.

The establishment clause states what can't happen --government cannot enshrine a religion or make a religious belief a condition of doing business with the government.  These are actions, not thoughts or motivations. A law can be passed, frex, that has a religious motivation so long as the law doesn't require adherence to that religious belief.  Blue laws are exactly this, and are 100% Constitutional.

The actor here is committing a crime, specifically discrimination.  The Establishment clause doesn't kick in because she's doing it based on her religion.  That's irrelevant to the issue, and no defense of the criminal activity.


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## Ryujin (Sep 24, 2015)

Ovinomancer said:


> Yes, it is very much different.  Let me give you a counterfactual to show my point.
> 
> Imagine that the law says that homosexuals cannot marry.  Further imagine that a county clerk began issuing marriage licenses to homosexual couples in violation of the law.  The clerk cites her faith as the reason she began issuing licenses.  God told her to.  This is not a violation of the Establishment clause either.
> 
> ...




Flipping a situation on its head and than saying, "See, it doesn't make it so!" doesn't make it so


----------



## Ovinomancer (Sep 24, 2015)

Ryujin said:


> I'm disagreeing with you. Marketing may be manipulative, by its very nature, but it isn't outright manipulation. An example of manipulation would be the various untruths used by the Bush government to support the invasion of a sovereign nation, that had no part in the acts that were attributed to it. Putting a colourful picture and some catchy phrase on a pamphlet doesn't rise to that level.




So your argument here is that marketing never descends to lying or half truths?  We must be using different definitions.  You are using the least harmful version for your arguments, I'm using the most harmful.  Let's not forget that marketing when done by government is a euphemism for propaganda.


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## tomBitonti (Sep 24, 2015)

Hmm,

Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?

And, could a state legislature declare that its reasons for doing so were a disapproval of non-heterosexual marriage, based on a representation of the religious beliefs of the majority of its citizens?

I suppose this would be a problem in regards to interstate commerce principles, where _other_ states continued to offer marriage licenses.

If not states, could the federal government make a similar statement, "states shall offer civil union licenses, only", using interstate commerce as a justification?

That would have the effect of removing governments from the realm of "marriage".  Maybe justified as being too closely affiliated with religion for government to be so much involved.

Thx!
TomB


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## Ovinomancer (Sep 24, 2015)

tomBitonti said:


> Hmm,
> 
> Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?
> 
> ...




Yes.  The main issue here is that Federal marriage benefits do not currently accrue to civil unions.  Nor would such unions be necessarily honored by other states.  But States have authority over marriage licensing and could do this if they wanted.

Yes, given they issue the unions to all.

No/maybe.  The courts have clearly recognized that the States have authority over marriages under the Tenth.  Since new jurisprudence would be necessary, but that's not outlandish enough for me to dismiss.


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## billd91 (Sep 24, 2015)

tomBitonti said:


> Hmm,
> 
> Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?
> 
> ...




The whole problem with civil union licenses is nobody really knows what they heck they are. They'd be (or are in places that already have them) new and would require legislation to construct. The easier and more consistent route is to use the current marriage laws and broaden the groups they apply to. Then you don't really have to write a bunch of new legislation specifying what all applies to a civil union - everything that applies to marriage would simply apply.

On top of the legal issue of nobody knowing what a civil union is, there's also the social issue. If someone says they're married, most of us have some idea what that implies. They can file joint taxes, share some benefits, make medicals decisions for each other if incapacitated. If someone were to say that they have a civil union or partnership, a lot more people would be scratching their heads wondering if that were a business arrangement.

As far as federal involvement goes, when the states were generally all recognizing each other's state-licensed marriages, things were hunky dory (even Utah pretty much had to be on board in order to reach statehood by making polygamy illegal). But once you had some states starting to recognize same-sex marriages, suddenly you had states defying that tradition of reciprocity. I thought that once you have that happening, it's well worth the feds' time getting involved.


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## Dannyalcatraz (Sep 24, 2015)

> No, this isn't a violation of the Establishment clause. If she applied a religious test for getting a license, that's a violation of the Establishment clause. But using her own moral conscious (whether you agree with it out not, and I don't), even if based on her religion, is not. The Establishment cause doesn't prohibit any religious reasons in government, it prohibited the establishment of religious requirements for the operation of government. To clarify that, that means rules, laws, and practices that favor a religion it set of religious beliefs, NOT that elected officials cannot make decisions within those authority on religious beliefs.



She DID apply a religious test for getting a license: the formulation for her objection and continued obstreperous behavior was that gay marriage is against God's law.


Ovinomancer said:


> Yes, it is very much different.  Let me give you a counterfactual to show my point.
> 
> Imagine that the law says that homosexuals cannot marry.  Further imagine that a county clerk began issuing marriage licenses to homosexual couples in violation of the law.  The clerk cites her faith as the reason she began issuing licenses.  God told her to.  This is not a violation of the Establishment clause either.




Actually, it is.  It just rarely got tried in court on that grounds.  Instead, the people who did so were fired or suspended from duty, and the issued licenses invalidated.



> The establishment clause states what can't happen --government cannot enshrine a religion or make a religious belief a condition of doing business with the government.  These are actions, not thoughts or motivations. A law can be passed, frex, that has a religious motivation so long as the law doesn't require adherence to that religious belief.  Blue laws are exactly this, and are 100% Constitutional.




That's not exactly accurate.  A law can have a religious motivation so long as the law does not require adherence to that faith, substantially interferes with another faith's practices or the state can prove a separate compelling interest for enacting the law. 




Ovinomancer said:


> Yes.  The main issue here is that Federal marriage benefits do not currently accrue to civil unions.



No, because the main issue is that marriage is considered to be a fundamental constitutional right.  Barring all marriages within a state in favor of Civil unions wouldn't pass a constitutional test.  The KY courts reaffirmed this to be the case when they didn't buy into Hasting's assertion that she could deny gays marriage licenses because she was denying them to all people, regardless of race, religion, gender, or orientation.


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## Dannyalcatraz (Sep 24, 2015)

billd91 said:


> As far as federal involvement goes, when the states were generally all recognizing each other's state-licensed marriages, things were hunky dory (even Utah pretty much had to be on board in order to reach statehood by making polygamy illegal). But once you had some states starting to recognize same-sex marriages, suddenly you had states defying that tradition of reciprocity. I thought that once you have that happening, it's well worth the feds' time getting involved.



That reciprocity is enshrined in the Full Faith & Credit clause of the constitution.  Once you have states ignoring each other on the basics, you're headed to the SCOTUS.

(The FF&C clause is why Hawaiian officials were pissed off at the Birthers back in 2008.)


----------



## Kramodlog (Sep 24, 2015)

Ovinomancer said:


> Let's not forget that marketing when done by government is a euphemism for propaganda.




Marketing is always propaganda, no matter who does the marketing.



> 2:  the spreading of ideas, information, or rumor for the purpose of helping or injuring an institution, a cause, or a person
> 
> 3:  ideas, facts, or allegations spread deliberately to further one's cause or to damage an opposing cause; also :  a public action having such an effect.



http://www.merriam-webster.com/dictionary/propaganda


----------



## Ovinomancer (Sep 24, 2015)

Dannyalcatraz said:


> She DID apply a religious test for getting a license: the formulation for her objection and continued obstreperous behavior was that gay marriage is against God's law.



No.  A religious test is one that examines the religious beliefs of a person and then affirms or denies them access to government functions based on the results of that test.  The test here wasn't religious, it was based on sexual-orientation.  The motivation was religious, which is an entirely different thing.

Let's say that she wasn't religious and just hated gay people for reasons -- just not religious ones.  She does the same thing.  Does that violate the Establishment Clause?  Clearly not, and so doing the exact same thing for a different reason does not either.  The Establishment Clause does not act against thought crime, it acts against a subset of restrictions that are based on the religious beliefs of the applicant -- not the administrators.  



> Actually, it is.  It just rarely got tried in court on that grounds.  Instead, the people who did so were fired or suspended from duty, and the issued licenses invalidated.



No, it's not, and you never heard that it was when (if?) those instances happened.  Because it's not a religious test forbidden by the Establishment clause, it's just a religious motivation to engage in other law-breaking.




> That's not exactly accurate.  A law can have a religious motivation so long as the law does not require adherence to that faith, substantially interferes with another faith's practices or the state can prove a separate compelling interest for enacting the law.




100%.  Her choosing to not issue licenses is not require adherence to a faith, nor does it interfere with another's faith (directly, indirect interference isn't covered).  She couldn't provide another compelling interest, and so her actions are not legal and she's being admonished by the courts.  I'm glad to be in agreement!



> No, because the main issue is that marriage is considered to be a fundamental constitutional right.  Barring all marriages within a state in favor of Civil unions wouldn't pass a constitutional test.  The KY courts reaffirmed this to be the case when they didn't buy into Hasting's assertion that she could deny gays marriage licenses because she was denying them to all people, regardless of race, religion, gender, or orientation.



I see you saying that, but that's not actually what the legalities are.  You do not have a right to be married.  You have a right to not face discrimination on race, religion, creed, or sex when you go to get married.  There's a narrow but very important difference there -- you cannot demand marriage if the state doesn't provide it and have legal recourse, but you can't demand marriage if the state provides for it.  The provision of marriage licenses is entirely up to the state.

This is a Tenth issue. Marriage isn't defined anywhere in the Constitution, and so all other powers and rights fall to the States and the people. Since the people have no authority to enact marriages amongst themselves, this is a State right, and the State can execute it as it sees fit within the boundaries of other applicable laws, such as anti-discrimination laws.  The recent case, while it cited a right to marriage (again, recall that I think that ruling is a steaming pile even if it did, accidentally, get in the right ballpark), doesn't actually establish (nor is able to) such a right that supersedes the right of the State to administer it as the State sees fit.

So, yes, you have a right to get married, so long as the State you reside in (or visit, for some) provides for marriage.  The State is not obligated to do so.


----------



## Ovinomancer (Sep 24, 2015)

Dannyalcatraz said:


> That reciprocity is enshrined in the Full Faith & Credit clause of the constitution.  Once you have states ignoring each other on the basics, you're headed to the SCOTUS.
> 
> (The FF&C clause is why Hawaiian officials were pissed off at the Birthers back in 2008.)




That's not exactly what FF&C does.  All FF&C does is say that a State must at least consider a similar thing from another State.  If they didn't have reciprocity for marriage in place, and without other rulings, a suit that involved the validity of marriage from another State would be allowed into the proceedings as evidence under FF&C.  Whether or not it was accepted, though, isn't guaranteed under FF&C.

States have explicitly agreed to accept drivers licenses and marriage licenses (and a list of other things) under reciprocity.  For an example of something similar, look to concealed carry permits.  Even between two states that have largely similar concealed carry laws, there is little reciprocity.


----------



## tomBitonti (Sep 24, 2015)

Dannyalcatraz said:


> She DID apply a religious test for getting a license: the formulation for her objection and continued obstreperous behavior was that gay marriage is against God's law.
> 
> 
> 
> ...


----------



## Deset Gled (Sep 24, 2015)

Ovinomancer said:


> No, it's not, and you never heard that it was when (if?) those instances happened.  Because it's not a religious test forbidden by the Establishment clause, it's just a religious motivation to engage in other law-breaking.
> ...
> I see you saying that, but that's not actually what the legalities are.  You do not have a right to be married.
> ...
> So, yes, you have a right to get married, so long as the State you reside in (or visit, for some) provides for marriage.  The State is not obligated to do so.




Many of your opinions differ greatly from the Supreme Court.

Among others, check out Everson v Board of Education.  It's a landmark case that establishes that the Establishment Clause goes well beyond a simple religious test, but is rather a "wall of separation between church and state."

Also, here's a list of fourteen cases where the Supreme Court held that marriage was a constitutional right.  I believe you will find the fifth and fourteenth amendment sited often.


----------



## Ryujin (Sep 24, 2015)

Ovinomancer said:


> So your argument here is that marketing never descends to lying or half truths?  We must be using different definitions.  You are using the least harmful version for your arguments, I'm using the most harmful.  Let's not forget that marketing when done by government is a euphemism for propaganda.




No, my argument is that when marketing descends into lies, it's no longer just marketing.


----------



## Ryujin (Sep 24, 2015)

tomBitonti said:


> Hmm,
> 
> Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?
> 
> ...




I tried that angle a while back and no one bought it


----------



## Ryujin (Sep 24, 2015)

Ovinomancer said:


> No.  A religious test is one that examines the religious beliefs of a person and then affirms or denies them access to government functions based on the results of that test.  The test here wasn't religious, it was based on sexual-orientation.  The motivation was religious, which is an entirely different thing.




The test was religious as she stated that homosexuality is against HER religion and, therefore, she could not "in good conscience" have her name on the licenses. This is widely known and came straight out of her own mouth.


----------



## Dannyalcatraz (Sep 25, 2015)

Ovinomancer said:


> No.  A religious test is one that examines the religious beliefs of a person and then affirms or denies them access to government functions based on the results of that test.  The test here wasn't religious, it was based on sexual-orientation.  The motivation was religious, which is an entirely different thing.
> 
> Let's say that she wasn't religious and just hated gay people for reasons -- just not religious ones.  She does the same thing.  Does that violate the Establishment Clause?  Clearly not, and so doing the exact same thing for a different reason does not either.  The Establishment Clause does not act against thought crime, it acts against a subset of restrictions that are based on the religious beliefs of the applicant -- not the administrators.



First of all, I agree and have stated multiple times- possibly in this very thread- that you can discriminate against people as long as you don't do so on the basis of their belonging to a protected class.  IOW, you can legally deny service to Rabbi Schwarz because he is drunk, because he is being disruptive, because he slept with your cousin's wife, etc.  But you can't deny him service because he's black.  (Or Jewish.)  Not even if your religion says you should.

However, Davis (whom I believe I called "Hastings" earlier) did exactly that.  From an MSNBC report:


> On Tuesday morning, Rowan County Clerk Kim Davis denied marriage licenses to at least two couples, telling them she was acting “under God’s authority.”




She explicitly says that she is denying the couples access to legal forms available solely through her office in that county on the sole basis that her faith trumps their recognized Constitutional rights.  No other reason is given.

Here's an article from the University of Missouri Law Review.  About 7 pages in, they talk about how the Free Exercise & Establishment clauses work in tandem in the context of a Muslim student subjected to mandatory Christian prayer at school.  The school loses on both fronts: the Free Exercise clause grants him an exemption from participation, the Establishment clause enjoins the school from allowing the forced prayers at all.  The second one matters here- the school is enjoined under that clause because it is establishing a faith-based practice.
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1154&context=facpubs



> No, it's not, and you never heard that it was when (if?) those instances happened.  Because it's not a religious test forbidden by the Establishment clause, it's just a religious motivation to engage in other law-breaking.




Oh, they did happen- one of the higher profile instances was in San Francisco in 2004, and thousands of licenses and marriages were voided.
https://en.m.wikipedia.org/wiki/San_Francisco_2004_same-sex_weddings

The reasons why there was no Establishment Charge prosecution were:

1) the person issuing the order was the Mayor.

2) the person giving the order to issue licenses did so on constitutional grounds, not religious ones.

3) an EC prosecution would not have been the preferred method of sanction for someone in his position- it would have been impeachment.

In addition, as noted in the Missouri hypothetical, the EC isn't all about "religious tests."  The school's forced prayer was not a test, just a mandated behavior, and yet it would be forbidden under the EC.



> 100%.  Her choosing to not issue licenses is not require adherence to a faith, nor does it interfere with another's faith (directly, indirect interference isn't covered).  She couldn't provide another compelling interest, and so her actions are not legal and she's being admonished by the courts.  I'm glad to be in agreement!




Actually, refusal to issue same-sex marriage licenses DOES interfere with the religious practices of certain faiths or sects of faiths.  Some have a long-standing tradition recognizing it, others have come to accept it rather recently.

Here are some sites mentioning a few:

http://www.gayweddinginstitute.com/...iness/post/Which_Churches_Allow_Gay_Marriage/

http://www.robinwood.com/LivingtreeGrove/FAQs/FAQPages/AskRobin/Same-GenderMarriage.html

http://www.freedomtomarry.org/communities/entry/c/native-american

And the General Synod of the United Church of Christ even initiated a lawsuit in North Carolina in order to combat their state's bar against gay marriages as an impermissible interference with their freedom of religion.
http://www.abajournal.com/mobile/ar...religious_freedom_lawsuit_to_overturn_states/

In addition, denying EVERYONE the right to marry will be deemed just as unconstitutional as denying it to protected groups.  (See below.)
[/quote]I see you saying that, but that's not actually what the legalities are.  You do not have a right to be married.[/quote]

Yes you do.

Here are 14 high-profile cases that define marriage as either a fundamental human right and thus protected in general by the Constitution's dictates, or more specifically as being protected by the Due Process Clause and/or the 14th Ammendment.

*Maynard v. Hill, 125 U.S. 190, 205, 211 (1888):* Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
*Meyer v. Nebraska, 262 U.S. 390, 399 (1923):* The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
*Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942):* Marriage “one of the basic civil rights of man,” “fundamental to the very existence and survival of the race.”
*Griswold v. Connecticut, 381 U.S. 479, 486 (1965):* “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system.  Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.  It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.  Yet it is an association for as noble a purpose as any involved in our prior decisions.”
*Loving v. Virginia, 388 U.S. 1, 12 (1967):* “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
*Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971):* “[M]arriage involves interests of basic importance to our society” and is “a fundamental human relationship.”
*Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974):* “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
*Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality):* “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
*Carey v. Population Services International, 431 U.S. 678, 684-85 (1977):* “_t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
*Zablocki v. Redhail, 434 U.S. 374, 384 (1978):* “[T]he right to marry is of fundamental importance for all individuals.”
*Turner v. Safley, 482 U.S. 78, 95 (1987):* “[T]he decision to marry is a fundamental right” and an “expression[ ] of emotional support and public commitment.”
*Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992):* “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.  At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
*M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996):* “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
*Lawrence v. Texas, 539 U.S. 558, 574 (2003):* “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”




			This is a Tenth issue. Marriage isn't defined anywhere in the Constitution, and so all other powers and rights fall to the States and the people. Since the people have no authority to enact marriages amongst themselves, this is a State right, and the State can execute it as it sees fit within the boundaries of other applicable laws, such as anti-discrimination laws.  The recent case, while it cited a right to marriage (again, recall that I think that ruling is a steaming pile even if it did, accidentally, get in the right ballpark), doesn't actually establish (nor is able to) such a right that supersedes the right of the State to administer it as the State sees fit.

So, yes, you have a right to get married, so long as the State you reside in (or visit, for some) provides for marriage.  The State is not obligated to do so.
		
Click to expand...



See above.  It is settled law that marriage is a fundamental right, and as such, the States can regulate certain aspects of it, but cannot absolutely deny it, nor severely restrict it.  The onus, then, is on the state to justify why & how it should be able to restrict it._


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## Dannyalcatraz (Sep 25, 2015)

Ovinomancer said:


> That's not exactly what FF&C does.  All FF&C does is say that a State must at least consider a similar thing from another State.  If they didn't have reciprocity for marriage in place, and without other rulings, a suit that involved the validity of marriage from another State would be allowed into the proceedings as evidence under FF&C.  Whether or not it was accepted, though, isn't guaranteed under FF&C.
> 
> States have explicitly agreed to accept drivers licenses and marriage licenses (and a list of other things) under reciprocity.  For an example of something similar, look to concealed carry permits.  Even between two states that have largely similar concealed carry laws, there is little reciprocity.



The FF&C dictates that states "must recognize legislative acts, public records, and judicial decisions of the other states".  That is stronger formulation than "must consider."  While it is true there are ways in which states may ignore those ennumerated actions of the states, they can do so only under certain restrictive conditions.

Its primary function is to ensure that agreements reached in one state may be enforced anywhere.

And at its secular legal base, a marriage is a legal contract.  

But that isn't the only reason why the FF&C is germaine.  The other aspect is that states are usually not allowed to question the legal validity of documents issues by other states.  They may differ on the exact meanings, but they must- in most circumstances- give said documents the same weight as they would _in the state of issuance.[/]  This is key as to why things like professional licenses, fishing licenses or gun licenses-especially CC gun licenses- are not honored in other states: usually, the laws controlling those licenses in the state of issuance limits the license to activities within the state of issuance.

Put differently: under the FF&C, if a CC gun permit issued in Texas says it grants the ability to carry a concealed weapon "in Texas", it need only be considered by Missouri as granting its holder a license to carry in Texas._


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## Ovinomancer (Sep 25, 2015)

Deset Gled said:


> Many of your opinions differ greatly from the Supreme Court.
> 
> Among others, check out Everson v Board of Education.  It's a landmark case that establishes that the Establishment Clause goes well beyond a simple religious test, but is rather a "wall of separation between church and state."
> 
> Also, here's a list of fourteen cases where the Supreme Court held that marriage was a constitutional right.  I believe you will find the fifth and fourteenth amendment sited often.



No, I'm not in difference.  Your first cite is the application of the Establishment clause as binding in the stars, and rules that it was unconstitutional to subsidize private religious schools.  That's uncontroversial and not in disagreement in any way with my arguments.

As for the right to marry, again, I'm not in disagreement.  Your should carefully parse your cited cars and look for where the states are obligated to provide marriage.  They are obligated to not discriminate if the provide marriage, but they are not required to provide marriage.  Further, any attempt to compel then to do so is in violation of the Tenth.  Like other rights, the right to marry is constructed as a negative right, meaning that the state cannot restrict your access, but they don't have to _provide_ it.


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## Ovinomancer (Sep 25, 2015)

Ryujin said:


> No, my argument is that when marketing descends into lies, it's no longer just marketing.



Interesting argument, not sure there much traction there, but I see where your coming from.


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## Ovinomancer (Sep 25, 2015)

Ryujin said:


> The test was religious as she stated that homosexuality is against HER religion and, therefore, she could not "in good conscience" have her name on the licenses. This is widely known and came straight out of her own mouth.




A religious test is not one that has roots in religion, but one that checks the applicants religion prior to providing service.  There a difference there, and I'm not sure if I'm doing enough to get it across.  

If she asked prior to using if the couple believed in Jesus, and then issues or not based on the answer, that's a religious test.

If she asks whether or not the couple is gay, and issues or not based on the answer, that's not a religious test.  It's a homosexual test.

If she asks based on her belief that homosexuals are aliens here to conquer the Earth, then it's a crackpottery motivated homosexual test, but still a homosexual test not a crackpottery test.

If she asks because of her religious belief, it's a religiously motivated homosexual test, but still a homosexual test not a religious test.

Motivation is not the defining question in Establishment clause issues, actual impact is.  This year discriminated based on sexuality orientation, not religion, and so is not a violation of the Establishment clause.


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## Ryujin (Sep 25, 2015)

Ovinomancer said:


> A religious test is not one that has roots in religion, but one that checks the applicants religion prior to providing service.  There a difference there, and I'm not sure if I'm doing enough to get it across.
> 
> If she asked prior to using if the couple believed in Jesus, and then issues or not based on the answer, that's a religious test.
> 
> ...




I would argue that denying people their protected right to marriage is every bit in violation of the Establishment Clause as is teaching Intelligent Design in public schools. Neither tests the beliefs of the subject, but does enforce the religious beliefs of the person on the side of government. See Kitzmiller v. Dover Area School District.


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## Ovinomancer (Sep 25, 2015)

Ryujin said:


> I would argue that denying people their protected right to marriage is every bit in violation of the Establishment Clause as is teaching Intelligent Design in public schools. Neither tests the beliefs of the subject, but does enforce the religious beliefs of the person on the side of government. See Kitzmiller v. Dover Area School District.




No, teaching intelligent design is teaching a religious belief, and so falls under the Establishment clause (although that's not cut and dried as schools are allowed to present intelligent design alongside other theories/beliefs of how life exists).  You can argue this, but it's not correct, nor is it a good metric.  Let me try another counterfactual and see if I can illustrate.

A governor of a state, with the assistance of that state's legislature, puts into place a welfare program for needy kids.  Throughout it's passage, the governor and the leaders of the legislature continually and loudly cite their religious belief that children need help as the motivation for enacting the law.  This is not a violation of the Establishment clause, because the end result doesn't touch religion even as the motivation is entirely religious in nature.

As with this -- discrimination against homosexuals is not religious in nature, even if it's motivation is.  Therefore the Establishment clause doesn't apply, as the Establishment clause is about outcomes, not motivations.  The Establishment clause is not proof against thought crime.


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## Ryujin (Sep 25, 2015)

Ovinomancer said:


> No, teaching intelligent design is teaching a religious belief, and so falls under the Establishment clause (although that's not cut and dried as schools are allowed to present intelligent design alongside other theories/beliefs of how life exists).  You can argue this, but it's not correct, nor is it a good metric.  Let me try another counterfactual and see if I can illustrate.
> 
> A governor of a state, with the assistance of that state's legislature, puts into place a welfare program for needy kids.  Throughout it's passage, the governor and the leaders of the legislature continually and loudly cite their religious belief that children need help as the motivation for enacting the law.  This is not a violation of the Establishment clause, because the end result doesn't touch religion even as the motivation is entirely religious in nature.
> 
> As with this -- discrimination against homosexuals is not religious in nature, even if it's motivation is.  Therefore the Establishment clause doesn't apply, as the Establishment clause is about outcomes, not motivations.  The Establishment clause is not proof against thought crime.




It also isn't denying people their rights based on a religious belief. The thing about these "counterfactuals" is that they don't provide a true mirror.


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## calronmoonflower (Sep 28, 2015)

Dannyalcatraz said:


> ROUND 3!
> _*ding*_
> 
> http://news.yahoo.com/kentucky-clerk-davis-rejects-marriage-licenses-invalid-abc-125551704.html
> ...



Let's try quoting what she actually said, "They're not valid in God's eyes, for one," she said of licenses her staff has begun issuing. "I have given no authority to write a marriage license. They did not have my permission, they did not have my authorization."

Now lets look at what she actually did, rather than focus on a out-of-context quote.
http://www.nbcnews.com/news/us-news...-altering-marriage-licenses-aclu-says-n431336
http://www.cnn.com/2015/09/19/us/kim-davis-same-sex-marriage-licenses-kentu[URL="http://www.cnn.com/2015/09/19/us/kim-davis-same-sex-marriage-licenses-kentucky/"]cky/[/URL] with Video
http://www.washingtonpost.com/news/...s-is-meddling-with-countys-marriage-licenses/


The question is really if the altered versions of the licenses are valid, If so there is not a problem. However, it strikes me as strange that people actually want her to stamp her own name on the licenses and give her own personal stamp of approval rather than allow licenses issued with out that. It was OK's by a judge that licenses issued by others without her name are OK.

People should be allowed to get licenses as that falls under equal treatment, but wanting someone to violate their religious beliefs when an alternative that preserves the rights of homosexuals to marry and allow her to follow the dictates of her own personal beliefs smacks of requiring a religious test in order to hold her position and thus would prohibiting the free exercise of her own religion.

On a side note, I was surprised to find out she was a democrat until recently, http://www.cnn.com/2015/09/26/politics/kim-davis-no-longer-democrat/


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## Ovinomancer (Sep 28, 2015)

Ryujin said:


> It also isn't denying people their rights based on a religious belief. The thing about these "counterfactuals" is that they don't provide a true mirror.



So, thought crime?


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## Ryujin (Sep 28, 2015)

Ovinomancer said:


> So, thought crime?




At the risk of starting this merry-go-round ride again, no, as we have someone in government using religion as the barometer for when to grant people the rights that they have been assured.


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## Umbran (Sep 28, 2015)

Ovinomancer said:


> So, thought crime?




No.  Actual crime.  An action was undertaken, so it is no longer just in the realm of thought.


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## Ovinomancer (Sep 28, 2015)

Umbran said:


> No.  Actual crime.  An action was undertaken, so it is no longer just in the realm of thought.



Yes, but the crime is discrimination based on sexual identity, not based on religion.  The Establishment clause doesn't care why you discriminate, it cares what the basis of discrimination is (it did far more than discrimination, that's just the angle here).  If the test is religious, it's a violation whether the rational for the test is religious or not.  If the test isn't religious, is not a violation regardless of whether it not the motivation was religious.

No crime exists based on specifics of motivation; why it was done doesn't matter outside of mens rea.  This doesn't become a violation of the Establishment clause because someone had a religious motivation.  You can have religious motivations so long as the result doesn't test on religion.

And by test on religion, that means that the actual action looks at the religion of those it's applied to, not the intent or desire of those executing it.  



Ryujin said:


> At the risk of starting this merry-go-round ride again, no, as we have someone in government using religion as the barometer for when to grant people the rights that they have been assured.




Your characterization here is flawed.  Again, the basis for discrimination was sexual identity, not religious identity.  That alone makes this not a violation of the Establishment clause. The religious motivation doesn't enter, it else many, many laws and actions that have do many good things would also be violations.

But, specifically, this isn't a violation of the Establishment clause because no law was passed.  It's a violation of the civil rights of the petitioners not because there was a religious motivation involved, but because it violated the civil rights as established by law and jurisprudence.  You don't even need to reach for the Establishment clause to get to a Constitutional violation, not to mention that doing so is incorrect.


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## Deset Gled (Sep 28, 2015)

Just out of curiosity, Ovinomancer, where did you learn about law?  You use a lot of terminology properly and reference a lot of relevant base material.  But you seem to have no experience with modern case law, and some of the fundamental concepts you try and apply are so completely incongruent with the way American law is actually practiced that it's quite confusing.  Are you originally from another country?


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## billd91 (Sep 28, 2015)

Ovinomancer said:


> Yes, but the crime is discrimination based on sexual identity, not based on religion.  The Establishment clause doesn't care why you discriminate, it cares what the basis of discrimination is (it did far more than discrimination, that's just the angle here).  If the test is religious, it's a violation whether the rational for the test is religious or not.  If the test isn't religious, is not a violation regardless of whether it not the motivation was religious.
> 
> No crime exists based on specifics of motivation; why it was done doesn't matter outside of mens rea.  This doesn't become a violation of the Establishment clause because someone had a religious motivation.  You can have religious motivations so long as the result doesn't test on religion.
> 
> And by test on religion, that means that the actual action looks at the religion of those it's applied to, not the intent or desire of those executing it.




The discrimination may be primarily based on sexual identity, it is nevertheless driven by religion. It's based on Davis subordinating the law to her religion, in effect, establishing her religious beliefs as a state church. While the law itself is clear of anything crossing the Establishment clause, the government's actions, via Kim Davis, are religiously motivated and, I think, could be argued as violating at least the spirit of the Establishment clause. The question may arise whether or not the Establishment clause has clearly been applied to government action in carrying out the law rather than making the law, but ultimately, I think that's a pretty fine hair to split.


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## Ovinomancer (Sep 28, 2015)

Deset Gled said:


> Just out of curiosity, Ovinomancer, where did you learn about law?  You use a lot of terminology properly and reference a lot of relevant base material.  But you seem to have no experience with modern case law, and some of the fundamental concepts you try and apply are so completely incongruent with the way American law is actually practiced that it's quite confusing.  Are you originally from another country?



 I'd appreciate a pointer to where I'm offbase.  I've touched on a bunch of topics and you aren't very specific as to where I'm wrong.  I'm aware that there's some difference of opinion and differing legal scholarship surrounding some of the things I've talked about, but can tell where you disagree.

As for where I've studied, I try to not include identifiable personal information in my posts.  Let's just say that I've had some coursework, but don't practice.


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## Ovinomancer (Sep 28, 2015)

billd91 said:


> The discrimination may be primarily based on sexual identity, it is nevertheless driven by religion. It's based on Davis subordinating the law to her religion, in effect, establishing her religious beliefs as a state church. While the law itself is clear of anything crossing the Establishment clause, the government's actions, via Kim Davis, are religiously motivated and, I think, could be argued as violating at least the spirit of the Establishment clause. The question may arise whether or not the Establishment clause has clearly been applied to government action in carrying out the law rather than making the law, but ultimately, I think that's a pretty fine hair to split.



Religious motivation is not sufficient for invocation of the Establishment clause.  It could even be argued to even be unnecessary, but I can't see a situation where a religious test occurs without religious motivation without doing some very unrealistic logical limbo dancing.

If having religious motivation for doing something is sufficient, get ready for Establishment clause challenges to such things as Medicare.

I get that people would really like to see the use of the 1st via the Establishment clause used to show that this person's use of the 1st is invalid because it would be a fantastically ironic twist, but it's not a case you can win on.


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## Ryujin (Sep 28, 2015)

Ovinomancer said:


> Religious motivation is not sufficient for invocation of the Establishment clause.  It could even be argued to even be unnecessary, but I can't see a situation where a religious test occurs without religious motivation without doing some very unrealistic logical limbo dancing.
> 
> If having religious motivation for doing something is sufficient, get ready for Establishment clause challenges to such things as Medicare.
> 
> I get that people would really like to see the use of the 1st via the Establishment clause used to show that this person's use of the 1st is invalid because it would be a fantastically ironic twist, but it's not a case you can win on.




cf. "Endorsement Test" and related decisions.

... or we just skip the First and jump right on down to the Fourteenth Amendment, like the USSC did.

... or somehow get her to run afoul of the IRS. Those buggers just don't give up.


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## Ovinomancer (Sep 28, 2015)

Endorsement doesn't really work here as there's no direct endorsement of a religion. A gay couple couldn't get a license is they agreed to an endorsed religious precept, frex.

And I've been saying that this is unconstitutional under the 14th for awhile now.  You don't need to try a hail mary under the EC to get to unconstitutional.


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## cmad1977 (Sep 30, 2015)

Silverblade The Ench said:


> Organized religion, and a spiritual belief (faith) aren't the same things at all
> same with politics and the parties that are supposed to _represent_ certain political beliefs
> 
> I've had a near death experience and bunch of things after that...let's just say that I think the hate-filled, greedy flumph-licking twerps like this woman, and extremists of all types, and sociopaths-by-choice Oligarchs, well, they are in for one hell of a surprise
> ...




Right??

Except those 4e people. Those sinner can burn!!!! 

... Hehe.


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## Ryujin (Sep 30, 2015)

Ovinomancer said:


> Endorsement doesn't really work here as there's no direct endorsement of a religion. A gay couple couldn't get a license is they agreed to an endorsed religious precept, frex.
> 
> And I've been saying that this is unconstitutional under the 14th for awhile now.  You don't need to try a hail mary under the EC to get to unconstitutional.




It's denial based on failure to adhere to religious tenets, causing a disenfranchisement.


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## Ovinomancer (Sep 30, 2015)

Ryujin said:


> It's denial based on failure to adhere to religious tenets, causing a disenfranchisement.



No.  It's denial based on being gay.  There is no religious tenet the supplicate can advocate to bypass the test.  SCOTUS has adjust clearly also religious motivation for moral decisions behind laws (blue laws, frex).  It's the actual test that matters, not the motivation behind the test (unless the test assists to be religious in nature (this isn't, it's sexual orientation in nature) on which the court can consider if it's purely religious or also serves a valid secular purpose).


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## Kramodlog (Sep 30, 2015)

Pope said hello to Kim Davis. http://www.washingtonpost.com/news/...iss-alleged-secret-meeting-with-pope-francis/

I hope this reminds everyone that the Catholic Church hasn't changed. It just has a more charismatic supreme leader.


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## tomBitonti (Sep 30, 2015)

Hm,

Is there _no_ case where an ostensibly non-religious activity might still trigger the establishment cause?

For example, if one religious sect worships on Saturday, and another on Sunday, and laws are made to prohibit work on Sunday, while Saturday was made a mandatory civic service day, that is not on its face religious, but the effect clearly promotes one religion over another.

In this case, marriage can be seen as an intrinsically religious institution, and the institution is being allowed in a manner which is consistent with one religion, while being disallowed in a manner which is hews to a different religion.

Thx!
TomB


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## Janx (Sep 30, 2015)

goldomark said:


> Pope said hello to Kim Davis. http://www.washingtonpost.com/news/...iss-alleged-secret-meeting-with-pope-francis/
> 
> I hope this reminds everyone that the Catholic Church hasn't changed. It just has a more charismatic supreme leader.




Unfortunately, this official attention gives her actions increased perceived legitimacy.  Because the Pope doesn't meet with people like her just to to tell her "no, you shouldn't have done that."

All she had to do was resign in protest when the law changed/SCOTUS made its ruling.

Now, she's got "even the pope agrees with me" as tacit agreement that interfering with the operation of a government office as a sworn officer is acceptable.


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## Janx (Sep 30, 2015)

tomBitonti said:


> Hm,
> 
> Is there _no_ case where an ostensibly non-religious activity might still trigger the establishment cause?
> 
> ...




given that the bible actually says to exile somebody who works on the sabbath, it's a pretty short conclusion that the 2 laws are meant to screw one religion and support another.

That's probably the sniff test for bias in the first place, is that the laws happen to align with one religion, and screw another.  Once bias is detected, it's a short hop to court to argue a case.


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## billd91 (Sep 30, 2015)

Janx said:


> Now, she's got "even the pope agrees with me" as tacit agreement that interfering with the operation of a government office as a sworn officer is acceptable.




And, you know, there's a certain ilk of American Bible-thumpers who will probably be touting this as an important endorsement of Davis's position even though they'd probably have been the first to accuse a Catholic politician of being subservient to the Papacy when running for office.


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## Ovinomancer (Sep 30, 2015)

tomBitonti said:


> Hm,
> 
> Is there _no_ case where an ostensibly non-religious activity might still trigger the establishment cause?
> 
> ...



Yes, there are a number of possible laws.  A recent one overturned by SCOTUS concerned (iirc) subsidies to schools that did... something (can't recall).  Turns out that the vast majority of subsidies were going to Catholic private schools because they were really the only ones doing that... something (still can't recall).  This was construed as a tacit endorsement of a religious activity under the endorsement prong of the Lemon test and nullified.  So you can do that.

Your conjecture might fail on the second prong of the Lemon test.  I think that's the strongest challenge to it, but it might not be enough.  If not having the day off didn't inhibit the practice of religion 2, then it's not a problem.  if it does -- the religion requires the day off, or mandatory duties that don't mesh with work -- then it does. 

However, if you strike the mandatory day on out of the law and just keep the day off -- no, it doesn't run afoul of the Establishment Clause.



Janx said:


> given that the bible actually says to exile somebody who works on the sabbath, it's a pretty short conclusion that the 2 laws are meant to screw one religion and support another.
> 
> That's probably the sniff test for bias in the first place, is that the laws happen to align with one religion, and screw another.  Once bias is detected, it's a short hop to court to argue a case.



It's not probably the sniff test, it is actually part of the sniff test.  However, bias isn't the tested thing, and may not matter in the least.  Blue laws (dry counties, dry Sundays) are biased because they're clearly based on a religious morality.  But based on religious morality isn't enough to trigger the Establishment clause, so long as you don't entangle government with religion directly (as in state in the church or church in the state), don't suppress or advance a religion (not drinking alcohol doesn't do either), and have at least a fig leaf of a secular reason.  Blue laws promote a uniform day of rest, which is a public good.


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## Umbran (Oct 1, 2015)

billd91 said:


> And, you know, there's a certain ilk of American Bible-thumpers





Folks, can we hold off on the disparaging names, and phraseology, please?  Thanks


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## calronmoonflower (Oct 5, 2015)

Kentucky has a religious accommodation law to the complication. So as long as homosexual couples can get legal licenses without her having to sign on to them, then the law is on her side on the issue. As long as these licenses are legally issued by her department, it is not a matter gay being deigned their rights. It would instead be about forcing someone to violate their religious beliefs without a compelling reason to.

Of course in at least one state a old law can actually make it possible to legally completely stop issuing license.
http://www.theblaze.com/stories/201...id-issuing-marriage-licenses-for-gay-couples/
Notice the context in which the law was changed.


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## Kramodlog (Oct 5, 2015)

Proving this ain't about religion, but about hate.


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## Ryujin (Oct 6, 2015)

calronmoonflower said:


> Kentucky has a religious accommodation law to the complication. So as long as homosexual couples can get legal licenses without her having to sign on to them, then the law is on her side on the issue. As long as these licenses are legally issued by her department, it is not a matter gay being deigned their rights. It would instead be about forcing someone to violate their religious beliefs without a compelling reason to.
> 
> Of course in at least one state a old law can actually make it possible to legally completely stop issuing license.
> http://www.theblaze.com/stories/201...id-issuing-marriage-licenses-for-gay-couples/
> Notice the context in which the law was changed.




She has taken steps to make it impossible.


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## Ryujin (Oct 6, 2015)

Ovinomancer said:


> No.  It's denial based on being gay.  There is no religious tenet the supplicate can advocate to bypass the test.  SCOTUS has adjust clearly also religious motivation for moral decisions behind laws (blue laws, frex).  It's the actual test that matters, not the motivation behind the test (unless the test assists to be religious in nature (this isn't, it's sexual orientation in nature) on which the court can consider if it's purely religious or also serves a valid secular purpose).




I yield to your logic. I was trying to create reciprocity, where it doesn't exist in law. It should, but it doesn't. I still want to see her nethers slowly fry though.


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## tomBitonti (Oct 6, 2015)

Not sure if this works, but technically, isn't this discrimination based on gender (and not being gay per se)?  That is, the lady never actually verifies the sexual orientation of the applicants, and would probably allow a gay man or woman marry a person of the opposite sex.

That seems to break down when you consider that hardly anyone who isn't gay would want to marry a person of their own gender.  So I don't think that it works.  It's just curious.

Thx!
TomB


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## Dannyalcatraz (Oct 6, 2015)

Ovinomancer said:


> Yes, but the crime is discrimination based on sexual identity, not based on religion.  The Establishment clause doesn't care why you discriminate, it cares what the basis of discrimination is (it did far more than discrimination, that's just the angle here).  If the test is religious, it's a violation whether the rational for the test is religious or not.  If the test isn't religious, is not a violation regardless of whether it not the motivation was religious.




See the article I quoted above about prayer in school: an offense can violate more than one clause of the Constitution simultaneously.  You don't have to stop just because you've got grounds for one violation if multiples are present.

Here, the violation was both based on sexual identity AND religiously motivated (as per the explicit claims of the clerk).  In fact, it could be argued that, but for her religion, she might not have raised the objection.

IOW, an Establishment clause violation can be considered.


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## Dannyalcatraz (Oct 6, 2015)

Ovinomancer said:


> Religious motivation is not sufficient for invocation of the Establishment clause.  It could even be argued to even be unnecessary, but I can't see a situation where a religious test occurs without religious motivation without doing some very unrealistic logical limbo dancing.
> 
> If having religious motivation for doing something is sufficient, get ready for Establishment clause challenges to such things as Medicare.




Motivation always matters.  The reason why you DON'T see successful Establishment clause challenges is that the mere presence of a religious motivation is insufficient to win the challenge as long as there is another compelling interest in retaining the law.  Case law is littered with such decisions.

Certain faiths call for the ritualized slaughter of animals.  If the majority of a municipality finds one such faith's practices religiously repugnant and convinces their council to pass a law governing the slaughter of animals within city limits in such a way that prevents those faiths from performing their sacrifices within city limits, that law will withstand an Establishment clause challenge so long as the city can show that it works in conjunction- and non-discriminatorily- with the city's other regulations regarding zoning, sanitation, disposal of animal carcasses, cruelty to animals, licensing requirements for slaughterhouses in general, etc.


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## Dannyalcatraz (Oct 6, 2015)

goldomark said:


> Pope said hello to Kim Davis. http://www.washingtonpost.com/news/...iss-alleged-secret-meeting-with-pope-francis/
> 
> I hope this reminds everyone that the Catholic Church hasn't changed. It just has a more charismatic supreme leader.




I was in the Vatican when this broke.  Their story differs greatly from hers, and they're not pleased with her.  In fact, heads may roll.

http://www.businessinsider.com/r-po...-to-clerk-in-gay-marriage-row-vatican-2015-10

http://usuncut.com/news/pope-franci...bishop-who-set-up-the-meeting-with-kim-davis/


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## Homicidal_Squirrel (Oct 6, 2015)

Dannyalcatraz said:


> http://usuncut.com/news/pope-franci...bishop-who-set-up-the-meeting-with-kim-davis/



Tee hee.


----------



## Ovinomancer (Oct 7, 2015)

Dannyalcatraz said:


> See the article I quoted above about prayer in school: an offense can violate more than one clause of the Constitution simultaneously.  You don't have to stop just because you've got grounds for one violation if multiples are present.



No disagreements.  Never meant to imply otherwise.  This is often how complaints are conducted -- throw everything you can at it and take what sticks.



> Here, the violation was both based on sexual identity AND religiously motivated (as per the explicit claims of the clerk).  In fact, it could be argued that, but for her religion, she might not have raised the objection.
> 
> IOW, an Establishment clause violation can be considered.



With the exception of not quite understanding how both works there, I'll agreeably stipulate that the violation was based on sexual identity and was religiously motivated.  However, religious motivation is not a test under the Establishment clause.  So you can consider it, but it won't pass muster.




Dannyalcatraz said:


> Motivation always matters.  The reason why you DON'T see successful Establishment clause challenges is that the mere presence of a religious motivation is insufficient to win the challenge as long as there is another compelling interest in retaining the law.  Case law is littered with such decisions.



No, that's not correct.  You don't see those challenged because religious motivation is not covered under the Establishment clause.  Effects are covered, motivations aren't.  It's perfectly okay to have a religious motivation if you have a secular compelling interest.  If you don't have a compelling secular interest, then the effect fails the last prong of the Lemon test because it does a religious thing _only_.  In the current case, it would be hard to characterize sexual orientation discrimination as a religious thing only because it doesn't check for religion at all -- it doesn't punish non-believers, it doesn't require adherence to a religious tenant, it doesn't require membership in a religious organization.  It's test and effect are entirely secular because sexual orientation is not a religious test.  So having a religious motivation isn't sufficient to invoke the Establishment clause because there's no religious test or endorsement.




> Certain faiths call for the ritualized slaughter of animals.  If the majority of a municipality finds one such faith's practices religiously repugnant and convinces their council to pass a law governing the slaughter of animals within city limits in such a way that prevents those faiths from performing their sacrifices within city limits, that law will withstand an Establishment clause challenge so long as the city can show that it works in conjunction- and non-discriminatorily- with the city's other regulations regarding zoning, sanitation, disposal of animal carcasses, cruelty to animals, licensing requirements for slaughterhouses in general, etc.



Yup, no disagreement.  And, if discrimination based on sexual orientation was legal (like it was, oh, last year), then denying people with the wrong sexual orientation based on religious beliefs would similarly be okay.  The only thing that changed here was that it became illegal to discriminate based on sexual orientation.  That's it.  So what she did is in violation of the 14th, yes and very much so, but not the 1st.


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## Dannyalcatraz (Oct 8, 2015)

Ovinomancer said:


> With the exception of not quite understanding how both works there, I'll agreeably stipulate that the violation was based on sexual identity and was religiously motivated.  However, religious motivation is not a test under the Establishment clause.  So you can consider it, but it won't pass muster.




I don't know where you get this fixation on "tests", because that is not the end-all, be-all of the Establishment Clause.

In the example in the linked to law review article, there was no "test": the school established an explicitly Christian prayer practice which was deemed a violation of the EC.

In the RW case we're discussing, not only did the clerk PERSONALLY deny licenses to gays based on the tenets of her faith, she also prevented everyone in her office from doing so as long as her name was on the forms because of those same tenets AND declared that those licenses issued without her name were void.  (KY law actually explicitly allows deputy clerks to issue valid forms.)  IOW, a couple could only get a valid marriage license as long as they conformed to the strictures of of her faith, no exceptions.  That's a prima facie case for an EC violation.





> No, that's not correct.  You don't see those challenged because religious motivation is not covered under the Establishment clause.  Effects are covered, motivations aren't.  It's perfectly okay to have a religious motivation if you have a secular compelling interest.  If you don't have a compelling secular interest, then the effect fails the last prong of the Lemon test because it does a religious thing _only_.  In the current case, it would be hard to characterize sexual orientation discrimination as a religious thing only because it doesn't check for religion at all -- it doesn't punish non-believers, it doesn't require adherence to a religious tenant, it doesn't require membership in a religious organization.  It's test and effect are entirely secular because sexual orientation is not a religious test.  So having a religious motivation isn't sufficient to invoke the Establishment clause because there's no religious test or endorsement.




So we're all using the same terminology, here is Justice Black's clarification of the EC:
_Neither a state nor the federal government can set up a church.
Neither can pass laws which aid one religion, aid all religions nor prefer one religion over another.
Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion.
Neither a state nor the federal government can openly or secretly participate in the affairs of any religious organizations or groups and vice versa._

This is the Lemon Test:
_Does the challenged law, or other governmental action, have a bona fide secular (non-religious) or civic purpose?
Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral?
Does the law or action avoid excessive entanglement of government with religion?_

The Endorsement Test (O'Connor)
_Government practices may not have the effect of communicating a message of government endorsement or disapproval of religion._

The Coercion Test (Kennedy)
_The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise._

Since- as mentioned before- there ARE faiths that permit same-sex marriage, any denial of such (even before the recent SCOTUS decision) begs the question of an EC issue, since it interferes with the free practice of those faiths (Black, Lemon).  It also arguably prioritizes the beliefs of certain faiths over others without any legal alternatives (Black, Endorsement, Coercion).  This is why even respected conservative jurists like 7th Circuit appellate judge Richard Posner kept asking those various AGs tasked with the defense of denying marriage equality for a bona fide secular purpose for doing so (Lemon).

But, even if there were not faiths that recognized same-sex marriage, you still raise the identical issues, since the EC _also_ precludes the establishment of edicts of faith over secular laws.  That's why the Lemon test's key is the demand for a "bona fide secular (non-religious) or civic purpose".  Quote whatever scripture you want to support your position- the Bible, the Torah, the Koran, the Vedas, etc.- all are immaterial if you can't prove a secular/civic justification.

Richard Posner would _hammer_ that point each time- no lawyer succeeded in articulating a secular rationale for opposing same sex marriage that hadn't been shot down in prior constitutional marriage laws involving heterosexual marriage rights, like _Loving_.

Here are excerpts from a couple of exchanges he had with the AGs of Indiana & Wisconsin at Slate:
http://www.slate.com/blogs/outward/...r_destroy_arguments_against_gay_marriage.html



> ...if discrimination based on sexual orientation was legal (like it was, oh, last year), then denying people with the wrong sexual orientation based on religious beliefs would similarly be okay.  The only thing that changed here was that it became illegal to discriminate based on sexual orientation.  That's it.  So what she did is in violation of the 14th, yes and very much so, but not the 1st.




See above.


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## Ovinomancer (Oct 8, 2015)

Dannyalcatraz said:


> I don't know where you get this fixation on "tests", because that is not the end-all, be-all of the Establishment Clause.



I've mentioned the other prongs, but they're not relevant here.




> In the RW case we're discussing, not only did the clerk PERSONALLY deny licenses to gays based on the tenets of her faith, she also prevented everyone in her office from doing so as long as her name was on the forms because of those same tenets AND declared that those licenses issued without her name were void.  (KY law actually explicitly allows deputy clerks to issue valid forms.)  IOW, a couple could only get a valid marriage license as long as they conformed to the strictures of of her faith, no exceptions.  That's a prima facie case for an EC violation.



No, that's prima facie evidence for a 14th violation.  The gay members could have entirely conformed to the strictures of her faith, and would still have been denied.  They weren't denied because of belief, or faith, or failures in either, they were denied because they were gay (or specifically, because they wanted to marry someone of the same sex).  There was no religious belief they could profess that would have allowed them to get a license.

That such discrimination was religiously motivated isn't relevant to the EC, as we'll see below.





> So we're all using the same terminology, here is Justice Black's clarification of the EC:
> _Neither a state nor the federal government can set up a church.
> Neither can pass laws which aid one religion, aid all religions nor prefer one religion over another.
> Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
> ...



Excellent!  Which one of those covers denying same sex marriage?  Not the motivation for denying, because none of those speak to motivation, only to effect. 



> This is the Lemon Test:
> _Does the challenged law, or other governmental action, have a bona fide secular (non-religious) or civic purpose?
> Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral?
> Does the law or action avoid excessive entanglement of government with religion?_



Again, excellent!  For prong one, there is a secular purpose -- the discrimination based on sexual orientation.  That's a secular reason because it has no religious basis -- motivation, yes, but not a basis.  You could be any religion, but it's the state of being gay that causes the discrimination.  Of course, this isn't a legal purpose under other laws, but that's not the test under this prong.

For the second, it neither advances nor inhibits religion.  It is neutral to religion because it checks gayness, not faith.

Finally, it does not require government entanglement with religion because it takes no action for or against any religion.



> The Endorsement Test (O'Connor)
> _Government practices may not have the effect of communicating a message of government endorsement or disapproval of religion._



O'Connor's suggestions aren't currently thought of as sound jurisprudence, being overly broad.  However, it still works here because there is not religious message being endorsed or disapproved of, it's being gay that's being disapproved of.




> The Coercion Test (Kennedy)
> _The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise._



Again, no one's being coerced into participation or avoidance of religion - it's being gay that's being discriminated against.



> Since- as mentioned before- there ARE faiths that permit same-sex marriage, any denial of such (even before the recent SCOTUS decision) begs the question of an EC issue, since it interferes with the free practice of those faiths (Black, Lemon).



No it doesn't.  How odd.  If this is the case, then the approval of same sex marriage invites an EC challenge under the same judicial theory.  It doesn't.  Religious approval or disapproval of a secular matter (such as the issuing of marriage licenses to same sex persons, a clearly secular issue) have no bearing because the matter is secular.  Only if it also implies endorsement or inhibition of one of the religions would that even be the case.  The fact that many religions do permit, and that it's a matter of discussion in whats-her-name's religion (my memory doesn't want to hold onto her name for some reason) actually cuts against an EC challenge.



> It also arguably prioritizes the beliefs of certain faiths over others without any legal alternatives (Black, Endorsement, Coercion).



That's not the test under those theories.  It's does the act explicitly endorse or coerce _religious_ activities.  Same sex marriage is not a religious activity (as far as the law is concerned, at least). 



> This is why even respected conservative jurists like 7th Circuit appellate judge Richard Posner kept asking those various AGs tasked with the defense of denying marriage equality for a bona fide secular purpose for doing so (Lemon).



Posner was asking under the due process clause, which uses a similar compelling interest test to the Establishment clause.  I can't find anywhere where he asked questions under the theory of an EC violation.  

He might have, if the due process clause wasn't so much easier to use.  Courts are like that -- they won't even address other issues if there's a quicker path to decision, sometimes even finding such a path that isn't argued by either side.



> But, even if there were not faiths that recognized same-sex marriage, you still raise the identical issues, since the EC _also_ precludes the establishment of edicts of faith over secular laws.  That's why the Lemon test's key is the demand for a "bona fide secular (non-religious) or civic purpose".  Quote whatever scripture you want to support your position- the Bible, the Torah, the Koran, the Vedas, etc.- all are immaterial if you can't prove a secular/civic justification.



Discrimination based on sexual orientation is secular, because sexual orientation is not a religious belief.  That's sufficient to make this case based on a secular purpose -- denial of same sex marriage licenses.  Motivation for the denial doesn't come into it once you can establish a clear secular purpose.  That discrimination of same sex marriage was found to be illegal under other law (and the EC didn't show up at all in those decisions), it's hard to say that it suddenly applies to the very same issue it's been absent from.

If the discrimination wasn't an EC violation prior to the recent ruling (it didn't find an EC violation), if the ruling wasn't an EC violation (it clearly wasn't), then continuing to illegally discriminate after the ruling isn't suddenly an EC violation because someone's doing it because of their religion.  The discrimination is secular, not religious, because it discriminates on secular causes, not religious ones.



> Richard Posner would _hammer_ that point each time- no lawyer succeeded in articulating a secular rationale for opposing same sex marriage that hadn't been shot down in prior constitutional marriage laws involving heterosexual marriage rights, like _Loving_.



Posner used the word 'secular' once in his opinion, and it wasn't crucial to his decisions.  He hammered the lawyers for a compelling government interest under due process, not the EC.  The EC was absent from his decision entirely.




> Here are excerpts from a couple of exchanges he had with the AGs of Indiana & Wisconsin at Slate:
> http://www.slate.com/blogs/outward/...r_destroy_arguments_against_gay_marriage.html



You realize that 'secular' doesn't appear anywhere in that article, yes?  Nor does 'Establishment Clause'.  'Due Process' shows up, though.

Look, I get that it seems like this is an Establishment clause action because her religious beliefs are so front and center here.  But it's not because the effect has nothing to do with religion or religious beliefs, not tested, not as the purpose, not as endorsement, not as entanglement, not as anything religious.  Motivation isn't sufficient.  Again, I reference Blue Laws, which are also clearly religiously motivated but still legal.


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## Dannyalcatraz (Oct 9, 2015)

Ovinomancer said:


> No, that's prima facie evidence for a 14th violation.  The gay members could have entirely conformed to the strictures of her faith,




(No, since her faith does not permit same-sex marriage.)



> and would still have been denied.  They weren't denied because of belief...



(Yes they were, by the explicit testimony of the person denying their right to marry.)


> or faith, or failures in either, they were denied because they were gay (or specifically, because they wanted to marry someone of the same sex).  There was no religious belief they could profess that would have allowed them to get a license.




..._because _she is expressly elevating her faith's tenets above the requirements of secular law.  That is a clear EC violation, just as it would be if an Inuit denied Sarah Palin a hunting license because his faith prohibits women from being hunters.



> Which one of those covers denying same sex marriage?  Not the motivation for denying, because none of those speak to motivation, only to effect.




Black's second point, third clause- elevating one faith above others)- IS about motivation, and here, it is the same as when that town backed off only opening with Christian prayers, same as why 10 Commandment Monuments get yanked, etc.




> For prong one, there is a secular purpose -- the discrimination based on sexual orientation.  That's a secular reason because it has no religious basis -- motivation, yes, but not a basis.  You could be any religion, but it's the state of being gay that causes the discrimination.  Of course, this isn't a legal purpose under other laws, but that's not the test under this prong.



Wisconsin's lawyers tried that with Posner under "traditional definitions of marriage" and failed.  As he noted, that was torpedoed under _Loving_.  Thus, this is a non starter because of res judicata.

In addition, in 1997, Lemon got refined:



> In its 1997 decision Agostini v. Felton, the Supreme Court modified the Lemon test. By combining the last two elements, the Court now used only the “purpose” prong and a modified version of the “effects” prong. The Court in Agostini identified three primary criteria for determining whether a government action has a primary effect of advancing religion: 1) government indoctrination, 2) defining the recipients of government benefits based on religion, and 3) excessive entanglement between government and religion.




Note the reformulated second part: "defining the recipients of government benefits based on religion".  By denying gays the right to marry because of her faith, the KY clerk runs afoul of SCOTUS' Agostini reformulation of the Lemon test.  Her actions deny them everything in the bundle of legal rights the Federal, State and Civic governments have tied to the marital contract.

(Note: this did not create an "Agostini test". Agostini follows Lemon, and merely clarifies Lemon with its reformulation.)



> For the second, it neither advances nor inhibits religion.




_It absolutely does_- it prohibits faiths that recognize same sex marriage from performing them.

This goes back to Scalia's majority opinion in _Employment Division v. Smith_ and the Federal RFPA that was passed in response to it.  In _Smith_, the majority found that religious use of peyote was not protected because of the state's interest in controlling drug consumption in general (even though religious use of alcohol by Catholics WAS permitted during Prohibition, as former altar boy & arch-conservative Scalia well knew).  The RFPA basically altered that, explicitly crafting a framework for creating limited exceptions.



> O'Connor's suggestions aren't currently thought of as sound jurisprudence, being overly broad.




_What?_

O'Connor's formulation is completely sound and in current use- from the First Amendment Center:


> She expressed her understanding of the establishment clause in the 1984 case of Lynch v. Donnelly, in which she states, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.” Her fundamental concern was whether the particular government action conveys “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” O’Connor’s “endorsement test” has, on occasion, been subsumed into the Lemon test. The justices have simply incorporated it into the first two prongs of Lemon by asking if the challenged government act has the purpose or effect of advancing or endorsing religion.
> 
> The endorsement test is often invoked in situations where the government is engaged in expressive activities. Therefore, situations involving such things as graduation prayers, religious signs on government property, religion in the curriculum, etc., will usually be examined in light of this test.[/i]
> 
> ...


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## Ovinomancer (Oct 9, 2015)

Dannyalcatraz said:


> (No, since her faith does not permit same-sex marriage.)
> 
> 
> (Yes they were, by the explicit testimony of the person denying their right to marry.)
> ...



EDIT:  there was a stray quote tag in the quoted text, and it broke the formatting when I quoted it.  I have altered Danny's post about to remove that quote, but I have changed nothing else. /edit

I don't want to fisk this, as I think we're going around in circles, so...

...to try a different tack: the effect of the clerk's actions is to deny same sex couples access to marriage licenses.  To restate:  _the effect is to discriminate on sexual orientation_.  That's the sum of the effect.  That is what is looked at under the Establishment Clause.  You have to review this effect without regard to motivation.  Pretend that a completely bigoted atheist did this.  Review all of the tests regarding the effect as if this atheist did exactly the same things.  There is no religion supported or punished, no religion endorsed, no religious entanglements, no Establishment Clause violations whatsoever.  Just a bigot violating some nice peoples' due process rights.

You have to dissociate the effect from the actor because the law is meant to be blind to individuals.  If you treat this clerk with her religious motivations differently than you treat the atheist bigot, you are actually violating her 1st amendment rights to freedom of religion -- you are changing the way the law affects her solely based on her religious statements.  The law i blind to motivations for this exact reason -- only the establishment of intent to break the law is necessary to convict, actual motivation is irrelevant until you get to sentencing.  That this clerk's motivations are clearly religious shouldn't even be considered when evaluating if her actions violate the Establishment Clause.  By the simple expedient of swapping the motivation for the actions it becomes crystal clear that the only reason anyone would think this a violation of the EC is the stated motivations of the actor, and that's not sufficient to cause a violation.


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## Dannyalcatraz (Oct 9, 2015)

Ovinomancer said:


> ...to try a different tack: the effect of the clerk's actions is to deny same sex couples access to marriage licenses.  To restate:  _the effect is to discriminate on sexual orientation_.  That's the sum of the effect.  That is what is looked at under the Establishment Clause.



I'm sorry, but that is simply incorrect under Agonisti.

To reiterate, Agonisti's reformulation & clarification of Lemon enumerated three primary criteria for determining whether a government action has a primary effect of advancing religion: 

1) government indoctrination
2) defining the recipients of government benefits based on religion
3) excessive entanglement between government and religion.

By her own words, the clerk violates the second criterion.  She denied fundamental rights & legal benefits ("government rights") of couples seeking marriage licenses based on the tenets of her faith ("based on religion"):



> On Tuesday morning, Rowan County Clerk Kim Davis denied marriage licenses to at least two couples, telling them she was acting “under God’s authority.”
> http://www.msnbc.com/rachel-maddow-...is-ignores-court-rulings-cites-gods-authority






> "I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God's word," her statement said.
> http://bigstory.ap.org/article/6b40...ssue-gay-marriage-licenses-after-court-ruling






> "My conscience will not allow it," Davis said earlier to Bunning. "God's moral law convicts me and conflicts with my duties."
> 
> http://www.usatoday.com/story/news/...-court-clerk-marriage-licenses-gays/71635794/




By Agonisti's reformulation, that's an EC violation, full stop, end of story.



> If you treat this clerk with her religious motivations differently than you treat the atheist bigot, you are actually violating her 1st amendment rights to freedom of religion -- you are changing the way the law affects her solely based on her religious statements.




No, you're not: if an atheist government worker denied his agency's services to all members of a particular religion because he felt that those people didn't deserve them due to their faith's tenets, that's every bit as much an EC violation.

Besides, she is completely fee to believe as she wishes, but her faith cannot be used to escape the duties of her position while simultaneously shielding her from the consequences of being unwilling or unable to perform those duties.

One of the religious accommodation cases I covered in law school involved men whose faith demanded they maintain their facial hair uncut.  They sued their company because they were systematically and universally denied employment in one of the higher paying jobs in the manufacturing process.  The company claimed that the portion of the required safety gear covering the face was defeated by beards...and proved it in court.  The company won, and no accommodation was demanded.

Similarly, the USAF would not be forced to allow a pilot who converted to pacifism to continue flying combat missions in A-10s.  They could reassign him or dismiss him from service without penalties.


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## Ovinomancer (Oct 9, 2015)

Dannyalcatraz said:


> I'm sorry, but that is simply incorrect under Agonisti.



No, it's not, but okay, let's do this again.



> To reiterate, Agonisti's reformulation & clarification of Lemon enumerated three primary criteria for determining whether a government action has a primary effect of advancing religion:
> 
> 1) government indoctrination
> 2) defining the recipients of government benefits based on religion
> 3) excessive entanglement between government and religion.



Yes, all correct (enough).



> By her own words, the clerk violates the second criterion.  She denied fundamental rights & legal benefits ("government rights") of couples seeking marriage licenses based on the tenets of her faith ("based on religion"):
> 
> By Agonisti's reformulation, that's an EC violation, full stop, end of story.



Defining recipients of government benefits based on religion doesn't mean what you think it means.  It means that you can't base receipt of benefits based on the _recipients _religion.  Not that the motivation to deny benefits is couched in religious terms.  The basis for denying benefits here was solely the recipients' sexual orientation, not religion or religious belief.  Therefore, it doesn't make the second prong (or the first, or the third).  The motivation behind it isn't relevant -- we _want _people to be able to have religious motivations for secular things.  If your example is sufficient, then there is never the ability to have a religious motivation to improve, say, healthcare because the motivation is suspect.  This isn't the case (one of the larger expansions of medicare was explicitly because of the bill sponsor's religious beliefs).

The US does not alter whether or not something is a crime based on the particulars of motivation.  Establishment Clause violations follow this precept.  They look at the effect only, not the motivation or the stated goal.  






> No, you're not: if an atheist government worker denied his agency's services to all members of a particular religion because he felt that those people didn't deserve them due to their faith's tenets, that's every bit as much an EC violation.



No, it's not an EC violation, either.  But that wasn't my example, my example had a totally non-religious reason for denying benefits (general bigotry) and no religious entanglements whatsoever.  It was there to illustrate that motive has no bearing on EC violations, because otherwise we treat offenders differently based on their motivation.  That leads to punishing people for having religious convictions and not punishing people that don't, which is a 1st Amendment violation, both a freedom of religion violation and an, ironically, Establishment Clause violation (it's a law that punishes religious beliefs).



> Besides, she is completely fee to believe as she wishes, but her faith cannot be used to escape the duties of her position while simultaneously shielding her from the consequences of being unwilling or unable to perform those duties.



100% agreed, but because she's violating those people's due process rights, not because of the Establishment Clause.  What the clerk is doing is wrong, and unconstitutional, and I strongly denounce it, but it's not an Establishment Clause violation.



> One of the religious accommodation cases I covered in law school involved men whose faith demanded they maintain their facial hair uncut.  They sued their company because they were systematically and universally denied employment in one of the higher paying jobs in the manufacturing process.  The company claimed that the portion of the required safety gear covering the face was defeated by beards...and proved it in court.  The company won, and no accommodation was demanded.



An excellent result. 



> Similarly, the USAF would not be forced to allow a pilot who converted to pacifism to continue flying combat missions in A-10s.  They could reassign him or dismiss him from service without penalties.



A further excellent result.  While neither of these examples actually impinges on the Establishment Clause, they do show that religious discrimination can legally occur so long as the it's established that a compelling interest exists.  I'm not sure what you think these examples help illuminate in this case.


----------



## Dannyalcatraz (Oct 9, 2015)

Ovinomancer said:


> Defining recipients of government benefits based on religion doesn't mean what you think it means.  It means that you can't base receipt of benefits based on the _recipients _religion.



This is factually incorrect- the test can be applied to both sides, recipient or provider.

In Agostini, the SCOTUS majority (O'Connor, Rehnquist, Scalia, Kennedy, and Thomas) were looking at government funding directed at parochial schools, and, among other things, considered all 3 prongs of the Lemon test (as they redefined it).

Specifically to this point, they looked at whether the government backed programs at these schools "defined beneficiaries with reference to religion"; whether the programs "favored or disfavored religion", or "provided incentives for prospective beneficiaries to modify their religious beliefs or practices" in accord with the faith underlying the parochial school in order to receive the services.

Which is to say, they looked at whether the faith of the government-funded programs' gatekeepers determined who received the benefits the government intended to be distributed neutrally.  They looked at the benefits providers' motives in the decision making process.

Now, in Agostini, the plaintiffs failed to meet this burden (or any of the other Lemon test standards).  In KY, though, the sole gatekeeper of the right in question has publicly admitted that she expects those seeking marriage modify their beliefs or practices to conform to the tenets of her faith, at least on these grounds.*

IOW, her words & actions raise a prima facie case of an EC violation under Agostini.



> The US does not alter whether or not something is a crime based on the particulars of motivation.



Again, this is incorrect.

The differences between 1st degree murder, negligent homicide, and justifiable homicide (a.k.a., not a crime at all) hinge on motive.  Same goes with many other crimes, and in civil law, torts as well: intent can change culpability from 100% to zero.

And in a Constitutional case, being able to define a compelling state interest can turn a violation into no crime at all.



* When asked about denying marital licenses to other groups not in accord with her faith's teachings, like divorced people, she dodged the issue.


----------



## Ovinomancer (Oct 9, 2015)

Dannyalcatraz said:


> This is factually incorrect- the test can be applied to both sides, recipient or provider.



I don't follow.  If you aren't checking the recipients religion, how does it work to deny benefits?  If you can check only the provider's religion, you end up with denying people benefits because the provider has a religion?  That's nonsensical.  Maybe there's a construction wherein you can logically deny benefits to someone because the provider has religion that doesn't check the recipients religion, but I'm struggling to find one.



> In Agostini, the SCOTUS majority (O'Connor, Rehnquist, Scalia, Kennedy, and Thomas) were looking at government funding directed at parochial schools, and, among other things, considered all 3 prongs of the Lemon test (as they redefined it).



Okay, but Agostini is far removed from the facts here.  I'll agree they used the Lemon test, and well.



> Specifically to this point, they looked at whether the government backed programs at these schools "defined beneficiaries with reference to religion"; whether the programs "favored or disfavored religion", or "provided incentives for prospective beneficiaries to modify their religious beliefs or practices" in accord with the faith underlying the parochial school in order to receive the services.
> 
> Which is to say, they looked at whether the faith of the government-funded programs' gatekeepers determined who received the benefits the government intended to be distributed neutrally.  They looked at the benefits providers' motives in the decision making process.



I'm sorry, but have you actually read the decision in Agostini?  Nowhere do they consider the provider's motives, but instead look at the effects to see what the law _does_.  



> Now, in Agostini, the plaintiffs failed to meet this burden (or any of the other Lemon test standards).  In KY, though, the sole gatekeeper of the right in question has publicly admitted that she expects those seeking marriage modify their beliefs or practices to conform to the tenets of her faith, at least on these grounds.*
> 
> IOW, her words & actions raise a prima facie case of an EC violation under Agostini.



No, misrepresenting the jurisprudence in a case that has nothing to do with the current situation, then reversing the logic misrepresented to try to show that the unrelated situation is a violation does not a prima facie case make.



> Again, this is incorrect.
> 
> The differences between 1st degree murder, negligent homicide, and justifiable homicide (a.k.a., not a crime at all) hinge on motive.  Same goes with many other crimes, and in civil law, torts as well: intent can change culpability from 100% to zero.



No, then hinge on mens rea.  The actual motivation is irrelevant, just the scope of the guilty mind.  If you plan a murder intentionally, you have shown the mens rea to break the law and end a life wantonly, and so get a higher charge.  If you are intentionally negligent, and that results in a death, you've knowingly allowed the conditions for a death to occur, and so get the charge of manslaughter.  You haven't knowingly and willingly killed someone, so you do not have mens rea for murder.

In none of that is the actual motivation considered -- it doesn't matter if you plan the murder because you think the other people is a cat person and cat people are evil (regardless of evidence for), or it you did it because that person was worth more to you dead than alive, or if it was a hit because they crossed you and slept with your wife.  Motivation doesn't matter, intent does.  Intent to break the law, not motivation.  The law is blind to the actual motivation until sentencing.

In sentencing, then motivation does matter, but that's after conviction, and motivation is used to determine the severity of punishment.



> And in a Constitutional case, being able to define a compelling state interest can turn a violation into no crime at all.



Yes, okay, I don't understand your point.  It seems that you're saying that denying same sex couples marriage licenses isn't a compelling state interest -- to which I'd agree, it is not a compelling interest to violate peoples' due process rights under the 14th Amendment.  It's illegal to do this under another law.  That doesn't mean that because it's invalid under the 14th, that it's invalidity is transferable to the EC.  Denying same sex marriages is a secular thing to do -- it doesn't check the religion of the recipients, it checks their sexual orientation.  Why it would check it is irrelevant, it only matters that the check is of a secular matter.  In the eyes of the Establishment Clause, there is no need to determine if the action violates other laws -- that's the business of other laws.  So the secular checking of sexual orientation as a basis for providing benefits isn't the purview of the Establishment Clause.

I've repeatedly tried to show this by switching actors and showing that if you remove the religious motivation, the exact same action isn't a violation of the Establishment Clause.  An action isn't illegal based on the reason a person did it, but only on the actual actions taken.  Similarly, a law or action isn't an Establishment Clause violation solely because of the religious beliefs of the actor.  The law or action has to have a religious impact, and this one doesn't; it's just straight up bigotry.


* When asked about denying marital licenses to other groups not in accord with her faith's teachings, like divorced people, she dodged the issue.[/QUOTE]


----------



## Dannyalcatraz (Oct 10, 2015)

Yes, I did read the case, and no, I am not misrepresenting it.

From the Agonisti majority's opinion
( https://www.law.cornell.edu/supct/html/96-552.ZO.html ):



> Although we examined in Witters and Zobrest the criteria by which an aid program identifies its beneficiaries, we did so solely to assess whether any use of that aid to indoctrinate religion could be attributed to the State. A number of our Establishment Clause cases have found that the criteria used for identifying beneficiaries are relevant in a second respect, apart from enabling a court to evaluate whether the program subsidizes religion. Specifically, the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination.




Translation: in past cases, to see if the State was culpable, the Court examined programs' criteria to see if they used the aid to indoctrinate recipients.  "Indoctrination" is the goal of the benefit provider, and not a characteristic of a beneficiary; IOW, the Court looked at distributors' motives.  If and when the motive of indoctrination is present, the Court would then look to see to what degree- if any- the State's efforts enabled said indoctrination.

In addition, the criteria themselves may be examined to see if they inherently create incentives to conform to the religious principles of the service provider.



> Applying this reasoning to New York City's Title I program, it is clear that Title I services are allocated on the basis of criteria that neither favor nor disfavor religion...The Board's program does not, therefore, give aid recipients any incentive to modify their religious beliefs or practices in order to obtain those services.




Here, the Court is saying it used the standard applied in the Witters and Zobrest cases- looking to see if the aid was distributed in a such way as to aid in indoctrination (again, examining the motives of the distributors)- to the case set before them in Agonisti.  They didn't find it, so the plaintiffs lost on this fork of the test.

***

Mens rea IS a motivational concept.  Intentional homicide- say, planned killing for insurance money- is different from negligent homicide- say, killing because you were speeding on rain-slicked streets- is different from justified intentional homicide- killing someone in the defense of another.


----------



## tomBitonti (Oct 10, 2015)

First, this has been a great dialog to follow.

Second, in the following text, isn't indoctrination an outcome?  If I indoctrinate a group to follow a particular religion, does it matter in particular why?  Indoctrination can be imposed for non-religious motivations, and would still seem to be a problem.



Dannyalcatraz said:


> From the Agonisti majority's opinion
> ( https://www.law.cornell.edu/supct/html/96-552.ZO.html ):
> 
> Translation: in past cases, to see if the State was culpable, the Court examined programs' criteria to see if they used the aid to indoctrinate recipients.  "Indoctrination" is the goal of the benefit provider, and not a characteristic of a beneficiary; IOW, the Court looked at distributors' motives.




Thx!
TomB


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## Ovinomancer (Oct 10, 2015)

Dannyalcatraz said:


> Yes, I did read the case, and no, I am not misrepresenting it.
> 
> From the Agonisti majority's opinion
> ( https://www.law.cornell.edu/supct/html/96-552.ZO.html ):
> ...



I don't see how you can possibly make the jump from examining the programs' criteria -- ie, the written method by which the law acts -- to thinking this is the same as the distributors motives.  Criteria are not motives, they are criteria.  Indoctrination is an effect, not a motivation.  There's no way you can parse that case and come out with it being anything close to about the motives of the providers.  Further, the actual providers is so vague here -- do you mean the lawmakers, the people running the program, the teachers in the program, who? -- that even that construct is nonsensical.

That ruling looks solely at the effects of the programs and not the intentions or motivations of the 'providers'.



> In addition, the criteria themselves may be examined to see if they inherently create incentives to conform to the religious principles of the service provider.




Yes!  Yes, they can, and should, as criteria are how the program operates -- how it applies it's effects.  There's nothing there about motives.



> Here, the Court is saying it used the standard applied in the Witters and Zobrest cases- looking to see if the aid was distributed in a such way as to aid in indoctrination (again, examining the motives of the distributors)- to the case set before them in Agonisti.  They didn't find it, so the plaintiffs lost on this fork of the test.



Yes!  But there's nothing there about _motives_.  It's all based on effects -- what effect does following the criteria of the program have?  That's it, there's no examination of the motives of those that set the criteria because that doesn't matter; only the application of the criteria and their effect matters.

***



> Mens rea IS a motivational concept.  Intentional homicide- say, planned killing for insurance money- is different from negligent homicide- say, killing because you were speeding on rain-slicked streets- is different from justified intentional homicide- killing someone in the defense of another.




GAH!  I _said _that.  Mens rea establishes only that you had intent to commit the crime.  The motivation that fueled the intent isn't relevant.  Motivation isn't relevant, intent is.  Intent is relevant, motivation isn't.  I cannot think of another way to say this.  Maybe an example?  If someone commits murder intentionally because they want the insurance money vs someone that commits intentional murder because the really hate the guy they kill, these crimes are treated exactly the same under the law, because the motivation of the murderers is not relevant, only the _intent_ to murder.

But intent isn't even necessary for EC cases because they are not criminal cases so establishing a guilty party to punish isn't part of it.  If intent isn't necessary, then the only thing that the court evaluations are the facts of the law and its effects.  That's _exactly _what the court in Agostini.


----------



## Dannyalcatraz (Oct 10, 2015)

Clearly, Ovinomancer, you and I are at a true "Internet impasse", so I'll politely disengage from this particular tangent.


----------



## Dannyalcatraz (Oct 10, 2015)

tomBitonti said:


> First, this has been a great dialog to follow.
> 
> Second, in the following text, isn't indoctrination an outcome?  If I indoctrinate a group to follow a particular religion, does it matter in particular why?  Indoctrination can be imposed for non-religious motivations, and would still seem to be a problem.
> 
> ...



It is is difficult- but not impossible- to have indoctrination built into a program without it first being put there as an intentional goal of the program operator.

As for the issue of indoctrination for non-religious motivations...well, as long as the indoctrination in question is otherwise legal, that isn't barred by Constitutional law.  IOW, you could have a perfectly legal Gov's subsidized program that indoctrinated people to become police officers or choir singers or athletes, but not one that did likewise for becoming a drug mule.


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## tomBitonti (Oct 10, 2015)

Dannyalcatraz said:


> It is is difficult- but not impossible- to have indoctrination built into a program without it first being put there as an intentional goal of the program operator.
> 
> As for the issue of indoctrination for non-religious motivations...well, as long as the indoctrination in question is otherwise legal, that isn't barred by Constitutional law.  IOW, you could have a perfectly legal Gov's subsidized program that indoctrinated people to become police officers or choir singers or athletes, but not one that did likewise for becoming a drug mule.




Agreed that indoctrination which is enacted or enabled by the government is very probably deliberate.  But, that the imposition of the indoctrination is deliberate or not is not the issue.  The issue (as I gather from the preceding discussion) is whether the effect of the indoctrination is to interfere with the free practice of religion.

As a historical issue, I am thinking that interference was much more a political issue --to deprive a group a place in government, of simply to prevent association and the resulting political power that results from the association -- than it was out of a true desire to promote a particular religion.

Thx!
TomB


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## Dannyalcatraz (Oct 11, 2015)

tomBitonti said:


> Agreed that indoctrination which is enacted or enabled by the government is very probably deliberate.  But, that the imposition of the indoctrination is deliberate or not is not the issue.  The issue (as I gather from the preceding discussion) is whether the effect of the indoctrination is to interfere with the free practice of religion.



Even the mere attempt at religious indoctrination in a Gov't sponsored program is illegal, even if no actual indoctrination occurred.  A program structured in order to indoctrinate amounts to promotion of religion, which is forbidden.



> As a historical issue, I am thinking that interference was much more a political issue --to deprive a group a place in government, of simply to prevent association and the resulting political power that results from the association -- than it was out of a true desire to promote a particular religion.
> 
> Thx!
> TomB



Certainly the Founders were very much aware of the problems associated with the intertwining of political and religious power and doctrine, and worked hard to structure our gov't to minimize that possibility.  Not only that, but they continued to stress their intent to keep form such entanglement in both their private writings and in subsequent documents issued by the federal government.


> But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.
> -Thomas Jefferson, Notes on Virginia, 1782






> Treaty of Tripoli
> Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen (Muslims); and as the said States never entered into any war or act of hostility against any Mahometan (Mohammedan) nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.


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## tomBitonti (Oct 11, 2015)

Dannyalcatraz said:


> Even the mere attempt at religious indoctrination in a Gov't sponsored program is illegal, even if no actual indoctrination occurred.  A program structured in order to indoctrinate amounts to promotion of religion, which is forbidden.




I would expect as much.  The attempt would be an endorsement and very probably an intimidation.

Thx!
TomB


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## calronmoonflower (Oct 11, 2015)

Ryujin said:


> She has taken steps to make it impossible.



Actually, no she hasn't. After the judge ruled that the deputies could legally issue licenses, she had her name and job title removed from the forums and stated an opinion that the judges ruling was actually wrong.

But before the SCOTUS ruling she bothered to write a letter to he state legislators asking for the law to be changed so gay marriage license's could be issued, without her having to sign off on them. 

http://www.westernjournalism.com/newly-uncovered-letters-from-kim-davis-could-change-the-entire-story/





Dannyalcatraz said:


> ..._because _she is expressly elevating her faith's tenets above the requirements of secular law.  That is a clear EC violation, just as it would be if an Inuit denied Sarah Palin a hunting license because his faith prohibits women from being hunters.



An interesting note, in Kentucky that can actually be done legally as county clerks can exempt themselves from issuing hunting and fishing licenses.


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## Silverblade The Ench (Oct 21, 2015)

cmad1977 said:


> Right??
> 
> Except those 4e people. Those sinner can burn!!!!
> 
> ... Hehe.




Die heathen, 4th is glorious!


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## Kramodlog (Oct 21, 2015)

The Westboro Baptist Church doesn't like Kim Davis. How low can you go? http://www.usatoday.com/story/news/...o-baptist-church-protests-kim-davis/74220666/


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## Ovinomancer (Oct 21, 2015)

goldomark said:


> The Westboro Baptist Church doesn't like Kim Davis. How low can you go? http://www.usatoday.com/story/news/...o-baptist-church-protests-kim-davis/74220666/




Heck, I hope every day I'm not be liked by the WBC.  The day that they like me is a day I'll consider low.


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## Dannyalcatraz (Oct 21, 2015)

Yeah, among other things, the WBC doesn't like oathbreakers (marriage is an oath, there was an oath of office), and they don't make a distinctions between major & minor sins- they're all equally bad.

At least one prominent Mormon has weighed in against her, too, abeit speaking obliquely.
http://www.foxnews.com/us/2015/10/2...entucky-clerk-over-approach-to-gay-marriages/


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## Kramodlog (Oct 21, 2015)

Meh. I'd be very happy with Mormons speaking against me.


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## Ryujin (Nov 6, 2015)

Looks like she lost ANOTHER appeal.

http://www.thenewcivilrightsmovement.com/uncucumbered/kim_davis_loses_another_appeal?recruiter_id=17


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## Ovinomancer (Nov 6, 2015)

Ryujin said:


> Looks like she lost ANOTHER appeal.
> 
> http://www.thenewcivilrightsmovement.com/uncucumbered/kim_davis_loses_another_appeal?recruiter_id=17




Excellent well!


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## cmad1977 (Nov 6, 2015)

And she fades slowly back into obscurity.


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## tomBitonti (Nov 6, 2015)

Stepping back for a clearer view: A lot of the problem here seems to arise from the intersection of a government definition of marriage with a religious one.

Working from that position, could one argue that the government should not usurp a religiously laden term ("marriage") and should substitute a different one?

I understand the argument that calling civil unions something other than marriage takes away a part of the special meaning of marriage, and therefore assigns a lesser status to civil unions as thereby defined.  But there does seem to be something to the religious position, which is that the overlap forces a civil definition of marriage onto the religious one.

On the other hand, is it religion that has usurped the meaning, and religion should introduce, as has LDS, of a "santified marriage", or something similar, to create the differentiation which is desired?

In regards to the cases discussed in prior posts, it seems that the clerk has a mistaken belief that they are performing a solemn religious duty, when the truth is that they are performing a (still solemn) civil duty.

Thx!
TomB


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## Dannyalcatraz (Nov 6, 2015)

> Working from that position, could one argue that the government should not usurp a religiously laden term ("marriage") and should substitute a different one?




Sure...but you won't win.  Too many anthropological, legal, definitional and practical obstacles to overcome to prevail.

Plus, there is the concern that those who oppose SSM the most would object to it in any form, regardless of name.


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## Homicidal_Squirrel (Nov 6, 2015)

tomBitonti said:


> In regards to the cases discussed in prior posts, it seems that the clerk has a mistaken belief that they are performing a solemn religious duty, *when the truth is that they are performing a (still solemn) civil duty*.



Pretty much. Originally, marriage was all about who got your junk when you died. Marriage just determined the legitimacy of your offspring, and how much of your junk they got. Wives didn't have much in rights to your junk because they were part of your junk.


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## calronmoonflower (Nov 8, 2015)

So the governor elect has announced that he'll start meddling on the issue when he gets into office.
http://www.reuters.com/article/2015/11/06/us-usa-gaymarriage-kentucky-idUSKCN0SV2FV20151106


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## tomBitonti (Nov 12, 2015)

Not sure if this deserves a new topic, but it seems to fit into the current theme, so I'm putting it here for now.



> But on Wednesday, a Utah judge decided to end this plan, ordering the girl removed from her foster home because he said she would be better off with heterosexual parent




https://www.washingtonpost.com/news...aying-shell-be-better-off-with-heterosexuals/

Also in this space, issues relating to recent changes made by LDS:

https://www.washingtonpost.com/news...hp-top-table-main_mormons-12am:homepage/story

Don't like presenting without offering a view of my own: I find both to be quite offensive.  Especially troubling is how much power the decision makers have in either case.

Thx!

TomB


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## Kramodlog (Nov 12, 2015)

Funny how for some people what is in the best interest for a child is to remove it from a loving family and putting it at the center of a long judicial battle.

On a side note, doesn't a law that say parents need to be married to adopt a foster child discriminate against unmarried couples?


----------



## Ovinomancer (Nov 12, 2015)

tomBitonti said:


> Not sure if this deserves a new topic, but it seems to fit into the current theme, so I'm putting it here for now.
> 
> 
> 
> ...



Yup, that's some crap.  Hope that judge gets smacked for that.




goldomark said:


> Funny how for some people what is in the best interest for a child is to remove it from a loving family and putting it at the center of a long judicial battle.
> 
> On a side note, doesn't a law that say parents need to be married to adopt a foster child discriminate against unmarried couples?



Yes, they are, and rightly so.


----------



## trappedslider (Nov 12, 2015)

tomBitonti said:


> Also in this space, issues relating to recent changes made by LDS:
> 
> https://www.washingtonpost.com/news...hp-top-table-main_mormons-12am:homepage/story
> 
> ...




Thank you for using LDS instead of Mormon, with that out of the way...If you watched the video,which I will embed below [video=youtube;iEEMyc6aZms]https://www.youtube.com/watch?v=iEEMyc6aZms[/video]   Elder D. Todd Christofferson of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints explains and gives context to the changes in policy. He also points out that the same policy also has covered polygamist families, for example one of the daughters of the polygamist family on Sister Wives wanted to be baptized, but since she wouldn't disavow her family's lifestyle she wasn't allowed to get baptized.   As for the "mass resignations" they did the same thing last when the leader of Ordain Woman was excommunicated, only it turned out that instead of thousands it was really only 1,001.  Also,  lawyer isn't even needed,all that is needed to resign from The Church is a meeting with the Stake President ( The person in charge of a geographical area). But folks who have an ax to grind with The Church will still do so no matter what, this just gives them a convenient excuse. (Full disclosure I am a member of The Church of Jesus Christ of Latter-day Saints)


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## Umbran (Nov 12, 2015)

goldomark said:


> Funny how for some people what is in the best interest for a child is to remove it from a loving family and putting it at the center of a long judicial battle.




I can elucidate the logic, though I don't agree with one of the premises...

If the family were loving, but living in a place or condition that was harmful to the child (say, the house is loaded with lead, or the parents had a harmful contagious disease) we can see removing the child from the family, right?  Love does not overcome physical hazards.

In these people's eyes, homosexuality in the parents presents a hazard to the child.  They are *wrong* about that, but they believe it to be true.  Given teh premise, the conclusion is understandable.  It is just that the premise is wrong.


> On a side note, doesn't a law that say parents need to be married to adopt a foster child discriminate against unmarried couples?




Well, that's a bit more odd.  Remember that a "couple" is not a legal unit unless they are married.  Since there is no legal tie in a "couple", they, as a unit, can't enter into agreements like adoption.  "Couples" come together and break up easily, and there's no legal ramifications to dissolving the relationship.  When married people break up, the legal process handles disposition of the child, where a couple breaking up does not.  This is terribly important to the welfare of the child.

A single person can adopt a child.  It is more difficult, because a single person will usually have fewer resources - both monetarily, and in terms of time to devote to care.


----------



## tomBitonti (Nov 12, 2015)

trappedslider said:


> Thank you for using LDS instead of Mormon, with that out of the way...If you watched the video,which I will embed below [video=youtube;iEEMyc6aZms]https://www.youtube.com/watch?v=iEEMyc6aZms[/video]   Elder D. Todd Christofferson of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints explains and gives context to the changes in policy. He also points out that the same policy also has covered polygamist families, for example one of the daughters of the polygamist family on Sister Wives wanted to be baptized, but since she wouldn't disavow her family's lifestyle she wasn't allowed to get baptized.   As for the "mass resignations" they did the same thing last when the leader of Ordain Woman was excommunicated, only it turned out that instead of thousands it was really only 1,001.  Also,  lawyer isn't even needed,all that is needed to resign from The Church is a meeting with the Stake President ( The person in charge of a geographical area). But folks who have an ax to grind with The Church will still do so no matter what, this just gives them a convenient excuse. (Full disclosure I am a member of The Church of Jesus Christ of Latter-day Saints)




Re: The LDS recent rules changes.  I don't have a problem with the policy towards adults.  I might not agree with it, but it's their business.

What I have a problem with is the application of the rules to children, who are in no way a party to what their parents are doing.

To put it in terms which I can discuss more knowledgeably, it would be like the Catholic church denying baptism to an infant of a homosexual couple.  Not that there aren't other conflicts in that case.  I could see an argument that any minor should be kept out of this sort of issue until they can speak for themselves, but that is another question.

Thx!

TomB


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## Kramodlog (Nov 12, 2015)

Umbran said:


> Well, that's a bit more odd. Remember that a "couple" is not a legal unit unless they are married.



Not really. In Québec you get all the same rights* as a married couple or those in civil unions. Your considered de facto spouses. About a 37% of couples are in that situtation. Half are married and the rest are in civil unions. 

Marriage doesn't convey anything special to couples, it is just a ritual, so there shouldn't be any reason why it gives special rights.

The law is just discriminatory and forces couples that has been together for 20 years to get married if they want to enjoy the same rights that a couple who just met and got married have. 



> "Couples" come together and break up easily



So do married couples. Marriage doesn't garanty anything. 


*Except you're not automatically entitled to half of what your spouse's salary and belongings.


----------



## trappedslider (Nov 12, 2015)

tomBitonti said:


> Re: The LDS recent rules changes.  I don't have a problem with the policy towards adults.  I might not agree with it, but it's their business.
> 
> What I have a problem with is the application of the rules to children, who are in no way a party to what their parents are doing.
> 
> ...




Well, if you watch the video, Which I'm guessing you didn't, if you did then my apologies but he explains why children are included :



			
				Elder Christofferson said:
			
		

> It originates from a desire to protect children in their innocence and in their minority years. When, for example, there is the formal blessing and naming of a child in the Church, which happens when a child has parents who are members of the Church, it triggers a lot of things. First, a membership record for them. It triggers the assignment of visiting and home teachers. It triggers an expectation that they will be in Primary and the other Church organizations. And that is likely not going to be an appropriate thing in the home setting, in the family setting where they're living as children where their parents are a same-sex couple. We don't want there to be the conflicts that that would engender. We don't want the child to have to deal with issues that might arise where the parents feel one way and the expectations of the Church are very different. And so with the other ordinances on through baptism and so on, there's time for that if, when a child reaches majority, he or she feels like that's what they want and they can make an informed and conscious decision about that. Nothing is lost to them in the end if that's the direction they want to go. In the meantime, they're not placed in a position where there will be difficulties, challenges, conflicts that can injure their development in very tender years.




In fact here : http://www.mormonnewsroom.org/article/handbook-changes-same-sex-marriages-elder-christofferson


----------



## tomBitonti (Nov 12, 2015)

trappedslider said:


> Well, if you watch the video, Which I'm guessing you didn't, if you did then my apologies but he explains why children are included :
> 
> In fact here : http://www.mormonnewsroom.org/article/handbook-changes-same-sex-marriages-elder-christofferson




I'll take a look when I can -- I can't listen to the video here at work.

This:



> When, for example, there is the formal blessing and naming of a child in the Church, which happens when a child has parents who are members of the Church, it triggers a lot of things. First, a membership record for them. It triggers the assignment of visiting and home teachers. It triggers an expectation that they will be in Primary and the other Church organizations. And that is likely not going to be an appropriate thing in the home setting, in the family setting where they're living as children where their parents are a same-sex couple.




If I recount the specific items:

Formal blessing and naming;
Membership record
Assignment of visiting and home teachers.
Placement in primary (school?) and other Church organizations.

Barring a child from these seems to harm the child.

I'm reading this as a way to punish the child as a way to punish and pressure the parents.

Read more: http://www.enworld.org/forum/showth...enjoyed-her-time-in-jail/page19#ixzz3rIqkKyTM

Thx!

TomB


----------



## tomBitonti (Nov 12, 2015)

To followup, I *can* see that, if close family involvement is normal, then a family with homosexual parents would be in a strong conflict with LDS teachings, and that would create a lot of conflicts to any who tried to be involved in both the LDS and the family.

I wonder, though, about families who are not LDS members but who are living in strong LDS communities, and who allow their children to join together with the LDS community.

Or, what happens for children in group homes, or who are living with a relative (say, because their single parent is deployed).

Thx!

TomB


----------



## Umbran (Nov 12, 2015)

goldomark said:


> Not really. In Québec you get all the same rights* as a married couple or those in civil unions. Your considered de facto spouses. About a 37% of couples are in that situtation. Half are married and the rest are in civil unions.




We may have a language problem.  Here, a "couple" is just a pair of people dating.  It carries no formal or legal status.

Some states have a concept of "common law marriage", where the couple has lived and represented themselves as married for long periods of time without actually having signed the legal documents.  But the vast majority of "couples" here don't fit that definition. Here, you can be a couple for years, even cohabit for years, and not be legally bound in any real sense.  



> Marriage doesn't convey anything special to couples, it is just a ritual, so there shouldn't be any reason why it gives special rights.




In the US, marriage is not just a ritual.  It includes the signing of a legally binding document which carries with it a number of rights and responsibilities. 



> So do married couples. Marriage doesn't garanty anything.




Here, it does.  Specifically, in this case, the matter of child support is determined as part of divorce proceedings.  There are no such proceedings for a couple.


----------



## trappedslider (Nov 12, 2015)

tomBitonti said:


> I'll take a look when I can -- I can't listen to the video here at work.
> 
> This:
> 
> ...




All I can say is that you're reading in the light of antimormons and other detractors....When Elder Christofferson clearly says "We don't want there to be the conflicts that that would engender. We don't want the child to have to deal with issues that might arise where the parents feel one way and the expectations of the Church are very different."

To answer :







tomBitonti said:


> I wonder, though, about families who are not LDS members but who are living in strong LDS communities, and who allow their children to join together with the LDS community.
> 
> Or, what happens for children in group homes, or who are living with a relative (say, because their single parent is deployed).
> 
> ...




Do I need permission to baptize a minor child?

Before you can teach and baptize an investigator who is under legal age, you must obtain permission of the parent(s) or legal guardian(s), preferably in writing. In addition, you should have good reason to believe that the child understands the baptismal covenant and will make every effort to keep it through obedience to the gospel, including faithfully attending Church meetings.

Do I need permission of the spouse in order to baptize a husband or wife?

Yes. Do not baptize a married person without the consent of his or her spouse.

If the father in a family is not ready for baptism, should I baptize the family or wait until the father is ready?

If the father of a family is not ready for baptism and confirmation but other family members are, you may tell the father you prefer not to baptize the family without him because the Church respects the head of the home and because family members will progress in the gospel best as a family unit. If the father continues to decline, you may baptize and confirm other family members with his consent.

and lastly,

Question 4 in the baptismal interview asks if a person has been involved in a serious sin, such as an abortion, a homosexual relationship, or a serious crime. What should I do if someone confesses such a sin?

1. Instructions for teaching missionaries. Sometimes investigators may volunteer information about such sins as you teach about the commandments and invite them to make commitments. However, if they do not say anything but you think they may have a problem, prepare them for the baptismal interview by asking them if they have been involved in any of these sins. If you become aware of a serious sin, do not ask about the details of the sin. Do not schedule a baptismal date or make any promises about whether they will be cleared for baptism and confirmation. Express your love and review the principle of repentance. Kindly explain that these sins are serious and that a person with more maturity and experience (your mission president or someone he assigns) will talk with them and help them with these matters. Then send a baptismal interview request directly to the mission president.

2. Instructions for the person conducting the interview for baptism. If the missionaries have properly taught the candidate before the baptismal interview, these issues, if they exist, should have been directed to the mission president. If they do arise, express your love and review the commandments and the principle of repentance. Kindly explain that these sins are serious and that a person with more maturity and experience (your mission president or someone he assigns) will talk with them and help them with these matters. Then forward a baptismal interview request directly to the mission president.


----------



## megamania (Nov 12, 2015)

Without dealing with the whole same sex thing-   push comes to shove, the law says the marriage can happen.  her JOB is based on following the laws of her state.   If she has this much of an issue with it its time for a new job.  Stop the drama.


----------



## tomBitonti (Nov 12, 2015)

trappedslider said:


> All I can say is that you're reading in the light of antimormons and other detractors....When Elder Christofferson clearly says "We don't want there to be the conflicts that that would engender. We don't want the child to have to deal with issues that might arise where the parents feel one way and the expectations of the Church are very different."
> 
> To answer :
> 
> ...




For Roman Catholicism, infants are (or can be) baptized when they are quite young (in their first year, if not in the first few months).  There is no chance that the child could have any understanding of what is happening.

Other branches have different outlooks, in particular, not having baptism until the recipient _can_ have an understanding.  I'm not sure if Roman Catholics treat confirmation the same as other branches treat baptism.  Confirmation can be a very Pro Forma event.

Doing some searches I found this:

http://forums.catholic.com/showthread.php?t=601558



> Canon Law:
> 
> Can. 868 §1 For an infant to be baptised lawfully it is required:
> 
> ...




That would make the canonical rule for Catholics very similar to the rule for LDS.

There is more here than I realized.

Thx!
TomB


----------



## billd91 (Nov 12, 2015)

trappedslider said:


> Do I need permission to baptize a minor child?
> 
> Before you can teach and baptize an investigator who is under legal age, you must obtain permission of the parent(s) or legal guardian(s), preferably in writing. In addition, you should have good reason to believe that the child understands the baptismal covenant and will make every effort to keep it through obedience to the gospel, including faithfully attending Church meetings.




Nobody's expecting the Mormon cleric to swoop in and perform a baptism against the wishes of the parent (well, they might because the church certainly does perform non-consensual baptisms when putting people in their genealogical records but let's pretend that's not an issue). We can dispense with any argument along those lines right there. The problem here is that if the parents/guardians in the household want the child baptized along with kids their own age, the church is going to say no because of the sins of the father, not the sins of the child. And though that's been part of monotheism's jealous god motif for a long time, it's still bad and unjust policy.


----------



## trappedslider (Nov 12, 2015)

billd91 said:


> The problem here is that if the parents/guardians in the household want the child baptized along with kids their own age, the church is going to say no because of the sins of the father, not the sins of the child. And though that's been part of monotheism's jealous god motif for a long time, it's still bad and unjust policy.




Then I guess it's also unjust according to you for those children of polygamist too since it's the same policy that they have been under.  Also the child isn't being raised in an environment that is in accordance with the teachings of The Church, so that they wont be taught one thing at church and another at home. 

Also given your comment about "monotheism's jealous god mofit.." I can already feel that you really aren't looking for anything deeper when it comes to an explanation on this topic.


----------



## Homicidal_Squirrel (Nov 13, 2015)

trappedslider said:


> Do I need permission to baptize a minor child?



No x 10.


----------



## billd91 (Nov 13, 2015)

trappedslider said:


> Then I guess it's also unjust according to you for those children of polygamist too since it's the same policy that they have been under.  Also the child isn't being raised in an environment that is in accordance with the teachings of The Church, so that they wont be taught one thing at church and another at home.
> 
> Also given your comment about "monotheism's jealous god mofit.." I can already feel that you really aren't looking for anything deeper when it comes to an explanation on this topic.




Being dicks to kids for things parents do is simply wrong, whether the church is doing it because the parents are a same-sex couple or polygamists. It's just another stupid case of misplaced responsibility.

As far as the jealous god thing, try looking up "sins of the father". It goes hand in hand with god being a jealous god in both Exodus and Deuteronomy. Then maybe think of what the Odd Couple said about what happens when you assume...


----------



## trappedslider (Nov 13, 2015)

billd91 said:


> Being dicks to kids for things parents do is simply wrong, whether the church is doing it because the parents are a same-sex couple or polygamists. It's just another stupid case of misplaced responsibility.
> 
> As far as the jealous god thing, try looking up "sins of the father". It goes hand in hand with god being a jealous god in both Exodus and Deuteronomy. Then maybe think of what the Odd Couple said about what happens when you assume...




Sorry for the assumption, but considering you ignored the explanation or jsut feel it's crap and reasoning behind the policy change, and the fact that I've had to deal with folks who mock and are anti for the past few years,so when I see comments like yours.....and one thing that everyone seems to be missing out on is the fact that it's policy not Doctrine, so it's not like it's set in stone to never change.


----------



## Janx (Nov 13, 2015)

Umbran said:


> We may have a language problem.  Here, a "couple" is just a pair of people dating.  It carries no formal or legal status.
> 
> Some states have a concept of "common law marriage", where the couple has lived and represented themselves as married for long periods of time without actually having signed the legal documents.  But the vast majority of "couples" here don't fit that definition. Here, you can be a couple for years, even cohabit for years, and not be legally bound in any real sense.
> 
> ...




To quibble a little bit on US Marriage:

child support being mandated can happen regardless of marital status.  Get a girl pregnant and identified as the father, and you are on the hook for child support.

Though otherwise, you are correct.  Marriage entitles you to inheritance should your partner die.  As well as insurance benefits (can't list your roommate on your health insurance).  It also entitles you to access and information (as the Supreme Court case was about).  You can get shut out of the room when your partner goes into the hospital, and under HIPAA you don't get told what's going on.  Marriage solves that.


----------



## Kramodlog (Nov 13, 2015)

Umbran said:


> We may have a language problem.  Here, a "couple" is just a pair of people dating.  It carries no formal or legal status.




You sure? I checked merriam-webster. 







> two persons married, engaged, or otherwise romantically paired



 Married people can be couples and so can unmarried people.

Seems you can be a couple without being married and unmarried couples are discriminated by the state since they aren't treated equally. Seems the state forces couples to get a state recognized license to have rights that you should enjoy even if not married.


----------



## billd91 (Nov 13, 2015)

Janx said:


> child support being mandated can happen regardless of marital status.  Get a girl pregnant and identified as the father, and you are on the hook for child support.




But if you're a homosexual couple raising children without being married and the relationship breaks up, whichever parent is keeps the children can be left twisting in the wind. And that's the current state of the law in many states.


----------



## Janx (Nov 13, 2015)

goldomark said:


> You sure? I checked merriam-webster.  Married people can be couples and so can unmarried people.
> 
> Seems you can be a couple without being married and unmarried couples are discriminated by the state since they aren't treated equally. Seems the state forces couples to get a state recognized license to have rights that you should enjoy even if not married.




You guys aren't actually disagreeing.

I think Umbran was specifically calling out people pairs who are married and deducing that when you said "couples" that you meant unmarried people pairs.  Using Couple to mean both, might be correct, but it does little to keep communication clear.

Regardless, his point (that you originally did not appear to agree with because of this ambiguity of the definition of Couple) is that unmarried people pairs do not have the same rights as married people pairs in the US.  I iterated examples of said rights in my post.

Now to rewind back to you and Canada...

Is Canada different than what I outlined (which is what Umbran was likely thinking by his reading of your original words)?

Does a married people pair in Canada have more rights than an unmarried people pair?


----------



## Janx (Nov 13, 2015)

billd91 said:


> But if you're a homosexual couple raising children without being married and the relationship breaks up, whichever parent is keeps the children can be left twisting in the wind. And that's the current state of the law in many states.




Things can get complicated for an unmarried hetero couple with children as well if they get married.  Sure there's no divorce proceedings, but there's also no legal framework for how stuff is divided (which is what divorce proceedings are).


----------



## Nagol (Nov 13, 2015)

Janx said:


> You guys aren't actually disagreeing.
> 
> I think Umbran was specifically calling out people pairs who are married and deducing that when you said "couples" that you meant unmarried people pairs.  Using Couple to mean both, might be correct, but it does little to keep communication clear.
> 
> ...




Canada has different treatments across its provinces, but generally married people have more rights than common-law -- mostly around asset division when splitting up and  inheritance ( a married spouse can't inherit less than an equitable divorce settlement in Ontario despite what a will says, for example).  There are also some tax differences (both for and against marriage), but they tend to be minor or niche.

The social safety net provides a minimum care standard which alleviates the "must share health insurance" scenario.  A will and living will can help maintain information access during crisis events that the married state enjoys automatically.


----------



## Umbran (Nov 13, 2015)

Janx said:


> child support being mandated can happen regardless of marital status.  Get a girl pregnant and identified as the father, and you are on the hook for child support.




If you weren't married, you must establish paternity (maternity being established at birth, usually) and get a separate court case dealt with, and it does not apply if the person isn't the kid's biological parent.  I'd call this "no guarantee" area.

As opposed to being married, where child support considerations are automatically part of the process, and will apply to both biological and adopted children.


----------



## tomBitonti (Nov 13, 2015)

Umbran said:


> As opposed to being married, where child support considerations are automatically part of the process, and will apply to both biological and adopted children.




In the US, if you are married, you are responsible for your spouses child, pretty much regardless of any later determination of actual biological parentage.  This really is an issue only for men, since the mother's relationship is usually fixed.  There is a limited time period in which to contest parentage:

http://www.legalmatch.com/law-library/article/paying-child-support-for-a-non-biological-child.html



> How Can a Parent Be Legally Responsible for a Non-Biological Child?
> 
> State law differs, but in most cases, people have between 2 months and 2 years to get a DNA test to remove their name from the birth certificate. If the person fails to do so in the required time period, they will be legally responsible for child support until the child reaches the age of majority, usually 18. The only way they will be excused from child support payments is if the biological parent (or another responsible individual in the court’s discretion) steps up and claims support for the child.
> 
> ...




Thx!
TomB


----------



## Umbran (Nov 13, 2015)

goldomark said:


> You sure? I checked merriam-webster.  Married people can be couples and so can unmarried people.




We usually refer to a pair who is married as a *married* couple, and a pair who is not married as just a couple, without the modifier, to avoid the ambiguity.



> Seems you can be a couple without being married and unmarried couples are discriminated by the state since they aren't treated equally. Seems the state forces couples to get a state recognized license to have rights that you should enjoy even if not married.




Nope.  Because adopting a child is *not* a right.  It is a privilege.  You are asking the state to turn over custody of a child to you, and that child has rights, too.  The state, acting as advocate for the child, is setting some minimum standards for the environment they'll allow the child to enter.


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## Homicidal_Squirrel (Nov 13, 2015)

tomBitonti said:


> Also in this space, issues relating to recent changes made by LDS:
> 
> https://www.washingtonpost.com/news...hp-top-table-main_mormons-12am:homepage/story
> 
> ...



To be honest, I don't see it as much of an issue if the LDS doesn't want to baptize the kids of gay parents. It's a church. They have their beliefs, regardless of backward and wrong as I consider those beliefs to be. We shouldn't be pushing people or groups to believe certain things. We should be pushing and groups of people to not harm others. What the judge did in the previous article? That's harmful to kids. What the Mormons are doing? Not a big deal. If a kid really wants to become a Mormon, he/she can. He just has to turn 18 and turn against his/her parents. That's not likely to happen. More than likely, the LDS church is just alienating these kids and their families. That means there'll be less people that'll join the LDS church. That's not a bad thing. That's a good thing. A very good thing.


----------



## Dannyalcatraz (Nov 13, 2015)

Umbran said:


> If you weren't married, you must establish paternity (maternity being established at birth, usually) and get a separate court case dealt with, and it does not apply if the person isn't the kid's biological parent.




As I recall, California has paternity laws I find particularly pernicious.  You're deemed to be the father if you are named as such on the birth certificate, and are therefore responsible for support.  The nasty part is that proving you are not the parent- which otherwise costs very little- does not automatically cease your legal responsibility for support.  Instead, you must prove this in a court case, during which time you are still responsible for support of the child.  This takes time and money...during which time you're still paying support, of course.

The nastiest part, though, is that the unearned back payments are not automatically refunded, either.  Not only do you have to remember to ask for those in your pleadings or a motion, the court is not obligated to award you those mistaken payments.

The overall justification is, of course, "best interests of the child", which, while laudable and the standard in all states, has been taken a bit too far in that state.  Last I heard, there are cases pending challenging this law.  Surprise, surprise.


----------



## Ryujin (Nov 13, 2015)

Dannyalcatraz said:


> As I recall, California has paternity laws I find particularly pernicious.  You're deemed to be the father if you are named as such on the birth certificate, and are therefore responsible for support.  The nasty part is that proving you are not the parent- which otherwise costs very little- does not automatically cease your legal responsibility for support.  Instead, you must prove this in a court case, during which time you are still responsible for support of the child.  This takes time and money...during which time you're still paying support, of course.
> 
> The nastiest part, though, is that the unearned back payments are not automatically refunded, either.  Not only do you have to remember to ask for those in your pleadings or a motion, the court is not obligated to award you those mistaken payments.
> 
> The overall justification is, of course, "best interests of the child", which, while laudable and the standard in all states, has been taken a bit too far in that state.  Last I heard, there are cases pending challenging this law.  Surprise, surprise.




I seem to recall that there ar ea few States with this sort of law. So your wife cheats on you and a child is the result. You find out she cheated and divorce her for it. You're still on the hook for child support because you're *presumed* to be the father.


----------



## tomBitonti (Nov 13, 2015)

Homicidal_Squirrel said:


> To be honest, I don't see it as much of an issue if the LDS doesn't want to baptize the kids of gay parents. It's a church. They have their beliefs, regardless of backward and wrong as I consider those beliefs to be. We shouldn't be pushing people or groups to believe certain things. We should be pushing and groups of people to not harm others. What the judge did in the previous article? That's harmful to kids. What the Mormons are doing? Not a big deal. If a kid really wants to become a Mormon, he/she can. He just has to turn 18 and turn against his/her parents. That's not likely to happen. More than likely, the LDS church is just alienating these kids and their families. That means there'll be less people that'll join the LDS church. That's not a bad thing. That's a good thing. A very good thing.




A difficulty that I have is the notion that conflict can and must be avoided.  That seems to frame the issue in an unhelpful manner.  Families have to deal with all sorts of issues -- learning difficulties, death or debility of a family member, alzheimers and other forms of dementia, mental illness in general, issues relating to poverty, substance and other abuse, legal issues -- which cannot in general be removed from a child's life.  A standard based on an avoidance of conflict seems unrealistic.

(I imagine a response that _preventable_ conflict can and should be avoided.  But, also, that putting homosexuality as a conflict item next to the above is not reasonable.)

A possible more core standard might be the following, which is taken from the discussion that I linked, above:



> In order for a child to be baptized there simply needs to be a well founded hope that the child will be raised in the Catholic faith




But, that answer is challenged later in the same discussion:

With some elisions:



> > they have rejected Catholic teaching on marriage and family, so it is legitimate to ask why they want to raise the child in a faith they reject, or at least do not understand, and which they themselves do not follow.
> 
> 
> 
> ...




Thx!
TomB


----------



## Umbran (Nov 13, 2015)

Dannyalcatraz said:


> As I recall, California has paternity laws I find particularly pernicious.  You're deemed to be the father if you are named as such on the birth certificate, and are therefore responsible for support.  The nasty part is that proving you are not the parent- which otherwise costs very little- does not automatically cease your legal responsibility for support.  Instead, you must prove this in a court case, during which time you are still responsible for support of the child.  This takes time and money...during which time you're still paying support, of course.




There has to be some step in which the fact that he's not the father must enter into the legal record, and payment for support cannot cease before that point, right?  

If he is divorcing her because she cheated, he's going to have proof in hand at that time, isn't he?  Can't his support be severed as part of the divorce settlement?  I mean, if he has the paternity test in hand, he should be able to say, "As part of this divorce, we agree that I pay no support, and if you don't agree to it, I'm going to sue you, and then you'll have to pay the legal costs if you lose that suit, which you will, because I have the evidence right here..."


----------



## Deset Gled (Nov 13, 2015)

Ryujin said:


> I seem to recall that there ar ea few States with this sort of law. So your wife cheats on you and a child is the result. You find out she cheated and divorce her for it. You're still on the hook for child support because you're *presumed* to be the father.




To be fair, a lot of these laws made sense before DNA testing was readily available.  Otherwise, if a man found proof that his wife cheated on him at any point in the marriage, he could try to claim that the kids weren't his to try and walk away.  These laws exist to counteract that, and assure that if a man was acting as a father, he was obligated to remain in that role financially.


----------



## Umbran (Nov 13, 2015)

Deset Gled said:


> To be fair, a lot of these laws made sense before DNA testing was readily available.  Otherwise, if a man found proof that his wife cheated on him at any point in the marriage, he could try to claim that the kids weren't his to try and walk away.  These laws exist to counteract that, and assure that if a man was acting as a father, he was obligated to remain in that role financially.




Yeah.  It would hardly be the first time that law hasn't kept up with technology.


----------



## Ryujin (Nov 13, 2015)

Umbran said:


> There has to be some step in which the fact that he's not the father must enter into the legal record, and payment for support cannot cease before that point, right?
> 
> If he is divorcing her because she cheated, he's going to have proof in hand at that time, isn't he?  Can't his support be severed as part of the divorce settlement?  I mean, if he has the paternity test in hand, he should be able to say, "As part of this divorce, we agree that I pay no support, and if you don't agree to it, I'm going to sue you, and then you'll have to pay the legal costs if you lose that suit, which you will, because I have the evidence right here..."




Sequence of events:

- Wife cheats
- Wife has child fathered by the other man
- Couple divorces
- Wife files for public assistance
- State agency sees that there was a husband
- State government garnishes ex-husband's wages, based on presumed paternity
- Ex-husband must now prove that he is not the father. Process begins. Payments are still made and are not refundable.


----------



## Umbran (Nov 13, 2015)

Ryujin said:


> Sequence of events:
> 
> - Wife cheats
> - Wife has child fathered by the other man
> ...




In what jurisdiction do they conduct a divorce *without* discussing child support as part of the separation?  Question of paternity is introduced at the divorce, not several steps later.


----------



## Ovinomancer (Nov 13, 2015)

Umbran said:


> In what jurisdiction do they conduct a divorce *without* discussing child support as part of the separation?  Question of paternity is introduced at the divorce, not several steps later.




It may have been and the divorce proceedings didn't include child welfare at all.  Doesn't stop the social services office from doing so themselves at a later date.  They don't have to even pay attention to the divorce proceeding.


----------



## Umbran (Nov 13, 2015)

Ovinomancer said:


> It may have been and the divorce proceedings didn't include child welfare at all.




I repeat - in what jurisdiction does this occur?  I don't think any jurisdiction is going to allow a divorce to go through without consideration of kids.  I don't believe this happens in reality.

There may be an edge case where she does not know she is pregnant at the time of the divorce, but if the kid has been born before the divorce, who gets custody, and who pays what, is going to be part of the proceedings.


----------



## Dannyalcatraz (Nov 13, 2015)

As it was presented to me, questions of paternity are considered to be an issue to be handled in a separate legal proceeding.  Divorce courts often just operate from the legal presumptions present in that state, and don't deal with rebutting those presumptions.  (That part is actually is pretty common.)

What is uncommon is that they made it so complicated.  In most states, you'd contest the order by providing a DNA test proving you're not the father with the clerk, who would pass it on to the presiding judge, who'd review it and vacate the child-support order and order repayment of the past support.  No expensive hearing required.

Instead, their regime requires a hearing, one in which proof of non-paternity is *not* inherently sufficient to vacate a child support nor to order repayment of past support unjustly awarded...which may require an additional hearing.  The reasoning is that their regime means that there is always someone responsible for supporting the child, reducing STATE resources being spent on the same.

Which is all well & good for the kid, but it is a terrible law for men who are unjustly saddled with supporting children not their own.  At least the prevailing methods in the USA spread those costs over millions of taxpayers instead of an individual.


----------



## Kramodlog (Nov 13, 2015)

Janx said:


> Is Canada different than what I outlined (which is what Umbran was likely thinking by his reading of your original words)?
> 
> Does a married people pair in Canada have more rights than an unmarried people pair?




I do not know about Canada, but in Québec you get all the same rights except that you do not get half of what your partner use to have and a pansion if you go you separate ways.


----------



## Kramodlog (Nov 13, 2015)

Umbran said:


> Nope.



Yup.



> Because adopting a child is *not* a right. It is a privilege. You are asking the state to turn over custody of a child to you, and that child has rights, too. The state, acting as advocate for the child, is setting some minimum standards for the environment they'll allow the child to enter.



Nice arguments that applies to prohibiting same-sex couples from adopting or mix-race couples from adopting. The state needs to have standards right? And having a kid ain't a right, right? Not discrimination at all. *wink*


----------



## Umbran (Nov 13, 2015)

Well, I found that courts.ca.gov says, basically, "Questions of paternity are complicated.  Consult a lawyer to determine if you can question paternity, and if you can, whether you should."  So, I don't doubt that California is hairy on this point.

Mind you, California also says that in divorce, "Along with restoring the parties to single status, the court will issue orders for custody and visitation of the minor children of the marriage, child support, spousal support, and confirm or divide community and separate property assets and debts."   So, they don't do divorce without giving some consideration to the disposition of the child.  

While they may not directly address paternity as part of the proceedings, I'm going to guess that walking into those proceedings with clear proof of non-paternity may have significant impact - especially if that is the basis for the filing for divorce.  As you note, in CA it seems that not being the biological father may not actually get you off the hook, but if it will, the other party may be hard-pressed to negotiate for much child support if everyone knows what's going to happen going forward.


----------



## tomBitonti (Nov 13, 2015)

From what I've read, one has a very small window of opportunity to contest Paternity in Pennsylvania:

Pennsylvania status: http://www.janarbarnettesq.com/fl-paternity-statutes.htm



> (b) Limitation of actions.
> 
> (1) An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.
> 
> ...




Also, regarding the other half of the posting, the judge stayed his order:

https://www.washingtonpost.com/news...e-main_lesbian-couple-ap-115pm:homepage/story



> Judge Scott N. Johansen, a juvenile court justice in eastern Utah, struck language from his original order requiring that the 9-month-old be removed from the home within a week “in favor of a heterosexual foster adoptive placement.” He has set a hearing for Dec. 4 to determine the best interests of the child.




Thx!
TomB


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## Ovinomancer (Nov 13, 2015)

goldomark said:


> Yup.
> 
> Nice arguments that applies to prohibiting same-sex couples from adopting or mix-race couples from adopting. The state needs to have standards right? And having a kid ain't a right, right? Not discrimination at all. *wink*




Those couples can marry, so how, again, does it do what you say it does?


----------



## Ovinomancer (Nov 13, 2015)

Umbran said:


> I repeat - in what jurisdiction does this occur?  I don't think any jurisdiction is going to allow a divorce to go through without consideration of kids.  I don't believe this happens in reality.
> 
> There may be an edge case where she does not know she is pregnant at the time of the divorce, but if the kid has been born before the divorce, who gets custody, and who pays what, is going to be part of the proceedings.




Yes, it's considered, but with input.  If the divorcing couple ask for an arrangement that doesn't include child payments, then it's possible that the judge could agree and award it as such.  But that doesn't stop (and won't) the state from going after the divorced not-father to repay support if the mother files for welfare programs.  My point was (and it was poorly worded) that the divorce could address this very thing, and it wouldn't matter a bit if the mother files for state programs resulting in the state garnishing the not-father's wages.


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## Janx (Nov 13, 2015)

Umbran said:


> Nope.  Because adopting a child is *not* a right.  It is a privilege.  You are asking the state to turn over custody of a child to you, and that child has rights, too.  The state, acting as advocate for the child, is setting some minimum standards for the environment they'll allow the child to enter.




yup.  really picky standards.  Just finished our $1500 home study so a social worker could review us and our home.  Lots of forms for us AND forms from references (friends and family).  As well as an inspection of our home.

We went through more qualifications than natural parents go through (none), which is frustratingly sad given how many crap-tacular parents there are...

We actually just got a happy surprise recently, or we'd be going to the next step of writing a brochure to convince a birth mother to pick us over other prospective adoptive families.


----------



## Dannyalcatraz (Nov 13, 2015)

Just as an aside, I commend anyone willing to go through the process of applying for adoption, knowing you're opening your household for state examination.  (For the right reasons, of course.)


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## Umbran (Nov 13, 2015)

goldomark said:


> Nice arguments that applies to prohibiting same-sex couples from adopting or mix-race couples from adopting.




It has been used as such in the past, yes.  However, now that same-sex couples are allowed to marry nationwide, the argument weakens considerably.  You see, the state can't set *arbitrary* standards, because those get tossed out in courts on a pretty regular basis.

Same sex couples were often disqualified previously because the statistics showed clearly that kids in married households fared considerably better than single-parent households, so the state could include that in their determinations.  And, since same-sex couples weren't legally allowed to marry, they were left having to have only one of them adopt, which looks like a single-parent household, and thus in the statistically problematic pool, by default.  This was discriminatory, yes.

Now, thanks to the SCOTUS, there's no bar to the marriage!  And there's precedent that the equal-protection clause applies to sexual orientation.  Now the state would have to make the specific case that children in same-sex households don't fare well - and the numbers are not there. Quite the opposite, the numbers say that having married parents yields a clear positive benefit for the child, but a same-sex couple (of similar economic status) yields about the same result as a mixed-sex couple.


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## Dannyalcatraz (Nov 13, 2015)

Umbran said:


> I repeat - in what jurisdiction does this occur?  I don't think any jurisdiction is going to allow a divorce to go through without consideration of kids.  I don't believe this happens in reality.
> 
> There may be an edge case where she does not know she is pregnant at the time of the divorce, but if the kid has been born before the divorce, who gets custody, and who pays what, is going to be part of the proceedings.



Texas seperates divorce & paternity issues.  

The divorce courts decide who gets what, and child support is awarded based on statute OR party agreement.

If you are contesting paternity- and therefore support issues- there is a seperate & distinct SAPCR: Suit Affecting Parent Child Relationship.  A SAPCR can happen anytime, even coincidentally with a divorce proceeding.


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## Ryujin (Nov 13, 2015)

Umbran said:


> In what jurisdiction do they conduct a divorce *without* discussing child support as part of the separation?  Question of paternity is introduced at the divorce, not several steps later.




Oh, it's dealt with all right, but have you heard the word "bureaucracy"? 

The post by Dannyalcatraz reminded me of a specific case I'd heard of in which what I detailed actually happened, but I can't recall where I'd heard it. The issue of paternity was deallt with separately as far as The State was concerned, as they were not party to the divorce. Proof had to later be shown  and, of course, there were several months between initial levy of garnishee and resolution with The State. I believe (as DA had stated) that this was in California.


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## Umbran (Nov 14, 2015)

Dannyalcatraz said:


> If you are contesting paternity- and therefore support issues- there is a seperate & distinct SAPCR: Suit Affecting Parent Child Relationship.  A SAPCR can happen anytime, even coincidentally with a divorce proceeding.




The point, though, is that *the subject comes up*.  It isn't like you go through your divorce without any consideration of the kids involved.  

The issue of bureaucracy came up - in general, that applies as much to the divorce as it does to paternity proceedings.  And, if the paternity is the *grounds* for the divorce, who on Earth is going into the divorce withotu the paternity issue already in hand?  I mean, talk about horrible legal tactics.


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## tomBitonti (Nov 14, 2015)

If someone can provide a cleaner link, please do.

In Texas at least, the seems to be a law to address paternity, and that seems more fit to the existence of DNA testing.

http://www.beaumontenterprise.com/n...w-allows-fathers-to-contest-their-1447153.php

Thx!
TomB


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## Dannyalcatraz (Nov 14, 2015)

Umbran said:


> The issue of bureaucracy came up - in general, that applies as much to the divorce as it does to paternity proceedings.  And, if the paternity is the *grounds* for the divorce, who on Earth is going into the divorce withotu the paternity issue already in hand?  I mean, talk about horrible legal tactics.



As I recall, Texas grants divorces based on the following fault grounds: adultery, cruelty, felony conviction and abandonment.  But it also has "no-fault" filing as an option as well, and that is how most divorce proceedings are filed.  If nothing else, it is cheaper: no investigating required, days of testimony, etc., proving the existence of the grounds.

IOW, it may not have even occurred to the father that paternity was even worth questioning.

Or he may have decided to challenge that issue post divorce in the SAPCR, after negotiating for a divorce he otherwise prefers.  By which I mean, the couple's divorce proceedings may go more smoothly if that possible issue of contention is removed from the process.  If he gets most of what he wants in the divorce decree, then successfully challenges paternity in the SAPCR, that is a tactical victory on the cheap.


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## Umbran (Nov 14, 2015)

Dannyalcatraz said:


> IOW, it may not have even occurred to the father that paternity was even worth questioning.




You seem to have lost the narrative.

This whole line of discussion was about whether a guy, who finds out his wife had "his" child by another man, would get stuck holding the bag of child support for another man's kid after his divorce.  The idea of questioning paternity is part of the base assumption, because it is the reason he's asking for a divorce!



> Or he may have decided to challenge that issue post divorce in the SAPCR, after negotiating for a divorce he otherwise prefers.




Well, that's his choice then, isn't it?  

My understanding is that "no fault" is used when the two want a simple and largely equal/equitable split.  But you are painting the picture of a guy who is really trying to get the best for himself out of this.  On what planet is walking into the divorce hearings with that paternity card in hand not going to improve his negotiating position?  

And, for the guy who is trying really, really hard to get the absolute best for himself out of this, to the detriment of a child... I'm not really sure I care if he's holding the bag for a few months.  The kid isn't *guilty* of being another man's kid.  The kid is a kid, and has taken no wrong action.  But we're trying really hard to find a way to have that kid without new sneakers and backpack for school, as soon as possible, or something?  Is that what we are doing?

I am not liking the direction this is going.  I think I'm done.


----------



## Dannyalcatraz (Nov 14, 2015)

Remember though, it isn't usually the kids who are the targets of the angry adults.  They're usually the collateral damage...or the weapons at hand.  I do know people who are willing to support & interact with kids not their own, even post divorce.  Or even post dating.  But they are the exception.

In my personal and professional life, I've gotten to see a few divorces up close & personal- not any of them mine, FWIW- and when kids are involved, it is USUALLY a messy business.  Although there is a popular idea that one bad parent uses the kids as pawns against the other, innocent parent, it is far more often the case that both sides play games.  It's just a matter of degrees.  (Ther are exceptions, of course.)

So, while I'm not actually a divorce attorney, what I've seen has driven me to work on some solutions to minimize certain aspects of game playing in those situations.  

Of course, the is always the law of unintended consequences.  Some of my solutions are pretty good for ending certain kinds of gamesmanship in child support issues, like withholding payments or misdirecting child support to, saaaay, new earrings for mom.  But they're a bit slower to be responsive to issues like we're discussing now, namely, what if the kid requiring the support isn't your kid.



> My understanding is that "no fault" is used when the two want a simple and largely equal/equitable split. But you are painting the picture of a guy who is really trying to get the best for himself out of this. On what planet is walking into the divorce hearings with that paternity card in hand not going to improve his negotiating position?




In the few no-fault divorces I've handled, no children were involved.  Division of assets and liabilities was not equal, however.  The couples usually had good reasons for the distributions they chose.  But key, they made most of these decisions before engaging a lawyer to draft pleadings & petitions, etc. at hundreds of dollars an hour.

When kids are involved, though, those child support and custody negotiations are usually contentious, lengthy and expensive.  And all of the other issues get examined in that context.

By leaving those issues aside until a divorce decree has been made, a father questioning paternity in a SAPCR keeps that issue from coloring those pre-divorce negotiations.  He saves time and money.

It is effective enough that some divorce attorneys negotiate to include provisions in the decree that pushes the date of any potential SAPCR back a few years...at which point, you can wind back at square 1, negotiating everything over again.


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## Kramodlog (Nov 16, 2015)

Ovinomancer said:


> Those couples can marry, so how, again, does it do what you say it does?




Heh. That is similar to the "homosexuals aren't discriminated because they can marry people of the oppiste gender" argument.


----------



## Kramodlog (Nov 16, 2015)

Umbran said:


> It has been used as such in the past, yes.



And you're doing the same here. You're justifying discrimination by the state of people who didn't go through a ritual. The ritual doesn't make people good foster parents, like being of different gender doesn't make people good foster parents. Some married couples will be good foster parents, and others not so much. Just like couples who didn't get married. So the ritual isn't a mesure of anything, other things need to be checked to make sure the couple will make good foster parents.

This discrimination not only affects couples who didn't go through the ritual, it also hurts kids who could use good parents but because of state discrimination can't get those.


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## Ryujin (Nov 16, 2015)

Dannyalcatraz said:


> Remember though, it isn't usually the kids who are the targets of the angry adults.  They're usually the collateral damage...or the weapons at hand.  I do know people who are willing to support & interact with kids not their own, even post divorce.  Or even post dating.  But they are the exception.
> 
> In my personal and professional life, I've gotten to see a few divorces up close & personal- not any of them mine, FWIW- and when kids are involved, it is USUALLY a messy business.  Although there is a popular idea that one bad parent uses the kids as pawns against the other, innocent parent, it is far more often the case that both sides play games.  It's just a matter of degrees.  (Ther are exceptions, of course.)
> 
> ...




In the case I recall the issue wasn't whether or not the kid would have new shoes, but rather recovery of monies already paid by The State for support of the children.

As a child of divorce, whose father cut off any money to the family he left and tried very hard to drive my mother insane or to break-down prior to leaving, believe me when I say that I'm quite familiar with the concept of children being used as weapons. Or, in my case, the better description might be 'held hostage.'


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## tomBitonti (Nov 16, 2015)

goldomark said:


> Heh. That is similar to the "homosexuals aren't discriminated because they can marry people of the oppiste gender" argument.




I was wondering about this.  The question may seem silly, but how does it actually working legally?

That is, couples are married.  But rights are individual.  Does that change when going from couple to individual to mean "a person has a right to marry" or "a person has a right to be married _to_", with the other person unspecified?  And, how is "having the right to marry a person of the opposite gender" differentiated from "having the right to marry a person of any gender"?

In the same space, is discrimination based on sexuality or gender?  Those are, of course, related, but they aren't the same thing. For example, a person might marry another so to lend legitimacy to a child, while having no actual romantic interest in their partner.  Legally, I'm not aware of a requirement that partners consummate the marriage.  That is a religious requirement.  If I look a legal marriage as a specific contract which bundles a number of agreements, and not distinguish the contact from contracts in general, then the discrimination seems to be a gender based one.  By analogy, if the government is seeking bids for a construction project, the selection process must not discriminate based on gender.

Thx!

TomB


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## Ovinomancer (Nov 16, 2015)

goldomark said:


> Heh. That is similar to the "homosexuals aren't discriminated because they can marry people of the oppiste gender" argument.




No, it's very much not.  You've moved the goalposts from 'it's another way to discriminate against multi-ethnic couples and homosexual couples" to "it sounds like a justification against same-sex marriages that's been discarded as illegal."  At least stay on target.

Prior to recent law changes, you'd have been correct in stating that the marriage requirement discriminates against same-sex couples, because they couldn't marry.  Now they can, so that's no longer discrimination against same-sex couples, it's back to discrimination against unmarried couples.  Multi-ethnic couples haven't had issues for decades, so I have no idea where you're dredging that crap up from, unless it's just a need to remind everyone that once such couples were discriminated against?  Yay, you, then.

So you've completely lost your prior argument, and now have moved your goalposts to having others try to defend some other words that they haven't professed at all, on a nearby but different topic.  Exciting as always, goldomark, exciting as always.


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## Kramodlog (Nov 16, 2015)

tomBitonti said:


> I was wondering about this.  The question may seem silly, but how does it actually working legally?



For Canada it seems that it works by prohibiting certain unions and avoiding naming what is legal. You can't marry your sister, to name an example. It sets a minimum age. 16 years old, the age of consent. It also says that marriage is between two person. Once you get passed those hurdles, the sky is the limit, I guess. Not a bad approach.



> Legally, I'm not aware of a requirement that partners consummate the marriage.



Or to love each other.  



> That is a religious requirement.



Is it? Like a sealing a bloodbond of sorts?


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## Kramodlog (Nov 16, 2015)

Ovinomancer said:


> No, it's very much not.



Yes, it's very much so.  



> You've moved the goalposts from 'it's another way to discriminate against multi-ethnic couples and homosexual couples" to "it sounds like a justification against same-sex marriages that's been discarded as illegal."  At least stay on target.



I never moved it. I just made a comparison between arguments that were used in similar cases. 

If you want to explain how couples who didn't go through a specific ritual aren't discriminated by the state, please explain. That certainly would bring us back to what I originally said.

As a side note, I'm curious, if I'm not mistaken you are a libertarian. You might not be and apologies if that is not the case. But if you are, how does a libertarian justify the state asking people to get a state issued or state recognized license to be a couple and get rights from it?


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## tomBitonti (Nov 16, 2015)

goldomark said:


> Is it? Like a sealing a bloodbond of sorts?




I guess it's a kind of christian thing.  See, for example:

http://www.gotquestions.org/marriage-constitutes.html



> 3) God considers a couple to be married at the moment they engage in sexual intercourse. There are some who take this to mean that a married couple is not truly “married” in God’s eyes until they have consummated the marriage physically. Others argue that, if any man and woman have sex, God considers the two of them to be married. The basis for this view is the fact that sexual intercourse between a husband and wife is the ultimate fulfillment of the “one flesh” principle (Genesis 2:24; Matthew 19:5; Ephesians 5:31). In this sense, sexual intercourse is the final “seal” on a marriage covenant. However, the view that intercourse constitutes marriage is not biblically sound. If a couple is legally and ceremonially married, but for some reason is unable to engage in sexual intercourse, that couple is still considered married.




I could be working from outmoded notions, or have simply got it wrong.  This is from what I remember from many years ago.

Thx!

TomB


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## tomBitonti (Nov 16, 2015)

More news:

Utah judge removes himself from lesbian foster-care case

https://www.washingtonpost.com/news...emoves-himself-from-lesbian-foster-care-case/

Thx!

TomB


----------



## Ovinomancer (Nov 17, 2015)

goldomark said:


> Yes, it's very much so.
> 
> I never moved it. I just made a comparison between arguments that were used in similar cases.
> 
> If you want to explain how couples who didn't go through a specific ritual aren't discriminated by the state, please explain. That certainly would bring us back to what I originally said.




They _are_ discriminated against, and for good reason, but that has nothing to do with gays, or multi-ethnic couples, or specious reasons to disallow same-sex marriage.  Those are all of your boogeymen, and are irrelevant.

Governments discriminate legally all the time.  Eyesight and pilots.  Fitness and firefighters.  Etc.  Unmarried couples can dissolve a relationship at any time, for any reason, and break up a home, with no ability to impose legal responsibilities after the breakup.  Marriage provides that legal framework.  So, in the interest of the child (and the child alone), married couple provide superior legal protections for the rights of the child.  Unmarried couples do not.  This isn't a matter of discrimination against unmarried couples because the state has decided that they don't like unmarried couples, it's a matter of discrimination to ensure the rights and protection of the child.  It is in no way analogous to miscegenation or discrimination against same-sex marriages.  



> As a side note, I'm curious, if I'm not mistaken you are a libertarian. You might not be and apologies if that is not the case. But if you are, how does a libertarian justify the state asking people to get a state issued or state recognized license to be a couple and get rights from it?



Firstly, you've confused libertarian with minarchists, when the latter is a only a small subset of the former.

Secondly, I'm not libertarian.  While I think that the current US government is bloated, it's more because of the lack of any mechanism to determine efficiency and to prune inefficient services than a belief that the government shouldn't do government things.  Marriage is clearly in the interest of the state to regulate and promote, and I'm 100% perfectly fine with it doing so.  Even to the point that current law is generally right on target.  I'd rather that any two persons could marry for any reason, with the only restrictions being those on being able to enter into legally binding contracts, but that's it.  

As for "rights" from marriage, I generally hold that proper rights are those things that cannot be taken from you, ie, negative rights, and do not generally assign benefits and entitlements awarded by government as incentive for behavior to be rights.  I have the right to marry.  Marriage does not give me rights to anything, although there are a wealth of benefits.


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## Ovinomancer (Nov 17, 2015)

tomBitonti said:


> More news:
> 
> Utah judge removes himself from lesbian foster-care case
> 
> ...




Excellent result, however it will probably mean that no sanctions are placed on the judge.  Unfortunately, the US legal system is horrifically bad at chastising, much less punishing, egregious errors of law or misconduct from the bench or the prosecutor's table.


----------



## Kramodlog (Nov 17, 2015)

Ovinomancer said:


> They _are_ discriminated against,



I know. I've said it many times. 



> and for good reason, but that has nothing to do with gays, or multi-ethnic couples, or specious reasons to disallow same-sex marriage.  Those are all of your boogeymen, and are irrelevant.



I assure you that same sex couples and multi-ethnic couples do exist and that I are nothing to be afraid of. So they aren't "boogeymen". 



> married couple provide superior legal protections



And why is that? Is it because going through the ritual has a magical effect on people or because the state arbitrarely gives special legal status to couples who went through the ritual? 

The thing is couples do not need to go through a state sanctioned ritual to be a couple. A couple is or isn't. The states discriminates based on lack of ritual, creating a second tier couple and it does this for no good reason, as the ritual doesn't do anything. Like it won't give better parenting skills. 

All the states needs to do to correct this situation is to provide a legal framework for unmarried couples, like in Québec, and boom, no more second class couples/families. 



> I'm not libertarian.



If you say so.


----------



## Nagol (Nov 17, 2015)

goldomark said:


> I know. I've said it many times.
> 
> <snip>
> 
> ...




Marriage, in addition to its magical effect, is also a form of "contract" (scare quotes used because it isn't arbitrated using contract law).  That declaration is acknowledged by the state and according certain privileges and obligations.  A couple is a couple before the contract is entered into, but marriage adds a expectation of stability on the part of participants (thus it is expensive and time-consuming to exit the union).

Many of marriage's effects can be at least partly duplicated by other legal frameworks: wills, living wills, contracts and agreements, power of attorney, etc.  Marriage as a legal entity is merely a bundled package offered by the state with its own attached riders (like incestuous can't take advantage).


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## Kramodlog (Nov 17, 2015)

Nagol said:


> Marriage, in addition to its magical effect, is also a form of "contract" (scare quotes used because it isn't arbitrated using contract law).  That declaration is acknowledged by the state and according certain privileges and obligations.  A couple is a couple before the contract is entered into, but marriage adds a expectation of stability on the part of participants (thus it is expensive and time-consuming to exit the union).
> 
> Many of marriage's effects can be at least partly duplicated by other legal frameworks: wills, living wills, contracts and agreements, power of attorney, etc.  Marriage as a legal entity is merely a bundled package offered by the state with its own attached riders (like incestuous can't take advantage).




And the state can provide that legal bundle to couples who didn't go through the ritual, like it does in Québec. The ritual is not a necessity. Right now the state discriminates against couples who didn't go through with the ritual for no good reason, like it use to refuse to give that legal bundle to couples of the same gender.  

Gender, rituals, ethnicity, aren't good reasons refuse the legal bundle to couples.


----------



## Nagol (Nov 17, 2015)

goldomark said:


> And the state can provide that legal bundle to couples who didn't go through the ritual, like it does in Québec. The ritual is not a necessity. Right now the state discriminates against couples who didn't go through with the ritual for no good reason, like it use to refuse to give that legal bundle to couples of the same gender.
> 
> Gender, rituals, ethnicity, aren't good reasons refuse the legal bundle to couples.




Actually, Quebec has the weakest form of common-law in Canada.  Dissolution of a common-law arrangement comes with no recourse except for child-support, no sharing of property even if acquired during the relationship, etc.  In other provinces and territories the participants become more entangled though still less than those who specifically use the bundle or gather the individual agreements.

I'm in favour of offering a bundle to any group of consenting adults; it is best if the legal framework is kept separate from any association's definition/framework.  Pope Innocent III Pious IV has a lot to answer for with regard to his annexation of marriage.


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## Kramodlog (Nov 17, 2015)

Nagol said:


> Actually, Quebec has the weakest form of common-law in Canada.  Dissolution of a common-law arrangement comes with no recourse except for child-support, no sharing of property even if acquired during the relationship, etc.



If you buy a property you have to fo see a notary and they are the ones who make papers regarding ownership in case people leave each other. The rest is pretty much similar. Like you can adopt, file joint income taxes and put RRSPs in the name of your spouse for retirement even if you aren't married.


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## Ovinomancer (Nov 17, 2015)

goldomark said:


> And the state can provide that legal bundle to couples who didn't go through the ritual, like it does in Québec. The ritual is not a necessity. Right now the state discriminates against couples who didn't go through with the ritual for no good reason, like it use to refuse to give that legal bundle to couples of the same gender.
> 
> Gender, rituals, ethnicity, aren't good reasons refuse the legal bundle to couples.




Um, the state in Quebec does require that you do go through the ritual to get married.  Or is this a confusion between the ritual of a religious marriage vs the ritual of a civil marriage (which may very little ritual involved at all)?

As far as I can tell, common-law marriage in Quebec is very loose and affords very few of the privileges of "ritual" marriage.


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## Homicidal_Squirrel (Nov 17, 2015)

tomBitonti said:


> A difficulty that I have is the notion that conflict can and must be avoided.  That seems to frame the issue in an unhelpful manner.  Families have to deal with all sorts of issues -- learning difficulties, death or debility of a family member, alzheimers and other forms of dementia, mental illness in general, issues relating to poverty, substance and other abuse, legal issues -- which cannot in general be removed from a child's life.  A standard based on an avoidance of conflict seems unrealistic.
> 
> (I imagine a response that _preventable_ conflict can and should be avoided.  But, also, that putting homosexuality as a conflict item next to the above is not reasonable.)
> 
> ...




I'm not suggesting that conflict should be avoided, even if the conflict is preventable. Conflict isn't aways a bad thing. It can lead to beneficial changes being made, in some instances. What I find unreasonable is expecting Mormons to have to baptize kids of same-sex couples. It's not like it's some super-secret that Mormons are against same-sex marriage. These couples know this. They have different beliefs than the Mormon church, and they want the Mormon church to basically ignore its beliefs and traditions, so they can join. I don't support the Mormon church or it's ridiculous reasoning for hating same-sex love. Hell, you can ask trappedslidder, he'll telly you how favorably I view Mormons. Regardless of how backwards and ignorant I find them, they have their beliefs. If you want to join that group, or any similar group, it would probably help if you held the same beliefs. 

I have to question why these couples want their kids to join the Mormon church? As I said before, it's not secret that Mormons are against same-sex marriage. Why would you want your kids to join a group that is going to teach them to hate you and your partner? It's like a black couple adopting a white kid, and sending him off to be indoctrinated by their local KKK chapter on how to hate black people. And before people start complaining, no, it isn't the same situation. It's the same idea, though. You are joining a group that is against you and your beliefs, and you know this beforehand. It's not a surprise that they don't want you or your kids to join. It makes no sense to put your kids into this kind of situation. 

If they have a need to follow some religion, there are plenty of them to choose from. If they are so interested in a space faring religion, they can join Scientology. They're fairly similar, and it's my belief that Scientology took some of its ideas from Mormonism.


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## tomBitonti (Nov 17, 2015)

Homicidal_Squirrel said:


> I have to question why these couples want their kids to join the Mormon church? As I said before, it's not secret that Mormons are against same-sex marriage. Why would you want your kids to join a group that is going to teach them to hate you and your partner? It's like a black couple adopting a white kid, and sending him off to be indoctrinated by their local KKK chapter on how to hate black people. And before people start complaining, no, it isn't the same situation. It's the same idea, though. You are joining a group that is against you and your beliefs, and you know this beforehand. It's not a surprise that they don't want you or your kids to join. It makes no sense to put your kids into this kind of situation.
> 
> If they have a need to follow some religion, there are plenty of them to choose from. If they are so interested in a space faring religion, they can join Scientology. They're fairly similar, and it's my belief that Scientology took some of its ideas from Mormonism.




Most of the above I agree with.  I find it very hard to imagine a homosexual couple wanting to send their child to an organization which will teach them that their parents are very bad people.

However, there are other cases: A minor (say, who is 14) who wants to join, with parents who disagree but who won't stand in their child's way.  A child of separated parents, one of whom is openly gay and who has a new (non-married) partner.  Or, what is to happen to a child who is a long standing member whose parents are discovered to be homosexual, and who, until discovery, and worked very hard to keep their sexuality hidden?

I also have a problem with requiring a child of a homosexual marriage to make a declaration of disapproval.  Unless *all* admissions are required to make the same declaration.  Even then, the requirement strikes me as wrong minded.

This all seems to be a way of causing a lot of harm, by disrupting relationships and communities.

Thx!
TomB


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## Kramodlog (Nov 17, 2015)

Ovinomancer said:


> Um, the state in Quebec does require that you do go through the ritual to get married.  Or is this a confusion between the ritual of a religious marriage vs the ritual of a civil marriage (which may very little ritual involved at all)?



You can also file your income taxes with your partner so governments consider your couple a de facto union and your partner a de facto spouse. No need to waste time and money on the ritual.

Basically, the government recognizes couples whether they went through the ritual or not.



> As far as I can tell, common-law marriage in Quebec is very loose and affords very few of the privileges of "ritual" marriage.



You pretty much get the same rights, benefits and responsabilities, including being able to be a foster parents. No discrimination for unmarried couples. Or single people for that matter. The big difference, to over simplify, is that you aren't entitled to half of what your spouse had and half of the income.


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## Ovinomancer (Nov 17, 2015)

goldomark said:


> You can also file your income taxes with your partner so governments consider your couple a de facto union and your partner a de facto spouse. No need to waste time and money on the ritual.
> 
> Basically, the government recognizes couples whether they went through the ritual or not.
> 
> You pretty much get the same rights, benefits and responsabilities, including being able to be a foster parents. No discrimination for unmarried couples. Or single people for that matter. The big difference, to over simplify, is that you aren't entitled to half of what your spouse had and half of the income.




According to the Quebec government website on common-law marriage, you're playing up the 'same rights, benefits, and responsibilities' bits quite a bit.

Also, single people can adopt in the US.  It's harder (as I imagine it would be in Quebec) because of the fewer resources involved (mostly time).


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## Homicidal_Squirrel (Nov 17, 2015)

tomBitonti said:


> Most of the above I agree with.  I find it very hard to imagine a homosexual couple wanting to send their child to an organization which will teach them that their parents are very bad people.
> 
> However, there are other cases: A minor (say, who is 14) who wants to join, with parents who disagree but who won't stand in their child's way.



I view it the same as getting a tattoo. Can a 14 year old get a tattoo? Sure, with parental consent. Is the parent going to give consent to this 14 year to make a declaration of disapproval about same-sex marriages? It's possible. Is it likely? I doubt it. 



> A child of separated parents, one of whom is openly gay and who has a new (non-married) partner.



I'm willing to bet there would be a lot of court dates set for that couple. 



> Or, what is to happen to a child who is a long standing member whose parents are discovered to be homosexual, and who, until discovery, and worked very hard to keep their sexuality hidden?



At that point the child would have already been baptized, so I guess it would be a non-issue. I'd still question why this couple would stay in the Mormon church if they were married and know what the Mormon religion teaches about homosexuality.



> I also have a problem with requiring a child of a homosexual marriage to make a declaration of disapproval.  Unless *all* admissions are required to make the same declaration.  Even then, the requirement strikes me as wrong minded.



I'm guessing it's something all members do. They're Mormons. As I said before, their hate of same-sex marriages isn't a secret. You know what you're getting into. Why, knowing what Mormons believe, you'd still want to join is beyond me. It's like Black mormons. When you see what Mormons believe about black people, you wonder why would any black person want to join or stay a Mormon?



> This all seems to be a way of causing a lot of harm, by disrupting relationships and communities.



I agree. It disrupts the Mormon community. You know what they believe. You know how they feel. You still want to go join up and force them to change their beliefs to please you? That's a bit unfair. I mean, would you want Mormons to demand you make changes to your beliefs and traditions just so they can join?


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## trappedslider (Nov 18, 2015)

tomBitonti said:


> Most of the above I agree with.  I find it very hard to imagine a homosexual couple wanting to send their child to an organization which will teach them that their parents are very bad people.
> 
> However, there are other cases: A minor (say, who is 14) who wants to join, with parents who disagree but who won't stand in their child's way.  A child of separated parents, one of whom is openly gay and who has a new (non-married) partner.  Or, what is to happen to a child who is a long standing member whose parents are discovered to be homosexual, and who, until discovery, and worked very hard to keep their sexuality hidden?
> 
> ...




HEre's the letter from The First Presidency clarifying 



> THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
> 
> OFFICE OF THE FIRST PRESIDENCY
> 
> ...



https://www.lds.org/pages/church-handbook-changes?lang=eng

and some commentary http://www.mormonnewsroom.org/article/commentary-understanding-the-handbook

I suggest you read the letter and commentary before posting more questions. Also did you have a chance to watch the video that I linked to up thread?


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## trappedslider (Nov 18, 2015)

Homicidal_Squirrel;6760259. said:
			
		

> Hell, you can ask trappedslidder, he'll telly you how favorably I view Mormons. .





You feel that way towards almost every organized religion,you just put your dislike of mormons out in front cuz you like to troll me


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## Homicidal_Squirrel (Nov 18, 2015)

trappedslider said:


> You feel that way towards almost every organized religion,



That's not true, actually. I don't feel that way towards organized religions. I feel like that towards certain people who happen to belong to organized religions.


> you just put your dislike of mormons out in front cuz you like to troll me



Not true, either. I put Mormons in front, along with Jehovah witnesses, because they're the ones that have showed up at my home uninvited. 

Also, because of Mormons we have been cursed with the Twilight movies, which are pure Mormon propaganda... and a really terrible movie series.


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## Kramodlog (Nov 18, 2015)

Ovinomancer said:


> Also, single people can adopt in the US.  It's harder (as I imagine it would be in Quebec) because of the fewer resources involved (mostly time).



According to Utah law, they can't be foster parent. Same with unmarried couples. The law discriminates unfairly.


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## Ryujin (Nov 18, 2015)

Homicidal_Squirrel said:


> That's not true, actually. I don't feel that way towards organized religions. I feel like that towards certain people who happen to belong to organized religions.
> Not true, either. I put Mormons in front, along with Jehovah witnesses, because they're the ones that have showed up at my home uninvited.
> 
> Also, because of Mormons we have been cursed with the Twilight movies, which are pure Mormon propaganda... and a really terrible movie series.




I recommend a sign like the one I have on my door; "No peddlers; religious or otherwise." The sign is about 95% effective though it's interesting to watch their faces go through the stages from confusion, to understanding.


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## Ovinomancer (Nov 18, 2015)

goldomark said:


> According to Utah law, they can't be foster parent. Same with unmarried couples. The law discriminates unfairly.




Nice shift of the goalposts from adoption to fostering.  Seeing as how this is a new goal, why don't you explain why you think _this _is unfair discrimination?

EDIT:  also, single people can be foster parents in Utah.


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## Kramodlog (Nov 18, 2015)

Ovinomancer said:


> Nice shift of the goalposts from adoption to fostering.



It was always about adopting foster kids as the article Tom quoted was about a kid in a foster home with two women as the parents. http://www.enworld.org/forum/showth...-jail/page19&p=6755967&viewfull=1#post6755967

One of the articles he linked said that Utah law prohibits unmarried couples from being foster parents and I said this:



> On a side note, doesn't a law that say parents need to be married to adopt a foster child discriminate against unmarried couples?



http://www.enworld.org/forum/showth...-jail/page19&p=6755982&viewfull=1#post6755982

Welcome to the conversation.


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## Ovinomancer (Nov 18, 2015)

goldomark said:


> It was always about adopting foster kids as the article Tom quoted was about a kid in a foster home with two women as the parents. http://www.enworld.org/forum/showth...-jail/page19&p=6755967&viewfull=1#post6755967
> 
> One of the articles he linked said that Utah law prohibits unmarried couples from being foster parents and I said this:
> 
> ...




Adoption is a fundamentally different issue than fostering.  Don't blame your poor word choices on me.  And you're still wrong about singles.


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## Kramodlog (Nov 18, 2015)

Ovinomancer said:


> Adoption is a fundamentally different issue than fostering.



Down to a semantic debate? Not a good day for you.   



> And you're still wrong about singles.



My original point was that unmarried couples were discriminated upon. And you agree with it: 







> They are discriminated against



http://www.enworld.org/forum/showth...-jail/page25&p=6759947&viewfull=1#post6759947


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## Homicidal_Squirrel (Nov 18, 2015)

Ryujin said:


> I recommend a sign like the one I have on my door; "No peddlers; religious or otherwise." The sign is about 95% effective though it's interesting to watch their faces go through the stages from confusion, to understanding.



I don't believe I should have to put up a sign in order to deter religious groups from knocking on my door and preaching to me.


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## Ryujin (Nov 18, 2015)

Homicidal_Squirrel said:


> I don't believe I should have to put up a sign in order to deter religious groups from knocking on my door and preaching to me.




Nor do I, but sometimes you just have to do the expedient thing. I live in a townhouse complex and Saturdays were becoming unbearable, because we were such a "target rich environment." What I really wanted to do was greet them at the door while wearing a red bathrobe and holding a dead chicken, and a knife, then ask them if they wanted to join _my_ church but, unfortunately, I figured that I would go broke just paying for the number of chickens I'd need.


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## Homicidal_Squirrel (Nov 18, 2015)

Ryujin said:


> Nor do I, but sometimes you just have to do the expedient thing. I live in a townhouse complex and Saturdays were becoming unbearable, because we were such a "target rich environment." What I really wanted to do was greet them at the door while wearing a red bathrobe and holding a dead chicken, and a knife, then ask them if they wanted to join _my_ church but, unfortunately, I figured that I would go broke just paying for the number of chickens I'd need.



My uncle used to get a lot of Jehovah Witnesses knocking on his door. He would open the door and talk to them... for a long time. Unfortunately for them, he has a PhD in philosophy1. They avoid his house now. Fortunately I haven't had a Mormon or Jehovah's Witness come to my door in a while. One time I had a couple of Baptist show up at my door. I was surprised, as I didn't think that Baptists were into that kind of stuff.





[sblock=1]Pretty useless unless you want to annoy Jehovah Witnesses it seems[/sblock]


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## Ryujin (Nov 18, 2015)

Homicidal_Squirrel said:


> My uncle used to get a lot of Jehovah Witnesses knocking on his door. He would open the door and talk to them... for a long time. Unfortunately for them, he has a PhD in philosophy1. They avoid his house now. Fortunately I haven't had a Mormon or Jehovah's Witness come to my door in a while. One time I had a couple of Baptist show up at my door. I was surprised, as I didn't think that Baptists were into that kind of stuff.
> 
> [sblock=1]Pretty useless unless you want to annoy Jehovah Witnesses it seems[/sblock]




A video of your uncle doing that would have first class entertainment value.


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## Homicidal_Squirrel (Nov 18, 2015)

Ryujin said:


> A video of your uncle doing that would have first class entertainment value.



I passed by his house one day, and he had a young couple with a baby in a stroller standing outside his house. He was talking to them, and it wasn't until I got to the front door that I realized they were Jehovah Witnesses. Apparently he had them out there for almost an hour before I got there. Mind you, this was in the middle of summer, in Miami. I was sweating by the time I walked the 20 feet from the driveway to the front door. The heat and humidity is torture out here in the summer. I stayed at his house for another 30 minutes. The couple and the kid were still out there. By that time, the guy was sweating through his shirt. The girl looked like a wreck. Her hair was all messed up, and she was sweating almost as bad as the guy, who made the mistake of walking around in a suit. I took pity on the kid in the troller, and distracted my uncle long enough that they were able to take their kid and run off. He'd actually taken out several philosophy books, a Bible, and some other books that he was using to explain to them how they were wrong about everything. 
My uncle is also the guy who didn't want to go to a Christmas party until he found out that the person hosting, a long-time family friend, was going to have her preacher over at the party. His only intention of going was to go discuss religion with the preacher. After about an hour, the preacher looked like he was shaking and about to denounce God for having punished him with my uncle.


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## Ovinomancer (Nov 19, 2015)

goldomark said:


> Down to a semantic debate? Not a good day for you.



That you think this is telling.



> My original point was that unmarried couples were discriminated upon. And you agree with it:  http://www.enworld.org/forum/showth...-jail/page25&p=6759947&viewfull=1#post6759947



People have answered that.  They are discriminated against, it for the benefit of the child, and it's lawful discrimination.  You  don't like that, and that's fine, but you've been so consistently wrong on the details (the only one left to you is that unmarried couples are discriminated against -- you lost your own province's marriage laws, singles, and same-sex/miscegenation) that you should probably take some time to reconsider the basis for your arguments.


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## Kramodlog (Nov 19, 2015)

Ovinomancer said:


> They are discriminated against, it for the benefit of the child,



And that is false. Going through that ritual, like gender and ethnicity, doesn't give people better or worse parenting skills. This is why it is unfair discrimination. Going through the ritual is a meaningless criteria when trying to determine if couples are fit to be foster parents.

Unless you think the ritual gives special magical parenting powers to those who go through with it. That is totally different. If you think so you can tell me. I won't judge.


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## Ovinomancer (Nov 19, 2015)

goldomark said:


> And that is false. Going through that ritual, like gender and ethnicity, doesn't give people better or worse parenting skills. This is why it is unfair discrimination. Going through the ritual is a meaningless criteria when trying to determine if couples are fit to be foster parents.
> 
> Unless you think the ritual gives special magical parenting powers to those who go through with it. That is totally different. If you think so you can tell me. I won't judge.




It provides a layer of legal protection to the child that the dissolution of the couple will entail an equitable division of the assets of that couple, which will benefit the child.  It also provides a protection to the child in that the dissolution of the couple isn't a trivial matter of whim, but must be an intended legal action.

It has nothing to do with appropriate parenting skills.


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## Kramodlog (Nov 19, 2015)

Ovinomancer said:


> It provides a layer of legal protection to the child that the dissolution of the couple will entail an equitable division of the assets of that couple, which will benefit the child.



Yeah, cause no child of a married couple was left with a parent in financial difficulty and no child of an unmarried couple was left with a parent with a good financial situation. *wink wink*

Thing is, if that actually did offer something the child, which it doesn't, couples who didn't go through the ritual can have that same protection just by going to a lawyer. The government discriminates unmarried couples by not even giving them the chance to be evaluated and show that they have the worthless documents and what really counts: parenting skills. Here those documents aren't even a necessacity to become a foster parent and surprise, foster kids are ok. Amazing. As if marriage doesn't mean anything when it comes to providing a good environment to kids. 



> It also provides a protection to the child in that the dissolution of the couple isn't a trivial matter of whim, but must be an intended legal action.



Right. No married couple left each other on a whim. *wink wink*

Your arguments rest on an idealized vision of marriage that has nothing to do with reality. The ritual and the legal stuff that comes with it doesn't garanty anything for adopted foster kids. Unmarried couples are penalized because of this vision that marriage means something better and ultimately it is kids who are deprived of potential nurturing environments to grow in.


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## Ovinomancer (Nov 19, 2015)

goldomark said:


> Yeah, cause no child of a married couple was left with a parent in financial difficulty and no child of an unmarried couple was left with a parent with a good financial situation. *wink wink*



No one ever has said that.



> Thing is, if that actually did offer something the child, which it doesn't, couples who didn't go through the ritual can have that same protection just by going to a lawyer. The government discriminates unmarried couples by not even giving them the chance to be evaluated and show that they have the worthless documents and what really counts: parenting skills. Here those documents aren't even a necessacity to become a foster parent and surprise, foster kids are ok. Amazing. As if marriage doesn't mean anything when it comes to providing a good environment to kids.



The US doesn't recognize legal contracts as equivalent to marriage.  That may be a failing, it may not (as civil marriage is really just a legal contract, so why look for a different one?).  But your argument that marriage doesn't provide a benefit is false.  It's been repeatably proven that a stable, two parent household is superior to single parent households.  Marriage is the only way the state has to legally proscribe a two parent household (see above for the lack of recognition of contracted homes).  So it is clearly in the child's interest for the state to place them into such a two parent household, hence the preference for married couples, because non-married couples have no legal existence.



> Right. No married couple left each other on a whim. *wink wink*



No one's made that argument either.  Regardless of the reason, there is legal protection in a marriage if one or both partners decide to whim out of the relationship.  



> Your arguments rest on an idealized vision of marriage that has nothing to do with reality. The ritual and the legal stuff that comes with it doesn't garanty anything for adopted foster kids. Unmarried couples are penalized because of this vision that marriage means something better and ultimately it is kids who are deprived of potential nurturing environments to grow in.



No, it absolutely doesn't rest on an idealized vision of marriage.  I've ascribed no qualities to marriage outside of the legal definitions and protections present in the marriage.  I've made no case that married couples are superior in parental ability or love to un-married couples.  I've only ever pointed out that there are legal protections around marriage that benefit the child that are not present in unmarried couples.  Hence the discrimination against unmarried couples.  

I get that inventing my arguments means that you can safely and easily dismiss them (and me), but, in reality, you aren't winning any points by doing so.


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## Janx (Nov 19, 2015)

goldomark said:


> And that is false. Going through that ritual, like gender and ethnicity, doesn't give people better or worse parenting skills. This is why it is unfair discrimination. Going through the ritual is a meaningless criteria when trying to determine if couples are fit to be foster parents.




To inject a bit of info here:

We've gone through the process to become adoptive parents.  It cost money and we had to have our home inspected by a social worker, interviews, recommendations from friends and a minimum of 10 hours of training.

We're probably better qualified than 2 people who meet and screw and end up pregnant.

The process we went through was identical for married/unmarried/gay couples.  It didn't seem discriminating to couple types, so much as unfair to couples who couldn't have a kid versus the scores of unqualified people breeding without regulation.


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## Kramodlog (Nov 20, 2015)

Janx said:


> To inject a bit of info here:
> 
> We've gone through the process to become adoptive parents.  It cost money and we had to have our home inspected by a social worker, interviews, recommendations from friends and a minimum of 10 hours of training.
> 
> ...




Its very cool that you adopted. One of my sisters and one of my brothers each adopted in China. It is a heck of a process and an expensive one at that. 

I'm not sure where you live, but I'm guessing it isn't Utah. The law that forbids unmarried couples to adopt foster kids at the center of the conversation is in Utah.


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## Kramodlog (Nov 20, 2015)

Ovinomancer said:


> No one ever has said that.



I just did. I was using sarcasm by the way.



> The US doesn't recognize legal contracts as equivalent to marriage.



Again it is your idealization of the ritual that strikes. Two adults can make a contract on how they divide the house if they split up and be happy with it even if it isn't the legal equivalent that comes with the ritual. You can think it is better, but you're pushing your views on everyone.

Also, that two adults have a contract between them doesn't mean it will automatically be a net positive for the children of those two adults, whether the contract is granted by the government or not. Prohibiting couples who didn't go through the ritual from adpting foster kids is just discrimination as the ritual doesn't automatically provide better benefits to the kids. 



> It's been repeatably proven that a stable, two parent household is superior to single parent households.



And yet the Utah government still lets single people adopt foster kids. Seems the well being of the kids isn't really what it cares about.



> Marriage is the only way the state has to legally proscribe a two parent household.



Quite a paradoxe when you say that couples are better for kids and singles aren't prevented from adopting foster kids, but couples are.



> No, it absolutely doesn't rest on an idealized vision of marriage.



Yup.  



> I've ascribed no qualities to marriage outside of the legal definitions and protections present in the marriage.



You did. You said it prevents people from breaking up on a whim because of the legal entanglements of the parents. It is false. Married people divorce on whims. You also keep saying that the legal entanglement the adults are in is a positive for the kids. Reality is far more complexe than you like to view it. That they are legally tied up can just make things horrible for kids. Long messy divorces happen all the time because people are tied up legally with each other and you can't say those are in a child's interest. 

The government gives special rights when adults go through the ritual. Those can have ramifications on the children of the adults, but you haven't demonstrated that it is a net positive for them. There are laws to protect kids and they are covered even if the parents aren't married. If one parent dies and wasn't married to his partner, does the kid inherite everything if there was no will? Here it is the case. The irony is that if you're married, your spouse get everything if a will wasn't made and the spouse can give nothing to the child. Was marriage better for the child?


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## Janx (Nov 20, 2015)

goldomark said:


> Its very cool that you adopted. One of my sisters and one of my brothers each adopted in China. It is a heck of a process and an expensive one at that.
> 
> I'm not sure where you live, but I'm guessing it isn't Utah. The law that forbids unmarried couples to adopt foster kids at the center of the conversation is in Utah.




At the moment, we haven't adopted yet, just as our home study was on its way back to us, we got a surprise test result...

Catching up on the conversation: a law that singles out one group for another is almost always unfair, and thus wrong (barring criminals, I think you can still discriminate against them...)

adoption seems to be how most gay couples grow a family, so that law has a nasty side effect.  I can see thinking that married couples will be more stable than unmarried ones, but given the divorce rate, that's likely not supported by statistics.  I would think it shouldn't be a factor, so long as they look for other indicators of a stablity.


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## Kramodlog (Nov 20, 2015)

Janx said:


> At the moment, we haven't adopted yet, just as our home study was on its way back to us, we got a surprise test result...



Congradulation!



> adoption seems to be how most gay couples grow a family, so that law has a nasty side effect.  I can see thinking that married couples will be more stable than unmarried ones, but given the divorce rate, that's likely not supported by statistics.  I would think it shouldn't be a factor, so long as they look for other indicators of a stablity.




Not sure what they look for during the vetting, but they you have to get a police background check, they check your house and have interviews with you. Lots of unmarried couple could pass those.


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## Ovinomancer (Nov 20, 2015)

goldomark said:


> I just did. I was using sarcasm by the way.



Just pointing out that you were arguing with yourself.  



> Again it is your idealization of the ritual that strikes. Two adults can make a contract on how they divide the house if they split up and be happy with it even if it isn't the legal equivalent that comes with the ritual. You can think it is better, but you're pushing your views on everyone.



That may be so, but right now the only way that a contract like that is as comprehensive and binding as marriage contracts is to get married.  The 'ritual' you keep alluding to is no different that the 'ritual' necessary to create any other contract -- you sign and you're done.  Again, you seem to be conflating religious marriage and it's rituals with actual requirements.  You can have a civil ceremony solemnized, if you want, but it's not necessary.  So your 'ritual' argument is very flat.  Perhaps there's a language barrier, and you just mean 'you can't do it unless you get married?'  In which case it seems you're arguing semantics.



> Also, that two adults have a contract between them doesn't mean it will automatically be a net positive for the children of those two adults, whether the contract is granted by the government or not. Prohibiting couples who didn't go through the ritual from adpting foster kids is just discrimination as the ritual doesn't automatically provide better benefits to the kids.



Of course it isn't an automatic.  It's one screening step, not the only.  The only prohibition in on couples that don't any legal ties.  It's rational to expect there to be legal ties and protections in place before allowing joint adoption/fostering.  



> And yet the Utah government still lets single people adopt foster kids. Seems the well being of the kids isn't really what it cares about.



Yes, of course they do, and the barrier is higher because they have to show they have similar things to offer than couples do.  Which is also rational.  You seem to confuse the requirements for two people to adopt/foster a child, where they share the legal and social responsibility for the child, with a general requirement.  It's not.  If two people want to adopt the same child, they have to have a legally recognized relationship with each other first.  This is because the state cannot recognize a corporate existence without a legal basis.  Marriage is the legal basis for corporate existence between couples, so that's the bar the state uses for the corporate adoption/fostering of a child.

You're making this far too difficult in an attempt to find some way that this reasonable bar is the same are racial or sexual-orientation discrimination.  It's not.



> You did. You said it prevents people from breaking up on a whim because of the legal entanglements of the parents. It is false. Married people divorce on whims. You also keep saying that the legal entanglement the adults are in is a positive for the kids. Reality is far more complexe than you like to view it. That they are legally tied up can just make things horrible for kids. Long messy divorces happen all the time because people are tied up legally with each other and you can't say those are in a child's interest.



Divorce is a far different process than merely breaking up.  Surely I don't need to explain that to you?  And being a different, and harder, process than breaking up, that does place an adverse incentive against doing it on a whim.  Does it prevent it?  No, but there are no guarantees.  But it is fairly well documented that marriages divorce with more consideration than couples break up, making that a positive point in favor of placing the child in a marriage household.

I'm not making the world more simple -- it is very complex.  But you're attempting to make a simple decision point into something more complex because you want it to be indicative of unfairness or illegal discrimination.  Which is why you keep moving the goalposts when you can't get to where you want to be with the arguments you've made.  Granted, you've at least settled into a semi-static position re: couples and fostering (after losing the argument about couples and adoption), but you're not making headway by introducing arguments not being made.

The state MUST discriminate in the placing of foster children.  Even you must agree that a the state must have some minimum standards by which they choose foster homes -- not all homes can qualify.  So, once we've agreed discrimination must take place, then we have to start looking at the whys and wherefores of that discrimination -- at the tools and goals.  The state has an interest in placing children into stable homes.  Single people can provide stable homes, but have a much higher bar than couples do.  Couples can provide stable homes, but unmarried couples present a risk that can be ameliorated by requiring marriage.  So the state requires marriage for couples because it reduces risk for the child.  That's it, no evil plan to prevent the wrong sort from fostering, just an example of an imperfect tool being used in a messy world to try to achieve a useful result.




Janx said:


> At the moment, we haven't adopted yet, just as our home study was on its way back to us, we got a surprise test result...
> 
> Catching up on the conversation: a law that singles out one group for another is almost always unfair, and thus wrong (barring criminals, I think you can still discriminate against them...)
> 
> adoption seems to be how most gay couples grow a family, so that law has a nasty side effect.  I can see thinking that married couples will be more stable than unmarried ones, but given the divorce rate, that's likely not supported by statistics.  I would think it shouldn't be a factor, so long as they look for other indicators of a stablity.



We routinely discriminate in legal ways.  Eyesight and pilots.  Fitness and firefighters.  Intelligence and doctors.  We have a world built on discrimination for good and legal reasons.   The issue here is 'is marriage a reasonable metric with which to discriminate.'   The state thinks so, because they believe it helps protect and provide for the child.  Perhaps it doesn't, but arguments that 'that's discrimination and therefore bad' miss the point.  The point should be showing that there is a better metric that can be used that's at least as good as the marriage one.  If you can do that, than there's both reason and merit to changing the process.

Personally, I think it is a bit outdated.  The modern concepts and expectations of marriage are shifting from the expectations the law was built on.  Even 20 years ago, this wouldn't even be a consideration.  But today's world increasingly looks on marriage as a legal convenience rather than anything more, and so it should probably lose it's position as an effective measure of stability.  But only if it can be shown that it has lost all effectiveness (or enough that it becomes harmful) and/or if a better metric for the protection of the child can be shown to exist. This needs to be balanced against the cost and time of implementing a new metric as well, as that's a critical part of an overworked and underfunded program's cost/benefit analysis.  For now, I think that it should probably stay, even if it is outdated, due to limited harm, residual usefulness, and lack of a better option.


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