Religion & Public Life With Mark Silk

Religion & Public Life With Mark Silk


DOMA should survive

posted by Mark Silk

In the clear light of the next morning, I guess I’m prepared to go some of the way with Jack Balkin’s critique  of Judge Tauro’s two DOMA decisions. The equal protection argument advanced in Gill is certainly in tension with the Tenth Amendment argument advanced in Commonwealth. If the right to define marriage is to be reserved to the states, what exactly does equal protection mean, when the laws can vary so much.

Consider Reynolds, the famous 1890 decision in which the Supreme Court ruled that polygamy was not a right protected under the Free Exercise clause. To be sure, the decision did not involve state law; at the time, Utah was federal territory (albeit governed de facto by the LDS Church). But let’s leave aside the issue of how Reynolds has become applicable to the states since the religion clauses were “incorporated” in the middle of the last century.

Suppose the court were to reverse Reynolds and Utah were to go ahead and make Mormon “plural marriage” legal. Would Judge Tauro’s equal protection argument require the federal government to provide marriage benefits to all the wives of a one husband? Maybe there would be a rational basis for deciding not–namely, that marriage benefits can rationally (on money-saving grounds?) be limited to one spouse per customer. The question is whether a state, acting according to its own marital lights, can force the feds have to cough up benefits. Probably not.

Still, it’s going to be fun to watch the Tenth Amendment enthusiasts argue that, well, when it comes to family law, the federal government actually has an enumerated right to intervene. 



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Chuck Anziulewicz

posted July 9, 2010 at 12:02 pm


I know the people at the Alliance Defense Fund, the National Organization for Marriage, the Family Research Council, etc. are just going ballistic over this. But the judge made the right decision. The Defense of Marriage Act (DOMA) is transparently unconstutional for two reasons:
1: It violates the 14th Amendment. DOMA establishes a different set of standards, at the federal level, for Gay couples and Straight couples who are legally married. According to the Government Accounting Office (GAO) there are 1,138 legal benefits, protections, and responsibilities that are automatically bestowed on Straight couples as soon as they legally married. But thanks to DOMA, even a Gay couple that is legally married in Massachusetts may not designate one other as beneficiaries for Social Security. As far as the federal government is concerned, Gay couples don’t even exist.
2: DOMA violates the “Full Faith & Credit” clause of the Constitution. If any Straight couple flies off to Las Vegas for a drunken weekend and gets married by an Elvis impersonator, that marriage is automatically honored in all 50 states. But because of DOMA, even Gay couples who are legally married in Iowa or Massachusetts are beome magically “UN-married” once they move to another state.
I’m well aware that some Americans are uncomfortable with marriage equality for Gay couples, just as some Americans are STILL uncomfortable with people of different races getting married. But “popularity” and “constitutionality” are not always synonymous.
You should ask yourself why law-abiding, taxpaying Gay Americans should be forced to subsidize all the legal benefits and responsibilities that Straight couples enjoy, when we are unable to take advantage of those same incentives to marry? And since when do voters get to decide that the rights they enjoy should NOT apply to minorities?



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Grumpy Old Person

posted July 9, 2010 at 12:32 pm


Mr. Silk, you are wrong, wrong, wrong.
You have twisted and confused the issue of same-sex marriage by attempting to equate it with polygamy. They are entirely separate issues.
Gay citizens are in no way attempting to secure the ‘right’ to marry more than one spouse. Currently in America, no one has that ‘right’.
Sorry, but I think you did it on purpose, too, sad to say.
And I put ‘rights’ in quotes because we SHOULD be talking about liberties. America is not the Land of the Rights; it’s the Land of the Free (TM, all rights reserved). ALL citizens should be free to marry the person of their mutual choosing, not just the heterosexual citizens.
Whatever did happen to liberty an d justice for ALL?
Like I said, on this issue, you are simply WRONG, not to mention confused. (Or should that be purposely confusing?)



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Grumpy Old Person

posted July 9, 2010 at 12:34 pm


P.S. You gave absolutely ZERO reasons why “DOMA should survive” in your post.
Please tell us why you believe it should.



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Mark Silk

posted July 9, 2010 at 12:43 pm


I’m sorry, Grumpy Old Person, but I didn’t equate same-sex marriage and polygamy (though I am actually more sympathetic to polygamy as a right than most people). The issue is a strictly legal one. If the Fourteenth Amendment guarantee of equal protection is taken to protect the right to federal marital benefits for same-sex couples in Massachusetts, then why (hypothetically) shouldn’t it protect the right of all plural wives to the same benefits in Utah? Maybe it should, maybe it shouldn’t. The point is, there has to be some reason in law for distinguishing the two. And I’m not sure there is one. That’s not to say that it wouldn’t be a good thing if Congress repealed DOMA and recognized the right of all married couples to federal benefits.



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Mark Silk

posted July 9, 2010 at 12:49 pm


P.S. I knew I’d catch some flak for the headline. I intended it not to mean “ought to” but “probably will.” But mea culpa, it was also intentionally provocative.



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Grumpy Old Person

posted July 9, 2010 at 1:13 pm


Mr. Silk, though you didn’t specifically “equate same-sex marriage and polygamy”, your post only addressed polygamy – which is not what DOMA is about. In fact, you didn’t even address DOMA at all.
And to answer your question (which I believe I already did), the benefits cannot accrue to the multiple wives of polygamists (why, oh why is italways and ONLY men who get multiple partners???) is because polyfamous marriages are not legal anywhere in the U.S. The Massachusetts marriages are, in fact, legal marriages. That is the “reason in law for distinguishing the two”.
Geez Louise that was simple. Why didn’t YOU think of that?
Too bad the sentiment expressed in your answer, “That’s not to say that it wouldn’t be a good thing if Congress repealed DOMA and recognized the right of all married couples to federal benefits.” didn’t even appear in your ‘article’.
Why is it only the ‘religious’ (religulous?) continue to conflate these two very disparate issues?



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Daniel

posted July 9, 2010 at 1:27 pm


Mr. Silk makes a good point that if DOMA is repealed it essentially gives states the right to strong arm the federal government into providing marriage benefits on the states’ terms. This is a problem if marriage isn’t defined the same way across the USA the way it wasn’t defined the same in 1890 and isn’t defined the same way across the USA today. I could see states recognizing polygamous marriages eventually under pressure from FLDS-like groups, certain Muslim groups, or other groups. The repeal of DOMA would create a legal precedent that would force the government to recognize whatever marriages the states throw at it.



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Your Name Jancis M. Andrews

posted July 9, 2010 at 2:14 pm


It’ so sad to see polygamy mixed up with the issue of same-sex marriage. Polygamy means one man having one legal wife plus as many concubines as he can keep within his harem. Same sex marriage at least means the joining together of TWO EQUAL PARTNERS. There is no equality whatsoever within polygamy. The man is all-powerful, whereas the women are merely collectibles, there to provide him with a variety of sexual partners and make his life comfortable.They are not allowed the same sexual license, but must wait their turn to have sex with their “husband.” One of the excuses for polygamy given by the American and Canadian FLDS is that the practise is ordained by God. However, this permission appears only in the Old Testament — an ancient Jewish book — not in the New Testament, a Christian book, where the practise is expressly forbidden. Another excuse is that it is easier on women in that they can share the household chores, including the rearing of the many children that result from polygamy. Please note this mean that the man is subtly informing the women they are not to count on him to wash a dish or change a diaper — that’s women’s work! However, check the Internet, particularly governmental sites. There are a growing number of governmental reports, including North American, European and African, that document the misery and jealousy that polygamy causes women (how would YOU like to have umpteen rivals for your partner’s bed, especially once you reach the age of 40?) as well as the fact that polygamy impoverishes women and children who eventually will have to share the man’s estate if he dies. The Canadian polygamist Winston Blackmore has roughly 26 concubines, including 9 underage girls whom he has impregnated, according to an Affidavit submitted by the Royal Canadian Mounted Police. Let’s hope charges are laid. So far he has 121 children with more on the way. Poverty, anyone? By the way, I wonder if he can remember all the names of his huge army of children, or do they have to wear name tags when Daddy is around?



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Guy Briggs

posted July 9, 2010 at 5:22 pm


@ Jancis – Where, pray tell, does in the New Testament is polygamy “expressly forbidden?” Titus doesn’t count, as it applies only to the Bishops that Titus was supposed to be setting apart.
@ Grumpy Old Person (GOP?) – Silk’s premise was that the if individual states define what marriage is (or isn’t) and if Utah changed their law (which would require an amendment to the State Constitution, by the way) to allow plural marriage, then polygamy WOULD be legal in one of the states, and the federal government would have to apply to all the wives of one husband (polygyny) or the all the husbands of one wife (polyandry).
bestRegards, Guy.



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Linda

posted July 9, 2010 at 6:57 pm


Actually, plural marriage as practiced in the 19th century wasn’t anything like the FLDS do it, or as Jancis Andrews said.
It had nothing to do with sex. (OTOH, gay marriages have almost everything to do with sex, as “homosexuals” identify themselves primarily by who they want to have sex with).
IF the Church of JESUS CHRIST of Latter-day Saints, the original Mormons, were to ever start practicing plural marriage again, it would not be “one legal wife plus as many concubines as he can keep within his harem”. Any man wanting to make a plural marriage would have to satisfy three conditions before Church leaders would allow him to take a second wife.
First, he would have to be a worthy priesthood holder, and able to prove to leaders that he was NOT doing this for prurient reasons, but strictly spiritual reasons.
Second, he would have to prove to them that he was financially, emotionally, mentally and physically able to support not just another wife, but the children they would have. There would be NO government welfare checks for these families.
Third, the first wife would have to be on board with it.
You can imagin then, that plural marriage would not be like what the FLDS do. It would not be anything like what people think. (“Huh? That’s IT?? BOOORRRRING!!!”)
In 19th century Deseret Territory, only about 3-5% of the men in the church had more than one wife, and most of them had only two or three; only about 25% of the entire church was involved somehow in plural marriage. Men like Brigham Young were the exception rather than the rule. Jeffs’ church doesn’t even come close.
And that’s not even taking into account how the FLDS men marry little girls as soon as they start their menses.



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Christian MD

posted July 10, 2010 at 6:20 am


Where in the New Testament is polygamy forbidden ?
Here is the answer :
1 Corinthians 7:2 :
Let every man have his own wife, and let every wife have her own husband



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Eddie Williamson

posted July 10, 2010 at 5:59 pm


Dear Your Name Jancis M. Andrews,
Your opinion is a stereotypical one about polygyny. Those who understand the nature of true polygyny know that the women have more benefits than the husband. While the sole benefit of the man is more women for sex, with that single benefit comes the responsibility for all wives and the children he produces through them. The many benefits for the wives includes physical and emotional support for childcare, housecleaning, cooking, education, etc. In a polygynous marriage involving just 2 wives, one wife could be working while the other goes to school to improve her employment potential or even start a business. If a wife is infertile, she can enjoy being a mother without going through child birth and be comforted whereas in a monogamous marriage she would have to adopt a child through the legal process.
If homosexuals can get married now, which is a perverted relationship to begin with, polygynous men and women should be able to be married. Polygyny is one man with more than one wife. Polygamy is multiple spouses of males and/or females. Please note the difference.



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Eddie Williamson

posted July 10, 2010 at 6:00 pm


To Christian MD,
They are talking about adultery, not polygyny. Learn the Scriptures before showing your ignorance on the topic.



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Your Name

posted July 10, 2010 at 11:12 pm


Mark Silk writes:
P.S. I knew I’d catch some flak for the headline. I intended it not to mean “ought to” but “probably will.” But mea culpa, it was also intentionally provocative.
I’m sorry for what I almost wrote in response.
However your argument about polygamy is fatuous. You can’t equate the right to a single marriage with a right to multiple successive marriages. Moreover, if you define marriage as the right to marry someone of the opposite sex, I’d respond that Saudi Arabia has religious freedom, Mr. Silk; you can attend the mosque of your choice.



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Your Name

posted July 10, 2010 at 11:26 pm


Linda wrote:
Actually, plural marriage as practiced in the 19th century wasn’t anything like the FLDS do it, or as Jancis Andrews said.
It had nothing to do with sex. (OTOH, gay marriages have almost everything to do with sex, as “homosexuals” identify themselves primarily by who they want to have sex with).
Gays don’t grow up expecting to marry a member of the same sex. They grow up expecting to marry a member of the opposite sex. They date members of the opposite sex and find out that there is no attraction and no possibility of conjugal love. Therefore, they cannot honestly engages in a marriage with a member of the opposite sex. Even if same-sex marriage is illegal and, therefore, no emotionally complementary marriage is available.
Since the age of eighteen, I’ve known that engaging in an opposite sex marriage would deprive a woman of a change at conjugal love. Even though that’s something I can’t have, I can’t deny that to another so that I can fit in.
Now when some witless conservative female wants to vilify me and all gays for the fact that we are too honest to ruin some woman’s life, I can only muster pity for the poor emotional cripple who made the remark.



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Christian MD

posted July 12, 2010 at 11:51 am


Sorry Eddie,
There are many medical studies which have been performed regarding the effect of polygyny on women.
These studies indicate that polygyny has a negative effect on women, in terms of decreased marital satisfaction, increased rates of depression and anxiety, and more admissions for psychiatric treatment.
All those studies were done in countries where polygamy is legal and considered acceptable. These studies were performed by trained psychiatric personnel, by means of anonymous surveys scored by computers, and are highly objective. It is NOT favorable for polygamy.
There are no studies which indicate that women find polygamy more satisfactory than monogamy – there are only OPINION pieces (not research studies) written by MEN who state that they FEEL hypothetically that polygamy benefits women. Feelings and scientific facts are two separate entities entirely.
And with regard to your comment on 1 Corinthians 7:2, it is NOT addressing solely adultery, it is “…because of sexual immortality, let every man have his own wife, and every woman have her own husband…”
A prominent Greek American priest who is fluent in Greek with a doctorate in theology who is also a Bible translator assures me that this verse IS intended to be a statement against polygamy when read in the original Greek – and your credentials with regard to Biblical exegesis are ….??
It should be noted that polygamous women have a higher incidence of cheating on their husbands than monogamous women do in research studies performed in regions in Africa where 50% of all marriages are polygynous….
So “each wife having her own husband” apparently DOES reduce the incidence of sexual immorality, just as St. Paul stated.



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Grumpy Old Person

posted July 13, 2010 at 11:11 am


“if DOMA is repealed it essentially gives states the right to strong arm the federal government into providing marriage benefits on the states’ terms.”
That situation ALREADY exists. Every State DOES get to “define” what marriage will be, from age restrictions, familial relationship restrictions, the gender of the persons getting married. The Federal government doesn’t (shouldn’t) need to be “strongarmed” – since it ALREADY doles out benefits to most legally married couples – regardless of age & familial relationships – and the only discriminatory basis it continues to uphold is that of gender.
Try again, but DO BETTER. Your current argument fails abjectly.
“This is a problem if marriage isn’t defined the same way across the USA”
It ISN’T “defined the same way across the USA” NOW! (See above as well as your own subsequent comment, “the way it wasn’t defined the same in 1890 and isn’t defined the same way across the USA today”) The LGBT folk in Massachusetts, etc., ARE legally married, whether you like it or not.
“I could see states recognizing polygamous marriages eventually under pressure from FLDS-like groups, certain Muslim groups, or other groups.”
Yeah r-i-i-i-g-h-t, THAT’s gonna happen. Sure the gubmint’s gonna cave ‘under pressure’ from one of the most hated groups in America – Muslims. Dream on.
“The repeal of DOMA would create a legal precedent that would force the government to recognize whatever marriages the states throw at it.”
Like I said, with the excpetion of the queers, IT ALREADYDOES.
Get a clue.



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Grumpy Old Person

posted July 13, 2010 at 11:20 am


@ Your Name Jancis M. Andrews
July 9, 2010 2:14 PM
“It’ so sad to see polygamy mixed up with the issue of same-sex marriage.”
That’s how the ‘right’ argues, Jancis. They “mix up” disparate thinngs, and then disingenuously deny it saying, to quote Mr. Silk(y pony?) himself, “I didn’t equate same-sex marriage and polygamy”.
See, he didn’t “equate” the two; he merely, as you said ‘mixed them up’.
Honest conservatvies – even the ‘religious’ kind – know in their hearts there’s no such valid comparison, but still they do it. Still they do it.
Basically, they ABHOR the idea of “the joining together of TWO EQUAL PARTNERS” – if they are of the same sex. They excuse themselves (and their ‘arguments’) by couching it in selectively ‘literal’ readings from the Bible (as if that particular Holy Book should govern the United States of America) like “Titus doesn’t count, as it applies only to the Bishops that Titus was supposed to be setting apart”. It’s exactly like them saying the dietary restrictions as set out in Leviticus don’t apply to today’s Christians since it was only meant for the Levite tribe, but seem to be quite happy applying that same book’s restrictions on (what they perceive as) homosexual conduct – to people in the 21st century.
CAPTCHA: “government coyest”
Read more: http://blog.beliefnet.com/religionandpubliclife/2010/07/doma-should-survive_comments.html#ixzz0tZlpBq00



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Grumpy Old Person

posted July 13, 2010 at 11:32 am


@ Guy Briggs,
if individual states define what marriage is (or isn’t) – [UM, they already DO] – and if Utah changed their law (which would require an amendment to the State Constitution, by the way) to allow plural marriage, then polygamy WOULD be legal in one of the states, and the federal government would have to apply to all the wives of one husband (polygyny) or the all the husbands of one wife (polyandry).”
Odd that you can mix one reality and one hypothetical and still think you can be believed.
IF Utah changes its laws is a Huh-YOOGE (to quote Stephen King) hypothetical that ain’t likely gonna happen. Certainly not in the foreseeable future.
Having said that, although I personallly disagree with polygamy/polygyny (for the same reasons elaborated in Jancis’s post), there are quite a few citizens who don’t have any problems with it – FLDS/Mormons, Muslims, etc.
I don’t know how the American government would deal with its consequences (in Iran, I doubt very much if the woman’s rights/entitlements/benefits are even a thought to the government – since, as a Bronze Age culture, women are still seen as chattel there), but obviously there are legal ways to deal with contracts involving more than one spouse. I feel in my heart they would be inherently unfair to any women in any such relationship, but if they want to enter into such, it really isn’t my job to stop them.
Meanwhile, you, like Mr. Silk, are ignoring the fact that in Massachusets, 4 OTHER States, plus D.C., people are ALREADY getting LEGALLY married. (No hypotheticals needed, thenkyew.) And the Federal government is guilty of discrimination against them by NOT proferring ALL of the benefits that accrue to legally married couples.
That is the injustice that we seek to have addressed, not some red herring about (as yet fictitious) multiple spouses.



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Grumpy Old Person

posted July 13, 2010 at 11:36 am


Adding more B.S. to the fire, “Linnda” sez: “as “homosexuals” identify themselves primarily by who they want to have sex with”
Sorry, Linda, but you, too, are incorrect (aka bearing false witness, aka lying, aka sinning).
I want to have sex with my (legal) husband. That is NOT how I identify myself. I identify myself as a human being, a citizen, and a child of God, who just happens to be same-sex attracted. Sorry that you and your types can only see me as a sexual being – I/we have so much more to contribute to society than just that.



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Grumpy Old Person

posted July 13, 2010 at 11:39 am


@ Eddie Wiliamson,
“If homosexuals can get married now, which is a perverted relationship to begin with”
It most certainly is no such thing – to the homosexuals who ARE legally married, many within their own faith traditions – as I was.
Being homosexual is the most natural thing in the world – for homosexuals, just as being betterosexual is not “perverted” but actually quite natural – for all you betterosexuals.



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Estraven

posted July 13, 2010 at 12:29 pm


@Eddie Williamson Every single animal species which reproduces sexually exhibits bisexual behavior (read the book “Biological Exuberance”). Every single human culture which did not have a repressive religion was/is bisexual. Bisexuality IS the natural way. It is the repression of the Abrahamic religions that goes against Nature.



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Demoiselle

posted July 14, 2010 at 1:13 pm


A review of the literature on gay marriage indicates that two female parents do just as good a job as two straight parents in raising children in terms of outcomes.
Other studies indicate that gay partners in marriage have similar marital satisfaction rates as straight couples do.
Therefore there is no scientific reason to prohibit gay marriage.
The same cannot be said of the practice of religious polygyny, which has been documented to be harmful to the psychological health of women.
I think that marriages laws in the US should therefore be re-written to accommodate marriage between two consenting adults over age 18.



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Chatelaine

posted July 17, 2010 at 7:37 am


Anyone who believes that “polygamy benefits women” as Eddie does needs to read this :
http://twitthis.com/o6mpsw



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Ray

posted August 5, 2010 at 4:00 am


Consenting adult marriage between one man and one man, and one woman and one woman, is actually a more radical departure from traditional marriage than consenting adult ploygamous marriage is, as male/female is involved in both consenting adult polygamous marriage and consenting adult traditional marriage.
And polygamous marriage has long, historical precedent, whereas same-sex marriage does not.
If Vaughn Walker’s ruling yesterday concerning Prop 8 provides due process and equal protection for gays, then how could it not apply the same for polygamists?
This isn’t about cats and dogs and under-age children, although, sadly, some under age children have been drug into polygamous marriages. This is about consenting adults. Traditionalists must not bring up the argument of animals in their arguments against gay marriage.
If consenting adult gays are allowed to marry, then what would stop the same for occuring for consenting adult polygamists? SCOTUS? Would gays quit fighting for same sex marriage rights for gays if SCOTUS banned same-sex marriage? Would they not seek to have another SCOTUS body to overturn that ruling at some point in the future?
How then can some be for marriage equality for consenting adult gays but not consenting adult polygamists? Would they not be bigots to support consenting adult gay marriage but not consenting adult polygamous marriage? This isn’t about religion, either, as there are polygamists that are not religious, just as there are straight and gay couples who aren’t religious. But there are Muslims who undoubtedly would like to have consenting adult polygamous marriage be legal in America. Is it Islamophobic to be against their rights?
Is the Bible against polygamy? The Bible does contain passages about polygamy, but highlights that misery was brought into the fanmily as a result of polygamous marriage – and Jesus never condoned polygamous marriage, but only condoned marriage bwtween one man and one woman. I would be interested if anyone can provide a scripture where Jesus condoned same-sex marriage. Saying that Jesus supported or may have supported same-sex marriage isn’t enough, nor is saying that the prohibitions against homosexuality in the Bible were taken out of context or were about something else enough to prove a point. One needs to show that the Bible condones homosexuality to prove that point.
I am against both gay marriage and polygamous marriage. If that makes me a bigot, then so be it. But at least I am not hypocritical in my bigotry like those who say yes to consenting adult gay marriage but no to consenting adult polygamous marriage on the grounds of due process, equal protection and marriage equality.



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Grumpy Old Person

posted August 10, 2010 at 11:08 am


“If Vaughn Walker’s ruling yesterday concerning Prop 8 provides due process and equal protection for gays, then how could it not apply the same for polygamists?”
Because polygamous marriages are not legal in the U.S., while 2 person marriages ARE. That’s why, Ray.
Thanx 4 askin’.
“Jesus never condoned polygamous marriage, but only condoned marriage bwtween one man and one woman.”
Actually, the one passage you (don’t) reference where Jesus speaks of 1-man/1-woman marriage is His answer to the Pharisees as to whether or not divorce ought to be permitted. Christ WAS pretty clear on this (the answer was an unequivocal “NO!”).
“I would be interested if anyone can provide a scripture where Jesus condoned same-sex marriage.”
The trouble (for you and your ‘argument’) is that no one HAS to provide such a Scriptural pull-quote, not in a country that promises freedom of (and from) religion for ALL citizens, regardless of the religious beliefs.
“One needs to show that the Bible condones homosexuality to prove that point.”
Sorry but nobody needs to “prove” any such thing. Some citizens aren’t Christians, need you be reminded?
“I am against both gay marriage and polygamous marriage. If that makes me a bigot, then so be it.”
And so it does.



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Grumpy Old Person

posted April 22, 2011 at 2:25 pm


I never caught this last year, but it’s an important distinction …

“That’s not to say that it wouldn’t be a good thing if Congress repealed DOMA and recognized the right of all married couples to federal benefits.

IN polygamous/polygynous marriages, it’s a group, not a couple. A “couple” is TWO people, not a bunch of people.



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