RE: Transgender marriage

From: Harvey Newstrom (
Date: Fri Jan 18 2002 - 11:05:54 MST

Mike Lorrey wrote,
> Let me say this one more time: all people have an equal right to marry
> someone of the opposite sex. There is NO discrimination in this at all.
> Gays and lesbians, transgendered and bisexuals all have the same right
> to marry someone of the opposite sex that heteros do.

You are again using the dictionary definition of a word to argue law. Equal
rights or lack of discrimination does not mean they are treated the same.
Equal rights or lack of discrimination means everyone is equally left alone
to pursue their own life, liberty and the pursuit of happiness.

Making everyone vote Democratic would treat everyone the same. By the
dictionary definition, this would not be discrimination. But legally, it
would violate the rights of Republicans and give unequal protection to
Democrats. Likewise, the establishment of a state religion would treat
everyone the same. Everyone would be free to participate in the same
religion. The founding fathers clearly saw that this "equal treatment"
would be unfair to minority religions. They demanded and instituted freedom
of religion for all religions, not just the majority religion.

The concept of being treated "the same" has little bearing on legal
definitions of discrimination. Most discriminatory laws that have been
overturned applied to everyone the same way. This did not stop them from
having a devastating impact on one segment of the population while giving
preferred treatment to another. You are correct when you argue the
dictionary definition of these words, but you are incorrect when you argue
the legal concepts that use these same words for specific legal concepts.

> I entirely support the idea of redefining marriage, but lets not play
> games with claiming a pre-existing right where none exists.

Actually, most courts have found that this is a pre-existing right assumed
in the constitution of the United States and of most individual states.
This occurs every time a state supreme court rules that gays have the right
to marry. There is then a quick move to /amend/ the state constitution to
prohibit this right. Legally, in such cases, the right was interpreted to
have always existed and was recently removed by congressional action in
those states. Although you may disagree in various ways with this history,
it is the legally correct and legally binding history of many of these laws.

> If you are
> going to redefine marriage, you still are going to wind up defining it
> such that it discriminates against the desires of some segment of the
> population.
> Keep in mind that the social mores that cause people to be disgusted at
> the desires of groups like NAMBLA are very similar to the ones that
> create homophobia and other anti-gay sentiments, and which restricted
> same sex marriages throughout history. Lets not claim that there is some
> significant difference here.

There is a big difference between consenting adults and unconsenting
children, or between co-equal partners and unequal adult and child roles.
Also, children are not legally able to give consent unless laws specifically
give them the right, whereas adults are legally able to give consent unless
laws specifically take away that right. These two cases are polar
opposites, legally speaking.

Harvey Newstrom, CISSP <>
Principal Security Consultant, Newstaff Inc. <>
Board of Directors, Extropy Institute <>
Cofounder, Pro-Act <>

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