Supreme Court Same Sex Marriage Argumet

[TheRealJoeFish]

No, no, no ostracization. From my end: lunch break, surprise invite to a minor league baseball game, just getting home.

You were right, of course, regarding minors and contracts; I was sort of ignoring that as a technicality, but it's probably worth noting like you did. Now, I don't think it affects the particular subset of contracts relating to marriage, because 1) there's no question regarding the ability of, say, a ten-year-old to enter into a marriage contract, meaning that there's something special about those sorts of contracts, and 2) there's more to marriage than a contract (if there wasn't, there wouldn't be a supreme court case about it).

Now, regarding the equal protection clause statement, I do understand what you're saying. However, I simply think your reading of the equal protection clause is too narrow. Example: Poll taxes. A facially equal requirement - everyone must pay a certain amount of money to register to vote - was deemed to violate the equal protection clause. I think a reasonable parallel can be drawn.

And as for Scalia, well... I sure don't like most of his beliefs, and interpretations, and opinions... but I would not be surprised to learn he was, by many measures, certainly the most intelligent Supreme Court Justice. I disagree with him 90% of the time, but he is one of the greatest writers of all time.

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I'll talk about Alito later tonite or tomorrow

[Iroscato]

It's cutte how conservatives keep frenetically polishing the same bigot turds over and over, using a slightly different polish each time. Maybe in 100 years or so they'll evwentually find something resembling a coherent argument. 'Course, by that time we'll be drinking mojitos on Mars, bitches.
#drunkposting

[Anima]

No, no, no ostracization.  From my end: lunch break, surprise invite to a minor league baseball game, just getting home.

You were right, of course, regarding minors and contracts; I was sort of ignoring that as a technicality, but it's probably worth noting like you did.  Now, I don't think it affects the particular subset of contracts relating to marriage, because 1) there's no question regarding the ability of, say, a ten-year-old to enter into a marriage contract, meaning that there's something special about those sorts of contracts, and 2) there's more to marriage than a contract (if there wasn't, there wouldn't be a supreme court case about it).

Now, regarding the equal protection clause statement, I do understand what you're saying.  However, I simply think your reading of the equal protection clause is too narrow.  Example: Poll taxes.  A facially equal requirement - everyone must pay a certain amount of money to register to vote - was deemed to violate the equal protection clause.  I think a reasonable parallel can be drawn.

And as for Scalia, well... I sure don't like most of his beliefs, and interpretations, and opinions... but I would not be surprised to learn he was, by many measures, certainly the most intelligent Supreme Court Justice.  I disagree with him 90% of the time, but he is one of the greatest writers of all time.

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I'll talk about Alito later tonite or tomorrow

Wow!! Sounds like you had a fun and busy day!!!

1. There is no legal reason for a ten year old to not enter into a marriage contract. Particularly as there is precedence of such occurrence throughout the world and in the US. While the entering is generally with parental or judicial consent it may not to be said that neither may be granted or even granted regularly, particularly if an agreement to marriage is adult center recognition of a commitment and union between the party establishing communal property and inheritance of assets and is not procreation orientated to constitute an implicit agreement to consortium.

2. In accordance with the law marriage is a contract. It is for this reason that states may even define/restrict the marriage as states have the right to determine conditions and parties which may enter into contracts for services (which are done at common law of the given state). While the argument of the petitioners is that marriage conveys dignity the argument of the respondents is correct. While people may assign dignity to marriage the state itself does not seek to convey or withhold dignity by approving of marriages. If that were the case the state should prohibit undignified marriages (gold diggers for example) and only allow dignified marriages (like the sacred shotgun kind).

3. The poll taxes (Harper v. Virginia Board of Elections) were ruled a discriminatory violation of the equal protection clause because they failed to meet strict scrutiny. While the state had a compelling interest (in reducing fraud and an educated electorate) and the tax was narrowly tailored to effect only voters, it failed to be the least restrictive means to meet that interest or to meet that interest at all. When it came to reading tests (Lassiter v. Northampton Election Board) the court ruled they are not a discriminatory violation of equal protection clause because they satisfied strict scrutiny so long as there was no grandfather exemption for whites to avoid testing.

4. Regarding equal protection in terms of marriages needs only pass rational basis rather than strict scrutiny. Thus, the state needs only a legitimate interest in marriage (which it has) and the discrimination needs to be reasonably related to meeting that interest. (Note: rational basis is highly in favor of the state legislature so that the courts would not have to review and validate every law. The court needs only find a reasonable relation to the states interest no matter how tenuous!)

5. I generally disagree with Scalia as well. But damn can that man write!!

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It's cutte how conservatives keep frenetically polishing the same bigot turds over and over, using a slightly different polish each time. Maybe in 100 years or so they'll evwentually find something resembling a coherent argument. 'Course, by that time we'll be drinking mojitos on Mars, bitches.
#drunkposting

I have it on good authority that with enough pressure, time, and shine that turd will make one hell of a diamond

[Anima]

Of course I am not a conservative so perhaps I should have let one of them respond.

[robvalue]

KMaybe I'm oversimplifying it, but here are my thoughts. Please correct me if I'm being dumb.

If allowing the two parties to be of the same gender by law is impossible without also permitting unrelated stuff like marrying children, then there is a problem with the law that needs addressing first. It's blatantly absurd to me. I would hope that discussions are about this problem with the law, rather than if this problem justifies holding onto pointless discrimination.

I sincerely hope that the law makes more sense than this. I imagine groups of people who think that if you allow gay marriage, then the courts must accept the next proposal about marriage, regardless of what it is, without even reading it. That is the nonsense of the slippery slope argument.

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PS: the current rules are discrimination because they place a restriction on one of the parties that doesn't apply to the other party, without reason. If you call the two people A and B, then whoever you happen to label A can be of either gender, but then the gender of person B is restricted. Reverse who is A and who is B and you are now discriminating against person A.

So arguments against this need to show why there is a good reason for this arbitrary exclusion of certain combinations, not to try and shovel in a load of other changes which would apply to both parties as "the same principle".

[Anima]

Maybe I'm oversimplifying it, but here are my thoughts. Please correct me if I'm being dumb.

Not being dumb. Just did not know how it works. Remember the law does not care about what is right or wrong. The law is concerned with what is legal or illegal.

If allowing the two parties to be of the same gender by law is impossible without also permitting unrelated stuff like marrying children, then there is a problem with the law that needs addressing first. It's blatantly absurd to me. I would hope that discussions are about this problem with the law, rather than if this problem justifies holding onto pointless discrimination.

It is not impossible if the law is changed by the states themselves. The states may tailor the law to include and exclude various parties based on rational scrutiny. It becomes very difficult if nearly impossible when a fundamental right is established for marriage. Now any exclusions must be based on strict scrutiny. Furthermore the argument of the petitioners is that marriage is not procreation based. As I posted earlier a nonprocreation based definiton does allow for same sex marriage. But it also remove limitation on the number of partners that can join, the age of the participants, and the social status of those partners (brother marrying sister, father marrying daughter).

The general argument of the petitioners is that any limitation on marriage is pointless discrimination. Thus, they would argue that any of the marriages you consider "blatantly absurd" are just a result of your pointless discrimination. While the respondents argue that some discrimination is required for marriage and that the terms of that discrimination should be based on biological facts. (As expressed in my previous post a procreation centric definition of marriage limits the participants to 2, of the opposite sex, of at least pubescent age).

I sincerely hope that the law makes more sense than this. I imagine groups of people who think that if you allow gay marriage, then the courts must accept the next proposal about marriage, regardless of what it is, without even reading it. That is the nonsense of the slippery slope argument.

Unfortunately the first thing you will realize when you study law is the slippery slope is a reality. People due it all the time when trying to get out of a crime. "I did the same thing as him with just a little difference. He got off so I should too." As a fundamental right strict scrutiny would be required to limit the age, social relation, and number of participants to marriage. If the argument of the petitioners to dignity and security prevail than it may be said that child bride/groom, incestual, and polygamous marriages deserve dignity and security.

[Esquilax]

It is not impossible if the law is changed by the states themselves.  The states may tailor the law to include and exclude various parties based on rational scrutiny.  It becomes very difficult if nearly impossible when a fundamental right is established for marriage.  Now any exclusions must be based on strict scrutiny.  Furthermore the argument of the petitioners is that marriage is not procreation based. As I posted earlier a nonprocreation based definiton does allow for same sex marriage.  But it also remove limitation on the number of partners that can join, the age of the participants, and the social status of those partners (brother marrying sister, father marrying daughter).

Nonsense; marriage is already not procreative in this country, without removing any of the other limitations you've listed. Surely you're aware that sterile couples, older couples, or couples with no intention to procreate are also allowed to get married, and have been since the get-go? In fact, there is no clause or additional stipulation that one is obligated to have children anywhere in state marriage licenses; what you're proposing here is a slippery slope that we can already determine to be flatly false, because the concept you're saying will be removed with the addition of gay marriage never existed within the current model of marriage at all. You're proposing that there's a brake currently in place against a number of factors, when it's the work of but a moment to show that this brake does not exist.

The general argument of the petitioners is that any limitation on marriage is pointless discrimination.  Thus, they would argue that any of the marriages you consider "blatantly absurd" are just a result of your pointless discrimination.

I haven't much more than skimmed the argument of the petitioners, but if that's indeed what they argued then in turn I would argue that they were being overly broad and simplistic, and that it's more rational to consider limitations on a case by case basis, and determine whether they should stand or fall based on the factual benefits or detriments they may have, which the anti-gay marriage side cannot cogently provide.

 

While the respondents argue that some discrimination is required for marriage and that the terms of that discrimination should be based on biological facts. (As expressed in my previous post a procreation centric definition of marriage limits the participants to 2, of the opposite sex, of at least pubescent age).

However, your procreation centric definition of marriage contains no limits to the participant's fertility, nor does it contain even a hint of language toward that end. You are proscribing an attitude toward marriage that is directly contradicted by how it functions in practice. And if you want to talk about biological facts, I'd remind you that monogamy is not present anywhere in our makeup.

[Pyrrho]

I will add, regarding the "marriage as a fundamental right" argument:

Only Petitioners are making that claim.  Having just now reached the USA-as-Amicus's section, I think Attorney Verrilli makes a very good argument that this sounds in equal protection, not fundamental rights.  Of course, the heart of Petitioner's argument was equal rights as well.  I think if the court was to rule that a ban on gay marriage was an equal rights issue - which is far, far more likely than a ruling that it's a fundamental right - then there would be absolutely no problem at all regarding age.

I guess what I mean is, I never should have engaged in the argument about "would marriage-as-a-fundamental-right necessitate child marriage," because "marriage-as-a-fundamental-right" is an afterthought, and the real issue here is a particular restriction on marriage as violative of the Equal Protection clause

Regarding the equal protection argument.  A violation of equal protection is made most apparent by considering the qualifier and then removing it to see if the answer remains the same.  For example as regards to racial discrimination on marriage:

1.  Can a white man and white woman get married = yes
2.  Can a black man and black woman get married = yes
3.  Can a white man and black woman get married = no
4.  Can a black man and white woman get married = no

Now if we posit the question devoid of the discriminatory qualifier the answer must be the same otherwise it violates equal protection clause:

5.  Can a man and woman get married = yes/no (violates equal protection)

Applying the same method to a sexual orientation qualifier:

1. Can a straight man and straight man get married = no
2. Can a gay man and gay man get married = no
3. Can a straight man and gay man get married = no
4. Can a straight woman and straight woman get married = no
5. Can a lesbian woman and lesbian woman get married  = no
6. Can a straight woman and lesbian woman get married = no

Again we ask the question without the qualifier.  If the answer is the same than there is no violation of equal protection:

7.  Can a man and man get married = no (does not violation of equal protection)
8.  Can a woman and woman get married = no (does not violation of equal protection)
9.  Can the same gender marry = no (does not violation of equal protection)

There is no violation of equal protection.
...

You have worded it for your particular purposes.  Think of it this way:

1. Can a female person marry a man = yes
2. Can a male person marry a man = no.

Here we have a female person allowed to do something a male person in not allowed to do.

3. Can a male person marry a woman = yes
4. Can a female person marry a woman = no

Here we have a male person allowed to do something a female person is not allowed to do.

So we have discrimination.

To use your language:

Now if we posit the question devoid of the discriminatory qualifier the answer must be the same otherwise it violates equal protection clause:

5.  Can a person and woman get married = yes/no (violates equal protection)
6.  Can a person and a man get married = yes/no (violates equal protection)


Edited to add:


Or if you prefer this wording:

7.  Can a person and a person get married = yes/no (violates equal protection)

[Anima]

Nonsense; marriage is already not procreative in this country, without removing any of the other limitations you've listed. Surely you're aware that sterile couples, older couples, or couples with no intention to procreate are also allowed to get married, and have been since the get-go? In fact, there is no clause or additional stipulation that one is obligated to have children anywhere in state marriage licenses; what you're proposing here is a slippery slope that we can already determine to be flatly false, because the concept you're saying will be removed with the addition of gay marriage never existed within the current model of marriage at all. You're proposing that there's a brake currently in place against a number of factors, when it's the work of but a moment to show that this brake does not exist.

1. Anthropologically speaking (and in accordance with history within the United States) marriage was primarily an institution to establish the legitimate heir (procreation centric), particularly of nobility (http://en.wikipedia.org/wiki/Marriage#Re...tom_or_law). This is made more evident in that historically women were not allowed to own property in which case her property and security were determined by the inheritance of her child. Marriage served this same function unchanged in the US until the 1970s (http://en.wikipedia.org/wiki/Legitimacy_...ily_law%29) at which time marriage did not abandon its procreation centric definition, but was expanded to include illegitimate heirs.

2. Regarding marriage of infertility, elderly, and those with out the intention to procreate (a point brought up in the oar arguments by Ginsburg). Respondents stipulate inquiry into the procreative ability or intention of parties to marry would constitute a violation of 4th amendment rights to privacy. Respondents further state that any definition of marriage shall be over and under inclusive (http://definitions.uslegal.com/o/over-inclusive/), where procreative over inclusiveness allows for the legal marriage of infertile, elderly, and non-procreation intending parties. Respondent further emphasizes the Supreme court has held that over or under inclusivness in and of itself does not constitute invidious discrimination and a violation of the equal protection clause. Respondent also comments how a heterosexual couple in their elder years are still fertile (http://en.wikipedia.org/wiki/Pregnancy_over_age_50) and have natural conception.

3. As argued by respondent, the only right the government or states have in regards to marriage is due to the children. The government does not have a right to police private relationships unless said policing satisfies strict scrutiny. Strict scrutiny requires the government to have a compelling interest, which respondent stipulates the state's have in regards to children and population under marriage as procreation centric. Respondent further argues that were marriage to be adult centric and not procreation centric than the state could not approve or disapprove as the state would lack a compelling interest to interject in the private associations of people.

I haven't much more than skimmed the argument of the petitioners, but if that's indeed what they argued then in turn I would argue that they were being overly broad and simplistic, and that it's more rational to consider limitations on a case by case basis, and determine whether they should stand or fall based on the factual benefits or detriments they may have, which the anti-gay marriage side cannot cogently provide.

 
Indeed they are being overly broad and simplistic. But it may be stated that you are being unrealistic. To endeavor to go on a case by case basis is to say there is particular application of the law(s) and thus we should opt to act against equal protection for a more tailored approach (regardless of limited time and resources)

However, your procreation centric definition of marriage contains no limits to the participant's fertility, nor does it contain even a hint of language toward that end. You are proscribing an attitude toward marriage that is directly contradicted by how it functions in practice. And if you want to talk about biological facts, I'd remind you that monogamy is not present anywhere in our makeup.

How does it not. Legal age of marriage under a procreation centric definition is at minimum pubescent age or the age of fertility. I am not sure where you are coming up my attitude toward marriage as directly contradiction how it functions in practice (particularly as I have not state my stance on marriage, but have been referring to various arguments of the respondent and other legal scholars) or monogamy is not anywhere present in our makeup (http://en.wikipedia.org/wiki/Monogamy) it would seem that monogamy has been around with humans for sometime now.

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Regarding the equal protection argument.  A violation of equal protection is made most apparent by considering the qualifier and then removing it to see if the answer remains the same.  For example as regards to racial discrimination on marriage:

1.  Can a white man and white woman get married = yes
2.  Can a black man and black woman get married = yes
3.  Can a white man and black woman get married = no
4.  Can a black man and white woman get married = no

Now if we posit the question devoid of the discriminatory qualifier the answer must be the same otherwise it violates equal protection clause:

5.  Can a man and woman get married = yes/no (violates equal protection)

Applying the same method to a sexual orientation qualifier:

1. Can a straight man and straight man get married = no
2. Can a gay man and gay man get married = no
3. Can a straight man and gay man get married = no
4. Can a straight woman and straight woman get married = no
5. Can a lesbian woman and lesbian woman get married  = no
6. Can a straight woman and lesbian woman get married = no

Again we ask the question without the qualifier.  If the answer is the same than there is no violation of equal protection:

7.  Can a man and man get married = no (does not violation of equal protection)
8.  Can a woman and woman get married = no (does not violation of equal protection)
9.  Can the same gender marry = no (does not violation of equal protection)

There is no violation of equal protection.
...

You have worded it for your particular purposes.  Think of it this way:

1. Can a female person marry a man = yes
2. Can a male person marry a man = no.

Here we have a female person allowed to do something a male person in not allowed to do.

3. Can a male person marry a woman = yes
4. Can a female person marry a woman = no

Here we have a male person allowed to do something a female person is not allowed to do.

So we have discrimination.

To use your language:

Now if we posit the question devoid of the discriminatory qualifier the answer must be the same otherwise it violates equal protection clause:

5.  Can a person and woman get married = yes/no (violates equal protection)
6.  Can a person and a man get married = yes/no (violates equal protection)


Edited to add:


Or if you prefer this wording:

7.  Can a person and a person get married = yes/no (violates equal protection)

The organization you propose serves as a way to determine discrimination according to gender, but not according to orientation (as evidenced by the stripping of gender as the qualifier and not of sexual orientation). Under the example you provide male person and female person are both permitted and prohibited from doing the same thing. Which is marry a person of the opposite gender and not marry one of their own gender. This is not a violation of equal protection in regards to gender (which serves as your qualifier). Furthermore, when stripping out the qualifier you must strip from all parties not just the first party.

[robvalue]

Thanks for the explanations

Long post

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If there is not currently any law regarding intention/ability to procreate, why is this being brought up by anyone? I got married fully intending to never have children, and I won't. Or is there actually a law about this? If there is, it needs scrapping as it is fucking ludicrous. I'm in England so it may be different, but is someone going to tell me that if I announced my intention never to have children I wouldn't be allowed to marry? I find this very hard to believe. And anyhow, same sex couples can still have children via surrogates or donors. So what difference does it make? Does the law say they not only have to have children, but they must be a 100% DNA match?! How exactly was this enforced before DNA testing I wonder?

The class of people who can currently get married are adult men and adult women. It's just that some combinations within that class are being excluded for no good reason. If the law doesn't recognize this as discrimination, then it should, in my opinion. To say there is reason for them to be different genders is to say that the two people are not entering as equal parties to the marriage, that they somehow are fulfilling different roles which require specific genders. This is archaic religious nonsense and should have nothing to do with secular marriage, in my opinion. Like I said, you're discriminating against one party, whichever way round you look at it. You're not applying a rule that is the same for every individual, so it is discrimination. Or you could look at it that you are discriminating against pairs of people, for no good reason. They both individually meet the criteria to marry another person, but together they get rejected. However you cut it, it's blatantly wrong. I've not heard anything like a decent argument as to why the status quo should be kept.

I'm sure the law does not totally agree with me, but that is plain as day as far as I'm concerned. The age of the participants is not involved in any of this. Sure, we can examine if it is still a good idea to keep an age minimum. But this is not discrimination because the rule applies equally to any person who wants to get married, for their own protection. It applies to both genders. And yes, it's there for an obviously good reason. I don't understand why anyone would think otherwise, except for bogus problems with the law. Children still need protecting from making commitments they may not yet be mentally capable of making. Whether or not they can have children has nothing to do with it, or shouldn't.

Again, I'm sure the law is way more complex than I can comprehend. But to me the facts of this are really simple and the next step is straightforward. Why on Earth would removing arbitrary discrimination mean you have to re-evaluate other factors that aren't discriminatory? And even if you do, age clearly stands up to any well adjusted person, so it's done. (In the simple world in my head). I really can't see how this is a "precedent" to anything else. If someone thinks the age needs to be changed, well that's a separate issue for them to bring up. Why tag it onto this debate? It smacks of desperation to me (of any legal party bringing up this issue.)

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By the way Anima, I'm not debating your opinion here. I don't even know what your opinion is. I'm asking for clarification about what you are saying the law is, and my outrage if it is as you say it.

If you want to share your opinion, please do If you are against it I'll happily debate your reasons.