(May 30, 2015 at 11:48 pm)Anima Wrote: ...

(May 30, 2015 at 11:19 pm)Pyrrho Wrote: 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).

Yes.  It is discrimination based on gender.  Since marriage does not require actual sexual activity, it is not, in itself, about sexual orientation.

(May 30, 2015 at 11:48 pm)Anima Wrote:  Under the example you provide male person and female person are both permitted and prohibited from doing the same thing.

No they are not.  Male persons are prohibited from marrying male persons, but female persons are not prohibited from marrying male persons.  So there is not the same prohibition for both.

Also, female persons are prohibited from marrying female persons, but male persons are not prohibited from marrying female persons.  So, again, there is not the same prohibition for both.

(May 30, 2015 at 11:48 pm)Anima Wrote:  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.

That makes no difference.  Here it is again, with the qualifier specified and then striped from all parties:

1. Can a female person marry a male person = yes
2. Can a male person marry a male person = 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 female person = yes
4. Can a female person marry a female person = 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 a person get married = yes/no (violates equal protection)

(May 31, 2015 at 6:52 am)robvalue Wrote: 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?

As stipulated in a previous post. Anthropologically and legally speaking the purpose of marriage was to determine the legitimate heir for matters of legal inheritance. The reasons for this vary and may be as simple as the average person only living into their 30s up until about 100 years ago to as complicated as avoiding wars of legitimacy to royal heirs. Thus, it has always been held in cultures throughout the world that marriage is in regards to offspring or procreation centric.

Respondents argue that the only reason the state has any interest in the subject of marriage is in its procreative effects. Since the authority of the state governs the populace the populace of the state is quintessential to its being. Now the fact that you in particular do not want to and never intend to have children but still got married would mean you fell under the overinclusiveness of the law. Laws must be as general as possible while still be specific enough to not unduly burden everyone. The supreme court has ruled that if a law is not narrowly tailored, but does not impose undue burden than it is overinclusive and does not violate equal protection. For example, Affirimative Action was primarily meant to encourage racial integration. The primary benficiaries of affirmative action has been white women who are classified as minorities under the women class though there is not much history of white women be under privileged.

The law does not require you to have children (even in England). Because, fertility of person could not be inquired or verified early on. Regarding your specific paternity question (http://en.wikipedia.org/wiki/Legitimacy_...29#History)

"In English common law, Justice Edward Coke in 1626 promulgated the "Four Seas Rule" (extra quatuor maria) asserting that, absent impossibility of the father being fertile, there was a presumption of paternity that a married woman's child was her husband's child."

Think of it like getting pre-approved to bypass security I would recommend reading up on English common law regarding marriage. It is rather extensive and very interesting. Furthermore it serves as the foundation for American common law on the subject.

(May 31, 2015 at 6:52 am)robvalue Wrote: 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.

1. The law allows for discrimination under reasonable, hightened, or strict scrutiny. It is recognized in law that every law is not meant to include every person in them. So to allow for tailoring of the laws the Courts have determined thresholds which must be met to justify a given discrimination.

2. In regards to marriage the sufficient level for discrimination is called rational basis. Rational basis states that the discrimination does not violate the equal protection clause and is no unjustly discriminatory if the state has a legitimate interest and the discrimination is reasonably related to the furtherance of that interest. In the case respondents state their only interest is in its procreative capacity to produce offspring/population and the discrimination is reasonably related to this interest. Furthermore this reasonable relation need not be universe changing, profound, or undeniable. It may be of the most tenuous reasonable relation (this is the rule of the court to keep from requiring the court to review every reason for every law). Which is to say it is not for no good reason, but for a recognized good reason (which you may or may not agree with).

(May 31, 2015 at 6:52 am)robvalue Wrote: 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.

The age of the participants become involved when you argue a fundamental right. One of the first things that will happen if a fundamental right is established is that the limits of that right will have to be defined. Who does it apply to, how old do they have to be for it to apply, when does it apply, when does it not apply, etcetera. Once initial definition is made it will be tried which will lead to litigation on the subject to test and verify the definition. Fundamental rights apply to children as well as adults so if marriage is a fundamental right it will apply to children. Furthermore the law does not prohibit children from entering into contracts. In fact it is bias in favor of children that contract, because the law allows the child to ignore the contract after entering while the adult cannot.

If we wish to say children may not exercise a fundamental right to marriage it will have to satisfy strict scrutiny. Under strict scrutiny the state must have a compelling interests, the discrimination must be narrowly tailored, the discrimination must be least restrictive, and the discrimination must be related to the interests. If we further state that marriage is not procreation centric, but is legitimization of relationships or security centric than what is the state interest in keeping children out? We do not want the relationship between children and adults to be legitimized or secure?

In short, resistance to children engagement in marriage is due to a procreation centric view of marriage, which petitioners are arguing against. Under a legitimization or security centric view any prohibition on children entering marriages with adults would fail strict scrutiny (which it must now pass to withhold a fundamental right) because the only interest the State has in the marriage in regards to children is in the protection of the children, which marriage will foster as it is security centric.

(May 31, 2015 at 6:52 am)robvalue Wrote: 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.)

Again, the original discrimination was not arbitrary, it was meant to serve a particular purpose. What is to be determined is if that purpose was valid and if that purpose is still served without that particular discrimination in place. Also, as expressed above, age would not clearly stand up as a discrimination in marriage that will continue under a fundamental rights non procreation centric definition.

(May 31, 2015 at 6:52 am)robvalue Wrote: 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.

We can get to that eventually. I am presently more interested in arguing the court arguments than my own

I appreciate your explanations

If anyone brings "it makes Jesus cry" in here though there will be rambunctious activities.

Quote:The primary benficiaries of affirmative action has been white women who are classified as minorities under the women class though there is not much history of white women be under privileged. 

....wait.......what!?!  I think those white women who had to wait to get the right to vote...for half a century longer than a black man...might disagree....

(May 31, 2015 at 1:37 pm)Rhythm Wrote:

Quote:The primary benficiaries of affirmative action has been white women who are classified as minorities under the women class though there is not much history of white women be under privileged. 

....wait.......what!?!  I think those white women who had to wait to get the right to vote...for half a century longer than a black man...might disagree....

While black men were given the right to vote as part of the 15th Amendment in 1870 following reconstruction the act of voting was prohibited to them extensively by poll taxes, reading tests, and jim crow laws requiring the passing of the Voting Right act in 1965.

"United States Supreme Court decisions in the late nineteenth century interpreted the amendment narrowly. From 1890 to 1910, most black voters in the South were effectively disenfranchised by new state constitutions and state laws incorporating such obstacles as poll taxes and discriminatory literacy tests, from which white voters were exempted by grandfather clauses. A system of whites-only primaries and violent intimidation by white groups also suppressed black participation." (http://en.wikipedia.org/wiki/Fifteenth_A...nstitution)

While women gained sufferage by the 19th Amendment in 1920, which is around the same time the black men were finally able to vote in truth (with exceptions for various hangings and attacks against blacks at polling stations which white women did not endure).

"White supremacists such as the Ku Klux Klan (KKK) used paramilitary violence to prevent black people from voting. A number of blacks were killed at the Colfax massacre of 1873 while attempting to defend their right to vote. The Enforcement Acts were passed by Congress in 1870–1871 to authorize federal prosecution of the KKK and others who violated the amendment.[38] However, as Reconstruction neared its end and federal troops withdrew, prosecutions under the Enforcement Acts dropped significantly. In United States v. Cruikshank (1876), the Supreme Court ruled that the federal government did not have the authority to prosecute the perpetrators of the Colfax massacre because they were not state actors.[39][40][41]

Congress removed a provision against conspiracy from the acts in 1894, weakening them further.[40] In 1877, Republican Rutherford B. Hayes was elected president after a highly contested election, receiving support from three Southern states in exchange for a pledge to allow white Democratic governments to rule without federal interference. As president, he refused to enforce federal civil rights protections,[42] allowing states to begin to implement racially discriminatory Jim Crow laws. A Federal Elections Bill was successfully filibustered in the Senate..[43]
Post-reconstruction

From 1890 to 1910, poll taxes and literacy tests were instituted across the South, effectively disenfranchising the great majority of blacks. White-only primary elections also served to reduce the influence of blacks in the political system. Along with increasing legal obstacles, blacks were excluded from the political system by threats of violent reprisals by whites in the form of lynch mobs and terrorist attacks by the Ku Klux Klan.[35]" (http://en.wikipedia.org/wiki/Fifteenth_A...nstitution)

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(May 31, 2015 at 1:18 pm)robvalue Wrote: I appreciate your explanations

If anyone brings "it makes Jesus cry" in here though there will be rambunctious activities.

Ha ha! Agreed!!

I don't think that recounting the woes of african americans will actually help to argue that women were not under privileged, that they do not have that history - and no one claimed that african americans weren't under privileged...so.......  

I have to ask..was that part of a copy paste from the courts or was it your personal insight?
(the initial comment, I mean..)

(May 30, 2015 at 11:48 pm)Anima Wrote: 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.

First of all, it's interesting to see that now you acknowledge that the definition of marriage can be altered or expanded without allowing every other kind of expansion; could you tell us why the expansion you mention doesn't fall victim to the slippery slope, but the other does?

Secondly, marriage has changed quite a bit more than just that one expansion, and it would not only be remiss not to take the current social climate surrounding it into account, it would actually be an argument from tradition; in fact, that's one of the larger overarching problems with your contention to begin with. "That's the way we've always done it," does not entail that that's the way it should be done, nor does it preclude a selective shift in the way we approach the topic, as you've claimed that it does; if we take away the procreative focus of marriage, if I were to fully accept your premises, that does not prohibit us from replacing that focus with something more in keeping with the current conception of marriage that robs you of your slippery slope. Even if your premises are correct, your conclusion doesn't follow.

Another thought occurs; considering your previous claim that marriage is for procreation, some of the things you listed in your gay marriage slippery slope stick out as odd. Why would polygamy be on that list, if marriage is for procreation? Multiple wives means multiple pregnancies, which only serves to enhance what you seem to see as the definition of marriage, so why preclude it? Oh, and children reach the biological age where they can bear children before the age of consent, so why would you be against child marriage, given your previous premises?

These are all objections I could use, cheap shots I could take, were I to accept your premise, but I don't particularly want to because I don't think they serve either of us very well; it's plain to see that, in fact, there are more than one factor involved in determinations of marriage, for both our positions. I suggest that we both accept that and move on; this would require that you drop this false dichotomy that either marriage has this procreative focus, or no focus at all. In practice, we both understand that there is a more complicated matrimonial metric involved.

Quote: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.

Wouldn't a consistent application of this over-inclusiveness permit gay marriage under the same principles? If you can't inquire into the procreative intentions or ability of straight couples without violating their fourth amendment rights, then the same applies to gay couples; or do their fourth amendment rights not matter in this equation? Gay people may not be able to literally procreate in the first possible way we might think of, but they can still have and raise offspring, via surrogacy or adoption, so the assumption that they just cannot procreate holds no value, especially since we don't question the legitimacy of straight adoptive or surrogate parents. There is simply no argument against this point that doesn't special plead in some way.

Quote: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.  

Which still bears out an inconsistency regarding adoption and so on; even under your premises, gay couples can still have and raise children in a way that you would accept if the couple were straight. If a straight couple raising an adopted child would satisfy your definition of a procreative marriage, then there is no reason to exclude a gay couple from that category. If a straight couple raising an adopted child would not satisfy your definition then you are contradicting the way the law operates in these cases, and bringing into question the legitimacy of adoption practices. Either way, you're stuck.
 

Quote: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)

By "case by case" I don't mean individual cases, though; I mean individual legal terms. Essentially, you'd have gay marriage considered on its own terms, by its own merits, and the same would be true of polygamous marriages, etc etc, and you'd get different determinations based on the benefits and detriments inherent to each of them, rather than treating them all as one homogenous slippery slope, which is disingenuous given that it's easy to see the differences between them.

(May 31, 2015 at 2:07 pm)Rhythm Wrote: I don't think that recounting the woes of african americans will actually help to argue that women were not under privileged, that they do not have that history  - and no one claimed that african americans weren't under privileged...so.......  

I have to ask..was that part of a copy paste from the courts or was it your personal insight?
(the initial comment, I mean..)

The point was simply to say that affirmative action was intended to foster racial integration of African Americans who have suffered and been far more under privileged than Anglo Women who have been the primary beneficiaries of affirmative action due to over inclusiveness. That was the point being made.

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(May 31, 2015 at 2:25 pm)Esquilax Wrote: [quote='Anima' pid='954914' dateline='1433044095']
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.

(May 31, 2015 at 2:25 pm)Esquilax Wrote: First of all, it's interesting to see that now you acknowledge that the definition of marriage can be altered or expanded without allowing every other kind of expansion; could you tell us why the expansion you mention doesn't fall victim to the slippery slope, but the other does?

The expansion expressed did not divert from the procreation centric definition. Rather it expanded the procreation centric definition to incorporate all offspring. As I stated in the bold portion of my original quote.

(May 31, 2015 at 2:25 pm)Esquilax Wrote: Secondly, marriage has changed quite a bit more than just that one expansion, and it would not only be remiss not to take the current social climate surrounding it into account, it would actually be an argument from tradition; in fact, that's one of the larger overarching problems with your contention to begin with. "That's the way we've always done it," does not entail that that's the way it should be done, nor does it preclude a selective shift in the way we approach the topic, as you've claimed that it does; if we take away the procreative focus of marriage, if I were to fully accept your premises, that does not prohibit us from replacing that focus with something more in keeping with the current conception of marriage that robs you of your slippery slope. Even if your premises are correct, your conclusion doesn't follow.

Regarding the argument of the social climate:

1. Justice Kennedy states in the oral arguments, in terms of application of the procreation centric application for numerous millennia sufficient time has not past to verify if the results of social studies actually play out in social reality regarding same sex unions. If petitioners wish to state that there is insufficient time for the states to wait to see if the studies play out, then the petitioners may not submit the studies as evidence due to further verification. It is not considered invidious discrimination for the some States to opt to wait and see the impact of same sex unions in the states which have approved it.

2. Respondents stipulate in their amicus brief, if there is a change in the climate/condition should be manifest through the democratic process or state legislatures. Opinion polls are not the same as political polls. Now if the climate has changed in such a manner that society approves of same sex unions than that change will manifest in the democratic process and need not be overridden by the courts. (In this case it may be argued that the ratification of same sex marriage in Ireland hurts the petitioners case for a fundamental right in the US. As it may serve as an example where the democratic process may make the change in accordance with the respondents argument.)

(May 31, 2015 at 2:25 pm)Esquilax Wrote: Another thought occurs; considering your previous claim that marriage is for procreation, some of the things you listed in your gay marriage slippery slope stick out as odd. Why would polygamy be on that list, if marriage is for procreation? Multiple wives means multiple pregnancies, which only serves to enhance what you seem to see as the definition of marriage, so why preclude it?

As stipulated in respondents amicus brief, Under the procreative centric definition of marriage the state may argue under rational basis that the quantity of persons to a marriage need meet the minimum biological threshold for the creation of offspring and need not exceed this number. Thus, the number of participants in a marriage are two. Under the fundamental right adult centric or security centric definition of marriage any prohibition upon marriage must past strict scrutiny to which the state may not say it has a compelling interest in the limitation of persons wishing to engage in the marriage contract with one another or for the sake of security. Thus the states polygamy and bigamy laws would not stand strict scrutiny under a fundamental right adult or security centric definition. Petitioners offer an utterly ridiculous oral argument response when asked about polygamous marriages by stipulating the states will prohibit by saying that is not how marriage has been defined and it creates confusion to redefine it as such (basically the same argument that could be used against same sex marriage).

(May 31, 2015 at 2:25 pm)Esquilax Wrote: Oh, and children reach the biological age where they can bear children before the age of consent, so why would you be against child marriage, given your previous premises?

As expressed in previous posts. Procreative centric definition of marriage would reasonably limit marriage to pubescent age as a lower bound (excluding children under the age of about 13). Further restriction by states for state sanctioned marriage need only pass rational basis. Thus the state must have a legitimate interest and the restriction needs to be reasonably related to that interest. In this case the state may claim to have a legitimate interest in insuring that parents are of sufficient intellectual maturity to properly rear offspring and thus may reasonably support a further restriction upon marriage beyond mere pubescent age to an age of intellectual maturity (18).

Under a fundamental right relationship recognition or security centric definition of marriage restriction must past strict scrutiny and marriage does not implicitly imply consent to sexual activity. Since children may enter in to contracts (particularly contracts to there benefit) the state does not have a compelling interests in protecting children from having their relationships with adults recognize particularly if those child/adult relationships once recognized are held to convey additional security and may not be said to imply sexual consent. As such adults may marry children and parents may marry their own children to gain further state recognition of those child/adult relationships.

(May 31, 2015 at 2:25 pm)Esquilax Wrote: These are all objections I could use, cheap shots I could take, were I to accept your premise, but I don't particularly want to because I don't think they serve either of us very well; it's plain to see that, in fact, there are more than one factor involved in determinations of marriage, for both our positions. I suggest that we both accept that and move on; this would require that you drop this false dichotomy that either marriage has this procreative focus, or no focus at all. In practice, we both understand that there is a more complicated matrimonial metric involved.

Again these are not my arguments. These are the arguments of the parties to the suit. Petitioners are arguing the existence of a fundamental right and definition of marriage that is recognition or security centric. Respondents are arguing there is no fundamental right to marriage and definition of marriage that is procreation centric.

(May 31, 2015 at 2:25 pm)Esquilax Wrote: Wouldn't a consistent application of this over-inclusiveness permit gay marriage under the same principles? If you can't inquire into the procreative intentions or ability of straight couples without violating their fourth amendment rights, then the same applies to gay couples; or do their fourth amendment rights not matter in this equation? Gay people may not be able to literally procreate in the first possible way we might think of, but they can still have and raise offspring, via surrogacy or adoption, so the assumption that they just cannot procreate holds no value, especially since we don't question the legitimacy of straight adoptive or surrogate parents. There is simply no argument against this point that doesn't special plead in some way.

It appears that you are miss understanding what overinclusivness means. Regarding violation of 4th amendment rights, respondents stipulate the state may not inquire. This is not to say the state cannot legislate based on known biological facts. As stipulated by respondents, basing marriage upon a procreation centric definition rationally limits the marriage contract to 2 parties of opposite genders. While the state may not inquire as to the intention of those parties to have offspring (nor would that intention guarantee no offspring would arise) the state is well aware that the copulation of 2 persons of opposite genders may result in offspring (intended or not), which the state has a legitimate interest in protecting.

In like manner the state may not inquire if same sex couples which to have children or not. However, the state may again recognize that the biological fact is that no offspring shall arise from some union without the intervention of a third party (adoption, surrogacy, or IVF). Once more under rational basis the state may then say that marriage is to apply to all unions of 2 persons which have a biological possibility (not to be confused with a probability) of resulting in offspring without the inclusion of a third party. This definition would be still be overinclusive to allow infertile couples and elderly couples into the definition because they have a possibility even though they do not have a probability.

(May 31, 2015 at 2:25 pm)Esquilax Wrote: Which still bears out an inconsistency regarding adoption and so on; even under your premises, gay couples can still have and raise children in a way that you would accept if the couple were straight. If a straight couple raising an adopted child would satisfy your definition of a procreative marriage, then there is no reason to exclude a gay couple from that category. If a straight couple raising an adopted child would not satisfy your definition then you are contradicting the way the law operates in these cases, and bringing into question the legitimacy of adoption practices. Either way, you're stuck.

 

Not stuck at all.

As stated by respondents in the oral arguments. The subject of adoption is a different state interest and is not tied to the subject of marriage. The goal of marriage in accordance with the state is to bind whenever possible offspring to their biological parents. Thereby establishing liability and protections of that child to a citizen actor of the state. In terms of adoption the child for whatever reason has already been separated from their biological parents. At such time the state may choose an agent to act on its behalf as one to aid in the raising of the child.

The marriage of a straight couple who has adopted is not rendered marriage because of the adoption. The hetero couple is able to marry under the procreation centric definition of marriage (and if infertile under the overinclusiveness of said definition). Further more the couple or a particular party is determined to be suitable agent on behalf of the state in the rearing of a child separated from their biological parents. The presence of the second determination does not imply the first any more than the presence of the first implies the second.

(May 31, 2015 at 2:25 pm)Esquilax Wrote: By "case by case" I don't mean individual cases, though; I mean individual legal terms. Essentially, you'd have gay marriage considered on its own terms, by its own merits, and the same would be true of polygamous marriages, etc etc, and you'd get different determinations based on the benefits and detriments inherent to each of them, rather than treating them all as one homogenous slippery slope, which is disingenuous given that it's easy to see the differences between them.

Ha ha!! Respondents agree with you!! As it is easy to see the difference between them.

However the petitioners do not. As argued by petitioners, creation of different classes of marriage for homosexual and heterosexual couples creates a second class of citizens where by one class is denied equal recognition, dignity, and security.

Quote:The point was simply to say that affirmative action was intended to foster racial integration of African Americans who have suffered and been far more under privileged than Anglo Women who have been the primary beneficiaries of affirmative action due to over inclusiveness. That was the point being made.

.
....lol, good god I'm just glad that it was you, and not some part of a supreme court transcript....  

(May 29, 2015 at 12:38 pm)Anima Wrote: 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.

Your second example doesn't count all the combinations properly. In the first example, the underlying assumption was that men were marrying women, and so that was fixed, but the race of the person(s) involved was the aspect being combined. So you have four people: white man (wm), white woman (ww), black man (bm), black woman (bw). If we count all the combinations, without applying the assumption that only men can marry women, then we get the following:

1. wm marries wm = no
2. wm marries ww = yes
3. wm marries bm = no
4. wm marries bw = no
5. ww marries ww = no
6. ww marries bm = no
7. ww marries bw = no
8. bm marries bm = no
9. bm marries bw = yes
10. bw marries bw = no

If you apply the assumption that only men can marry women, then we can remove 6 of these and you get the original set you came up with:

1. wm marries ww = yes
2. wm marries bw = no
3. ww marries bm = no
4. bm marries bw = yes

So yes, the inequality is clear when it is just about men marrying women and the inequality aspect being measured is sexuality.

In your second example, you don't count this correctly. Like the first example, you have four people: straight man (sm), straight woman (sw), gay man (gm), and gay woman (gw). If we count all the combinations, we get the following:

1. sm marries sm = no
2. sm marries sw = yes
3. sm marries gm = no
4. sm marries gw = yes
5. sw marries sw = no
6. sw marries gm = yes
7. sw marries gw = no
8. gm marries gm = no
9. gm marries gw = yes
10. gw marries gw = no

The only problem is, this time we aren't making an assumption that only men can marry woman. In fact, that is the specific aspect we are trying to measure for an inequality, so it makes no sense to remove any of the options like you did. You removed the four instances where a man was marrying a woman, regardless of their sexuality, which are the only four instances where there was a "yes" (because in all circumstances, men can marry women, even if the man is gay and the woman is straight, or both the man and the woman are gay, etc.). By removing these instances, you are hiding the obvious inequality that presents itself.

Just as there was an inequality where only white men could marry white women, and only black men could marry black women, so there is an inequality where only men can marry women.