Supreme Court Same Sex Marriage Argumet

[Cinjin]

good thread.

I kept wanting to add my thoughts, but someone kept nailing them as I read on.
Additionally, it's nice to see a Christian arguing his position without blatantly throwing his religion in everyone's face.

I like it.

[Anima]

Tiberus and Pyrrho. If you would be so kind as to let one response speak to both.

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)

Discussion was not made regarding same and opposite sex marriage at the time of the Loving V. Virginia was decided which is why I did not included in the racial section.

As stipulated by the respondents in the current case, at the time of Loving V. Virginia it was illegal for couples to engage intimacy outside of marriage. The law contested did not prohibit interracial marriage (in fact there were more than 640 interracial marriages performed in Virginia that year) but denied the couple once married the right to engage in intimate relations due to the illegality of miscegenation. As such, Loving V. Virginia does not identify a fundamental right to marriage, but reaffirms 4th amendment protections to the right of privacy and private association, which was once reaffirmed supra in Lawrence V Texas for all couples choosing to engage in private intimate acts.

Both of you are right in that I did not discuss marriage to the opposite gender as it is not being argued that is illegal. What is being argued is the prohibition against same sex marriage is illegal. Regarding Equal protection analysis stating men may do what women may not and women may do what men may not as stated by respondents, the state utilized a procreation centric definition of marriage which recognized the inherent biological reality that procreation is achieved by the intimate interaction between opposite genders regardless of orientation. As stated by the supreme court in previous cases, (think public restrooms) discrimination based on biological realities does not constitute invidious discrimination or a violation of the equal protection clause.

Respondents go on to stipulate, under the states procreation centric definition of marriage prohibition against same gender satisfies rational basis test as the state has a legitimate interest in marriage due to the offspring and the discrimination is reasonably related to the interest of the state in marriage with procreative potentiality without third party intervention. Furthermore, a prohibition is not held to be unequal if applied to both genders. The prohibition is against marriage to the same gender. As such the gender which a particular is prohibited from is dependent on their own gender, but both genders are equally prohibited from marrying their own gender and may not be said to constitute gender discrimination by prohibition tailored to recognize inherent biological differences.

(Sort of like saying a prohibition against men entering women locker rooms or vice versa would be worded as being illegal for a person to enter opposite sex locker rooms is dependent on the biological reality of the actor, but applies to both genders equally in prohibiting from entering a locker room which is not their own inherent biological gender.)

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good thread.

I kept wanting to add my thoughts, but someone kept nailing them as I read on.  
Additionally, it's nice to see a Christian arguing his position without blatantly throwing his religion in everyone's face.  

I like it.

I am really glad to hear it.

I thought it would be an interesting topic to most but when this thread took off like a rock I had some doubts

[paulpablo]

good thread.

I kept wanting to add my thoughts, but someone kept nailing them as I read on.  
Additionally, it's nice to see a Christian arguing his position without blatantly throwing his religion in everyone's face.  

I like it.

To me (someone who hasn't studied law) it just looks like intense usage of legal jargon to try and justify indirect discrimination towards homosexuals.

I slightly understand that if you loosen up the freedom to marry too much than this means that you could end up with adults marrying children, but to say that homosexuals can't get married because if we do that then that means we have to let children get married doesn't seem like a very versatile way of doing things.

I'm sure there was a point when homosexuals couldn't join the army, now they can join the army, that happened and no one said "Ok now the gays can join it means we have to let 3 year olds join the army."

I realize this post may have dumbed down the thread slightly and I didn't include the "can x marry y = yes/no (violates equal protection)" that seem to be aimed at making some sort of a point that I don't understand.

[robvalue]

No, I'm totally with you. I feel like that is exactly what is going on. We have old, stupid discriminatory rules that need to go. We also have old, non discriminatory rules that are there for good reason. You can review the reason if you want, and it's still a good reason. Any sort of law which can't treat these as separate issues is fucked, in my opinion. I would really hope that indeed it can treat them as separate, but being law illiterate I'd have to rely on others to tell me that. The efforts to show that the gender thing isn't discrimination are not in any way convincing me I'm afraid. The point of equality, surely, is to allow as much fairness and freedom as possible while keeping everybody safe and stopping harm. Allowing same genders to marry gives more freedom, and does no damage to anyone (bollocks arguments that I'm happy to dismember notwithstanding). It's not changing what marriage is even, or the people who are allowed to marry. It's simply removing a pointless rule disallowing certain combinations of eligible people. Allowing children to marry causes obvious harm, by giving "freedom" to those not deemed mature enough to use it wisely. Of course, the age minimum is arbitrary and not perfect, but it's a case of coming up with the best overall rule, and all of this has fuck all to do with age.

I mean, it's almost sounding like, "Computer says no. Even though you and I understand that a minimum age and arbitrary gender restrictions are unrelated, we must entangle them both because that's how the law works." It seems those in the legal battle who are against it are trying to manipulate the law to bring up barriers, so that they don't have to fall back on their stupid bigoted "arguments".

[TheRealJoeFish]

I mean, it's almost sounding like, "Computer says no. Even though you and I understand that a minimum age and arbitrary gender restrictions are unrelated, we must entangle them both because that's how the law works." It seems those in the legal battle who are against it are trying to manipulate the law to bring up barriers, so that they don't have to fall back on their stupid bigoted "arguments".

I hope I've done at least a decent job of suggesting that the law, as it currently is, has a clear mechanism for delineating these things: consent.  I think one can at least argue (without making any glaring logical errors) that the two issues (gay marriage/child marriage) may be too closely entangled to separate by using Constitution (rather than with, say, state statutory law), but I simply think that one who makes such an argument is mistaken.

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And I'm still planning on proceeding to different parts of the oral argument, Anima! (... when I get time!)

[Anima]

I mean, it's almost sounding like, "Computer says no. Even though you and I understand that a minimum age and arbitrary gender restrictions are unrelated, we must entangle them both because that's how the law works." It seems those in the legal battle who are against it are trying to manipulate the law to bring up barriers, so that they don't have to fall back on their stupid bigoted "arguments".

I hope I've done at least a decent job of suggesting that the law, as it currently is, has a clear mechanism for delineating these things: consent.  I think one can at least argue (without making any glaring logical errors) that the two issues (gay marriage/child marriage) may be too closely entangled to separate by using Constitution (rather than with, say, state statutory law), but I simply think that one who makes such an argument is mistaken.

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And I'm still planning on proceeding to different parts of the oral argument, Anima!  (... when I get time!)

Great!! I look forward to it!! We are only on the first topic of fundamental rights!!

I just read something very interesting, summarizing the author he states:

A single parent should love marriage to be a fundamental right that is recognition or security centric. Under such a criterion the parent may consent to marry their own child, not out of a sense of perversion, but out of a sense of financial security. In consenting to marry their own child they will gain further recognition and security conferred by the state, by being able to claim income for state benefits and taxes jointly. As the financial cutoff for many benefits and tax breaks are higher for married couples and the child has no income to speak of, effectually cutting joint income in half, a no longer single parent now married to their child will be entitled to greater benefits and tax breaks than if filing single or marrying a person with actual income.

I never thought of it that way.

[The Grand Nudger]

Probably because you have a brain in your head.

[Anima]

To me (someone who hasn't studied law) it just looks like intense usage of legal jargon to try and justify indirect discrimination towards homosexuals.

I slightly understand that if you loosen up the freedom to marry too much than this means that you could end up with adults marrying children, but to say that homosexuals can't get married because if we do that then that means we have to let children get married doesn't seem like a very versatile way of doing things.

I'm sure there was a point when homosexuals couldn't join the army, now they can join the army, that happened and no one said "Ok now the gays can join it means we have to let 3 year olds join the army."

Actually gays could join the military the whole time. I believe the distinction is they may now "openly" serve in the military. Furthermore, joining the military is not a fundamental right. It is a civic duty, which may be compelled is necessary (see the Vietnam draft) upon threat of imprisonment and even execution.

As argued by respondents, the procreation centric definition of marriage was never meant to be discriminatory towards homosexuals. It arose in response to a basic biological reality that the intimate relations between opposite genders (regardless of sexual orientation) could and commonly would have extenuating repercussions which must be dealt with.

As argued by Alito, there been various societies which had marriage and did not frown upon homosexuality. Those same societies while having the presence and acceptance of both did not consider it discriminatory to not include homosexuals within the definition of marriage. It does not then stand to reason that this particular society, which has had a specific definition of marriage for hundreds of years, is suddenly discriminatory.

No, I'm totally with you. I feel like that is exactly what is going on. We have old, stupid discriminatory rules that need to go. We also have old, non discriminatory rules that are there for good reason. You can review the reason if you want, and it's still a good reason. Any sort of law which can't treat these as separate issues is fucked, in my opinion. I would really hope that indeed it can treat them as separate, but being law illiterate I'd have to rely on others to tell me that. The efforts to show that the gender thing isn't discrimination are not in any way convincing me I'm afraid. The point of equality, surely, is to allow as much fairness and freedom as possible while keeping everybody safe and stopping harm. Allowing same genders to marry gives more freedom, and does no damage to anyone (bollocks arguments that I'm happy to dismember notwithstanding). It's not changing what marriage is even, or the people who are allowed to marry. It's simply removing a pointless rule disallowing certain combinations of eligible people. Allowing children to marry causes obvious harm, by giving "freedom" to those not deemed mature enough to use it wisely. Of course, the age minimum is arbitrary and not perfect, but it's a case of coming up with the best overall rule, and all of this has fuck all to do with age.

I mean, it's almost sounding like, "Computer says no. Even though you and I understand that a minimum age and arbitrary gender restrictions are unrelated, we must entangle them both because that's how the law works." It seems those in the legal battle who are against it are trying to manipulate the law to bring up barriers, so that they don't have to fall back on their stupid bigoted "arguments".

"The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be." - Raymond Chandler

The simple way of putting it is that laws are interrelated. You cannot change some without having various repercussions and law suits to hash out the various details. The rational behind the law and from rulings is open to nearly every other situation under the law. While it may be easy to say do something in this particular case and do not let it apply to another you will have to give reason why no other case can use that reasoning, as that case shall serve as precedence by others in similar and dissimilar cases, which share the same reasons. Or you will render the law hypocritical and unjust. Where it would not mean what it states because we can rule differently in one case based on how we feel vs another.

As argued by respondents, quoting Justice Breyer in US V. Windsor, "it is the limitation to marriage to opposite couples that has always been thought fundamental". Simple argument can be made in support by terms of the procreative definition of marriage. As such claims stating such discrimination is not arbitrary or bigoted (invidious) must be substantiated by the petitioners in this case and is not implied by the mere exclusion of a group that wishes to enter.

It may further be argued that our apprehension to children contracting into marriage (even after it is determined to be a fundamental right and recognition or security centric as petitioners desire) is due to our inability to separate the concept of marriage from implicit agreement to sexual activity. Which would be to say we do not accept that marriage is not procreation centric implicitly even if we say it is not explicitly.

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I hope I've done at least a decent job of suggesting that the law, as it currently is, has a clear mechanism for delineating these things: consent.  I think one can at least argue (without making any glaring logical errors) that the two issues (gay marriage/child marriage) may be too closely entangled to separate by using Constitution (rather than with, say, state statutory law), but I simply think that one who makes such an argument is mistaken.

I think you were on point by referencing consent. The only concern is that when you convert marriage to a recognition or security centric definition and you recognize that a child may enter into a contract. The current requirement for parental or judicial consent to marriage is based on the procreative centric definition where marriage is an implicit agreement to engage in sexual activity with the spouse. This is why at common law one could not rape their spouse (since they consent to sexual activity by marrying) and why a spouse may even go so far as to file suit for loss of sexual intimacy due to third party intervention (known as loss of consortium).

As stipulated in previous posts. If marriage is the legal recognition of committed relationship, if it is the legal conference of dignity (which is impossible, but let us just say if), and if it is the legal conference of additional security. It may easily be argued that age discrimination to the participants violates strict scrutiny because the state has no compelling interest in not recognizing the committed (not sexual) relationships between adults and children, the state does not have a compelling interest in denying the nonsexual adult/child relationship dignity or protection. Thus, the state discrimination of marriage in regards to age would fail strict scrutiny.

[The Grand Nudger]

It may further be argued that our apprehension to children contracting into marriage (even after it is determined to be a fundamental right and recognition or security centric as petitioners desire) is due to our inability to separate the concept of marriage from implicit agreement to sexual activity. Which would be to say we do not accept that marriage is not procreation centric implicitly even if we say it is not explicitly.

It may be, but you and I both would laugh that person out of the room...since sexual activity does not equal procreation centric...nor does our law have any trouble distinguishing in this instance (where the slope is claimed to be so slippery).  It is illegal to have sexual relationships with minors regardless of whether or not one procreates with minors.

-Every argument offered is indirect..... It's almost as if they wish to say "well, sure, it's unfortunate that were discriminating against your group, but if we didn't -other- things would get ugly...so we're going to continue to do that."

 

"Give blacks the vote you say? My goodness, whats next, donkeys and cattle in the voting booths! We don't want that...move to dismiss."

[robvalue]

I don't believe there is any agreement to sexual activity in marriage. Please correct me if I'm wrong. How would that even work? If people want to say "nudge nudge wink wink course there is" then fine, but I'm talking about legal obligations.

When and how would this obligation be "cashed in"? People can refuse to have sexual activity, even with their partner, whenever they don't want to.

Now, anyway. Good things laws change, huh?