Supreme Court Same Sex Marriage Argumet

[Ace]

OK, even with my limited knowledge I can smell a rat. Children cannot enter into legal contracts. I know this to be the case in England, and I assume since Parkers has said the same it is the case in America.

Even if you give them the "right to enter into the contract" they still cannot do so. Such a contract is invalid.

So you'd have to change the law to allow them to enter into this contract, just to allow for this "consequence". I'm a little confused, is this argument actually being put forward in the courts, or is this a hypothetical? I'm not clear what is opinion and what is a report of current events. If they are resorting to arguments in the court that even I know are bogus they must be getting pretty desperate.

Yes a Minor can. 



FAMILY.CODE 

SECTION 6700-6701 

6700. Except as provided in Section 6701, a minor may make a
contract in the same manner as an adult, subject to the power of
disaffirmance under Chapter 2 (commencing with Section 6710), and
subject to Part 1 (commencing with Section 300) of Division 3
(validity of marriage).

6701. A minor cannot do any of the following:
(a) Give a delegation of power.
(b) Make a contract relating to real property or any interest
therein.
© Make a contract relating to any personal property not in the
immediate possession or control of the minor.
(http://danashultz.com/blog/2010/01/08/co...-problems/)

Also see


http://biztaxlaw.about.com/od/contractsa...-Minor.htm

http://contracts.uslegal.com/contract-by-a-minor/#

http://danashultz.com/blog/2010/01/08/co...-problems/

There are more site's if these are not to you taste.

[robvalue]

OK thanks, I'll check that out. It seems the law is more complex than I thought in America at least. I thought it was the case in England, a course I was doing said specifically minors can't enter legal contracts. Maybe they were being over-general.

Am I also wrong about the UK? If so I'm gonna have something to say to the authors of my course

Surely a child cannot enter into a marriage contract though?

[Anima]

So can I ask what is the procreation centric definition of marriage?

Indeed you can and it follows by answering these questions regarding procreation:
1. how many people do you need (at minimum) to procreate? 2
2. what genders do those people need to be? Opposite
3. what minimum age do they need to be? Of pubescent age (about 13)
4. what familia relationship? Different (or at minimum not immediate)

Thus, the procreation centric definition would be 2 people, of the opposite gender, that are at least of pubescent age, who are from different families (or at minimum not part of the same immediate family).

---

Now, I mean, I've obviously argued that, charitably granting both the declaration of marriage as a fundamental right and taking this out of the equal protection realm (which I still think gets the job done)

Just so you know. When we are arguing scrutiny we are arguing equal protection. The equal protection clause does not prohibit all discrimination of the laws. It prohibits invidious discrimination with out reason. It follows thus:

Under the 14th Amendment Equal protection clause a law may discriminate under:
1. Rational Basis Scrutiny: The state must have a legitimate interest and the discrimination must reasonably be related to that interest.
2. Intermediate Scrutiny: The state must have a legitimate interest and the discrimination must reasonably be related to that interest and serves the interest.
3. Strict Scrutiny: The state must have a compelling interest, that is narrowly tailored, that is least restrictive, and that serves the interest.

Marriage restrictions are commonly argued under rational basis because it is not a fundamental right. Sexual orientation is not a protect class and also does not warrant strict scrutiny. In order to compel the states to recognize same-sex marriage the petitioners are arguing that marriage is a fundamental right to compel strict scrutiny. The respondents argued under rational basis. Now what makes the lawyer for the respondents the shit in the oral arguments is after his 5 minute argument for rational basis he then proceeded to argue (without being obligated to do so) why the prohibition would pass strict scrutiny.

---

It is not a fundamental right,  it is  a legal right. And furthermore, here in America, it isn't even listed in the Bill of Rights; in other words, the ability to marry is not an enumerated right. It could be argued that it should fall under the 10th Amendment, but at that point, its status as "fundamental" would seem to be severely undermined.  Certainly a fundamental right would have an Amendment devoted to it, no?

Your are right. Currently marriage is not a fundamental right but a legal right. Historically (and at present) the states have primacy over domestic issues (including marriage) by means of the 10th Amendment.

The petitioners want to compel the states to recognize same sex marriage. The states are responding exactly as you are stipulated. That they have authority over domestic issues and that marriage is not a fundamental right. So the petitioners are trying to change that along with the definition of marriage from procreation centric to recognition and dignity/security centric.

Simply because a minor can void a contract in a more lax manner than an adult doesn't mean that the minor has the same -- or as you're insinuating, more -- rights as an adult.  Firstly, the ability to more easily void a contract is only one specific privilege; but minors don't have the same rights to privacy or speech that an adult enjoys. Secondly, there must be court approval in most cases of a minor entering into a contract at all -- which fact in itself is a significant derogation of a minor's rights.

Minors do have the same right to privacy and speech that adults enjoy. I believe what you are making reference to is the diminished right to privacy and speech of minors at school. In which case you are correct as the Supreme court has held that in order to maintain discipline and order in the education of children they are granted a modified reasonable expectation of privacy where a child should not expect to have privacy (beyond restrooms) and their freedom of speech may not be such as to disrupt school discipline and order. Otherwise minors have the same fundamental rights as adult person (though the rights are to be exercised on their behalf by an agent under the age of 5).

And none of this addresses my point, which is that minors aren't free to engage in marriage before specific, stipulated years, which fact means that minors do not enjoy the full panoply of rights that adults do, which was my point.

Again, at present you are right because marriage is not a fundamental right and is under the Authority of the states. As such the states may simply say, under rational basis, that they have a legitimate interest in keeping underaged persons out of sexually intimate relationships (such as marriage which at present is procreation centric) and that the age restriction on marriage is reasonably related to that interest.

But we were discussing if petitioners win their case and marriage is made a fundamental right as well as recognition and dignity/security centric rather than procreation centric.

Can a five-year-old marry a three-year-old without parental input?  Can a ten-year-old consent to sex with an adult? Can a twelve-year-old take out a car loan, legally?

1. No children may not get married at present. Even as a Fundamental right the child must be at least 5 years of age.
2. A 10 year old can consent, but the court does not recognize this consent as proper consent.
3. Yes, a 12 year old can take out a car loan legally if any one were stupid enough to agree to one with them. (and is actually very common around amish communities in the state of Pennsylvania).

[Angrboda]

Now what makes the lawyer for the respondents the shit in the oral arguments is after his 5 minute argument for rational basis he then proceeded to argue (without being obligated to do so) why the prohibition would pass strict scrutiny.

How did he argue that it passed strict scrutiny? Was it under a procreation centric rationale?

[Anima]

Surely a child cannot enter into a marriage contract though?

Presently a child may not enter into a marriage contract because it is prohibited by the states under rational basis due to the procreation centric (implicit agreement to sexual relations) engender under marriage. Furthermore, the child has no fundamental right to marriage.

However, if marriage were change as petitioners desired it would become a fundamental right and be recognition and dignity/security centric. Thus, the states would have to have a compelling interest in denying a child over the age of 5 the right to contract with an adult into a situation which will bestow more dignity and security to the child.

Consent has been brought up as well but think about it in these terms Warren Jeffs is currently in prison for being an accomplice to rape by arranging marriages between adults and minors where the parents gave their consent to the minor to be married. Had the law been as petitioners desired at the time he did these things it would not be illegal because:

1. The children would have a fundamental right to marriage to be exercised after the age of 5.
2. The parents consented to the marriage.
3. The act of marriage conveys addition dignity and security and is not an agreement to sexual relations.

[The Grand Nudger]

Still stuck on "we're going to continue discriminating against you in order to avoid kids get hitched"?

@Rob, a contract signed by a minor without parental consent can be voided at will by the minor and is thus, in effect - no contract at all. The other party cannot expect to receive the agreed upon, and cannot expect the courts to coerce it (in contrast to any legal and enforcable contract with an adult, in contrast to what a party can seek -and how- with an adult). If the minor so much as breathes the words that's the end, no further questions asked, no further action available. As before, it seems that we don't have much trouble with nuance in our law.

The OP continuously asks us to to play ball on his field, and this is becoming hilariously tranparent. -So what- if marriage were so defined (would then allow children to marry - no sex implied-)? We can either be ok with that, or void it effectively and justifiably just as we have done with contract law in the general, and how the relationship between parties and minority is handled. The constant implication that our law is incapable of what it -doesn't even have to do, is as absurd as the insinuation that it can't when it plainly and demonstrably can.....it is horseshit from the wallet to the penis (and OP knows it , lol). I'm surprised that this hasn't gotten the usual "homosexuality=/=pedophilia" responses from the boards. /twocents.

[Anima]

How did he argue that it passed strict scrutiny?  Was it under a procreation centric rationale?

Yes it was.

He argued the state has a compelling interest in the procreation of children for state population as well as states responsibility to protect those children (both already recognized compelling interest as determined in Roe V. Wade)

He then argued the discrimination was narrowly tailored in that it was directed only at parties wishing to join in the marriage contract which is not obligatory, but willful.

He then argue the discrimination is least intrusive means by the state incentavising the procreation of children through the conveyance of benefits to couples with the potentiality to have children (as supported in Maher V Roe).

Finally, he argued the states interest is served by this discrimination as evidenced over hundreds if not thousands of years and verified by the supreme court in Maher V Roe.

[FatAndFaithless]

So what about married couples where one partner is sterile, or women wanting to get married past menopause?

[Anima]

So what about married couples where one partner is sterile, or women wanting to get married past menopause?

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.

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.

[FatAndFaithless]

Just read the post from which your snip was taken. Very unconvincing and arbitrary.