Supreme Court Same Sex Marriage Argumet

[Losty]

How do you figure that homosexuals could be prohibited under strict scrutiny but not minors?

[Anima]

Yeah, I agree. I guess there could be rules for a "custom marriage" or something. Are people who are into multiple partners actually likely to all want to get married? I have no idea.

It would be a complicated matter, and would also likely involve greater instability, with the more people involved, the more likely there would be a dissolution of the marriage.  To keep this simple, let us consider the difference between 2 people getting married, and 3 people getting married.  With 2 people getting married, there is only one relationship, the relationship between person 1 and 2.  So for the marriage to hold, all that matters is the one relationship.  But with a 3 person marriage, there is the relationship between person 1 and person 2, and the relationship between person 1 and person 3, and the relationship between person 2 and person 3.  So there are three relationships to maintain, instead of only one.  So even without children, it has much more going on, with a greater likelihood of instability, due to having three times as many relationships that need to work in order for the marriage to last.  (With a fourth person, you would add in 3 more relationships, for a total of 6 relationships, as the fourth person would have a relationship with each of the three added to what is already there.  So you can see that each addition dramatically impacts the complexity of what is going on.)

And with children, things get very complex very quickly.  Who is responsible for which children, and how much responsibility does each person have?  Suppose one of the three stays home to take care of the children, and the other two work.  That might be a very practical arrangement, as long as it lasts.  Now, suppose that one of them leaves the relationship.  This is going to screw up the balance of income versus child care, and everyone is going to be very significantly affected.  Now, for the adults, it was their choice, so too bad for them, they made their bed, so they must lie in it.  But the children did not agree to this arrangement, and we have allowed for the instability by allowing the marriage in the first place.  And the children are all affected by this, regardless of which people in particular are the parents, so that even a marriage partner who is childless is still a part of the totality that affects all of the children.

Figuring out the law of that would probably be a nightmare (and a source of great job security for lawyers dealing with the fallout if polygamy were allowed).

So there may be practical reasons to reject polygamy, though one would want to look into the matter in much more detail than I have here.

Wow! Very nice. The only thing I would add would be current issues regarding step parents. In many state only two parties have parental rights over a child (commonly awarded to the biological parents in recognition of the biological reality of procreation). For another party to be granted parental rights over the child one of the previous parents must surrender their parental rights. A step parent has authority to dictate what occurs within their domicile, but they do not have parental rights over the child unless the biological parent not present has surrendered that right.

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How do you figure that homosexuals could be prohibited under strict scrutiny but not minors?

Sorry I miss read this. Please ignore the original response posted. You are correct. Minor could be prohibited as well. Only polygamist could not.

[Anima]

Personally I don't have a moral problem with polygamy, the issue would be in how you make that into a legal contract and how it would affect custody of children etc. I don't think it's a simple matter to just say "OK now any number of people can get married". I certainly don't see how it's at all the same issue as gay marriage, once again, which seems like a pretty simple change in comparison.

An interesting statement. As there are those who contend that we do not legislate morality. So if you had a moral problem with it would you be more opposed to legislating it?

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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.

Actually we do not know what the unintended consequences may be. We may speculate on what may arise and how we may respond to those problems legally. That is why the justices asked the petitioner and respondent about the impacts of their arguments.

One of the primary aspects of our judicial system is that upon making a change to one law we cannot just go and change all the others effected by it at the same time. Instead we wait until someone files suit and makes argument to it and then deal with it as best we can. Sometimes we have to let shit get through that we would not want.

If there is one thing I learned in my legal studies is that people will argue some of the most unbelievable shit (I did not rape her she was dead, or I only went down on her I did not have sex with her, etcetera) what is even more amazing is they win on that shit (the court ruled rape is unconsentual sex with a person and a dead body is not a person, court ruled that rape is penile penetration and cunnilingus does not constitute penile penetration).

[robvalue]

Anima: No, law is not simply morality. But I think it's reasonable to say that we try and make our laws as moral as possible. We don't make everything immoral illegal, but the things that are at the extreme end and specifically those that cause harm are things we generally prohibit. So law tends to prohibit immorality, just not all of it. After all, if we sentence someone to jail we have deemed them to have done something "wrong" and that is a subjective judgement. If our laws have nothing to do with harm or morality it would just be arbitrary. (Get your irony meters out.)

If I found something immoral, I wouldn't necessarily be opposed to it being law. It depends on what it is. It was a side comment, it wasn't supposed to be logical progression, but I understand how it was read that way. I didn't phrase it well.

There are plenty of things I find immoral which I would not want to be illegal.

However, can you give me an example of a law which most people would say is immoral? I would imagine that when this is the case, chances are, the law is going to change. Gay marriage being the perfect example! And I think you'd agree most people find child marriage extremely immoral and harmful, and while this is the case, it will stay this way.

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Someone (I forget who, sorry) already made the excellent point that there is a very clear way to remove child marriage from this, which is to agree that marriage requires consent. So those not permitted to consent to legal contracts, of this nature at least, should not be an issue. However, we're not allowing anyone new to be able to consent to marriage even, just removing an arbitrary restriction that a pair of people able to consent can be rejected as a pair but not individually.

[The Grand Nudger]

Actually we do not know what the unintended consequences may be.  We may speculate on what may arise and how we may respond to those problems legally.  That is why the justices asked the petitioner and respondent about the impacts of their arguments.

One of the primary aspects of our judicial system is that upon making a change to one law we cannot just go and change all the others effected by it at the same time.  Instead we wait until someone files suit and makes argument to it and then deal with it as best we can.  Sometimes we have to let shit get through that we would not want.

If there is one thing I learned in my legal studies is that people will argue some of the most unbelievable shit (I did not rape her she was dead, or I only went down on her I did not have sex with her, etcetera) what is even more amazing is they win on that shit (the court ruled rape is unconsentual sex with a person and a dead body is not a person, court ruled that rape is penile penetration and cunnilingus does not constitute penile penetration).

"Whats next, cats marrying dogs?!?" 

A wonderful thing about the america, is that we're hilariously litigious.  You -can try- to argue whatever you like in court.  That's not actually a reason to discriminate against anyone, of course.  You miss that in your "legal studies"? Homosexuality is not rape any more than it is pedophilia.

-"Rhythm you're a dick..I never said that it was!"

Of course not cupcake..but you haven't mentioned homosexuality as it applies to kittens and lollipops even once in this thread..now have you? We have a fairly clear idea of the things you'd like to make comparisons with at this point. Slippery slope, rapists getting off, people fucking their children. Roger, got it.

[robvalue]

How is this any different from allowing mixed race marriage?

That was the same thing: pairs of people could be rejected, where both people were separately eligible. What unintended consequences happened there?

[Anima]

If I found something immoral, I wouldn't necessarily be opposed to it being law. It depends on what it is. It was a side comment, it wasn't supposed to be logical progression, but I understand how it was read that way. I didn't phrase it well.

There are plenty of things I find immoral which I would not want to be illegal.

However, can you give me an example of a law which most people would say is immoral? I would imagine that when this is the case, chances are, the law is going to change. Gay marriage being the perfect example! And I think you'd agree most people find child marriage extremely immoral and harmful, and while this is the case, it will stay this way.

Laws determined legality not morality. If we send someone to jail it is because they broke the law. What may be said is that laws tend to promote social cohesion not morality. This is not to say that ethics (manifested in law) and morality do not agree. It is only to say what is ethical is not moral.

1. I think we can all agree killing for any reason that is not necessity or insanity is immoral? I think we can all agree that killing of children is even more immoral than killing of adults (due to the "moral" innocence of children). So we may agree that a law that facilitates the act of infanticide is immoral.

2. Now let us say that a person has the ethical right to act without interference from the state. We would say a person may act in accordance with their whims without state interference except to a degree that is harmful to others. We would further stipulate that a person may not act to a degree or manner that is harmful to others which harms children and infants.

3. Roe V Wade is a law that allows that facilitates the killing of infants for the sake of privacy. Thus, the killing of infants is deemed ethical in regards to a private matter determined with one doctor while being the immoral killing of an innocent. I do not see us rushing to overturn this law anytime soon.

Someone (I forget who, sorry) already made the excellent point that there is a very clear way to remove child marriage from this, which is to agree that marriage requires consent. So those not permitted to consent to legal contracts, of this nature at least, should not be an issue. However, we're not allowing anyone new to be able to consent to marriage even, just removing an arbitrary restriction that a pair of people able to consent can be rejected as a pair but not individually.

Someone did bring this argument up. As was responded to them:

1. If the petitioners win their claim than marriage will become a Fundamental Right. The supreme court has ruled that a child under the age of 5 may not exercise a fundamental right on their own behalf and thus the state or parents are to exercise that right on their behalf (note that they do have the right!!) A child 5 years of age or older is considered competent to exercise a fundamental right on their own behalf.

2. A child may exercise the right to contract if they are considered competent in regards to the subject of the contract. Should a child decide they wish to exercise their fundamental right to enter into a marriage contract at the age of 5 they would be deemed competent to enter into such a contract on their own accord.

3. If petitioners win their claim marriage will also no longer be procreation centric, but will be recognition and dignity/security centric. Since the child is exercising a fundamental right the state may only restrict that right if it passes strict scrutiny. The first element of which is the state must have a compelling interest. I have asked before and I will ask again, WHAT IS THE STATES COMPELLING INTEREST IN DENYING A CHILD RECOGNITION OF AN ADULT/CHILD RELATIONSHIP THAT CONVEYS ADDED DIGNITY AND SECURITY TO THE CHILD?

If the state cannot answer then it cannot restrict the fundamental right.

[Cato]

This is where my closet libertarian creeps in and suggests that the people involved in the marriage create the contract themselves, and only go to the gov't when the contract is breached, instead of the gov't setting the rules for who get's to be 'married'.

I agree and can envision customized templates at places like Legal Zoom. Legal precedence would still hold based on our common law system. I think it important to maintain minimum expectations regarding sharing of assets, particularly where minor children are involved, in cases of breach of contract. I also think that certain common law marriage provisions should be maintain that offer protection of certain parties should a formal contract not be in place. 

[robvalue]

Anima: You're asking me why it's a bad idea to let children marry? Is that the question? I know you say "state's interest" and I'm not entirely sure what that difference that makes. If this is the question, then children are consenting to a formal legal relationship when they are not considered mature enough to make such a decision, as with other legally binding contracts. Children can be taken advantage of, for a variety of reasons, by a devious adult. marriage is about more than sex. In fact it isn't about sex at all, as far as I'm concerned. You seem to be saying that is all it is about. I'd have thought having children being taken advantage of was bad for "state's interest".

If it's a good idea to let children marry, why not allow it anyway regardless of what happens? Why is it suddenly being brought up now? Suspicious timing.

I know you continue with this "procreation" defense but it is really not sailing my boat. I'm not aware of any legal aspect which talks about sex or having children, you brought up that weird law but it still doesn't cover this adequately. You can still have children if you're a same sex couple, so what's the difference?

If the next response goes nowhere I'm finished with this particular line because I feel we're not making any headway. But thanks for the input

My brain isn't absorbing your other legal example about laws and ethics. I'm not claiming they are the same thing, but I'm only saying the law is mainly based on stopping harmful things which are generally immoral things. I know it's never as simple as that. But to say the law has absolutely no correlation with morality seems incorrect by inspection. Maybe there are some weird exceptions sure, I'll try and understand your example later.

[Anima]

Actually we do not know what the unintended consequences may be.  We may speculate on what may arise and how we may respond to those problems legally.  That is why the justices asked the petitioner and respondent about the impacts of their arguments.

One of the primary aspects of our judicial system is that upon making a change to one law we cannot just go and change all the others effected by it at the same time.  Instead we wait until someone files suit and makes argument to it and then deal with it as best we can.  Sometimes we have to let shit get through that we would not want.

If there is one thing I learned in my legal studies is that people will argue some of the most unbelievable shit (I did not rape her she was dead, or I only went down on her I did not have sex with her, etcetera) what is even more amazing is they win on that shit (the court ruled rape is unconsentual sex with a person and a dead body is not a person, court ruled that rape is penile penetration and cunnilingus does not constitute penile penetration).

"Whats next, cats marrying dogs?!?" 

A wonderful thing about the america, is that we're hilariously litigious.  You -can try- to argue whatever you like in court.  That's not actually a reason to discriminate against anyone, of course.  You miss that in your "legal studies"?  Homosexuality is not rape any more than it is pedophilia.  

-"Rhythm you're a dick..I never said that it was!"

Of course not cupcake..but you haven't mentioned homosexuality as it applies to kittens and lollipops even once in this thread..now have you?  We have a fairly clear idea of the things you'd like to make comparisons with at this point.  Slippery slope, rapists getting off, people fucking their children.  Roger, got it.

Carrying on a conversation with yourself now?

Indeed it is a wonderful thing about Europe and America is its litigiousness. As stipulated by Aristotle, "The law is reason free from passion." So when you go to court you must argue in accordance with the law and reason and cannot simply say well I feel it is stupid and discriminatory so it is.

I was not equating homosexuality with rape or anything else for that matter. What I was pointing out is that rulings in the law serve as precedence for other ruling and that the laws are integrated. So if the petitioners win their claim the logic used to support that claim will be used by others . Each case is not tried in a vacuum, if that were so than no general determination would be made from any specific case.

I detest the slippery slope argument as much as anyone else. But if you were in jail and another person got off for a crime that is nearly identical, would you simply spend your time in prison telling yourself, "well nearly identical is not identical". Or would you be complaining to anyone and everyone how you are being unjustly punished since you and the freebird committed an identical crime. My guess would be the latter and not the former.

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Anima: You're asking me why it's a bad idea to let children marry?

Nope. I am asking you:

WHAT IS THE STATES COMPELLING INTEREST IN DENYING A CHILD RECOGNITION OF AN ADULT/CHILD RELATIONSHIP THAT CONVEYS ADDED DIGNITY AND SECURITY TO THE CHILD?