Supreme Court Same Sex Marriage Argumet

[Anima]

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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[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.

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.

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.)

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).

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.

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.

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.

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.

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.