RE: Supreme Court Same Sex Marriage Argumet
June 1, 2015 at 12:27 pm
(This post was last modified: June 1, 2015 at 12:36 pm by Anima.
Edit Reason: Clarification
)
Tiberus and Pyrrho. If you would be so kind as to let one response speak to both.
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.)
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
(May 31, 2015 at 6:12 pm)Tiberius Wrote:(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)
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.)
(June 1, 2015 at 11:02 am)Cinjin Wrote: 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