Supreme Court Same Sex Marriage Argumet

[Anima]

I would like to discuss the legal arguments in the recent same sex marriage case present before the supreme court. As such I am attaching a link to the oral arguments for those who have not heard them (which also has a link the transcripts).

http://www.supremecourt.gov/oral_argumen.../14-556-q1

I look forward to a lively discussion centered around legalistic principles.

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As an initial post to the thread I would state I think the guy arguing the state bans killed it!! He even argued in a manner he did not have to and killed that!!!

[SteelCurtain]

Why don't you set out something you'd like to talk about instead of starting a thread and asking others to start a conversation?

[Anima]

Why don't you set out something you'd like to talk about instead of starting a thread and asking others to start a conversation?

Because I would like to talk about the various legal theories expressed in the oral arguments. So that would be:

1. Reasonable scrutiny, Hightened Scruitiny, and Strict scrutiny. (argued by Respondents)
2. 14th Amendment Equal protection clause (argued by the Solicitor General)
3. 14th Amendment Fundamental Rights argument under Liberty (argued by Petitioners)
4. 4th Amendment Right to privacy (argued by Respondent).
5. United States vs. Windsor (Utilized by all parties)
6. Enumeration of Powers (underlying US V. Windsor and this Case)

[SteelCurtain]

The way a discussion forum works, you see, is that you make an argument or observation, and someone responds. You have no hope of defending all of those points at the same time against 40 people.

So pick one, lay out your opinion/argument/observation, and we shall discuss.

[Faith No More]

Then talk about them instead of just listing them.

[TheRealJoeFish]

While not disputing the above points regarding proper forum procedure, I'll definitely get my two cents in on this later in the day (I'll have some free time this afternoon). I haven't read the transcripts yet but very much want to. I'm sure I'll have something to say about the argument

[Anima]

Okay;

First, lets deal with Scalia's statement that so long as the State legislates it may be tailored. If marriage is ruled to be a fundamental right than it becomes akin to the 2nd amendment and may not be abridged or withheld.

As such, it would be illegal to place an age restriction upon the age of marriage. Now if we assume the age restriction placed on the 2nd amendment (a child under the age of four does not have the right to bear arms as they lack sufficient development of person to understand the right in anyway) there may be a restriction placed on children under the age of 5 (though not likely as the restriction for the second is predicated on the inherent dangerous nature of a firearm).

This would thereby make adult to child weddings legal (likely with parental consent).

[Angrboda]

Okay;

First, lets deal with Scalia's statement that so long as the State legislates it may be tailored.  If marriage is ruled to be a fundamental right than it becomes akin to the 2nd amendment and may not be abridged or withheld.

As such, it would be illegal to place an age restriction upon the age of marriage.  Now if we assume the age restriction placed on the 2nd amendment (a child under the age of four does not have the right to bear arms as they lack sufficient development of person to understand the right in anyway) there may be a restriction placed on children under the age of 5 (though not likely as the restriction for the second is predicated on the inherent dangerous nature of a firearm).

This would thereby make adult to child weddings legal (likely with parental consent).

I would assume that restrictions on such a basic right must be justified by a compelling interest of the state.  Is Scalia not arguing in line with that?

[Anima]

Okay;

First, lets deal with Scalia's statement that so long as the State legislates it may be tailored.  If marriage is ruled to be a fundamental right than it becomes akin to the 2nd amendment and may not be abridged or withheld.

As such, it would be illegal to place an age restriction upon the age of marriage.  Now if we assume the age restriction placed on the 2nd amendment (a child under the age of four does not have the right to bear arms as they lack sufficient development of person to understand the right in anyway) there may be a restriction placed on children under the age of 5 (though not likely as the restriction for the second is predicated on the inherent dangerous nature of a firearm).

This would thereby make adult to child weddings legal (likely with parental consent).

I would assume that restrictions on such a basic right must be justified by a compelling interest of the state.  Is Scalia not arguing in line with that?

Scalia is arguing that if the right is granted by the State it may be restricted under reasonable, heightened, or strict scrutiny. Presently age restriction to marriage have been argued under reasonable scrutiny.

(Reasonable Scrutiny = The state must have a legitimate interest and the discrimination must be reasonably related to the furtherance of that interest).

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I would assume that restrictions on such a basic right must be justified by a compelling interest of the state.  Is Scalia not arguing in line with that?

If made a fundamental right the State may discriminate under strict scrutiny where:

Strict Scrutiny = The state must have a compelling legitimate interest, the discrimination must be narrowly tailored, and the least restrictive means of satisfying that interest.

As one would imagine this level of tailoring is much more difficult to satisfy as it is commonly argue the discrimination is not narrowly tailored or least restrictive.

[TheRealJoeFish]

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I would assume that restrictions on such a basic right must be justified by a compelling interest of the state.  Is Scalia not arguing in line with that?

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Scalia is arguing that if the right is granted by the State it may be restricted under reasonable, heightened, or strict scrutiny.  Presently age restriction to marriage have been argued under reasonable scrutiny.

(Reasonable Scrutiny = The state must have a legitimate interest and the discrimination must be reasonably related to the furtherance of that interest).

But, surely, an age restriction on marriage would survive not only Rational Basis Scrutiny (which I take your word for that it's evaluated under now) but also Strict Scrutiny, yes?