Supreme Court Same Sex Marriage Argumet

[Anima]

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?

Possibly. But opponents to that limitation will argue it is not narrowly tailored or least restrictive. This is to say they will argue the age related prohibition does not account for the varying rate of development of children and unjustly bans children from marriage who are of greater mental maturity than their cohorts. Also, they may argue that the restriction is not the least restrictive means as it is an out right ban rather than an incentive (like a marriage penalty for marrying a minor).

Bear in mind the restriction cannot be predicated on the procreative capabilities since the argument of the petitioners is that marriage is not about procreation. So no argument to may be made to state children should be excluded from marriage until they reach sexual maturity.

[TheRealJoeFish]

To elaborate: There's also a fundamental right to self-determination, but parents can control their kids until age 18. There's a fundamental right to freedom of religion, but kids can be forced by court order (say, in a divorce) to attend a particular parent's church until age 18 or so. The rules are simply different for minors; a lot of things that are fundamental rights - and thus invoke strict scrutiny - are given, in practice, intermediate scrutiny when applied to minors. You can't purchase a handgun in most places until you're 21. You can't concealed carry in most places until 18 or 21. Generally, age trumps, or at least diminishes, fundamental rights.

TL;DR: It's nonsense to claim that a ruling in favor of gay marriage would also legalize child marriage. Gay people can consent to marriage because, legally, they have the capacity to do so.

Expanding what you are legally allowed to consent to is not equivalent to expanding the capacity to consent.

[robvalue]

I don't understand what people's ages has to do with gay marriage.

Is this just more slippery slope scaremongering?

[Anima]

To elaborate: There's also a fundamental right to self-determination, but parents can control their kids until age 18.  There's a fundamental right to freedom of religion, but kids can be forced by court order (say, in a divorce) to attend a particular parent's church until age 18 or so.  The rules are simply different for minors; a lot of things that are fundamental rights - and thus invoke strict scrutiny - are given, in practice, intermediate scrutiny when applied to minors.  You can't purchase a handgun in most places until you're 21.  You can't concealed carry in most places until 18 or 21.  Generally, age trumps, or at least diminishes, fundamental rights.

TL;DR:  It's nonsense to claim that a ruling in favor of gay marriage would also legalize child marriage.  Gay people can consent to marriage because, legally, they have the capacity to do so.

Expanding what you are legally allowed to consent to is not equivalent to expanding the capacity to consent.

Understood. However, your argument is thereby predicated on parental consent (which it does not need to be, but currently is). It may not be assumed that parents will not consent to allowing their underage child to marry. Courtney Stodden was 16 when she married Josh Hutchinson who was 55 with her mother's consent. I am delaying reference to Warren Jeffs situation until we move on to the subject of polygamy or polyandry.

At present two states (I believe one is 14 and the other is 16) set the legal age of marriage with parental consent below the legally recognize age of self-determined consent at 18. As a fundamental right any restriction upon age of marriage must past strict scrutiny and cannot be imposed without doing so and they must show there restriction is narrowly tailored and least restrictive.

[TheRealJoeFish]

Sort of. The technical issue here that Anima is getting at is "a ruling that marriage is a fundamental right would make it much harder to place restrictions on marriage." The suggestion is that any "expansion" of a right to marriage that is sufficiently large to necessitate the removal of a same-sex restriction would be too blunt to avoid also taking out age restrictions.

Even if the animus is "slippery slope scaremongering" - I'm not saying it is in Anima's case, but you do see it a lot on, say, the news or comments sections of websites and such - it's not a ridiculous sort of question to ask. In this case, however, I think it's extremely obvious that you can expand marriage to be between two men and not have to expand it to be between a 40-year-old man and a 10-year-old girl. This is partly for reasons I've mentioned above; again, I stress that if you expand what marriage is, you're not expanding the capacity to consent to things such as marriage.

[Anima]

I don't understand what people's ages has to do with gay marriage.

Is this just more slippery slope scaremongering?

Gay marriage does not. However, arguing that marriage is a fundamental right (as the petitioners for gay marriage argued) which is protected by the constitution and not under the jurisdiction of the states or the people does bring up the age issue as that is a restriction upon marriage which if done under State authority only needs to satisfy rational basis scrutiny, but as a fundamental right would need to satisfy strict scrutiny.

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Sort of.  The technical issue here that Anima is getting at is "a ruling that marriage is a fundamental right would make it much harder to place restrictions on marriage."  The suggestion is that any "expansion" of a right to marriage that is sufficiently large to necessitate the removal of a same-sex restriction would be too blunt to avoid also taking out age restrictions.

Even if the animus is "slippery slope scaremongering" - I'm not saying it is in Anima's case, but you do see it a lot on, say, the news or comments sections of websites and such - it's not a ridiculous sort of question to ask.  In this case, however, I think it's extremely obvious that you can expand marriage to be between two men and not have to expand it to be between a 40-year-old man and a 10-year-old girl.  This is partly for reasons I've mentioned above; again, I stress that if you expand what marriage is, you're not expanding the capacity to consent to things such as marriage.

Agreed if the expansion were done simply by means of the State authority. The states could expand the definition (as some have) to include same sex marriage while still maintaining age restrictions under rational basis. The crux here is when the petitioners endeavor to compel the state by means of a Constitutional fundamental right.

Now the capacity to consent is subject of much debate. In law a child over the age of 5 can consent to conduct, but their consent is commonly held to be in accordance with a reasonable child standard rather than a reasonable man standard. However, the law does hold that if a child consents to engage in inherently dangerous or serious conduct they elect to be held in accordance with the reasonable man standard rather than child standard.

[TheRealJoeFish]

I will add, regarding the "marriage as a fundamental right" argument:

Only Petitioners are making that claim. Having just now reached the USA-as-Amicus's section, I think Attorney Verrilli makes a very good argument that this sounds in equal protection, not fundamental rights. Of course, the heart of Petitioner's argument was equal rights as well. I think if the court was to rule that a ban on gay marriage was an equal rights issue - which is far, far more likely than a ruling that it's a fundamental right - then there would be absolutely no problem at all regarding age.

I guess what I mean is, I never should have engaged in the argument about "would marriage-as-a-fundamental-right necessitate child marriage," because "marriage-as-a-fundamental-right" is an afterthought, and the real issue here is a particular restriction on marriage as violative of the Equal Protection clause

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Now the capacity to consent is subject of much debate. In law a child over the age of 5 can consent to conduct, but their consent is commonly held to be in accordance with a reasonable child standard rather than a reasonable man standard.  However, the law does hold that if a child consents to engage in inherently dangerous or serious conduct they elect to be held in accordance with the reasonable man standard rather than child standard.

Completely irrelevant.  That's the negligence standard.  A child cannot consent to sexual activity with an adult at age 5.  A child cannot enter into a contract at age 5.  A child own or purchase property at age 5.  Or age 10.  Or age 15. 

If a child "consents" to drive a car and hurts someone, we hold that child to an adult standard when it comes to paying for damage.  That's completely irrelevant to whether the law "allows" a child to "consent" to driving a car without a license, which it certainly does not.

[Anima]

I will add, regarding the "marriage as a fundamental right" argument:

Only Petitioners are making that claim.  Having just now reached the USA-as-Amicus's section, I think Attorney Verrilli makes a very good argument that this sounds in equal protection, not fundamental rights.  Of course, the heart of Petitioner's argument was equal rights as well.  I think if the court was to rule that a ban on gay marriage was an equal rights issue - which is far, far more likely than a ruling that it's a fundamental right - then there would be absolutely no problem at all regarding age.

I guess what I mean is, I never should have engaged in the argument about "would marriage-as-a-fundamental-right necessitate child marriage," because "marriage-as-a-fundamental-right" is an afterthought, and the real issue here is a particular restriction on marriage as violative of the Equal Protection clause

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)

Applying the same method to a sexual orientation qualifier:

1. Can a straight man and straight man get married = no
2. Can a gay man and gay man get married = no
3. Can a straight man and gay man get married = no
4. Can a straight woman and straight woman get married = no
5. Can a lesbian woman and lesbian woman get married = no
6. Can a straight woman and lesbian woman get married = no

Again we ask the question without the qualifier. If the answer is the same than there is no violation of equal protection:

7. Can a man and man get married = no (does not violation of equal protection)
8. Can a woman and woman get married = no (does not violation of equal protection)
9. Can the same gender marry = no (does not violation of equal protection)

There is no violation of equal protection.

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Completely irrelevant.  That's the negligence standard.  A child cannot consent to sexual activity with an adult at age 5.  A child cannot enter into a contract at age 5.  A child own or purchase property at age 5.  Or age 10.  Or age 15. 

If a child "consents" to drive a car and hurts someone, we hold that child to an adult standard when it comes to paying for damage.  That's completely irrelevant to whether the law "allows" a child to "consent" to driving a car without a license, which it certainly does not.

Actually a child can enter into a contract. The contract is unenforceable against the child but remains enforceable against the adult. Since the child may break the contract at will without it being considered a breach while efforts by the adult to break the contract at will would be considered a breach it is common for adults to not enter into contracts with children. Which is not the same as not being legally permitted to. (This is a common first year law and bar exam question. Also something you might want to take advantage of the next time you sign a contract ).

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Completely irrelevant.  That's the negligence standard.  A child cannot consent to sexual activity with an adult at age

As I stated before, and is argued by the petitioners. Marriage is not about sex. Thus, agreement to the marriage contract is not agreement to engage in sexual activity.

[Silver]

Scalia is an idiot.

[Anima]

Scalia is an idiot.

So shall we move on to Alito's question regarding polygamy and polyandry? (I am trying to go in accordance with the issues brought up in the audio).

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Wow! Crickets. I thought this thread was going to take off like a rocket given all of the argument and discussion concerning same sex marriage in the news. I even thought it being brought up by catholic was going to be a real, get out the pitch forks to attack the catholic moment...

Wait... Am I being ostracized in order to get my views to conform?

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Regarding general definition of marriage which will lead into the subject of polygamy/polyandry.

Under a procreation centric definition of marriage (argued by respondents) the qualities of the parties to a marriage are easily determined:
1. How many people are needed to procreate = 2
2. What genders do the people need to be = Opposite
3. How old do they need to be = Of pubescent age or older (13+)

Under commitment centric definition of marriage (argued by petitioners) the qualities of the parties to a marriage are determined as:
1. How many people are willing to commit = greater than 2, less than 8 billion
2. What gender do the people need to be = whatever genders are willing to commit to one another.
3. How old do they need to be = of age to agree to commitment (which is over the age of 5)