Supreme Court Same Sex Marriage Argumet

[TheRealJoeFish]

No, no, no ostracization. From my end: lunch break, surprise invite to a minor league baseball game, just getting home.

You were right, of course, regarding minors and contracts; I was sort of ignoring that as a technicality, but it's probably worth noting like you did. Now, I don't think it affects the particular subset of contracts relating to marriage, because 1) there's no question regarding the ability of, say, a ten-year-old to enter into a marriage contract, meaning that there's something special about those sorts of contracts, and 2) there's more to marriage than a contract (if there wasn't, there wouldn't be a supreme court case about it).

Now, regarding the equal protection clause statement, I do understand what you're saying. However, I simply think your reading of the equal protection clause is too narrow. Example: Poll taxes. A facially equal requirement - everyone must pay a certain amount of money to register to vote - was deemed to violate the equal protection clause. I think a reasonable parallel can be drawn.

And as for Scalia, well... I sure don't like most of his beliefs, and interpretations, and opinions... but I would not be surprised to learn he was, by many measures, certainly the most intelligent Supreme Court Justice. I disagree with him 90% of the time, but he is one of the greatest writers of all time.

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I'll talk about Alito later tonite or tomorrow

[Iroscato]

It's cutte how conservatives keep frenetically polishing the same bigot turds over and over, using a slightly different polish each time. Maybe in 100 years or so they'll evwentually find something resembling a coherent argument. 'Course, by that time we'll be drinking mojitos on Mars, bitches.
#drunkposting

[Anima]

No, no, no ostracization.  From my end: lunch break, surprise invite to a minor league baseball game, just getting home.

You were right, of course, regarding minors and contracts; I was sort of ignoring that as a technicality, but it's probably worth noting like you did.  Now, I don't think it affects the particular subset of contracts relating to marriage, because 1) there's no question regarding the ability of, say, a ten-year-old to enter into a marriage contract, meaning that there's something special about those sorts of contracts, and 2) there's more to marriage than a contract (if there wasn't, there wouldn't be a supreme court case about it).

Now, regarding the equal protection clause statement, I do understand what you're saying.  However, I simply think your reading of the equal protection clause is too narrow.  Example: Poll taxes.  A facially equal requirement - everyone must pay a certain amount of money to register to vote - was deemed to violate the equal protection clause.  I think a reasonable parallel can be drawn.

And as for Scalia, well... I sure don't like most of his beliefs, and interpretations, and opinions... but I would not be surprised to learn he was, by many measures, certainly the most intelligent Supreme Court Justice.  I disagree with him 90% of the time, but he is one of the greatest writers of all time.

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I'll talk about Alito later tonite or tomorrow

Wow!! Sounds like you had a fun and busy day!!!

1. There is no legal reason for a ten year old to not enter into a marriage contract. Particularly as there is precedence of such occurrence throughout the world and in the US. While the entering is generally with parental or judicial consent it may not to be said that neither may be granted or even granted regularly, particularly if an agreement to marriage is adult center recognition of a commitment and union between the party establishing communal property and inheritance of assets and is not procreation orientated to constitute an implicit agreement to consortium.

2. In accordance with the law marriage is a contract. It is for this reason that states may even define/restrict the marriage as states have the right to determine conditions and parties which may enter into contracts for services (which are done at common law of the given state). While the argument of the petitioners is that marriage conveys dignity the argument of the respondents is correct. While people may assign dignity to marriage the state itself does not seek to convey or withhold dignity by approving of marriages. If that were the case the state should prohibit undignified marriages (gold diggers for example) and only allow dignified marriages (like the sacred shotgun kind).

3. The poll taxes (Harper v. Virginia Board of Elections) were ruled a discriminatory violation of the equal protection clause because they failed to meet strict scrutiny. While the state had a compelling interest (in reducing fraud and an educated electorate) and the tax was narrowly tailored to effect only voters, it failed to be the least restrictive means to meet that interest or to meet that interest at all. When it came to reading tests (Lassiter v. Northampton Election Board) the court ruled they are not a discriminatory violation of equal protection clause because they satisfied strict scrutiny so long as there was no grandfather exemption for whites to avoid testing.

4. Regarding equal protection in terms of marriages needs only pass rational basis rather than strict scrutiny. Thus, the state needs only a legitimate interest in marriage (which it has) and the discrimination needs to be reasonably related to meeting that interest. (Note: rational basis is highly in favor of the state legislature so that the courts would not have to review and validate every law. The court needs only find a reasonable relation to the states interest no matter how tenuous!)

5. I generally disagree with Scalia as well. But damn can that man write!!

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It's cutte how conservatives keep frenetically polishing the same bigot turds over and over, using a slightly different polish each time. Maybe in 100 years or so they'll evwentually find something resembling a coherent argument. 'Course, by that time we'll be drinking mojitos on Mars, bitches.
#drunkposting

I have it on good authority that with enough pressure, time, and shine that turd will make one hell of a diamond

[Anima]

Of course I am not a conservative so perhaps I should have let one of them respond.

[robvalue]

KMaybe I'm oversimplifying it, but here are my thoughts. Please correct me if I'm being dumb.

If allowing the two parties to be of the same gender by law is impossible without also permitting unrelated stuff like marrying children, then there is a problem with the law that needs addressing first. It's blatantly absurd to me. I would hope that discussions are about this problem with the law, rather than if this problem justifies holding onto pointless discrimination.

I sincerely hope that the law makes more sense than this. I imagine groups of people who think that if you allow gay marriage, then the courts must accept the next proposal about marriage, regardless of what it is, without even reading it. That is the nonsense of the slippery slope argument.

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PS: the current rules are discrimination because they place a restriction on one of the parties that doesn't apply to the other party, without reason. If you call the two people A and B, then whoever you happen to label A can be of either gender, but then the gender of person B is restricted. Reverse who is A and who is B and you are now discriminating against person A.

So arguments against this need to show why there is a good reason for this arbitrary exclusion of certain combinations, not to try and shovel in a load of other changes which would apply to both parties as "the same principle".

[Anima]

Maybe I'm oversimplifying it, but here are my thoughts. Please correct me if I'm being dumb.

Not being dumb. Just did not know how it works. Remember the law does not care about what is right or wrong. The law is concerned with what is legal or illegal.

If allowing the two parties to be of the same gender by law is impossible without also permitting unrelated stuff like marrying children, then there is a problem with the law that needs addressing first. It's blatantly absurd to me. I would hope that discussions are about this problem with the law, rather than if this problem justifies holding onto pointless discrimination.

It is not impossible if the law is changed by the states themselves. The states may tailor the law to include and exclude various parties based on rational scrutiny. It becomes very difficult if nearly impossible when a fundamental right is established for marriage. Now any exclusions must be based on strict scrutiny. Furthermore the argument of the petitioners is that marriage is not procreation based. As I posted earlier a nonprocreation based definiton does allow for same sex marriage. But it also remove limitation on the number of partners that can join, the age of the participants, and the social status of those partners (brother marrying sister, father marrying daughter).

The general argument of the petitioners is that any limitation on marriage is pointless discrimination. Thus, they would argue that any of the marriages you consider "blatantly absurd" are just a result of your pointless discrimination. While the respondents argue that some discrimination is required for marriage and that the terms of that discrimination should be based on biological facts. (As expressed in my previous post a procreation centric definition of marriage limits the participants to 2, of the opposite sex, of at least pubescent age).

I sincerely hope that the law makes more sense than this. I imagine groups of people who think that if you allow gay marriage, then the courts must accept the next proposal about marriage, regardless of what it is, without even reading it. That is the nonsense of the slippery slope argument.

Unfortunately the first thing you will realize when you study law is the slippery slope is a reality. People due it all the time when trying to get out of a crime. "I did the same thing as him with just a little difference. He got off so I should too." As a fundamental right strict scrutiny would be required to limit the age, social relation, and number of participants to marriage. If the argument of the petitioners to dignity and security prevail than it may be said that child bride/groom, incestual, and polygamous marriages deserve dignity and security.

[Esquilax]

It is not impossible if the law is changed by the states themselves.  The states may tailor the law to include and exclude various parties based on rational scrutiny.  It becomes very difficult if nearly impossible when a fundamental right is established for marriage.  Now any exclusions must be based on strict scrutiny.  Furthermore the argument of the petitioners is that marriage is not procreation based. As I posted earlier a nonprocreation based definiton does allow for same sex marriage.  But it also remove limitation on the number of partners that can join, the age of the participants, and the social status of those partners (brother marrying sister, father marrying daughter).

Nonsense; marriage is already not procreative in this country, without removing any of the other limitations you've listed. Surely you're aware that sterile couples, older couples, or couples with no intention to procreate are also allowed to get married, and have been since the get-go? In fact, there is no clause or additional stipulation that one is obligated to have children anywhere in state marriage licenses; what you're proposing here is a slippery slope that we can already determine to be flatly false, because the concept you're saying will be removed with the addition of gay marriage never existed within the current model of marriage at all. You're proposing that there's a brake currently in place against a number of factors, when it's the work of but a moment to show that this brake does not exist.

The general argument of the petitioners is that any limitation on marriage is pointless discrimination.  Thus, they would argue that any of the marriages you consider "blatantly absurd" are just a result of your pointless discrimination.

I haven't much more than skimmed the argument of the petitioners, but if that's indeed what they argued then in turn I would argue that they were being overly broad and simplistic, and that it's more rational to consider limitations on a case by case basis, and determine whether they should stand or fall based on the factual benefits or detriments they may have, which the anti-gay marriage side cannot cogently provide.

 

While the respondents argue that some discrimination is required for marriage and that the terms of that discrimination should be based on biological facts. (As expressed in my previous post a procreation centric definition of marriage limits the participants to 2, of the opposite sex, of at least pubescent age).

However, your procreation centric definition of marriage contains no limits to the participant's fertility, nor does it contain even a hint of language toward that end. You are proscribing an attitude toward marriage that is directly contradicted by how it functions in practice. And if you want to talk about biological facts, I'd remind you that monogamy is not present anywhere in our makeup.

[Pyrrho]

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.
...

You have worded it for your particular purposes.  Think of it this way:

1. Can a female person marry a man = yes
2. Can a male person marry a man = no.

Here we have a female person allowed to do something a male person in not allowed to do.

3. Can a male person marry a woman = yes
4. Can a female person marry a woman = no

Here we have a male person allowed to do something a female person is not allowed to do.

So we have discrimination.

To use your language:

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 person and woman get married = yes/no (violates equal protection)
6.  Can a person and a man get married = yes/no (violates equal protection)


Edited to add:


Or if you prefer this wording:

7.  Can a person and a person get married = yes/no (violates equal protection)

[Anima]

[robvalue]