SCOTUS: Gay Marriage Case Update

As stated that is a fringe benefit and what the average person would give as the reasoning after "but Jesus said" and "that's (*)(*)(*)(*)ing disgusting". Doesn't make it the core legal rationale used to justify the doctrine in American jurisprudence.

 

You just don't like the facts. If you don't believe me, do some research. It's not some closely guarded secret.

Not fear, knowledge.

I'd say that society, like the law, is conceptual - not something that is able to think or act on its own.

It's neither theoretical nor speculative.

You won't me to stop bringing it up? Let's start with you admitting that YOU don't know what went on at the state level in the adoption of these laws. I do, and I know the role that religion played in it. Pretending that your beloved law is somehow separate from what birthed it isn't fooling anyone but those who wish to fool themselves.

 

I haven't been following all that closely. Do you have a link to a discussion of this in the legal literature? I'm curious.

 

Go find your nearest law library. Public law schools have then and those are required to be open to the public. Go to the desk and ask the lady to run you a search on treatises regarding incest statutes and undue influence. Sit down and read 5 or 6 cover to cover.
Now go fly and learn my junior legal eagle

 

Show even one published source that speaks of this motive of preventing undue influence as the reason for prohibiting incest, IF YOU CAN.

 

This thread is about SCOTUS and same sex marriage. How many times do you think that a reference to incest will appear in either the majority of dissenting opinion? If you said zero, you would be correct. It's amazing how one person obsessed with incest and procreation can run a thread into the gutter

 

O I couldn't possibly argue with you now that you've provided knowledge from on high, straight from the mouth of wikipedia. Such would be heresy.

 

I guarantee you it will be mentioned in at least 1 justice's writings on the issue. A plethora of amicus curiae briefs for this case do the slippery slope argument of pedos, incest, and polygamy if the gays can get married thing. It will be addressed, even if only in passing. Though I guarantee if it passes the dissents will speak about if for at least a paragraph.

 

Humm, now that you mention it..

 

You just like obscuring facts, like the fact that the Michigan amendment says, "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

Nothing about religion or morality or Roman Catholics or any of the things you fear - oops, I mean know about.

But the concept of society is a group of people that are interconnected. Those people have intentions and behaviors and they think/act on their own in ways that affect others. In that respect, society exhibits intent and behaviors. So if the laws aren't meant to preserve society, what are they there for?

Ah, so the law is not separate from the movement that birthed it. Yet the Fourteenth Amendment, which was clearly established to advance racial equality, is used as the trump card by those who want their nonstandard relationships to receive equal treatment. So who gets to decide when the movement behind the law matters more than the written text of the law itself?

 

That's the extent of your research? Laughable. I haven't obscured anything.

I know what the law says. I know what the law does. And I know who was behind it and what their real motivation and intent was, regardless of what the cleverly worded law they came up with says. If they had worded the law to reflect that intent and motivation, it might not have passed. They couldn't afford to be honest.

Not a question one can answer in the abstract; it depends on the specific law. This one was about more than "preserving the benefits of marriage"; it was about making sure the law would continue to mirror certain groups' religious beliefs about marriage, to wit: excluding same-sex couples. We don't represent any real danger to the benefits of marriage - the idea that we do is just the usual fearmongering.

That would be the Supreme Court, who will also be concerned with the effect of applying the law. And what a lame comparison you're making here. The 14th amendment restricts government powers by guaranteeing due process and equal protection. My state's marriage amendment does the opposite - it's all about removing the possibility of certain people having a legal marriage or any recognition whatsoever for their unions, without any chance for due process; it ensures that they remain unequal. It's a stark difference between the two.

 

I think you are totally misunderstanding something here.

The only reason religion enters the picture is when those who are religious attempt to use religion as an excuse for discrimination.

I'm all in favor of you leaving religion out of it. I'm glad to see you take that step!

But, the catch is, so far you haven't given a valid justification for overriding the constitutional prohibition of discrimination.

 

See, the text of the michigan amendment is what professionals refer to as "Thinly Veiled Bull(*)(*)(*)(*)".

 

What ARE the benefits of marriage that are supposedly being secured?

Once you figure that out, you need to show how this discrimination promotes that objective. In fact, my bet is the courts will need to answer whether this discrimination is the only method or the most effective method of doing that.

 

What step? Read the conversation. He brought up religion as the reason for the Michigan law; but there's nothing about religion in the law nor were any religious argents made before the court in this case.

My understanding is that the only people being discriminated against are the ones who choose not to enter into marriage. Not sure there is a prohibition against that.

From what's been argued, the intended benefits are stable families and children who are cared for by their parents.

This goes back to the false framing of the argument. As long as the argument is framed this way, you win. But that's not the argument. My question for you is what is the state's interest in promoting and sanctioning same sex relationships?

 

Your argument that religion isn't involved appears true, but the catch is that there has to be a justification for this law and pretty much everyone in the USA thinks that is going to boil down to religion. If you think not, then state your non-religious justification.

"My understanding": Your understanding SHOULD be that when a same sex couple applies for a marriage license, this law will be used to deny them marriage. That IS what happens.

Then comes your arguments concerning benefit to the state, etc So:

Same sex couples have families, and the law in question PREVENTS the parents from being married. Why has the state determined that some families be benefited while others be denied those same benefits? That is a clear discrimination that must be justified.

Also, marriage is NOT limited to unions where there are children. Major religious denominations state that marriage is important regardless of children. And, from the point of view of the state, marriages add to resiliency and order, as the two are committed to mutual support - relieving the state of some of that burden. And, marriage has numerous other factors affecting resiliency and order related to divorce, immigration and naturalization, consent in various circumstances, etc.

But, the benefit to the state is the argument for there BEING state marriage. The question here is why it is denied to same sex couples.

This is how it works: States offer marriage. Like all other features states offer, this offer must be made equally as per the 14th amendment. If the state chooses to discriminate (such as requiring an age of consent, limiting biological relationship, denying same sex couples, etc.) they have to have a justification for doing so and the justification has to pass court review.

So far, you have no justification for the discrimination you want.

 

This thread will take on a very different tone any day now; but until then...

I thought I did. The nonreligious justification for the Michigan law is because if the state doesn't define the legal meaning of marriage then who does? This law prevents others, including the courts, from redefining it apart from the normal legislative process. As for why states decided to recognize and sanction marriage in the first place, why do you think that was? Was it originally for religious reasons?

There are lots of people who will be denied marriage licenses, whether this law is there or not. What is your point? Same sex couples aren't the only relationships that do not qualify as marriage.

When my grandfather died as a young father with five kids still at home, my grandmother and her oldest daughter reared the rest of the children. Yet my grandmother was PREVENTED from marrying her daughter and enjoying the legal benefits of marriage, even though my grandmother and her daughter were committed to one another and were caring for the rest of the family. Was the state arbitrarily denying them the benefit of marriage? Did the state consider their relationship and their family "inferior?" Or did their relationship simply not meet the legal definition of "marriage?"

OK, I didn't bring that up. I just brought up the benefit to society, which is that couples who do produce babies and are likely to produce babies are encouraged and incentivized to stay together and take care of those babies. The fact that a minority of those couples do not produce babies does not negate the societal benefits of keeping together those that do.

What's the state's interest in same sex couples' relationships again?

This is so backwards. Here is how it works: men have been marrying women since the dawn of time. When the U.S. was born, the states decided to formally recognize marriage - a social construct that already existed! - because it was in their interest to keep those marriages intact. It's that simple. It is not about states "offering" a thing called marriage that they arbitrarily withhold from people. Marriage was a cultural thing before it was a state thing; but while the cultural meaning may change with a Twitter movement, the legal meaning should be changed by the appropriate legislative process.

 

But so what? The question being asked generally here is, SHOULD all of those relationships not qualify for legal recognition. This is an "ought" issue. Otherwise, you could say "lots of X aren't Z, therefore Y should not be Z." This is not a valid inference.

Same problem here. SHOULD the legal scope of marriage have been expanded to include your grandmother and her oldest daughter? Would they have enjoyed benefits? Would this marriage have caused harm?

It's not entirely clear that legal marriages with children stay together longer than unmarried couples with children, but let's presume that they do. In that case, surely it is to the childrens' benefit to permit rather than disallow the marriage of those raising them. I've never understood the rather bizarre argument that BECAUSE marriage is best for children, THEREFORE we should deny marriage to some couples raising children.

Huh? You don't have rights because the state thinks your rights are best for the state's interest. Having rights is supposed to be the default, granted to everyone on condition of appropriate behavior. The state SHOULD not make, say, bungee jumping illegal UNLESS the bungee jumpers can build a compelling case that their jumping forwards a state interest!

Back we go again. The right to marry should be the default, unless the state can present some compelling reason why two people should not marry. "We just haven't ever done it that way" is not a compelling reason for denying a fundamental right. The goal here isn't to get the state to OFFER a fundamental right, the goal is to get the state to STOP DENYING that right except in individual cases for compelling reasons.

If you wish to exercise most of your rights, you don't have to apply for state permission. Rights are something you HAVE. The state always has the power to deprive individuals of their rights for cause, and the cause most satisfy due process of law.

 

The law does not have to expressly state a particular reason for its existence for that reason to have motivated the creation of the law. Laws rarely give reasons like that--laws are laws, not arguments.

It is obvious the MIchican law was motivated by religion. The legislative analysis provided by the Michigan House of Representatives to voters included numerous religious undertones, including the argument in favor of banning same-sex marriage by the United States Conference of Catholic Bishops themselves.

To make it clearer (if that were somehow not clear enough) the state legislature of Michigan featured the religious argument against same-sex marriage when providing voters with voting information. It simply defies reality to say religion did not motivate the Michigan law.

 

Let's remember that almost all solid citizens, married or not, can have kids by more than one method of having kids.

Let's remember that the state's interest in marriage is not limited to kids. There are thousands of lines of state and federal code related to marriage and the responsibilities that come with marriage. Those lines of code cover many topics.

Let's remember that the state DOES offer marriage. And, states are required by the constitution to treat individuals equally unless there is a justification. The "we've always discriminated against them" justification does not pass the courts, so bringing up that one is ridiculous.

There is ABSOLUTELY no difference in the state's interest in hetero marriages and the state's interest in same sex marriages, so if you can come up with any reason for marriage at all, you can answer your own question about why the state should care about same sex marriages.

So, it doesn't seem to me that you have proposed any justification for treating same sex couples any differently than hetero couples.

 

The point is that the law does not promote a particular religion or moral view. It simply retains a legal definition whose roots are in a longstanding social construct that has existed in every society regardless of religion or lack thereof.

 

So the real question is what are YOU going to do when the SCOTUS rules your argument as irrelevant to SSM being legal?

 

So what? The "so what" is that you can't use the "but what about these committed couples" argument. What about them? Their relationship doesn't qualify as marriage according to state law. That's true for lots of committed relationships, not just theirs.

Why or why not? There's no difference between this and the arguments applied to SSM.

Again with the false framing. No one is being denied anything. A same sex couple raising children together can still go out and marry people of the opposite sex. A widow raising a family with her oldest daughter can still go marry someone of the opposite sex. Having children is not what makes someone eligible for marriage.

What you have to understand about "rights" is that they exist apart from the government. The government doesn't "offer" rights, the government only protects rights or takes them away. So if there was no government, would people still have the "right" to marry? Not the way you're defining it - you seem to need a state to issue a piece of paper; but they sure would by my definition. The only way the government takes away someone's "right" to marry is by penalizing them for having a particular marriage relationship. Like Virginia did with the Lovings. Same sex couples aren't being penalized for their relationships, so they are not losing any rights.

Now you're confusing rights with entitlements. You're saying marriage entitlements should be the default, and that the state should present a compelling reason why it should not offer those entitlements to every possible relationship. That would be a policy nightmare.

That's not the argument being made, and if you can't see that then I can't really help you.

Again, if you cannot exercise your "right" without government involvement, then what you're talking about is not a right. People exercised their right to marry for millenia without government recognition. Same sex couples are free to continue doing so. If they want their relationships formally recognized by the state, then either move to a state that does or make the argument in their own state for why it should. Some will be convinced, others won't - that's why some states let 18-year-olds get married without parental consent and other states do not.

 

Yes, we certainly agree on that. What I was asking was not whether these relationships qualify for legal marriage, but rather whether the current criteria for qualification should be changed.

Yes, that's the point. You've got it. Nobody is claiming that the current criteria, as applied, aren't the current criteria. The argument is that these criteria can and should be improved.

This is what I call the "stupid defense". I'm tired of it. These people are being denied the legal right to marry the single, adult, consenting, unrelated individual of their choice. Saying there's no denial because they can marry someone they do not wish to marry is the "stupid defense." It's like, if the law forbids you from eating meat, you are denied the right to eat meat. Saying "there's no denial, because you can eat lettuce" is stupid. You are denied the right to eat meat.

Yes, that's what I said.

Yes, exactly so. In this case, the state is going out of their way to deprive a class of people of a fundamental right.

Let's not play word games. That piece of paper makes very real differences in a great many ways. It represents a long list of privileges, responsibilities, and protections not available without it. If it were meaningless, nobody would behaving this debate.

Except the right to marry! In the immortal words of Phil Rizzuto, HOLY COW! OK, I'm the government. Here is something you want that I grant to most other people. YOU can't have it! If I gave it to you, you would unquestionably benefit, but I'm not penalizing you, oh no! You aren't losing any rights except the right I refuse to allow you to exercise! Even Orwell would be embarressed at the transparent dishonesty of your claim. You remind me of the Pentagon Denier, who can look you straight in the eye, deny you exist, and sincerely believe it. This kind of self-delusion is phenominal.

Right, wrong, Right, entitlements granted to nearly everyone, should be denied to a few only if some compelling reason for denial can be presented. This has always been the case. And it hasn't been a policy nightmare -- in practice, it has only caused problems when the state (1) denies a right or entitlement; (2) without any rationale.

Read your own words: "Here is how it works: men have been marrying women since the dawn of time." NOWyou are saying this is not an appeal to how things have been in the past? Seriously?

Now, this is what I call the "weasel defense." Gee, states vary in some of the peripheral details when it comes to marriage. They have differences in age, cost of license, waiting periods. And THEREFORE, states are free to deny FUNDAMENTAL rights like the right to get married AT ALL! The Loving case illustrated that the "some states allow it, some don't, it's up to the state" argument has a very real limit, beyond which the differences are profound and not simply cosmetic. SSM, like interracial marriage, is beyond that limit.

And this is basically the issue. The argument is put forward that any two unrelated, consenting, single adults should be permitted to marry each other, UNLESS you can provide a compelling reason to deny it. You have not done so. You haven't even tried. Can you make an effort?