# 1st Circuit Court of Appeals: Defense of Marriage Act is Unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [May 31, 2012, 2:26pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653 "2012-05-31T14:26:03Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 5:32am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/201 "2012-06-05T05:32:05Z")
> [@David42](#): > > for one aspect of the question; but the paper contains data even from gay researchers too, who also demonstrate that gays are not economically disadvantaged as a group. The conclusion of the paper appears to be correct. > > The principle you are arguing is that any given source that has shown bias is automatically wrong on all counts. This is a logical fallacy. > > The burden is on you to show the paper is bad, and claiming that because it is available on a biased website doesn’t make the paper itself biased. If you’d ever read it, you’d know that tdata contrary to the position of FRC is admitted and discussed as well as data from gay researchers who agree gays are not disadvantaged economically. I provided documentation that FoF miss stated those researchers claimed, but obviously you refused to read that, your cite is not case law, is opinion and is discredited. Repetition on your part does not win the argument. The cite is irrelevant anyway, spending more on your mobile phone or being a market segment does not make up for being unable to be by your loved ones side at their time of death. > [@](#): > > That’s nothing more than gobbledegook. For instance, the 9th amendment does not cite Lawrence. Please clarify. and how this relates to my disagreement with **Bricker** that gays aren’t necessarily a suspect class based on new studies as to gay immutability. You fail to show in what way Romer and Lawrence are relevant to the question, just your generalization what they might do. > > they might go for rational basis on steroids, but they are coming nowhere near strict scrutiny, so I completely stand by my assertions that gay cannot be said to be immutable and distinguishing in anywhere near the same way we say race is. Luckily for all of us it doesn’t need to be strict for them to be awarded the right, I am not sure why you keep going back there except as a distraction from the real debate. 9th district…as in the 1st that is in the subject, why would I mention “one of the last districts” if I were speaking of amendments. Romer and Lawrence are directly related, they were in DADT, they were in Prop8 they are in this case. Have you even read the Districts decision? I note that you have not come back with what you are trying to protect as the “concept” of marriage. There are several studies that show that gay parents are as good as hetro parents. Married couples also tend to be more stable and more focused on the future. They also tend to lead healthier lives. All of these items are reason enough for me to want them to get married if they wish. You have provided nothing except Fear, Doubt and some biased unreliable source saying that they have some financial advantage. But what has changed in 20 years? Most people are well aware that gender preference is not a choice, most proponents of “treatment” now admit it does not work. All you have is that it is scary and doesn’t promote families. Many Gay and Lesbians make great parents and it doesn’t matter two hoots what my religious beliefs are, their marriage won’t do squat to me. I do not see where celebrating long committed relationships can be viewed as bad for the country. So once again, what is this “concept of marriage” that will be destroyed? ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 5:40am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/202 "2012-06-05T05:40:20Z")
> [@David42](#): > > Oh, you mean 9th and 1st circuit. my mistake. i’m not denying anything about some elvated scrutiny. I’m claiming gays are not under strict scrutiny or intermediate scrutiny as suspect or quasi-suspect cases. > > Moving the goalposts yet again. I challenged **Bricker** ’s claim on immutability and asked whether he meant this to the same degree of 100% certainty as we would with race. > > Please quote the case at hand for where it says it is applying elevated scrutiny to gays as a suspect class, or quasi-suspect, or suspect if we beef up rational basis, whatever. They specifically said they had to leave such questions alone and decided on the principle of federalism. > > it is most abundandtly clear that your understanding of constitutional law is woefully lacking. Race is not nearly as clear cut as you posit, many Scandinavians are more related to Kenyans than the British as an example. I am a Finn, my Great Grand Father had to sneak in through Canada due to eugenics based restrictions. Yet I would bet you would call me white. Just because Americans have accepted us in as “less worse” than the Mexicans (who are also mostly white) and the I9 has a set number of catigories doesn’t mean race is nearly as simple as you claim. Rational with bite is an elevated class BTW, so you can make claims about my education level but they are just what they are, ad hominem attacks, due to your failing argument. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 5:45am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/203 "2012-06-05T05:45:50Z")
> [@David42](#): > > We have a concept called privacy, which we have a right to. Remember Lawrence v. Texas, where it worked rightfully so to the advantage of gays? The one where the government can’t invade the privacy of gays to throw them in prison? Yeah, I get the concept, but why it should apply to marriage escapes me. There’s no demand put on straight couples to describe what kind of sex they’ll be having and how often. Is there serious consideration given to making this handing over this kind of information a requirement of gay marriage (and thus, because such information \*can’t[/t] be demanded under the privacy concept, gay marriage cannot be allowed to happen)? It’s akin to requiring a luggage search of all airline passengers, then banning the searching of the luggage of Muslim passengers, the result being that Muslims can’t fly because they can’t participate in a luggage search. > [@](#): > > Next we have to ask a question. Let’s assume for the purposes of argument that we’re past any quibbles over a recognized purpose of marriage, and assume that marriage is indeed fundamental to the existence and survival of the race, and that’s why there is a right to begin with. Therefore, the right belongs to those who at least facially can meet the satisfaction of procreation. Okay, then the existence of artificial insemination and surrogate parenting make gay marriage a go. That was easy. > [@](#): > > As I have shown the right to marriage flows from procreation because that is the fundamental aspect of marriage which is necessary to the survival and existence of the human race. Well, you _didn’t_ show it, you asked me to _assume_ it. You can’t use your assumption as evidence. > [@](#): > > See Skinner, See Loving. The question thus being, do gays meet the facial requirements in order for the right to devolve on them? The answer is no. No gay marriage alone can result in fulfillment of this fundamental purpose. Your argument, I gather, hinges on extremely narrow (conveniently narrow, in fact) definitions of “facially” and “alone”, as though we’re to ignore the application of established technologies. > [@](#): > > Now you are proposing that because the right devolves on childless heterosexuals, it must devolve on homosexuals too, since they have childlessness in common. No… what I’m saying is the existence of childless heterosexual couples undercuts the notion that procreation is a requirement for marriage. Regardless of what marriage once may have been to some society somewhere at some point in the past, procreative ability (“facially” or otherwise) is not currently a test for a marriage license. Thus, arguments that flow from the presumption that it is or should be are fundamentally flawed. If you really want to pursue this line, it’s not going to be enough to describe some historical purpose that you think marriage has or had - try quoting the relevant current laws where marriage is defined, and show us where “facial ability to reproduce” is a requirement, alongside (for example) the participants being of the age of consent, not being already married, etc. Mixed in there, in many states, is a recently added requirement that had not previously been thought needed - that the participants be of different genders and that, more so than issues of reproduction, is the issue at hand. The end result of a post-legalization U.S. (or a current-day Canada) is that some heterosexual married couples will not have children and some homosexual couples, with some medical intervention… will. It’s not necessary to indulge an analysis of the history of marriage (or for that matter, to involve issues of privacy) to get to this stage. It’s as though you’re introducing needless complexity in order to avoid reaching a conclusion. > [@](#): > > They have to have outside help, which certainly means that any approaching a fundamental status means including something else as well. So now marriage is a matter not just of two people, but perhaps three people at a minimum. They must also include a surrogate, or a medical professional, or courts to adopt, or any other of many sorts of people who might assist them. Really? _This_ is the argument you want to use? When Louise Brown was born in 1978 (or, if you prefer an American example, Elizabeth Jordan Carr in 1981), did it occur to _anyone_ that the involvement of third-party fertility specialists modified or should modify the status of her parents’ marriage? This is utter invention on your part. > [@](#): > > If you wanna argue that these third persons be seen as part of the fundamental building blocks of gays in marriages, then we’re really changing the concept of marriage, and so far as I know, gays are not asking for this. No, I don’t want to argue this… because it’s utterly absurd and, frankly, sounds kinds of desperate. Regarding your earlier use of “fundamental building blocks of society”, I admit being taken aback because it seems like such a bizarrely insensitive and insulting thing for you to say, akin to saying a quadriplegic’s life was utterly valueless. I realized a few minutes afterward what you were _trying_ to say, and it’s _still_ kind of insulting to anyone who chooses not to (or cannot) have children, and this doesn’t even generally _apply_ to homosexuals because there’s nothing about homosexuality that impacts fertility, and then there’s the aforementioned reproductive technologies. Anyway skipping the wall of text built on a foundation of jell-o… > [@](#): > > There’s a current thread about what it would take to make America collapse. Suggest no quadraplegics. get laughed out of the thread. Suggest no gays; perhaps you won’t be laughed at due to sensitivity to gays, but you will be denied. Then suggest no procreation. then suggest no responsible procreation (all children under-cared for.) You might just get some serious debate on that issue. Um… relevance? > [@](#): > > Shall we see how your paraplegic false equivalence will fare in such a thread considering very serious issues as to what is important to survival and what isn’t? Is it the role of government to legally protect what is important to survival and nothing else? Until and unless the U.S. enters some kind of desperate survival situation such as I assume is being discussed in that thread, a lot of its legislative efforts are actually pretty mundane. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 6:08am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/204 "2012-06-05T06:08:36Z")
> [@rat\_avatar](#): > > Race is not nearly as clear cut as you posit, many Scandinavians are more related to Kenyans than the British as an example. > > I am a Finn, my Great Grand Father had to sneak in through Canada due to eugenics based restrictions. > > Yet I would bet you would call me white. > > Just because Americans have accepted us in as “less worse” than the Mexicans (who are also mostly white) and the I9 has a set number of catigories doesn’t mean race is nearly as simple as you claim. Can gene testing determine your Finnish ancestry? YES. Can gene testing identify a gay? NO. > [@rat\_avatar](#): > > Yet I would bet you would call me white. Look, man, we can trace all the races back to the approximate location of Kenya. Just because the British may be a step further removed doesn’t make Finns non-caucasian. “White” is a euphemism for certain caucasians, if you don’t know. Forgive me if you are some Finnish minority other than the traditional majority caucasian Finnish people. If you are of the traditional Finnish people, then you are fairly called white, or caucasian, just like nearly all indigenous europeans. “Conceived as one of the great races, alongside Mongoloid and Negroid, it was taken to consist of a number of “subraces”. The Caucasoid peoples were usually divided in three groups on linguistic grounds, termed Aryan (Indo-European), Semitic (Semitic languages) and Hamitic (Berber-Cushitic-Egyptian). The postulated subraces vary depending on the author, including but not limited to Nordic, Mediterranean, Alpine, Dinaric, East Baltic, Arabid, Turanid, Iranid and Armenoid subraces.” > **[Caucasian race](https://en.wikipedia.org/wiki/Caucasian_race)** > > The Caucasian race (also Caucasoid,\[a\] Europid, or Europoid) is an obsolete racial classification of humans based on a now-disproven theory of biological race. The Caucasian race was historically regarded as a biological taxon which, depending on which of the historical race classifications was being used, usually included ancient and modern populations from all or parts of Europe, Western Asia, Central Asia, South Asia, North Africa, and the Horn of Africa. > Introduced in the 1780s by members ... You’re a white if you are of the traditional majority Finnish ancestry. yes, you are a different subrace than the British. So what, you’re both white. I’m white by French, English, German and Irish ancestors, and we have connections to “Kenyans” too. The fact that it’s alittle more or a little lesser connection than other whites doesn’t change the fact we are both caucasians, and belonging to subraces which clearly are called "white"in the U.S. and Canada. if your skin is light colored,m and you’re caucasian, you’re white. If being called white is a racial slur to Finns for some reason, I’m not doing this for that purpose. If the Finns think being called is an insult, I apologize in advance, but I am unaware of such a lingual convention. > [@rat\_avatar](#): > > Rational with bite is an elevated class BTW, so you can make claims about my education level but they are just what they are, ad hominem attacks, due to your failing argument. It’s not your education level, it’s your understanding. Very well educated people sometimes make the same mistakes you are. I asked you to quote the case at hand for where it applied any kind of EP scrutiny at all in coming to its ruling, and you fail to do so. We all know that is because it’s not there, and this case is not a precedent in the 1st circuit that gays have to be held to elevated rational basis, contrary to your mistaken assertion. Your analysis goes no further than “is it pro-gay?” and if the answer is yes, then you believe that pro-gay means that it answers all other gay issues also in a way that is pro-gay. that’s not how it works. or you could quote this case. You never will, it doesn’t fit your claim. I am tired of you and your silly games. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 6:24am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/205 "2012-06-05T06:24:25Z")
> [@David42](#): > > Can gene testing determine your Finnish ancestry? YES. > > Can gene testing identify a gay? NO. Can a Genetic test detect Bastard Children? Why are you not concerned about Hetro Marriage fraud? because it is really a non-issue, just FUD. > [@](#): > > Look, man, we can trace all the races back to the approximate location of Kenya. Just because the British may be a step further removed doesn’t make Finns non-caucasian. “White” is a euphemism for caucasian, if you don’t know. Forgive me if you are some Finnish minority other than the traditional majority caucasian Finnish people. If you are of the traditional Finnish people, then you are fairly called white, or caucasian, just like nearly all indigenous europeans. Actually the group of Keynesian broke off of people would would consider Caucasoid about the same time they headed north. To think movement was only north is showing how little you have as far as evidence in this argument. > [@](#): > > “Conceived as one of the great races, alongside Mongoloid and Negroid, it was taken to consist of a number of “subraces”. The Caucasoid peoples were usually divided in three groups on linguistic grounds, termed Aryan (Indo-European), Semitic (Semitic languages) and Hamitic (Berber-Cushitic-Egyptian). > The postulated subraces vary depending on the author, including but not limited to Nordic, Mediterranean, Alpine, Dinaric, East Baltic, Arabid, Turanid, Iranid and Armenoid subraces.” > > [Caucasian race - Wikipedia](http://en.wikipedia.org/wiki/Caucasian_race) > > You’re a white if you are of the traditional majority Finnish ancestry. yes, you are a different subrace than the British. So what, you’re both white. I’m white by French, English, German and Irish ancestors, and we have connections to “Kenyans” too. The fact that it’s alittle more or a little lesser connection than other whites doesn’t change the fact we are both caucasians, and thus “white.” > > If being called white is a racial slur to Finns for some reason, I’m not doing this for that purpose. If the Finns think being called is an insult, I apologize in advance, but I am unaware of such a lingual convention. Please show me where US police considered eastern Europeans the same as other Europeans. National Origins Formula act did not use your arbitrary racial grouping. > [@](#): > > It’s not your education level, it’s your understanding. Very well educated people sometimes make the same mistakes you are. > > I asked you to quote the case at hand for where it applied any kind of EP scrutiny at all in coming to its ruling, and you fail to do so. We all know that is because it’s not there, and this case is not a precedent in the 1st circuit that gays have to be held to elevated rational basis, contrary to your mistaken assertion. > > Your analysis goes no further than “is it pro-gay?” and if the answer is yes, then you believe that pro-gay means that it answers all other gay issues also in a way that is pro-gay. that’s not how it works. > > or you could quote this case. You never will, it doesn’t fit your claim. > > I am tired of you and your silly games. [ > [@](#): > > The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and (2) intruded on the historic role of the states in defining marriage. ]([First Circuit Unanimously Strikes Down DOMA Section 3 - The Volokh ConspiracyThe Volokh Conspiracy](http://volokh.com/2012/05/31/first-circuit-unanimously-strikes-down-doma-section-3/)) Oh..look..how odd, real experts agree with me…despite the additional attempt to resort to ad hominems to bolster your arugment. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 6:28am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/206 "2012-06-05T06:28:28Z")
Huh. Looking back, the first paragraph of my previous post has a few stray words, the result of half-completed (and then forgotten) edits. I meant to say: Yeah, I get the concept, but why it should apply to marriage escapes me. There’s no demand put on straight couples to describe what kind of sex they’ll be having and how often. Is there serious consideration given to making handing over this kind of information a requirement of gay marriage (and thus, because such information cannot be demanded under the privacy concept, gay marriage cannot be allowed to happen)? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 6:49am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/207 "2012-06-05T06:49:50Z")
> [@rat\_avatar](#): > > [URL=“[First Circuit Unanimously Strikes Down DOMA Section 3 - The Volokh ConspiracyThe Volokh Conspiracy](http://volokh.com/2012/05/31/first-circuit-unanimously-strikes-down-doma-section-3/)”] > > Oh..look..how odd, real experts agree with me…despite the additional attempt to resort to ad hominems to bolster your arugment. Maybe you could start at the beginning of the thread and see that I don’t need you to show me where the case is. I cited a link to it many pages back. if you’d bother reading the thread, you might have learned something. The court first determined that BAker is binding precedent on them and forecloses any constitutional analysis. After engaging in dicta about equal protection, they then went on to decide the case on the merits on a basis of federalism. This means they did not apply EP analysis to this case to decide it. As the EP language is mere dicta, this is NOT a 1st circuit precedent for elevated scrutiny. “Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications–in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer–a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.” They also held: “Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state’s refusal to recognize same-sex marriage violated federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id. Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent.” Then they said: " Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage." _Mass. v. USDHHS._ Which just illustrates your confusion about what’s going on here. All the EP talk is just talk about how they wish they could do that, but they can’t, because Baker prevents them from doing so. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 6:53am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/208 "2012-06-05T06:53:02Z")
And to answer, without close relatives, just given DNA it would be difficult to tell my DNA from that of someone who was Yupik or Mongolic, I am a member of Haplogroup N1b, my family is historically from Karelia I do have an Occipital bun but I don’t believe that is an accurate way to lump someone into a 19th century racial grouping which was based on ignorance. From a xenophobic standpoint we were “Eastern European” and not as desirable. You are probably thinking of the more Scandinavian Finn. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 6:58am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/209 "2012-06-05T06:58:39Z")
> [@Bryan\_Ekers](#): > > Huh. Looking back, the first paragraph of my previous post has a few stray words, the result of half-completed (and then forgotten) edits. I meant to say: > > Yeah, I get the concept, but why it should apply to marriage escapes me. There’s no demand put on straight couples to describe what kind of sex they’ll be having and how often. Is there serious consideration given to making handing over this kind of information a requirement of gay marriage (and thus, because such information cannot be demanded under the privacy concept, gay marriage cannot be allowed to happen)? Once again, NO. I am not arguing that gay marriage is ok if we ask questions about their sexual practices. Do you not understand that we cannot determine ahead of time which straight couples are going to have children? How could we deny marriage to a straight couple based on failure to fulfill the fundamental purpose of marriage? Short of delving into their gonads, we can’t freaking tell who is not going to have kids. We CAN determine gays aren’t going to have children WITHOUT violating their privacy. There is a conflcit with multiple rights to deny marriage to childless straight couples. They are already married before we know there is no kid. We know from the start gays aren’t gonna have kids without a third person being involved. So if the right is going to devolve, it would have to devolve on all three to make gay marriage a fundamental building block of society. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 7:02am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/210 "2012-06-05T07:02:07Z")
> [@rat\_avatar](#): > > And to answer, without close relatives, just given DNA it would be difficult to tell my DNA from that of someone who was Yupik or Mongolic, I am a member of Haplogroup N1b, my family is historically from Karelia > > I do have an Occipital bun but I don’t believe that is an accurate way to lump someone into a 19th century racial grouping which was based on ignorance. > > From a xenophobic standpoint we were “Eastern European” and not as desirable. You are probably thinking of the more Scandinavian Finn. I’m no expert on Finnish ethnicity. But genetic testing will tell us who your relatives are and what degree you belong to any of the three major races, and a lot about ethnicity in a lot cases. You can’t plot someone on the Kinsey scale like that using DNA evidence. ---
**Author:** ![Noone\_Special](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/noone_special/32/2863_2.png) [@Noone\_Special](https://boards.straightdope.com/u/Noone_Special)\ **Post date:** [June 5, 2012, 7:08am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/211 "2012-06-05T07:08:54Z")
> [@David42](#): > > Do you not understand that we cannot determine ahead of time which straight couples are going to have children? How could we deny marriage to a straight couple based on failure to fulfill the fundamental purpose of marriage? Short of delving into their gonads, we can’t freaking tell who is not going to have kids. So maybe whatever agency recognizes marriages should only recognize a couple as “legally co-habitating” until they produce offspring (with the genetic paperwork to prove that they are the parents!) and only then consider them “married?” Now **that** would uphold the sanctity of marriage! 😃 Also, any person who has been deemed (or purposefully rendered!) infertile by an accredited medical professional is barred from marriage today… um, right? Right…!? ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 7:11am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/212 "2012-06-05T07:11:11Z")
> [@David42](#): > > Maybe you could start at the beginning of the thread and see that I don’t need you to show me where the case is. I cited a link to it many pages back. if you’d bother reading the thread, you might have learned something. > > The court first determined that BAker is binding precedent on them and forecloses any constitutional analysis. > > After engaging in dicta about equal protection, they then went on to decide the case on the merits on a basis of federalism. > > This means they did not apply EP analysis to this case to decide it. As the EP language is mere dicta, this is NOT a 1st circuit precedent for elevated scrutiny. > > “Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications–in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer–a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.” > > They also held: > > “Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state’s refusal to recognize same-sex marriage violated federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id. > Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent.” > > Then they said: > > " Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage." > > _Mass. v. USDHHS._ > > Which just illustrates your confusion about what’s going on here. > > All the EP talk is just talk about how they wish they could do that, but they can’t, because Baker prevents them from doing so. Is this not the typical “rational with bite” side stepping that even SCOTUS did? Isn’t that the whole point that they expect a compelling reason without the claim of higher scrutiny? I think you are mostly presupposing my argument ala strawman and using it to fit your preferred method of argument. And yes obviously Baker is still binding, did I ever claim it was not? I said the 1st was one of the last districts with standing precedence on the level of scrutiny in relation to sexual precedence as a protected class. Most districts use of “pure rational” were based on bowers, which is dead as of Lawerance > [@](#): > > “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” We will see who guesses right on this when it makes it to SCOTUS but I know I was right on this decision back in the “What is the secular purpose of DOMA” thread. Of course none of this will be anything more than pure guesses until we see what question the court even accepts. Then it will still be guesses until the courts come back, but I bet they use “rational with bite” again, mostly because they are too conservative to do the right thing and give it a proper level of scrutiny. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 7:13am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/213 "2012-06-05T07:13:16Z")
> [@Noone\_Special](#): > > So maybe whatever agency recognizes marriages should only recognize a couple as “legally co-habitating” until they produce offspring (with the genetic paperwork to prove that they are the parents!) and only then consider them “married?” Now **that** would uphold the sanctity of marriage! 😃 > > Also, any person who has been deemed (or purposefully rendered!) infertile by an accredited medical professional is barred from marriage today… um, right? Right…!? Despite the claims in this thread, the church and the government keeping track of marriages was originally to prevent fraud in inheritance the child thing is a modern invention and mostly just rhetoric. They did not start making you have one in the church to prevent kids from marrying who they wanted vs. who their parents wanted them to marry in the 1600’s IIRC. Previous to that you could say I do alone by the hay bales and the church would accept it. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 7:23am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/214 "2012-06-05T07:23:15Z")
> [@David42](#): > > I’m no expert on Finnish ethnicity. > > But genetic testing will tell us who your relatives are and what degree you belong to any of the three major races, and a lot about ethnicity in a lot cases. > > You can’t plot someone on the Kinsey scale like that using DNA evidence. You are assuming that someone being racist has the same set of races you selected. This is not always the case, nor were those “three major races” based on scientific data. We can not also know that a hetro marriage is in good faith, why does that really apply? If this case is not held to pure rational basis what purpose to the state have in targeting same sex marriage? Is fraud unique to same sex marriages? ---
**Author:** ![Noone\_Special](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/noone_special/32/2863_2.png) [@Noone\_Special](https://boards.straightdope.com/u/Noone_Special)\ **Post date:** [June 5, 2012, 7:28am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/215 "2012-06-05T07:28:35Z")
> [@rat\_avatar](#): > > Despite the claims in this thread, the church and the government keeping track of marriages was originally to prevent fraud in inheritance the child thing is a modern invention and mostly just rhetoric. Yeah, that’s kind of what I’m getting at… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 12:51pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/216 "2012-06-05T12:51:47Z")
> [@rat\_avatar](#): > > Despite the claims in this thread, the church and the government keeping track of marriages was originally to prevent fraud in inheritance the child thing is a modern invention and mostly just rhetoric. > > They did not start making you have one in the church to prevent kids from marrying who they wanted vs. who their parents wanted them to marry in the 1600’s IIRC. > > Previous to that you could say I do alone by the hay bales and the church would accept it. Cite? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 12:54pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/217 "2012-06-05T12:54:21Z")
> [@Noone\_Special](#): > > So maybe whatever agency recognizes marriages should only recognize a couple as “legally co-habitating” until they produce offspring (with the genetic paperwork to prove that they are the parents!) and only then consider them “married?” Now **that** would uphold the sanctity of marriage! 😃 > > Also, any person who has been deemed (or purposefully rendered!) infertile by an accredited medical professional is barred from marriage today… um, right? Right…!? Maybe. But the failure to do those things has no bearing on the rational basis analysis. If we started asking questions like, “Is this restriction narrowly tailored…” then you’d have a point. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 2:10pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/218 "2012-06-05T14:10:34Z")
> [@Bryan\_Ekers](#): > > No… what I’m saying is the existence of childless heterosexual couples undercuts the notion that procreation is a requirement for marriage. Regardless of what marriage once may have been to some society somewhere at some point in the past, procreative ability (“facially” or otherwise) is not currently a test for a marriage license. Thus, arguments that flow from the presumption that it is or should be are fundamentally flawed. > > If you really want to pursue this line, it’s not going to be enough to describe some historical purpose that you think marriage has or had - try quoting the relevant current laws where marriage is defined, and show us where “facial ability to reproduce” is a requirement, alongside (for example) the participants being of the age of consent, not being already married, etc. Mixed in there, in many states, is a recently added requirement that had not previously been thought needed - that the participants be of different genders and that, more so than issues of reproduction, is the issue at hand. I really think I should stop answering you until you evidence knowledge of the thread. You jumped in at the tail, and apparently read a couple of comments or so, completely ignore the previous context that was given before, and start criticizing what you do not fully understand. You see, I am not simply choosing what historical purpose marriage has. But you can’t be bothered to read the whole thread. If you had, you’d know this has already been challenged, and I have already satisfied the challenge. Go back to page 2 and comment #97. then review the posts I noted there. You will find that I am doing nothing more than using the available precedent from the Supreme Court to determine where the right to marriage comes from. Turns out in Loving they cite Skinner, which has nothing to do with marriage but does have a precedent that procreation is fundamental. If the right to marriage doesn’t flow from the right to procreate, then that is **their** mistake, not mine. If you wish to debate American law, you need to use what precedent we have and build upon that. As it is, we have NOTHING other than the concept that gays do NOT have the fundamental right to marriage (except per a few supreme courts interpreting state constitutions) and that is a fact you need to accept, if you are going to argue LAW. As it is, you are replacing the relevant caselaw with your pie in the sky ideals. It is you who is choosing what you want to believe. Everything I’m arguing from is from precedent or is logic applied to legal principles. You may claim my logic is poor, but I notice that you do not answer ANY of the questions I pose in my hypothetical cases. That is to avoid being compelled that my logic is just fine. Now go back and read the thread instead of continually assuming something hasn’t already been argued. It’s not my job to comb back through it finding stuff for you. That onus is on you. I’m not going to go back and find something for you. If you wanna pick up where **Polycarp** left off, fine. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 2:16pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/219 "2012-06-05T14:16:43Z")
> [@Bricker](#): > > Maybe. > > But the failure to do those things has no bearing on the rational basis analysis. > > If we started asking questions like, “Is this restriction narrowly tailored…” then you’d have a point. I maintain that anti-gay marriage would survive strict scrutiny, even assuming that gays are under strict scrutiny. The law is narrowly tailored to exclude those who are not going to reproduce on the face of the matter. We do not have the crystal ball we’d need to furtherly narrowly tailor it by excluding childless couples. Too many problems arise if we contemplate some kind of affirmative indication that a couple intends to raise kids. It’s already as narrowly tailored as it can be. Or do you have another idea as to how we could more narrowly limit marriage to only those are 100% sure to procreate? I’m very eager to hear such. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2012, 2:18pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/220 "2012-06-05T14:18:42Z")
> [@David42](#): > > I maintain that anti-gay marriage would survive strict scrutiny, even assuming that gays are under strict scrutiny. > > The law is narrowly tailored to exclude those who are not going to reproduce on the face of the matter. We do not have the crystal ball we’d need to furtherly narrowly tailor it by excluding childless couples. > > Too many problems arise if we contemplate some kind of affirmative indication that a couple intends to raise kids. > > It’s already as narrowly tailored as it can be. > Or do you have another idea as to how we could more narrowly limit marriage to only those are 100% sure to procreate? I’m very eager to hear such. Sure. We could ask marrying couples to affirm their intent to procreate before we issue them a license. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=10) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=12)