# 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:** 19
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 3:52am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/361 "2012-06-07T03:52:10Z")
> [@rat\_avatar](#): > > Bad, most likely intentionally mistranslated bibles do not turn concubines into wives. > > [ You cannot prove she was a mere concubine, as the word could mean either, but there is another word for concubine. Wanna guess which one is used in Gen 16:3? [H802 - 'iššâ - Strong's Hebrew Lexicon (kjv)](http://www.blueletterbible.org/lang/lexicon/lexicon.cfm?Strongs=H802&t=KJV)]([http://www.jewishencyclopedia.com/articles/7021-hagar](http://www.jewishencyclopedia.com/articles/7021-hagar)) (Hebrew) 'ishshah 1. woman, wife, female a) woman (opposite of man) b) wife (woman married to a man) c) female (of animals) d) each, every (pronoun) > **[H6370 - pîleḡeš - Strong's Hebrew Lexicon (kjv)](https://www.blueletterbible.org/lexicon/h6370/kjv/wlc/)** > > H6370 - פִּילֶגֶשׁ pîylegesh, pee-leh'-ghesh; or פִּלֶגֶשׁ pilegesh; of uncertain derivation; a concubine; also (masculine) a paramour:—concubine, paramour. (Hebrew) piylegesh 1. concubine, paramour a) concubine b) paramour 1. concubine, paramour a) concubine b) paramour ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 3:54am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/362 "2012-06-07T03:54:43Z")
> [@Bryan\_Ekers](#): > > Heh, silly me, I forgot a verb in the first sentence of my last post. It should read: > > I _have_ read the thread, and I’ve seen you present 31 mildly varying flavours of nonsense. No, you should have modified it to: “I _have_ read the thread, and I’ve seen how you defeat each of my 31 mildly varying flavours of nonsense.” Much more accurate. ---
**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 7, 2012, 3:57am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/363 "2012-06-07T03:57:02Z")
> [@David42](#): > > I’m talking about Holland. Yeah, Zakalwe. Negative results from other countries count. Neutral or positive results don’t mean jack. Not that he has to _prove_ gay marriage is bad. It’s a given that it almost certainly will be, what with causing disillusionment and creating starving orphans and kicking kittens and all. The onus is on us to prove that it won’t be, even if it takes 50 years. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 3:58am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/364 "2012-06-07T03:58:28Z")
> [@Bryan\_Ekers](#): > > And if their marriages are short… so? Heck, Britney Spears had a perfectly legal marriage that lasted for 55 hours. Got any suggestion on how to prevent that without denying people who take it seriously? And if she had it annulled, then it never happened as far as the law is concerned. ---
**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 7, 2012, 3:59am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/365 "2012-06-07T03:59:07Z")
> [@David42](#): > > No, you should have modified it to: “I _have_ read the thread, and I’ve seen how you defeat each of my 31 mildly varying flavours of nonsense.” > > Much more accurate. Oh, I don’t willingly lie in threads as a general rule. Your arguments are self-defeating, in any case. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 4:01am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/366 "2012-06-07T04:01:47Z")
> [@Bryan\_Ekers](#): > > Yeah, Zakalwe. Negative results from other countries count. Neutral or positive results don’t mean jack. > > Not that he has to _prove_ gay marriage is bad. It’s a given that it almost certainly will be, what with causing disillusionment and creating starving orphans and kicking kittens and all. The onus is on us to prove that it won’t be, even if it takes 50 years. I do not necessarily discount good results from foreign countries. Got some to show? I’m the first to admit that the question is about the U.S. and not Holland, and am not childiesh enough to deny all that does not agree with an overall claim. Data is seldom like that, all agreeing one way and nothing the other. ---
**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 7, 2012, 4:02am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/367 "2012-06-07T04:02:35Z")
> [@David42](#): > > Can you quote the Supreme Court to comparable effect to Skinner, such as “Marriage and adoption are fundamental to the very survival and existence of the race?” > > Authority please, on the fundamental nature of adoption, so that we would not survive without it. > > Adoption is important, and we should promote it, but that is because the marriage scheme is not perfect in inducing all aprents to marry and responsibly care for their offspring. There would still be accidents and murder to manufacture orphans, of course, and government does have an interest in not having to pay for the upbringing of children. > > I suppose you are prepared to say that the nation could not survive without adoption? > > Wouldn’t we be better off lowering the number of orphans/children in need of care by inducing their parents to marry? (for those who are in need because their parents didn’t marry of course) > > You are putting the cart before the horse in claiming that adoption is where the right to marry flows from. > > Adoption is an incidental to marriage, not the reason to do it. The reaosn for marriage is to prevent the need for adoption, as much as it can, in the first place. > > Hey! I know! Let’s destroy potential families so other people can have a reason to get married–to adopt the kids! > > Again, please provide some evidence that the race could not exist without adoption. Put a fork in it, your arguments are 100% baseless and circular, it isn’t based anything but the fallacy of wishful thinking. [“Marriage and procreation are fundamental to the very survival and existence of the race”](https://supreme.justia.com/cases/federal/us/316/535/case.html) Even if the original was not a prefatory clause there was absolutely nothing in that decision that indicates the two items are linked and/or inseparable. Those two words, Marriage and procreation, do not even reoccur in in any other part of that decision, the “fundamental right” they are talking about is to NOT BE FORCIBLY STERILIZED. Your claim loses more steam if you present more of the court opinion, and remember it was systemic eugenics based forced sterilization!!! > [@](#): > > The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. Even if you remove the reference to marriage in the entire opinion it does not change the reading. But lets look what a common law marriage is, > [@](#): > > “a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.” Black’s Law Dictionary 277 (6th ed. 1990). Yep, still no requirement to reproduce or claim that is the basis of the right. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 4:02am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/368 "2012-06-07T04:02:52Z")
> [@Bryan\_Ekers](#): > > Oh, I don’t willingly lie in threads as a general rule. Your arguments are self-defeating, in any case. Let’s get back to fundamentals. Care to answer the question yet about Loving/Skinner? ---
**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 7, 2012, 4:06am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/369 "2012-06-07T04:06:28Z")
> [@David42](#): > > Got any suggestion on how to prevent that without denying people who take it seriously? None whatsoever. If she wants a 55-hour marriage, good for her. It has no effect on people who take marriage seriously - it has a devastating effect on people who make bad arguments about the important of marriage. > [@](#): > > And if she had it annulled, then it never happened as far as the law is concerned. But while it lasted, it was indistinguishable from any legal marriage, and she faces no sanctions, no repercussions, no barriers to forming another marriage in future… So why should we pay any mind to how reverent some people think marraige is? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 4:10am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/370 "2012-06-07T04:10:03Z")
> [@rat\_avatar](#): > > Even if the original was not a prefatory clause there was absolutely nothing in that decision that indicates the two items are linked and/or inseparable. > > Those two words, Marriage and procreation, do not even reoccur in in any other part of that decision, the “fundamental right” they are talking about is to NOT BE FORCIBLY STERILIZED. > > Your claim loses more steam if you present more of the court opinion, and remember it was systemic eugenics based forced sterilization!!! > > Even if you remove the reference to marriage in the entire opinion it does not change the reading. And since the case has nothing to do with marriage, the mention of marriage is there because… (the supreme court thought procreation and marriage intimately linked in a fundamental way?) > [@rat\_avatar](#): > > But lets look what a common law marriage is, > > Yep, still no requirement to reproduce or claim that is the basis of the right. Keeping in mind that this doctrine was developed during a time when illegitimacy was a much greater burden than it is today, I’m wondering how much thought you put into requiring a bastard child _ **before** _ a valid marriage could happen. ---
**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 7, 2012, 4:10am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/371 "2012-06-07T04:10:56Z")
> [@David42](#): > > I do not necessarily discount good results from foreign countries. I have my doubts. > [@](#): > > Let’s get back to fundamentals. Care to answer the question yet about Loving/Skinner? I have answered it, and I said earlier that I’ve no interest in what you consider fundamental. Care to show me where reproduction is a mandatory aspect of marriage? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 4:14am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/372 "2012-06-07T04:14:43Z")
> [@Bryan\_Ekers](#): > > None whatsoever. If she wants a 55-hour marriage, good for her. It has no effect on people who take marriage seriously - it has a devastating effect on people who make bad arguments about the important of marriage. Responsible people who take marriage seriously are not our cause for concern. The ones who think marriage is a joke (but still go on having sex) is the concern. Who takes care of their kids when they don’t? I don’t have a good idea what to do about it either. I guess we have to live with it. > [@Bryan\_Ekers](#): > > But while it lasted, it was indistinguishable from any legal marriage, and she faces no sanctions, no repercussions, no barriers to forming another marriage in future… So why should we pay any mind to how reverent some people think marraige is? Because the more that blow it off the more we spend in social programs, courts, etc. and the more we are likely to have crime and drug problems and exponential problems with more and more following the trend of not marrying. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 4:16am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/373 "2012-06-07T04:16:51Z")
> [@Bryan\_Ekers](#): > > I have my doubts. > > I have answered it, and I said earlier that I’ve no interest in what you consider fundamental. Care to show me where reproduction is a mandatory aspect of marriage? Well we’re not talking my opinions. we’re talking about what the Supreme Court thinks is fundamental. Those are their words in Loving and Skinner, there, not mine. You’ll note the quote marks and citations give it away. Care to stop the Strawman? I have never said reproduction is mandatory in marriage. I say that the right to marriage flows from the right to procreate. Having a right to procreate is not a mandate; having a right to amrry does not mean you must. But since you cannot disprove what I do say, you keep changing it to something you CAN disprove, ---
**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 7, 2012, 4:18am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/374 "2012-06-07T04:18:15Z")
> [@David42](#): > > You cannot prove she was a mere concubine, as the word could mean either, but there is another word for concubine. Wanna guess which one is used in Gen 16:3? > > [H802 - 'iššâ - Strong's Hebrew Lexicon (kjv)](http://www.blueletterbible.org/lang/lexicon/lexicon.cfm?Strongs=H802&t=KJV) > > (Hebrew) 'ishshah > > 1. woman, wife, female > > a) woman (opposite of man) > > b) wife (woman married to a man) > > c) female (of animals) > > d) each, every (pronoun) > > [H6370 - pîleḡeš - Strong's Hebrew Lexicon (kjv)](http://www.blueletterbible.org/lang/lexicon/lexicon.cfm?Strongs=H6370&t=KJV) > (Hebrew) piylegesh > > 1. concubine, paramour > > a) concubine > > b) paramour > > 1. concubine, paramour > > a) concubine > > b) paramour Do you want to propose some method of action that during a period where Endogamy was the rule a wife could give a foreign slave girl to her husband as a wife? Even if we ignore where her offspring are discriminated against later in the book due to their concubine roots. But it doesn’t matter, the fact that god made her barren disproves your supposed mystical link of marriage to reproduction in that book. ---
**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 7, 2012, 4:21am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/375 "2012-06-07T04:21:08Z")
> [@David42](#): > > And since the case has nothing to do with marriage, the mention of marriage is there because… > > (the supreme court thought procreation and marriage intimately linked in a fundamental way?) Or maybe they realized that being sterile made finding a wife more difficult, you have absolutely no ground to stand on with your claim, it is not inferred nor implied in the decision. > [@David42](#): > > Keeping in mind that this doctrine was developed during a time when illegitimacy was a much greater burden than it is today, I’m wondering how much thought you put into requiring a bastard child _ **before** _ a valid marriage could happen. straw-man, who said I would require that. ---
**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 7, 2012, 4:23am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/376 "2012-06-07T04:23:39Z")
> [@David42](#): > > Well we’re not talking my opinions. we’re talking about what the Supreme Court thinks is fundamental. Well, what it may have, a while ago. But did they say, even then, that procreation was a mandatory aspect of marriage or not? This is not a hard question. Is procreation a mandatory aspect of legal marriage? And, I freely admit, the moment you acknowledge the answer is “no”, I have several follow-up statements that demolish any arguments against gay marriage that involve procreation. All you can really do is continue to delay, delay, delay. In fact, let’s just assume that you admitted “no” and I made my demolishing points. It’ll save time. ---
**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 7, 2012, 4:26am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/377 "2012-06-07T04:26:16Z")
> [@David42](#): > > Well we’re not talking my opinions. we’re talking about what the Supreme Court thinks is fundamental. > > Those are their words in Loving and Skinner, there, not mine. You’ll note the quote marks and citations give it away. > > Care to stop the Strawman? I have never said reproduction is mandatory in marriage. I say that the right to marriage flows from the right to procreate. Having a right to procreate is not a mandate; having a right to amrry does not mean you must. > > But since you cannot disprove what I do say, you keep changing it to something you CAN disprove, You ignored my evidence that marriage was considered an individual right with no reference to reproduction in common law. You still have failed to provide any evidence at all that the right to marry was derived from a right to procreation. Repeating claims does not make them true, if these are fundamental rights you would think someone would have written about them being linked. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [June 7, 2012, 4:32am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/378 "2012-06-07T04:32:47Z")
> [@David42](#): > > . . . Again, please provide some evidence that the race could not exist without adoption. Huh? Can you show that the race could not exist without marriage? I know an awful lot of illegitimate people… Adoption is a fundamental right of marriage: it’s the other way that the next generation receive their heritage and inheritance. And it works just fine with two men or two women. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 7, 2012, 4:36am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/379 "2012-06-07T04:36:25Z")
> [@Bryan\_Ekers](#): > > Well, what it may have, a while ago. But did they say, even then, that procreation was a mandatory aspect of marriage or not? > > This is not a hard question. Is procreation a mandatory aspect of legal marriage? > > And, I freely admit, the moment you acknowledge the answer is “no”, I have several follow-up statements that demolish any arguments against gay marriage that involve procreation. All you can really do is continue to delay, delay, delay. > > In fact, let’s just assume that you admitted “no” and I made my demolishing points. It’ll save time. As I have pointed out umpteen times, you are raising a challenge against yourself. I have never said that procreation is mandatory in marriage. You keep changing what I do say-- “the right to marriage flows from the right to procreate.” Every time you do this, every person who understands reasoning (you don’t, obviously with claims such as rational basis can be illogical) looks at your posts and knows you have nothing to defeat my claim with. Endless changing my claim and endless blanket assertions that I haven’t proven anything. That’s all you got. ---
**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 7, 2012, 4:37am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/380 "2012-06-07T04:37:50Z")
> [@David42](#): > > As I have pointed out umpteen times, you are raising a challenge against yourself. I have never said that procreation is mandatory in marriage. Do you acknowledge that is it _not_ mandatory in marriage? Let’s be precise here. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=18) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=20)