# 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:** 20
**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, 4:42am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/381 "2012-06-07T04:42:01Z")
> [@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. > > 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. Funny, if I google for “the right to marriage flows from the right to procreate” the only result is this thread. I guess I"ll concede the debate due to attrition, as the content is lacking. ---
**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, 4:43am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/382 "2012-06-07T04:43:42Z")
> [@Trinopus](#): > > 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. You have your reasoning ass-backwards my friend. Since you and I agree that the race would survive without marriage, as anyone would agree, we need to ask whether the race would survive without procreation. If we conclude it would not, then we know that the Supreme court linked procreation and marriage in Skinner when it said “procreation and marriage are fundamental to the very survival and existence of the race.” In determining what they mean, we realize that since allowing no marriages does not in fact result in the end of the species, (especially in a case where marriage is not an issue) we realize that they are linking the two. Adoption is not a fundamental right of anyone. To be an adoptive parent, you must first qualify, and that process denies a lot of people. It is of the nature of a privilege. Please produce a citation for the fundamental right of adoption. You have a right to apply, but beyond that… ---
**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, 4:46am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/383 "2012-06-07T04:46:32Z")
> [@Bryan\_Ekers](#): > > Do you acknowledge that is it _not_ mandatory in marriage? Let’s be precise here. It is not in our culture. But it scores you no points; there is no mandate to mandatory exercise of a right just because you have it. If you want to know, the Hebrews in fact did mandate divorce at ten years for childless couples. ---
**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, 4:48am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/384 "2012-06-07T04:48:36Z")
> [@David42](#): > > It is not in our culture. _Ding_ All anti-SSM arguments involving procreation are demolished. Thanks for playing. ---
**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, 4:51am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/385 "2012-06-07T04:51:05Z")
> [@rat\_avatar](#): > > Funny, if I google for “the right to marriage flows from the right to procreate” the only result is this thread. > > I guess I"ll concede the debate due to attrition, as the content is lacking. Yeah, that tends to happen if you exactly quote someone on the straight dope. Not up to me to frame the issue for your google search. You failure to learn is exactly that. Try harder next time. Here’s a hint–why don’t you try to find out why rice, for instance is thrown at weddings, and why all cultures have an equivalent. If you weren’t incredibly ignorant of even modern wedding rituals and why we do them, alarm bells would have been going off a long time ago in your head about what you say. ---
**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, 4:55am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/386 "2012-06-07T04:55:41Z")
> [@David42](#): > > It is not in our culture. > > But it scores you no points; there is no mandate to mandatory exercise of a right just because you have it. > > If you want to know, the Hebrews in fact did mandate divorce at ten years for childless couples. Cite!!! ---
**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, 4:57am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/387 "2012-06-07T04:57:10Z")
> [@Bryan\_Ekers](#): > > _Ding_ All anti-SSM arguments involving procreation are demolished. Thanks for playing. wrong. you have not established how homosexuals have the right to marry. Heterosexuals have the right because the right comes from procreation. You cannot prove that failure to force the right of procreation, to mandate it, makes marriage a thing so divorce from procreation that it does not relate. But maybe you are only going on with this ignorance because someone has mandated your exercise of free speech, and you feel you must type or be punished or something. Are you suggesting that we must mandate procreation in marriage, as the hebrews did? Is it a case where if only we had mandated procreation, instead of merely attempting to channel it into marriage, that gays would not have the right? Is that your claim on the source of the right for gays to marry? A failure to mandate procreation? ---
**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, 5:03am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/388 "2012-06-07T05:03:35Z")
> [@David42](#): > > wrong. you have not established how homosexuals have the right to marry. That wasn’t my goal. I just demolished the arguments that would stop them. It’s going to take a positive act by SCOTUS to apply strict scrutiny and the 14th Amendment to seal the deal. ---
**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, 5:12am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/389 "2012-06-07T05:12:10Z")
> [@David42](#): > > It is not in our culture. > > But it scores you no points; there is no mandate to mandatory exercise of a right just because you have it. > > If you want to know, the Hebrews in fact did mandate divorce at ten years for childless couples. This not correct, A man SHOULD divorce and some women were stressful in petitioning for one, it was not a mandate at all. [ > [@](#): > > A husband should divorce his wife after ten years of childless marriage; though she may marry again (Yev. 6:6; Sh. Ar., EH 154:6). Some men in childless marriages chose to take a second wife rather than divorce an apparently infertile spouse (Yev. 65a). Conversely, the Talmud records instances of childless wives who successfully petitioned rabbinic courts to compel their unwilling husbands to divorce them after 10 years of infertile marriages based on their fears of an impoverished widowhood and old age without the support of offspring (Yev. 65b). Aggadic texts generally deplore dissolution of marriages, even when male procreation is at stake, presenting preservation of a loving childless marriage as a situation where human needs and feelings overrule legal prescriptions. Such midrashic traditions emphasize instead the efficacy of prayer and the necessity of faith in God (Pesikta de-Rab Kahana 22:2; Song R. 1, 4:2). ]([Barrenness and Fertility](http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0003_0_02084.html)) ---
**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, 5:12am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/390 "2012-06-07T05:12:27Z")
> [@rat\_avatar](#): > > Cite!!! “The Talmud (Yevamot 64a), however, presents a baraitha saying that the couple must dissolve their marriage: “If a man has taken a wife and been with her ten years, and she has not born child – he must divorce her and pay her the sum of her ketubbah, [5] lest he not have sons because of her.” This is also the ruling cited in Jewish law. [6] The Talmud go so far as to present an opinion that the couple must be forced to divorce, even though they wish to remain married without having children together. [7]” [http://www.biu.ac.il/JH/Parasha/eng/toledot/shi.html](http://www.biu.ac.il/JH/Parasha/eng/toledot/shi.html) ---
**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, 5:14am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/391 "2012-06-07T05:14:30Z")
> [@rat\_avatar](#): > > This not correct, A man SHOULD divorce and some women were stressful in petitioning for one, it was not a mandate at all. > > [URL=“[Barrenness and Fertility](http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0003_0_02084.html)”] Yes, there were some rabbinical courts that allowed an additional wife rather than a mandated divorce. Nevertheless, laws were written mandating divorce if a couple were childless after ten 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, 5:17am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/392 "2012-06-07T05:17:11Z")
> [@Bryan\_Ekers](#): > > That wasn’t my goal. I just demolished the arguments that would stop them. It’s going to take a positive act by SCOTUS to apply strict scrutiny and the 14th Amendment to seal the deal. An argument that stops them is “gays do not have the right to marriage.” To demolish it, you need to show how it is they do have a right, because I have shown the evidence proving my statement. ---
**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, 5:22am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/393 "2012-06-07T05:22:05Z")
> [@David42](#): > > An argument that stops them is “gays do not have the right to marriage.” To demolish it, you need to show how it is they do have a right, because I have shown the evidence proving my statement. Well, the 14th will do that, if a majority of SCOTUS uses strict scrutiny. It’ll be close, maybe not successful the first time, but I’m confident it will happen eventually. And ummmm… no, I don’t believe you have. ---
**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, 5:22am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/394 "2012-06-07T05:22:29Z")
Two people wish to speak. One wants to give a lecture in a university. the other wants to yell “Fire!” in a crowded theater. There is a right involved, that of free speech. One activity is covered by that right, the other is not. You are claiming, in equivalent, that our failure to force the professor’s lecture gives the man in the theater the right to shout “Fire.” ---
**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, 5:22am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/395 "2012-06-07T05:22:41Z")
> [@David42](#): > > Yes, there were some rabbinical courts that allowed an additional wife rather than a mandated divorce. > > Nevertheless, laws were written mandating divorce if a couple were childless after ten years. As was the mandate to kill back talking children. I doubt it happened often. BTW, I did report your personal attack, I will leave the debate now. ---
**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, 5:26am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/396 "2012-06-07T05:26:11Z")
> [@David42](#): > > You are claiming, in equivalent, that our failure to force the professor’s lecture gives the man in the theater the right to shout “Fire.” Ummmm… no, I don’t believe I am. ---
**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, 5:40am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/397 "2012-06-07T05:40:49Z")
> [@Bryan\_Ekers](#): > > Well, the 14th will do that, if a majority of SCOTUS uses strict scrutiny. It’ll be close, maybe not successful the first time, but I’m confident it will happen eventually. > > And ummmm… no, I don’t believe you have. Wrong, the 14th is not a source of rights (other than equal treatment). It does not create any right where none exists before. The 14th amendment itself, asks the question “is there a fundamental right involved?” in determining whether to invoke strict scrutiny. This is the same circular argument you made before (or maybe **rat** did, I don’t remember.) Do I have the right to an abortion, being a man? Or is the right to abortion dependant on the ability to get pregnant? \*\*“Your Honor, I am suing under EP because the state will not allow me to have nuclear weapons. You must use strict scrutiny because I have a right to nuclear weapons.” “But, you don’t have a right to nuclear weapons!” “Sure I do, the 14th amendment says so.” “Whaaaa?” “It says you have to treat me equally as other people. Since the president and members of the armed services have a right to have nuclear weapons, so do I.” “That’s not how it works. The president has the right to nukes because he has the duty to defend the nation.” “And since he has it, I do too, because I also will defend the nation.” “You have no arms or legs, how are you gonna do that?” “I can get scientific help. I know I wasn’t born a soldier, but this is the modern world, quit living in the 15th century.” “You do not have a right to defend the country, it is a privilege that flows from your ability to fight.” “I do too! Since the president has that right, so do I! We’re equal! What am I some second class citizen?” “You are not a second class citizen because we have not given you the same rights as the president.” “Yes you did, the 14th amendment says we are equal.” “No, the right to be president and exercise the duties and privileges flows from being elected.” “Prove it.” “No, you should be proving why you have the right to nuclear weapons.” “I already did, the 14th amendment gives me the right.” “Case dismissed.”\*\* ---
**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, 5:51am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/398 "2012-06-07T05:51:17Z")
> [@rat\_avatar](#): > > As was the mandate to kill back talking children. > > I doubt it happened often. > > BTW, I did report your personal attack, I will leave the debate now. What happened to leaving due to attrition? ---
**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, 5:57am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/399 "2012-06-07T05:57:34Z")
Oh, I think I’m getting a better handle on the 14th than you. And frankly, it wouldn’t surprise me if, after a pro-ssm SCOTUS decision, there were a lot of complaints about “new rights” being created out of thin air. Such a hysterical hissy-fit it will be… Anyhoo, bedtime. ---
**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, 6:05am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/400 "2012-06-07T06:05:44Z")
> [@Bryan\_Ekers](#): > > Oh, I think I’m getting a better handle on the 14th than you. And frankly, it wouldn’t surprise me if, after a pro-ssm SCOTUS decision, there were a lot of complaints about “new rights” being created out of thin air. Such a hysterical hissy-fit it will be… > > Anyhoo, bedtime. Well, when you come back please cite a principle that the fourteenth amendment bestows rights on people who do not have them from another source, if you don’t mind, seeing as how you have such a better handle on the matter. Goodnight. I’m tired too. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=19) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=21)