# 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:** 21
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [June 7, 2012, 6:13am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/401 "2012-06-07T06:13:19Z")
> [@David42](#): > > 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. He specifically said assuming they decide to use strict scrutiny, so you are misrepresenting what he said by arguing against the 14th as a universal panacea, a claim he did not make. It’s debatable as to whether marriage was uniquely tied to procreation in the original ruling, but that’s irrelevant: 1. It’s obvious that marriage benefits society in many ways other than just procreation, and the court can easily choose to acknowledge that. 2. Gay couples have the ability to and do “procreate” in all but one of the myriad ways straight couples can and do, and there’s a compelling state interest both in having them do so, and in promoting a good family structure for any children that result from their efforts. 3. If you must make it a procreation issue, you can argue that marriage is a compelling state interest for the children, and discriminating against them based on their parent’s sexual orientation requires strict scrutiny. Or at the very least intermediate, as was done with the issue of illegitimacy. I see a lot of parallels here with the illegitimacy issue. ---
**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, 6:14am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/402 "2012-06-07T06:14:16Z")
Don’t have to. It’s my theory that SCOTUS will decide that laws banning gay marriage violate the 14th. This won’t automatically make gay marriage legal, but preventing it from being made illlegal will do, for starters. ETA: thanks, jack. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 7, 2012, 7:32am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/403 "2012-06-07T07:32:15Z")
> [@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. “Gays” is not a ctegory known to law. Persons of same-sex orientation, i.e. gay persons, do exist. By the terms of the Fourteenth Amendment, persons born in the United States and subject to the laws thereof are citizens of the United States. Statute law extends citizenship to those who can claim in by birth using _ius sanguinis_ and to those who have been naturalized. States are prohibited from abridging the rights of citizens of the United States. One such right is the right to marry, whichy was declared a fundamental right in _Loving_. The fact that _Loving_ cites _Skinner_ and _skinner_ deals with the right to reproduce does not therefore make the right recognized in _Loving_ contingent on the ability to reproduyce without external aids, any more than a court declaring a law unconstitutional and citing _Marbury_ os de[endent on whether a writ of mandamus had been issued. Americans do not derive their rights from a beneficient state, but hold them as a matter of natural law, “endowed by their Creator” (which is not regarded as explicitly theist). Whether the state derives some benefit or not from a citizen exercising one of his or her rights is immaterial to whether he or she may so exercise it. Your example of [falsely] “shouting Fire in a theater” is wort looking at, noting that Justice Holmes used this as an examp0le of the one valid exception to freedom of speech, viz, where there is a clear and present danger of injuryt to individuals resulting from that speech. Note that correctly shouting Fire in an actually-burning theater is not prohibited. There is admittedly some disagreement as to whether the right to contract same-sex marriages is guaranteed by the equal protection clause, which is subject to Footnote Four analysis. But many of the assertions you have advanced in tis thread are not germane to that. By the way, as half of an unintendedly childless heterosexual marriage, I feel honorbound to ask you if you are aware how much you resemble a pederast. And to observe that if the question offends you, then basic moral porinciples suggest that you should not have made that xomparison of others. ---
**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, 10:01am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/404 "2012-06-07T10:01:36Z")
> [@Polycarp](#): > > “Gays” is not a ctegory known to law. Persons of same-sex orientation, i.e. gay persons, do exist. By the terms of the Fourteenth Amendment, persons born in the United States and subject to the laws thereof are citizens of the United States. Statute law extends citizenship to those who can claim in by birth using _ius sanguinis_ and to those who have been naturalized. States are prohibited from abridging the rights of citizens of the United States. You must demonstrate that the right to marriage exists when your entire object is to rely on a third person and exclude half of the “union.” No heterosexual couple starts families this way. “Let’s get married honey, my plan is to get someone else pregnant.” > [@Polycarp](#): > > One such right is the right to marry, whichy was declared a fundamental right in _Loving_. The fact that _Loving_ cites _Skinner_ and _skinner_ deals with the right to reproduce does not therefore make the right recognized in _Loving_ contingent on the ability to reproduyce without external aids, any more than a court declaring a law unconstitutional and citing _Marbury_ os de[endent on whether a writ of mandamus had been issued. Two homosexuals NEVER, with all the aid in the world, reproduce. It always takes a third person to do so. They are practicing their rights to reproduce with a third person, and deliberately excluding half of their “union.” > [@Polycarp](#): > > Americans do not derive their rights from a beneficient state, but hold them as a matter of natural law, “endowed by their Creator” (which is not regarded as explicitly theist). Whether the state derives some benefit or not from a citizen exercising one of his or her rights is immaterial to whether he or she may so exercise it. DOI is not positive law, so it is nothing more than theoretical framework. And of course you are speaking utter horseshit when you say the state deriving some benefit or not from the exercise is exactly what 14th amendment jurisprudence is about. You are wrong that the state may not restrict a right. > [@Polycarp](#): > > "Your example of [falsely] “shouting Fire in a theater” is wort looking at, noting that Justice Holmes used this as an examp0le of the one valid exception to freedom of speech, viz, where there is a clear and present danger of injuryt to individuals resulting from that speech. Note that correctly shouting Fire in an actually-burning theater is not prohibited. If gay marriage imposed on the country nation-wide against the wills of legislatures and citizens results in additional people becoming convinced that marriage is beyond redemption in this country, and they put children on the welfare rolls to the extent that gays do not pick up the slack, that is a net loss to society and we cannot afford it. The interest is sufficient to deny gay marriage rights even if found to exist. > [@Polycarp](#): > > There is admittedly some disagreement as to whether the right to contract same-sex marriages is guaranteed by the equal protection clause, which is subject to Footnote Four analysis. But many of the assertions you have advanced in tis thread are not germane to that. You have it wrong. The fourteenth only protects the equal application of the laws, it does not create rights. It cannot be the source of the right if it asks the question “is there a fundamental right involved.” Look! I have a driver’s license! I’m entitled to fly a plane! If I have gone on irrelevant tangents it was only to shut people up who keep pestering me with irrelevant tangents. > [@Polycarp](#): > > By the way, as half of an unintendedly childless heterosexual marriage, I feel honorbound to ask you if you are aware how much you resemble a pederast. And to observe that if the question offends you, then basic moral porinciples suggest that you should not have made that xomparison of others. I did not call anyone here a pederast. I have not even shown ANY moral opinions here other than one of caution in yet another change in the state of marriage. Some homosexuals are pederasts, but the difference is I am NOT talking about anyone here. You are, and to tell you the truth I never thought that you would stoop so low. I figured you would give me reasoned debate, not insinuate that I am a child molestor. If it bothers you that as part of a childless couple you are not a fundamental building block of society, adopt. But if you’re in a gay childless relationship, that is your own fault for going down that path. You can adopt in either instance, but do not claim that your mimicry of the source of life gives you a right that you no longer have to pair up in presumably fruitful unions to exercise that 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, 10:15am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/405 "2012-06-07T10:15:14Z")
> [@jackdavinci](#): > > He specifically said assuming they decide to use strict scrutiny, so you are misrepresenting what he said by arguing against the 14th as a universal panacea, a claim he did not make. > > It’s debatable as to whether marriage was uniquely tied to procreation in the original ruling, but that’s irrelevant: > > 1. It’s obvious that marriage benefits society in many ways other than just procreation, and the court can easily choose to acknowledge that. > > 2. Gay couples have the ability to and do “procreate” in all but one of the myriad ways straight couples can and do, and there’s a compelling state interest both in having them do so, and in promoting a good family structure for any children that result from their efforts. > > 3. If you must make it a procreation issue, you can argue that marriage is a compelling state interest for the children, and discriminating against them based on their parent’s sexual orientation requires strict scrutiny. Or at the very least intermediate, as was done with the issue of illegitimacy. I see a lot of parallels here with the illegitimacy issue. 1. Incidental benefits from marriage do not make a new source of the right. THe right still flows from the right to procreation. 2. Gays do not procreate within their unions PERIOD and thus no need to celebrate the union. It always takes a third person. There is no compelling state interest in having homosexuals reproduce. Citation please. 3. You can argue what you like but it does not make it a worthy argument. But youa re forgetting that a child has a right to the two parents that formed him. There is no fundamental right of children to be raised by gays. Citation that there is, please. We do not any longer culturally or legally recognize illegitimacy, and arguments based on the illegitimacy of children of gays is a non-starter. There is not going to to be a child from two sperm or two ova, and thus no illegitimate child resulting to say hey! I have a right to married parents! If you want a child to avoid illegitimacy, then the two people who procreated need to be married, not one of them and a biologically irrelevant person. Not only is it a non-starter, that gays might produce illegitimate offspring, youa re using children as pawns to gain a political right, and that is utterly disgusting. The objective of gays is not to procreate when they pair up. It’s nothing but a mutual admiration society, and there is no reason to induce such persons to marry. It does nothing to induce the irresponsible procreators of the nation to marry, and that is the fundamental reason marriage exists in this country. ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [June 7, 2012, 11:02am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/406 "2012-06-07T11:02:23Z")
Wow…though I disagreed with some of your assertions, at least some of them resembled rationality. But now you seem to have gone…off. > [@David42](#): > > 1. Incidental benefits from marriage do not make a new source of the right. Why not? It’s not a “new source”, it would just be an explicit acknowledgement of an obvious fact. A new ruling does not equal “new source” of rights, it merely recognizes legally ones which were mistakenly violated previously. And they are by no means “incidental”. Even under current legal standing, a good proportion of the benefits and laws associated with marriage do not directly relate to offspring. > [@David42](#): > > THe right still flows from the right to procreation. You can’t seem to keep your story straight here. People have the right to get married because they have the right to procreate? Or, because they are procreating anyway and therefore we want them to get married? Or..what exactly? > [@David42](#): > > 1. Gays do not procreate within their unions PERIOD and thus no need to celebrate the union. It always takes a third person. That’s true of many straight couples and straight single parents. So? It’s a meaningless distinction. If marriage is tied to procreation, and gays are allowed to procreate however they like just as straights are, then there is no rational basis to suddenly separate marriage from the issue of procreation for some arbitrary subset of the population. > [@David42](#): > > There is no compelling state interest in having homosexuals reproduce. Citation please. If there is a compelling state interest in having anyone reproduce, then it applies to everyone rationally unrelated to sexual orientation. We don’t do eugenics here. > [@David42](#): > > But youa re forgetting that a child has a right to the two parents that formed him. All of those adopted kids, stepchildren, IVF kids, and orphans will be very surprised to hear that! And what about kids of surrogate pregnancies? In a sense they have three biological parents! > [@David42](#): > > There is no fundamental right of children to be raised by gays. Didn’t say there was. > [@David42](#): > > We do not any longer culturally or legally recognize illegitimacy, and arguments based on the illegitimacy of children of gays is a non-starter. . It’s an analogy. The arguments are similar. You suggested that parents already raising a child together might be given the right to marry for the benefit of the children. When you talk about benefiting or punishing offspring based on their parent’s status, you get into the same arguments of intermediate scrutiny that were addressed in the court rulings on illegitimacy. > [@David42](#): > > There is not going to to be a child from two sperm or two ova. There may be soon, the technology is getting very close. Anyway, it’s an inarguable fact that gay people, and gay couples, in whatever fashion, have many children, have a legal right to do so, and are even biologically related to many of them. This is not something that can just be ignored or wished away. > [@David42](#): > > Not only is it a non-starter, that gays might produce illegitimate offspring, youa re using children as pawns to gain a political right, and that is utterly disgusting. I’m not talking about illegitimate offspring, I’m using the relevant court rulings on them as an analogy. > [@David42](#): > > The objective of gays is not to procreate when they pair up. It’s nothing but a mutual admiration society, and there is no reason to induce such persons to marry. You were saying something about “utterly disgusting”? That’s not only clearly and demonstrably ridiculous, it’s borderline hate speech. FTR, I know plenty of gay people who are holding off having kids until they are in a LTR, and plenty who see having children as a fundamental part of a LTR, and many whose families have faced obstacles due to not being able to legally marry. For that matter, I know many more straight people for whom the objective is NOT to procreate when they pair up. > [@David42](#): > > It does nothing to induce the irresponsible procreators of the nation to marry, and that is the fundamental reason marriage exists in this country. Oh is that the reason, now. I thought the reason was because we have the right to procreate. Or because we must procreate to survive. Or to solve the problem of unwanted pregnancies. It’s a right. No, it’s a state interest. It keeps changing to suit your mood. If that’s really the reason, then there are plenty of “irresponsible procreators” who happen to be gay and/or in a same sex relationship, so by your rationale, they should all be able to marry / get married. For that matter, in this age of reproductive technology, the choice to aid having children or to prevent unwanted children is fairly secure, for both straights and gays. If the right to marry truly is rooted somehow in the idea of accidental pregnancies, then it’s basis has been rendered almost entirely moot. In that case, marriage must either be declared a right for no one because it no longer has a basis, or a right for everyone because it has other purposes. ---
**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, 11:23am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/407 "2012-06-07T11:23:24Z")
Anyway, slept on it, and it occurs to me that the analogy of the man who wants to give a lecture vs. the man who wants to yell “fire!” for no reason is flawed, and comically offensive. I mean if you’re going to get _offensive_ about it, why not go all the way and contrast a man who wants to marry a woman and a man who wants to marry a dog, i.e. the Santorum Interpretation. Rather, the distinction is between a man who wants to give a lecture, and another man who wants to give a lecture but is being blocked because he is gay. Dropping the restriction does not create a “new right” to lecture, it merely and trivially expands the existing right. Ditto for gay marriage, however Grand-Canyon-wide a gulf one chooses to see between penis/vagina and penis/penis or vagina/vagina. Since all reproduction-based arguments are now demolished (you’re welcome), I fail to see why SCOTUS should uphold the distinction in law. Indeed, why _anyone_ should. ---
**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, 1:07pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/408 "2012-06-07T13:07:31Z")
> [@Bryan\_Ekers](#): > > Anyway, slept on it, and it occurs to me that the analogy of the man who wants to give a lecture vs. the man who wants to yell “fire!” for no reason is flawed, and comically offensive. I mean if you’re going to get _offensive_ about it, why not go all the way and contrast a man who wants to marry a woman and a man who wants to marry a dog, i.e. the Santorum Interpretation. > > Rather, the distinction is between a man who wants to give a lecture, and another man who wants to give a lecture but is being blocked because he is gay. Dropping the restriction does not create a “new right” to lecture, it merely and trivially expands the existing right. Ditto for gay marriage, however Grand-Canyon-wide a gulf one chooses to see between penis/vagina and penis/penis or vagina/vagina. Since all reproduction-based arguments are now demolished (you’re welcome), I fail to see why SCOTUS should uphold the distinction in law. Indeed, why _anyone_ should. You would be right, if being gay made it impossible to give the lecture. It doesn’t you see, and therefore gays may give lectures. At least I chose two things out of reality. Procreation absed arguments are not demolished until you get around Baker and Loving/Skinner. Prove that they are not controlling the issue with relevant caselaw. ---
**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, 2:19pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/409 "2012-06-07T14:19:13Z")
> [@jackdavinci](#): > > Wow…though I disagreed with some of your assertions, at least some of them resembled rationality. But now you seem to have gone…off. > > Why not? It’s not a “new source”, it would just be an explicit acknowledgement of an obvious fact. A new ruling does not equal “new source” of rights, it merely recognizes legally ones which were mistakenly violated previously. And they are by no means “incidental”. Even under current legal standing, a good proportion of the benefits and laws associated with marriage do not directly relate to offspring. Ok take improved health for married couples for instance. Since this is only recent knowledge, it is plainly obvious that this is NOT the reason we invented marriage. Next, why don’t you cite these benefits from marriage that would give gays the right to marry, cite legal opinions to it, and cite your claim that X provides a benefit. When citing X provides a benefit, make sure it is inherent to marriage and not a government program like a tax break, because that is the carrot on the stick government uses to induce the irresponsible to marry. Also make sure that your study that X benefit results from marriage is a study of gays and not of heterosexuals. > [@jackdavinci](#): > > You can’t seem to keep your story straight here. People have the right to get married because they have the right to procreate? Or, because they are procreating anyway and therefore we want them to get married? Or..what exactly? Another Johnny-come-lately reads the last few posts and figures he can dismiss all the relevant context. If you had read the thread you’d realize that these two statements deal with different things. One deals with the source of the right, and the other deals with the government’s interest in having some control over marriage. Instead, you could claim, and give a citation for your claim, that the right has an entirely different nature, and you could claim, and cite it, what interest the government has in offering marriage to some but not others. > [@jackdavinci](#): > > That’s true of many straight couples and straight single parents. So? It’s a meaningless distinction. If marriage is tied to procreation, and gays are allowed to procreate however they like just as straights are, then there is no rational basis to suddenly separate marriage from the issue of procreation for some arbitrary subset of the population. The right to procreate is not an individual right _per se_, because it must always be exercised in pairs. We allow some heterosexuals to marry because they meet the test of being able to reproduce on it’s face. > [@jackdavinci](#): > > If there is a compelling state interest in having anyone reproduce, then it applies to everyone rationally unrelated to sexual orientation. We don’t do eugenics here. Au contraire we certainly do practice eugenics. It is simply limited. We do not desire the inbred, for instance, and there are also impediments upon the mentally challenged to marry as well because we see no value in having people with IQ’s so low that the must be partially or completely cared for by the state. Less formally, doctors recommend eugenics all the time, advising people with genetic defects to not reproduce or get screenings for their unborn children. Some children are aborted due to eugenics. What we do not do is practice eugenics on a racial basis. And to qaualify what I said, If gays want to reproduce in heterosexual unions, the goivernment doesn’t have much interest against that if any, as long as those unions are stable. It is not a matter of trying to eliminate the genes of any gay person. > [@jackdavinci](#): > > All of those adopted kids, stepchildren, IVF kids, and orphans will be very surprised to hear that! And what about kids of surrogate pregnancies? In a sense they have three biological parents! Actually if those kids are interested in discovering those rights they can walk in their courthouse and have their adoption records unsealed at a minimum. One argument is health based–a right to know what your gene stock is and whether any diseases run in your family. One case I worked on extensively is In Re Marriage of Ross (Ks) where the issue was whether a test for a child’s parentage is always in the child’s best interest. The Kansas Supreme Court held that a hearing on the best interest of the child needs to come before an order to test. And your claim that any child is the biological offspring of three people is absurd. Three sets of DNA would result in death very quickly after a zygote forming. > [@jackdavinci](#): > > Didn’t say there was. In your point three you said that a child has the right to have his two gay parents married and that gays could seek the right by so using children as pawns. If you want to say that only gays with children have the right to amrry, that is a different ballgame. But the fact is that most do not. Child-rearing gay couples is yet any even smaller subset of gays. Far more than half do not want kids/do not raise kids. > [@jackdavinci](#): > > It’s an analogy. The arguments are similar. You suggested that parents already raising a child together might be given the right to marry for the benefit of the children. When you talk about benefiting or punishing offspring based on their parent’s status, you get into the same arguments of intermediate scrutiny that were addressed in the court rulings on illegitimacy. Well, I think you are needing to better frame your argument, rahter than just conclusory statments. let’s have citations and quotes from the courts, and an argument that is based on those quotes, rather than just your say-so. > [@jackdavinci](#): > > There may be soon, the technology is getting very close. Your predictions of the future might be worthy of a science fiction novel. Until it happens, it’s not relevant. Someday people might learn to fly without mechanical assistance. Let’s save the debate on whether they need pilot’s licenses for that day. > [@jackdavinci](#): > > Anyway, it’s an inarguable fact that gay people, and gay couples, in whatever fashion, have many children, have a legal right to do so, and are even biologically related to many of them. This is not something that can just be ignored or wished away. No it’s not, nor are the broken families they leave in their wake. As yet there are no studies which compare intact heterosexual married homes with intact gay families. it is very interesting that researchers did not decide they wanted to make intact heterosexual families the control group when studying how well children fare in gay households, and only compared them to kids from broken homes and otherwise disadvantaged kids so their foregone conclusion “Gays make the best parents” might be achieved. > [@jackdavinci](#): > > I’m not talking about illegitimate offspring, I’m using the relevant court rulings on them as an analogy. Cite and explain. I have no idea of what mental process you are using to make the analogy. > [@jackdavinci](#): > > You were saying something about “utterly disgusting”? That’s not only clearly and demonstrably ridiculous, it’s borderline hate speech. FTR, I know plenty of gay people who are holding off having kids until they are in a LTR, and plenty who see having children as a fundamental part of a LTR, and many whose families have faced obstacles due to not being able to legally marry. For that matter, I know many more straight people for whom the objective is NOT to procreate when they pair up. The use of children as pawns for political/legal advantage is utterly disgusting. If you had handled as many domestic cases as I had and seen parents do this time and again you might understand. i used to have to go into the bathroom and weep over it in the middle of planning discussions on how to handle a case because I faced participating in it or not having a job. I am not claiming that all gays use kids as pawns. I ahve been watching the gay communities for three decades and all of a sudden they went from not many caring about kids generally to trying to paint an impression of gays instead as good and responsible parents. The rush to gain kids is suspect. However, gaining data is near impossible without any such guilty gays admitting to it. Nevertheless, it remains a distinct likelihood that some of these upstanding gays never had it occur to them they wanted children until the activists made the call that gays need to show the straight world good solid gay families. We’ll have a better understanding of the situation when the spotlight is not on the gays to show themselves as responsible citizens in areas of domestic concern. Hate speech my ass. > [@jackdavinci](#): > > Oh is that the reason, now. I thought the reason was because we have the right to procreate. Or because we must procreate to survive. Or to solve the problem of unwanted pregnancies. It’s a right. No, it’s a state interest. It keeps changing to suit your mood. If that’s really the reason, then there are plenty of “irresponsible procreators” who happen to be gay and/or in a same sex relationship, so by your rationale, they should all be able to marry / get married. There are not any irresponsible gay procreators who one day say to their gay lover, “Honey, you remember thursday six weeks ago when we were out of condoms? Well, I think I’m pregnant.” Gays as gays do not irresponsibly procreate. they do not procreate period. And if gays having irresponsible sex with the opposite sex are such a problem, perhaps we should revisit the entiore notion of what it means to be gay. > [@jackdavinci](#): > > For that matter, in this age of reproductive technology, the choice to aid having children or to prevent unwanted children is fairly secure, for both straights and gays. If the right to marry truly is rooted somehow in the idea of accidental pregnancies, then it’s basis has been rendered almost entirely moot. In that case, marriage must either be declared a right for no one because it no longer has a basis, or a right for everyone because it has other purposes. First you say we do not practice eugenics and now you claim the right to do so is secure. Again: The right to marry flows from the right to procreate. See Baker, See Skinner, See Loving, all binding Supreme Court caselaw. Again: The government has a compelling interest in reducing children in bad situations by inducing their irresponsible parents to amrry so that they are not a burden to the state. If all people married when they reproduced, we would not need the carrot on the stick to induce their interest in marriage. Sadly a lot of people are interested in sex and not 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, 2:29pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/410 "2012-06-07T14:29:59Z")
> [@Bryan\_Ekers](#): > > Anyway, slept on it, and it occurs to me that the analogy of the man who wants to give a lecture vs. the man who wants to yell “fire!” for no reason is flawed, and comically offensive. I mean if you’re going to get _offensive_ about it, why not go all the way and contrast a man who wants to marry a woman and a man who wants to marry a dog, i.e. the Santorum Interpretation. > > Rather, the distinction is between a man who wants to give a lecture, and another man who wants to give a lecture but is being blocked because he is gay. Dropping the restriction does not create a “new right” to lecture, it merely and trivially expands the existing right. Ditto for gay marriage, however Grand-Canyon-wide a gulf one chooses to see between penis/vagina and penis/penis or vagina/vagina. Since all reproduction-based arguments are now demolished (you’re welcome), I fail to see why SCOTUS should uphold the distinction in law. Indeed, why _anyone_ should. P.S. comparing me to Rick Santorum is not very accurate either. Santorum would never say something like “I’m in favor of allowing the states that want gay marriage to see how it goes.” Santorum wouldn’t even allow us birth control. This isn’t the first time someone has said my position is that of the catholics. ---
**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, 2:39pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/411 "2012-06-07T14:39:01Z")
Since there’s afew new posters who haven’t read the thread (or show some evidence of not having read it), and since my previous challengers have not answered the challenge, I will repeat one of the many unanswered questions here: Since so many of you claim this situation demands viewing gays as a suspect class, how can we create a suspect classification when we have no idea who belongs in it? Other than the say-so of a gay or maybe someone pretending to be gay so he can sue someone. How are courts going to tell the difference? There is no gay genetic test, you realize. Further, since gay/straight is not a black and white issue, as sexual orientation continuums like the Kinsey scale show, where do we draw the line on the Kinsey scale as to who is included in this suspect class? Lump together all non 100% straight as LGBT? Or only the 100% gay and lump all non-100% gay as not gay? Where do we draw the line and what are your rational reasons for that line? If say, someone experimented with gay sex one time, did not like it, and had straight sex a thousand times, is that person included in the suspect class? Such a person would not score 0 on the Kinsey scale as someone who never experimented would? If not, does a gay who had one experience with heterosexual sex but a thousan depisodes of gay sex get excluded from the suspect class? ---
**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, 3:31pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/412 "2012-06-07T15:31:36Z")
> [@David42](#): > > Since there’s afew new posters who haven’t read the thread (or show some evidence of not having read it), and since my previous challengers have not answered the challenge, I will repeat one of the many unanswered questions here: > > Since so many of you claim this situation demands viewing gays as a suspect class, how can we create a suspect classification when we have no idea who belongs in it? Other than the say-so of a gay or maybe someone pretending to be gay so he can sue someone. How are courts going to tell the difference? There is no gay genetic test, you realize. > > Further, since gay/straight is not a black and white issue, as sexual orientation continuums like the Kinsey scale show, where do we draw the line on the Kinsey scale as to who is included in this suspect class? Lump together all non 100% straight as LGBT? Or only the 100% gay and lump all non-100% gay as not gay? Where do we draw the line and what are your rational reasons for that line? > > If say, someone experimented with gay sex one time, did not like it, and had straight sex a thousand times, is that person included in the suspect class? Such a person would not score 0 on the Kinsey scale as someone who never experimented would? If not, does a gay who had one experience with heterosexual sex but a thousan depisodes of gay sex get excluded from the suspect class? Man it is so hard to stay away from these circular arguments when they keep being presented as if they have been uncontested. This is irrelevant, this will most likely not even be the question that is presented to the court. SCOTUS will most likely not be ask to apply equal protection as intermediate or strict, to this group as you continue to infer, it is just a strawman, which has no basis in fact with this case. The Circuit opinion admits that under standing precedent sexual orientation will not rise to intermediate or strict scrutiny but that is 100% immaterial as to the way the circuit rules. So please quite trying to argue that it is, this is not a freshman law class. In United States v. Morrison and United States v. Lopez > [@](#): > > the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases. Even if this case was not about gay marriage, rational with bite can apply purely because the feds are getting into an area traditionally controlled by the states, control over who can marry. > [@](#): > > The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009); cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens”). Even as documented in the congregational record DOMA has the purpose of punishing homosexuals. > [@](#): > > Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage. > > > [@](#): > > > > A third reason, moral disapproval of homosexuality, is one of DOMA’s stated justifications: > > Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality > > . This also allows SCOTUS to apply rational with bite without needing to “prove” it is a fundamental right for gays to marry. The action, by congress, to attack a group who has historically been discriminated against does not require it. There is no stated fundamental constitutional right to be a hippie yet U.S. Dept. of Agric. v. Moreno the court found the following, > [@](#): > > For if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, “[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the 535\*535 public interest, justify the 1971 amendment.” This was affirmed in City of Cleburne v. Cleburne Living Ctr. and Romer v. Evans and Lawrence v. Texas So there is NO test needed, we don’t need a biological test that proves someone is gay, there is no biological test to prove one is a hippie. The issue is the governments action, if and when SCOTUS overturns DOMA it will do so based on the actions of the legislature. So don’t pretend that the law will require some crazy gaydar test, there will NOT be a new suspect class. Seeing as your “argument” has resorted to claims about my ignorance and/or lack of intelligence in the past, it really seams odd that you insist on framing the debate in an overly simplistic Wikipedia model of equal protection while ignoring the case law that the circuit used. Here is a cite that proves you are fighting windmills, directly from the decision this thread is about. > [@](#): > > The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the so-called intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us. ---
**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, 5:27pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/413 "2012-06-07T17:27:24Z")
> [@rat\_avatar](#): > > Man it is so hard to stay away from these circular arguments when they keep being presented as if they have been uncontested. > > This is irrelevant, this will most likely not even be the question that is presented to the court. > > SCOTUS will most likely not be ask to apply equal protection as intermediate or strict, to this group as you continue to infer, it is just a strawman, which has no basis in fact with this case. > > The Circuit opinion admits that under standing precedent sexual orientation will not rise to intermediate or strict scrutiny but that is 100% immaterial as to the way the circuit rules. > > So please quite trying to argue that it is, this is not a freshman law class. > > In United States v. Morrison and United States v. Lopez > > Even if this case was not about gay marriage, rational with bite can apply purely because the feds are getting into an area traditionally controlled by the states, control over who can marry. > > Even as documented in the congregational record DOMA has the purpose of punishing homosexuals. > > This also allows SCOTUS to apply rational with bite without needing to “prove” it is a fundamental right for gays to marry. The action, by congress, to attack a group who has historically been discriminated against does not require it. > > There is no stated fundamental constitutional right to be a hippie yet U.S. Dept. of Agric. v. Moreno the court found the following, > > This was affirmed in City of Cleburne v. Cleburne Living Ctr. and Romer v. Evans and Lawrence v. Texas > > So there is NO test needed, we don’t need a biological test that proves someone is gay, there is no biological test to prove one is a hippie. > > The issue is the governments action, if and when SCOTUS overturns DOMA it will do so based on the actions of the legislature. > > So don’t pretend that the law will require some crazy gaydar test, there will NOT be a new suspect class. > > Seeing as your “argument” has resorted to claims about my ignorance and/or lack of intelligence in the past, it really seams odd that you insist on framing the debate in an overly simplistic Wikipedia model of equal protection while ignoring the case law that the circuit used. > > Here is a cite that proves you are fighting windmills, directly from the decision this thread is about. So, let me get this straight: You agree that there is no fundamental right for gays to marry each other in a gay marriage? Even if I weren’t responding to claims that gays are a quasi-suspect or suspect class, in the interest of a thorough discussion of the principles of law, and in the interest of gays to start with the level of scrutiny most favorable to gays, which is strict scrutiny, I would still start out discussing strict scrutiny. Of course since it is less likely that gays can prevail under lesser standards, and I don’t quite see how gays are going to win with rational basis with bite if it is conceded they can’t win with strict scrutiny, I can only surmise that you now argue this in order to avoid the fact that a gay suspect classification is contrary to our law and makes little to no practical sense. Now, I am sure in the future, when someone who is against the results I come to, and agrees with the results you desire begins to presume a fundamental right to marry, you will be Johnny-on-the-spot to argue they are wrong because gays do not have a fundamental right to marry, right? Because somehow I suspect that when you are done with your claim that I do not understand law because I am using the wrong standard, you will go back to presuming a right. I think you are more interested in ideology than in the reasoning process, as you never point out the mistakes of people who agree in result with you but contradict your method of reasoning. ---
**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, 5:58pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/414 "2012-06-07T17:58:49Z")
> [@David42](#): > > So, let me get this straight: You agree that there is no fundamental right for gays to marry each other in a gay marriage? No the merits of this case and the jurisdiction of this court do not merit that question let alone ruling. It is 100% a red hearing in this case, you yourself linked to Lawrence which says there is a fundamental right to marriage even if you did tie it to an unsubstantiated claim it is linked to procreation. > [@David42](#): > > Even if I weren’t responding to claims that gays are a quasi-suspect or suspect class, in the interest of a thorough discussion of the principles of law, and in the interest of gays to start with the level of scrutiny most favorable to gays, which is strict scrutiny, I would still start out discussing strict scrutiny. > > Of course since it is less likely that gays can prevail under lesser standards, and I don’t quite see how gays are going to win with rational basis with bite if it is conceded they can’t win with strict scrutiny, I can only surmise that you now argue this in order to avoid the fact that a gay suspect classification is contrary to our law and makes little to no practical sense. See…here is the problem, I don’t think that you quite understand how strict works, if SCOTUS awarded it to gender preference it is the government that would have to meet the standard to pass the law, not the gays/lesbians who wanted to marry. > [@](#): > > To pass strict scrutiny, the law or policy must satisfy three tests: > > **It must be justified by a compelling governmental interest.** While the Courts have never brightly defined how to determine if an interest is compelling, t **he concept generally refers to something necessary or crucial, as opposed to something merely preferred**. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. > **The law or policy must be narrowly tailored to achieve that goal or interest**. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. > **The law or policy must be the least restrictive means for achieving that interest** , that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, though the Court generally evaluates it separately. Under strict there is NO need to prove you can test who is gay and how gay etc.. The government is the one under restrictions. They would have to prove that DOMA is needed, is as narrow as possible and be the least restrictive means. The fact that I can cite cases that were decided under rational, completely invalidates the second portion of your argument, it is quite clear that you either are refusing to acknowledged them or just do not at this point understand the concept. But lets get this straight, NO decision in this case has even suggested they were attempting to justify a suspect class, the case does not merit it nor does it need it to overturn DOMA If you want to argue if they should or should not be a suspect class that should NOT be tied to this case. > [@](#): > > Now, I am sure in the future, when someone who is against the results I come to, and agrees with the results you desire begins to presume a fundamental right to marry, you will be Johnny-on-the-spot to argue they are wrong because gays do not have a fundamental right to marry, right? Because somehow I suspect that when you are done with your claim that I do not understand law because I am using the wrong standard, you will go back to presuming a right. > > I think you are more interested in ideology than in the reasoning process, as you never point out the mistakes of people who agree in result with you but contradict your method of reasoning. The question of if gays have a fundamental right to marry is not a question nor is it an issue in this case, the issue is if the federal government can intrude into traditional state legislative territory and pass a punitive law against a disliked minority. If DOMA is overturned there will not be a fundamental right to gay marriage, the federal government will just be required to honor the states laws. The question in this case is NOT “Do same sex couples have a fundamental federal right to marriage” nor has it ever been. SCOTUS has ruled with narrow judgments in all of the cases that were under rational with bite, unless you have some cites to prove differently there is no reason to think they will not this time. ---
**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, 6:50pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/415 "2012-06-07T18:50:17Z")
> [@rat\_avatar](#): > > 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. I know you are desperate to get me in a position where you can build a strawman that my argument is God says so. Nice try. I have provided a link for you that should satisfy you that the word used to describe Hagar was “wife” and that the Hebrew word for "concubine was not used here. Instead of enlightening yourself of the facts, you are heading off in a direction of some evil conspiracy by anti-gay homophobes to distort the bible. You’re just plain wrong. We have texts that say wife more than a thousand years old. The KJV is form the Masoretic, and has been checked and double-checked, and while KJV is not always perfect in translation, this is not one of those places. The fact that this is an exercise in Endogamy proves nothing. The law against Endogamy was imposed later, after this event. Abram was not a Hebrew, but the Father of both the Hebrew nations and the Arab nations. This event describes how that came about. Abram was not subject to Mosaic Law, as Moses came afterwards. it’s like arguing that an event couldn’t have happened in 1650 because it would violate the first amendment. Turns out Sarai had a child in the end, thus disproving your theory that “God” does not desire procreation in marriage because there was never fruit of the Sarai/Abram union. To Christian/Judaists, this story illustrates God’s will for two seperate nations to be born from Abram. ---
**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, 6:51pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/416 "2012-06-07T18:51:13Z")
> [@David42](#): > > You would be right, if being gay made it impossible to give the lecture. By that standard, I am right, since there’s nothing impossible about two homosexuals entering into the lifetime contract that is marriage, and observing all its relevant privileges and responsibilities. I invite you to demonstrate otherwise, and you needn’t bother invoking any procreation-related element, since by your own admission, procreation is not a mandatory element of marriage. ---
**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, 6:52pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/417 "2012-06-07T18:52:38Z")
> [@David42](#): > > P.S. comparing me to Rick Santorum is not very accurate either. That’s not what I actually did, as a observant reader would note. ---
**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, 7:22pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/418 "2012-06-07T19:22:06Z")
> [@rat\_avatar](#): > > straw-man, who said I would require that. You quoted Black’s for a definition of common-law marriage: “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). and then you argued: > [@rat\_avatar](#): > > Yep, still no requirement to reproduce or claim that is the basis of the right. > . In an effort to show that procreation and marriage ar not intimately linked in our society. Which must mean that ahving a child must be an element for a common-law marriage to form. Since the marriage cannot form until the elements are satisfied, you require children born of the union to be bastards because they cannot be married until afterwards. Or you could concede that the abscence of such an element disproves your claim that these two concepts are not linked. I then said: > [@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. And now you are claiming I built a strawman because I relied on your implication. if I got what you implied wrong, you could say so rather than try to paint me as fallacious. believe it or not, it is permissible in sound logic to argue what the other person implies as well as what they directly say. Or you could concede that the abscence of such an element as mandated procreation disproves your claim that these two concepts are not linked. There is a good reason to not mandate the exercise of a right here: it would require an illegitimate child before a marriage could happen. ---
**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, 7:24pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/419 "2012-06-07T19:24:06Z")
> [@David42](#): > > I know you are desperate to get me in a position where you can build a strawman that my argument is God says so. Nice try. > > I have provided a link for you that should satisfy you that the word used to describe Hagar was “wife” and that the Hebrew word for "concubine was not used here. Instead of enlightening yourself of the facts, you are heading off in a direction of some evil conspiracy by anti-gay homophobes to distort the bible. You’re just plain wrong. We have texts that say wife more than a thousand years old. The KJV is form the Masoretic, and has been checked and double-checked, and while KJV is not always perfect in translation, this is not one of those places. > > The fact that this is an exercise in Endogamy proves nothing. The law against Endogamy was imposed later, after this event. Abram was not a Hebrew, but the Father of both the Hebrew nations and the Arab nations. This event describes how that came about. Abram was not subject to Mosaic Law, as Moses came afterwards. it’s like arguing that an event couldn’t have happened in 1650 because it would violate the first amendment. > > Turns out Sarai had a child in the end, thus disproving your theory that “God” does not desire procreation in marriage because there was never fruit of the Sarai/Abram union. To Christian/Judaists, this story illustrates God’s will for two seperate nations to be born from Abram. The point is that god himself directly made several women barren and had their husbands resort to sleeping with the help Note that only the woman are barren. But no, your only cite that marriage as a right is only one due to procreation is from someone who claimed Genesis was a reason. You are quite free to provide other cites, in fact I have practically begged for them, without those I have to debate what is there. But as my previous post demonstrated, it is moot anyway, you have not demonstrated a compelling state interest for DOMA. I will note, you have once again ignored my actual cites and arguments as they pertain to this case, retreating back to your tautological claims. ---
**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, 7:41pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/420 "2012-06-07T19:41:55Z")
> [@David42](#): > > You quoted Black’s for a definition of common-law marriage: > > “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). > and then you argued: > In an effort to show that procreation and marriage ar not intimately linked in our society. Which must mean that ahving a child must be an element for a common-law marriage to form. Since the marriage cannot form until the elements are satisfied, you require children born of the union to be bastards because they cannot be married until afterwards. > > Or you could concede that the abscence of such an element disproves your claim that these two concepts are not linked. > I then said: > > And now you are claiming I built a strawman because I relied on your implication. if I got what you implied wrong, you could say so rather than try to paint me as fallacious. believe it or not, it is permissible in sound logic to argue what the other person implies as well as what they directly say. > > Or you could concede that the abscence of such an element as mandated procreation disproves your claim that these two concepts are not linked. There is a good reason to not mandate the exercise of a right here: it would require an illegitimate child before a marriage could happen. No it is a straw-man because you never offered any cites to back up your claims, and now that you can’t argue the real case you are going back to argue the side points as a distraction. > [@](#): > > Or you could concede that the abscence of such an element as mandated procreation disproves your claim that these two concepts are not linked. There is a good reason to not mandate the exercise of a right here: it would require an illegitimate child before a marriage could happen. That claim is nonsensical, Both marriage and procreation happen independent of each other but note, this whole side debate was due to your refusal to provide any cites that the two are linked in law. Your only new data in pages pointed out that due to fears of being a pauper in old age at one point in time the Talmud said men should divorce women after 10 years if they did not bare a child. It did not indicate that marriage and polygyny was dependent on every wife reproducing nor was that rule in place during the time of Genesis as a the Talmud was written almost 1000 years later and AFTER the time of Jesus. But I will take this distraction to mean you have found no cite to justify your claim that marriage arose from the right to procreation. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=20) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=22)