# 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:** 4
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [June 2, 2012, 5:22am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/61 "2012-06-02T05:22:23Z")
> [@David42](#): > > Is there something about marriage that makes it “fundamental to the survival and existence of the human race” other than procreation? Huh? There’s nothing about _anything_ that makes it “‘fundamental to the survival and existence of the human race’ other than procreation.” Pretty much all we need to do to perpetuate the human race is live long enough to procreate and then do so. But human procreation vastly predates human marriage. And various other species manage to survive without marriage. So, I don’t think there is actually anything about marriage or anything else that makes it “fundamental to the survival and existence of the human race.” There is something about procreation that does so. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 5:31am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/62 "2012-06-02T05:31:42Z")
> [@waterj2](#): > > Huh? There’s nothing about _anything_ that makes it “‘fundamental to the survival and existence of the human race’ other than procreation.” Pretty much all we need to do to perpetuate the human race is live long enough to procreate and then do so. But human procreation vastly predates human marriage. And various other species manage to survive without marriage. So, I don’t think there is actually anything about marriage or anything else that makes it “fundamental to the survival and existence of the human race.” There is something about procreation that does so. Exactly. Now examine Skinner v. Oklahoma, and then tell me why the Loving court cites Skinner for the proposition that “marriage and procreation are fundamental to the very existence and survival of the race” (keeping in mind Skinner does not involve marriage issues) in determining that marriage is a fundamental right? What we’re left with is “the right to marriage flows from the right to procreate” as I asserted previously. ---
**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 2, 2012, 5:33am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/63 "2012-06-02T05:33:29Z")
If Americans will succumb to disillusionment as a result of gay marriage while Canadians who casually legalized it nearly seven years ago have not, I can only assume a fundamental weakness and cowardice in the American character. Sorry if that offends, but other explanations are lacking. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 5:41am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/64 "2012-06-02T05:41:08Z")
> [@Bryan\_Ekers](#): > > Oh… okay, then. As long as it makes _sense_. What state has passed an anti-gay marriage law or amendment that is targeted at one gender? The target is formal recognition of sexual orientation, and **stratocaster** is correct. ---
**Author:** ![Try2B\_Comprehensive](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/try2b_comprehensive/32/65_2.png) [@Try2B\_Comprehensive](https://boards.straightdope.com/u/Try2B_Comprehensive)\ **Post date:** [June 2, 2012, 5:41am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/65 "2012-06-02T05:41:40Z")
> [@Stratocaster](#): > > Neither a man nor a woman may marry someone of the same sex. There’s no discrimination based on gender erm… ---
**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 2, 2012, 5:45am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/66 "2012-06-02T05:45:00Z")
> [@David42](#): > > What state has passed an anti-gay marriage law or amendment that is targeted at one gender? The target is formal recognition of sexual orientation, and **stratocaster** is correct. Perhaps my point was missed - legal discrimination based on orientation is as pointless as based on gender. You’re basically offering us “It’s not stupidity, it’s idiocy!” as though that was preferable. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 5:57am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/67 "2012-06-02T05:57:57Z")
> [@Bryan\_Ekers](#): > > If Americans will succumb to disillusionment as a result of gay marriage while Canadians who casually legalized it nearly seven years ago have not, I can only assume a fundamental weakness and cowardice in the American character. > > Sorry if that offends, but other explanations are lacking. the marriage rate is dropping in both countries. In Canada, it was reported dropping below 50% in 2006: [http://www.divorcemag.com/statistics/statsCAN.shtml](http://www.divorcemag.com/statistics/statsCAN.shtml) And was reported dropping below 50% in the U.S. for the first time in 2010: > **[Front Page Featured | MRCTV](https://mrctv.org/cnsnews)** So it appears Canada is quicker to disillusionment in marriage than the U.S. to me. Don’t get me wrong; there are other factors at play, too, my argument here is we simply do not need one more factor to disillusion people as Canada thought it did. ---
**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 2, 2012, 6:03am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/68 "2012-06-02T06:03:16Z")
> [@David42](#): > > the marriage rate is dropping in both countries. In Canada, it was reported dropping below 50% in 2006: > > [http://www.divorcemag.com/statistics/statsCAN.shtml](http://www.divorcemag.com/statistics/statsCAN.shtml) > > And was reported dropping below 50% in the U.S. for the first time in 2010: > > [http://cnsnews.com/news/article/less-50-us-households-now-led-married-couples-says-census-bureau](http://cnsnews.com/news/article/less-50-us-households-now-led-married-couples-says-census-bureau) > > So it appears Canada is quicker to disillusionment in marriage than the U.S. to me. > > Don’t get me wrong; there are other factors at play, too, my argument here is we simply do not need one more factor to disillusion people as Canada thought it did. You haven’t established that even if “disillusionment” is the cause, that gay marriage was a trigger. Besides, if the rate is indeed dropping in both countries, and gay marriage is a factor, I’m sure you can establish that the rate of “disillusionment” is significantly higher in Canada, no? And, I’m sure, you can also rule out other factors, like a general loosening of social mores that was underway well before this particular issue came to such prominence over the last 15 years, no? Otherwise, please explain to me why Americans are such delicate hothouse flowers that they simply can’t handle gay marriage. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 6:05am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/69 "2012-06-02T06:05:35Z")
> [@Bryan\_Ekers](#): > > Perhaps my point was missed - legal discrimination based on orientation is as pointless as based on gender. You’re basically offering us “It’s not stupidity, it’s idiocy!” as though that was preferable. My point is there is no gender discrimination in marriage laws and it’s pointless to analyze them for such. And while there is discrimination against gays in marriage laws, “gay” is a different question than “gender.” Please do not imply that I’m an idiot until the rules change, so that I can characterize your arguments as idiocy (the product of an idiot) as well. ---
**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 2, 2012, 6:12am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/70 "2012-06-02T06:12:20Z")
> [@David42](#): > > My point is there is no gender discrimination in marriage laws and it’s pointless to analyze them for such. And while there is discrimination against gays in marriage laws, “gay” is a different question than “gender.” So? > [@](#): > > Please do not imply that I’m an idiot until the rules change, so that I can characterize your arguments as idiocy (the product of an idiot) as well. I don’t know if you’re an idiot. My position is that you’re arguing for something idiotic. You’re free to say the same about me, of course, but I invite you to strengthen such a claim by proving how gay marriage hurts anyone in any manner whatsoever. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 6:18am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/71 "2012-06-02T06:18:49Z")
> [@Bryan\_Ekers](#): > > Otherwise, please explain to me why Americans are such delicate hothouse flowers that they simply can’t handle gay marriage. because a lot of them are bigoted homophobe false christian religious freaks. Aren’t they? When they speak, do you really think, “these people aren’t disillusioned over marriage issues?” And as much as we’d claim their views are illogical, this does not change the fact that they exist. My angle here is not that they must get their way, but that society cannot afford the desires of the 2% (in a context of granted privilege) over affirming marriage for the asshole 50% (ina context of right). Sometimes the needs of the many outweigh the desires of the few. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 6:22am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/72 "2012-06-02T06:22:47Z")
> [@Bryan\_Ekers](#): > > So? > > I don’t know if you’re an idiot. My position is that you’re arguing for something idiotic. You’re free to say the same about me, of course, but I invite you to strengthen such a claim by proving how gay marriage hurts anyone in any manner whatsoever. let’s instead argue about the interests of society as a whole instead of trying to isolate individual harm. But if you must know, I was turned down once when I proposed, on the basis that marriage is meaningless. She’s willing to cohabitate, I’m not. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [June 2, 2012, 6:27am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/73 "2012-06-02T06:27:33Z")
> [@Stratocaster](#): > > Neither a man nor a woman may marry someone of the same sex. There’s no discrimination based on gender–if there were, this would already be subject to intermediate scrutiny, and its resolution as simple as **Try2B Comprehensive** speculated. But it’s not. The discrimination is based on sexual orientation. If using one characteristic alone to assign people to a pool of possible spouses isn’t discrimination based on that characteristic, then how were miscegenation laws ever held to be “invidious racial discrimination”? Discrimination based on sexual orientation is just a form of discrimination based on gender. If you give a benefit to men who are in relationships with women, you are discriminating against women if you don’t also give it to women in relationships with women, and vice-versa. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 6:27am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/74 "2012-06-02T06:27:34Z")
> [@Bryan\_Ekers](#): > > If Americans will succumb to disillusionment as a result of gay marriage while Canadians who casually legalized it nearly seven years ago have not, I can only assume a fundamental weakness and cowardice in the American character. > > Sorry if that offends, but other explanations are lacking. Or perhaps you’d care to demonstrate that Canadians haven’t succumbed to disillusionment in marriage. Otherwise, I suppose that Canadians and Americans are similar in character. ---
**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 2, 2012, 6:28am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/75 "2012-06-02T06:28:25Z")
> [@David42](#): > > because a lot of them are bigoted homophobe false christian religious freaks. Aren’t they? I gather, and it’s unclear to me how pandering to their ignorance is useful, as was pandering to the ignorance of the people who feared integrating the schools. > [@](#): > > When they speak, do you really think, “these people aren’t disillusioned over marriage issues?” It never would have occurred to me, honesty. I’d be thinking “Wow, these people really hate the fags, don’t they, even to the point of hurting them out of pure spite, to no benefit to themselves.” > [@](#): > > And as much as we’d claim their views are illogical, this does not change the fact that they exist. My angle here is not that they must get their way, but that society cannot afford the desires of the 2% (in a context of granted privilege) over affirming marriage for the asshole 50% (ina context of right). Sure, you can. That’s the nature of a constitutional democracy - to enshrine protections for minorities even in the face of majority disapproval. > [@](#): > > Sometimes the needs of the many outweigh the desires of the few. The majority you’re describing “needs” to treated like the thumbsucking spiteful children that they are. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [June 2, 2012, 6:29am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/76 "2012-06-02T06:29:05Z")
Thanks, **Captain Amazing** and **David42** , for the cite and link to _Bruning_. And I agree with **David42** that there’s no conflict between this decision and the 1st Circuit opinion. Maybe the Supreme Court will grant certiorari because it’s an important issue and/or because it fits in with other cases making their way through the pipeline, but they could easily duck this one if they choose. If they choose not to duck, I think whether they affirm or overrule _Baker_ will be the dog and the 1st Circuit decision will be the tail. Personally, I hope they overrule _Baker_. We’ll see. If not in this case, in another. Eventually, they’ll have to decide the question. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 6:31am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/77 "2012-06-02T06:31:20Z")
> [@Lord\_Feldon](#): > > If using one characteristic alone to assign people to a pool of possible spouses isn’t discrimination based on that characteristic, then how were miscegenation laws ever held to be “invidious racial discrimination”? > > Discrimination based on sexual orientation is just a form of discrimination based on gender. If you give a benefit to men who are in relationships with women, you are discriminating against women if you don’t also give it to women in relationships with women, and vice-versa. Well, the courts simply do not see it that way. Sexual orientation is the target in anti-gay marriage laws, we care not whether it’s a woman married to a woman or a man married to man, the object is NOT to favor one sex over the other, which is what gender discrimination is all about. ---
**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 2, 2012, 6:37am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/78 "2012-06-02T06:37:33Z")
> [@David42](#): > > Or perhaps you’d care to demonstrate that Canadians haven’t succumbed to disillusionment in marriage. Sorry, proving negatives is for suckers. > [@](#): > > Otherwise, I suppose that Canadians and Americans are similar in character. Of course they are, probably more so than any bordering nations in history. Your popular culture is basically _our_ popular culture - in light of [how many Canadians](http://en.wikipedia.org/wiki/Category:Canadian_expatriate_actors_in_the_United_States) were involved in its creation. [sub]Nathan Fillion, really?[/sub] ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 6:55am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/79 "2012-06-02T06:55:33Z")
> [@Bryan\_Ekers](#): > > I gather, and it’s unclear to me how pandering to their ignorance is useful, as was pandering to the ignorance of the people who feared integrating the schools. A false equivalency, of course. Gay is not a race issue. It’s not pandering. it’s a question of how many kids will be in welfare/domestic relations cases. Deal with reality. > [@Bryan\_Ekers](#): > > It never would have occurred to me, honesty. I’d be thinking “Wow, these people really hate the fags, don’t they, even to the point of hurting them out of pure spite, to no benefit to themselves.” I find no evidence to conclude that the only reason to fail to support gay marriage is animus toward gays. When these people say they do not necessarily hate fags, but are considering other factors, why do you not take it at face value as their opinion on the issue? Why must you assign another motive, other than reasoning this motive is easy to defeat? if you were taking a poll, and there were two boxes for “why I don’t agree with gay marriage” and one was “preservation of marriage” and another was “hate fags” would you check “hate fags” everytime someone told you “preservation of marriage?” I find no logic in your changing their views for them, nor see a way you could prove they are lying. > [@Bryan\_Ekers](#): > > Sure, you can. That’s the nature of a constitutional democracy - to enshrine protections for minorities even in the face of majority disapproval. Unless a compelling government interest comes along, in which you can kiss the protections goodbye, time and time again. There is no way to balance all the rights of all people all at the same time. And I do not concede gay marriage is even a right, or that gay should be a protected status as a class or recognized minority. > [@Bryan\_Ekers](#): > > The majority you’re describing “needs” to treated like the thumbsucking spiteful children that they are. I find no compelling interest in so doing, however childish you want them to appear. Many hold these views out of religious beliefs and I do believe the first amendment would protect them from treatment that follows a determination they need punished for not being as mature as you are. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 2, 2012, 7:01am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/80 "2012-06-02T07:01:34Z")
> [@PBear42](#): > > Thanks, **Captain Amazing** and **David42** , for the cite and link to _Bruning_. And I agree with **David42** that there’s no conflict between this decision and the 1st Circuit opinion. Maybe the Supreme Court will grant certiorari because it’s an important issue and/or because it fits in with other cases making their way through the pipeline, but they could easily duck this one if they choose. If they choose not to duck, I think whether they affirm or overrule _Baker_ will be the dog and the 1st Circuit decision will be the tail. Personally, I hope they overrule _Baker_. We’ll see. If not in this case, in another. Eventually, they’ll have to decide the question. If I had my guess, they won’t take this case but will take California’s Prop 8 which I erroneously called Amendment 2 earlier. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=3) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=5)