# 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:** 9
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 5:32pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/161 "2012-06-04T17:32:59Z")
> [@Bricker](#): > > Do we? What race is President Obama? And why? Mixed, but whatever race we want to call him, it isn’t changing, and that’s an utter certainty. How about this hypothetical: A man with pale white skin, blue eyes and blonde hair walks into the court of the Right Honorable **Bricker**. You review his petition wherein he claims to be Black and suffers from employment discrimination due to being black. “When I applied at Company X,” he says, "They laughed and said ‘we don’t hire us no niggers, boy, you best get on out of here and we’ll overlook this trespass.’ " Would you make a determination that he is black? is there any additional evidence you’d want before you could decide? It is true it is hard to tell exactly what race a person is, sometimes, if it is mixed. But it’s not hard to tell the three major races apart–Asian, Caucasian, and Negro. Ethnicity is what really gets hard to tell. Claims of discrimination based on race get weak if it is not obvious a person is of a particular race. If the public doesn’t know your race, how can they discriminate against you? On an individual basis maybe some people have revealed race/ethnicity where it is not apparent, but we are talking about the characteristics of a class of people. As a class, we can identify various races. How about a mixed person with general Brown skin comes in and complains he got mistreated at work for being Polynesian. But there is also evidence everyone thought he was Phillipino. Does it matter if someone discriminates on a mistaken racial basis? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 5:36pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/162 "2012-06-04T17:36:56Z")
> [@Bryan\_Ekers](#): > > I gather, though, that sexual activity is not a critical issue to legal marriage. Two people who are both quadriplegic will not be engaging in sexual relations (at least by the Clintonian standard) but they _can_ be legally married, if they are adults, not closely related by blood, and not already married. > > And, as U.S. law currently stands, have differing nonfunctional reproductive organs. Why this last aspect is important continues to escape me. Despite it being explained to you numerous times that reproduction is fundamental to the existence and survival of the race, whereas gay sex is, well, not. As far as the consummation aspect, this has been seen as a factor both in nullifying a marriage and some jurisdictions hold there can be no common-law marriage formed if there is no consummation. A quadriplegic could not claim a common-law marriage in such a jurisdiction, and could seek nullification by claiming lack of consummation. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 5:41pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/163 "2012-06-04T17:41:25Z")
> [@David42](#): > > Mixed, but whatever race we want to call him, it isn’t changing, and that’s an utter certainty. > > How about this hypothetical: A man with pale white skin, blue eyes and blonde hair walks into the court of the Right Honorable **Bricker**. > > You review his petition wherein he claims to be Black and suffers from employment discrimination due to being black. “When I applied at Company X,” he says, "They laughed and said ‘we don’t hire us no niggers, boy, you best get on out of here and we’ll overlook this trespass.’ " > > Would you make a determination that he is black? is there any additional evidence you’d want before you could decide? > > It is true it is hard to tell exactly what race a person is, sometimes, if it is mixed. But it’s not hard to tell the three major races apart–Asian, Caucasian, and Negro. Ethnicity is what really gets hard to tell. > > Claims of discrimination based on race get weak if it is not obvious a person is of a particular race. If the public doesn’t know your race, how can they discriminate against you? On an individual basis maybe some people have revealed race/ethnicity where it is not apparent, but we are talking about the characteristics of a class of people. As a class, we can identify various races. > > How about a mixed person with general Brown skin comes in and complains he got mistreated at work for being Polynesian. But there is also evidence everyone thought he was Phillipino. Does it matter if someone discriminates on a mistaken racial basis? Let’s change Polynesian to Indonesian. I didn’t think that through. Philipinos have some polynesian ancestry. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [June 4, 2012, 5:42pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/164 "2012-06-04T17:42:10Z")
> [@David42](#): > > Further, pederasty (today gays want to draw a distinction and claim gays don’t do this, but then they keep pointing to a culture that was all about it to defend themselves) is what was not just accepted, but almost expected out of a “man.” This was a rite of passage. It was also expected that a man would go on and marry a woman after being sodomized as a boy. There just wasn’t a comparable “class” to modern gays. I’m going to just ignore the rest of your post and if this is where you’re coming from, I think it’s safe to say I no longer see any value in your posts whatsoever. ---
**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 4, 2012, 5:47pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/165 "2012-06-04T17:47:12Z")
> [@David42](#): > > Despite it being explained to you numerous times that reproduction is fundamental to the existence and survival of the race, whereas gay sex is, well, not. This pair of quadriplegics won’t be engaging in reproductive activity. For that matter, a lot of what we consider “sex”, even among straights, isn’t reproductive at all. Besides, it doesn’t have to be “explained” that the human species (or any species, really) must reproduce in order to continue - but why the entirely artificial construct of legal marriage cannot have its definition expanded in the suggested manner. > [@](#): > > As far as the consummation aspect, this has been seen as a factor both in nullifying a marriage and some jurisdictions hold there can be no common-law marriage formed if there is no consummation. A quadriplegic could not claim a common-law marriage in such a jurisdiction, and could seek nullification by claiming lack of consummation. So? Suppose neither partner in a marriage of two quadriplegics seeks an annulment. Does this mean the state can unilaterally annul their marriage for them? Or pre-emptively block the marriage in the first place? And are there really jurisdictions in the U.S. that would keep a quadriplegic, or a pair of quadriplegics, from getting married? That’s awful. ---
**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 4, 2012, 5:51pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/166 "2012-06-04T17:51:59Z")
> [@stpauler](#): > > I’m going to just ignore the rest of your post and if this is where you’re coming from, I think it’s safe to say I no longer see any value in your posts whatsoever. Personally, I don’t get why ancient Greece is considered an instructive example and modern Canada is not, but… whatever. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 5:52pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/167 "2012-06-04T17:52:55Z")
> [@John\_Mace](#): > > Yes, I do. Maybe I wasn’t clear in painting my original hypothetical, but I hadn’t imagined an actual constitutional sanction of killing witches. Just a law against witchcraft with the penalty being death. And there needn’t have been a constitutional sanction because, as with homosexuality, everyone knew it existed and was bad. Same with the 14th. The idea that we would need to include protection of gays in the wording would have been absurd to 99.9% of the people in the US at the time. and when gay activists argue 14th amendment law, that’s exactly what they bring up and argue they weren’t even a recognized class then, contrary to \*\*stpauler’s \*\*assertion that (as I understand it) we have recognized gay as a class from time immemorial. (Not that I’m contradicting you in any way, **John** ) ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 5:55pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/168 "2012-06-04T17:55:12Z")
> [@Bryan\_Ekers](#): > > Personally, I don’t get why ancient Greece is considered an instructive example and modern Canada is not, but… whatever. Yes, ancient Greece is contrary in every aspect I know of to the model gay activists say they want. But they bring this up in response to a claim of historical denial of gay rights, you know, the “tradition” argument. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 5:57pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/169 "2012-06-04T17:57:37Z")
> [@stpauler](#): > > I’m going to just ignore the rest of your post and if this is where you’re coming from, I think it’s safe to say I no longer see any value in your posts whatsoever. I suppose that’s the easy way out, rather than trying to prove that ancient societies recognized gays as a class like we do in the modern world. I will take this as concession you have no valid argument. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 4, 2012, 5:59pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/170 "2012-06-04T17:59:07Z")
Well, I just figure gay people have always existed in all societies, to varying degrees of recognition and persecution and such, but in any case I see no reason them having access to legal marriage would hurt anyone, let alone affect the continued survival of the species. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 6:04pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/171 "2012-06-04T18:04:31Z")
> [@Bryan\_Ekers](#): > > Well, I just figure gay people have always existed in all societies, to varying degrees of recognition and persecution and such, but in any case I see no reason them having access to legal marriage would hurt anyone, let alone affect the continued survival of the species. Perhaps so, but this whole angle of recognition as a class came up when I challenged **Bricker** ’s assertion that gay is a suspect class. If you keep in mind you will realize that what we are doing here is theoretically the same process the Supreme Court will go through when they eventually take a case that features such a question in 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 4, 2012, 6:11pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/172 "2012-06-04T18:11:21Z")
Well, applying “suspect class” doesn’t sound like a reach to me, but even if they fall back on rational basis and let a stupid law stand, it will still be a stupid law, and it gets more obviously stupid with each passing year. Speaking of which, are there _really_ jurisdictions in the U.S. that would prevent a quadriplegic or pair of quadriplegics from getting married? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 6:29pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/173 "2012-06-04T18:29:04Z")
> [@Bryan\_Ekers](#): > > Speaking of which, are there _really_ jurisdictions in the U.S. that would prevent a quadriplegic or pair of quadriplegics from getting married? NO. That’s not what I said, _per se_. Yes, there are jurisdictions that would not recognize that two quads have a _ **common-law marriage** _ on the issue of consummation. As all fifty states allow marriage under a licensing scheme, two quads can still marry in all fifty states. As long as both quads are good with that, no problem. But if one of a married pair of quads wants their marriage nullified as though it never happened, they can argue there was no consummation to further that goal, and the courts may consider that. ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [June 4, 2012, 6:30pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/174 "2012-06-04T18:30:51Z")
> [@silenus](#): > > It will head to the Supremes, and the conservatives don’t care what kind of damage it might cause. Please don’t paint all conservatives with that broad brush. The ones that are raising a ruckus are the religious whackjobs. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [June 4, 2012, 6:31pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/175 "2012-06-04T18:31:16Z")
> [@David42](#): > > and when gay activists argue 14th amendment law, that’s exactly what they bring up and argue they weren’t even a recognized class then, contrary to stpauler’s assertion that (as I understand it) we have recognized gay as a class from time immemorial. Your definition of “we” is estranged from reality and attempts to put it solely in one myopic point of view. > [@David42](#): > > I suppose that’s the easy way out, rather than trying to prove that ancient societies recognized gays as a class like we do in the modern world. I will take this as concession you have no valid argument. No, take it as I believe that your opinions are from an offensively and pit- worthy “biased” point of view that seems to be free from facts. ---
**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 4, 2012, 6:40pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/176 "2012-06-04T18:40:17Z")
> [@David42](#): > > NO. That’s not what I said, _per se_. > > Yes, there are jurisdictions that would not recognize that two quads have a _ **common-law marriage** _ on the issue of consummation. As all fifty states allow marriage under a licensing scheme, two quads can still marry in all fifty states. Fine, as long as we’re clear on the matter, though the foray into common law marriage is something of a tangent and doesn’t address my initial point. Two quadriplegics who will not be engaging in sexual relations at all can get a legal licensed marriage anywhere in the U.S., _unless_ their nonfunctional reproductive organs are of similar configuration. Why does this exception need to exist? I understand that legislatures can legally _make_ this exception (until and unless SCOTUS disagrees), but saying they can do so because they can do so is circular - it remains unclear what purpose the exception serves. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 6:46pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/177 "2012-06-04T18:46:27Z")
> [@stpauler](#): > > Your definition of “we” is estranged from reality and attempts to put it solely in one myopic point of view. > > No, take it as I believe that your opinions are from an offensively and pit- worthy “biased” point of view that seems to be free from facts. Yours seems just as biased and unwilling to look at facts. For instance, I’ll bet you haven’t clicked that link because the FRC couldn’t possibly have posted information on their website from yet another source. I on the other hand, am not gonna dismiss your links to a gay activist website that happens to post information from another source. Your ideas of debate make an opposing view impossible. I won’t be upset if you drop out of the thread, which has an O.P. concerning the **state of the law.** ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2012, 6:52pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/178 "2012-06-04T18:52:36Z")
> [@Bryan\_Ekers](#): > > Fine, as long as we’re clear on the matter, though the foray into common law marriage is something of a tangent and doesn’t address my initial point. Two quadriplegics who will not be engaging in sexual relations at all can get a legal licensed marriage anywhere in the U.S., _unless_ their nonfunctional reproductive organs are of similar configuration. > > Why does this exception need to exist? Because we’d have to ask them questions invasive of their medical privacy in order to deny it on those grounds. Tell the truth, I don’t have much problem with disallowing them to marry. Our country will go on the same. Is this even a real problem? So far as I know, quads don’t even really leave their home, much less go up to the courthouse to sign marriage licenses. As far as I know, this issue hasn’t been considered by the courts. it’s kind of a non sequitor, but I suppose it’s not impossible. ---
**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 4, 2012, 7:15pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/179 "2012-06-04T19:15:59Z")
> [@David42](#): > > Because we’d have to ask them questions invasive of their medical privacy in order to deny it on those grounds. I can’t parse this answer. We’d have to ask them invasive medical questions so we could deny them a same-sex marriage, even though sex by any usual definition is moot? > [@](#): > > Tell the truth, I don’t have much problem with disallowing them to marry. Our country will go on the same. What will happen to the country if you _don’t_ disallow them to marry? Why take active steps to block this pair of quadriplegics, while another pair of quadriplegics who happen to have differently-configured nonfunctional reproductive organs get a rubber stamp? > [@](#): > > Is this even a real problem? So far as I know, quads don’t even really leave their home, much less go up to the courthouse to sign marriage licenses. I assume you realize how pointless (and potentially offensive) a quibble this is, so I will not indulge it. > [@](#): > > As far as I know, this issue hasn’t been considered by the courts. it’s kind of a non sequitor, but I suppose it’s not impossible. Well, American courts _have_ considered the larger issue (as you pointed out to stpauler, that was kind of the point of this thread), and the Supreme Court will eventually; I’m simply pointing out the flaw in your so-called “explanation” that gay marriage should be blocked in the interest of species survival. ---
**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 4, 2012, 8:07pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/180 "2012-06-04T20:07:11Z")
> [@David42](#): > > Because we’d have to ask them questions invasive of their medical privacy in order to deny it on those grounds. > > Tell the truth, I don’t have much problem with disallowing them to marry. Our country will go on the same. > > Is this even a real problem? So far as I know, quads don’t even really leave their home, much less go up to the courthouse to sign marriage licenses. > > As far as I know, this issue hasn’t been considered by the courts. it’s kind of a non sequitor, but I suppose it’s not impossible. Lots of quads can even live on their own, just because you are a quad does not mean you do not have some function. Parental ancestry is pretty mutable, as is religion yet we have no issue with having them at a higher level of scrutiny. Illegitimacy is also a protected class, that is not an easily viewed external state. Even your focus on the Family linked paper points out that Gays are disadvantaged in income in a similar way as others who are single, so right there is a way that the states actions to restrict two adults ability to form contracts has an effect on them. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=8) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=10)