1st Circuit Court of Appeals: Defense of Marriage Act is Unconstitutional

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@Bricker

Fair point - my bad.

Not quite true. The Leonine Sacramentary has a ritual for a wedding mass. In 1012, the Synod of Rouen ruled that marriage vows exchanged in the presence of a priest were sacramental. The Council of Trent formally named all seven sacraments, yes, but it was undeniable well before that event that marriage was a sacrament, no matter how many other sacraments there might be or what form they would take.

Keep reading, they church still accepted illicit marriages as valid unless they were unqualified due to the items listed.

But as to more proof that marriage was not based out of a desire for reproduction I did notice this while reading the canon,

§3. Sterility neither prohibits nor nullifies marriage, without prejudice to the prescript of ⇒ can. 1098.

[David42]

@Bryan_Ekers

Procreation is indeed fundamental to the survival of the race.

But procreation and marriage are not the same. A couple could engage in both, either, or neither, perfectly legally.

I’m not claiming that marriage and procreation are the same. I agree.

My point is asking why the Supreme Court holds marriage to be fundamental if it is not because marriage often includes procreation.

What aspect of marriage makes it fundamental to our very survival and existence if it is NOT procreation?

This isn’t claiming they are the same, it is showing the close relationship in the defining of the rights, and how one derives from the other.

Note: Nowhere in this thread has anyone offered another explanation as to what makes marriage fundamental if not procreation.

[David42]

@Bryan_Ekers

Okay, Bricker, now try explaining David’s legal theory that fertility treatments turn marriages into threesomes.

Strawman.

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@David42

I’m not claiming that marriage and procreation are the same. I agree.

My point is asking why the Supreme Court holds marriage to be fundamental if it is not because marriage often includes procreation.

What aspect of marriage makes it fundamental to our very survival and existence if it is NOT procreation?

This isn’t claiming they are the same, it is showing the close relationship in the defining of the rights, and how one derives from the other.

Note: Nowhere in this thread has anyone offered another explanation as to what makes marriage fundamental if not procreation.

I did, as argued in Grizwold, it is the freedom of association, which is a fundamental right.

Promoting stable pair bonds is also beneficial to the country in several ways too. Married individuals tend to be happier and live longer, healthier lives.

[David42]

@David42

Shouldn’t further narrowly tailoring have an actual effect? The result of what you propose is going to have a result that everyone says yes even though some do not mean it. It is useless to restrict marriage to those who are going to have kids unless we enforce it.

Can you give a cite to a precedent that an unenforcable narrowing is required to survive review? Or does it have to be an actual practical narrow tailoring? I don’t see the point of narrow tailoring if it’s just to satisfy some polite fiction.

Something along the lines of: “This law could be more narrowly tailored, and althought that further narrowing is frivolous and serves no purpose since it can be enforced, the important thing here is appearances and formalities rather than the fundamental nature of the issues presented in (X). Because this law does not cater to appearances over substance, it must be struck down to preserve the important prerogatives of appearances without substance.”

cannot be enforced, I meant to say, rather than can be.

[David42]

@rat_avatar

I did, as argued in Grizwold, it is the freedom of association, which is a fundamental right.

Promoting stable pair bonds is also beneficial to the country in several ways too. Married individuals tend to be happier and live longer, healthier lives.

Cite that the court holds the purpose of marriage to be the freedom of association out of Griswold. Quote it.

griswold is about the violation of a married couples right to privacy in the context of birth control.

[Bryan_Ekers]

@David42

Strawman.

Not even slightly.

[David42]

@rat_avatar

Promoting stable pair bonds is also beneficial to the country in several ways too. Married individuals tend to be happier and live longer, healthier lives.

Yes this is true, but it is far from the only consideration. But the question is what is most beneficial to the country, and induces the greatest number of marriages while simultaneously reducing the number of children in need of attention from the state.

[rat_avatar]

@David42

Cite that the court holds the purpose of marriage to be the freedom of association out of Griswold. Quote it.

griswold is about the violation of a married couples right to privacy in the context of birth control.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice – whether public or private or parochial – is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

To not realize the case is about the right of association and the right or privacy makes me think you are making me verify my claims but you will not do so yourself.

Where are your relevant cites? or have you already given your only sources?

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@David42

Yes this is true, but it is far from the only consideration. But the question is what is most beneficial to the country, and induces the greatest number of marriages while simultaneously reducing the number of children in need of attention from the state.

And by what mode of action, by preventing SSM are you furthering this goal?

There are lots of SS couples who would love to marry who have kids now.

[David42]

@Bryan_Ekers

Okay, Bricker, now try explaining David’s legal theory that fertility treatments turn marriages into threesomes.

MY point, unadulterated, is that the RIGHT to marriage flows from the right to procreate within that marriage.

My point is precisely the opposite–we do not turn marriages into polygamous marriages becuase of infertility. That means there is nothing FUNDAMENTAL about GAY MARRIAGE until we add a third person in. Since we do not do that, it is not the relationship between the two gays that is fundamental, it is the relationship between the gay and the surrogate, for instance, that becomes of importance because that’s how we produce more children to carry on the nation in the future.

You can give two gays all the fertility treatments they want and they still cannot reproduce together. Straights with fertility treatments still reproduce within the marriage.

A farmer does not become part of the marriage because eating carrots might raise sperm count.

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@David42

MY point, unadulterated, is that the RIGHT to marriage flows from the right to procreate within that marriage.

My point is precisely the opposite–we do not turn marriages into polygamous marriages becuase of infertility. That means there is nothing FUNDAMENTAL about GAY MARRIAGE until we add a third person in. Since we do not do that, it is not the relationship between the two gays that is fundamental, it is the relationship between the gay and the surrogate, for instance, that becomes of importance because that’s how we produce more children to carry on the nation in the future.

You can give two gays all the fertility treatments they want and they still cannot reproduce together. Straights with fertility treatments still reproduce within the marriage.

A farmer does not become part of the marriage because eating carrots might raise sperm count.

Besides these two court cases where is this from, In responding to Bricker I provided a quote from early catholic doctrine that fertility was not a reason to prevent someone from entering or to leave a marriage, I think this is the issue, if you could document that marriage was about reproduction you could convince more people of your position,

But to make inferences from SCOTUS cases as to what their purpose was, when it is not the stated purpose is a bit hard to accept.

[David42]

@rat_avatar

To not realize the case is about the right of association and the right or privacy makes me think you are making me verify my claims but you will not do so yourself.

Where are your relevant cites? or have you already given your only sources?

“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice – whether public or private or parochial – is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”

This point does not say the right to marriage comes from the right of association any more than it says the right to marriage comes from the right to study a foreign language. This is not a laundry list of source of the right to marry. It is an illustration of how rights not enumerated in the constitution may still be found by the courts to exist.

The alarm bells should have went off when you notice Griswold is NOT a first amendment case.

You’d best not brief the supreme court with that either, and that is a comment on your argument, and not you personally.

[Bryan_Ekers]

@David42

MY point, unadulterated, is…

…is something I’m asking Bricker’s opinion about. He’s free to comment or not, as he chooses, and if he thinks I’ve mischaracterized or misunderstood your point, he’s free to say that, too.

In any case, what you describe repeatedly as “fundamental” is, as far as I know, not a requirement in the formation of a legal marriage, therefore its relevance is questionable at best.

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@David42

This point does not say the right to marriage comes from the right of association any more than it says the right to marriage comes from the right to study a foreign language. This is not a laundry list of source of the right to marry. It is an illustration of how rights not enumerated in the constitution may still be found by the courts to exist.

The alarm bells should have went off when you notice Griswold is NOT a first amendment case.

You’d best not brief the supreme court with that either, and that is a comment on your argument, and not you personally.

The point is, that a case about birth control among married persons does not at all mention your claim of that being the source or the right to marry.

But am I correct in that you have no additional cites for your position?

I could go back to the new testament but Paul pretty much put that one on my side of the argument.

And Jesus wasn’t exactly the best advocate for family life.

[David42]

@rat_avatar

Besides these two court cases where is this from, In responding to Bricker I provided a quote from early catholic doctrine that fertility was not a reason to prevent someone from entering or to leave a marriage, I think this is the issue, if you could document that marriage was about reproduction you could convince more people of your position,

But to make inferences from SCOTUS cases as to what their purpose was, when it is not the stated purpose is a bit hard to accept.

Try answering the question then. if you spend time thinking about it instead of denying it, you might reach a better understanding.
Please cite the relevancy of catholic doctrine to stare decisis principles.

I can’t believe that you handwave caselaw and then ask me to take church law seriously. If the church is the arbiter, then we are finished with the debate on the grounds the Bible says so. We’re all avoiding religious argument, but here you go saying the church’s point of view is what really matters.

I don’t give a dman what the church says. I do care what the Supreme Court has said.

[David42]

@rat_avatar

The point is, that a case about birth control among married persons does not at all mention your claim of that being the source or the right to marry.

I never cited Griswold, you did.

You twice now have stated that I cited Griswold. I did not. Your inability to find my position within Griswold is because you need to spend some time contemplating why Loving cites Skinner, the cases I DID cite.

[David42]

@Bryan_Ekers

…is something I’m asking Bricker’s opinion about. He’s free to comment or not, as he chooses, and if he thinks I’ve mischaracterized or misunderstood your point, he’s free to say that, too.

In any case, what you describe repeatedly as “fundamental” is, as far as I know, not a requirement in the formation of a legal marriage, therefore its relevance is questionable at best.

I’m not talking about what kind of requirements the registrar may have for you.

Why don’t you instead talk about the source of the right to marry, where it comes from, what purpose it might serve, and not whether the registrar requires this and that.

As Bricker and I should have shown you, what the registrar requires is relevant in considering how narrowly tailored the law is, but that’s a different question. If that’s what you are asking, I might have a different answer.

[rat_avatar]

@David42

Try answering the question then. if you spend time thinking about it instead of denying it, you might reach a better understanding.
Please cite the relevancy of catholic doctrine to stare decisis principles.

I can’t believe that you handwave caselaw and then ask me to take church law seriously. If the church is the arbiter, then we are finished with the debate on the grounds the Bible says so. We’re all avoiding religious argument, but here you go saying the church’s point of view is what really matters.

I don’t give a dman what the church says. I do care what the Supreme Court has said.

You were the one talking about “traditional concepts” I have been asking for a definition for pages.

I see no evidence for anything outside of common law until there were contractual issues after a) women gained the right to have property b) governments and insurance started to pay out benefits.

I see nothing in common law to indicate it was about reproduction.

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@David42

I never cited Griswold, you did.

You twice now have stated that I cited Griswold. I did not. Your inability to find my position within Griswold is because you need to spend some time contemplating why Loving cites Skinner, the cases I DID cite.

No I am saying a case that decided that birth control which prevents your CORE reason the right to exist didn’t mention your theory.

It is my cite that shows your contrived source right was not on the minds of the court as they decided it was within the freedom of couples to prevent that core function in your argument.