They’ve never come closer to stating what their view on the fundamental nature of marriage is than here, as far as I am aware.
Don’t you think Bricker would have suggested a better case to look at by now, if there was one? We all know he is whiz at digging up relevant caselaw.
Bricker, is there a case/line of cases that comes closer to explaining the Supreme Court’s views on the fundamentals of marriage? closer than Loving/Skinner?
Oh I see your connection. I missed it because of it’s weakness.
Griswold doe not stand for the propostion that marriage is not primarily about procreation just because it upholds birth control on privacy grounds.
Even though a couple may have children, there is nothing in the theory I support that says they must always have children with every sex act, nor that they cannot choose when they are going to have children. There is nothing in Griswold to eliminate the theory I support. Griswold is not about the same issues. The Supreme Court is not given to going on and on about stuff that is not helping them decide the matter at hand.
Or perhaps we want to start arguing “Miranda says nothing about your death penalty theory, therefore you are wrong,” Just because the two both deal with criminal law.
I can point to lots of cases that fail to say gay marriage is a fundamental right.
Just for laughs, and because my earlier requests for actual cites on the legal definitions of marriage were being ignored, I thought I’d look into it myself. I picked Utah (figuring this to be one of the most likely states to have a particularly conservative, reproduction-minded marriage law) and found this:
Under Subsection (2), being infertile is a requirement for marriage. Let me repeat that - if you wish to marry your first cousin in Utah, you have to demonstrate that you are not fertile (and 55 or older), or show that both parties are over 65 (which I guess carries the presumption that fertility is unlikely). The most likely circumstance, I guess, is that a woman 55 or older who wishes to marry her first cousin must supply a note from her doctor saying that she has undergone menopause.
So, we have an existing marriage law that does require medical information, but medical information of infertility. Homosexual first cousins in Utah meet that requirement by default.
They have some other hurdles, to be sure, but in any case I figure this thoroughly undercuts David’s argument about what is “fundamental”.
Why would I do that? It’s of unproven relevance. My concern is with the legal definition of marriage and whether or not an argument based on reproduction can be used as a barrier to extending access to homosexuals.
I get that under “rational basis”, a legislature could argue such and despite it having no objective merit (indeed, it arguably makes the problem worse), SCOTUS could accept it and let the law stand. I gather some members of SCOTUS might go this route, but others will not, and it will come down to a vote.
Wow. I would never have guessed that in my wildest speculation! That is some fucked up law there.
Well, I can understand the rational basis, if the goal is to prevent inbreeding. But in any case, it clearly demonstrates the David’s “facially fertile” argument is a failure. It’s designed to give any and all heterosexuals access to marriage - even if one or both is quadriplegic, even if one or both is elderly, because the registrar’s scrutiny is limited to “one man, one woman, check!” - while denying it to homosexuals, because they need help to have babies.
Ensuring that inbred children are not the result of a marriage is a significant government interest. I think the public reaction to this (once past the ick factor) isn’t going to be nearly as overwhelming as it would be if we announced a la Bricker’s suggestion, that all engaged couples had to pledge to have kids before they could marry. it would be even worse if we made all couples seeking to marry to prove that they are going to reproduce, merely for the purpose of eliminating an exception to the rule so that gays cannot point to them and claim unequal treatment since gays also reproduce.
Your point has a slight effect of undercutting what I say, but it involves different considerations as well. I’m sure your best arguments aren’t always absolutely perfect, either.
And once again, what one state here and there allows doesn’t much change what the supreme court has said about the nature of marriage and the rights involved.
Because we CAN deny the facially infertile in no way is a command to deny all infertile people marriage.
It just puts it more in the nature of a privilege rather than a right.
I got the impression he was saying such a pledge requirement was legally feasible, not that he was suggesting (let alone advocating) it. The usefulness and enforceability of such a pledge is debatable, in any case.
Sure, so why make ability to reproduce an issue at all? Utah’s subsection 2 describes conditions where a couple must indicate that they won’t reproduce, but I’m not aware of any state that requires a couple indicate that they will, so we have a case were “no” matters under some conditions, and “yes” never matters at all.
I’m confident that my arguments, bolstered by Utah’s legal code, have far more than a “slight” effect, but as you wish. I suppose I could check other states, see if any of them have fertility (or non-fertility) as a requirement.
So what requirements did the supreme court attach to marriage? Was fertility one of them? The possibility of fertility? I’m not talking what they thought the historical purpose of marriage was - I specifically mean what is required and and what is forbidden in getting a legal marriage, currently.
Anyway, the legal definitions of marriage state-by-state are somewhat relevant to the issue at hand, at least until (and unless) the Federal government imposes a nationwide definition of its own, or at least tells the states what limitations they can’t impose.
So you CAN deny a marriage to two people in their eighties? I trust this is written down somewhere, some statute that says in effect:
"A county registrar of marriage may, at his or her discretion, deny granting a marriage license on the basis of ‘ewww, you’re like old and stuff, gross!’ "
I am having a har dtime following the discussion, mostly because I do not have much patience for it. But let me say, whatever the historical conception of marriage it is entirely irrelevant, IMO, to the discussion of same-sex marriage as a legally recognized union. Marriage, as governed by the state is whatever the hell we want to make it, as long as it is applied fairly and equally to all people.
Well that is the crux of the issue, DOMA was passed due to religious ideals, the only semi-plausible secular reason the anti-SSM groups have been able to muster is the “preserving tradition” There is precedent of SCOTUS accepting this as an excuse.
They are hopeful that this will stick, because in any other fashion this legislation is obviously targeted towards a group that deserves a heightened level of scrutiny even if that heightened is just a rational “with bite”
Of course no one can provide evidence that marriage as it exists today is traditional.
I appreciate the compliment, but I haven’t looked. Let me see what I can find.
Wow. If only my opinion were so sought after when I’m arguing a point in proper persona here!
FYI MAYNARD v. HILL has a good summery of the history of marriage in the US but is silent as to it’s purpose.
It is quite interesting to see how the length of decisions has waxed and waned through the years.
Well there is one part of Maynard v. Hill that may apply. it is possible that this shows that the institution of marriage was more about the paulinian morals than reproduction.
Just as I argued, such a requirement to further narrow tailoring should not reach into the frivolous. Not enforcing it makes it frivolous.
One state out of fifty, with an arguable exception to the rule, and you think you have discovered the over-arching principle of marriage: Infertility in 1st cousins to marry is so desired that it makes procreation and responsible procreation pale in comparison as a fundamental concept to which we owe our existence and survival. Thanks for pointing that out. Gee, I never thought of where we’d be if Utah didn’t do this!
You know I also argue that we have modified marriage to such an extent that no-one can even correctly identify it’s purposes, that the concept is being lost, and that results in more and more lax attitudes toward it.
I cannot imagine why Utah made this law. Perhaps there was such public support for it they felt it was politically expedient. At anyrate, it was within Utah’s prerogative to grant this, just as it was within Utah’s prerogative to deny gay marriage. I agree though, that it may come up as a weakness in Utah’s marriage scheme, and gives greater weight to arguments of equal protection violations. I do agree that gays are more closely situated with those denied marriage without required sterility than they are those with facially possible procreative abilities. If Utah has a goal of denying gay marriage, they had best look into this flaw.
The addition of the frivolous does not change the fundamental nature of marriage. Get it? Some things are fundamental, some are not.
We’d have the same results, but if you wanna see how many states have this weakness, go ahead.
Mixing of apples and oranges. I’m talking about where the right to marriage comes from, you’re talking about requirements placed on it.
Nor is my cite to Skinner/Loving about the supreme court’s view of a historic purpose of marriage. it is their contemporary view at the time.
Well the federal government can’t impose positive law mandating what marriage is upon the states. But via the 14th, they can forbid the states certain practices, like they did in Loving.
It has a certain logic to it. If I may presume to offer a lay summary of the process, as I understand it:
The function of Legislatures is to write the laws the people demand. They can’t do this effectively if the Judiciary is constantly second-guessing them.
Thus, the Judiciary has evolved a number of rules for when and how it should intervene. These rules also help keep the application of the law as consistent as possible.
When it comes time to debate if a given law should stand, the judiciary’s lowest level of consideration is called “rational basis”, by which a law can stand if the legislature had a reason for it. It doesn’t have to be a good reason, or a logical reason, and the law itself doesn’t have to be an effective response to the reason - it’s enough that a reason exists.
The next level up is “intermediate scrutiny”, and for a case to qualify, certain conditions must be met, i.e. “it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.” This is where the legislature’s reason for passing the law gets studied and must, to some extent, be justified.
The next level up is “strict scrutiny”, where the law or policy being challenged must be designed to address a “compelling governmental interest”, it must do so in a “narrowly tailored” fashion, and must do so by the “least restrictive means”.
Related to all this is a system for evaluating the claims of people who say a law is discriminating against them. The “suspect classes” include race, national origin and religion. Sexual orientation will be considered when SCOTUS eventually gets a gay marriage case. If these classes are involved, the judiciary applies strict scrutiny, and the law or policy has to meet those conditions.
Another class is “quasi-suspect”, and a case involving them would get intermediate scrutiny (and thus the law or policy has a lower standard to meet). Gender is a quasi-suspect class, as is legitimacy.
Other classes, like age, disability, wealth, etc. invoke rational basis scrutiny.
The gist is that the highest levels of scrutiny are afforded on narrower, more specific criteria. A law discriminating against blacks and a law discriminating against old people may both seem unfair, but the latter needs less argument in support.
I don’t think I’ve made any major errors in the above summary, though I’ve no doubt glossed over any number of important nuances, like state vs. federal interpretation and such. Eventually, I guess, SCOTUS will decide that sexual orientation is a suspect class and they will apply strict scrutiny, and the attorney arguing for the particular law under consideration will have to demonstrate that, among other criteria, the need to restrict gay marriage is a compelling governmental interest. I’m not sure how they’ll accomplish this since the reproduction argument is easily shot down, but it could be entertaining.
On a more personal note, I believe Bricker’s post 107 was essentially asking me if I thought the Supreme Court was (or should be) “a body of wise philosopher-kings who decide what’s best for the country”, i.e. a bunch of latter-day Solomons who would make snap decisions on a case-by-case basis using what was obviously fair and just as a guideline. It is a tempting concept, I admit, as is a benign dictator, but… no, I agree that the Supreme Court should not be in the “wisdom” business, and that its operations should only override the legislature’s when absolutely necessary, and even then under consistent policies and guidelines. There won’t be any “we’ll cut marriage in half and you can both have it” moments.
I cheerfully admit, I don’t completely trust legislatures - too many examples of bad laws passed in the heat of the moment and too obviously in service to narrow interests - but a freely-elected legislature occasionally bitchslapped by an appointed judiciary is (so far) a pretty good system of government.
I was thinking more of your resources ha ha, I no longer have West’s key system or Shephard’s citator at hand and therefore am somewhat limited if google doesn’t turn it up, or I have it in memory.
But you can take it as a compliment if you like.
I would compliment you on being one of the most well-reasoned Dopers I have argued with. You can admit you’re wrong, even if beaten by a hippie (gasp) ha ha! Hide in shame, you, you SUIT, you!
It makes you more credible when we disagree.
Relax, counselor. I just wanted a second opinion on what I thought was a particularly comical argument from David. It was tricky enough just picking one.