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

[rat_avatar]

@David42

So you do not belief in the right to exclusive intercourse with your spouse? Or just the criminal end of it? I definitely see it as a crime along the lines of trespass. A person’s right to sleep with who one chooses is bargained away in exchange for the right being given up by the partner. Really marriage is becoming nothing more than getting some federal goodies. Thed onlya dultery I wouldn’t prosecute is when a married person deceives a single person, I’d not prosecute the single one.

There was another recent case in Arizona. There weren’t any for many many years. One of my former bosses said he’d been watching the matter for 30 years and hadn’t found a single instance in 20, and this was in the mid 90’s. I’ve been watching closely too, remembering what he said.

It might mean that prosecutors are starting to battle a declining marriage rate with force, and I’m glad.

I would not only bring back heartbalms, I would eliminate no-fault divorce, prosecute adultery, end the nonsensical part of domestic violence prosecutions and find ways to encourage large families. I would modify child support laws and practices; I cannot believe a cause of action exists that if you plead there has been no adequate support for the child it doesn’t have to be true; the courts just want to make sure. if you actually were taking care of your kid, they’ll say it was a gift, (as though you could pay through the courts before there is a case, maybe you’re supposed to sue yourself?) and make you pay it again. Here is a cause of action in which it is impossible to do right. A cause of action that can almost automatically result in a judgment for the exercise of a fundamental right, even if you do every last blasted thing the government says it wants parents to do. neither of the attorneys I worked for ever told me to brief the Ks Supreme Court on this, I sure wanted to.

One last thing I’d do is, in any marriage where they agree from the outset on a religion and be governed by it, I would require the district courts to obey the ecclesiastical rules. Many people see marriage as a religious matter, and I believe the government establishes “no religion” to govern any dissolution. if the married couple feel religion is important to their marriage, no court should be able to strip them of those religious principles.

I’m against “covenant” amrriages, but appreciate the sentiment behind them. it just creates two classes of unions again and undoubtedly we’d be going through this same crap again with “second-class” marriages.

Not really related, but dealing with sex issues–as long as I’m on the soapbox–I find it ludicrous that it is legal in some jurisdictions to have sex with a teenager as young as fourteen, sixteen in the majority of states, BUT taking a picture is a crime if she’s a day younger than eighteen.

Wait…so you are aguing that it ain’t good enough to have child brides that ya can beat up and keep preggers?

Are you claiming we should have the right to have her locked up if she finds a better man? Are you really are arguing for the right to share the Lola porn too?

Well at least now I know why you couldn’t provide any cites for your concept of marriage, because that argument is 100% awful.

These courts that are to follow “ecclesiastical rules”…would they set the exchange rate for the “50 Shekels of Silver” that a rapist will have to buy his victim for?

But I’ll see ya in the PIT.

[Trinopus]

@David42

So you do not belief in the right to exclusive intercourse with your spouse? Or just the criminal end of it? I definitely see it as a crime along the lines of trespass.

I’d compare it, rather, to breach of contract.

Moreover, I would say that people have the right to write that contract to include an “open marriage,” i.e., having sex with other people, and that the state, by criminalizing adultery, would be interfering with this contractual right.

A person’s right to sleep with who one chooses is bargained away in exchange for the right being given up by the partner.

Well, apparently so, in some states. Another thing that needs reform. “Swinging” should not be criminal.

Really marriage is becoming nothing more than getting some federal goodies.

Some state goodies, too. Protection of property, guarantee of survivorship rights, the assignment of medical decisions, etc. This is why I favor SSM; it allows couples to have more control over their own legal decisions. If I marry a woman, she gets control over life-and-death decisions, such as whether to take me off life-support in a medical crisis. But if I marry a guy…that power devolves to my sister, who may not have the same values.

. . . Not really related, but dealing with sex issues–as long as I’m on the soapbox–I find it ludicrous that it is legal in some jurisdictions to have sex with a teenager as young as fourteen, sixteen in the majority of states, BUT taking a picture is a crime if she’s a day younger than eighteen.

Gotta agree with you there.

[Farmer_Jane]

@Trinopus

I would bet that ovum/ovum fertilization could be accomplished with mammal ova today, or at least in the next few years.

It was done with mice years ago, but the blatocyst was never implanted. Seriously, though, doing that on humans would be catastrophic.

[PBear42]

I’ve been following the thread for several days, hoping it would return to the OP and the 1st Circuit opinion. Instead, it has become a general debate over SSM. So, I’m going to drop out. Before I do, I’d like to mention a few points which have occurred to me while reading. David42 doubtless will demolish them (IHHO), but I won’t be returning to reply. Instead, I leave it to any lurkers to draw their own conclusions, confidant they’re able to connect the dots without my help. If any other posters wish to take up these points, please feel free. Or feel free to let them sink.

First, Griswold (mentioned earlier in the thread) pretty thoroughly undercuts the notion that the Supreme Court considers procreation to be the sine qua non of marriage. On the contrary, the holding of the case (by a 7-2 majority) was that one of the fundamental rights of marriage is the right not to procreate.

Second, the assertion that equal protection claims (or federal substantive due process claims based on equal protection) only lie for fundamental rights is mistaken. There’s no fundamental right to municipal bus service. But if a municipality discriminates against blacks by requiring them to ride in the back of the bus, that’s a violation of equal protection. See Browder (aff’d per curiam by the Supreme Court). Similarly, there’s no fundamental right to food stamps. But if the government irrationally disqualifies some individuals from eligility for food stamps, that’s a denial of equal protection. See Moreno (another 7-2 case).

Third, the assertion that a protected class must be 100% immutable has no basis in law of which I’m aware. Nor does the assertion that we have to be able to identify members of the class by objective evidence such as genetic testing. For purposes of SSM, we figure out who are members of the class when they apply for a marriage license. I’m by no means sanguine that the Supreme Court will give sexual orientation protected status. It has for some time been very hesitant to recognize new such classes. But, if it does, it will be because gays are a small and widely disliked (to say the least) minority who can’t count on the political process to protect their rights. That they have the right to vote doesn’t undermine such an analysis in the slightest.

Fourth, if the Supreme Court applies any level of scrutiny north of rational basis - whether strict, intermediate or rational-with-bite - the issue will be: How does SSM hurt anyone? “We don’t know, but it might” isn’t going to cut it. “We don’t know, but let’s study it for a really, really long time” isn[t going to cut it. And, of course, “We don’t know, but St. Paul was dead set against it” is right out.

Fifth, if the Supreme Court recognizes a constitutional right to SSM, that doubtless will be poorly received by many. So was Brown. But, we don’t decide constitutional cases by popular opinion. Indeed, the whole point in a case such as this is to protect an unpopular minority from the whims of the majority.

[Miller]

Helluva post, PBear.

[Der_Trihs]

@Trinopus

I would bet that ovum/ovum fertilization could be accomplished with mammal ova today, or at least in the next few years. Alas, mammalian sperm/sperm fertilization is a lot trickier, as there isn’t any “there there.” No reservoir of cell material for cell division. You’d have to do a three-way, two sperm and an egg. Not impossible, and it may happen some day.

I’ve read of research being done on that; I’ve no idea how far along it is though. It’s a variation of the cloning techniques for mammals.

[Bryan_Ekers]

@PBear42

I’ve been following the thread for several days, hoping it would return to the OP and the 1st Circuit opinion. Instead, it has become a general debate over SSM. So, I’m going to drop out.

Well, I guess it’s worth considering that if this particular case gets to SCOTUS, what happens if they don’t address the larger issue but instead pick-and-choose bits of DOMA to address. Maybe they’ll decide denying federal benefits to any couple, married legally in a particular state (including states where SSM is now legal) is a no-go… and that’s it. If anything, it’s a reaffirmation of the states’ right to define marriage.

[David42]

Alright then.

If we assume that procreation is not the reason marriage exists, not the source of the right to marry, what, then, is?

[John_Mace]

@David42

Alright then.

If we assume that procreation is not the reason marriage exists, not the source of the right to marry, what, then, is?

Being a human.

[The_Tao_s_Revenge]

@David42

Alright then.

If we assume that procreation is not the reason marriage exists, not the source of the right to marry, what, then, is?

When I was 5 I was told “Marriage is when you love someone and want to spend the rest of your life with them”.

24 years later, still can’t find fault with that explanation. Simple enough, que no?

[Bryan_Ekers]

@David42

Alright then.

If we assume that procreation is not the reason marriage exists, not the source of the right to marry, what, then, is?

Let’s call it “groo”.

Now, why is “groo” relevant?

[Polycarp]

@David42

Alright then.

If we assume that procreation is not the reason marriage exists, not the source of the right to marry, what, then, is?

Thius is of course not constitutional law, but I think for most6 Americans it goes far toward answering your question:

@Thomas Jefferson and the Second Continental Congress

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[76] that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

[Polycarp]

To forestall another multipage detour, I observe that “their Creator” as the term was used by Jefferson and his contemporaries did not mean the fundamentalist God, the Chriustian God generally, nor even the Deist deus otiosus who built a clockwork Universe, wound it up, and walked away., Think of the Star Trek Vulcan concept of cthia, where right knowledge of a presumably self-effectuating Universe leads logically to right action. One of my favorite scenes from Star Trek, highly relevant here, is when Markj Lenard’s Sarek, after confirming that Vulcans operate by logic and not emotion, is then asked why he married his human wife Amanda. He quirks an eyebrow and replies, “It was logical.”

[David42]

@Bryan_Ekers

Let’s call it “groo”.

Now, why is “groo” relevant?

Because if there is no groo, and groo is all there is to make marriage meaningful, then marriage is nothing; government has no interest in it, and the courts wouldn’t be hearing cases like this without groo, assuming groo to be the important thing about marriage, the thing that gives it meaning.

So, short of taking this as a claim that there is not a relevant purpose or source of marriage, as in the thing that makes it of value however you might like to phrase it, it would behoove you to suggest what the true source/purpose/reason of marriage, as you have so authoritatively (snicker) disposed of my claims and “proved” I was wrong.

Or, you could concede that your argument is there is no such source/purpose/reason?

Which will it be?

[David42]

@Polycarp

Thius is of course not constitutional law, but I think for most6 Americans it goes far toward answering your question:

[QUOTE=DOI/Tho Jefferson]
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[76] that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

[/QUOTE]

I would agree that Life Liberty and the Pursuit of Happiness could be relevant to the public’s view on the matter. As you noted this is not constitutional law but I could dispute that and think that it may edge into it. It’s not directly law, I do not mean to say the DOI is positive law. For instance, one could argue the DOI has had a great impact upon the traditions and values of our people, and even on shifting values. The Supreme Court has taken it into account before in other types of cases. But, if so, and you do agree, I would ask:

1. many posters here claim that traditon is irrelevant in the constitutional law sense. Do you disagree? And if you disagree with them, why didn’t you fight ignorance sooner?

2. And also, if you agree that questions like this edge into constitutional law, I would like to know if you can think of a cite where the court has cited to the DOI and “Life, Liberty, and the Pursuit of Happiness” as having some sort of intimate relationship? (Especially with as powerful language as “fundamental to the existence and survival of the race?”) I know the court has found “liberty interest” under the 14th DP, and that’s an overlap.

3. Would you also find similar potency in the phrase “Men, deriving their just powers from the consent of the governed…” as having anything to do with marriage rights or privileges as determined by the government? If not, why not?

OK, so maybe there is no cite for that. Back to the general views of the people in over the issue.

A) Other posters claim that the will of the people does not matter in same-sex marriage issues, and the matter should not be settled by a vote. Do you agree with these posters? If you don’t agree why didn’t you fight ignorance sooner?
If you do agree with them, why’d you bring up the irrelevant?

[Bryan_Ekers]

@David42

Because if there is no groo, and groo is all there is to make marriage meaningful, then marriage is nothing; government has no interest in it, and the courts wouldn’t be hearing cases like this without groo, assuming groo to be the important thing about marriage, the thing that gives it meaning.

Oh? That strikes me as overreaching. Even if your interpretation of the origins of legal marriage is accepted, it looks like the process went along the lines of “In order to facilitate groo, we will create the legal concept of marriage”, but at no point did anyone say groo was necessary for marriage, nor did they forbid marriage from serving functions other than groo. In fact, in the Utah first-cousins case, groo is actively discouraged.

So snickering notwithstanding, prove that groo is mandatory, or admit that groo-related arguments are demolished.

[David42]

@Bryan_Ekers

Oh? That strikes me as overreaching. Even if your interpretation of the origins of legal marriage is accepted, it looks like the process went along the lines of “In order to facilitate groo, we will create the legal concept of marriage”, but at no point did anyone say groo was necessary for marriage, nor did they forbid marriage from serving functions other than groo. In fact, in the Utah first-cousins case, groo is actively discouraged.

So snickering notwithstanding, prove that groo is mandatory, or admit that groo-related arguments are demolished.

I notice that you are avoiding other suggestions as to what marriage really is about.

That is because there is nothing that meets your test. if yous ay it’s about love, then then I point out your own argument that “love” is not required. If you say, “companionship” then it’s not required either.

And thus, by your reasoning, we are left with no purpose at all, which means there ain’t no Groo.

Or you could tell us what marriage is really all about.

[Snowboarder_Bo]

@David42

I notice that you are avoiding other suggestions as to what marriage really is about.

That is because there is nothing that meets your test. if yous ay it’s about love, then then I point out your own argument that “love” is not required. If you say, “companionship” then it’s not required either.

And thus, by your reasoning, we are left with no purpose at all, which means there ain’t no Groo.

Or you could tell us what marriage is really all about.

Why, in your opinion, is only one possible reason (or purpose, if you prefer) for marriage permitted?

[David42]

@Snowboarder_Bo

Why, in your opinion, is only one possible reason (or purpose, if you prefer) for marriage permitted?

I never said there was only one per se. There is only one, however, that the Supreme Court has recognized with as strong a language as “fundamental to the very existence and survival of the race” however, which I would call the primary reason or source of the right.

Bryan Ekers says I am wrong and devises impossible tests, tests that he never shows any authority for as the proper analysis.

Therefore, I want to know what he says the purpose is, since the one I suggest is wrong, according to him. of course, he cannot come up with any purpose that passes his test, either, which would mean he has us believing that there is no purpose.

And therefore he shifts to hypothetical groo.

BTW I started out talking about where the right to marriage flows from, which got changed to “purpose” repeatedly by others arguing their strawmen.

[Bryan_Ekers]

@David42

I notice that you are avoiding other suggestions as to what marriage really is about.

It can be “about” a lot of things, but what it is is a legal status that two people can enter into in which each designates the other as primary next-of-kin to the exclusion of all others, in addition to other rights, duties and privileges.

That is because there is nothing that meets your test. if yous ay it’s about love, then then I point out your own argument that “love” is not required. If you say, “companionship” then it’s not required either.

As far as I can tell, the legal requirements are, more or less -

-Both parties of the age of consent (or close to it, with parental consent),
-Neither of them is already married,
-They not be blood-related closer than first cousin,
-A few other requirements that vary from venue to venue, including for the moment in most U.S. states that they be of different genders
-That neither is actively deceiving the other, i.e. getting married under a false name or withholding critical information

I’m sure there are a few other elements, but “love” and “intent to reproduce” and “companionship” are not and have never been, as far as I know, legally required in the U.S. In any case, I’m not “testing” anything, beyond the rather banal requirements listed above. You keep saying “read the law!”… well… show us in the law where procreation is a requirement. I get that procreation was a consideration, but… so?

Or you could tell us what marriage is really all about.

Well, for example, in Kentucky, it’s about $34.50.
Anyway, to take an evolutionary example, one theory behind the development of ears is that the original mechanism was first useful for balancing. Hearing came later, as a useful additional benefit. By your argument, hearing should have been banned. It wasn’t part of the source of ears! It wasn’t in the design! It’s not ear-purposeful!