# DOMA struck down in a 5-4 decision **URL:** \ **Category:** Great Debates\ **Created:** [June 26, 2013, 3:06pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962 "2013-06-26T15:06:52Z")\ **Posts on this page:** 19\ **Page:** 12
**Author:** ![IceQube](https://avatars.discourse-cdn.com/v4/letter/i/dfb087/32.png) [@IceQube](https://boards.straightdope.com/u/IceQube)\ **Post date:** [August 11, 2013, 6:21am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/221 "2013-08-11T06:21:38Z")
[Quote=jtgain] It is cool how that works. When things are not protected by the constitution, like SSM, the legislature controls. When things are protected, like state sovereignty, the Constitution controls and the legislature can’t circumvent it. [/quote] States have the sovereignty to discriminate on the basis of race in cases regarding the ability to vote? ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [August 11, 2013, 6:22am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/222 "2013-08-11T06:22:53Z")
> [@jtgain](#): > > It absolutely does. Where is the end point? Why should there be an end point? If tomorrow they want to use the 14th Amendment to give equal rights to robots, so what? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [August 11, 2013, 6:37am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/223 "2013-08-11T06:37:32Z")
> [@jtgain](#): > > This begs the question. Race is clearly a protected class. It’s the whole reason the 14th amendment was written. A law using race as a category for anything is subject to strict scrutiny. If the 14th amendment is only intended to be about race, why doesn’t the text ever mention the word? I mean, if " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…" is meant to only apply to race, why doesn’t it say, " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States on the basis of their race?" Why leave it open ended like that? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 11, 2013, 7:14am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/224 "2013-08-11T07:14:23Z")
> [@jtgain](#): > > History is my cite. The term “marriage” was never, ever (yes, never ever) meant to contemplate two same sex people entering into that union defined by the word. So assfucking-within-the-bonds-of-holy-matrimony **what?!** ---
**Author:** ![B.Serum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/b.serum/32/14266_2.png) [@B.Serum](https://boards.straightdope.com/u/B.Serum)\ **Post date:** [August 11, 2013, 8:40am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/225 "2013-08-11T08:40:29Z")
> [@jtgain](#): > > My bud Nino (you call him Tony, I call him Nino 🙂 ) and I agree that fundamental rights can’t be created out of whole cloth. Rights are what remain when a restriction has been removed. Is it not reasonable to remove a restriction if it is found to do no harm? Is it not necessary to remove a restriction if its application denies one group rights that another group enjoys? > [@jtgain](#): > > What right would not be upheld, one that doesn’t harm someone else, under your expansive reading of the 14th amendment? Bestiality? Polygamy? Incest? Maybe one day we’ll see. You know as well as I do that each of those instances have inherent unique factors that that do not apply to the others and should be evaluated based on the merits of each one. > [@jtgain](#): > > [gay marriage, polygamy, incest and bestiality] are all “morality” laws. If we can say that a guy fucking his dog is offensive and illegal, then we can say that a guy fucking his male neighbor is illegal UNLESS that is held to some higher standard. Regardless of whether you find it offensive or illegal, a dog (and a minor) is unable to give consent. > [@jtgain](#): > > unless and until the Supreme Court says that homosexual relationships have higher scrutiny, then it is fair to compare them to other morality laws like bestiality and such. Courts differentiate people and animals. Consenting humans having sex with other humans is really different than humans having sex with animals. I’m genuinely perplexed that you are having such a hard time with this. > [@jtgain](#): > > History is my cite. The term “marriage” was never, ever (yes, never ever) meant to contemplate two same sex people entering into that union defined by the word. A. [You’re wrong](http://en.wikipedia.org/wiki/History_of_same-sex_unions#Modern_times_2). B. The nature of marriage has evolved dramatically over time. That two people of the same gender would marry in the 21st century is insignificant compared to the notion that people would base a marriage on love and affection. > [@jtgain](#): > > It would be like if I called my dog a tree and you asked for a cite that a dog was never called a tree. It never happened because it was never contemplated. So, I ask you to prove, with cites, that laws relating to trees don’t apply to my dog. This is incoherent. > [@jtgain](#): > > If the state legislature or Congress decides that left-handed people are a protected class and can’t be discriminated against in employment, public accommodations, etc., then we at least have held a fair vote where the anti-lefty people have lost a fair fight at the ballot box. > > For a court to declare that they know better than the public and to simply declare that the 14th amendment gives left-handed people never before known rights is a very scary power. Courts giveth and courts taketh away, and they can’t be defeated in the next election. I’m not sure what point you’re trying to make here — it seems you think the only way to extend rights enjoyed by the majority, but denied to a persecuted minority is to rely on a vote from the majority who has had a history of persecuting that minority? Do you really not see the flaw in that reasoning? > [@jtgain](#): > > I think the problem is that these sensibilities haven’t really evolved as much as liberals like and they want a little bump from the courts to evolve them more. > > The argument becomes circular. You say that sensibilities have evolved and I ask you to take a poll of MS residents about their feelings on SSM and their sensibilities. You would reply that it doesn’t matter what THOSE people think because it is a basic civil right because enlightened liberals believe that it is. If you contend that SSM sensibilities haven’t [evolved](http://fivethirtyeight.blogs.nytimes.com/2013/03/26/how-opinion-on-same-sex-marriage-is-changing-and-what-it-means/) you are being obtuse. [Support for SSM isn’t just for liberals anymore](http://www.policymic.com/articles/31091/republican-support-for-gay-marriage-jumps-to-52-percent). Also, no informed individual, liberal or otherwise, would claim that Mississippi has demonstrated majority support for SSM, (so your “circular reasoning” claim doesn’t hold water). What we ARE saying is that support has crossed over to majority support _nationwide_. Are you advocating that we don’t proceed with any social equality until it has 100% support? _If so, you might want to keep that gem a secret from your lady-friends!_ > [@jtgain](#): > > For a court to declare that they know better than the public… Really? Are you really claiming that the average American, regardless of profession or education, knows more about the labyrinthine workings of law than people who have spent their lives devoted to it’s study and application? You don’t have to like their judgements — I know plenty of them have been unpopular with me; you can even argue that ideology comes into play — I know I have; but interpreting laws IS what they’re supposed to be doing. > [@jtgain](#): > > So where does it stop? When is the 14th amendment satisfied? I guess we’ll find out. Maybe when social inequity is no longer codified in law? ---
**Author:** ![computergeek](https://avatars.discourse-cdn.com/v4/letter/c/e56c9b/32.png) [@computergeek](https://boards.straightdope.com/u/computergeek)\ **Post date:** [August 11, 2013, 1:11pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/226 "2013-08-11T13:11:43Z")
jtgain, you are just digging yourself a deeper hole with your arguments. I’m glad Congress didn’t wait until absolutely everyone was on board before giving women the right to vote or passing Title IX legislation ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 11, 2013, 7:05pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/227 "2013-08-11T19:05:11Z")
> [@YogSosoth](#): > > Why should there be an end point? If tomorrow they want to use the 14th Amendment to give equal rights to robots, so what? Because we’ve seen in work in the opposite way. The Court in the early part of the 20th century found that the 14th amendment had a “liberty to contract” provision and struck down child labor laws, minimum wage laws, and protections for women in the workplace. [QUOTE=B. Serum] Rights are what remain when a restriction has been removed. Is it not reasonable to remove a restriction if it is found to do no harm? Is it not necessary to remove a restriction if its application denies one group rights that another group enjoys? [/QUOTE] That’s a job for the legislature. The libertarian ideal of “it should be legal as long as it doesn’t harm anyone else” has never been practices in our history. Laws against liquor on Sundays survived constitutional scrutiny even though a liquor purchase on Saturday does just as much harm as one on Sunday. But the way to do it is not to have the Court sit as a super-legislature and decide what laws are silly and should be repealed. Like Justice Thomas said in dissent from Lawrence, laws against homosexual sodomy are uncommonly silly in today’s time. Like him, I would not vote for such a law, and I would introduce a bill to repeal it if I was in the legislature. But the constitution and history have clearly shown that morality laws such as those against adultery, fornication, sodomy and the like have historically been allowed since the adoption of the 14th amendment. But if the standard is “Gee, this law is fucking stupid. The Court should strike it down.” we might as well get rid of the legislatures and just have the Court decree what our laws are. [QUOTE=computergeek] jtgain, you are just digging yourself a deeper hole with your arguments. I’m glad Congress didn’t wait until absolutely everyone was on board before giving women the right to vote or passing Title IX legislation [/QUOTE] But how did women get the right to vote? Did the Court say that laws disenfranchising women violated the 14th amendment? No, we AMENDED the constitution to provide for it. And Title IX was enacted by a democratically elected majority of both houses of Congress and signed by the President. That’s how laws get made. I don’t think that 100% of the public needs to be on board to legalize SSM. Maryland and Maine did it with bare majorities, and that is fine. That’s how the process works. All of the other arguments simply assume that SSM is a fundamental right that needs special protection. I don’t see it in the text of the constitution, the history surrounding the amendment, or laws that have been passed since. I don’t like making rights out of whole cloth because such a thing has been abused in our history. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 11, 2013, 7:08pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/228 "2013-08-11T19:08:32Z")
> [@IceQube](#): > > States have the sovereignty to discriminate on the basis of race in cases regarding the ability to vote? I’m not sure what you mean. The 15th amendment prohibits states from discriminating on the basis of race in voting. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 11, 2013, 7:15pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/229 "2013-08-11T19:15:07Z")
> [@Miller](#): > > If the 14th amendment is only intended to be about race, why doesn’t the text ever mention the word? I mean, if " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…" is meant to only apply to race, why doesn’t it say, " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States on the basis of their race?" Why leave it open ended like that? Sorry for the triple post, but I thought I had covered everything. You are correct. The 14th amendment doesn’t specifically say race, so is there a limit? Clearly there has to be. I can’t say that I like to molest children and laws against child molestation deny me “equal protection” under the law. That’s absurd. There is a limiting factor. So you look at the debates in Congress and it was clearly meant to give newly freed black slaves the same rights as white people. For years after that courts held that it didn’t apply to women voting or becoming attorneys. I mean, in the 1970s the Equal Rights Amendment was pushed because women were treated differently under the law. Why the need if the 14th amendment controlled? Support for the ERA dwindled when Courts started using “intermediate scrutiny” for gender related issues and basically accomplished all of the goals that the ERA would have done. Therefore, the open ended language can’t mean every single thing that comes down the pike. It’s limited. And to find that limitation, we look at intent and the history that flows from it. ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [August 12, 2013, 3:35am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/230 "2013-08-12T03:35:57Z")
> [@jtgain](#): > > It would be like if I called my dog a tree and you asked for a cite that a dog was never called a tree. It never happened because it was never contemplated. So, I ask you to prove, with cites, that laws relating to trees don’t apply to my dog. I think we’re going around in circles here. What is the difference you are asserting everyone can see between same-sex marriage and different-sex marriage that is as straightforward as the difference between a tree and a dog? Because I don’t see it. I really don’t. I promise you I don’t find the idea of marriage equality horrifying or an intolerable restriction on my freedom\* but support it anyway. The best I can tell, the objection is being advanced that it’s new, and I don’t think that’s what the Constitution is intended to do. \*I find it an abstruse and therefore quite tolerable restriction on my freedom. > [@jtgain](#): > > It absolutely does. Where is the end point? If the state legislature or Congress decides that left-handed people are a protected class and can’t be discriminated against in employment, public accommodations, etc., then we at least have held a fair vote where the anti-lefty people have lost a fair fight at the ballot box. > > For a court to declare that they know better than the public and to simply declare that the 14th amendment gives left-handed people never before known rights is a very scary power. Courts giveth and courts taketh away, and they can’t be defeated in the next election. There’s a difference between giving rights to a certain class of people and no longer withholding rights from a certain class of people. I can see an argument for anti-discrimination being on either side of that, but not marriage equality. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [August 12, 2013, 6:51am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/231 "2013-08-12T06:51:19Z")
> [@jtgain](#): > > Because we’ve seen in work in the opposite way. The Court in the early part of the 20th century found that the 14th amendment had a “liberty to contract” provision and struck down child labor laws, minimum wage laws, and protections for women in the workplace. And those have been rectified. So I don’t see a problem. Eventually, rights are given to people who deserve them. That has happened more times than not. It is right and just to use the laws to expand rights. Waiting until the whole populace is good and ready will take centuries. Better to have judges do it using the existing framework that is the foundation of this country ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 12, 2013, 1:43pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/232 "2013-08-12T13:43:04Z")
> [@jtgain](#): > > Therefore, the open ended language can’t mean every single thing that comes down the pike. It’s limited. And to find that limitation, we look at intent and the history that flows from it. The problem with that is that the intent of no more than a dozen proponents of the 14th Amendment is documented, but it had to be passed by a supermajority of Congress and a supermajority of states. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [August 12, 2013, 2:54pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/233 "2013-08-12T14:54:52Z")
> [@jtgain](#): > > The 14th amendment doesn’t specifically say race, so is there a limit? Clearly there has to be. Yes, there is. Personhood. The amendment guarantees equal protection of the law to all _persons_. The fact that it has so often been ignored or argued away in history does not change its meaning. The fact is that we have been and are continuing to correct those problems as we come to more fully recognize and embrace the concept. > [@](#): > > I can’t say that I like to molest children and laws against child molestation deny me “equal protection” under the law. That’s absurd. That \*argument \*is absurd. You’re arguing against the legitimacy of the law itself. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [August 12, 2013, 3:05pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/234 "2013-08-12T15:05:07Z")
> [@jtgain](#): > > I can’t say that I like to molest children and laws against child molestation deny me “equal protection” under the law. Again, just as an intellectual exercise, is it possible for you to discuss the topic at hand without _reductio ad absurdem_? You probably don’t realize the implications of this kind of discourse. Imagine if every time the subject of heterosexual marriage were brought up, I mentioned that it’s also legal to sacrfice babies to Moloch as part of freedom of religion. Not true, not relevant, not helpful, but imagine that this happened to often that the two subjects became associated in everyone’s minds. That’s kind of what happens here, and I’m tired of it. If you’re not capable of arguing your side without discussing incest, bestiality, and child molestation, you should really step back and have a look at your argument. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [August 12, 2013, 3:59pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/235 "2013-08-12T15:59:07Z")
Hey, Moloch needs his weekly babies or else the rains aren’t gonna fall! ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [August 12, 2013, 4:42pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/236 "2013-08-12T16:42:56Z")
> [@Dr.Drake](#): > > If you’re not capable of arguing your side without discussing incest, bestiality, and child molestation, you should really step back and have a look at your argument. But! But! But! He’s using them in a TOTALLY neutral way that doesn’t actually reflect any kind of disgust or depravity on the homosexuals, and you’d see that if you were arguing with your brain instead of your heart! And stuff! TOTALLY! ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [August 12, 2013, 8:07pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/237 "2013-08-12T20:07:10Z")
> [@jtgain](#): > > So you look at the debates in Congress and it was clearly meant to give newly freed black slaves the same rights as white people. For years after that courts held that it didn’t apply to women voting or becoming attorneys. I mean, in the 1970s the Equal Rights Amendment was pushed because women were treated differently under the law. Why the need if the 14th amendment controlled? Support for the ERA dwindled when Courts started using “intermediate scrutiny” for gender related issues and basically accomplished all of the goals that the ERA would have done. Are you taking the position that the 14th amendment should not apply to women, and that a proper reading of the Constitution would find no protections for gender? Because otherwise, what you’ve just written sounds like a strong precedent in favor of applying the 14th to sexuality. > [@](#): > > Therefore, the open ended language can’t mean every single thing that comes down the pike. It’s limited. And to find that limitation, we look at intent and the history that flows from it. The open ended language can’t mean everything, but surely it must mean _something_, right? Again, if the law is only meant to apply to race, why doesn’t the law actually say that? Why make it open ended at all? ---
**Author:** ![Cyros](https://avatars.discourse-cdn.com/v4/letter/c/a698b9/32.png) [@Cyros](https://boards.straightdope.com/u/Cyros)\ **Post date:** [August 12, 2013, 8:24pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/238 "2013-08-12T20:24:45Z")
> [@jtgain](#): > > I can’t say that I like to molest children and laws against chil d molestation deny me “equal protection” under the law. That’s absurd. There is a limiting factor. Can you explain to me why the above is the correct analogy instead of the correct analogy being “Straights get to molest children but gays don’t. Equal protection would mean that both gays and straights get to molest kids!” As you phrase it above I’m not getting the equal protection argument. Nobody is allowed to molest kids so everyone is treated equally, right? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [August 12, 2013, 9:51pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/239 "2013-08-12T21:51:17Z")
**Cyros** : thank you! It isn’t all actions which are to be treated equally, only all people in their ability to practice those actions. Child-molestation, as an action, has no constitutional protection. But, if it were legalized for women, but still barred to men, that would be an equal-protection violation. [Previous page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=11)