# Federal bankruptcy court blasts Defense of Marriage Act **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2011, 4:40am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528 "2011-06-15T04:40:33Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [June 15, 2011, 6:15pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/41 "2011-06-15T18:15:31Z")
Enriching divorce lawyers. ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [June 15, 2011, 6:18pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/42 "2011-06-15T18:18:04Z")
Ah but should same sex marriage be recognized, then gay couples can enrich divorce lawyers just as much as straight couples. Remember that his position is that there are social purposes that straight marriage serves which could not be served by a gay marriage. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 15, 2011, 6:30pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/43 "2011-06-15T18:30:14Z")
> [@LonesomePolecat](#): > > you are not being treated unfairly or unequally just because you can’t get tax breaks, inherit your lover’s Social Security benefits or have him put you on his health insurance at work. So… If the government declared that your personal relationship would be eligible for none of these benefits, while everyone else’s is, you wouldn’t think it unfair? Put me down as also being interested in these specific social purposes. I presume, of course, that you would be OK with legally dissolving all marriages that fail to serve those purposes. ---
**Author:** ![Punoqllads](https://avatars.discourse-cdn.com/v4/letter/p/d2c977/32.png) [@Punoqllads](https://boards.straightdope.com/u/Punoqllads)\ **Post date:** [June 15, 2011, 6:38pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/44 "2011-06-15T18:38:52Z")
> [@villa](#): > > Well the way people try to get out of that is a linguistic one - a man and woman of different races could, absent the law, marry. People argue that because the term marriage by its nature involves a man and a woman, there is no fundamental right for two people of the same sex to enter a relationship with the same rights and privileges as marriage. This begs the question about what defines marriage absent the law. Religion? Well, Unitarians have blessed same-sex marriages. Procreation? Well, then, are you going to tell all those infertile couples that they’re not really married? Families? Guess what – lots same-sex couples want to have families. That’s the entire point. ---
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [June 15, 2011, 7:08pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/45 "2011-06-15T19:08:54Z")
Jeez, first they want to use the word, ‘marriage,’ now they want to use the word, ‘families.’ What’s next? Do we have to start referring to them as ‘human beings’ too? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 15, 2011, 7:17pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/46 "2011-06-15T19:17:56Z")
> [@Little\_Nemo](#): > > McCreary County v. ACLU. The majority followed the precedent of Lemon v. Kurtzman. Scalia dissented. He said the Supreme Court had made the wrong decision in Lemon. Scalia wrote that displaying the Ten Commandments in a courthouse was allowable because it was “governmental affirmation of the society’s belief in God”. > > Now show me where in the Constitution it says that the United States is a Christian nation. Scalia based his opinion on the fact that many people, such as Washington, Jefferson, and Marshall practiced Christianity (and he cherry picked his evidence even to reach that conclusion). But even accepting his evidence, so what? The fact that the majority of Americans have been practicing Christians does not give Christianity any official status. Christianity, in the eyes of the Constitution, is equal to Buddhism, Hinduism, Wicca, and Scientology. Or atheism. Even if society does believe in God, the government has no authority to affirm that belief. > > But hey, Antonin Scalia knows what the founders really meant when they wrote “Congress shall make no law respecting an establishment of religion”. He knows the original meaning of the text. > > And the irony is that Marshall was a virulent anti-Catholic (as were many other people in eighteenth century America). If he had the power to establish a religion, he would have banned Scalia’s own religion. I can trivially refute you: Scalia’s opinion was joined by Rehnquist and Thomas (and Kennedy as to parts II and III). So at the very least, two or three people found the same thing Scalia did. But let’s forget about that. Let’s point out instead that Scalia’s opinion begins by pointing out: [ul] [li]George Washington added to the form of Presidential oath the concluding words “so help me God.” [/li][li]The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” [/li][li]The First Congress instituted the practice of beginning its legislative sessions with a prayer. [/li][li]The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. [/li][li]The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favours of Almighty God.”[/li][li]President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789, on behalf of the American people “`to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be…'”[/li][li]That same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” [/li][/ul] What about all those guys? Didn’t they also find those same things? How can you say not one person other than Scalia found those things in the text? Here’s language from an 1892 Supreme Court decision, _Church of the Holy Trinity v. US_: > [@](#): > > But beyond all these matters no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. The commission to Christopher Columbus, prior to his sail westward, is from “Ferdinand and Isabella, by the grace of God, King and Queen of Castile,” etc., and recites that “it is hoped that by God’s assistance some of the continents and islands in the 466\*466 ocean will be discovered,” etc. The first colonial grant, that made to Sir Walter Raleigh in 1584, was from “Elizabeth, by the grace of God, of England, Fraunce and Ireland, queene, defender of the faith,” etc.; and the grant authorizing him to enact statutes for the government of the proposed colony provided that “they be not against the true Christian faith nowe professed in the Church of England.” The first charter of Virginia, granted by King James I in 1606, after reciting the application of certain parties for a charter, commenced the grant in these words: “We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters-Patents, graciously accept of, and agree to, their humble and well-intended Desires.” Didn’t they also find what Scalia did? Your argument is that they were wrong to do so… not that they don’t exist. Right? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 15, 2011, 7:24pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/47 "2011-06-15T19:24:22Z")
> [@Rune](#): > > Do you really think that a bankruptcy court is the proper venue to decide on important political and/or ethical decisions of a principal character? The reason it wound up in bankruptcy court was that a federal bankruptcy trustee rejected the bankruptcy application of a same sex couple due to the DOMA. Where should it have gone? ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [June 15, 2011, 7:26pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/48 "2011-06-15T19:26:29Z")
> [@TriPolar](#): > > I’ll never understand why so many people like you hate gay people so much that you want to see them married. I am in favor of new laws that will make different sex marriages illegal, hopefully annuling those already in existence. I suppose you’re joking, but I agree with you in part. The (legal) institution of marriage should be not so much criminalized as abolished. The state should have no say in who one choses for one’s partner(s). ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [June 15, 2011, 7:28pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/49 "2011-06-15T19:28:41Z")
> [@Oakminster](#): > > Bullshit. See Section 1 of the 14th Amendment: > > Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; \*\*nor deny to any person within its jurisdiction the equal protection of the laws. \*\* > > Emphasis mine. Equal protection can reasonably be interpreted to mean that benefits the State awards to married persons must be given to all married persons without regard to sexual preference. Then why couldn’t it be reasonably interpreted to mean that the benefits the State awards to married persons must be given to all married persons without regard to the number of persons in such a union? Or indeed to all persons, married or otherwise? (I’m not trying to be snarky. I’m honestly interested in knowing how one arrives at the limits of what is “reasonable” in their interpretation of this amendment.) ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [June 15, 2011, 7:37pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/50 "2011-06-15T19:37:08Z")
> [@psychonaut](#): > > I suppose you’re joking, but I agree with you in part. The (legal) institution of marriage should be not so much criminalized as abolished. The state should have no say in who one choses for one’s partner(s). Yes. I believe the search for equal rights has lead to the creation of a right that never existed in the first place. I don’t recall the part of the Constitution guaranteeing the right of anybody to get married. The marriage contract as a civil matter shouldn’t be restrictive because of the equal protection clause. But this stupid desire by gay people to suffer the eternal damnation of wedded bliss has turned marriage into a religious matter under the law, violating the 1st amendment (I know, it’s not the first or only cause of that). I think the only solution is to rid the law of any reference to marriage. Civil contracts of any value addressing this subject should be equally applied to any two adults. Currently, the actual major effects of these stupid laws is in the sharing of health care benefits and hospital visitation rights. Hardly the stuff of a sacred institution. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 15, 2011, 7:39pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/51 "2011-06-15T19:39:19Z")
I think the applicability of the 14th hinges on two things: 1. Is Homosexuality an innate characteristic or a “lifestyle choice”.? If the latter, then the 14th needn’t apply. But even if it is the former: 1. Does homosexual conduct have an adverse affect on society? Pedophilia is not a “lifestyle choice”, but we recognize that it is a danger to society. Homosexuality? That would be a tough case to make. And so, it’s not so much that the constitution changed, but our understanding of the nature of homosexuality that has changed. For much of our history, people were convinced that it was a danger to society. That it was a “lifestyle choice” that led to other unwanted behaviors. But experience and science tells us otherwise. Still, I can’t see a consistent legal opinion that would allow SSM but disallow plural marriage. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [June 15, 2011, 8:11pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/52 "2011-06-15T20:11:51Z")
> [@John\_Mace](#): > > Still, I can’t see a consistent legal opinion that would allow SSM but disallow plural marriage. What prevents a contract being limited to two parties? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [June 15, 2011, 8:25pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/53 "2011-06-15T20:25:34Z")
Quoth **Bricker** : > [@](#): > > George Washington added to the form of Presidential oath the concluding words “so help me God.” No, he didn’t change the form of the oath himself. He said the words of the oath in their full form, and then independently said four words after he completed the oath. Yes, most or all other Presidents since then have done the same thing, but that doesn’t attach any official meaning to those four words. The form of the oath remains that laid out in the Constitution. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [June 15, 2011, 8:49pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/54 "2011-06-15T20:49:48Z")
> [@psychonaut](#): > > Then why couldn’t it be reasonably interpreted to mean that the benefits the State awards to married persons must be given to all married persons without regard to the number of persons in such a union? Or indeed to all persons, married or otherwise? (I’m not trying to be snarky. I’m honestly interested in knowing how one arrives at the limits of what is “reasonable” in their interpretation of this amendment.) I’m afraid I don’t have an answer for you. I think such an argument could certainly be made, but getting 5/9 of SCOTUS to buy it seems unlikely. ---
**Author:** ![Punoqllads](https://avatars.discourse-cdn.com/v4/letter/p/d2c977/32.png) [@Punoqllads](https://boards.straightdope.com/u/Punoqllads)\ **Post date:** [June 15, 2011, 9:02pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/55 "2011-06-15T21:02:52Z")
> [@John\_Mace](#): > > Still, I can’t see a consistent legal opinion that would allow SSM but disallow plural marriage. If you thought divorce was complicated when there were two parties involved, I’d bet a multiparty divorce would be exponentially more complicated. Just a conjecture, though. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 15, 2011, 9:13pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/56 "2011-06-15T21:13:52Z")
> [@Punoqllads](#): > > If you thought divorce was complicated when there were two parties involved, I’d bet a multiparty divorce would be exponentially more complicated. Just a conjecture, though. You don’t have to conjecture - it happens all the time in Islamic countries. Our tour guide in Egypt divorced her husband after he took a second wife (not because of it.) It was expensive for her, but that was due to the sexist laws, not the fact of divorce per se. For sure any recognition of plural marriage would have to allow multiple men and one woman as well as multiple women and one man. Unlike SSM, there would be a lot of data the court could look at as to the effect on society. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 15, 2011, 9:15pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/57 "2011-06-15T21:15:21Z")
> [@John\_Mace](#): > > Textualist first, not originalist. As for your definition of originalism, that sounds more like the definition of the " living constitution" school of interpretation. > > I would say nice try, but it wasn’t. > > Still, I’d be surprised to see the SCOTUS mandate SSM for the states. Not at this point. Scalia describes himself as an Originalist: > [@](#): > > I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted. > > SOURCE: [http://www.cfif.org/htdocs/freedomline/current/guest\_commentary/scalia-constitutional-speech.htm](http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm) ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 15, 2011, 9:16pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/58 "2011-06-15T21:16:32Z")
> [@John\_Mace](#): > > I think the applicability of the 14th hinges on two things: > > 1. Is Homosexuality an innate characteristic or a “lifestyle choice”.? If the latter, then the 14th needn’t apply. > > But even if it is the former: > > 1. Does homosexual conduct have an adverse affect on society? > > Pedophilia is not a “lifestyle choice”, but we recognize that it is a danger to society. Homosexuality? That would be a tough case to make. And the Prop. 8 defense tried to make that case, and failed rather miserably. While the defense was fairly incompetent in their choice of witnesses, it is unclear that there is much of an argument for harm to be made. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 15, 2011, 9:39pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/59 "2011-06-15T21:39:00Z")
> [@John\_Mace](#): > > Still, I can’t see a consistent legal opinion that would allow SSM but disallow plural marriage. I think it is covered by the “compelling state interest” bit. Imagine a man with (say) three wives and 10 kids among them. Assume one wife wants to divorce. How do you equitably divide the assets? Can she force the sale of the home and take what…25%? Can the man argue if she does that she will be leaving his other kids and wives homeless and unable to afford another home? Does she get 20% child support since she has (say) two of the ten kids rather than full child support? Can the man claim custody because if the mother takes the kids she would be splitting up the family and depriving those kids of their other brothers and sisters? The list goes on. Such arrangements would be a legal mess and I cannot see a good way for the state to equitably see to the division of assets and debts and custody. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 15, 2011, 9:42pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/60 "2011-06-15T21:42:53Z")
> [@LonesomePolecat](#): > > Bullshit, yourself. You’re reading something into the Constitution that simply isn’t there. The institution of marriage arose because it served specific social purposes which same sex marriage would not serve. The institution does not exist just to make life more convenient for individuals, and you are not being treated unfairly or unequally just because you can’t get tax breaks, inherit your lover’s Social Security benefits or have him put you on his health insurance at work. I heard an argument that at the time of the Constitution, the marriage between a man and a woman was so engrained that the Founders would have considered marriage between a man and a woman an unenumerated right. SSM, not so much. [Previous page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=2) [Next page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=4)