# 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:** 5
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 16, 2011, 6:29pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/81 "2011-06-16T18:29:07Z")
> [@Bricker](#): > > Sure. Hans v. Louisana stood for exactly the same thing. So Scalia found the same thing in the 11th that the authors of Hans did. > > Right? > > So it’s pretty clear by now that you won’t be either supporting your outrageous claim or admitting it was in error. Par for the course. Yes, because if there’s one thing Scalia has always stood for, it’s respect for the decisions of his predecessors. You’ll never heard any suggestion from him that a past decision may have been wrong. What’s your opinion of the substance of my post? Do you feel that the original meaning of the 11th Amendment forbids residents of a state from suing the state? And if so could you explain to me where that is in the text so I can see it? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 16, 2011, 6:33pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/82 "2011-06-16T18:33:04Z")
> [@TriPolar](#): > > These same problems occur in traditional marriages. There is no distinquishing characteristic of plural marriages, or two party marriages, that justifies a significant governmental interest in their regulation. As demonstrated by the lack of all but minimal governmental regulation of traditional marriages. Well, this isn’t the thread for it, but that these problems occur in traditional marriage isn’t the point. They are significantly more prevalent in plural marriage. I don’t know if their prevalence justifies the ban, but sometimes people’s freedoms are restricted because of other people’s misbehavior. ---
**Author:** ![Chessic\_Sense](https://avatars.discourse-cdn.com/v4/letter/c/7c8e57/32.png) [@Chessic\_Sense](https://boards.straightdope.com/u/Chessic_Sense)\ **Post date:** [June 16, 2011, 7:20pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/83 "2011-06-16T19:20:52Z")
> [@Oakminster](#): > > \*\*nor deny to any person within its jurisdiction the equal protection of the laws. \*\* > > Emphasis mine. No, I’m pretty sure it’s typed in boldface on the original document. Pretty sure. ---
**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 16, 2011, 7:52pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/84 "2011-06-16T19:52:45Z")
> [@Left\_Hand\_of\_Dorkness](#): > > As others have pointed out, multiple-partner marriages are much more complex. > > You could extend marriage to same-sex couples with a crayon: in the law books, cross out “man” and “woman” and “husband” and “wife” and substitute “partner.” Boom, you’re done. > > But for multiple marriages, there are all sorts of issues to figure out. Maybe, but we have plenty of examples of modern societies where they have been figured out. Being a product of my society I am viscerally against multiple marriage, but arguments by opponents of it are making me rethink my position. I suspect solving these issues is going to be simpler than solving the IP rights problem. Are the societal woes that come with multiple marriages because of the fact of the marriage or are they products of the society? Will allowing all varieties, such as multiple men one woman, solve them? I can see a benefit of enforcing 1-1 matching, maybe, but that is about it. ---
**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 16, 2011, 8:04pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/85 "2011-06-16T20:04:44Z")
> [@](#): > > Maybe, but we have plenty of examples of modern societies where they have been figured out. All of the prior legal precedents I know of for multiple marriage are for relationships where the man is considered superior, and has a number of wives, all subordinate. Such systems are certainly simple enough, but they are not something a civilized society ought to emulate. I agree with several other posters that there’s nothing inherently morally odious about multiple marriage, but that a just implementation of it would be extremely complicated, and has not yet been fully worked out. Let’s go after the low-hanging fruit first. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [June 17, 2011, 3:46am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/86 "2011-06-17T03:46:11Z")
> [@Chessic\_Sense](#): > > No, I’m pretty sure it’s typed in boldface on the original document. Pretty sure. I kinda doubt it. The 14th Amendment was proposed in 1866 and adopted in 1868. And a picture of what I assume is the “original” in the National Archives appears to be handwritten without any attempt at boldface.[Cite](http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution) The typewriter appears to have been invented in 1870 give or take a few years. [Cite](http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution) ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [June 17, 2011, 4:04am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/87 "2011-06-17T04:04:21Z")
Okay, what’s substantial mean in law-talking, Bricker? Cause that’s clearly the lynchpin of that ruling. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [June 18, 2011, 11:34pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/88 "2011-06-18T23:34:39Z")
> [@Bricker](#): > > Oakminster is correct. It’s not an unreasonable argument. > > From a historical perspective, it’s a _novel_ argument, but it’s not unreasonable; it tracks with the plain text. “Equal” is a pretty straightforward word. > > Of course, we all know that it cannot mean literally equal for all persons. “The equal protection of the laws” means that 13 year olds must be permitted to vote, and have sex - right? > > So there’s obviously some test we must apply to determine what the actual rule is. And the claim that this protects same-sex marriage is a perfectly reasonable claim. > > But it must come with the recognition that this is not a historical meaning of the phrase. I disagree with your historical interpretation of the phrase. The drafters of the amendment understood very well that the Courts would determine the meaning of “equal protection of the laws”. We can also make the safe assumption that they did not expect it to apply to everyone. But do you really think that they expected the amendment to apply to the same facts that were understood by everyone in 1868? Is there some theory of interpretation that says you must apply the law assuming all known facts to the legislature at the time the law was written? That seems pretty ludicrous. Back then the legislature thought homosexuality was sinful. Now we know better. If the legislature in 1868 had the same social science research that is available to us now, their understanding of how “equal protection” should apply would be different. Laws are sometimes written vaguely because they require fact specific application. Not the facts in 1868, but the facts that appear in front of the judge when the case is brought before him. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 20, 2011, 11:59pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/89 "2011-06-20T23:59:36Z")
> [@Voyager](#): > > Maybe, but we have plenty of examples of modern societies where they have been figured out. Which modern societies have it “figured out”? [Here’s an article on countries that recognize polygamous marriages](http://en.wikipedia.org/wiki/Legal_status_of_polygamy#Countries_that_recognize_polygamous_marriages). All of them mentioned in the article, AFAICT, recognize Islamic-style polygamous marriages–that is, cases in which one man marries multiple women, and the women have little contact with one another. Is that how you believe we should handle it–that is, we should only allow people to enter multiple marriage contracts if they follow an Islamic model? Because I’d vociferously oppose that approach. And if you don’t propose we follow that model, then I don’t believe you’re correct that we have plenty of examples of modern societies where they have been figured out. I believe my original objection, that legalizing multiple marriages is far more complex than legalizing same sex marriages, stands. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 21, 2011, 6:08am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/90 "2011-06-21T06:08:59Z")
> [@TriPolar](#): > > 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. Marriage has a history of being dominated by Protestant Christian theology in the U.S, but the right to cohabitation and create a family is a right to the ‘pursuit of happiness’. [But unfortunately, Scalia agrees with you.](http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html) Still, it seems silly that one can get married in Iowa and not have that marriage be valid in Nebraska. I wonder if you can get married to a s/s partner in one state, go back to your home state, and apply for another marriage license. :eek: What if I married Sara in Iowa and then came to Colorado after Sara and I broke up and married Jim without divorcing Sara? Did I break a law (bigamy) or not? I think one reason why people don’t get as up in arms about s/s marriage as being a civil rights issue (and I’m talking about that other 50 per cent of America here, not SD) is because no one is going to arrest you in Nebraska for being in a SSR or SSM. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 21, 2011, 12:58pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/91 "2011-06-21T12:58:47Z")
> [@Lakai](#): > > Laws are sometimes written vaguely because they require fact specific application. Not the facts in 1868, but the facts that appear in front of the judge when the case is brought before him. Why was the Nineteenth Amendment necessary? After all, the Fourteenth Amendment clearly mandates equal protection of the laws, and thus it should forbid a state from denying women the right to vote. Why did the states have to pass a separate amendment guaranteeing that the right to vote could not be denied or abridged on account of gender? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 21, 2011, 1:04pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/92 "2011-06-21T13:04:02Z")
> [@Little\_Nemo](#): > > Yes, because if there’s one thing Scalia has always stood for, it’s respect for the decisions of his predecessors. You’ll never heard any suggestion from him that a past decision may have been wrong. > > What’s your opinion of the substance of my post? Do you feel that the original meaning of the 11th Amendment forbids residents of a state from suing the state? And if so could you explain to me where that is in the text so I can see it? The original text of the amendment does not forbid residents of a state from suing the state. But the “substance” of your post was that Scalia finds things in the text that no one else does. In this case, Scalia was continuing to uphold the interpretation of the 11th Amendment that was first done in Hans, and confirmed many times since. Your point was that Scalia is willing to use his own peculiar interpretation even where no other precedent exists. “In two hundred years,” I believe you said. And even now, you refuse to actually type out the words, “OK, I was wrong to say that,” or any variant thereof. Despite the fact that Hans v. Louisiana was decided in 1890, one hundred and twenty years ago. Were you wrong? Yes or no? ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [June 21, 2011, 2:47pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/93 "2011-06-21T14:47:59Z")
> [@Bricker](#): > > Why was the Nineteenth Amendment necessary? After all, the Fourteenth Amendment clearly mandates equal protection of the laws, and thus it should forbid a state from denying women the right to vote. > > Why did the states have to pass a separate amendment guaranteeing that the right to vote could not be denied or abridged on account of gender? Voting was different because there was the 15th Amendment that gave African Americans the right to vote. Since the 15th Amendment was passed right after the 14th Amendment, you can argue that Congress did not think the 14th Amendment applied to voting rights. It’s also possible that both the 19th and 15th Amendments were passed to make certain equal rights a little more clear. Just because Congress passed a law to overturn DADT, doesn’t mean that the Courts could not have overturned it using the equal protection clause. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [June 21, 2011, 3:10pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/94 "2011-06-21T15:10:08Z")
> [@Bricker](#): > > 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] And Jefferson had (and used) slaves, too, but I’d like to see Scalia use that as original intent support to justify race issues. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 21, 2011, 3:21pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/95 "2011-06-21T15:21:16Z")
> [@Musicat](#): > > And Jefferson had (and used) slaves, too, but I’d like to see Scalia use that as original intent support to justify race issues. Well there’s no doubt that the original intent of the Constitution was to permit slavery and racial discrimination. Then you had that whole Civil War thing, and those three amendments to the constitution, which sorta trumps the whole original intent of the framers. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 21, 2011, 3:54pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/96 "2011-06-21T15:54:05Z")
> [@Lakai](#): > > Voting was different because there was the 15th Amendment that gave African Americans the right to vote. Since the 15th Amendment was passed right after the 14th Amendment, you can argue that Congress did not think the 14th Amendment applied to voting rights. > > It’s also possible that both the 19th and 15th Amendments were passed to make certain equal rights a little more clear. > > Just because Congress passed a law to overturn DADT, doesn’t mean that the Courts could not have overturned it using the equal protection clause. Yes, but YOU think the EP clause applies to voting rights, don’t you? My point is that if you allow the EP clause to mean, “Any unequal application of the law to two different classes of people can be undone by the courts,” then you eviscerate our notion of self-governance. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 21, 2011, 3:56pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/97 "2011-06-21T15:56:54Z")
> [@Musicat](#): > > And Jefferson had (and used) slaves, too, but I’d like to see Scalia use that as original intent support to justify race issues. Scalia is well aware of the Thirteenth Amendment. But that’s the point: the Thirteenth Amendment was passed by the actual amendment process: the elected members of Congress proposed it; the elected members of the state legislatures approved it. When you amend the Constitution like that, you are consistent with our belief in “We The People” being the ultimate lawmakers in the country. When you introduce a substantive change in law by action of unelected judges, on the other hand, you are not consistent with that belief. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [June 21, 2011, 4:37pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/98 "2011-06-21T16:37:52Z")
> [@Bricker](#): > > Yes, but YOU think the EP clause applies to voting rights, don’t you? > > My point is that if you allow the EP clause to mean, “Any unequal application of the law to two different classes of people can be undone by the courts,” then you eviscerate our notion of self-governance. The limitation on the EP clause is that it provides heightened protection to suspect classes. You do agree that the 14 amendment doesn’t limit the classes, and that it applies to more than just African Americans? The suspect class analysis should be a factual one, not limited to the classes of people the Congress of 1868 thought deserved equal protection. The Congress of 1868 did not think women should have heightened protection, but now the EP clause treats them as a suspect class as well. According the Wikipedia, some of the criteria that SCOTUS listed to describe a suspect class includes the following: > [@](#): > > ``` > The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes. > > ``` > > They possess an immutable and/or highly visible trait. > > ``` > They are powerless to protect themselves via the political process. (The group is a "discrete" and "insular" minority.) > > The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society. > > ``` Our knowledge of the second and last items have evolved since the 1800s. We now know homosexuality is an immutable trait, and we know there is nothing about homosexuals that prevents them from contribution meaningfully to society. I see no reason why we shouldn’t update our EP interpretation to fall in line with our knowledge of these new facts. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 21, 2011, 6:59pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/99 "2011-06-21T18:59:42Z")
> [@Lakai](#): > > We now know homosexuality is an immutable trait, One: while I’m not sure if I care whether or not it is, it has yet to be proven. And I don’t know how today’s science would hold up in court if you tried to put forth that claim. 😕 \*\* Two: That doesn’t account for the high number of bisexuals in the glb movement. Three: I think SSM should be legal anyway. I suppose there is a difference between ‘born’ gay and ‘gay now and can’t change it’. For the latter, there’s solid evidence. The former: uncertain. eta : Does anyone have cites for polling on if Americans think this should be done via courts or legislatures? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 21, 2011, 7:16pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/100 "2011-06-21T19:16:31Z")
> [@Lakai](#): > > According the Wikipedia, some of the criteria that SCOTUS listed to describe a suspect class includes the following: I’m well aware of those criteria. But since my point was that allowing the judiciary to make substantive changes to the law is inconsistent with our notions of self-governance, you cannot rebut that argument by showing me more evidence of how the judiciary has made substantive changes to the law. > [@](#): > > Our knowledge of the second and last items have evolved since the 1800s. We now know homosexuality is an immutable trait, and we know there is nothing about homosexuals that prevents them from contribution meaningfully to society. I see no reason why we shouldn’t update our EP interpretation to fall in line with our knowledge of these new facts. Neither do I… if by “we” you mean our duly-elected legislators, since they represent our legislative will. But I suspect you mean “we,” the judicial branch. And while I agree the change is a wise one, I would much rather see it come from the legislature, not the judiciary. [Previous page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=4) [Next page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=6)