Enriching divorce lawyers.
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.
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.
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.
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?
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:
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?
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?
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).
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.)
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.
I think the applicability of the 14th hinges on two things:
- 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:
- 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.
What prevents a contract being limited to two parties?
Quoth Bricker:
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.
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.
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.
Scalia describes himself as an Originalist:
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.
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.
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.