# How Many states before SC Forced To Rule on SSM? **URL:** \ **Category:** Great Debates\ **Created:** [May 20, 2014, 12:27pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820 "2014-05-20T12:27:23Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 3, 2014, 8:14pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/201 "2014-06-03T20:14:43Z")
> [@David42](#): > > Now quote your Oregon case for a proposition that there is a fundamental right or it will become clear you have no backbone as a debater or fighting ignorance. Quote me saying that SSM is a fundamental right. > [@David42](#): > > Define what you mean by being on a side. > > I have a position and it’s not clearly either side. From what I’ve seen, you support SSM only if it’s achieved through legislative means. In my view that’s unreasonable and unfair because it takes legal tools away from people who are being discriminated against. I’m glad states are voting to allow these marriages but in a just society the courts would’ve taken care of this years ago. It’s also my position that your views are colored by personal disdain for gays. You insist that’s not true, but the bottom line is that I don’t believe you and you made your feelings very plain: > [@David42](#): > > I was the founding chairman of Libertarians of South Central Kansas in the 90’s. In the course of that I have been very involved with helping the gay wing of the LP. I have given my money, helped plan, build floats and marched in a gay pride parade, visited some in jail and put money on their books, and relentlessly analyzed legal issues WANTING to help. I have been with them to gay bars to further discuss their issues and what could be done, and endured much unwelcome touching from gays who did not understand no thank you. And still I went back becaue I valued my friends–they had come to me for help and by God I was gonna help them. When Iw as in the law office I did all kinds of free shit for them, gay rights or not. But the same people started calling names and treating me like fuckall-SHIT when it came around to SSM being forced through the courts which I cannot make a case for, at least under EP jurisprudence. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2014, 1:29am UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/202 "2014-06-04T01:29:27Z")
> [@Marley23](#): > > Quote me saying that SSM is a fundamental right. > > From what I’ve seen, you support SSM only if it’s achieved through legislative means. In my view that’s unreasonable and unfair because it takes legal tools away from people who are being discriminated against. Those “legal tools” are abusive and have great potential for harm. Here is the exchange in relevant part, through pages two and three: > [@David42](#): > > I expect you will recognize this as an admission that arguing from a false premise of a “fundamental right” is fallacy. > [@Marley23](#): > > Not at all! It’s a right. The court hasn’t recognized it yet, but they’ll do that in a year or two or three. You admit it right there. [/QUOTE] Ok then, have it your way, CITE your proposition that the Constitution protects a fundamental right to SSM. Can you understand that? [/QUOTE] > [@Marley23](#): > > Equal protection clause of the 14th Amendment. This can’t be the first time you’ve asked that question and received that answer. And it’s an erroneous answer is the problem: The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” This provision creates no substantive rights.San Antonio Independent School Dist.v.Rodriguez,411 U.S. 1, 33 (1973);id., at 59 Vacco v. Quill, 521 U.S. 793, (1997). “The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education, as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.[p34]Eisenstadt v. Baird,405 U.S. 438(1972);[n73]Dunn v. Blumstein,405 U.S 330(1972);[n74]Police Dept. of Chicago v. Mosley,408 U.S. 92 (197) ; [n75] Skinner v. Oklahoma,316 U.S. 535(1942).[n76][p35]” San Antonio School Dist. v. Rodriguez,411 U. S. 1,411 U. S. 33(1973) You’re posts aren’t worth reading, Marley, but I do read them. You are uneducated in law and your opinion is formed by the propaganda of the gay lobby, not knowledge of law. But you can always start learning. The sooner the less face you’ll lose. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2014, 3:38am UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/203 "2014-06-04T03:38:10Z")
Ok, Not Really All That Bright, here’s parts 1 and 2 for Herbert v. Kitchen. Again, this case did not decide under strict scrutiny. It discussed it and clearly decided that to follow current precedent he has to decide under rational basis review. An yes, he does commit the rational basis sins already discussed, i.e., the “perfectionist argument.” For which I have shown ample authority for, and while one Doper Concedes these at least for rational basis, none of you have challenged, which I take for acceptance. Well here’s one weird question, may not mean much: “The two are both concerned about how they will support each other in the event that one of them passes away, a consideration that is especially urgent in light of Karen’s illness” Dead people need no support. This concern is actually probably “They are concerned about how a survivor will be supported if one of them passes away.” But they should know which one of them has means, and which one will have no means if the other dies. Or do they mean to say they each have small incomes together, which pay the bills, but neither has adequate means alone? Summary Judgment, no trial. Part I Here the court gives us specifc facts of the plaintiffs and rumbles around with some generalities of constitutional law without telling us how they apply. I boded all the quotes of the court from here on out. **“Both parties present compelling arguments, and the protection of states’ rights and individual rights are both weighty concerns. In Windsor, these interests were allied against the ability of the federal government to disregard a state law that protected individual rights. Here, these interests directly oppose each other.”** “The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive” first mention of a right, and the court has not told us where this right comes from. We want to be careful and watch where this right comes from. Therefore, so far I am going to argue a false premise. Next **In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor: In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same sex couples marital status. 133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor…** The hell it does. This court agrees with Scalia on one point only, the effect Windsor will have on this question. I guess this court does not know, but dissents do not set precedent. Sometimes a dissent is adopted by a majority later, but a dissent has no precedential value until a majority adopts it. Part II Next the court gets into Baker. \*\*“Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig versus Boren, 429 U.S. 190, 197 (1976)…” \*\* (Disagrees with McShane in Marley’s Oregon case, where the court said SSM is not a matter of gender discrimination. Will this court later hold SSM is indeed a matter of gender discrimination? If not, how could this doctrinal development have any bearing? This is a doctrinal development in another area and does not apply unless it does.) \*\*“…, but also before the Court recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635-36 (1996).” \*\* ``` But this case didn't hold anti-gay discrimination is a matter of gender discrimination. So, which is it? These are two different doctrinal developments; neither of which applies. Both the 1st and 8th circuits have rejected Romer and Lawrence "doctrinal developments. We have to wait and see whether this court uses both, because if it does, it has done no wrong here. But if it doesn't, at the kindest we will have to say this court is a bit ignorant of building its case; but perhaps not the worst we could say, if we're not feeling kind, is that this court is misleading us. We will soon find out. ``` Nevertheless, Baker’s questions aren’t which standard of review to apply—they are whether EP and DP apply at all, because no relief available would have to mean it was contemplated at the highest level, strict scrutiny. And the fact of the matter is we do not delve into what the Supreme Reasoned—it didn’t tell us any. And of course there was no dissent in Baker. The court then notes that Lawrence removes one justification for denying SSM, but leaves it unsaid, but I will supply morality as that reason, that, actually is a reason we can only be sure removes morality as a justification for criminal sanctions against homosexual sex conduct. Not quite the same thing. Whether the government grants you a particular status or is punishing you have quite different implications. **“The State points out that, despite the doctrinal developments in these cases and others, a number of courts have found that Baker survives as controlling precedent and therefore precludes consideration of the issues in this lawsuit. See, e.g., Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker “limit[s] the arguments to ones that do not presume to rest on a constitutional right to same-sex marriage.”); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (ruling that Baker barred the plaintiffs’ equal protection claim). Other courts disagree and have decided substantially similar issues without consideration of Baker. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (ruling that California’s prohibition of same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment). In any event, all of these cases were decided before the Supreme Court issued its opinion in Windsor.”** Well, ok, the court mentions the 1st circuit like it should. But for some reason fails to mention Citizens v. Bruning which I have quoted and analyzed from previously. But then we get back into this tricksey, tricksey territory when the court talks about Perry v Schwarzenegger, at the district court level. Yes, the district court said what this court says it said, but it DAMN WELL KNOWS that the 9th circuit in Perry v Brown, as Perry v Scharzenegger morphed into, did not agree and decided the case on different grounds. There is no precedent in the 9th circuit for an EP or DP claim under the federal constitution. Instead the ninth circuit’s grounds were that it is unconstitutional to withdraw a right once secured. I don’t need to read further to know that this court is committing stare decisis treason, or else is too ignorant to be on the bench. Next this court claims that it’s view is authorized by justices Roberts and Scalia’s dissents. Of course, Dissents are to be ignored for precedential value, as previously explained. Secondly, he misreads them, and leaves out the more relevant things Roberts said. \*\*“Importantly, the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts raising the question of a state’s ability to prohibit same-sex marriage, a fact that was noted by two dissenting justices. The Honorable John Roberts wrote that the Court “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.” Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting). And Justice Scalia even recommended how this court should interpret the Windsor decisionwhen presented with the question that is now before it: “I do not mean to suggest disagreement . . that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples.” Id. at 2709 (Scalia, J., dissenting).” \*\* That’s what the dissenters see, not “the court.” Bait and switch–starts off telling us it is the court that says this must lead to SSM, but then supports that with only non-binding dissent. Roberts is pointing out that the decision goes no further and should not be applied to state cases of SSM, but the court draws the opposite conclusion that Roberts is telling him to take Windsor as precedent, and ignores the following: \*\*But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,”ante, at18, may continue to utilize the traditional definition of marriage. \*\* Roberts, Windsor, Dissenting And then it gets worse with Scalia’s view: **I do not mean to suggest disagreement withThe Chief Justice’s view,ante,p.2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court couldtheoreticallydo so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.** Scalia, Windsor, Dissenting A distinguished case does not mean it should be treated with honor, as this court seems to mistake the use of the word. It means there are reasons to not follow it for the current case, because of how different the facts and circumstances are. Windsor is unique and will stand alone—never will it be the case again that the federal government ignores a state’s determination of a marriage law for same-sex couples. That’s it for Windsor and any “doctrinal change” the court is applying from it. I think it is very important when assigning weight to this case to note that it draws nothing from Windsor’s majority along the lines of a doctrianl shift to say Baker should become non-precedential. This court cites NOTHING in Kennedy’s opinion and never held the majority had indicated a doctrinal development. What utter crap. I was honestly hoping for an intellectual discourse on how Windsor’s MAJORITY had given us a doctrinal development. I can’t see it and am eager for some court to show me, but this one sure isn’t. We are absolutely off in La-La land when the court next tells us that the fact that the Supreme Court did not summarily deny Hollingsworth as it did Baker indicates a doctrinal shift from Baker. Baker had EP and Due Process applied to SSM before the court. But the 9th circuit court of appeals had rejected Judge Walker’s EP and DP arguments and instead ruled a right once given may not be taken away, at least in their case. There is a test for it, so this is not absolute. It is that question and not EP nor DP, so the Supreme Court gave us no hint about Baker in granting cert for Hollingsworth. Perhaps this court simply presumes that the 9th circuit upheld Walker’s reasoning. It sure looks like it, and the alternative is mendacity. At the most, you could say maybe this time the plaintiffs in Hollingsworth raised a claim that IS a federal question. And yet Oregon did not grant a right and then take it away. The fact is, the only thing you can draw from Hollingsworth about Baker is they seem to agree, no EP or DP here. Like seems to be the case in popular opinion, any pro-gay outcome in a court case seems to back all the others up, but there’s a huge problem with that—all these pro gay cases are disagreeing in their reasoning. One says there is EP and another says there isn’t but both wind up with pro-gay results. These lower courts cannot all be right when they are contradicting each other. I conclude for part II that this case will not survive the appeals process unless the appellate court comes up with better reasons for a doctrinal development because Baker should foreclose it, and this court does not offer any valid reason to find a “doctrinal shift.” ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 4, 2014, 6:47am UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/204 "2014-06-04T06:47:33Z")
> [@David42](#): > > Statutes give words their ordinary meanings. > > Here is the ordinary meaning of marriage in use for most of our nation’s history. > Noah Webster (1828), a lawyer by training, defines marriage as a specifically heterosexual union and moralizes at length about its religious virtues, something today’s more modest lexicographers refrain from doing: > > “Marriage. n. s. The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.” > > Which means every time the word marriage appears, IT MEANS a man and a woman. You misspelled MEANT. I have noted the change in meaning and argued against the claim that SSM has always been protected by the Constitution on several occasions. > [@David42](#): > > As for your claim there was no welfare, before our constitution, the governmental function of welfare was performed by the Church as an arm of the government. Utter rubbish. Dance away. > [@David42](#): > > When a court reads a marriage statute, it applies the ordinary meaning of marriage to to the law and reads it in. Neither statutes nor judicial opinions have to define every word they use for the word to mean what it means, unless the definition is in dispute. You are claiming that because it never came into dispute, that it makes me somehow wrong to say all the courts discussing marriage meant one man and one woman or that I have an unjustified opinion. Well, you are wrong, so there is that. You are deducing an opinion based on your own desire to see one when there was never an opinion in either direction on an issue that was never raised. > [@David42](#): > > You admit that YOU put the qualification of “explicit” on it to change my claim with some kind of weak reasoning your extra condition locks me into my claim, and you are continuing to ignore the fact I have clarified to you that when I said “express purpose” I am referring to an express purpose the state gives. I have never claimed that you introduced the word explicit, although that was clearly your intent. Your “explanation” of “express goal” is gobbledegook. There was never an “expressed goal” in the manner that you pretend and even your interpretation (along with your recent claim that the churches acted as an arm of government) fails on the fact that you used the word “express” while your interpretations are never actually expressed in either law or judicial renderings. > [@David42](#): > > Whether any state has actually used my words is irrelevant–I was not talking about any specific case to which I can be held. Which pretty much sums up our discussion. > [@David42](#): > > yeah I still cannot discern any position other than that I annoy you. I DON’T give a FUCK whether I annoy you or not. You’re being fucking annoying by dancing around what your position is. Amusing. You use a phrase, dodge around its meaning, invent new ways “interpret” your meaning and then accuse me of dancing. > [@David42](#): > > Yes and you built a strawman you continue to groom by insisting my psoition is an explicit one, and that I was talking about modern purposes the state may give, which you also tried to force me into some awkward position that only pre 1990 cases would warrant support. My position was the authority of the state to express the purpose of marriage NOW. No. You claimed to have “lots of” examples of courts defining a marriage as between one man and one woman, implying that such opinions by the courts permeated jurisprudence throughout the history of the country. I specifically noted that I doubted that you could find any cases prior to the current (meaning last 25 years) discussion of SSM, (and I was wrong by one case). And the single case you found, from 1971, explicitly supported my contention that the courts only ruled on the issue when it was challenged. You have bent over backwards to avoid that point. > [@David42](#): > > Loving is a pre 1990 case that does not explicitly define marriage, therefore, you drug it in. I just can;t tell what sense you do or don’t make of it. _Loving_ addressed the issue of marriage as a fundamental right. It never addressed the issue of “one man and one woman,” so your attempt to use it failed to address my point. And I did not “drag in” _Loving_ to our discussion, you tried to. > [@David42](#): > > I am sure you do not object when they do raise Loving in that way–I sure haven’t seen you EVER tell them they are wrong. By your oversimplified evaluation, that would put you on the “other side” and against SSM. Now you are being silly. I argued that _Loving_ did not set a standard on which SSM could rely, (without a change in language), as early as 2006. Since most SSM brawls on this board tend to be of the “Uh huh/Nuh uh” variety, I do not rush to post in every one of them, preferring to simply challenge errors of fact such as claims about “express goals” that have never been expressed. > [@David42](#): > > I never had a position that pre-1990 cases explicitly define marriage as one man and one woman. Whether they DO or DON’T is your position, NOT MINE. The 1971 decision also is in response to SSM, so you might as well say none. Why you accept Baker as meeting your conditions but not any others that do the same thing is ludicrous. My point, (which was only a question regarding your claims, not an assertion of mine), was that the courts did not rule that marriage comprised “one man and one woman” until the notion of heterosexual marriage was challenged. That was explicit in my post, so _Baker_ certainly qualified. I used 1990 as a cut-off date because the notion of SSM was beginning to make it into the public consciousness by that time and I would not have been surprised to find some judge tossing the phrase into a decision after 1990 in which the point was irrelevant to the case, but he wanted to get his personal view out there. > [@David42](#): > > I think it is high time you cite for your claims that marriage needs to be defined in each case it is mentioned and goes no further, or else it is somehow void or something–again, you are dancing around what YOUR position is. > We all know what their definition of marriage is–the common and ordinary one. You keep trying to assign me a position when my only position is to ask that you refrain from making errors of fact. > [@David42](#): > > I already showed you that definition, made by a judge who knew that words in a statute are given their ordinary meaning. And the date of that decision? > [@David42](#): > > SSM doesn;t have to be considered for a judge to give marriage its ordinary meaning and say no more than “marriage.” Then you should refrain from claiming that there are “lots of” decisions in which the courts affirmed that marriage was defined as “one man and one woman” when the fact is that the courts, operating within the assumptions of society, ignored the point. > [@David42](#): > > I have not made any statement to identify me with either “side.” I would be concerned if either side got an advantage by manipulation. YOUR FUCKING ANNOYING OPINION is in error. And your bad habit of assigning things to me like I am on one side or the other, or that my claim must be changed to an explicit one is completely unwarranted. Nah. You are just irritated that you can’t get away with making unsupportable claims. And given the number of times that you have created straw men to attack in our discussion, along with your propensity of demanding that I defend positions I have never posted, you accusing me of holding a position when I have only asked you to support your claims is amusing. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2014, 2:56pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/205 "2014-06-04T14:56:14Z")
You’ll sure rush to CREATE a "Uh huh/Nuh uh"situation–like insisting I meant something I didn’t and carefully maintaining fictions like I only produced one case when I produced three and very justifiably say I will go no further until you recognize them. Like I said, you are ignored unless until you come up with something substantive which would mean something other than your continued opinion of what my position could be. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [June 4, 2014, 2:59pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/206 "2014-06-04T14:59:29Z")
> [@David42](#): > > You’re posts aren’t worth reading, Marley, but I do read them. You are uneducated in law and your opinion is formed by the propaganda of the gay lobby, not knowledge of law. > > But you can always start learning. The sooner the less face you’ll lose. OK, that’s enough. David42, you’re more than welcome to defend your position, but you’re not entitled to make denigrating comments about other posters. Doing so in the future may earn you warnings and - if you get enough warnings in a short time - consequences may follow. Please don’t do so again. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 4, 2014, 3:11pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/207 "2014-06-04T15:11:27Z")
> [@David42](#): > > Those “legal tools” are abusive and have great potential for harm. I disagree. There’s a great deal of potential harm in letting people vote on the rights of other citizens, but I see none in having the courts rule on these things. > [@](#): > > You admit it right there. I did not, actually, but I admit I tried to slice that hair too finely so it looked like I was addressing it. I’ve never directly addressed your fixation on fundamental rights in the first place because I don’t see the importance of this distinction (or many, many others that occupy your time). > [@](#): > > The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” This provision creates no substantive rights. No rights need to be created here. Opposite-sex couples can marry under almost all circumstances and same-sex couples cannot. This is the denial of a right. > [@](#): > > The sooner the less face you’ll lose. Here’s the problem: I’m pretty sure SCOTUS is going to accept my logic, not yours, and I’ve not positioned myself as a Grand High Legal Authority. Further, none of my posts have taken on a strange and self-incriminating tone. ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [June 4, 2014, 3:35pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/208 "2014-06-04T15:35:11Z")
> [@David42](#): > > Unsaid so far is that civil unions also classify directly by naming the group same sex couples, which might be used to kick the question up to strict scrutiny. Thus civil unions might represent an invidious discrimination by naming the group and conceding the concerns of marriage apply in the same to same sex couples as they do to opposite sex couples. After Smithkline is final, it will be interesting to watch the 9th circuit and see how this goes. Other circuits as well of course, depending on if they use the same scrutiny rationale. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 4, 2014, 4:36pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/209 "2014-06-04T16:36:12Z")
> [@David42](#): > > You’ll sure rush to CREATE a "Uh huh/Nuh uh"situation–like insisting I meant something I didn’t and carefully maintaining fictions like I only produced one case when I produced three and very justifiably say I will go no further until you recognize them. > > Like I said, you are ignored unless until you come up with something substantive which would mean something other than your continued opinion of what my position could be. What have I erroneously claimed that you meant that you did not mean? I have merely asked you to provide evidence for those of your assertions that are not supported by fact. As to your “three” cases, two of them are, like _Loving_, irrelevant to your assertion of “one man and one woman.” _Skinner_ and _Zablocki_ each assert marriage as a fundamental right, but neither of them assert that marriage must be between “one man and one woman.” Citing them is just you throwing more dust in the air to avoid recognizing that you overstated your case for “lots of” authorities asserting “one man and one woman.” No big deal. Other readers can see what you have posted. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 4, 2014, 4:47pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/210 "2014-06-04T16:47:16Z")
> [@tomndebb](#): > > _Skinner_ and _Zablocki_ each assert marriage as a fundamental right, but neither of them assert that marriage must be between “one man and one woman.” If the court has acknowledged that marriage is a fundamental right, what is the point of **David42** ’s argument that the court has not acknowledged a fundamental right to same-sex marriage? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 4, 2014, 5:29pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/211 "2014-06-04T17:29:38Z")
> [@Marley23](#): > > If the court has acknowledged that marriage is a fundamental right, what is the point of **David42** ’s argument that the court has not acknowledged a fundamental right to same-sex marriage? Because, as **David42** has pointed out, (echoing my comments from as long ago as 2006), in the cases decided, marriage was presumed to be heterosexual. That is what the word marriage meant. When _Baker_ was filed in 1970 or 1971, that understanding of marriage was so prevalent that not even the gay community looked at it differently. (For example, I worked for a militantly gay boss in the late 1970s who was unabashed about relating to and discussing his partner-for-life, and he never once expressed an interest in making that partnership a “marriage” or even raised the issue of SSM at any time.) It is only when the understanding of marriage began to change that courts could look at the “fundamental right” aspect of marriage and consider applying it to homosexual unions. With Same Sex Marriage now recognized in Canada, New Zealand, most of the United Kingdom, (with every indication that Scotland will do the same after the separation vote), South Africa, multiple states within the U.S. and a host of non-English speaking countries, it will be increasingly difficult to argue that the word marriage continues to mean only a heterosexual union, but current case law does not actually support the retroactive recognition of SSM as a fundamental right. This is not a “times change” argument but a recognition that words actually do change in meaning and we are very close to the time when “marriage” will no longer mean “heterosexual union.” Note that the successful lawsuits, to date, have relied on language in state constitutions that differ in various ways from that of the Constitution. (That is why I think life would have been better in the future if SSM were brought about by ballot rather than the courts–less chance of a reversal if society goes on an anti-gay binge. However, as Marley has been repeating, it is coming, regardless how it gets here.) ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 4, 2014, 5:52pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/212 "2014-06-04T17:52:30Z")
> [@tomndebb](#): > > Because, as **David42** has pointed out, (echoing my comments from as long ago as 2006), in the cases decided, marriage was presumed to be heterosexual. That is what the word marriage meant. When _Baker_ was filed in 1970 or 1971, that understanding of marriage was so prevalent that not even the gay community looked at it differently. […] > It is only when the understanding of marriage began to change that courts could look at the “fundamental right” aspect of marriage and consider applying it to homosexual unions. With Same Sex Marriage now recognized in Canada, New Zealand, most of the United Kingdom, (with every indication that Scotland will do the same after the separation vote), South Africa, multiple states within the U.S. and a host of non-English speaking countries, it will be increasingly difficult to argue that the word marriage continues to mean only a heterosexual union, but current case law does not actually support the retroactive recognition of SSM as a fundamental right. This is not a “times change” argument but a recognition that words actually do change in meaning and we are very close to the time when “marriage” will no longer mean “heterosexual union.” Note that the successful lawsuits, to date, have relied on language in state constitutions that differ in various ways from that of the Constitution. None of that seem controversial to me. Am I wrong that **David42** is responding to arguments about future rulings by saying “well it hasn’t happened yet?” That’s not much of an answer. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 4, 2014, 6:13pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/213 "2014-06-04T18:13:00Z")
> [@Marley23](#): > > None of that seem controversial to me. Am I wrong that **David42** is responding to arguments about future rulings by saying “well it hasn’t happened yet?” That’s not much of an answer. I have no intention of making **David42** ’s point. Since he seems unable to provide support for simple questions regarding his stated claims, I have little hope that I would correctly guess what his unstated claims might mean. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 4, 2014, 6:19pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/214 "2014-06-04T18:19:57Z")
> [@tomndebb](#): > > I have no intention of making **David42** ’s point. Since he seems unable to provide support for simple questions regarding his stated claims, I have little hope that I would correctly guess what his unstated claims might mean. That’s fair. I guess we can hope against hope that he’ll express himself clearly. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2014, 6:29pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/215 "2014-06-04T18:29:46Z")
> [@tomndebb](#): > > What have I erroneously claimed that you meant that you did not mean? I have merely asked you to provide evidence for those of your assertions that are not supported by fact. > > As to your “three” cases, two of them are, like _Loving_, irrelevant to your assertion of “one man and one woman.” _Skinner_ and _Zablocki_ each assert marriage as a fundamental right, but neither of them assert that marriage must be between “one man and one woman.” Citing them is just you throwing more dust in the air to avoid recognizing that you overstated your case for “lots of” authorities asserting “one man and one woman.” > > No big deal. Other readers can see what you have posted. I didn’t claim Zablocki or Skinner. Actually, I do claim Skinner, but the cases I proffered were Jones v. Hallahan and Anonymous v anonymous. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2014, 6:31pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/216 "2014-06-04T18:31:38Z")
> [@tomndebb](#): > > It is only when the understanding of marriage began to change The point is WHOSE understanding of marriage began to change? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 4, 2014, 6:36pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/217 "2014-06-04T18:36:58Z")
At this point most people in the U.S. support same-sex marriage, so the answer is “society.” ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 4, 2014, 6:37pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/218 "2014-06-04T18:37:08Z")
> [@David42](#): > > The point is WHOSE understanding of marriage began to change? That of society. The word is already recognized as having a meaning that embraces heterosexual and homosexual unions in every major English-speaking nation except Australia. It may not be popular among all people and many may use it that way grudgingly, but it is already established in the language. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2014, 6:39pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/219 "2014-06-04T18:39:00Z")
> [@Marley23](#): > > I disagree. There’s a great deal of potential harm in letting people vote on the rights of other citizens, but I see none in having the courts rule on these things. You’re still arguing from a false premise and failing to respond to the fact that your proffer of a case showing a fundamental right does not do so. Only what is enshrined in the bill of rights is what is prevented form being voted on (except further constitutional amendments, that can ALWAYS be voted on. > [@Marley23](#): > > I did not, actually, but I admit I tried to slice that hair too finely so it looked like I was addressing it. I’ve never directly addressed your fixation on fundamental rights in the first place because I don’t see the importance of this distinction (or many, many others that occupy your time). Well then, what IS your opinion. You’re dancing around as TomnDebb would say. I suppose youa re relying on some lesser form of right, then? But many rights arre legislative in nature and can be repealed. > [@Marley23](#): > > No rights need to be created here. Opposite-sex couples can marry under almost all circumstances and same-sex couples cannot. This is the denial of a right. Their right to opposite sex marriage is not impaired, and heterosexuals do not have a right to SSM while homosexuals are excluded. > [@Marley23](#): > > Here’s the problem: I’m pretty sure SCOTUS is going to accept my logic, not yours, and I’ve not positioned myself as a Grand High Legal Authority. Further, none of my posts have taken on a strange and self-incriminating tone. You can have problems based on your prediction of the future, but they do not mean anything. I haven’t positioned myself as anything. It is your focus on my qualifications, rather than looking at the argument I present. I’m not attacking anyone’s qualifications. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 4, 2014, 6:41pm UTC](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820/220 "2014-06-04T18:41:21Z")
> [@tomndebb](#): > > That of society. > > The word is already recognized as having a meaning that embraces heterosexual and homosexual unions in every major English-speaking nation except Australia. It may not be popular among all people and many may use it that way grudgingly, but it is already established in the language. CITE. What you are actually doing is using a handful of opinions that it should change. If it had changed, there would be no opposition. it’s not our business what people in other countries think. They ahve no bearing on what happens in the U.S. Weare not bound by what people in New Zealand think. If you think they have better ideas, move there. [Previous page](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820.md?page=10) [Next page](https://boards.straightdope.com/t/how-many-states-before-sc-forced-to-rule-on-ssm/688820.md?page=12)