How Many states before SC Forced To Rule on SSM?

[tomndebb]

@David42

What’s rubbing me the wrong way here is I never claimed Loving and the like EXPLICITLY held one man +one woman. I admit I was not clear, but you are reading a LOT into my statements. When I said “Express Purpose” it was in response to a question asked by someone else where it appeared to me it was obvious it was understood that the state expresses the purpose, or offers justifiction, or explains it or whatever. If I am wrong and I ever said Loving and the like were explicit, show me.

You have a tendency to impose your personal beliefs on the arguments and then get upset when you are called on it. That is not my problem. I just prefer that you not make claims that are not accurate.

First you made the claim that marriage had an express purpose, but tacked on some interpretations of your own that were not supportable in any law or judicial review. The notion that marriage was intended to keep children from becoming a burden on the state is silly, given that for centuries the state never bothered to do anything to support children who lacked identifiable fathers. You then went further to claim that it was the “express” purpose, even though your interpretation was never actually expressed in either law or judicial proceedings. Your tacked on goal was laudable, but it was silly to claim that it was an actual goal and it was absurd to claim that it was actually expressed anywhere when it was not.

Next you made the claim that the courts had asserted marriage as a fundamental right, but limited to one man and one woman. Your implication was that this is a legal tradition with a long and venerable history. However, the notion of the fundamental right of marriage appears to be rather recent in historical terms and the notion that that right has been affirmed only for one man and one woman on many occasions is simply wrong. To affirm that position, it needs to show up in actual judicial opinions and it does not appear until the societal assumption regarding the types and number of spouses was challenged. In other words, there was no actual law or judicial opinion that even considered the notion that a marriage could be contracted between people of the same sex until two people of the same sex challenged it. At that point, SCOTUS hurried to assert the assumed condition as fact, (a point with which I have no problem). However, pretending that that assumption was ever addressed in law prior to Baker is simply not honest. Finding subsequent court decisions from the 1990s or later in which the issue was debated does nothing to support the notion that the limit on same sex marriage can be found in established law. It was ignored for the very reason that it was not considered, but pretending that it was supported by law is no more accurate than the claim of SSM proponents that marriage, as a fundamental right, has always been found in law. You are both trying to wrap yourselves in the cloak of history and you are both ignoring actual history to do so.

@David42

However, this does not mean opponents of SSM make a presumption–certainly not a rebuttable one. It’s a fact that those cases were talking about one man one woman because, one, they’re weren’t any SSM couples and two) the cases were a man and a woman before the court. None of the marriage “fundamental right” cases help you, even if they weren’t about SSM, which is what you’re trying to do–say Loving means there must be legal gay marriage based on “it was just an understanding,” an understanding it would help you to understand.

You are engaging in another straw man attack. You are trying to assign to me a position I have never expressed.
I simply wish for you to stop pretending that the law has said something that it has never said or pretending that certain rules were established even before they were considered. Note that in this paragraph you actually get it right, that the courts never considered SSM because for hundreds of years it never came before the courts. However, you overstep accuracy when you claim that the courts defined marriage as a fundamental right for “one man and one woman.” The courts dd not even address the issue, so how could they have affirmed it?

@David42

It is ironic that you are taking this “explicit” business so far when any “explicit” was something you pinned on me by reading it into my comments–which weren’t explicitly making the claim–you read an implication into my comments and stand on it to tell me I can’t read something implied in Loving. That’s rich and pregnant with irony.

The only irony is your inserting your own interpretations into law, then ducking away when your own words demonstrate your error. It is true that you did not use the word “explicit.” I introduced the word to ensure that we stuck to your actual words after having gone through the “express goal” merry-go-round that turned out to have never been expressed. Your claim was that "I have a lot of authorities that marriage defined as one man and one woman is a fundamental right. " I expressed doubt that you could find “lot of authorities” making that assertion and further noted that I recognized that a few authorities had made that claim in the last 25 years. (It is also true that some authorities in the same period had made the opposing claim.) I was looking for a citation that addressed the issue as an absolute, not as a reaction against a plea for SSM. You were only able to provide one such case–and it was in direct response to a plea for SSM recognition. In other words, there was no genuine identification of marriage as “one man and one woman” that was embodied in the definition of marriage prior to that assumption being challenged. Your “lot of authorities” amount to one example from 1971 and a handful of decisions that only arose after the assumption was challenged. When I encountered your claim–lacking dates or context–I challenged you to provide your evidence. Your dates are recent and your context is flawed. (Using explict should have precluded you trying to invoke Loving, since it never mentioned “one man and one woman.” I am aware that some pro-SSM folks look to Loving, but I do not, so trying to drag it into our exchange is pointless.

@David42

The Good old “Times Have Changed” argument. That is a question for the legislature or the ballot box. If the majority of our people have indeed changed in their views then prove it at the ballot box. I dispute that this claim warrants judicial imposition of SSM. And if your point is “times have changed” then it makes no sense why you’d expect me to disprove that with the older, and not more recent, cases.

I have argued on several occasions that SSM would be better supported through legislative action. You are, as usual, ascribing to me things I have not said.
However, you wish to pretend that the actual decisions of earlier times support your position when even you admit that they were never actually even considered.

@David42

The actual fact of the matter is the view of marriage has changed for some. They have encouraged gay marriage for the public to accept by mostly fraudulent, manipulative propaganda. Not only that most of the support is in the youth–who are naturally more liberal about sexual issues and have idealistic views of love–and who happen to have the least life experience in these matters. They also tend not to vote as much.

Your “fraudulent and manipulative propaganda” is nothing more than sour grapes that the fraudulent and manipulative propaganda in which your side has engaged has lost.
meh

[David42]

@tomndebb

First you made the claim that marriage had an express purpose, but tacked on some interpretations of your own that were not supportable in any law or judicial review. The notion that marriage was intended to keep children from becoming a burden on the state is silly, given that for centuries the state never bothered to do anything to support children who lacked identifiable fathers. You then went further to claim that it was the “express” purpose, even though your interpretation was never actually expressed in either law or judicial proceedings. Your tacked on goal was laudable, but it was silly to claim that it was an actual goal and it was absurd to claim that it was actually expressed anywhere when it was not.

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.

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. But we made the church separate from government, thus, when America’s churches continued feeding the poor, it wasn’t a governmental function. nevertheless, it took some while for our people to reassign government a function of welfare. And just because the federal government engaged in welfare at a late date doesn’t mean the states did. They most certainly did. When the state sets up an orphanage, it is showing concern for out-of wedlock abandoned children as well as children whose parents are dead. Missing parents work the same way to an orphanage.

@tomndebb

Next you made the claim that the courts had asserted marriage as a fundamental right, but limited to one man and one woman. Your implication was that this is a legal tradition with a long and venerable history. However, the notion of the fundamental right of marriage appears to be rather recent in historical terms and the notion that that right has been affirmed only for one man and one woman on many occasions is simply wrong. To affirm that position, it needs to show up in actual judicial opinions and it does not appear until the societal assumption regarding the types and number of spouses was challenged. In other words, there was no actual law or judicial opinion that even considered the notion that a marriage could be contracted between people of the same sex until two people of the same sex challenged it. At that point, SCOTUS hurried to assert the assumed condition as fact, (a point with which I have no problem). However, pretending that that assumption was ever addressed in law prior to Baker is simply not honest. Finding subsequent court decisions from the 1990s or later in which the issue was debated does nothing to support the notion that the limit on same sex marriage can be found in established law. It was ignored for the very reason that it was not considered, but pretending that it was supported by law is no more accurate than the claim of SSM proponents that marriage, as a fundamental right, has always been found in law. You are both trying to wrap yourselves in the cloak of history and you are both ignoring actual history to do so.

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.

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.

Whether any state has actually used my words is irrelevant–I was not talking about any specific case to which I can be held. My point is exactly that a state COULD cite its interest in welfare.

@tomndebb

You are engaging in another straw man attack. You are trying to assign to me a position I have never expressed.
I simply wish for you to stop pretending that the law has said something that it has never said or pretending that certain rules were established even before they were considered. Note that in this paragraph you actually get it right, that the courts never considered SSM because for hundreds of years it never came before the courts. However, you overstep accuracy when you claim that the courts defined marriage as a fundamental right for “one man and one woman.” The courts dd not even address the issue, so how could they have affirmed it?

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.

@tomndebb

The only irony is your inserting your own interpretations into law, then ducking away when your own words demonstrate your error. It is true that you did not use the word “explicit.” I introduced the word to ensure that we stuck to your actual words after having gone through the “express goal” merry-go-round that turned out to have never been expressed. Your claim was that "I have a lot of authorities that marriage defined as one man and one woman is a fundamental right. "

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.

@tomndebb

You were only able to provide one such case–and it was in direct response to a plea for SSM recognition. In other words, there was no genuine identification of marriage as “one man and one woman” that was embodied in the definition of marriage prior to that assumption being challenged. Your “lot of authorities” amount to one example from 1971 and a handful of decisions that only arose after the assumption was challenged. When I encountered your claim–lacking dates or context–I challenged you to provide your evidence. Your dates are recent and your context is flawed. (Using explict should have precluded you trying to invoke Loving, since it never mentioned “one man and one woman.” I am aware that some pro-SSM folks look to Loving, but I do not, so trying to drag it into our exchange is pointless.

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.

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.

Can we therefore conclude that you’d be against a judicial decision granting gay marriage if it abused the precepts of Loving? Would you speak up and say why it was a wrong decision, even though you might agree with the result in other circumstances?

That is all I do, yet you put me on the “other side.” And we both say Loving is an erroneous road to SSM, apparently.

I gave you three cases. You won’t look, and still do not acknowledge three.

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.

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.

I already showed you that definition, made by a judge who knew that words in a statute are given their ordinary meaning.

@tomndebb

I have argued on several occasions that SSM would be better supported through legislative action. You are, as usual, ascribing to me things I have not said. However, you wish to pretend that the actual decisions of earlier times support your position when even you admit that they were never actually even considered.

SSM doesn;t have to be considered for a judge to give marriage its ordinary meaning and say no more than “marriage.”

@tomndebb

Your “fraudulent and manipulative propaganda” is nothing more than sour grapes that the fraudulent and manipulative propaganda in which your side has engaged has lost.
meh

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. You should stop all this annoying stuff and learn how to debate properly. As it is, any reasonable person will discount all that you say, because it is unreasonable for you to go on and on and on ignoring our history and law to make some kind of claim that it matters at all whether the judges prior to 1990 felt they had to explicitly discuss the definition of marriage, or that it is somehow relevant either way, whichever the position you’re dancing around and will not confirm is.

You’re annoying too. This is the last I am addressing your bullshit until you correct your mistakes.

[David42]

@Antinor01

That’s why I didn’t think he meant Smithkline, because as I had noted it wasn’t yet binding precedent. The scrutiny issue has been interesting, his decision isn’t the first I’ve read where they say ‘It really doesn’t matter, because this doesn’t pass constitutional muster under ANY scrutiny level’.

Indeed I overlooked that SmithKline wasn’t final and that answers my question.

[Marley23]

@David42

I have not made any statement to identify me with either “side.”

While I’ve given up on trying to climb these walls of text, I feel obliged to point out this is false. You have not owned up to a position, but you have expressed your feelings pretty clearly.

[David42]

@Antinor01

Quick question about the Oregon ruling. Would it be correct to say that his ruling is that same sex marriage is required based on EP because opposite sex couples can marry?

I would point out that Not Really All That Bright answers this partially. Yes this court figures in that opposite sex marriage can marry. However, there’s a good but more to it. Like the 9th circuit’s holding in Perry v Brown, offering civil unions to same sex couples plays in to the question too, because many of the claims used to explain why not marriage for SSM are estopped by the fact the state has made opposite concessions of public policy by enacting civil union legislation.

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.

There is a bug difference between “one man and one woman alone shall constitute a marriage” and “one man and one woman alone shall constitute a marriage which homosexuals are barred from participating in.”

I don’t know of other EP cases where the claimed discrimianted group uses the fact that some may once participated in opposite sex marriage in the same case they argue they cannot participate. There is no argument that gay people CAN’T participate in opposite sex marriage–they argue that they do. The real fact is they are generally uninterested in what they could in fact do under the law if they didn’t have a personal objection to it. A person’s personal objection to a right as it exists isn’t governmental discrimination. it’s a personal decision that they do not like, for whatever cause, be it biology or not. It is biology that caused the gays to not want participation in the right as it is.

[David42]

**Really Not All that Bright:
**
I will be posting my take on Herbert v Kitchen this afternoon or evening. Got to go to work, but I am almost finished with the analysis;

I can tell you though, that this citation does not meet your claim. While it does indeed discuss strict scrutiny, it decided that it would decide under mere rational basis because it would be bucking the 10th’s circuit’s precedent to not apply rational basis only. So for anything this court might have said about strict and elevated scrutiny, it does you no good, because the court followed precedent for what the law is, rather than what the court thinks it should be. But he does indeed tell us he thinks it should be decided with strict scrutiny, or could be.

However, in its description of strict scrutiny under EP, it clearly observes the correct view that strict scrutiny involves whether or not a fundamental right is being curtailed.

haven’t read your other case yet, but it is you who is confused that fundamental rights only come into play under due process.

[David42]

Really Not All that Bright:

it would be improper to hold you to what you said in another thread as applying here, but it is not improper to ask you whether this claim you made applies here, and if not, why not?

@Really_Not_All_That_Bright

Well, not really. This whole idea of limited government really only applies to the federal government. The state governments have always had plenary power, which in real life means they can do pretty much anything.

The federal constitution is the source of the federal government’s authority. The feds can only do what the constitution says they can. The state constitution is a check on state government’s power, and works the opposite way: the state government can do anything unless the state constitution says they can’t.

So we’ve never historically had this (much cited) society where people can do as they please unless the government has a good reason to prohibit something. That has developed over a long period of time basically from thin air.

I hold the “right” to SSM has appeared out of thin air, what makes SSm different, if indeed you deny this view in application here?

[Really_Not_All_That_Bright]

It wasn’t a claim. It was an explanation about the historical development of our theoretical underpinnings. Anyway, they stopped being theoretical once the courts decided to apply (most of) the Bill of Rights to the states.

[David42]

@Marley23

While I’ve given up on trying to climb these walls of text, I feel obliged to point out this is false. You have not owned up to a position, but you have expressed your feelings pretty clearly.

Yet you claim that you actually read much longer court cases.

All you are interested in is personal tit-for-tat.

Ignorance is not excused by being too lazy to read an argument.

[Marley23]

@David42

Yet you claim that you actually read much longer court cases.

I never made that claim.

[Inner_Stickler]

Court cases are relevant and interesting. Your posts are neither.

[David42]

@Marley23

I never made that claim.

Do you mean to say you do NOT read court cases? And then you belittle my view of the law?

Of course you’ll dance around and say you’re not saying you don’t either.

So do you?

and you’re ignoring that I did explain a personal position. In fact in or around post 191 you answered.

You can dismiss my position as whatever, but you cannot say I never said it.

But you just want anything to avoid answering my last unaddressed post to you, where I examined the case you presented for the "fundamental right: you said was to be found, but it isn’t.

That was the last time you engaged me in debate.

Of course, you aren’t up to admitting you were wrong.

[David42]

@Inner_Stickler

Court cases are relevant and interesting. Your posts are neither.

neither are yours. You don’t discuss shit. Just some witty crap that only serves to poison the well, you hope.

If you’re here to debate, then debate. If you’re too bored with the subject, go somewhere else. I have no intent to entertain you.

But if you haven’t read my posts you cannot have much an opinion whether they are correct.

And of course you’re tacitly agreeing with Marley, who cannot yet cite a case where the court held this was fundamental right, and presented an erroneous one that does not say what he claims.

This is all too prevalent for those who would defend SSM–your arguments fall apart, and then you say dumb stuff like someone else is boring. Well, my “boring” posts can’t seem to be met with legitimate challenge.

[Marley23]

@David42

Do you mean to say you do NOT read court cases?

I do sometimes, yes. But I didn’t say that anywhere in this thread. I cited a court’s reasoning, and the rest seems to be your own creative interpretation. And when I read court cases I generally feel there’s a point to doing so. I don’t feel that way when I have to read one lengthy missive after another.

and you’re ignoring that I did explain a personal position. […] You can dismiss my position as whatever, but you cannot say I never said it.

Just a couple of posts ago you said this:

@David42

I have not made any statement to identify me with either “side.”

I disagree. And maybe you disagree with yourself, but I can’t tell.

I examined the case you presented for the "fundamental right: you said was to be found, but it isn’t.

According to you. As I said earlier, you have a higher opinion of your legal credentials than I do.

[David42]

It’s not a matter of credentials, Marley, and you know it. That’s why you do not quote your court case which we cannot pin down whether you even read it before offering it.

I read it and the court did NOT claim a fundamental right to marriage, you are worng, and you cannot cite, so you divert into the ad hominem.

Perhaps you and Tom should each present your definitions of what it means to be “on a side” before you go any further with this nonsense.

And also explain why I can’t have a position without being on either side or being on both sides.

[Inner_Stickler]

@David42

neither are yours. You don’t discuss shit. Just some witty crap that only serves to poison the well, you hope.

You demonstrated some time ago that your posts are not worth the time to unpack. Them’s the breaks.

[Marley23]

@David42

It’s not a matter of credentials, Marley, and you know it. That’s why you do not quote your court case which we cannot pin down whether you even read it before offering it.

Do you have a mouse in your pocket? Who is “we?” And you could have looked any of this up yourself. I summarized a court’s reasoning and provided not one cite but two, apparently because you think court reporters make up quotes from judicial decisions. I met your demand and you’re still complaining. The rest of this is bloviation, and Really Not All That Bright and tomndebb are more qualified to post holes in your legalistic verbiage than I am.

And also explain why I can’t have a position without being on either side or being on both sides.

In theory you could have a position without being on either side, but you personally do not. You’re far too partisan to maintain that stance: you seem disgusted by gay guys and outraged that gay people aren’t more grateful to you personally. “Being on both sides” doesn’t even mean anything.

[David42]

@Marley23

Do you have a mouse in your pocket? Who is “we?” And you could have looked any of this up yourself. I summarized a court’s reasoning and provided not one cite but two, apparently because you think court reporters make up quotes from judicial decisions. I met your demand and you’re still complaining. The rest of this is bloviation, and Really Not All That Bright and tomndebb are more qualified to post holes in your legalistic verbiage than I am.

In theory you could have a position without being on either side, but you personally do not. You’re far too partisan to maintain that stance: you seem disgusted by gay guys and outraged that gay people aren’t more grateful to you personally. “Being on both sides” doesn’t even mean anything.

Then it should be easy then for you to quote, then.

If I discuss the entirety of the case, you claim it doesn’t count or something. if I quote the whole damn thing you say you can’t bother reading it.

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.

As it is, you seem to think all you need do is repeat it enough times and it is true.

You have no case and cannot cite!

[David42]

Define what you mean by being on a side.

I have a position and it’s not clearly either side.

And you twist what I said–Gay people should not accuse me of hating them because I am being honest about the law, because there is ample evidence I help gays–probably far more than you personally do. .I never said they should be grateful to me–I said they should not hate me for disagreeing about how far I will support them.

[David42]

@Inner_Stickler

You demonstrated some time ago that your posts are not worth the time to unpack. Them’s the breaks.

That is not a demonstration by me. That is your attitude. If you’re here to debate then address something substantive I have said.

As it is, you think you belong in a debate forum to express your disdain for a person whose arguments you cannot begin to address. So you make up some shit about not being entertained enough. Go back to your play station where you belong, if you’re not going to debate.

As it is, you’re nothing but disruptive, hoping to turn this into a wall of nonsense that will indeed bore people looking to learn something about SSM issues.

I will ignore further disruption until you have something substantive to say.