Please quote Justice Kennedy where he made it clear the standard of review in Windsor.
And you’re conflating the question “Must all legal state marriages be treated the same by the federal government” with “Must a state allow SSM.”
Different questions get different standards of review.
Here there is no question that SSM is a right if indeed the state says so. But it is not clear at all that it is still a right even when the state says no.
True, he didn’t, and that’s caused a lot of excess time and grief - but there’s no other way to read the decision than as if he did declare sexuality to be a protected classification, is there?
Odd, isn’t it, that every court ruling since Windsor has found that it does.
You’re confused over what the right in question is. There is no right to SSM, or to any other kind of marriage, in the Constitution, no. But there is a right to equal protection, and a lesser-invoked one to due process. It is a matter of settled law now, per Windsor, everywhere it’s been adjudicated and ruled and gone unappealed, that EP does apply to marriage law. The rest of the country’s jurisdictions are going to be in that situation too, very soon.
Not that ya gotta like it or nothin’, but if not, it’s just too damn bad, Chief.
That question will be resolved in the next few years. I expect you won’t be happy with the way it gets resolved.
Speaking as the OP, I’m fine with this conversation running in any allowed direction, as I think I’ve already gotten some good answers. I can’t say the revival of the thread was very coherent (or the least bit comprehensible, actually), but don’t stop on my account…
The expressed goal is having all potentially procreative relationships secured by marriage so that the burden on the state of caring for out-of-wedlock is lessened or eliminated. Since one man and one woman are all that can possibly procreate, that goal is related in the law. Procreation never occurs between three people’s sexual union, and that is why it is limited to two. No same sex pair can procreate within their union.
Your side is holding up imperfection to say it is irrational, that is to say that perfection is required in the law for that purpose to be rational. I do not buy that argument.
Wrong, we restrict close family members from marriage even when they are two consenting adults.
There HAVE been efforts to (more or less) require procreation, see Griswold v. Connecticut. Everything your side suggests as evidence marriage is not a procreative institution is illegal–we cannot inspect the gonads for fertility. Blood tests have gone to the wayside after Griswold and I do not believe any state has blood tests today. We cannot mandate when or how procreation happens.
That does not mean that a state cannot have an interest in procreative relationships. It does mean that it can go no further with a procreational purpose than limiting it to procreative relationships.
It is not a question of why the state wants to keep same sex pairs out of marriage–it is a question of what interest the state can express in your relationship that gives them a reason to be involved.
We have gone to much trouble to say in this nation that interpersonal relationships are beyond government intrusion. And they generally are. But irresponsible procreation is a compelling governmental interest because we paid out more than $100 billion on this problem in 2010, and it has risen since then. Irresponsible procreation gives government the reason it needs to be involved in interpersonal relationships.
Lawrence v. Texas makes it plain the government has no business in your sexual relationships, but now yous tnad that on its head and want to invite them back in, but I fail to see the interest that the government should have in your relationship. Same sex relationships doesn’t cause any problems, according to your side. I do not see the governmental interest.
What reason does the government have in wanting to contract with you and a same sex partner?
I was referring to other romantic relationships with children created naturally, since the bulk of children in same sex headed families are obtained that way, but I concede I wasn’t clear on that. But yes, the idea is that you should commit to the person you are going to engage in potentially procreative sex with BEFORE you make a baby–not procreate and then go looking for a partner to raise the kid with. Get the partner first.
Encouraging a heterosexual relationship to get a child, knowing you’re going to throw it to the wayside in favor of another type of relationship, undermines attempts to get people to marry first before procreating.
First of all, I wish you desist with the false premise of “the right of consenting adults to marry the partner of their choice.” This is not any rule your side has. It always turns into the right of HOMOSEXUALS to marry the person of their choice and no-one else, To-Wit: Incestor marriage, which would otherwise qualify as “the right of consenting adults to marry the partner of their choice.”
Secondly, one of your side’s core claims is that SSM bans deprive homosexuals of any choice at all of someone they are attracted to, which is plainly not the case for bisexuals who can find someone. You say it devolves on the one person you happen to fall in love with, which sounds quite reasonable until we attempt to apply this “right” to John who is head over heels in Love with his sister Mary to the point he refuses to look elsewhere for someone he can marry. It is not the government who eliminates anyone John could coneivably be attracted to; it is John himself who does that by his obstinance in refusing to look in acceptable areas for an appropriate spouse. So too does the bisexual who falls in love with one particular person and will not look elsewhere. It’s a different question for bisexuals.
It’s only true that the government eliminates the possibility of marrying anyone an exclusive homosexual could possibly choose. That is one question. When we analyze this question, your side then twists our arms with concern for the well-being of children, and uses large numbers of children to frighten us with all the welfare we’ll have if we don’t let you marry. But when we look at those children closely, and ask, are these the children of the very strict group we started out discussing, we find out we’ve been given a bait and switch tactic, and we find out that we are not discussing the original group for whom the core premise may be true, but instead a different group which naturally had previous heterosexual relationships.
We all are subject to falling in love with someone the law prohibits. If that is a worthy enough consideration for any group to change the laws, and morals tradition and religion cannot influence the decision, I do not see what is left to argue and against incest.
Traditional family bonds should not be disturbed? Coming from the same people who tell me any generic bond will do when it comes to the parents? Each same sex pair throws out the notion of any kind of specific familial bond such as mother-child or father-child in favor of generic parent-child with an argument its the number two that is magic and not the mother-father combination; but then since it’s two parents that make a kid’s life good then I cannot understand why three isn’t all the better, EXCEPT
morals, religion, and tradition, which you all have gone great lengths to show me would make me a bad person to apply them to others. After all, if I don;t like thosze kinds of relationships, I don’t have to have one, right, so why should I care?
I expect you will recognize this as an admission that arguing from a false premise of a “fundamental right” is fallacy.
And please quit presuming my personal happiness has anything to do with it. My personal feelings on the subject have never been asked and are frankly irrelevant. Unless you want to accept as valid my speculation on the feelings of homosexuals as well.
I’m not wrong because you think you can predict the future. I know the wisdom of refraining from predicting the Supreme Court.
But if you want to speculate on it, maybe we could arrange some sort of bet. I didn’t take Bricker’s bet on Jones, since I didn’t want to commit any illegal gamble here, (heck I don’t gamble anyway, not with money) but he still ate Crow when I pretended that I had and speculated which charity he’d hate the most for his hundred bucks to go to. And of course there I offered no prediction on how they’d rule; I really thought they’d go more with Bricker’s view, but surprise damn but Scalia even used the same phrase I did word-for word, giving us the wonderful passtime of speculating whether the Supreme Court reads the Straight Dope.
If you cannot understand what I say, maybe you should be thinking about it a whole lot more before you fire off your answers. The same was said in the Jones thread–“Oh, you don’t make any sense” and “I cannot understand that mumbo-jumbo” which is really just an admission you don’t know what you’re talking about.
So, if you wanna bet something other than money on it, I’d make an exception and predict that the Supreme Court is going to uphold state-authorized constitutional SSM bans OR will not ever hear the case in the next five years.
There is already a 2-0 opinion no fundamental right is involved in the federal circuit courts, so all it takes is one circuit affirming their being struck down to have a split in the lower courts, meaning they’ll almost certainly take it. If they avoid it it pretty much has to mean they want the states to sort it out on their own, because Baker stands in the 8th and 1st circuits as foreclosing a fundamental right, and those decisions are post- “doctrinal changes.”
So do you want to bet? I really bshouldn’t because it is foolish to do so, but I really want to underscore your faith in prediction to settle the matter, not mine.
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.
If you’re in favor of legal recognition for same-sex marriage, say so. If not, since you seem to have objected to it at great length for some very unusual reasons, I’m not going to pretend I can’t guess at your opinion on the subject.
Really? You can find that reason given in a law regarding marriage from 1789 through 1990? Can you even find that reason given in Black’s Commentary for British Common Law prior to the creation of the U.S.?
Failing that, your odd claim appears to be nothing more than your desire–and it is not expressly anything.
Seems strange to ask you for a cite when the only real authority for it is being discounted. The only time the Supreme Court has had the question they said it was not. Since they usually specifically overrule prior precedents when they introduce significant changes in doctrine, and they did not in Windsor, despite being acutely aware that the nation was holding its breath on that question, I cannot say anymore about the right to SSM than to say they avoided the question; even some dicta would have given us some more guidance if they thought it likely they’d have to overrule Baker. As it is, I think Kennedy did try to guide us by his repeated references in Windsor to the “gift” the state gave to same sex couples coupled with reiteration that the state is who decides what a marriage is, without a single reference to the possibility that the state goes too far banning SSM. I pay a lot of attention to nuances a lot of people gloss over.
I have only argued from the judicial angle. Go back through my posts and see if I have ever said a legislture shouldn’t or can’t consider it.
My personal feelings on the matter are irrelevant to figuring out a legal problem.
Do you think Kennedy is ruling based on his personal feelings?
Well, I can throw a monkey wrench into that idea–don’t you know while on the
9th circuit he wrote an opinion saying that the policy of discharging homosexuals from the navy was rational?
I think he is just as capable of using reason to conclude SSM bans can be rational. Federal DOMA wasn’t, that was another case I got right. Personal feelings don’t have anything to do with it.
My personal feelings in Jones were that he should rot his ass in prison because he has contributed to the ruining of many lives, but my reasoning capability says the fourth amendment being upheld is more important.
I liked Kennedy’s decision in Windsor for the right result; I cannot stand it for its vaugeness and ridiculous reasoning. I think Kennedy is personally deeply troubled by the issue, but speculation on how a person feels isn’t really relevant is it? What is relevant is what the court says.
Your position is one of desiring a new right to be extended from an existing one, not the exercise of an existing right. If it is, anything you can show me to prove it in light of Baker and recent upholdings of Baker, besides at least a score of state Supreme Courts some recent and some not so recent.
You are completely lacking authority for your claim that it IS a fundamental right. Not in the states with bans that are appealing and have a stay.
Maybe one day that right will be given, or maybe it will be forced, I cannot say.
But if you must know, 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. Yeah, I know first hand how Robert Spitzer feels.
I see a million miles between a legislative gift of SSM and court-forced SSM.
I have limited support for gay marriage. Anytime it is true that a shift in our conciousness has changed our concepts of marriage so that the people will agree at the voting booth, I’m for it. I voted against my state’s SSM ban precisely because I am sympathetic to many of your arguments. I can and did choose to allow SSM, but I respect the fact that my view did not prevail, I do not make up crap about the law or insist things are there that are not or speculate on inevitability to criticize that failure.
But I am not compromising my understanding of the law or reason to get to your conclusion, and to tell the truth I came here for dispassionate intellectual discourse on the subject, and I come here and find it is no freaking different than Yahoo! news comments.
Personally, I’d retract that vote now, because of all the poeple who personally know my contributions and people like you who erroneously assume either I am an idiot in contemplation of law (no, you’re not nearly as informed as you think you are) or that I am all about hatin’ me some fags as though I were Fred Phelps. You wanna know the truth? I have personally shouted in that freak’s face. Have you?
You will discount all of this anyway, so can we get past my personal feelings and have dispassionate intellectual discourse?
But if you want to keep treating me like I am Fred Phelps, you should know that the more you do so the more you convince me that SSM supporters are typically unreasonable people who want me to turn off my brain and just let them tell me the way things should be. If that’s how it is, you are eroding what support I have; I am beginning to think the gays know so little of what marriage is about that they are not able to handle it; if you mean to fruther convince me youa re well on your way with nonsense like marriage has to be perfectly implemented to meet the goals of the state or that goal is invalid. Utter crap, even under strict scrutiny.
Two different potential Amicus groups have agreed to let me be on their teams if it goes to the Supreme Court, so maybe what I think matters a little bit to somebody. Please know the more unreasonable and illogical you supposed fighters of ignorance are, the less inclined I am to find reasons why you are right. Not that you’d care–everyone with any kind of opinion contrary to yours is non-human, pretty obviously.
Yes, it makes me mad to think of my p[ersonal involvement with gay rights. Thanks for bringing up the personal issues. For the sake of the more reasonable gays, I will try to once again forget the inflammatory crap that comes my way for failure to lockstep agree.
Clarify, please. Are yous aying I must produce a law that states its purpose rather than its mechanism within the text of the law itself? If youa re that is an unreasonable requirement. Laws do not have to state their underlying purposes.
For example, WITHOUT SAYING gay is like murder, but to choose a law that is beyond debate, murder laws do not have to express the purpose of protecting the right to life within the statute to be valid, they just have to apprise the individual that he will be punished if he does it.
I can’t hink of a law that expresses all the conceivable purposes a law might have. Heck, half of those who voted in the olegislature may have had one reason and half another, and none of that makes any difference–it’s not what reasoning the legislature DID HAVE for enacting the law, it is what rational purpose can be advanced for it, even if they had a bad one. Would you strike down a murder law because the legislature thought it would outlaw disco music? Or would you listen to the attorney general tell you there is a better reason, even if the legislature did not say so, and you can quote several legislatures saying there will be no more disco music? (Murder laws forbidding disco is Chosen for its absurdity in the fact the purpose doesn’t match the law at all)
Besides the fact that “one man plus one woman” logically expresses that purpose because there is no other reason that makes any sense, and since it takes one man and one woman to procreate and no-one else, that is rational enough.
And yes, I can quote Blackstone to something much closer to what I am saying than what you say. It will be about an hour and a half before I get to a database with that specific quote. Much closer than the reason for marriage is the recognition of intimate relationships (which I cannot figure out why we’d do that, since our law is otherwise telling the government to “GET OUT!” of our intimate relationships) or companionship and love or giving lawyers something to do or 1100+ federal benefits, burdens, and duties. (Yes, I have seen people say this with a straight face, ‘lawyers need work is the reason to have marriage;’ I hope they were joking.)
Where did I ask for a cite? I said I think the court will take a different position on the issue. Maybe you’re mixing me up with Miller?
That took long enough…
…wow. I can’t say I’m surprised this comes down to personal disgust with gays and a supposed lack of gratitude, but there you have it. I’m glad that’s out there.
I don’t. They’re both important elements of our system, and people’s rights shouldn’t be up for a vote.
In other words you like gay right a little bit, but not nearly as much as you like your own understanding of the law. I find your legal credentials a lot less impressive than you do, and I think your priorities are way out of alignment.
But gay people can procreate, and will continue to do so regardless of the status of marriage laws. By barring gays from marriage, you are increasing the number of children being raised outside the bounds of matrimony - your policy is directly at odds with your stated goal.
I’m not arguing against SSM bans because it’s an imperfect solution, I’m arguing against them because the ban is wholly unrelated to the stated aim of the ban.
So, you’re saying that we’ve actually* made it illegal* for marriage to be about procreation - but marriage is still somehow about procreation? If every single bar against infertile straight couples being married has been struck down in either the courts or the legislature, you cannot turn around and say, with a straight face, that homosexuals should be barred from the institution on the basis of infertility. We have, very clearly, decided as a society that marriage is not about procreation. And if you insist that it is solely when homosexuals are seeking access to the institution, that’s pretty clear evidence that your objection to SSM is not based on procreation, but instead arises purely out of anti-homosexual prejudice. And being dicks to queers is not a legitimate government purpose.
It’s exactly the same interest that brings the state into heterosexual relationships: inheritance, power of attorney, access to health care - and, yes, parental rights.
You want to treat homosexual relationships differently from heterosexual relationships. If you want to do that, you need to show how homosexual relationships are fundamentally different from heterosexual relationships. You cannot do this. There is no concern in heterosexual couples that is unique to heterosexual couples. Every benefit heterosexual couples derive from marriage is needed, in equal measure, by homosexual couples.
I’m still not clear how you think letting fewer people marry will lead to a reduction in children being raised outside of marriage.
We’re not talking about sexual relationships. We’re talking about marriage rights. They’re two separate issues, and the legality of SSM does not depend, one way or the other, on the decision in Lawrence.
I have absolutely no objection to this paragraph, except in that you’ve presented it as an argument against SSM, where it makes no sense. Again, lots and lots of gay people want to get married, and have kids, in precisely that order. Preventing them from getting married does not prevent them from having kids. All it does is exacerbate precisely the problem you claim the ban is meant to prevent: more and more kids being born out of wedlock.
I have no idea how this is meant to relate to homosexual relationships, gay parents, or the legalization of SSM.
Okay, first of all, “incestor” is not a word. The adjectival form of “incest” is “incestuous.” This sort of really very basic ignorance is a big part of why no one takes your posts seriously.
Secondly, the arguments against incestuous marriage are not the same arguments against gay marriage. One can reject all the arguments against gay marriage, and still support a ban on incest, without any hypocrisy at all.
I agree, SSM bans fall heavier on homosexuals as a group, than they do on bisexuals. So what? It’s still an injustice that bisexuals who are in same-sex relationships are prevented from marrying, even if it’s not quite as severe an injustice as it is for homosexuals.
And, again, there are reasons to be opposed to incestuous relationships that are wholly unrelated to reasons to oppose bans on same-sex relationships. They are not comparable situations.
I have no idea what the hell you are talking about here. You seem to have some really bizarre ideas about how gay people end up as parents, but your posts are so confused I can’t disentangle exactly what you think is going on, let alone how it relates to a gay marriage ban.
Speak for yourself, buddy.
Who said three isn’t better? Every study on parenting I’ve ever read has come to the conclusion that the more adults involved in raising a kid, the better - whether its grandparents, step parents, aunts and uncles, family friends, or what have you, the conclusion over and over is that quantity is what matters, and not the specific genital configuration of the care-givers.
Polygamy, much like incest, is a different subject than homosexuality, and has its own set of pro- and anti-legalization arguments, but I don’t think “What about the children?!” is one, at least as far as polygamy is concerned. I don’t see any reason why a polygamous family would be a worse environment for a child than a monogamous family.
Well, that’s unfair.
Fred Phelps had better arguments.
My favorite argument against things: “Well, I would be for it, but the supporters are mean so I’m against it.”
Especially when someone is claiming they want dispassionate intellectual discourse.
Bfft. I didn’t even read far enough to notice that part. Talk about your ridiculousness.
I’m not gay. If you don’t like what I’m saying, please be nasty to straight people and try to take away some of our rights.
“strange to ask YOU for a cite” I said, I didn’t claim you asked me to cite.
Ok then, have it your way, CITE your proposition that the Constitution protects a fundamental right to SSM. Can you understand that?
Maybe you should get yourself to the eye doctor.
And you’re cherry picking what I said. I also said I had my opinion on EP when everybody was happy with me and praising me for being the next best thing to Harvey Milk. My EP opinion did not change when they got angry at me.
And I’m not surprised you took one thing out of context and ignored the facts that say it is not so, either, to build your usual strawmen which you think fights ignorance. You’re promoting ignorance and have emotional based arguments and try to impute that to me.
Once a right is recognized, that is, but you are demanding that no-one else but you can have an opinion on whether the right should be recognized. You’re telling the nation all who disagree must shut up on the issue while you recognize this right, all alone, Supreme Court not even needed and ignored.
You inquired into my personal story on the issue. I told you how it relates and now you transform that into the fallacy of argument from authority. I’m nothing but a paralegal, surely not much…yet I am still qualified to sit on the Supreme Court both of my state and this nation.
Why are you fiddling around with our qualifications to debate? I didn’t demand you accept my reasoning because of my qualifications.
But maybe Justice Scalia has told Sotomayer to check out the Straight Dope for an example of just how poor arguments for SSM can get by supposed dispassionate intellectuals.
So go on with your arguments that I’m not qualified to have an opinion, knowing we’re both qualified to sit on the Supreme Court.
Did you know an odd turn of phrase can cause Straight Dope threads to turn up as the top result?
Did you know the Supreme Court Justices talk about googling things they don’t know about?
Yes, I do enjoy speculating on the possibility someone on the court saw me and Bricker arguing after trying to broaden their view of an area. Could’ve been. Be on your best behavior, cause you know, you can’t understand what I’m saying and all…
Why make an effort to do what you are so blindly and unknowingly promoting yourself? Have a big heaping helping of stripping yourself of rights, you like the taste of the dish enough.
Yes, there is. “People lawfully married under state law” is the classification in question, however. There wers everal ways he could have ruled, I thought, and achieve the same goal, but he didn’t.
I too wish he’d have clarified.
[quote=“ElvisL1ves, post:82, topic:688820”]
Odd, isn’t it, that every court ruling since Windsor has found that it does.
I do find that odd. I find Windsor itself even odder for several reasons. I’d have duismissed it because there is no fifth amendment right to equal protection, and that was the only question presented to the court, while bemonaing the loss of my chance to strike down section two. Or was it three? I keep having to check–whichever one they struck down, I agreed. The other one seems a valid exercise of congressional power to me. That’s what I’d have done because there is no question presented but whether the fifth amendment’s equal protection clause protects Ms. Windsor’s right to inherit her spouses estate tax free. That erroneous question was asked all the way down at the district court, through the second circuit, and straight into the supreme court without any of the geniuses handling ever saying “HEY! there ain’t no EP clause in the fifth Amnedment!” But maybe they were concerned they had to ask the same question as below–I don’t know, I am at a loss to explain how THAT was the question before the court. Typo once, but all the repeats all the way up to the Supreme Court?
I’d have embarrassed all involved by not taking the case in summary fashion and patiently explaining they do not have a question I can help them with, If I were on the court.
No one says EP doesn’t apply to every law. But it doesn’t apply in the way it is argued it does or have the result you come to. But no law is immune from being subjected to EP analysis. It is just the way it applied
Sorry, are you trying to suggest that by supporting SSM, Marley is somehow diminishing his own rights?
Duly noted you do not take this seriously. Can you please tell me where the threshold for disagreeing with gay is, so I can guide my future decisions against bigotry? Or do I have to agree with gays to the point that the fuschia curtains really do go best with the lavender walls?
Mockery of someone trying to seriously discuss the issue, rather than being relevant to the question allows an inference of fact that despite what you say about not trying to destroy marriage, you in fact are. You well emphasize that one purpose can be advanced while concealing another, and this mockery points straight to contempt for traditional marriage.
First you say no religious arguments have any bearing, and then say Phelps’ Bible thumping is better, and you have made no substantive argument against what I have said.
Piranhas just waiting to find out something personal to attach my argument to…I gave you exactly what you wanted–all pro-gay help ignored to fashion the strawman that I say these things because I hate gays. You are desperate to make my argument an emotional one, and I gave you the opportunity to prove it, and you suceeded admirably.