# Predict how the Supreme Court will Decide the Same Sex Marriage Cases **URL:** \ **Category:** Great Debates\ **Created:** [March 25, 2013, 6:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936 "2013-03-25T18:12:45Z")\ **Posts on this page:** 20\ **Page:** 20
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 7:19pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/381 "2013-04-02T19:19:15Z")
> [@Hamlet](#): > > At its most basic, the argument is that since sexual orientation isn’t immutable (or immutable enough) and is rather a choice, and since homosexuals are not politically powerless (or politically powerless enough), then they do not meet the criteria laid out by the Supreme Court to be considered a suspect class. Perhaps it is time someone defined what this class of sexual orientation is. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 2, 2013, 7:23pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/382 "2013-04-02T19:23:44Z")
> [@Penny](#): > > I am not quite sure how CA became the “state in question” considering I never mentioned it, but just so you know, Maine, Maryland, Washington all approved the recognition of same sex marriages by popular vote in 2012. They are amoung Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont in legally recognizing same sex marriages. Going by trend, there seems to be an emerging shift in attitude which is supported by polls. > > There are still two other points in my “poor argument” that you are welcome to address should you wish to really make a point. I’ll wait. 🙂 You’re not sure how CA became the state in question for prop 8, a CA initiative being considered by the SCOTUS and is 50% of the basis for this thread? Really? Anyway, it is. And I know how many states voted for SSM, which is still far fewer than have voted against. Your other points are mere assertions without anything backing them up, so there is nothing to address. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 7:25pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/383 "2013-04-02T19:25:14Z")
> [@Hamlet](#): > > “Since our past decisions make clear that the right to marry is of fundamental importance …” Zablocki v. Redhail; “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.” Loving v. Virginia; "In support of the marriage regulation, petitioners first suggest that the rule does not deprive prisoners of a constitutionally protected right. **They concede that the decision to marry is a fundamental right under Zablocki v. Redhail (1978), and Loving v. Virginia (1967),** but they imply that a different rule should obtain “in . . . a prison forum.” Turner v. Safley. > > I don’t believe that a fundamental right becomes less fundamental because of who is attempting to exercise it. An important consideration in Turner v. Safely was that someday the prisoners would be released. Is homosexual sex an exercise of the fundamental right to procreate? Does this right also exist for those who are absolutely incapable of procreation? Is masturbation an exercise of the fundamental right to procreate? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 7:29pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/384 "2013-04-02T19:29:31Z")
> [@John\_Mace](#): > > Not that I agree with your logic at all, but don’t you think that when Adam and Steve go to the county office to get a marriage license to wed each other that they are “recognized” as being of the same sex? How do you know that they asked for the license as a result of sexual orientation as opposed to wanting it for financial reasons or other benefits of marriage not related to sex? ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [April 2, 2013, 7:31pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/385 "2013-04-02T19:31:23Z")
> [@David42](#): > > Is homosexual sex an exercise of the fundamental right to procreate? Does this right also exist for those who are absolutely incapable of procreation? Is masturbation an exercise of the fundamental right to procreate? Was procreation a point in Warren’s decision in Loving v Virginia? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 2, 2013, 7:37pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/386 "2013-04-02T19:37:10Z")
> [@David42](#): > > How do you know that they asked for the license as a result of sexual orientation as opposed to wanting it for financial reasons or other benefits of marriage not related to sex? The same way they know any other prospective marriers do: not at all. ---
**Author:** ![Penny](https://avatars.discourse-cdn.com/v4/letter/p/8baadc/32.png) [@Penny](https://boards.straightdope.com/u/Penny)\ **Post date:** [April 2, 2013, 7:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/387 "2013-04-02T19:51:28Z")
> [@John\_Mace](#): > > You’re not sure how CA became the state in question for prop 8, a CA initiative being considered by the SCOTUS and is 50% of the basis for this thread? Really? > > Anyway, it is. And I know how many states voted for SSM, which is still far fewer than have voted against. > > Your other points are mere assertions without anything backing them up, so there is nothing to address. John, I didn’t mention California in my original post, to which you replied to regarding California. I see what you mean regarding the topic so I concede. Yes, it is fewer but it’s still more than it used to be which suggests progression towards acceptance of SSM. It is discriminatory to not allow two people to get married based on gender. I don’t know what more is required for qualification. That would be no different than not allowing two black people to marry or two Catholic people to marry. The discriminatory aspect is rather obvious and hasn’t stood up to legal test in countries with similar constitutional and human rights laws as the US. Gay marriage doesn’t hurt anyone any more than straight marriage does. If you would like to present a countering argument to these “assertions”, I am all eyes. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 2, 2013, 7:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/388 "2013-04-02T19:51:40Z")
**David42** : I went through your post and found myself commenting the same thing over and over. That comment was, in effect: “what the fuck are you talking about”? From using debate cliches that have no meaning (what is a false premise from concluding a law has its intended effect?), to non sequiters (yes, race is a suspect class. And?) to nonsense (religion requires inclusion of an exception? What does that even mean?) to completely wrong legal statements (the due process clause incorporated the establishment of religion clause into the 14th amendment? Wha, huh?) not much of what you posted makes any sense at all. I don’t recall the Supreme Court in Loving ask: “Perhaps it is time someone defined what this class of “colored people” is”. And I certainly don’t understand how masturbation came up (_snicker_) in this converstaion. I don’t think I can continue to respond to you without a better idea of what the hell you’re trying to communicate. Finally, as a side note, I’ll point out the case you did cite to includes this statement: “To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the Court has invalidated legislative discriminations among children on the basis of legitimacy.” ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 2, 2013, 9:10pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/389 "2013-04-02T21:10:02Z")
> [@Penny](#): > > John, I didn’t mention California in my original post, to which you replied to regarding California. I see what you mean regarding the topic so I concede. > > Yes, it is fewer but it’s still more than it used to be which suggests progression towards acceptance of SSM. So? At best, you might argue that when the time comes that most states have SSM, then it’s time to make it the federal norm. Otherwise, we can’t just extrapolate from the current data. > [@](#): > > It is discriminatory to not allow two people to get married based on gender. I don’t know what more is required for qualification. That would be no different than not allowing two black people to marry or two Catholic people to marry. The discriminatory aspect is rather obvious and hasn’t stood up to legal test in countries with similar constitutional and human rights laws as the US. > > Gay marriage doesn’t hurt anyone any more than straight marriage does. > > If you would like to present a countering argument to these “assertions”, I am all eyes. I don’t have a personal argument against SSM. I’m perfectly OK with it. The question before the court, and before the posters here, is whether or not the US constitution requires it. But to pretend that this is just so obvious that there is no question about the result is to ignore the very controversy the court is facing. There is no general consensus among legal scholars on the matter, and me adding my non-legal scholar voice to the fray isn’t really much of anything. I’ll just recognize that it’s not cut and dried, and I’m OK living with what the courts decide. When it comes to voting, I’m happy to vote in favor, as I did when I voted against prop 8. My own personal preference, as a non-legal scholar, is to leave such changes in public policy up to the legislature. But that is just a personal preference. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 9:20pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/390 "2013-04-02T21:20:10Z")
> [@stpauler](#): > > Was procreation a point in Warren’s decision in Loving v Virginia? Yes. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 9:41pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/391 "2013-04-02T21:41:46Z")
> [@Miller](#): > > Actually, the law in question in Loving v. Virginia did not specifically single out Mrs. Loving’s race. The law being challenged, called the Racial Integrity Act, specified “white” and “colored,” colored being used as a catch-all term for “not white.” The law didn’t specify individual minority ethnicities, instead broadly effecting anyone who was of the non-majority. Similarly, we don’t need to quibble over “homosexual” versus “bisexual” to recognize that the purpose of Proposition 8 is to discriminate against non-straight sexual identities. > > A law that specifically says, “Jews can’t do X,” isn’t going to affect Muslims, but so what? A law does not have to specifically mention a group to be struck down as discriminatory against that group. A law mandating the eating of ham would be unconstitutional for (among other reasons) violating the religious freedom of both Jews and Muslims, even if neither group was mentioned by name in the law, and even if the law was an unintended burden on a wholly non-religious group, such as vegetarians. > > Utter nonsense. Freedom of religion is nothing more than allowing a particular group to do what it wants. > > There’s no test for “Baptist,” either, and an individual who identifies as Baptist now might very well identify as Catholic at a later date. > > This is the most ridiculously wrong thing you’ve posted so far, and that’s a pretty high bar to clear. See, please, the long history of [“passing”](http://en.wikipedia.org/wiki/Passing_%28racial_identity%29) in this country, as well as the variety of laws defining how much colored ancestry a person could have and still be considered white. > > We’ve been doing that since we adopted the first amendment. I think the point you are missing here is that the SUpreme Court did not write the First Amendment. That was a legislative action, and we’re talking about classes created by the Supreme Court in EP analysis. When the Supreme Court rules on possibly unconstitutional religious discrimination, it holds the 1st Amendment applicable to the states via the 14th amendment’s due process clause. Ultimately Congress, and not the courts, established Religion as fundamental. I have asked for a Supreme Court Strict scrutiny EP case on religious discrimination, but no-one produces one. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [April 2, 2013, 10:22pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/392 "2013-04-02T22:22:24Z")
> [@David42](#): > > I think the point you are missing here is that the SUpreme Court did not write the First Amendment. That was a legislative action, and we’re talking about classes created by the Supreme Court in EP analysis. > > When the Supreme Court rules on possibly unconstitutional religious discrimination, it holds the 1st Amendment applicable to the states via the 14th amendment’s due process clause. Ultimately Congress, and not the courts, established Religion as fundamental. Which is an entirely different argument than the one you’ve presented up to this point. ---
**Author:** ![Penny](https://avatars.discourse-cdn.com/v4/letter/p/8baadc/32.png) [@Penny](https://boards.straightdope.com/u/Penny)\ **Post date:** [April 2, 2013, 10:23pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/393 "2013-04-02T22:23:38Z")
> [@John\_Mace](#): > > So? At best, you might argue that when the time comes that most states have SSM, then it’s time to make it the federal norm. Otherwise, we can’t just extrapolate from the current data. I’m fine with that. > [@John\_Mace](#): > > I don’t have a personal argument against SSM. I’m perfectly OK with it. The question before the court, and before the posters here, is whether or not the US constitution requires it. But to pretend that this is just so obvious that there is no question about the result is to ignore the very controversy the court is facing. It is so obvious when you pare it down to the base argument. It is discrimination based on sexuality - plain and simple. To deny societal convention or acceptance doesn’t play a part in law creation, making or upholding would be naive at best. The issue is whether or not the US is ready or willing to accept SSM, not whether it is discriminatory to not allow it (because it is.) > [@John\_Mace](#): > > There is no general consensus among legal scholars on the matter, and me adding my non-legal scholar voice to the fray isn’t really much of anything. I’ll just recognize that it’s not cut and dried, and I’m OK living with what the courts decide. When it comes to voting, I’m happy to vote in favor, as I did when I voted against prop 8. My own personal preference, as a non-legal scholar, is to leave such changes in public policy up to the legislature. But that is just a personal preference. Being a legal scholar, (although not in the US), it is legally cut and dry, which is why anti-SSM hasn’t stood up in legal tests in other countries. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 11:05pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/394 "2013-04-02T23:05:54Z")
> [@Miller](#): > > Which is an entirely different argument than the one you’ve presented up to this point. The argument I am making is that the Supreme Court has never recognized such a classification before with certain characteristics. You brought up religion, but I pointed out that Congress did that, not the court, even though I agree that religion is the most similar I don’t see how I switched arguments. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 11:11pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/395 "2013-04-02T23:11:53Z")
> [@Hamlet](#): > > **David42** : I went through your post and found myself commenting the same thing over and over. That comment was, in effect: “what the fuck are you talking about”? From using debate cliches that have no meaning (what is a false premise from concluding a law has its intended effect?), to non sequiters (yes, race is a suspect class. And?) to nonsense (religion requires inclusion of an exception? What does that even mean?) to completely wrong legal statements (the due process clause incorporated the establishment of religion clause into the 14th amendment? Wha, huh?) not much of what you posted makes any sense at all. I don’t recall the Supreme Court in Loving ask: “Perhaps it is time someone defined what this class of “colored people” is”. And I certainly don’t understand how masturbation came up (_snicker_) in this converstaion. I don’t think I can continue to respond to you without a better idea of what the hell you’re trying to communicate. > > Finally, as a side note, I’ll point out the case you did cite to includes this statement: “To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the Court has invalidated legislative discriminations among children on the basis of legitimacy.” Perhaps I can’t say it any better. But the cite you’re claiming is mine was offered to disprove my claim by someone else. I wonder too how rational basis over illegitimacy has much to do with what I said. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [April 2, 2013, 11:43pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/396 "2013-04-02T23:43:05Z")
> [@David42](#): > > Yes. Based on where? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 2, 2013, 11:46pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/397 "2013-04-02T23:46:17Z")
> [@David42](#): > > > [@stpauler](#): > > > > Was procreation a point in Warren’s decision in Loving v Virginia? > > Yes. Of all the inane, incorrect, and invalid things you’ve said in this thread (and they are legion), this one takes the cake. [Here is Warren’s majority opinion in Loving.](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html)And here are a list of words that are nowhere in the opinion: Procreation. Children. Fertile. Fertility. Infertile. Infertility. Child Bearing. Child rearing. Pregnant. Offspring. The only thing that even possibly comes close is Justice Warren’s reference that “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival”, and that occurs only in the section discussing Due Process Clause and not Equal Protection. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 2, 2013, 11:49pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/398 "2013-04-02T23:49:03Z")
> [@David42](#): > > Perhaps I can’t say it any better. From the totality of your posts in this thread, I have reached the same conclusion. But likely not for the same reason. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 11:50pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/399 "2013-04-02T23:50:15Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The same way they know any other prospective marriers do: not at all. Right. In short, we know no such fact that all same sex marriages will be engaged in by homosexuals. And the fact remains that the one-man one-woman restriction creates a classification that would include such non-homosexuals in the suspect group as well. Remember, the prime question is what classification the _law_ itself draws. HEterosexuals have abused marriage in many ways, whatever restrictions it has had, for many purposes other than sex, sometimes for illegal fraudulent purposes. I see no reason to believe some heterosexuals will not also abuse same-sex marriage. So if considerations over sexual orientation are impermissible in a marriage scheme–I can’t find a way to reason myself into prohibiting straights from same sex marriage. I still say the classification has to be homosexuals+bisexuals+straights (who would engage in same sex marriage) as all those who would naturally be deprived of the right to same sex marriage in a one-man-one-woman scheme. I further see no reason to think the law is aimed at any one of those three specifically over the others seems ridiculous. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 3, 2013, 12:00am UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/400 "2013-04-03T00:00:55Z")
> [@Hamlet](#): > > Of all the inane, incorrect, and invalid things you’ve said in this thread (and they are legion), this one takes the cake. [Here is Warren’s majority opinion in Loving.](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html)And here are a list of words that are nowhere in the opinion: Procreation. Children. Fertile. Fertility. Infertile. Infertility. Child Bearing. Child rearing. Pregnant. Offspring. The only thing that even possibly comes close is Justice Warren’s reference that “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival”, and that occurs only in the section discussing Due Process Clause and not Equal Protection. “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival” _ **CITING** _ Skinner v. Oklahoma, “Marriage and procreation are fundamental to the very existence and survival of the race.” Which makes the point. You can’t just read one case itself and understand its points without a thorough understanding of the supporting cases. Skinner of course had nothing to do with marriage except how important the two are linked together–it was about forced sterilization for criminals. Perhaps you would like to explain how marriage is fundamental to our survival and existence if not procreative? I’m not seeing how any of the other purported purposes of marriage have anything to do with our very existence. Improved conditions of our lives, yes, but that’s not quite the same, now is it? So YES, Warren had a point in Loving that procreation and marriage are intricately and fundamentally linked. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=19) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=21)