# Should interracial marriage have been kept illegal until Congress acted? **URL:** \ **Category:** Great Debates\ **Created:** [June 6, 2006, 3:16pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615 "2006-06-06T15:16:53Z")\ **Posts on this page:** 20\ **Page:** 8
**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:** [June 12, 2006, 3:57pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/141 "2006-06-12T15:57:23Z")
[QUOTE=Shodan] The Tenth Amendment. I decline to believe that you don’t know what the Tenth Amendment states. [/quote] I should’ve known better. My hours of research, arguments, and counters to your idiotic positions go ignored and you just keep repeating the same unsubstantiated crap over and over. Next time I reply to you, please remind that I’m just wasting my time. Thanks. > [@JohnMace](#): > > As for the “marriage is a fundamental right” statement, I can’t accept it literally because of the inherent contradictions it generates. I can only accept it as a statement of its time-- a time when no other practical options other than marriage were available to people who wanted to form a union. I think this is one of the main reasons the Mass. Supreme Court spent so much time describing what a civil marriage really is. They stated, and I agree, that civil marriage is a licensing issue, but it also bestows numerous intricate, and related rights on those who enter into it. The fact that the State could just simply stop recognizing marriage does not mean the rights and benefits it represents are not fundamental. Sure the State could simply stop licensing marriage. But the rights, benefits, and even responsibilities that are currently available through marriage (inheritance, children’s law, taxes, etc.) are, in a definite sense, fundamental. The problem is that marriage is so intricately tied to such a wide variety of laws, that it would be nigh but impossible to get rid of it without rewriting hundreds of laws that touch on it. A civil marriage is more than just getting the OK from the State. It incorporates hundreds of intertwined benefits, rights, powers, and responsibilities. Although not every one of those benefits, rights, powers and responsibilites are fundamental, civil marriage by it’s fundamental nature, incorporates so many of them to be considered fundamental. ---
**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:** [June 12, 2006, 4:10pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/142 "2006-06-12T16:10:48Z")
[QUOTE=Hamlet] I think this is one of the main reasons the Mass. Supreme Court spent so much time describing what a civil marriage really is. They stated, and I agree, that civil marriage is a licensing issue, but it also bestows numerous intricate, and related rights on those who enter into it. The fact that the State could just simply stop recognizing marriage does not mean the rights and benefits it represents are not fundamental. Sure the State could simply stop licensing marriage. But the rights, benefits, and even responsibilities that are currently available through marriage (inheritance, children’s law, taxes, etc.) are, in a definite sense, fundamental. The problem is that marriage is so intricately tied to such a wide variety of laws, that it would be nigh but impossible to get rid of it without rewriting hundreds of laws that touch on it. A civil marriage is more than just getting the OK from the State. It incorporates hundreds of intertwined benefits, rights, powers, and responsibilities. Although not every one of those benefits, rights, powers and responsibilites are fundamental, civil marriage by it’s fundamental nature, incorporates so many of them to be considered fundamental. [/QUOTE] Yeah, that breakdown makes a lot of sense since marriage isn’t just one thing-- it’s the sum of its parts (almost 2,000 parts by one count). I also thought that the MA court decision rested on a more explicit right to privacy in the MA consitution than in the federal version. The lower court in HI used that reasoning, too, but apparently other court cases had tied that right too closely to the federal right, and a higher court overturned the ruling. I wonder how the court’s ruling would be affected by the discovery of a “gay gene”, or some other positive, definitive proof that sexual selection was determined biologically. I would think it would pretty much have to treat sexual orientation the same as race or gender, and not as some other type of category. ---
**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:** [June 12, 2006, 5:17pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/143 "2006-06-12T17:17:07Z")
[QUOTE=John Mace] Yeah, that breakdown makes a lot of sense since marriage isn’t just one thing-- it’s the sum of its parts (almost 2,000 parts by one count). I also thought that the MA court decision rested on a more explicit right to privacy in the MA consitution than in the federal version. The lower court in HI used that reasoning, too, but apparently other court cases had tied that right too closely to the federal right, and a higher court overturned the ruling. [/quote] It’s just a ton harder to say that “the innumerable rights, benefits, powers, and responsibilities created by marriage and the laws touching on marriage” are fundamental than it is to say marriage is a fundamental right. > [@John Mace](#): > > I wonder how the court’s ruling would be affected by the discovery of a “gay gene”, or some other positive, definitive proof that sexual selection was determined biologically. I would think it would pretty much have to treat sexual orientation the same as race or gender, and not as some other type of category. The infamous footnote in the Caroline Products case giving heightened scrutiny to “discrete and insular minorities” is nearly impossible to reach. There was some debate over whether disabled persons are discrete and insular minority, and they too, IIRC failed. There are rare cases (mentally challenged person in Cleburne) who may fit the definition, but even if there is a gay gene found, I doubt a court will find sexual orientation to ever be a suspect class. The compromise option would be the intermediate scrutiny that gender enjoys. Remember, gender went through the same process that sexual orientation seems to be going through now. Originally, since gender isn’t a discrete and insular minority, it was rational basis. The court then fudged a bit and heightened the scrutiny while purporting to remain in rational basis area (rational basis with bite). Then the court went so far to almost apply the highest level of scrutiny in _Frontiero_. Finally, they settled on the middle ground of creating an intermediate level in _Craig v. Boren_. I can see the same progress going on with sexual orientation. We’ve had quite a few rational basis tests, then a few rational basis with bite (Romer/Goodridge). Perhaps, sooner or later (and I would guess the gay gene would hasten it), it will be subject to intermediate scrutiny. Especially if there is a continued backlash against homosexuals. Personally, while I think that the suspect class arguments are a valid way to go, I think there will be more success focusing on the fundamental rights part of Equal Protection challenges. **Lawrence** , for as poorly written as it was, still seemed to recognize the rights of homosexuals are the same as the rights of heterosexuals. And _Loving_ and _Zablocki_ are clear precedents that marriage is a fundamental right. So I actually favor the fundamental right argument over the suspect class argument. I also favor it because, to me, it matters not one whit whether being gay is a choice or biological, it’s just none of the government’s business. ---
**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:** [June 12, 2006, 7:46pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/144 "2006-06-12T19:46:38Z")
[QUOTE=Hamlet] I can see the same progress going on with sexual orientation. We’ve had quite a few rational basis tests, then a few rational basis with bite (Romer/Goodridge). Perhaps, sooner or later (and I would guess the gay gene would hasten it), it will be subject to intermediate scrutiny. Especially if there is a continued backlash against homosexuals. [/QUOTE] Would you rule that way today if you were a SC justice? I ask this in light of the fact that we know with near absolute certainty\* that that isn’t how “the people” or the Legislature want the law interpreted? I can’t see it hapening for a long, long time (at the federal level). The country isn’t near ready enough. Maybe once we have a significant number of states that have legalized SSM, but not before then. \*since the people have spoken so loudly at the ballot box, it’s hard to imagine a situation short of armed rebellioin where the justices would know better what “the people” want ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 12, 2006, 8:16pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/145 "2006-06-12T20:16:53Z")
[QUOTE=John Mace] Would you rule that way today if you were a SC justice? I ask this in light of the fact that we know with near absolute certainty\* that that isn’t how “the people” or the Legislature want the law interpreted? I can’t see it hapening for a long, long time (at the federal level). The country isn’t near ready enough. Maybe once we have a significant number of states that have legalized SSM, but not before then. \*since the people have spoken so loudly at the ballot box, it’s hard to imagine a situation short of armed rebellioin where the justices would know better what “the people” want [/QUOTE] The problem here, **John** , is that “the people” don’t always think through the consequences of their opinions. For example, the whole _Loving_ issue that gave rise to this discussion. Few people today would claim that an interracial marriage is in fact something a state could restrict from happening. But there were in the 1950s and 1960s substantial majorities in many Southern states willing to endorse such laws. (Which is not to superimpose a stereotype – there were many liberals and progressives who felt quite differently.) The **right** was there, and guaranteed. But it didn’t have popular support in several states. I cannot help but see a parallel – the one that provoked the OP. ---
**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:** [June 12, 2006, 8:32pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/146 "2006-06-12T20:32:07Z")
[QUOTE=Polycarp] The problem here, **John** , is that “the people” don’t always think through the consequences of their opinions. For example, the whole _Loving_ issue that gave rise to this discussion. Few people today would claim that an interracial marriage is in fact something a state could restrict from happening. But there were in the 1950s and 1960s substantial majorities in many Southern states willing to endorse such laws. (Which is not to superimpose a stereotype – there were many liberals and progressives who felt quite differently.) The **right** was there, and guaranteed. But it didn’t have popular support in several states. I cannot help but see a parallel – the one that provoked the OP. [/QUOTE] I don’t mean to be flip when I say “so what”, but so what? Do we not have a government of the people by the people and for the people? And keep in mind that when I say “the people” I don’t mean just any old people, but the clear and overwhelming majority of the people PLUS the Legislature(s), which do think thru the consequences of their decisions. I’m not talking about public opinion polls, but hard legislation passed over and over again in \> 40 states and the Congress (DOMA). The justices aren’t trying to craft some objective form of justice, they are trying to interpret the legislation, which derives from the people and their elected representatives. \*Loving \*was decide in a time when racially discriminatory laws were being ablolished left and right, and most states had erased the anti-miscegenation laws from their books. A SCOTUS decision in favor of SSM today would be made during a time of increasing legislaton against SSM virtually across the board. The parallel exists in the abstract argument about justice, but not in the concrete world of how a representative democracy works. ---
**Author:** ![Lilairen](https://avatars.discourse-cdn.com/v4/letter/l/8491ac/32.png) [@Lilairen](https://boards.straightdope.com/u/Lilairen)\ **Post date:** [June 12, 2006, 10:49pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/147 "2006-06-12T22:49:36Z")
[QUOTE=John Mace] Yeah, that breakdown makes a lot of sense since marriage isn’t just one thing-- it’s the sum of its parts (almost 2,000 parts by one count). I also thought that the MA court decision rested on a more explicit right to privacy in the MA consitution than in the federal version. [/QUOTE] Our constitution also forbids discrimination on the basis of sex; I believe that this was relevant to the decision, but it’s been a long time since I’ve read the full text. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [June 12, 2006, 11:11pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/148 "2006-06-12T23:11:01Z")
[QUOTE=John Mace] \*Loving \*was decide in a time when racially discriminatory laws were being ablolished left and right, and most states had erased the anti-miscegenation laws from their books.. [/QUOTE] You keep repeating this; but are you sure? California’s court overturned that state’s miscegenation laws in 1948 and it was the first. Sixteen states still had such laws at the time of Loving. Are you sure the others weren’t overturned by the state courts instead of by the Legislatures? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 13, 2006, 12:25am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/149 "2006-06-13T00:25:44Z")
[QUOTE=ElvisL1ves] Where the fuck do you get _that_ idea from? Er, make that, _cite_? [/quote] You might read my previous posts. > [@](#): > > That’s \*your \* argument, that the 14th doesn’t actually do anything. Glad you now agree it’s silly. No, it was yours. But it is certainly silly. > [@](#): > > \*Every \* law that establishes marriage, in \*every \* state. Nope. there are no laws that establish SSM. > [@](#): > > Since, under the 14th, it can’t be denied to anyone on grounds that do not constitute an overriding state interest (and even you can’t suggest what those might be), they \*all \* therefore establish SSM. Again, wrong. Marriage as defined by all legislators (or the states, or the people) when the laws on marriage were established, isn’t being denied to anyone. SSM is. Since no laws exist in the US that establish SSM, the equal protection clause is not being violated. > [@](#): > > Is that clear yet? That the right in question is \*not \* SSM, but _equal protection_? Do you grasp that yet? Oh, I understand quite clearly what you are _trying_ to do. But what you are trying to do is stupid, dishonest, and in violation of the Constitution and the notion of limited government. So it isn’t a matter of me “grasping” something, as if you had put forward a real position. It is merely my refusal to accept your strawmen as a credible set of posts. As I mentioned previously, neither vehemence nor repetition establish a position. You actually have to demonstrate it. Which you have consistently declined to do. Regards, Shodan ---
**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:** [June 13, 2006, 2:22am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/150 "2006-06-13T02:22:05Z")
[QUOTE=Homebrew] You keep repeating this; but are you sure? California’s court overturned that state’s miscegenation laws in 1948 and it was the first. Sixteen states still had such laws at the time of Loving. Are you sure the others weren’t overturned by the state courts instead of by the Legislatures? [/QUOTE] Repeating something enough times makes it true, doesn’t it? 🙂 There were something like 30 states that had anti-mescegenation laws on their books in the 1st half of the 20th century. I think you’re actually right in that many of them (maybe even most of them) were repealed by the state courts rather than thru the legislatures. But I doubt very seriously that those courts were far ahead of the people in those states, and surely we can agree that states like CA would have abolished those laws legislatively well before the \*Loving \*decsions was handed down in 1967. Note that the 1964 Civil Rights act (much more sweeping in scope than that produced by _Loving_) passed in the Senate by a margin of 73-27. The South fought that legislation tooth and nail, but the national tide had turned by that point and there was no going back. The state courts sped up the process of getting rid of the anti-miscegenation laws, but not by much, so I don’t belive the landscape in 1967 would have looked that different had the state courts defererd to the legislatures on that subject. I don’t think the situation in the US in 1967 wrt race (as reflected in the legislative and judicial record) is even remotely comparable to where we are today wrt sexual orienation legislation and jurisprudence. Let me be 100% clear in saying that does not speak to the rightness of laws banning SSM-- I’m absolutely conviced they’re wrong, in a moral sense. I just can’t see the justification for a national judicial decision that flies so strongly in the face of the national legislative consensus. I don’t expect you to agree with that, but that reflects my own view of the role of the judiciary vs the role of the legislature. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 13, 2006, 2:27am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/151 "2006-06-13T02:27:53Z")
[QUOTE=ElvisL1ves] Except that you still propose a way to have it \*not \* apply in the case of marriage laws, by making up your \*own \* definitions of words that are inconvenient to your desired conclusion. Why should anyone take that seriously? Note that no other participant here does. [/quote] Elvis, you continue to beg the question. You accept as a given that the 14th amendment supports SSM, therefore anyone who says otherwise runs afoul of the 14th amendment. Stop digging into your playbook for a standard response. Respond to what I actually posted. > [@](#): > > Stop right there. The 14th’s reach was defined to cover “all persons” and “the laws” right in its very text. \*All \* persons. \*The \* laws. > > There is no “extension” involved, and no need to propound one. It is up to the \*state \* to explain why the right to equal protection should be \*overridden \* by other rights in any specific case. It is not required of those who simply point to the text to defend it. I’m quite sure you understand that. Are you, as it appears, simply continuing to argue otherwise just for the fun of it? Again, you beg the question. I am not arguing that the 14th amendment should be “overridden.” I am arguing that you are misinterpreting it. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 13, 2006, 3:02am UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/152 "2006-06-13T03:02:39Z")
[QUOTE=Polycarp] What I’m saying is that, so far as I know, there is no specific law anywhere which specifically bans same-sex marriages _in those words_. Rather, there are laws which _regulate marriage_ in a manner such that same-sex marriages are not permitted under them. (Is this making sense? Try a parallel: there is no law explicitly prohibiting a 12-year-old from operating a motor vehicle. There are laws prohibiting operating a motor vehicle without a licence, and laws restricting the age at which one can get a DMV operator’s license, that amount to the same thing, but not that explicit prohibition.) [/quote] Not sure I understand the distinction you’re drawing. > [@](#): > > Okay. Here’s my assertion. A state may, by the Tenth Amendment, regulate any activity under the police power which does not fly in the face of a constitutional guarantee – provided that either (a) that law treats all persons completely equally in terms of what they propose to do under it, or (b) that law’s decision to treat certain person differently bears a rational relationship to a valid governmental purpose. This is the minimal scrutiny test invoked when the suspect classification does not rise to the level of invoking intermediate or strict scrutiny. In other words, the state need not have made the _best_ choice for drawing a distinction but, the courts exercising self-restraint here, they require that the legislature have come up with a classification that has some rational relationship to a valid governmental purpose. Isn’t the rational basis threshold an incredibly low one? For example, would “promotion of child-bearing” do the trick? BTW, I’m not suggesting I would support such a foundation. > [@](#): > > Saying that equal protection is accomplished by granting the right to contract an opposite-sex marriage to heterosexuals and homosexuals alike, is voiding a valid element of the marriage contract, the idea of mutual consent. I believe it can be granted for the sake of argument that heterosexuals, by and large, are interested in contracting marriage with a person of the opposite sex, while homosexuals by and large are not. I disagree (or miss your point). Equal protection, in the sense I’m asserting, need only offer the same specific options. It need not provide options each individual would be inclined to pursue. > [@](#): > > Marriage – not same-sex marriage or opposite-sex marriage but the basic concept – is a “fundamental right” as defined in _Loving_. Well, in my ongoing campaign of tilting at windmills, I’ll assert yet again that Loving based this conclusion on something other than the text of the Constitution. In the future, SCOTUS may rule otherwise in terms of the rights it recognizes. Thomas, for example, does not hold prior decisions sacred in the way some others do. > [@](#): > > _Lawrence_ specifically excluded the question of marriage from the “autonomy in private relationships” issue on which it was decided. I grant that – but I note that that exclusion does not mean it was decided one way or the other, just that Justice Kennedy’s majority opinion specifically excluded it, along with other questions, from the scope of what was addressed. The issue at hand in _Lawrence_ was the constitutionality of anti-sodomy laws, and that specifically was what was addressed. If the court did not claim that gay marriages were validated by that right to autonomy, neither did it invalidate them – it sidestepped that question. It probably won’t surprise you to learn that I think the Lawrence decision was a bad one. I like Thomas’s dissent. It was a silly, but Constitutional, law that was overturned with this overreaching decision. > [@](#): > > It is not that gay people need to prove that they have a right to marry each other. They **have** that right under _Loving_ – unless the state has a legitimate public purpose in depriving them of it. That, and not the issue of whether there is a “right to same-sex marriage,” is what’s at issue. Poly, I think you beg the question here. If there’s a right to marriage (as formulated in Loving), that does not mean that a union between two individuals of the same sex is a marriage. > [@](#): > > This whole pedophilia issue can be a major red herring or can help clarify the issue greatly: there **is** a legitimate public purpose behind the age of consent laws, and grasping that, and the distinction between the pedophile’s wishes, on the one hand, and those of his underage partner and whether or not the latter are legitimately subject to state regulation, on the other, is key to the question. Humbert has the right to wish to contract marriage with Dolores; Dolores does not have the right to consent to that marriage, for her own safety. Right there is where the two issues differ: Adam and Steve both have the right to enter into a mature decision to contract marriage, as does Humbert, but Dolores does **not**. I trust I’m making sense there, on a very hot-button issue. Yes, I understand (and support, if it needs to be said!) the laws against pedophilia, and the basis for them. My only point was that a pedophile could not legitimately argue for the repeal of pedophilia laws on an equal protection basis, despite the fact that a similar argument could be made (“He gets to have sex with who he wants. She gets to have sex with who she wants. But I don’t. The humanity!”). If there’s no equal protection concern, the rational basis isn’t in play, right? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 13, 2006, 2:01pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/153 "2006-06-13T14:01:56Z")
[QUOTE=Stratocaster] Elvis, you continue to beg the question. [/quote] No, you continue to misunderstand what you’re being told. > [@](#): > > You accept as a given that the 14th amendment supports SSM How often do I have to say it until you get it? The 14th guarantees _all persons equal protection under the laws_. Unless SSM is excluded from that, either explicitly or by an overriding state interest, it’s covered. That isn’t a “given”, it’s a _conclusion_. > [@](#): > > I am not arguing that the 14th amendment should be “overridden.” I am arguing that you are misinterpreting it. Do you really share \*\*Shodan’\*\*s view that the default case which must be overcome is that equal protection is \*not \* guaranteed, or _not_ to all persons? Where do you see “not” in the text? That interpretation not only flouts basic English grammar but logically silly - why would Congress even bother to write the amendment if that were its intent? Yet you persist. **Shodan** need not be bothered with further, since his position comes down to that any explanation he’s given that doesn’t lead to his desired conclusion must be wrong. Horse, water. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [June 13, 2006, 2:45pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/154 "2006-06-13T14:45:37Z")
G-d damn it, **Shodan** and **Elvis** , can’t you guys trim the fat and argue the point that your posts clearly define as the sticking point between you? Here, I’ll do everyone the favor of boiling it down: **Elvis** : Same-sex marriage is marriage, since _Loving_ recognizes marriage as a fundamental right, it’s included **Shodan** : Same-sex marriage is a new construct, not within the established definition of marriage, so _Loving_ does not recognize it as it does heterosexual marriage. There. Now you guys can stop clogging bandwidth by bouncing back and forth “Show me where SSM is a right” “Loving established that marriage is a right” “It didn’t establish SSM” “It established marriage.” I really do find myself interested in all the legal quotes and allegories that many posters, including the two of you, have offered, but that particular point, which for some reason the two of you have been avoiding saying directly to one another but which you’re clearly arguing about, is worn very very thin. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 13, 2006, 2:46pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/155 "2006-06-13T14:46:45Z")
[QUOTE=ElvisL1ves] Do you really share \*\*Shodan’\*\*s view that the default case which must be overcome is that equal protection is \*not \* guaranteed, or _not_ to all persons? Where do you see “not” in the text? That interpretation not only flouts basic English grammar but logically silly - why would Congress even bother to write the amendment if that were its intent? Yet you persist. **Shodan** need not be bothered with further, since his position comes down to that any explanation he’s given that doesn’t lead to his desired conclusion must be wrong. Horse, water. [/QUOTE] You are a liar. Obviously. Although I am encouraged that you recognize the futility of your chosen tactic of misrepresentation and persistent ignorance, and will no longer bother. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 13, 2006, 2:59pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/156 "2006-06-13T14:59:15Z")
[QUOTE=cmkeller] for some reason the two of you have been avoiding saying directly to one another but which you’re clearly arguing about, is worn very very thin. [/QUOTE] I’ve been \*quite \* direct, on multiple occasions, and as clear as I can be, _and so is the 14th_. Your statement is incorrect. You think that \*Loving \* is just another opinion, do you? No, it’s the law of the land. Marriage _is_ a fundamental right under that law of the land. That’s _fact_, not opinion. You are not helping anything by equating the concepts. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 13, 2006, 3:00pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/157 "2006-06-13T15:00:35Z")
[QUOTE=cmkeller] I really do find myself interested in all the legal quotes and allegories that many posters, including the two of you, have offered, but that particular point, which for some reason the two of you have been avoiding saying directly to one another but which you’re clearly arguing about, is worn very very thin. [/QUOTE] I’ve avoided saying it? You cut me to the quick! > [@](#): > > SSM is not a current right under the Constitution. > [@](#): > > there are no laws that establish SSM. > [@](#): > > Since no laws exist in the US that establish SSM, the equal protection clause is not being violated. > [@](#): > > SSM is a new right, not previously established by the Constitution nor recognized by the states, the people, or the federal government. > [@](#): > > Loving makes no reference to SSM. > [@](#): > > SSM is the new right we are talking about. > [@](#): > > Because the states or the people haven’t recognized a right to SSM. > [@](#): > > Could you cite the portion of the Constitution that explicitly defines SSM as a right? I’ve been saying it for four pages now. I grant you, it hasn’t sunk in with certain other posters, but what else can I do? Regards, Shodan ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 13, 2006, 3:11pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/158 "2006-06-13T15:11:36Z")
**Shodan** : _Same sex_ marriage has not at this point been established as a right outside Massachusetts in the U.S. So far you are correct. Now, **marriage** is a fundamental right, by SCOTUS decision. About half the board has suggested to you that there is a legitimate Equal Protection issue in guaranteeing opposite-sex marriages and not same-sex marriages. Would you kindly drop the Johnny-one-note routine on “the Constitution does not have language guaranteeing same-sex marriages” and address that issue? You may conceivably have a point worth making about why the Equal Protection Clause does not apply. But we cannot ascertain it if you merely reiterate that point. We **know** “same-sex marriage” as a phrase does not occur in the Constitution. Neither do “integration” or “withholding tax” or “recorded music copyright” but they do seem to have constitutional meaning and significance. Thank you. ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [June 13, 2006, 3:17pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/159 "2006-06-13T15:17:12Z")
Sigh. No, Shodan, as demonstrated by all the quotes you offer, you have not explicitly said to Elvis “SSM is not marriage.” You just say it indirectly by stating it’s not included in _Loving_, or has not been established legislatively [as separately from the existing contruct of marriage]. And Elvis, since he hasn’t come right out and said that to you, you haven’t defended the point that SSM is already within the legal definition of “marriage”, instead, you have merely been acting like that’s a given (despite the fact that that’s clearly the point of yours that Shodan disagrees with in this) and thereby spoken in terms of _Loving_ and the 14th Amendment. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 13, 2006, 4:17pm UTC](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615/160 "2006-06-13T16:17:51Z")
[QUOTE=cmkeller] you haven’t defended the point that SSM is already within the legal definition of “marriage” [/quote] Nor, in the absence of \*any \* argument to the contrary, is it necessary to do so. Now go back, \*read \* the thread, and actually try to \*understand \* the points being made before you offer any more useless opinions about anyone’s conduct here, okay? :rolleyes: [Previous page](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615.md?page=7) [Next page](https://boards.straightdope.com/t/should-interracial-marriage-have-been-kept-illegal-until-congress-acted/359615.md?page=9)