Should interracial marriage have been kept illegal until Congress acted?

[tomndebb]

[QUOTE=Hamlet]
Great. Congress, the legislature, and the OED are all free to decide, statutorily, what marriage means for their legislation. What the judiciary can, has, and should do, is determine what the right to marry entails.
[/QUOTE]
Frankly, so what?

I agree with nearly everyone else in this thread on how marriage should (now) be defined. So what?

We have a legal system. We have legislatures and courts. They all operate on their understanding of the law. As long as the law is written in English and the words in the law have particular meanings (as accepted by the majority of speakers of the language), all the wonderful expressions about what the word marriage should mean are irrelevant. Talking about a “fundamental right” of marriage in Loving as if it is different than the definition of marriage found in the OED is counterproductive. Loving was written by people who accepted the defintion found in the OED. It is enforced, today by people who accept and use the definition found in the OED. The only way to change the behavior of the legislatures and courts, today, is to change the meaning of the word. The Massachusetts Supreme Court did act to change the meaning of the word in the state of Massachusetts.

Wondering what the word marriage “should” mean in a society for which it already has a defined meaning does nothing to promote a change in that society.

In the part of the decision you quoted, they were discussing the use of the statutory definition of marriage in G. L. . 207, not the definition of a constitutional right. They concluded that the statutory definition did not authorize the marriage of same sex partners, not that the constitutional right to “marry” didn’t cover same sex partners.

No. They explicitly affirmed that the definition of marriage precluded the marriage of same sex partners. Regardless of constitutional rights, the laws (and the Law) made no provision for the union of same sex partners under the definition (in law) of “marriage.” What they then decreed was that, based on specific rights guaranteed to the citizens of Massachusetts, but not necessarily guaranteed to citizens of the United States who are not protected by the Massachusetts Constitution, they were directing that the word marriage be redefined in Massachusetts.

What I am advocating involves more than looking at the simple dictionary or statutory definition of marriage, and determining what the constitution requires for the protection of a fundamental right.

That is fine, but again, irrelevant (in the context of the U.S. Constitution, particularly as the Supreme Court is currently composed).
The word marriage has a meaning. The meaning of the word is established in law. The Supreme Court in Loving used that defined word to establish certain rights, but the very nature of the word they used limits (by definition) the population to whom it is applied. The Massachusetts Supreme Court looked to Loving as one source of their concept of who is entitled to what rights. However, they looked to separate articles in the Massachusetts Constitution to discern a broader protection and they explicitly noted that their ruling served to change the definition based on principles in the Massachusetts Constitution.

Let’s look at the sections of Loving cited by the Massachusetts Supreme court, substituting the definition for the word in the text:
“The condition of being a husband or wife is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”
“The freedom to constitute as man and wife according to the laws and customs of a nation has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”.

Laws are written in words. Words have meanings. The word marriage, in 1967, had a very explicit meaning–a meaning that it continues to carry for the overwhelming majority of U.S. citizens, (including a majority of Supreme Court justices, I suspect), today.

I am not opposing a change in the meaning of that word. I am pointing out that the word has not yet completed that change in meaning. If you want to champion the “fundamental right to marry,” knock yourself out. As long as the general populace, including the legislatures and the courts consider that to be the “fundamental right to constitute as man and wife according to the laws and customs of a nation,” you are going to fail to change the current laws. You need to get a majority of the populace to identify marriage as a consensual uniting under law of two persons, shedding the historical and etymological meanings of the word. As long as no one outside the proponents of Same Sex Marriage agree to a new definition, there will be no change.

[ElvisL1ves]

You are aware, I trust, that the Oxford English Dictionary is not a source of law in the US, right? If you could find any reference *in law *, it would be constitute an actual, relevant argument.

Well, it appears that I should have posted it acouple of more times since you are ignoring it.

What is “inherent in the wording” is the definition of marriage which has never meant anything other than the union of persons of opposite sex.

No, I asked for a cite, and you did provide exactly one, later on, though even that finally differentiates your approach from Shodan’s. *That * was just one more repetition of a simple assertion on your part. “Never”, you say? “Anything”? You’re sure you feel comfortable out on that quicksand?

@Polycarp

In short, what I’m advancing here is that a given act may be constitutional and legal in and of itself but be done in a manner that is unconstitutionally discriminatory.

Exactly, as the Court has ruled on a number of occasions. Think about that for a moment, Stratocaster.

@Polycarp

What upsets people is the sex that they conceive to accompany it.

There are a helluva lot of *straight * couples I don’t want to picture having sex, either. But nobody seems to talk about the “yuck factor” for them.

[Shodan]

[QUOTE=Hamlet]
No, what you’ve done, what you’ve always done, and what, I suspect you will do until your dying day is assert it. You don’t “explain” anything, you don’t provide citations, you don’t argue from good faith, you just assert it, over and over and over. And nothing, citations, original intent, compelling arguments, or direct quotes, has any effect on you. You merely wave your hands and continue to restate the same thing over and over, and pretend you’re winning the debate. If you had any credibility left to lose, it would be a shame. Now though, it’s just pathetic.
[/QUOTE]

As I’ve said before, I don’t believe that you don’t know what the Tenth Amendment says, and therefore citing it would make no difference.

The fact that you don’t like and cannot refute an argument does not mean that it has not been explained to you.

So much for your attempts.

@ElvisL1ves

If you could find any reference in law , it would be constitute an actual, relevant argument.

The everyday meaning of “marriage” is “[t]he legal union of a man and woman as husband and wife,” Black’s Law Dictionary 986 (7th ed. 1999), and the plaintiffs do not argue that the term “marriage” has ever had a different meaning under Massachusetts law. See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (marriage “is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife”). This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. See Commonwealth v. Knowlton, 2 Mass. 530, 535 (1807)

Far from being ambiguous, the undefined word “marriage,” as used in G. L. c. 207, confirms the General Court’s intent to hew to the term’s common-law and quotidian meaning concerning the genders of the marriage partners.

We conclude, as did the judge, that G. L. c. 207 may not be construed to permit same-sex couples to marry.

Since you seem to have missed it.

@Homebrew

There is no such thing as “same-sex marriage”. There is marriage. The particpants can be a man and a woman or two men or two women. But the thing between them is a marriage.

See above.

Which pretty much disposes of the notion that “marriage” necessarily includes SSM.

So, apart from common law, the rulings of the Supreme Court, the common use of language, the clear desire of a large majority of the states, , and the clear desire of most Americans, , there is no reason to believe that “marriage” does not mean SSM too.

That about the size of it?

Regards,
Shodan

[ElvisL1ves]

That’s it? A *Massachusetts * decision that has *already * been nullified? That’s just great. :rolleyes:

[tomndebb]

You are aware, I trust, that the Oxford English Dictionary is not a source of law in the US, right? If you could find any reference in law , it would be constitute an actual, relevant argument.

OK. From GOODRIDGE, et al. v. DEPARTMENT OF PUBLIC HEALTH, et al., the decision in which the Massachusetts Supreme Court decided, for the State of Massachusetts, that the definition of marriage in law would be redefined:

We interpret statutes to carry out the Legislature’s intent, determined by the words of a statute interpreted according to “the ordinary and approved usage of the language.” Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The everyday meaning of “marriage” is “[t]he legal union of a man and woman as husband and wife,” Black’s Law Dictionary 986 (7th ed. 1999), and the plaintiffs do not argue that the term “marriage” has ever had a different meaning under Massachusetts law. See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (marriage “is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife”). This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. See Commonwealth v. Knowlton, 2 Mass. 530, 535 (1807) (Massachusetts common law derives from English common law except as otherwise altered by Massachusetts statutes and Constitution). See also Commonwealth v. Lane, 113 Mass. 458, 462-463 (1873) (“when the statutes are silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations”); C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice § 1.2 (3d ed. 2002). Far from being ambiguous, the undefined word “marriage,” as used in G. L. c. 207, confirms the General Court’s intent to hew to the term’s common-law and quotidian meaning concerning the genders of the marriage partners.

The intended scope of G. L. c. 207 is also evident in its consanguinity provisions. See Chandler v. County Comm’rs of Nantucket County, 437 Mass. 430, 435 (2002) (statute’s various provisions may offer insight into legislative intent). Sections 1 and 2 of G. L. c. 207 prohibit marriages between a man and certain female relatives and a woman and certain male relatives, but are silent as to the consanguinity of male-male or female-female marriage applicants. See G. L. c. 207, §§ 1-2. The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry.

[ElvisL1ves]

See the post right above yours. Note that the definition there (from 1807!) was brought up only for the purpose of nullifying it.

[tomndebb]

ElvisL1ves, are you even reading this thread? Do you actually understand what has been said, here?

You complained that when I noted that Loving only addressed marriage as the relationship between persons not of the same sex I had not “proven” that.
Assuming you actually understood English, I posted that they clearly had by using the word “marriage” in the decision.
Then there were complaints that we had no reason to assume that marriage explicitly meant persons of the opposite sex.
I provided a reference to the best documented history of the English language that noted that every definition indicated persons of the opposite sex. I then went on to quote the Massachusetts Supreme Court decision in which they explicitly note that the meaning of the word in law indicates persons of the opposite sex, along with the clear point that they made that they were changing the definition. (They also noted that their change was explicitly based on other provisions within the Massachusetts Constitution, meaning that there is no compulsion for any other governmental entity outside Massachusetts to follow their lead.)

You then came back whining that the OED is not a law dictionary, so I re-posted the exact citation that includes both precedent for the meaning of the word, as well as a citation to Black’s Law Dictionary (thus answering your needless complaint, since I had already quoted it, once).

You have now tried to claim that the reference was “too old” or something, ignoring both the point that law in the U.S. follows precedent, so that age gives weight to an opinion rather than diminishing it, as well as the point that the law dictionary you demanded to see cited has a date of 1999.

The Massachusetts Supreme Court did not “nullify” an “1807” definition. They explicitly stated that they were making a change to the definition as it exists only in the State of Massachusetts based on a reading of wholly separate clauses of individual liberty found only in the Massachusetts Constitution.
At this point, you are free to wander about Nephelokykkygia or Through the Looking Glass, asserting that “There’s a glory for you.” However, the word marriage in every legal entity of the U.S. outside Massachusetts has a very clear meaning–the joining of persons not of the same sex. Until such time as other states or the Federal Government follow the lead of Massachusetts and change the meaning of the word, you are simply tilting at windmills to claim that “marriage” (In the U.S. outside of Massachusetts) has any legal definition other than the union of persons of different sexes.

[John_Mace]

As I mentioned earlier, the CA SC will be taking up this issue in July. I wonder if this part of Article 1 of the CA constitution will cause the court to rule as the MA court did:

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Talk about your explicit listing of a right to privacy-- it’s in the very first sentence of the document. Well, the first sentence if you don’t count the preamble (which I think many will find surprsing):

CALIFORNIA CONSTITUTION
PREAMBLE

We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.

Bet you wouldn’t have thought that would be there!

[ElvisL1ves]

[QUOTE=tomndebb]
ElvisL1ves, are you even reading this thread?
[/quote]
Maybe you aren’t better than that. :rolleyes:

You complained that when I noted that Loving only addressed marriage as the relationship between persons not of the same sex I had not “proven” that.

I complained that you were making a blanket assertion of fact without adequate support. You were, and still are.

Assuming you actually understood English, I posted that they clearly had by using the word “marriage” in the decision.

Which was unresponsive to the point in question. Did you actually read what I asked?

Then there were complaints that we had no reason to assume that marriage explicitly meant persons of the opposite sex.

You had no stated reason to assert it as fact. The words assume and assert are different.

You have now tried to claim that the reference was “too old” or something

Puh-leeze. We, well most of us, have been discussing, among other things, how the meanings of words, like the nature of society, has changed over time, in many ways. Of damn course the age of a cite is relevant to that. :rolleyes: Nevertheless you have insisted on using the words “never” and “always” in that context in a quite imprudent way.

The Massachusetts Supreme Court did not “nullify” an “1807” definition.

That cited case could no longer be decided in that way. If it were appealed today, it would have to be reversed. Ergo it’s nullified.

They explicitly stated that they were making a change to the definition as it exists only in the State of Massachusetts based on a reading of wholly separate clauses of individual liberty found only in the Massachusetts Constitution.

And therefore your only cite in the law to back up your flat assertion is no longer valid. Did you overlook that little problem? Note that “individual liberty” clauses pervade constitutions throughout the country, and world for that matter; they aren’t a Mass. idiosyncrasy as you seem to suggest.

However, the word marriage in every legal entity of the U.S. outside Massachusetts has a very clear meaning–the joining of persons not of the same sex.

Then it would help if you could cite any of them, instead of the only one in which it *does not * apply. You do, I hope, see the weakness in your argument there. If not, you’re free to continue to wallow in your own splutterings.

I know you must be irritated at getting called on your bullshitting here, something you normally rarely engage in, but instead of considering the possibility you did so, you’re responding with vitriol instead. That does not advance the fight against ignorance, unfortunately.
John Mace, what did you think would surprise us - the reference to God? We’ve been over the “ceremonial deism” stuff many times here. It would be surprising not to find it in such a document from such a time.

[tomndebb]

[QUOTE=ElvisL1ves]
And therefore your only cite in the law to back up your flat assertion is no longer valid. Did you overlook that little problem? Note that “individual liberty” clauses pervade constitutions throughout the country, and world for that matter; they aren’t a Mass. idiosyncrasy as you seem to suggest.
[/QUOTE]
This is silly.

There is no place in the United States where the word marriage has changed meaning in law except Massachusetts.
All the definitions of personal liberty in all the constitutions of the world are meaningless unless you persuade a court outside Massachusetts to apply the language of that state or Federal constitution to recognize a need to change the meaning of the word in law. I am not claiming that Massachusetts is idiosyncratic. I am pointing out the fact that Massachusetts had explicit language in its constitution, (language that may be similar to, but not identical to, the language in other constitutions*), that caused that state’s supreme court to make a specific change in the way that that state defined the word marriage.
*(The Massachussetts court explicitly said that “The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life.” So the Massachusetts court appears to believe that there is no such similar protection in the U.S. Constitution. How many other states have sufficiently explicit language (with a court willing to interpret it in a particular way) is an open question.)

My initial point in this thread was simply that people arguing for an existing right to same sex marriage based on Loving or the 14th Amendment were deluding themselves. Nothing posted by you or by me contradicts that assertion.

Loving appealed to a number of principles, Constitutional and in case law, to assert that marriage is a right.
The word marrige, in every legal context in the U.S. except the single location of Massachusetts where it has been explicitly changed, always means a union of persons of different sexes. The Massachusetts court explicitly acknowledged that point in their own decision.

If you wish to hope that other states have language regarding personal liberty that is

• sufficiently similar to that of Massachusetts to cause a reconsideration by other state supreme courts
• located in states with courts inclined to make such an interpretation
• not already pre-empted by constitutional amendments explicitly stating that only opposite sex marriage is recognized
  then hope to your heart’s content. However, stomping around a message board insisting that it is a done deal is merely self-delusion.

The reality is that the word marriage in law means the union of persons of different sexes in every jusrisdiction in the U.S. except Massachusetts where it has been deliberately changed, so an appeal to either Loving or the 14th Amendment does not get you what you desire. If you appeal to the 14th Amendment plus Loving, you will get absolute agreement that everyone in the nation has a right to marriage, meaning everyone has a right to enter into a union with persons of the opposite sex.
Getting huffy, here, will not change that. Only a concerted effort to get other courts or legislatures to follow the precedent of Massachusetts and explicitly change the meaning of the word in law will bring about the change in policy that you wish.

It may, indeed, be possible that the population of the U.S. may follow the lead of Canada and the meaning of the word may change in general usage, at which time the courts or legislatures may change the laws or interperetations thereof.
That time has not arrived.

[tomndebb]

And therefore your only cite in the law to back up your flat assertion is no longer valid.

Y’know, I really think you are not actually reading what has been posted.

My “single cite” was to a portion of the Goodbridge decision that, in turn, cited seven other decisions or definitions. That is not a “single” cite. And the fact that the Massachusetts court changed the definition of the word in law in Massachusetts does not make that citation, (which included references to Common Law and other evidence outside the state of Massachusetts) invalid. It simply means that in one jurisdiction, the meaning (fouind equally supported in all other jurisdictions) has been changed for that jurisdiction, alone.

[DMC]

[QUOTE=John Mace]
Bet you wouldn’t have thought that would be there!
[/QUOTE]
God is actually referenced in almost all state constitutions, even though most of them are nevertheless explicit about the importance of the separation of church and state.

[Homebrew]

[QUOTE=tomndebb]
YAnd the fact that the Massachusetts court changed the definition of the word in law in Massachusetts does not make that citation, (which included references to Common Law and other evidence outside the state of Massachusetts) invalid. It simply means that in one jurisdiction, the meaning (fouind equally supported in all other jurisdictions) has been changed for that jurisdiction, alone.
[/QUOTE]
I think the court acknowleged that “opposite sex” is not an intrinsic part of the word, despite common usage and that the explicit principles of equality demanded that the word be used gender neutrally. I also believe that the common usage of the word is changing to reflect that also.

At what level of usage, Tom~, do you believe that the common usage of marriage to include same-sex couples will be sufficient to implicitly have changed the definition of marriage in the law?

[ElvisL1ves]

[QUOTE=tomndebb]
This is silly.
[/quote]
Indeed it is. You’re going to great extremes to point out that the current de facto situation is indeed the current de facto situation. You’re thereby missing several points.

There is no place in the United States where the word marriage has changed meaning in law except Massachusetts.

And not many that *have * established meaning in law, either, hmm? Yet legal meanings can and do change to match societal changes and increasing adherence to Constitutional principles, as the Loving example you deride me for even mentioning shows.

All the definitions of personal liberty in all the constitutions of the world are meaningless unless you persuade a court outside Massachusetts to apply the language of that state or Federal constitution to recognize a need to change the meaning of the word in law.

Right, and that’s what the 14th does. It is in fact the basis for incorporating the rights guaranteed the US Constitution, including its own right to equal protection, into the conduct of state governments.

I am not claiming that Massachusetts is idiosyncratic. I am pointing out the fact that Massachusetts had explicit language in its constitution, (language that may be similar to, but not identical to, the language in other constitutions*), that caused that state’s supreme court to make a specific change in the way that that state defined the word marriage.

Then are you prepared to say that other state constitutions, including the ones that have had pro-discrimination amendments passed, can stand a similar test under the 14th, if not their own?

(The Massachussetts court explicitly said that “The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life.” So the Massachusetts court appears to believe that there is no such similar protection in the U.S. Constitution.

No, that is not what that sentence means. They said the MA Constitution may be more protective, not that the US Constitution is *not * protective. *That * is just silly of you. What was that you said about not reading?

The MA court used its own constitution to decide the issue because it was not necessary to invoke the federal one. The federal one applies nonetheless, under incorporation, and could have been used instead. It forces exactly the same result.

How many other states have sufficiently explicit language (with a court willing to interpret it in a particular way) is an open question.)

Well, there’s a step back from your customary flat, uncited assertions, anyway. Maybe there’s hope here yet.

My initial point in this thread was simply that people arguing for an existing right to same sex marriage based on Loving or the 14th Amendment were deluding themselves. Nothing posted by you or by me contradicts that assertion.

Let me try to make it even simpler for you, then:
Marriage is a legal right (you’ve agreed).
Equal protection under the laws of all persons is a right (says the 14th, which overrides anything else in the absence of a state interest, as you know).
There is no expressed state interest overriding some persons’ right to marriage on the basis of gender or orientation.
Now do the math. 2 + 2 does equal 4.

The word marrige, in every legal context in the U.S. except the single location of Massachusetts where it has been explicitly changed, always means a union of persons of different sexes.

Always? Really? Go back and read Kimstu’s explanation - oh, wait, you brushed that aside.

However, stomping around a message board insisting that it is a done deal is merely self-delusion…Getting huffy, here, will not change that

Not helpful. :rolleyes:

The reality is that the word marriage in law means the union of persons of different sexes in every jusrisdiction in the U.S. except Massachusetts

More of the same flat assertions. Repetition doesn’t make it true.

Only a concerted effort to get other courts or legislatures to follow the precedent of Massachusetts and explicitly change the meaning of the word in law will bring about the change in policy that you wish.

No shit. That process, in case you hadn’t noticed, has been well under way for quite a while. The point of explaining the above is to underscore its inexorability in courts dedicated to following the law and Constitutional principles rather than rationalizing discrimination, not to deny that the latter sort exists. But that kind can often be converted with simple, clear argument.

That time has not arrived.

“Sure, the Negroes should have equal rights someday. But our society is just not ready.” I’m surprised to see you echo that.

[tomndebb]

[QUOTE=Homebrew]
I think the court acknowleged that “opposite sex” is not an intrinsic part of the word, despite common usage and that the explicit principles of equality demanded that the word be used gender neutrally. I also believe that the common usage of the word is changing to reflect that also.
[/QUOTE]
From Goodridge:
Following separate citations, every one of which notes that marriage occurs between a man and a woman, the court said

Far from being ambiguous, the undefined word “marriage,” as used in G.L. c. 207, confirms the General Court’s intent to hew to the term’s common-law and quotidian meaning concerning the genders of the marriage partners.

In other words, the court recognizes that the statute does not have to separately define the word “marriage” because it has a clear meaning in law and daily usage. Then the court moves on to say:

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This **reformulation ** redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships.

bolding mine: They have explicitly changed the meaning.
The word “marriage,” under pressure from Massachusetts and Canada and other places probably will change. I have never claimed otherwise. My point is that it has not changed, yet, in common usage, and it will require time or explicit action for it to change in law in the U.S., generally. That has not yet happened.

[QUOTE=ElvisL1ves]

There is no place in the United States where the word marriage has changed meaning in law except Massachusetts.

And not many that have established meaning in law, either, hmm? Yet legal meanings can and do change to match societal changes and increasing adherence to Constitutional principles, as the Loving example you deride me for even mentioning shows.
[/QUOTE]
False and false.

The definition of the word marriage is established in law in every jursidiction in the United States. You simply pretend that that is not true. Note that one of the citations provided by the Massachusetts Supreme Court was to Black’s Law Dictionary–a dictionary that encompasses all U.S. law. Had there been a definition in that work that admitted of gender blind unions, the Court would have noted that, as well.

Loving made no change to the definition or meaning of marriage. None. The laws that Loving overturned all agreed on the meaning of marriage, they simply asserted the right of the state to interfere with the act of marriage. People who were guilty of miscegenation were not considered “not married,” but illegally married. Loving declared that the state did not have the authority to interfere with a person’s right to engage in marriage, but it did not claim that marriage between persons of the same race or different races was not marriage. There was no change to the definition, so you are simply wrong on this point.

I attempted to move this out of the “ping pong match” in which you were engaged, earlier, (“Is so!” “Is not!”) by providing actual citations and references. you choose to ignore them to hold fast to your own ignorance.

So be it.

[Polycarp]

Quick note: I’m not sure what the policy is called, but Federal courts will not review a top state court decision unless (1) there is a federal question involved, and (2) the state court has not arrived at their decision using strictly state grounds.

In other words, SCOTUS has no grounds to review Goodridge because it was decided completely by reference to state law. And therefore it does not matter what the U.S. Constitution may or may not say, by implication and in general terms, about equal protection with reference to a right to marry, because the case was able to be completely resolved by reference to Massachusetts State Law and the State Constitution.

[Hamlet]

tomndebb, I will be very brief, and then I will not be able to return to the thread for awhile. I apologize for that.

[QUOTE=tomndebb]
Frankly, so what?

I agree with nearly everyone else in this thread on how marriage should (now) be defined. So what?
[/quote]
How marriage should be defined by the dictionary? By OED? Or by constitutional right. Because that’s what we’re talking about.

@tomndebb

We have a legal system. We have legislatures and courts. They all operate on their understanding of the law. As long as the law is written in English and the words in the law have particular meanings (as accepted by the majority of speakers of the language), all the wonderful expressions about what the word marriage should mean are irrelevant. Talking about a “fundamental right” of marriage in Loving as if it is different than the definition of marriage found in the OED is counterproductive. Loving was written by people who accepted the defintion found in the OED. It is enforced, today by people who accept and use the definition found in the OED. The only way to change the behavior of the legislatures and courts, today, is to change the meaning of the word. The Massachusetts Supreme Court did act to change the meaning of the word in the state of Massachusetts.

I feel like I’m simply talking past you. For the third time, I am not talking about the precise definition of the word “marriage”, but rather I’m trying to define what the right to “marriage”, entails. Marriage, as Shodan will remind you endlessly, is not defined in the the Constitution, and it needs to be interpreted to determine what the right to “marriage” is. Just as vague concepts like “liberty”, “due process”, or the right to “privacy” need to be defined in a constitutional sense. Of course, you could simply say the right to marriage is only as it is defined in OED, or you could actually go further and determine what the right to marry entails. And nothing in the Constitution, in what marriage actually is or does, or in the rights, priviledges, benefits, or responsibilities the law recognizes in marriage requires that one member have a penis and one have a vagina.

@tomndebb

Wondering what the word marriage “should” mean in a society for which it already has a defined meaning does nothing to promote a change in that society.

Great. With your view defining the words “privacy”, “liberty”, and “due process” should be a piece of cake for courts. It’s a wonder that there’s been any questions at all about them, we can just look them up in OED, and go on our merry way.

@tomndebb

No. They explicitly affirmed that the definition of marriage precluded the marriage of same sex partners. Regardless of constitutional rights, the laws (and the Law) made no provision for the union of same sex partners under the definition (in law) of “marriage.” What they then decreed was that, based on specific rights guaranteed to the citizens of Massachusetts, but not necessarily guaranteed to citizens of the United States who are not protected by the Massachusetts Constitution, they were directing that the word marriage be redefined in Massachusetts.

The definition of marriage they were interpreting was the statutory definition and they found that it would not allow for a same sex marriage. They did not redefine the statutory definition of marriage. They defined (or redefined if you wish) what the right to marriage, as protected by the Mass. Constitution, entails. And it entails the rights for homosexuals to receive the same powers, benefits, and responsibilities granted by the laws of Massachusettes. I’m not saying that the Mass. court redefined the term “marriage” in statutes, amendments, or the OED, but rather what the constitution requires.

@tomndebb

That is fine, but again, irrelevant (in the context of the U.S. Constitution, particularly as the Supreme Court is currently composed).

It is no different that what the court normally does, defining rights and the limits of governmental intrusion into those rights. I don’t really find that “irrelevant”, but to each their own.

@tomndebb

The word marriage has a meaning. The meaning of the word is established in law. The Supreme Court in Loving used that defined word to establish certain rights, but the very nature of the word they used limits (by definition) the population to whom it is applied. The Massachusetts Supreme Court looked to Loving as one source of their concept of who is entitled to what rights. However, they looked to separate articles in the Massachusetts Constitution to discern a broader protection and they explicitly noted that their ruling served to change the definition based on principles in the Massachusetts Constitution.

Let’s look at the sections of Loving cited by the Massachusetts Supreme court, substituting the definition for the word in the text:
“The condition of being a husband or wife is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”
“The freedom to constitute as man and wife according to the laws and customs of a nation has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”.

Laws are written in words. Words have meanings. The word marriage, in 1967, had a very explicit meaning–a meaning that it continues to carry for the overwhelming majority of U.S. citizens, (including a majority of Supreme Court justices, I suspect), today.

For the fourth time, we are not talking about the definition of a word, but of a right. We’re (at least I’m) not talking about how the word was statutorily defined in Virginia, or Massachusettes, or what the dictionary says, or what 68.385% of people think it means, I’m trying to determine what the Constitution protects. And the Constitution, in my opinion, protects a right to marriage. And that right has absolutely nothing to do with the sex organs of the participants.

@tomndebb

I am not opposing a change in the meaning of that word. I am pointing out that the word has not yet completed that change in meaning. If you want to champion the “fundamental right to marry,” knock yourself out. As long as the general populace, including the legislatures and the courts consider that to be the “fundamental right to constitute as man and wife according to the laws and customs of a nation,” you are going to fail to change the current laws. You need to get a majority of the populace to identify marriage as a consensual uniting under law of two persons, shedding the historical and etymological meanings of the word. As long as no one outside the proponents of Same Sex Marriage agree to a new definition, there will be no change.

I completely realize that there is enough animosity, enough bigotry, and enough ignorance, to keep homosexuals from obtaining the same rights as heterosexuals. And changing that through the judiciary is not the preferred method. I’d absolutely love it if the general populace gave up their obsession with the sex lives of homsexuals, woke up, and decided they fully support same sex marriage.

But the judiciary has a duty. And that duty is to protect the rights of its citizens. And, included in those rights, is the right to “consensual uniting under law of two persons”. You’re so caught up in the definition of the word “marriage”, that you refuse to see what I’m arguing. I’m simply arguing that the courts properly determine what the right to “marriage” requires. To me, having one penis and one vagina is not a requirement for the right to “marry.” It may be for the OED, the statutory definition, or the definition approved by you, but it doesn’t for the definition of the right. It is no diffenent than the ruling in Lawrence, which “redefined” what the right to privacy (or sexual intimacy or personhood, or whatever word you wish to put in there) protected in the Constitution required. And, in Lawrence, they “extended” that right to homosexuals, just as I’m advocating they do so for the right to “marry.”

I regret that I do not have the time to further reply, and I’ll be unavailable for the next week or so, but I’ll check back when I get the chance.

@Shodan

As I’ve said before, I don’t believe that you don’t know what the Tenth Amendment says, and therefore citing it would make no difference.

The fact that you don’t like and cannot refute an argument does not mean that it has not been explained to you.

So much for your attempts.

snort Your delusions crack me up.

[tomndebb]

[QUOTE=Hamlet]
For the fourth time, we are not talking about the definition of a word, but of a right.
[/QUOTE]
So am I. And I already agree that same sex couple should have the right to marry as opposite sex couples, a point that I have already noted in several instances. Unfortunately, we are also talking about a word, because that is how laws are dispensed.

And the Constitution, in my opinion, protects a right to marriage.

But marriage is in law and conversation, the uniting of persons of the opposite sex until such time as you get the meaning of the word changed.

Courts do not make decisions based on vague concepts of what “ought” to be the case. The significant criticsim of Roe v. Wade has always been, not that abortion is wrong, but that the court jumped through hoops in a separate case to find a right to privacy and then took that newly “discovered” right to privacy and fitted it to Roe. Even legal scholars who agree that Roe arrived at the right decision admit that the court had to juggle words to get to their opinion.

Claiming that there is an absolute right and that the court simply “must” agree to it will get you nowhere in the courts of the U.S. That is why Loving fails to establish the grounds on which you wish the SCOTUS to throw open the door to same sex marriage. Loving established the right to marriage, but marriage is, in U.S. law, the right of a man and a woman to unite in law.

The court of Hawaii found that prohibitions against same sex marriage might violate rights secured in the Hawaiian Constitution, at which point the voters amended their Constitution to slam shut that door.
An Alaska court ruled in the same way, based on the Alaskan Constitution, and the voters of Alaska leapt to slam shut that door as well.

The court of Massachusetts found that denial of same sex marriage violated provisions of that state’s Constitution and changed the definition of the word for that state.

Marriage, as Shodan will remind you endlessly, is not defined in the the Constitution, and it needs to be interpreted to determine what the right to “marriage” is. Just as vague concepts like “liberty”, “due process”, or the right to “privacy” need to be defined in a constitutional sense. Of course, you could simply say the right to marriage is only as it is defined in OED, or you could actually go further and determine what the right to marry entails. And nothing in the Constitution, in what marriage actually is or does, or in the rights, priviledges, benefits, or responsibilities the law recognizes in marriage requires that one member have a penis and one have a vagina.

Unfortunately for your position, marriage in the U.S. is defined. It does not appear in the Constitution because there was no need. It appears in so much Common Law and case law as to not need separate defining within the Constitution. It is that Common Law and case law that must be overturned in order to provide a new definition for marriage or the rights of marriage. Despite your desire that there is no clear definition of marriage, your desire is not supported by the actual history of Law in Britain and the U.S. Can you point to any instance of Law prior to 1993 (Hawaii) in which marrige was not clearly identified in either Common Law or case law as the union of a man and a woman? Black’s Law Dictionary did not make up the definition they provided. They took that definition from several hundred years of legislation and case law: “legal union of a man and woman as husband and wife.” (If there was really any ambiguity about the meaning of the word, do you not think that the Massachusetts Supreme Court would not have leapt at the chance to cite it?)

I am not arguing against some generic right for any two (or more) people to unite in law. I support that right. I am pointing out that specific laws must be enforced or abrogated based on the interpretation of the words in those laws. That is simply how law in a Constitutional Democracy works. Appeals to some vague “responsibility” of the courts to ensure “fairness” are admirable (or would be if we had an all-perfect judiciary), but the reality is that courts are bound to interpret laws as written in accordance with established precedent or specific facts.
(And, frankly, as irritating as that is, in this case, you should probably be grateful for that, otherwise, swept by popular demand to “purify” the country, we could see a court rule that homosexuals were not legitimate citizens and place a ban on that whole population. Don’t believe me? Ask the victims of Executive Order 9066 and SCOTUS decision Korematsu v. United States. And before any twit deliberately misinterprets that statement to mean that homosexuals should be glad that they are tolerated, note that I am only supporting the process of law against the whims of judicial actions prompted by mob popularity. In my view, the courts did do (what they perceived to be) the “fair” thing in supporting the displacement and internment of an entire population baced on ethnic background. And by not following the actual wording of the laws and Constitution, they inflicted a grievous harm on the Constitution along with over 20,000 persons. As irritating as it is to wait for laws to be decided according to legislation, precedent, and language, that is still preferable to having courts wander out to impose “fairness” without relying on the actual law as written and adjudicated. I agree that persons of the same sex should have the right to marry; I am only pointing out that that right does not exist in the U.S. Constitution at this time.)

[Homebrew]

[QUOTE=tomndebb]
From Goodridge:
In other words, the court recognizes that the statute does not have to separately define the word “marriage” because it has a clear meaning in law and daily usage. Then the court moves on to say:bolding mine: They have explicitly changed the meaning..
[/QUOTE]

I’m not sure what point (or why) you’re trying to argue with my post Your quoted text confirms what I said. The court recognized that despite the common and historical usage, the principles of equality demanded that the right to marry should be extended to homosexuals. Again, this recognizes that opposite-sex partners is not an essential and intrinsic part of marriage, despite it being treated that way throughout history. I’m puzzled by how adamant you are arguing that marriage for same-sex couples is different than for straight couples and requires a reworking of definition rather than the normal evolution that it is going through.

[tomndebb]

[QUOTE=Homebrew]
The court recognized that despite the common and historical usage, the principles of equality demanded that the right to marry should be extended to homosexuals. Again, this recognizes that opposite-sex partners is not an essential and intrinsic part of marriage, despite it being treated that way throughout history.
[/QUOTE]
No. They decided that under Massachusetts law the definition of marriage should change. This means that there is no burden on any other jurisdiction (which has Constitutional language different than that of Massachusetts) to change their definition of marriage.

It will be nice if some large number of other states’ supreme courts find similar language in their state constitutions so that they also determine to redefine marriage in those states.

Unfortuantely, it places no such burden on states where similar language does not exist or where the voters have already changed the constitution to pre-empt (or, in HI and AK, overturn) such court decisions. It also places no burden on the U.S. Supreme Court where no such language appears in the Constitution.