Elvis, I have read the entire thread, and I did say (please re-read my message) that it’s “since he didn’t come right out and say to you [that same-sex marriage is not marriage]” you did not make an explicit statement defending the point that it is. Nonetheless, it’s pretty clear from his messages that he’s trying to say it without saying it explicitly, and unless the two of you engage each other on that issue directly, the argument will just continue to be a ping-pong match.
There is not.
The Fourteenth guarantees the equal protection of law to all citizens. There is no law establishing SSM. Ergo, the Fourteenth Amendment does not establish the right to SSM. QED.
I have addressed it a dozen times. The fact that you don’t like the undoubted fact that no right to SSM has been established does not mean that it is not the case.
The courts do not have the power to establish new rights. SSM is a new right. The courts do not have the power to establish SSM.
The whole problem is based on this silly crap -
What the SSM proponents need to do is to establish their definition of “marriage” by fiat. They can point to no Supreme Court decision, nor any action by the states or the people, where this definition has been accepted. Therefore they are attempting to establish it, as I said, by sheer repetition.
It is emphatically not up to me or anyone else to show why SSM is not already included in the definition of “marriage”. It is up to you to show that it is, by some action of the states or the people.
So far, nothing. Every single instance of some kind of cite coming from the SSM folks is in the form of some court decision that does not address the issue. The courts cannot establish this new right. I’ve explained that a dozen times. The Tenth Amendment does not give the courts that power. Neither does the Ninth, so you can save that as well, nor the Fourteenth.
Now it is up to you. Show, in some way, that the states or the people wish to recognize this new right, or to change the current definition of marriage (which has existed since time immemorial, or at least since the founding of the Republic) to include it. If I need to repeat it again, I will - the courts do not have the power to do this.
It is not under the Fourteenth. “Interpreting” the Fourteenth Amendment to create a new right is not a legitimate function of the courts. It is not under the Ninth - the Ninth merely makes it clear that there can be other, un-enumerated rights. And the Tenth goes on to show exactly how those other rights are to be established.
Don’t give me this crap about how I am not addressing this point. The point is wrong - no interpretation of the Fourteenth Amendment that establishes a new right is legitimate. That is made explicitly clear by the Tenth Amendment.
And no amount of repetition and question-begging is going to change that.
Regards,
Shodan
If that’s what he means he’s capable of saying so directly. If he won’t *make * an argument, it needn’t be “defended against”, capisce? You’re not a mindreader, and you’re still not helping.
Shodan, I grow tired of trying to explain to you that *equal protection * is the right in question. If you wish to keep repeating that the argument being made to you is a simple assertion that “SSM is a right”, you may - but by now you have no excuse not to know better.
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.
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. Laws that prohibit the rights of the two men or two women to participate in the legal rights and responsibilities of that institution are discrimnatory and should be struck down under the priciple of equal protection.l
In the hope that the nonsense about marriage not being a right, here’s the plain text from the Loving decision:
There’s the law of the land, folks. Marriage is a right.
There were, interestingly, some actual purported legitimate state interests against miscegenation described:
Even that type of claim does not exist in the case of single-sex marriage. There simply are no state interests against it that anyone has articulated.
Here’s the Loving version of the restrictive stratocaster argument:
The Court drove *that * type of argument off with a cattle prod, too.
Correct. Marriage is a right.
However, the word marriage, as applied to the Loving decision and probably every law in the history of the United States and the fifty separate states and English Common Law that preceded it meant the legal union of persons of the opposite sex. That is what the word meant. Appealing to the right of every human to engage in a heterosexual union does not magically change into a right of persons of the same sex to unite in law simply by wishing that would happen.
I support Same Sex Marriage. I think that recognizing same sex unions under the word “marriage” is the best and most efficient way to normalize and legalize those relationships. Any effort to promote “civil unions” will doom the country to fifty years, or more, of lawyers parsing every law and legal precedent where the word “marriage” appears to see whether, (depending on which way they are pleading their case), the phrase “civil union” was actually meant in the case or law where the word “marriage” was discovered.
However, words have meanings and the meaning of “marriage” up until the late 1980s (as nearly as I can determine), always meant the union of male and female. You can change the number, the race, the age, and a dozen other aspects of the male and female partners, but there is no question that the word denoted (not connoted) a union of persons of opposite sex.
If you wish to change the laws or the ways in which they are interpreted in this country, you will need to make an overt change to the definition. Appealing to Loving does not get you where you need to go, because it did not assert a right of persons to engage in long-term monogamous (or even ploygamous) relationships confirmed by law. It asserts a right to every person to engage in a specific act, marriage, an act that is defined among a majority of people, today, and was certainly defined by every justice sitting in 1967 as a relationship between persons of different sexes.
However, as I noted above in post #118, in many of those contexts the word “marriage” also meant some other things that we no longer believe it means. For example, sometimes it meant the absorption of the wife’s entire legal identity into that of the husband (coverture). And sometimes it meant a legal union of two people one of whom was already legally united to one or more other spouses.
If we’re going to say that the courts have to define constitutionally-protected marriage rights according to what the word marriage used to mean, then ISTM that that would require us to constitutionally protect, for example, coverture and bigamy. If we’re not going to say that, then I don’t see the point of appealing to arguments about the universally-accepted “meaning of marriage” as it existed before the late 1980’s.
Not to be trite, but … cite? You can claim it’s inherent in the wording, but I just don’t see it, there or anywhere else.
Prior to a series of things starting in the mid-19th century, marriage between the races was thought to be no more valid than marriage between species, for that matter. But the meaning of marriage changed, as understanding of race evolved, to the point where the Loving ruling became obviously correct in 1967 although it would have just as obviously wrong barely a century earlier.
Recently we’ve seen considerable evolution of our understanding of sexuality. Is it really ridiculous to consider that our definition of marriage has not similarly evolved already?
You’re better than that, tom. It isn’t “magic” 
, progress is a matter of hard work, debate, facts, reasoning, enlightenment, one person at a time. You know, the sort of thing this forum does, and what we’re using it for right now.
Not if those laws are written in such a way as to define them as equal under the law to straight marriage except for bestowal of the simple name, as these proposals all in fact seem to do. That’s actually a good thing, since it suggests that the anti-discrimination argument has already been widely accepted.
It did note a previous change in definition of marriage, suggesting as it should that further changes are possible. It has value in debate as well, however much value it may have as legal precedent, in that it illuminates that opposition to SSM is based only on discrimination - although it would be much easier to get that point across if there were, in fact, any other arguments being made for it, instead of procedural ones or simple assertions of its unacceptability, often Bible-based. There actually *were * arguments against miscegenation, respectable ones at the time as well, however outrageous they now seem. Loving helps illuminate the nature of the anti-SSM position in that way, as well.
That makes the third time in 1 post you’ve made that flat assertion, although 1 would have sufficed. Again, cite?
This is nearly identical to the many arguments to limit Constitutional rights to those you don’t want to have them. Pre-Loving, the right to marry did not include the right to marry interracially. Pre-Lawrence, the right to sexual intimacy did not include the right to sodomy by homosexuals. By defining the right in such a limited way, you’re free to continue to discriminate against those you don’t like. It’s a tried and true method. Fortunately, it’s also baloney.
In the Goodridge decision, the court went on at length about what marriage, to the State, is. Civil marriage, and it’s intertwined rights, benefits, and responsibilites, has nothing to do with the gender of its members. You are absolutely correct that, traditionally, the definition of marriage has excluded same sex partners, but civil marriage, at its heart, has nothing to do with whether it is a man and a woman or a man and a man. And, luckily, tradition is not a very good reason (not even rational basis) for defining the right in such a limited fashion. The gender of the person you are marrying has absolutely nothing to do with a civil marriage.
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. Sidebars such as Kimstu’s appeal to coverture or to polygamy do not change the inherent meaning of the word. Polygamy is quite consistent with the definition I have noted as, in multiple spousal arrangements, the persons of the same sex were never considered married to each other, but only connected by a relationship with a person of the opposite sex. Coverture was never an inherent meaning of the word, only the specific applcation of the law in a particular place and time.
My point is not that same sex marriage is wrong–I support it. My point is that appeals to the 14th Amendment or Loving fail to do the job you want them to do because they rely on a word that has a specific definition in English that goes back hundreds of years and that has only been offered for change in the last 15 years–a suggestion that has met with consideral resistance and which is clearly subsequent to either the 14th Amendment or the Loving decision.
You need to actively change the meaning of the word–preferably in law–because appeals to words written at a separate time will be dismissed, outright.
It’s already undergoing that change and it’s an evolution that’s occuring naturally in society. It’s not being “actively changed” but the natural process of language adapting to modern notions.
And after it has completed (in several as-yet-to-be-experienced years), you are still faced with the problem that the laws and court decisions upon which several contributors to this thread are relying were written years before that shift in language, meaning that you will not be able to assert to the courts that the original decisions must be “updated” based on recent language changes.
Look, I’m really not arguing against SSM. I am simply trying to point out that several of the arguments advanced in this thread, asserting that SSM must be already legal based on previous actions are seriously flawed. It is going to take an active effort (which, I agree, is under way) to accomplish the goals set forth. Clearly, the current situation would now (IMO) be more just, ultimately, if the the various laws written regarding marriage, or the courts in deciding cases such as Loving, had used language that had been more clearly neutral (or, failing that, at least more ambiguous) regarding the sex of participants in a committed union. Unfortunately, they did not; they used the common term, marriage, that has no history older than the late 1980s of indicating any action other than the union of male and female.
Okay, Elvis, take a deep breath. I am NOT disagreeing with this. In fact, it’s the basis of the assertion I made.
There is no equal protection issue that requires an overriding state interest for a law that states that all people–every single one–is free to marry a consenting adult of the opposite sex, and prohibited from marrying a consenting adult of the same sex. Equal protection does not demand that all people everywhere must have their personal inclinations satisfied by the law. It just doesn’t.
This is a straw man. No one is arguing that equal protection is not guaranteed. The argument is that what you’re suggesting is NOT equal protection, as defined in the Constitution. It may well be a Utopian ideal. But it’s not there, you know, in the actual text of the document. And I ask you to point out where in the Constitution it is guaranteed, if you disagree.
I guess I’m such a silly.
When you get the chance to respond to my prior post, could you also answer what it is, outside of tradition, that limits the definition of marriage to one man and one women? Is there, in your view, something in the legal structures that are inherent in marriage, that require the term to only apply to one man and one woman? To me, what a “civil marriage” actually is, outside of it’s traditional definition, has absolutely nothing to do with having only opposite genders involved. And, again to me, tradition is an insufficient reason for limiting the right.
You boldly assert such, Tom~; but surely you’ve heard of the work of John Boswell who makes a strong case that you’re wrong.
This is, I think, where everybody is falling flat on the attempt to dialogue.
Try this: If all blacks and all whites are entitled to a college education at a segregated state college, but the white school is funded at six times the rate-per-student of the black school, the supposed equality fails. (Granted, segregated “separate but equal” schools are invalidated by Brown v. Board of Education and related cases.) Even though there is formal equality, there is a discriminatory function on a basis not founded in a justifiable classification.
In the Tuskegee case, SCOTUS invalidated an annexation/abandonment scheme in which the City of Tuskegee performed the totally constitutional act of annexing neighboring land and abandoning some land to the surrounding county. The reason was that the annexation and abandonment were done on a racially discriminatory basis.
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.
Likewise, advocates of the Equal Protection argument for the recognition of same-sex marriage suggest that if a given group is permitted to marry the willing spouse of their choice, but a definable second group is forbidden from doing so, a discriminatory act is being worked. And this is so regardless of whether the law is putatively treating them equally on its face.
I will grant that Earl Warren did not have a gay couple in mind when he wrote that dictum into Loving. He was speaking of man/woman marriage, no doubt. But as with many other cases, the principle extends beyond what someone may have had in mind. James Madison did not conceive of the Internet, but the principles he enshrined in the Bill of Rights apply to it.
If “marriage” includes that state in which two persons of the same sex covenant to live together as spouses, create a family, perhaps raise children, intending to convey to each other the rights of a spouse in a marriage, then it’s included in the right to marry which Warren pronounced. I can fully understand why people might argue to the contrary, but that for me is the bottom line. The intent and function of the contractual act is identical. What upsets people is the sex that they conceive to accompany it.
Nothing in the legal structure requires heterosexual marriage EXCEPT that the word marriage has had a specific meaning throughout the history of the English language. The word marriage has never meant anything other than heterosexual union in law in the United States prior to the Massachusetts ruling–which was based on a separate statement in the Massachusetts Constitution, not based on a redefinition of the word marriage–that occurred in the decision; the decision did not depend on it.
From the OED, (leaving out references to rituals, splicing ropes, or joining philosophies, etc.):
marriage:
marry:
Note that each definition includes a reference to “husband” and “wife” or “man” and “wife.” The manner in which the OED is organized means that those words are essential to the definition, regardless whether they appear in every clause. If there was a separate meaning, it would be given a separate numbered entry in the dictionary. Your personal desire to treat the language as simply hidebound tradition will fail to persuade the courts that your case is legitimate.
I am willing to have the definition of marriage changed, but it has not changed, yet.
Note what happened in Goodbridge in Massachusetts:
The court made no claim that the word had changed in meaning:
bolding mine
But they also state
In other words, the Massachusetts Court recognized exactly the same point that I am making regarding the language. However, they asserted that the Massachusetts Constitution that is “more protective of individual liberty” required a re-evaluation of the situation. This they agreed to do:
In other words, based on a specific section of the Massachusetts Constitution that is “more protective of individual liberty” than the federal Constitution, they agreed to change the definition of marriage in the state of Massachusetts.
Therefore, you need to either get Congress and the states to change their definitions of marriage or you need to persuade the Supreme Court that the Federal Constitution is not “more protective of individual liberty” than that of Massachusetts and further persuade them to change the definition of marriage.
He makes no such strong case that the word marriage in the English language has ever meant anything other than heterosexual union. He makes a strong case that in different societies at different times people have recognized unions other than monogamous heterosexual unions. However, those unions in other times and places were not enshrined in English Common Law, not mentioned in the U.S. Constitution, not legislated by the Congress or the legislatures of the several states, and never included in case law in the United States.
Actually, I am not sure what you guys think the intent of your argument may be. If the Congress came out with a bill that “marriage will now consist of any permanent union between consenting adults” (with or without exclusions for consanguinity, number, or whatever), I would lobby my legislators to vote for it.
My point is not that it is a bad idea; my point is that you are simply sitting outside chanting “We’re right” while the legislatures and courts (and voters in referenda) all ignore you. I am not sure what you get out of asserting that things are “really” the way you say they are. It seems a bit defeatist, to me. If the law already supports your position, then there is nothing to be done, you have the law on your side, and those of us who think we need to change the law can go home and use our energies on more productive tasks. On the other hand, if the law does not support your position, then we need to conceive a strategy to persuade the country at large to change its view.
Hmm. I would see this as analogous to laws that permitted SSM and traditional marriage, but afforded the traditional spouses “greater” rights. That would not be equal protection under the law.
Well, this is where we continue to diverge. If I am legally permitted my vice of choice (cigars), but you are denied yours (smoking crack), there is not an equal protection argument. The argument can’t be framed in terms of the multitude of personal inclinations that exist. So long as both you and I can smoke cigars, and neither of us can smoke crack, there is no equal protection violation, it seems to me. Any attempt to elevate that protection to guard all possible manifestations of any category of satisfaction a law might be said to provide is, well, impossible.
This “upset” may well be founded on unseemly motives. But so long as they apply equally to all citizens, I think that is the best the 14th amendment can do for us.
Perhaps I’m being too esoteric when I talk about the definition of marriage. What I am talking about, and what I am asking about your view of, is the definition of marriage as a right, and not the statutory or regular use definitions. As I discussed with John Mace before, it’s much simpler to refer to a fundamental right to marry, than to refer to a fundamental right to the consolidation of the innumerable rights, benefits, powers, and responsibilities that are intricately tied to civil marriage.
Again, I’m talking about determining what is the extent of the fundamental right to “marry”, as mentioned in Loving and Zablocki, not the OED definition. For the purposes of determining what the constitution covers as a fundamental right, I look to more than the simple dictionary definitions. It is akin to the right to vote or the right to privacy. The right to vote goes beyond simply being allowed to show up to the ballot box and put in your vote, and have it counted. It extends to protect the value of the vote, to avoid gerrymandering or under-representation. The right to privacy, also, has to be defined beyond what the OED or statutes say.
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.
I don’t understand how you reached that conclusion. They specifically said that SCOTUS did not rule on the issue of same sex marriage.
I don’t get this either. It seemed to me that they were saying that the decision in Lawrence set the groundwork for their analysis.
They agreed that the definition of marriage, what is really at the heart of a civil marriage, did not require the partners be of opposite genders. In doing so, they focused on what is critical to “marriage”, and it wasn’t that one person had a penis and the other a vagina.
Once again, what is going on, and what I am discussing, is finding out the definition/limits of the right to marry that was discussed in Loving and Zablocki. What makes a marriage, in the civil realm, is not the genitalia of the partners, but rather the benefits, powers, rights, and responsibilites that accrue when one gets licensed. Which is why I asked you repeatedly why, outside of tradition, a “marriage” as a right needs to be between a man and a woman.
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.
Oh I agree. I’d love it if the voters, legislatures, and every single judge agreed with me and saw the ban on same sex marriage as nothing more than bigoted distaste of those who are not like them. Unfortunately, our history is replete with examples of the majority denying rights that they themselves enjoy to others that they dislike. Luckily, there is a judiciary in place to protect the minority. And they can do so without being labeled judicial activists, or accused of changing the law. 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.