# Supreme Court \[declines to hear\] same sex marriage cases.\[plus further developments (Ed.)\] **URL:** \ **Category:** Great Debates\ **Created:** [October 6, 2014, 1:50pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544 "2014-10-06T13:50:23Z")\ **Posts on this page:** 20\ **Page:** 17
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [January 26, 2015, 8:42pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/321 "2015-01-26T20:42:45Z")
> [@Bricker](#): > > I favor adoption of same-sex marriage. > > But I cannot stand it when people arguing my side of an issue do so incompetently. Incompetent is a bit strong. Appealing to tradition is not always fallacious, just as you state. The “Appeal to Tradition” is only a fallacy when it is presumed to be relevant because it is traditional, but is in fact not relevant even though it is traditional—that information was contained in the site I linked to. **Jtgain** is individually fallacious, and it was his arguments I singled out. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [January 26, 2015, 11:20pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/322 "2015-01-26T23:20:49Z")
> [@Inner\_Stickler](#): > > Sounds like a great way to justify bigotry. I was pretty [explicit in my instructions](http://boards.straightdope.com/sdmb/showthread.php?p=18081254#post18081254)regarding throwing around the term “bigotry.” This is a Warning that you need to follow instructions. [/Moderating] ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [January 26, 2015, 11:29pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/323 "2015-01-26T23:29:17Z")
I believe I did so. If I insulted anything, I insulted the concept of tradition in law. I understand if you disagree but I am not retracting my comment. ---
**Author:** ![Trepa\_Mayfield](https://avatars.discourse-cdn.com/v4/letter/t/edb3f5/32.png) [@Trepa\_Mayfield](https://boards.straightdope.com/u/Trepa_Mayfield)\ **Post date:** [January 27, 2015, 1:18am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/324 "2015-01-27T01:18:54Z")
I hear there are people who are bigots that exist. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [January 27, 2015, 1:51am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/325 "2015-01-27T01:51:25Z")
> [@Trepa\_Mayfield](#): > > I hear there are people who are bigots that exist. I am not sure why you feel the need to go out of your way just to get a Warning, but here it is. [/Moderating] ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [January 27, 2015, 2:16am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/326 "2015-01-27T02:16:18Z")
**jtgain** , help me out here. The current “states rights” approach essentially leaves couples in the position where in some states, their marriage is accepted and valid, and in others, it isn’t. That’s the very definition of a patchwork of confliction legislation, is it not? If I wanted to plan a road trip across America with my hypothetical gay hubby, I’d need to map it out avoiding quite a few states, because in those states, I am stripped of my rights, and if something happened, the consequences could be quite dire. The idea that leaving it up to the states somehow makes it better is something I simply cannot wrap my head around, because that’s what we already have. And it’s exactly the messy patchwork you claim that a federal solution (which would apply universally) would be. _What?_ ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [January 28, 2015, 12:37am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/327 "2015-01-28T00:37:46Z")
… ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [January 28, 2015, 1:26am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/328 "2015-01-28T01:26:04Z")
> [@jsgoddess](#): > > Sure. Another example is that SSI is trying to claim that they overpaid benefits for people in SSM because after Windsor SSI refused to recalculate the incomes for married SSI recipients if the marriages were same sex. Even when those recipients asked for recalculations. > > SSI: Here’s your money. > Recipients: I’m married now, so you should be calculating including my spouse’s income. > SSI: Don’t worry about it! Here’s your money. > Recipients: Okay. It was going to hurt to get that cut in payments. > SSI (a year later): We overpaid you. You’re actually married, so we should have been calculating including your spouse’s income. > Recipients: But you said it was okay! > SSI: We’ll just cut your current benefits until we’ve recouped the amount. Have a nice day! The SSA has a set of procedures available to appeal such outcomes, possibly even successfully. A record of having unsuccessfully attempted to have the award reduced by a pre-_Windsor_ SSA would go a long way toward success in preventing the recovery of what a post-_Windsor_ SSA is calculating as the overpayment. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [January 28, 2015, 1:33am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/329 "2015-01-28T01:33:01Z")
…errrmmm, make that _would_ above a _should_, please. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [January 28, 2015, 3:10am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/330 "2015-01-28T03:10:34Z")
> [@kaylasdad99](#): > > The SSA has a set of procedures available to appeal such outcomes, possibly even successfully. A record of having unsuccessfully attempted to have the award reduced by a pre-_Windsor_ SSA would go a long way toward success in preventing the recovery of what a post-_Windsor_ SSA is calculating as the overpayment. For the record, it was both a pre- and a post-Windsor SSA. There was a period after Windsor but before SSA had figured out what they were doing that they did not adjust for the now-recognized marriages, or where they were figuring out whether to use place of celebration or domicile to determine the validity of the marriage. Essentially, a clusterfuck of epic proportions! ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [January 28, 2015, 7:56am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/331 "2015-01-28T07:56:11Z")
Anyone else’s heart skip a beat every time they see this thread raise up, forgetting for a second the title means “SC denies **to hear** SSM cases”? Anyone mind if I report it for a title change to fix that? ---
**Author:** ![DinoR](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dinor/32/2821_2.png) [@DinoR](https://boards.straightdope.com/u/DinoR)\ **Post date:** [January 28, 2015, 9:14am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/332 "2015-01-28T09:14:32Z")
> [@Left\_Hand\_of\_Dorkness](#): > > While maintaining that a lot of your posts on the subject are an appeal to tradition fallacy, this is actually an interesting hypo, without an unambiguous answer (thus interesting). There’s actually started to be real cases. ISTR an article about a couple in, I think Texas. Their issue was a child not a house. The biological mother was the only legal parent in the eyes of their state of residence. The family court threw the custody case out since they weren’t married by state law. The article did say that in some cases judges in states without SSM marriage were wading in anyway but many/most were avoiding it. I don’t see that article anymore but there’s more than hypothetical stuff out there. SS divorce seems even more important to me. When you are still happy and together it’s easier to piece together agreements to work around the legal protections marriage would afford. (Although it’s costly and they may not… like no adoption by the other parent in the case above). If you get to the “fuck you” stage you \*\*really \*\*need a judge. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [January 28, 2015, 7:49pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/333 "2015-01-28T19:49:27Z")
Too bad so many Republicans at the state level are colossal jerks. It looks like the anti-SSM folks are going to try [nullification](http://www.nytimes.com/2015/01/29/us/battles-over-same-sex-marriage-roil-statehouses-ahead-of-supreme-courts-decision.html?hp&action=click&pgtype=Homepage&module=second-column-region®ion=top-news&WT.nav=top-news&_r=0) if SCOTUS doesn’t rule the way they want. Good luck with that by the way. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 29, 2015, 1:46am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/334 "2015-01-29T01:46:48Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Consider Nizkor’s second example of appeal to tradition: > > jtgain’s appeal to tradition is far more similar to this example than it is to a suggestion that wines improve in flavor as they age. He is indeed committing the fallacious version of the argument. > > To the extent that the law suggests the way things have always been done has some sort of inherent superiority to a new way, by virtue of having been done this way for a long time, the law itself partakes of this fallacy. I suppose that depends on whether the question is: (A) Does the Constitution require that states recognize and offer same-sex marriage? or (B) Is it a matter of moral right that the states offer and recognize same-sex marriage? If the discussion is more oriented towards (B), then I agree that the fallacy was present. But in my view, the issue in this thread was more like (A), inasmuch as it centered around the action the Supreme Court was going to take. Under that framework, the law is the authority by which the proposition is judged, and you cannot argue that the law itself is flawed. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [January 29, 2015, 3:06am UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/335 "2015-01-29T03:06:04Z")
> [@Bricker](#): > > I suppose that depends on whether the question is: > > (A) Does the Constitution require that states recognize and offer same-sex marriage? > > or > > (B) Is it a matter of moral right that the states offer and recognize same-sex marriage? > > If the discussion is more oriented towards (B), then I agree that the fallacy was present. > > But in my view, the issue in this thread was more like (A), inasmuch as it centered around the action the Supreme Court was going to take. Under that framework, the law is the authority by which the proposition is judged, and you cannot argue that the law itself is flawed. I’m having trouble with that last sentence–isn’t an argument that the law itself is flawed (and here I speak of the body of law as a whole, and of the flaw as part of that whole) exactly what’s being alleged before the court? The law might establish traditions that don’t need to be changed without good reason–there’s a presumption that if it’s worked so far, folks need to argue for a reason for a change. Sure. But jtgain seemed to be going further than that, when he suggested arguments such as “Opponents see the laws as prevalent since the founding and nearly absurd to say that same sex marriage is a fundamental right because of text written in 1868.” That appears to be suggesting that because laws have been around for awhile, reasons may not effectively be advanced for changing their fundamental interpretation. And that, I think, is an illogical appeal to tradition. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 29, 2015, 6:55pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/336 "2015-01-29T18:55:48Z")
> [@Kolak\_of\_Twilo](#): > > Too bad so many Republicans at the state level are colossal jerks. It looks like the anti-SSM folks are going to try [nullification](http://www.nytimes.com/2015/01/29/us/battles-over-same-sex-marriage-roil-statehouses-ahead-of-supreme-courts-decision.html?hp&action=click&pgtype=Homepage&module=second-column-region®ion=top-news&WT.nav=top-news&_r=0) if SCOTUS doesn’t rule the way they want. > Good luck with that by the way. I really hope they throw the bums in jail if they tried that. And pee in their ice cream. Or just turn them into slaves and show them how state regulations of something that should be federally mandated usually works ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 29, 2015, 7:28pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/337 "2015-01-29T19:28:01Z")
> [@Left\_Hand\_of\_Dorkness](#): > > I’m having trouble with that last sentence–isn’t an argument that the law itself is flawed (and here I speak of the body of law as a whole, and of the flaw as part of that whole) exactly what’s being alleged before the court? > > The law might establish traditions that don’t need to be changed without good reason–there’s a presumption that if it’s worked so far, folks need to argue for a reason for a change. Sure. > > But jtgain seemed to be going further than that, when he suggested arguments such as “Opponents see the laws as prevalent since the founding and nearly absurd to say that same sex marriage is a fundamental right because of text written in 1868.” That appears to be suggesting that because laws have been around for awhile, reasons may not effectively be advanced for changing their fundamental interpretation. > > And that, I think, is an illogical appeal to tradition. Reasons can certainly be advanced. But he wasn’t saying that reasons cannot be advanced – that’s your rewrite. He was saying that the particular claim that _same sex marriage is a fundamental right_ cannot be grounded on text written in 1868. This is because the term _fundamental right_ is a term of art, one which has a particular meaning in the law. A _fundamental right_, in the law, is defined as a right “deeply rooted in our nation’s history and tradition.” (See, e.g. _Moore v. City of East Cleveland_, 431 U.S. 494 (1977)). Your objection was that this represented a foray into the fallacy of appeal to tradition. It does not. It’s a correct statement of the law. Now, you may argue that the very concept of defining “fundamental right” as “deeply rooted in history” is an example of the fallacy. Go right ahead. But that wasn’t what he was saying. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 29, 2015, 7:42pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/338 "2015-01-29T19:42:57Z")
I think you’re confused, **Bricker**. **jtgain** was not using “fundamental right” as a term of art, which applies to the analysis of whether the Due Process Clause protects some unenumerated liberty as a matter of substantive due process. He was using the term colloquially to refer to a right protected by the Constitution at all, and in this case by the Equal Protection Clause. Indeed, the comment about appeal to tradition wasn’t about **jtgain** ’s legal analysis at all. It was in reference to his argument that there will be a lot of untangling to do when a change like this happens. I don’t think that’s an appeal to tradition, exactly, as much as it is a silly reason to oppose change. All social change involves addressing new situations. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 29, 2015, 7:51pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/339 "2015-01-29T19:51:37Z")
> [@Richard\_Parker](#): > > I think you’re confused, **Bricker**. > > **jtgain** was not using “fundamental right” as a term of art, which applies to the analysis of whether the Due Process Clause protects some unenumerated liberty as a matter of substantive due process. He was using the term colloquially to refer to a right protected by the Constitution at all, and in this case by the Equal Protection Clause. If so, then I’m wrong. I still don’t think I am, though, and I’ll eagerly await **jtgain** ’s clarification. If he was speaking colloquially, then you’re absolutely correct. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 29, 2015, 8:07pm UTC](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544/340 "2015-01-29T20:07:29Z")
I don’t see why it’s necessary for **jtgain** to clarify. The claim about an appeal to tradition was not about **jtgain’s** legal arguments. [Here](http://boards.straightdope.com/sdmb/showpost.php?p=18081112&postcount=301) was the first reference to the logical fallacy: > [@Dr. Drake](#): > > > [@jtgain](#): > > > > It’s not just substituting “two persons” for “bride and groom.” There will be many things to sort out over the coming years. > > True. So best to start getting things sorted now, rather than let the confusing patchwork of contradictory status quos continue. > > Are you familiar with the logical fallacy Appeal to tradition? Because most of your argument seems to come down to it. And his mention of the phrase “fundamental right” was expressly about an equal protection challenge, see [here](http://boards.straightdope.com/sdmb/showpost.php?p=17910379&postcount=273): > [@jtgain](#): > > It is simply a matter of one’s own judicial philosophy about the limits of the **scope of the 14th amendment regarding who is a protected class**. Supporters see these laws as nothing but discrimination, no different than bans on miscegenation. Opponents see the laws as prevalent since the founding and nearly absurd to say that same sex marriage is a fundamental right because of text written in 1868. Neither side will change.(emphasis added) I’m not sure any of this meets the definition of the logical fallacy, but it also clearly has nothing to do with substantive due process doctrine. And even if it did, it would be incorrect analysis to ask whether the substantive due process clause protects marriage for gay people–the proper question is whether the substantive due process clause’s protection of marriage applies to gay people, just like it applies to all races. [Previous page](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544.md?page=16) [Next page](https://boards.straightdope.com/t/supreme-court-declines-to-hear-same-sex-marriage-cases-plus-further-developments-ed/700544.md?page=18)