I wasn’t trying to make a one-sided argument. Obviously, this would work both ways, and no, I wouldn’t accept lesbian-only SSM. I see your point: it’s not discrimination because each sex has equal restrictions in the selection of marriage partners. And, of course, the state does have a vested interest in restricting the pool of partners, because of incest. I withdraw my argument.
Nevertheless, those marriages will be recognized at the Federal level.
Black people and white people were equally forbidden from marrying each other under the Virginia statute that was challenged in Loving. In fact, that was the government’s primary defense. That didn’t mean it wasn’t an equal protection violation.
Assuming everything aside from your marital status isn’t that complicated (i.e. your income, deductions, etc. are all straight-forward), have any of the tax software programs accounted for SSM, and the various filings that might need to take place as a result?
TurboTax has a page discussing the issue. Basically they say that you can use their software to test the various scenarios, and to create “dummy” returns that may be necessary in certain cases.
Which will come in handy now that the federal government will recognizethe marriages which happened during the December Thaw.
But this is what I am talking about by question begging. Are the two scenarios the same? They appear to be the same, but looking at the facts shows that they are not.
In Loving, everyone knew that this “it denies whites as well as blacks the freedom to intermarry” argument was horseshit. Virginia had a racial purity/eugenics law from the 1920s which showed that the purpose of the law was to keep the “purity” of the white race. It was abundantly clear that that the law was simple hostile to minority races by preventing them from spreading their seed into the “pure” white race.
Second, it was a distinction based upon race. This is covered under strict scrutiny which is “strict in theory but fatal in fact.” The entire purpose of the 14th amendment was to eliminate racial distinctions and one would be hard pressed to find any legitimate racial classification in law.
SSM as applied to gender (biological gender) is wholly different from the Loving analysis. The law does not place a badge of dishonor on men or upon women. To the extent that there is animus in the law it only applies to those men or women who would like to marry someone of their own gender, which is just another way of saying “sexual orientation.” It is not, like the law in Loving, saying that we don’t want to “defile the male gender” by having the inferior female genes mixing (or vice versa).
Nor is a gender distinction “fatal in fact.” The intermediate scrutiny standard was developed to allow for the biological differences between the sexes. Mens and Women’s restrooms in public places aren’t decried as Jim Crow type segregation for this very reason: a realization that biological differences between the sexes would require separate restroom facilities is perfectly acceptable.
Therefore, to the extent that a state would want marriage to be funneled into those relationships that are facially capable of procreation, biological differences between genders are the sine qua non of procreation.
So, in short, I contend that while the Loving analysis is tempting to apply to gender and SSM, a short summary of the facts of each show that they are wholly unrelated.
Not really, separate facilites are a social construct, there’s no biological need for them.
I think it is both. Like how at stadiums there are giant urinal troughs in the men’s room. I suppose you could make the setup gender neutral absent social constraints by having two unisex bathrooms with smaller urinal troughs in each room, but it is more efficient to steer the men into one of the rooms with a giant urinal trough. This setup is based on biology.
Filtered through culture. There is no need for a urinal trough; does your house even have a urinal, trough or otherwise? The facilities that women use could be used equally by men.
The idea that we need privacy to poo, or that we shouldn’t see someone’s penis while they are urinating unless we also have a penis (and even then, don’t look), that’s all cultural. I’m not saying it’s unreasonable or anything, but there’s nothing in biology that makes separate restrooms necessary or even more efficient.
Only on the SDMB do we get into such topics. 
I don’t want to hijack the thread, but just some brief points:
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No my house doesn’t have a urinal because home restrooms serve far fewer people than public restrooms, and are not designed for maximum traffic flow.
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A large percentage of the public is male and only needs to urinate.
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Those members of the public covered under point #2 require less space and less exotic toiletry appliances than the rest of the public.
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It is more efficient (cultural norms aside) to funnel point #2 members of the public into a separate, dedicated area containing these lesser spaces and minimal toiletry appliances.
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Instead of having an attendant passing out a questionnaire asking each patron whether they are a) male and b) only need to urinate, and assigning restrooms based upon the questionnaire, a more efficient method would be to simply segregate by gender.
Segregation of restrooms by gender is more efficient. QED.
So back to the topic at hand. Under what authority do the feds recognize these marriages? Windsor stood for the proposition that the feds must recognize marriage according to state law.
These marriages are invalid under state law, yet the federal government’s position is that they are valid. Under who’s authority and under what authority are these couples legally married? Not Utah law. Not under Judge Shelby’s decision because that was stayed pending appeal. There is no federal marriage law.
If I marry my sister in Utah or any other state, will the feds recognize it? Will they consider it? What process is used?
I’m at a loss to see how these marriages are valid. (Again, under current law, not what “should” be done.)
Do you have a sister? Are you in any state? If so, I see a test case looming.
Not at all, segregated bathrooms require more square footage and more expense to construct for the same number of receptacles.
My college dorm floor, which by random chance had far more women than men, voted to have one women’s restroom and one coed restroom. Under the particular circumstances, that was the most efficient arrangement. No biology was involved. After spending a year sharing a restroom (including individual stall shower facilities) with men (the coed restroom was closer to my dorm room, and also less crowded), I find it very hard to care about whether restrooms are separated by gender.
Of course I find it even harder to care about preventing people from marrying based on their gender.
The underlying purpose of the enactment was significant at the time of Loving. Today, at least for elevated scrutiny purposes, it’s not. Remember, equal protection/fundamental rights analysis doesn’t care about the actual legislative purpose; it cares about whatever plausible legislative purpose the government’s attorneys throw out. It’s also worth noting that Loving invalidated all restrictions on miscegenation, not only those which limited white people from intermarrying. Anyway, the idea that strict scrutiny is “fatal in fact” is a myth. That was true at the time of Korematsu and it’s true today:
The full article is fascinating; I’ll email you a copy if you like (assuming you no longer have free WL access.) It found that about 25% of strict scrutiny challenges fail.
I think you’ll be hard pressed to find anyone who thinks the argument that gays can marry people of the opposite gender isn’t horseshit. Only the most hardcore “orientation is a choice” people would make that claim.
It’s true that intermediate scrutiny is a lower bar than strict scrutiny, but it’s still rather unlikely that any state can put forward a basis that will meet that standard.
They’re not invalid under state law. They’re “on hold” under state law. Anyway, the important thing is that they were valid at the time they were contracted, which is generally the test for the validity of an extrajurisdictional marriage. The stay prevents future marriages.
A Federal judge in Oklahoma (also in the 10th) just declared that Oklahoma’s law against SSM is unconstitutional. He stayed his ruling.
On my phone so can’t supply a link.
As Judge Kern shows in his ruling in Oklahoma, (his ruling is linked here) the state does not have a rational basis for the law, and the law in Oklahoma, as well as the constitutional amendment in Utah, was passed to discriminate against one group of people without providing a rational reason.
The procreation argument fails. No state has a requirement that everyone who wants to get married be able and willing to have children. You can’t prohibit one group (gays) who can’t naturally procreate without prohibiting others. SCOTUS thinks that’s a big no no.
Kern goes though a number of the arguments which attempt to show a rational basis, and doesn’t find any meaningful.
That’s not really how rational basis review works.