You mean the Fifth Amendment. Even so, assuming the Court applies heightened scrutiny (whether because orientation is an immutable characteristic or because marriage is a fundamental right), what important (much less compelling) government interest does DOMA serve? Hell what legitimate interest does it serve?
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Because marriage between a man and woman has societal value, mainly to produce and raise children.
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What evidence is there that marriage between one man and one woman is the best institution for conceiving and raising children?
We have had this debate before, and been unable to convince each other of our own positions. But for the sake of third parties (and because you, Bricker, are not a stubborn ideologue totally immune to reason):
Article IV, Section One places an affirmative duty on the states to extend full faith and credit to the public acts, etc., of other states. If you were adopted in Utah, you remain adopted while in Florida; if divorced by Arizona law, your former marriage is null under New Hampshire law. If you bought a 2% interest in California in a company doing business in all 50 states, you own 2% of that company in every state. And so on.
The “public policy exception” is not a part of the constitutional text. While I may agree with you it ought to be, in point of fact it is not. Mr. Justice Douglas coined a couple of terms for reasonable inferences not borne out in the text such as this.
The sole powers given Congress in this Section are (a) to prescribe a uniform way in which a party to a legal proceeding may prove to the satisfaction of the forum state that his/her assertion of a sovereign act relevant to his case taken by another state is in fact valid; and (b) the effect of providing that proof.
Taken in company with the Equal Protection Clause of Amendment XIV, the effect is to say that a legally recognized state of being entered into in one state is to be treated by the other states in the same manner in which they treat such states of being entered into by their own laws.
Nothing in the text or in any reasonable inference gives Congress the power to nullify the state’s constitutional duty to give full faith and credit to the laws and other acts of other states, nor to give it nor to enable it to give the several states the privilege of cherry-picking what acts of other states it will recognize.
I can’t find any credible study that supports either position. It would appear that those that do support your position are suspect. (And I have not looked very hard) So the only evidence I have is reasonable supposition and history. It seems perfectly reasonable as a general rule to me that a child is best raised with/by his/her biological parents.That is why we have divorce laws, adoption laws, etc., to encourage this. This one single law or proposal would be in line with those others.
But the other side of the coin is that the Constitution could not have intended that any one state could craft a marriage law that other states would have to recognize. No one ratifiying the Constitution would have believed that, if Georgia were crazy enough to legalize a father marrying his daughter, that Massachusetts was obliged to recognize that marriage.
So if you don’t object to penumbras, the public policy exception exists. And if you do, the plain text says that Congress may define the effects of such records – one such “effect” being that they are unrecognized.
Under Romer rational basis (i.e., with teeth) it fails, too, I think, because the key distinction is that in Romer, the onus seems to be on the government for articulating their interest; under traditional rational basis, the court is free to imagine any motive and reason the government might have had.
In the same manner in which sterile heterosexual couples desirous of having children do so. These include but are not limited to:
[ul]
[li]artificial insemination, perhaps involving a sperm donor;[/li][li]in vitro fertilization, perhaps involving egg and/or sperm donors;[/li][li]contracting with a host mother to undergo the pregnancy;[/li][li]“Levirate adultery,” in which a fertile near relative of the relevant parent aids in the conception, either by copulation or any of the means above;[/li][li]adoption;[/li][li]foster parenting.[/li][/ul]
You make a completely understandable error here. Similarly to the privilege of driving a motor vehicle, parents do not have the right to raise their child, but the privilege of doing so. It is the presumption of the law that a loving bio-parent is the best parent for a child, but like the presumptios of innocence in a criminal trial and of constitutionality of a law brought before the Federal courts, that presumption is the starting point, with the onus on the plaintiff to rebuff it, not the conclusion to which the court is enxorably driven. There are metrics which a court uses to determine if an adult will likely be/is/has been a good parent for a child.
Presuming for the sake of argument that this be the case, why then do people such as yourself put roadblocks and even prohibitions in the way of gay parents attempting to marry each other?
[quote=“hoopified, post:352, topic:616983”]
Any person is free to marry anyone else of the opposite sex. To take remedy that should that not be one’s desire, he/she can take steps to leave one’s estate to anyone he/she wishes.
Okay, first, your first sentence is completely false. No person is free to marry someone who (a) is already married, (b) is within the prohibited degree of consanguinity, (c) has not yet reached the age of consent, and (d) and most importantly, has not freely consented in a meeting of the minds to marry the aforementioned person, while in a state of mental capacity sufficient to give that consent.
What the law does look for is that uncoerced mutual consent I just made reference to, and if both parties agree to such a marriage and meet the other qualifications, it actively encourages such marriages and the rearing of children of which they become in custory, whether by birth, adoption, or other means.
By that logic same-sex couples should be able to marry and devote themselves assiduously to the proper rearing of any children they may have, by whatever means.
It is worth bringing into the picture here that the key holding in Romer v. Evans was that a statute, regulation, or other legal act whose sole purpose is to penalize gay people for being gay is ipso facto unconstitutional. Laws such as the Federal and state DOMAs which do not assert a legally valid ground for differentiating between all opposite-sex marriages and all same-sex marriages beyond the state’s unquestioned right to regulate marriage are on very shaky constititional ground, IMO.
My god! Children of gay parents mucht turn out open-minded!!:eek: God forbid that anyone in this country be encouraged to think for himself! :dubious:
In all of these instances, the parents are not the biological parents. That’s the dividing line.
I’m not sure where we are disagreeing here.
Because it changes the institution of marriage. The very thing, presumably, that produced the child.
Ok. Really? I will stipulate from this point forward that when I refer to one being able to marry any other he/she wishes, I am leaving out those who would be precluded by present statute.
ok.
By that logic, it would be impossible for them to marry.
I’m not a lawyer so who knows? But my first response would be this. They are not penalized in any way. They are free to marry in the same way everybody else is.
Yes, open-mindedness is the pinnacle of virtue isn’t it?
[QUOTE=hoopified]
Because it changes the institution of marriage. The very thing, presumably, that produced the child.
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Same-sex marriage does not change heterosexual marriage. That’s like saying the invention of the airplane threatened the automobile because it changed the definition of transport.
Of all of these, *only *adoption and foster parenting necessarily pair a couple with a child who is not the biological child of *either *adult. All of the others generally (in the case of “Levirate adultery,” by definition) use the gamete(s) of at least one member of the couple. This is true whether the couple is male/female, male/male, or female/female.
Do you believe that male/female couples who use these methods have poorer relationships with their children than do couples whose children are the biological product of both adults? Do you believe that male/female couples who use these methods have poorer relationships with each other than couples who have children the “old fashioned way?”
John and Jane get married. Later, same-sex marriage becomes legal. How does SSM change John and Jane’s marriage?
John and Jane have a child, Fred. Fred grows up. Same sex-marriage becomes legal. Fred marries Ethel. How does SSM cause Fred and Ethel’s marriage to differ from John and Jane’s marriage?
At any rate, I’d like to get back to this idea that children are best raised by their biological parents. Can you explain that a bit better? I’m wondering how that works, because I just don’t see any way it makes any sense. You take two couples, both of them equally loving, engaged, and capable parents, and have them raise a kid. One couple is raising their own genetic child, and the other is raising an adopted child. All else begin equal, what advantage does the first kid have over the second? Or is your claim that all else cannot be equal, that the adoptive parents are incapable of being as loving, engaged, and capable as the biological parents, due to the simple fact that they don’t share a genetic connection with their child?
As a corollary, I’m not entirely clear what this issue has to do with gay marriage in the first place. Gay couples will be bearing and raising children regardless of their marriage status. There will still be gay couples with kids from a previous hetero relationship, gay couples with kids from surrogate mothers, gay couples with kids from in vitro fertilization, gay couples with adopted kids, and on and on. Those couples will have kids regardless of whether or not they can get married. If the purpose of marriage is to help create stable environments for raising children, and gay people are going to be raising kids regardless of their ability to get married, doesn’t preventing gay people from getting married effectively harm children?
You seem to be stuck on this even though earlier you were pedantic about the definition of ‘produce’
There is no documented evidence in the history of mankind that marriage produces children. Not once ever has signing or receiving a marriage certificate impregnated a women.
Marriages do not create any biologic function that wouldn’t exist otherwise.
