Supreme Court question

[s_bushido]

So, given the recent ruling in Louisiana (re: same sex marriage), what would be the recourse if a case like that finally went to the supreme court and a state's ability to ban same sex marriage was upheld? Many people (myself included) seem to take for granted that if the SCOTUS does finally grow a pair and hear a case about this, that they would of course rule in favor of LGBT rights...but would there be anything that could be done if they didn't? Would people just have to keep challenging those laws until a case was heard again?

[Nilinor]

I think the SCOTUS won't listen to the case mostly because it is up to the states elected officials to come up with laws for or against this. From what I understand about the constitution, there is nothing written in there for or against this kind of marriage, so it would be on state officials to try to do it. Its the same reason SCOTUS doesn't listen to the people that are AGAINST it, there is really nothing written in law currently on the national level that dictates whether it is or isn't ok for it. If a state wants it, it will make it legal, if the state doesn't it will make it illegal, simple as that, and then if either passes, later on it can be repealed if enough people want it :P

[s_bushido]

I don't know about that. Pulling this out of my ass, but: I just have a feeling they don't want to be the next court to hand down a Plessy v. Ferguson -esque ruling.

[Zoranon]

So, given the recent ruling in Louisiana (re: same sex marriage), what would be the recourse if a case like that finally went to the supreme court and a state's ability to ban same sex marriage was upheld? Many people (myself included) seem to take for granted that if the SCOTUS does finally grow a pair and hear a case about this, that they would of course rule in favor of LGBT rights...but would there be anything that could be done if they didn't? Would people just have to keep challenging those laws until a case was heard again?

Well lets say SCOTUS holds that nothing in the US constitution compels states to allow same sex marriages. In that case everything would go back to where situation was 5 years ago, that is state can allow, or disallow same sex marriages as it wills.

[belfpala]

I think the SCOTUS won't listen to the case mostly because it is up to the states elected officials to come up with laws for or against this.

Incorrect. The Louisiana case creates a circuit split and that's exactly what gets SCOTUS to hear a case.

[Reeve]

I think the SCOTUS won't listen to the case mostly because it is up to the states elected officials to come up with laws for or against this. From what I understand about the constitution, there is nothing written in there for or against this kind of marriage, so it would be on state officials to try to do it. Its the same reason SCOTUS doesn't listen to the people that are AGAINST it, there is really nothing written in law currently on the national level that dictates whether it is or isn't ok for it. If a state wants it, it will make it legal, if the state doesn't it will make it illegal, simple as that, and then if either passes, later on it can be repealed if enough people want it :P

The SCOTUS has ruled on a very similar case in the past:

http://en.wikipedia.org/wiki/Loving_v._Virginia

[belfpala]

The government has a keen interest in encouraging reproduction...

Ok, so I'm restraining myself here. WHAT THE FUCKING HELL.

I'm a straight male with no interest in making children. By your logic, should the government force me to make babies? No, right?

Or maybe I'm a straight male and I'm infertile.

Or maybe I'm a straight male and my partner is infertile.

Or maybe I'm a straight male and my partner doesn't want babies.

...do I need to go on?

Reproduction logic needs to fucking stop as any argument related to marriage.

[Stormdash]

So, given the recent ruling in Louisiana (re: same sex marriage), what would be the recourse if a case like that finally went to the supreme court and a state's ability to ban same sex marriage was upheld? Many people (myself included) seem to take for granted that if the SCOTUS does finally grow a pair and hear a case about this, that they would of course rule in favor of LGBT rights...but would there be anything that could be done if they didn't? Would people just have to keep challenging those laws until a case was heard again?

If the Supreme Court did not strike down state bans on same sex unions on 14th amendment grounds, it would simply mean that there is no remedy in the federal constitution to defeat such state bans. They could still be overturned by a) state legislation, b) state constitutional amendment, or c) state courts as violations of the state constitution.

[Reeve]

While I agree that the SCOTUS should and probably would rule in favor of gay marriage, to compare it to Interracial marriage is disingenuous at best. Every American was affected by laws banning interracial marriage, only 3-5% of the population at most is affected by gay marriage. The government has a keen interest in encouraging reproduction - something possible with interracial sex and obviously not with homosexual. I'm 100% behind adults marrying whom they want, but it's unfair to compare the two.

No it's not. It's the SCOTUS's job to uphold the rights of all Americans, not just the majority. And the ruling didn't support interracial marriage because of a state interest in encouraging reproduction, but because they ruled people have a right to marry who they wish - that the decision of whom to marry is an individual right, not a states' right.

Plus, at the time of the ruling, people who wanted to be married interracially wasn't a huge percentage either.

[Stormdash]

No it's not. It's the SCOTUS's job to uphold the rights of all Americans, not just the majority. And the ruling didn't support interracial marriage because of a state interest in encouraging reproduction, but because they ruled people have a right to marry who they wish - that the decision of whom to marry is an individual right, not a states' right.

Plus, at the time of the ruling, people who wanted to be married interracially wasn't a huge percentage either.

One thing about Loving, though, is that the underlying philosophical question of what a marriage is, conceptually, wasn't really up for grabs, just a restriction on who one may choose to engage in their monogamous heterosexual union with -- and that a restriction based directly on a suspect classification (race) is not going to survive strict scrutiny.

Here, we are revisiting what marriage itself refers to under the law, and doing so without restrictions based on a suspect classification.

I'm perfectly comfortable with 50 states having 50 different answers here, just as they already do with (for example) the legal age to marry, or consanguinity (closeness of relation; 2/3rds of the states allow 1st cousins to marry, the others do not. 14th Amendment issue? Not really).

[Endus]

While I agree that the SCOTUS should and probably would rule in favor of gay marriage, to compare it to Interracial marriage is disingenuous at best. Every American was affected by laws banning interracial marriage, only 3-5% of the population at most is affected by gay marriage. The government has a keen interest in encouraging reproduction - something possible with interracial sex and obviously not with homosexual. I'm 100% behind adults marrying whom they want, but it's unfair to compare the two.

The "encouraging reproduction" argument is totally and completely without merit as long as infertile heterosexuals can still get married, and getting a vasectomy doesn't automatically annul any marriage you're in, not to mention when women enter menopause and their children have reached maturity.

In short, your argument has nothing whatsoever to do with marriage, at any level, and trying to apply it to homosexual marriage specifically is both hypocritical and transparently hateful.

[Stormdash]

Or maybe I'm a straight male and my partner doesn't want babies.

Not for nothing, but this sort of thing, based on the specifics and/or state, may be grounds for annulling a marriage. That alone reinforces the notion that reproduction and the child-rearing function of the nuclear family at least run as parallel tracks to the purpose of recognize marriage in the civil law at all.

[Endus]

That's not what they ruled. They ruled that the ability to marry is a right between men and women and that laws banning race mixing violated the equal protection clause. They didn't establish a right to marry anyone you want. I support that right, but Loving didn't establish that. Goto cornell or harvards law page and read the actual decision and not just the Wikipedia version.

Here's a hint;

Declaring a restriction based on gender is just as arbitrary and discriminatory as declaring a restriction based on race. Ergo, equal protection clause would still apply.

- - - Updated - - -

Not for nothing, but this sort of thing, based on the specifics and/or state, may be grounds for annulling a marriage. That alone reinforces the notion that reproduction and the child-rearing function of the nuclear family at least run as parallel tracks to the purpose of recognize marriage in the civil law at all.

It wouldn't be grounds for anullment. It would be grounds for divorce, but on grounds of "irreconcilable differences" between the spouses, not "failed to make a baby".

[Stormdash]

The "encouraging reproduction" argument is totally and completely without merit as long as infertile heterosexuals can still get married, and getting a vasectomy doesn't automatically annul any marriage you're in, not to mention when women enter menopause and their children have reached maturity.

I think you might be mistaking the word "encouraging" for either "mandating" or "requiring". Marriage as a public policy incentive to reproducing and raising children within the nuclear family isn't incompatible with infertility. It's a public policy reason to encourage people to marry, not a requirement of those entering into a marriage.

[Endus]

Are you dense? I'm defending the right of gay people to marry. The us Supreme Court has used reproduction as justification for state interest in marriage in the past. I don't care if you're a moderator or not. I'm tired of you chiming in and attacking people because you're either too lazy or incapable of understanding what's written.

I was attacking the argument you were presenting. I'm well aware that you, personally, disavowed it.

There's nothing hateful about stating that the courts have used reproduction as an excuse in the past, specifically when I'm advocating for gay marriage.

It's pretty much explicitly hateful. Particularly when, again, no state government is barring heterosexual couples from marrying because they will not/have not/cannot have children. That doesn't happen.

[Stormdash]

It wouldn't be grounds for anullment. It would be grounds for divorce, but on grounds of "irreconcilable differences" between the spouses, not "failed to make a baby".

Again, depends on the state and the particulars. Refusal to reproduce, held at the time the marriage was entered, might be grounds for annulment in some states, just as total sexual incapacity can be.

[Independent voter]

Like Thomas Jefferson, I think state's rights are very important. Why force Oregon values on Mississippi or Mississippi values on Oregon? The US is a very big country and not everyone is the same.

I can see a reactionary backlash coming. I hope it doesn't get violent and is done within the system.

[belfpala]

Take a Xanax.

No thanks. I don't feel like buying a prescription pill illegally, nor do I feel like lying to a doctor to get one.

[Endus]

I think you might be mistaking the word "encouraging" for either "mandating" or "requiring". Marriage as a public policy incentive to reproducing and raising children within the nuclear family isn't incompatible with infertility. It's a public policy reason to encourage people to marry, not a requirement of those entering into a marriage.

What you're talking about isn't really reproduction, it's strong family life. Yes, raising children is a primary purpose of marriage (but not the sole one). Direct reproduction is not the only means for a couple to involve themselves in that. There's adoption, surrogacy, artificial insemination, etc. All of which are just as available to homosexual couples as heterosexual couples. Is a family with adopted children somehow not married because their kids are adopted?

If you're not opposing adoptive parents, then your issue isn't reproduction, it's gay people having equal rights. That's why the argument is bollocks. Because it doesn't apply equally. It targets homosexuals on grounds that aren't relevant, while deliberately ignoring heterosexual couples who would face the same theoretical factors but are not barred from marrying.

[belfpala]

Like Thomas Jefferson, I think state's rights are very important. Why force Oregon values on Mississippi or Mississippi values on Oregon? The US is a very big country and not everyone is the same.

I can see a reactionary backlash coming. I hope it doesn't get violent and is done within the system.

Because that was a pipe dream from the beginning. We're not the culture of agrarian farmers Jefferson envisioned. We're a nation connected globally, more like Hamilton envisioned.