Nilinor is right though. SCOTUS doesn't like to take state cases, same sex marriage is a state issue.
The Loving v Virginia case was because they got married on one state (district) and jailed in another.
Nilinor is right though. SCOTUS doesn't like to take state cases, same sex marriage is a state issue.
The Loving v Virginia case was because they got married on one state (district) and jailed in another.
See the part I underlined?
That's where you yourself acknowledge that it's about differences in the expectations between partners, not a base presumption regarding marriage itself. We're talking about reason for the government, despite the wishes of the two individuals, to bar their marriage. Not when one partner feels they've been misled as to the path the marriage would take. Unless you're talking about a case where the government would force a heterosexual couple to no longer be married, against both of their wills, then you aren't talking about anything that's comparable to opposing marriage equality.
... no? Seems a pretty silly question and mostly a spurious line of argument. Geneology, wills/estates/intestacy, a lot of other public interests coalesce around the nuclear family and the presumption of its reproductive utility. Adoption actually proves that, since its purpose is to grant status to children as though they were the natural issue of both married parents. When the married parents are male and female, it's at least plausible that they might have actually had the kid themselves.
Actually, I don't see an equal rights issue at all to deny or recognize. I see a civil institution that simply doesn't exist outside the context of a man and a woman entering into it together. I, as a man, am not having my "equal right" to an abortion infringed; it is simply a metaphysical impossibility for me to have one.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.
All the reasons that civil law ever started to recognize the cultural institution of marriage in the first place, and benefits began to accrue to it in western systems, are inextricably linked to its premise as a monogamous heterosexual union as the foundation of the nuclear family, the building block of society. If that premise is now up for grabs, I think it would be fair to argue that the reasons for civil recognition of or benefits for marriage have also reached the end of their usefulness.
EDIT: The right legal avenue for legalizing same sex unions is the legislative one -- as has been accomplished successfully in a smattering of states already. I can't squint hard enough at the 14th Amendment (either as written or in the jurisprudence of determining fundamental rights or equal protection) and make gay marriage appear and dictate it simultaneously to 50 states and render it immune to popular sovereignty.
Last edited by Stormdash; 2014-09-05 at 01:44 PM.
But the problem isn't gay people getting married. The problem is why do, we as a people, feel we have the right to tell them they can or can't. It isn't as if they are marrying their pets. We're all humans. The same species. There is a separation of church and state which means this is not in any way a religious issue as marriage is a state run institution.
You're conflating two separate things. Particularly as there's very little preventing a lesbian couple, in particular, from having babies the "natural way". If anything, they're twice as capable as heterosexual couples in that regard. Should they be Supermarried? Or are you still drawing a distinction that is in no way based on reproduction and instead solely based on hatred for sexual orientation?
That's a ridiculous comparison. Abortions are personal, not interpersonal. A man has, in theory, an equal right to an abortion. He just lacks the physical qualities he'd personally need for such a procedure to be viable. He doesn't get a say in anyone else's abortion, but that's because, again, that decision is personal.Actually, I don't see an equal rights issue at all to deny or recognize. I see a civil institution that simply doesn't exist outside the context of a man and a woman entering into it together. I, as a man, am not having my "equal right" to an abortion infringed; it is simply a metaphysical impossibility for me to have one.
This simply isn't true. There's records of homosexual marriages going back, literally, thousands of years.All the reasons that civil law ever started to recognize the cultural institution of marriage in the first place, and benefits began to accrue to it in western systems, are inextricably linked to its premise as a monogamous heterosexual union as the foundation of the nuclear family, the building block of society.
Besides which, even if it were true, a history of bigotry isn't a defense. See, for instance, the rights of blacks in the USA.
So a man has an equal right that he can't apply in any useful or meaningful context. That's pretty much the abortion equivalent of a gay man and a straight man both equally having the right to marry the woman of their choice.
I care about the legal and jurisprudential history relevant to American law, which pretty much comes down to English, French, and Spanish common law. Those are where relevant examples will need to come from.
Gay =/= black. I think the black vote in California going more than 60% in favor of Prop 8 should have clarified a few things about the equivalence between the two movements.Besides which, even if it were true, a history of bigotry isn't a defense. See, for instance, the rights of blacks in the USA.
I am not a Constitutional scholar, but I'm fairly sure the SCOTUS is the goalie of the government. Basically, if it gets past them, it's over.
I agree that the Supreme Court probably won't rule for a state ban against homosexual equality, but if they did, the residents of that state would have to accept it.
The three most formative legal influences on American common law and statute? And probably in that order, English common law being by far the most influential. Point being, there's not "thousands of years" of gay marriage examples in the actual history relevant to our actual system of laws.
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No, no, no. All the Supreme Court can or can't say is whether or not the federal constitution has an opinion one way or another. If SCOTUS says that the 14th Amendment doesn't contain a right for gay marriage, as it were, that doesn't prevent any state that has recognized such a right under its own state constitution, or by legislation enacted by the state.
First, terminology. "Common law" would refer directly to what we inherited (and incorporated) into our body of law from British sources. Civil Law would be what we don't do, unless you're in Louisiana. Some mixing, sure.
As for the part in bold? There's not 100 years of women having the right to vote in all of the US; there isn't 200 years of all men having the right to vote. And I bet I know the answer if you tell any one of us "thousands of years" matters at all.
First, French and Spanish law isn't based on the common law system.
Second, the French and Spanish systems were heavily inspired by Roman law, which did allow for gay marriage, which we know, because we have records of gay marriages in ancient Rome.
Third, and perhaps most damningly, gay marriage is legal in Britian, France, and Spain. If they're your baseline, claiming that it can't lead to marriage equality is beyond ridiculous.
I don't think the definition of marriage is being challenged here at all. Just who is allowed to engage in that contract. How is the civil contract of marriage substantively different for 2 people of the same sex than it is for 2 people of opposite sex?
My favorite part of the ruling that I hadn't read before is that the State was arguing that because they punished both whites and blacks equally for breaking the anti-miscegenation law, it should be upheld under the 14th Amendment. The SCOTUS just shat all over that argument, totally rejecting it. Equal application is not inherently equal protections.
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Having read the decision in more than Wikipedia now, I don't see where they say the right is "between a man and woman" specifically. They refer to "persons" quite a lot. And while the decision is clearly about race, its application fits perfectly for sex as well.
Last edited by Reeve; 2014-09-05 at 02:26 PM.
'Twas a cutlass swipe or an ounce of lead
Or a yawing hole in a battered head
And the scuppers clogged with rotting red
And there they lay I damn me eyes
All lookouts clapped on Paradise
All souls bound just contrarywise, yo ho ho and a bottle of rum!
The issue for the government is not whether or not a couple can have kids, it is whether or not sexuality is a protected class. Things like race, color, religion, etc. have all had federal laws passed protecting against discrimination. There is no federal law that specifically protects against discrimination based on sexuality. When SCOTUS ruled against DOMA, they did so as if sexuality was a protected class. This set precedence. There have been several EOs that protect against sexuality discriminiation in the federal government, which also builds the case that sexuality is a protected class.
SCOTUS isn't going to rule against same-sex marriage because the government want's babies. If they rule against it, it will be because there is no actual law making sexuality a protected class, which would leave it up to states to decided. Just because they ruled against DOMA doesn't mean they will rule against same sex marriages bans, as SCOTUS has a habit of changing their minds on seemingly similar things.
This is true, but historically, we have needed to pass specific laws denoting protected classes regardless of the 9th. A lot of the constitution should have made it so there was no need for Civil Rights Acts, Age Discrimination Act, Pregnancy Discrimination Act, Vietnam Era Veterans' Act, etc. Our system of government is not perfect and cultural norms play a big part in how we read the Constitution.
Every time I see LGBT, I want to make me lettuce, bacon and tomato sammich.
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