Supreme Court question

[PACOX]

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.

[Endus]

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.

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.

[belfpala]

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.

The case in the OP was decided in a federal district court.

[THE Bigzoman]

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.

I think gay marriage homes have another interest for the government. Create incentives for gay couples to adopt rather then make their own children via technology and surrogates.

[Stormdash]

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?

... 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.

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.

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.

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.

[PACOX]

The case in the OP was decided in a federal district court.

They were talking about where it takes so long for the cases to reach that level. My comment is just late as hell.

[Rabblexthree]

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.

[Endus]

... 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.

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?

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.

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.

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.

This simply isn't true. There's records of homosexual marriages going back, literally, thousands of years.

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.

[Stormdash]

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.

This simply isn't true. There's records of homosexual marriages going back, literally, thousands of years.

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.

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.

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.

[belfpala]

They were talking about where it takes so long for the cases to reach that level. My comment is just late as hell.

Umm, where? You can bring cases directly to federal courts.

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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.

First, what?

Second, What?

Third, WHAT?

[Breccia]

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?

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.

[Stormdash]

First, what?

Second, What?

Third, WHAT?

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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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.

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.

[belfpala]

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.

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.

[Endus]

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.

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.

[Reeve]

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).

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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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.

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.

[SpcGuts]

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.

[Endus]

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.

SCOTUS' other option would be to consider sexuality a protected class under the 9th Amendment. They don't need to have it laid out in an actual bill of law. That's sort of the entire purpose of the 9th.

[SpcGuts]

SCOTUS' other option would be to consider sexuality a protected class under the 9th Amendment. They don't need to have it laid out in an actual bill of law. That's sort of the entire purpose of the 9th.

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.

[Deleted]

Every time I see LGBT, I want to make me lettuce, bacon and tomato sammich.

[bergmann620]

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).

It's certainly a 14th amendment issue as long as there are legal benefits to be gained through state-sanctioned marriage.