There you go, you want to use the definition of marriage only when it suits your position. The definition used to state between a man and a woman didn't it? You have no problem changing that definition, if you wish to argue the definition means squat and the courts should change it when any discrimination occurs, then you simply must embrace multiple partner marriage as well as incestuous marriage.
and genetics?
How does genetics matter? Not unless you want to claim children must be a part of marriage, but wait, gay people can't have kids can they?

rickyp wrote:fate

--IF you can also show that the USSC just declared marriage to whomever one pleases to marry a Constitutional right, which they did not.

That is entirely true. What they have done is eliminate a law which created two unequal forms of marriage. Legal Gay marriages not having the same federal rights. Therefore unconstitutional.

Depends on which part of Kennedy's screed you read. He prattles on about federalism and discriminatory intent. In fact, Kennedy specifically said he was not writing about whether States could limit marriage to heterosexual couples.

But it has also opened the door wide open for the use of the same arguement in states where same sex marriage is not allowed. If Unequal treatment under federal law for gays and lesbians is unconstitutional. It isn't a distant step to applying this test to state laws about marriage.
And thats the next legal step for the proponents of gay marriage.

For some judge to invent a Constitutional right to marry would not be unprecedented. The Court has invented rights in the past. However, it is just as likely that a future decision could revert to the States' rights arguments.

If the Court generates a "right to marry," then all manner of change will come: polyamory, child marriage, and the ending of statutory rape crimes. Those are all inevitable outcomes of such thinking--doing away with "arbitrary and capricious" standards for marriage.

Fate

If you want to go back in time and show that interracial marriage was approved by a majority of people in all but a few States, you'll have a good argument--

http://www.gallup.com/poll/149390/recor ... iages.aspx
The poll shows the approval for marriage between Blacks and Whites at 4% in 1958.

Poor lad. You appear, again, to be the victim of Canadian public education. That's a fine statistic, but it has nothing to do with what I said. Does it show that at the time of Loving v. Virginia a majority of people in all but a few States approved of interracial marriage?

(*As an aside, it's fascinating to watch your overarching dishonesty. You claim in another thread Obamacare will be good for the economy. Yet, you provide scant evidence. You claim it will become more popular. I show that polls show just the opposite. I show the indicators are it will hurt the economy.

So, you abandon the argument.

Here, you hunt down a poll that proves something altogether different than what I'm saying. However, you get points for effort.*)

No, it does not.

On the other hand, many polls show that Americans, by and large, approve of homosexual marriage. So, Loving may have been necessary to overcome prejudice. The Court this week did not have to find a "right to marry" for the people to work their will.

Now, please advise why you think gays and lesbians should subvert their own constitutional rights in order to appease the majority? The couple in Loving V Virginia faced even more daunting opposition than gays today. (Don't you remember the movie "Guess Who's Coming to Dinner") and yet they took their case to SCOTUS...

Um, you're being thickheaded.

1. I never said "gays and lesbians should subvert their own constitutional rights in order to appease the majority" or anything approaching that.

2. Loving v. Virginia is settled law. Get over it. You've missed the whole point: homosexual marriage is not as unpopular now as interracial marriage was. If the tide is as inexorable as you think it is, time is on the side of homosexuals.

3. Citing a movie to support your argument . . . I suppose that's a serious effort--for you.

tom

The definition of what marriage is most certainly plays a part in this "discrimination" now doesn't it?

Yes. And that definition starts with, between 2 consenting people of a certain age.

But, why a certain age? It's discrimination! In MA, school officials claim, and have implemented a program based on this claim, that sexual orientation is known by a child as young as 4. If a child is able to know whether he/she is a he/she and prefers whichever or both genders, why should he/she be prevented from marrying the person they love? If a girl of any age has the right to a morning-after abortion pill, why can't she get married?

And the constittuion allows that there can be discrimination if there is a justifiable reason for that discrimination. Laws restricting marriage between close relations are justified by what we know of genetics...

That is based on the religious and prejudicial notion that marriage is for procreation. Suppose closely related people want to get married but don't want children. What justifiable reason is there for discrimination?

Laws against other marriage arrangements tend to deal with the reality of the marriages. Polygamous arrangements have often contained a deal of coercion..

Again, that is prejudicial. You don't know that. Many people enter into polyamory willingly. What compelling interest does the State have in preventing it?

The question is aways, can the discrimination be justified?

You, it is fair to say, can't justify the discrimination you seem willing to tolerate.

fate

1. I never said "gays and lesbians should subvert their own constitutional rights in order to appease the majority" or anything approaching that

Fate

The best argument for Courts NOT intervening is . . . the increase in popularity. If what you are saying is true, the laws will change.

The Court is ruling on an appeal brought to them by two gay couples.
You're saying the Court shouldn't have ruled, therefore that the couples should have waited for popular opinion to create change in the law. Why?
And I ask again..... why ? Whats wrong with exercising one's rights?

Fate

2. Loving v. Virginia is settled law. Get over it. You've missed the whole point: homosexual marriage is not as unpopular now as interracial marriage was. If the tide is as inexorable as you think it is, time is on the side of homosexuals

So, because gay marriage is more acceptable, they should wait and not exercise their rights?

rickyp wrote:fate

1. I never said "gays and lesbians should subvert their own constitutional rights in order to appease the majority" or anything approaching that

Fate

The best argument for Courts NOT intervening is . . . the increase in popularity. If what you are saying is true, the laws will change.

The Court is ruling on an appeal brought to them by two gay couples.
You're saying the Court shouldn't have ruled, therefore that the couples should have waited for popular opinion to create change in the law. Why?

Why is this so difficult for you to comprehend? I have never defended DOMA. I don't think it was Constitutional as it is NOT a Federal function, imo.

I did NOT say "the Court shouldn't have ruled." I have said they ought not invent a "right to get married."

Please do try to understand the difference.

And I ask again..... why ? Whats wrong with exercising one's rights?

Moot question as it is not what I said.

Fate

2. Loving v. Virginia is settled law. Get over it. You've missed the whole point: homosexual marriage is not as unpopular now as interracial marriage was. If the tide is as inexorable as you think it is, time is on the side of homosexuals

So, because gay marriage is more acceptable, they should wait and not exercise their rights?

Have mercy.

Take a minute and try to grasp this: I did not say this.

Tom

The definition used to state between a man and a woman didn't it?

Defintions change all the time.
In the US Constitution, At one time blacks were considered to be three fifths of human.
At one time women were not considered to be equal to men.Now they too are considered equal citizens, changing the definition of the word citizen, for lega use
The way, equal access is interpreted has changed... .

Society has changed. And with that change there is a different application of the language of the constitution. Where 50 years ago, or 80 years ago, the notion of protection of discrimination against homosexuals would have been rarely thought of ...
So, perhaps society will change enough to accept the idea of polygamy or marriage between kin. If it does, then perhaps the constitution will eventually be seen to provide protections to these kinds of marriages. But this remote possibility isn't a reason to deny rights to people who are acceptable to, what used to be a sizable minority but has now become most people.
At the moment that discrimination against polygamists and kin marriers is almost universally accepted as justifiable what ever ramblings Fate or you come up with ....
I suspect that its unlikely to change with the recognition of gay marriage as an accepted form of marriage.
In a democratic nation, the laws of the society eventually reflect the values of that society. And history has shown that in liberal democracies the freedoms protected by law tend to grow. As more and more minorities gain acceptance they exercise their right to protections offered in things like the US Constitution.
I don't know why you think the way your nation interprets its constitution and the rights it affords its people as unchanging. Clearly it isn't.

rickyp wrote:So, perhaps society will change enough to accept the idea of polygamy or marriage between kin. If it does, then perhaps the constitution will eventually be seen to provide protections to these kinds of marriages.

This is the heart of your problem. You think the Constitution is a living document, subject to the whims of culture. It actually is a "dead letter" that provides a means to change things, known as "amendments." Liberals prefer to skirt the law and impose their values on others. I prefer to obey the law as written, which means when society wants to change something (Prohibition), it can. When it realizes its mistake, it can change it again (by ending Prohibition).

But this remote possibility isn't a reason to deny rights to people who are acceptable to, what used to be a sizable minority but has now become most people.

So, we should rule by polls?

Problem 1: at the time of Loving v. Virginia, interracial marriage was NOT favored by "most people."

Problem 2: in CA, the people voted to restrict marriage. Their vote was overturned because CA's governor and AG decided to not defend the vote of the people. If that's "democracy," it sure is a bizarre form of it.

At the moment that discrimination against polygamists and kin marriers is almost universally accepted as justifiable what ever ramblings Fate or you come up with ....

Yes, how dare we apply logic based on the Court's decisions! We should go by what's popular--unless it's expressed by a vote of the people of California, in which case we should strike it down.

I suspect that its unlikely to change with the recognition of gay marriage as an accepted form of marriage.

Based on . . . your suspicions. Legally, you're just wrong. The same arguments will hold.

In a democratic nation, the laws of the society eventually reflect the values of that society.

Not necessarily. Most Americans don't approve of late-term abortions, yet we still have them.

Doctor Fate wrote:No, the idea that you can refute Scalia in a sentence is laughable.

Why? Is his argument very complex?

Here's the bit that seems odd (already quoted by ricky):

Antonin Scalia wrote:It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

And here is a basic fact:

Marbury v Madison (from 1803) set the precedent that the Supreme Court could rule out legislation or executive actions as unconstitutional. Indeed it struck down one of each. I would expect Scalia to be aware of the case, as it's a pretty fundamental part of American federal jurisprudence.

When it comes to the Constitution, the USSC has for over 200 years been in a position to judicially review legislation against it, and if it fails, it is nullified.

To justify discrimination, we're told concerning gay marriage, the State must be able to demonstrate a compelling reason. Well, the VRA discriminates against certain States, but there is no "compelling reason." Therefore, what the USSC did there was reasonable, cogent, and Constitutional.

Which is why it seems very strange for Scalia to argue that one judicial review that strikes part of a law out as unconstitutional is wrong because it makes the USSC 'prime' over the legislature and executive, but supports another. Especially as the basis for the VRA was that individual voters were being discriminated against (and let's please establish whether we think that citizen's rights are more or less important that State's rights)

He may well be a very experienced judge, with a long tenure on the USSC, but that doesn't mean he can't directly be utterly wrong, or at least contradict himself from one day to the next.

Appeal to Authority does not trump logical assessment of that Authority's actual position.

Anyway, I don't actually have a massive problem with the VRA decision - at some point the need to monitor (not quite 'punish') states that had awful civil rights records should recede. Hopefully they are right and we won't see racially discriminatory gerrymandering in the deep South. If it does, hopefully something can be done about that so that the rights of citizens are not lost to States.

GMTom wrote:There you go, you want to use the definition of marriage only when it suits your position. The definition used to state between a man and a woman didn't it? You have no problem changing that definition, if you wish to argue the definition means squat and the courts should change it when any discrimination occurs, then you simply must embrace multiple partner marriage as well as incestuous marriage.

Reading the Bible, both polygamy and incestuous mariage were rife back in the bronze age, and legal.

It was also once biblical law that if a man died, his brother had to take on his widow as his wife (and ahead of any of his own wives) - the sin of Onan was about not fulfilling his duty to impregnate his sister-in-law.

The 'definition' of marriage has changed a lot over the years since then. It used to be a property transaction, with a father giving his daughter over to a husband - and that wife not being able to hold her own property.

To some, it is till-death-do-part, for others divorce should be allowed. If anything, legalising divorce was as much a change to the definition of marriage as any other over history.

bbauska wrote:I am making an effort. An effort to agree with you that they are cowards. I did not say you supported congress or anything of the like. Try not to be snide, please.

You didn't?

Oh, so

"It appears you are supporting the lack of inactivity the congress has exhibited by cowardice with your commentary when it comes to the gay rights issue." means the opposite of what it says?

And:

"That is why I call them cowards. Convince me otherwise, please." is an effort to agree, and in no way a challenge for me to argue an opposite position.

For policy that you disagree with , and do nothing to change it?... Yes I call that cowardice. You say it is a battle that you are going to lose. Go down fighting. Stand for what you believe in. Both sides should do this. They supposedly are vertebrates. I expect them to stand up for their beliefs. Not hide behind an excuse that you gave, Danivon.

You are conflating two different points here and trying to bash me over the head with the resulting porrige

Clinton in 1996 was showing come cowardice, but given the climate - especially as on gay rights he'd started off wanting to allow homosexuals to serve and ended up getting a pasting and delivering only DADT (which was poor, but still an improvement on the previous situation) - and the fact that Congress had voted for it overwhelmingly (all Republicans bar one and most Democrats), all that his veto would have done is give his opponents further ammunition and delayed DOMA until a Congressional override - and potentially also encouraging things like the MPA. Yes there was some cowardice, but let's face it, there was a lot of reality here. It was an election year (and both sides of the debate were making it a major issue).

Subsequently, Congress has not repealed DOMA. And you call that cowardice too.

However, for much of that time, the Republicans (who almost completely supported DOMA, and in Congress at least largely did all the while) were in control of at least one chamber. So they were not 'cowards', as they didn't think it was wrong.

So we come to the Democrats. If the Democrats were united in opposition to DOMA, then it would be cowardice to not have repealed it in the times they were in control. However, they were not. Remember that most Democrats in Congress in 1996 supported DOMA. So even at the start, only a minority of Democrats in Congress would support repeal. Knowing they were in a minority, it may well be cowardice to not keep trying anyway, but frankly it would be a waste of their time (which you taxpayers fund) to do so instead of taking on other issues where they could have an impact.

Realism in the face of a larger opposition is not an 'excuse'.

And the real cowards are the following:

1. Closeted Gay Congressmembers who voted against gay rights.

2. Those who personally disgreed with DOMA or similar laws but didn't express that because they were afraid that it would put off voters.

The minority in Congress, one that grew over time, but as far as I could tell never became a majority, were no cowards - they knew that they had no chance to repeal legislatively while the above yellow fools were around, combined with the large rump who supported DOMA for 'moral' reasons.

danivon wrote:

GMTom wrote:There you go, you want to use the definition of marriage only when it suits your position. The definition used to state between a man and a woman didn't it? You have no problem changing that definition, if you wish to argue the definition means squat and the courts should change it when any discrimination occurs, then you simply must embrace multiple partner marriage as well as incestuous marriage.

Reading the Bible, both polygamy and incestuous mariage were rife back in the bronze age, and legal.

It was also once biblical law that if a man died, his brother had to take on his widow as his wife (and ahead of any of his own wives) - the sin of Onan was about not fulfilling his duty to impregnate his sister-in-law.

Oh, for the love of Pete . . . one should not mistake the Mosaic Law in a theocracy with our system. That some violated God's law and did "what was right (in their own eyes)" in no way justified it then or now.

The legal definition of marriage can be whatever society determines. The moral definition is set, as it were, in stone.

As for Danivon's rebuttal of Scalia, I think you miss the main point. He is not suggesting the Court exists to accomplish nothing. He is saying it ought not to have done such shoddy work.

Antonin Scalia dissented from the decision on the grounds that the court did not have standing to take the case.

He wrote:

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case... Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

He also speculated that the majority justices are trying to hide their plan to issue a more sweeping ruling in the near future:

My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.

He criticized the majority for not fairly representing the views of Defense of Marriage Act supporters:

I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

Then he got really angry:

To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

He ended with a bit of concern-trolling, saying today's decision on DOMA was bad for both supporters and opponents of same-sex marriage:

Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.

Doctor Fate wrote:

danivon wrote:It was also once biblical law that if a man died, his brother had to take on his widow as his wife (and ahead of any of his own wives) - the sin of Onan was about not fulfilling his duty to impregnate his sister-in-law.

Oh, for the love of Pete . . . one should not mistake the Mosaic Law in a theocracy with our system. That some violated God's law and did "what was right (in their own eyes)" in no way justified it then or now.

That "God's law" was at variance to what people claim is the timeless definition of marriage isn't really justified either...

Onan's sin was one judged morally and legally - he was damned for spilling his seed. But the context was that by Mosaic Law ("God's law") he was forced to marry his dead brother's widow and try to give her children (and his brother, posthumous heirs).

My point is that the legal definition of marriage has varied, and so has the 'social' definition of it, and the moral definition as well.

The legal definition of marriage can be whatever society determines. The moral definition is set, as it were, in stone.

By whom? You do realise that the Ten Commandments do not define marriage, right? If you like, we can explore the 'set' 'morality' of the the definition of marriage in Biblical law if you like. Just let us know beforehand which part of the canon you are including and excluding.

danivon wrote:You do realise that the Ten Commandments do not define marriage, right? If you like, we can explore the 'set' 'morality' of the the definition of marriage in Biblical law if you like. Just let us know beforehand which part of the canon you are including and excluding.

You do realize that "as it were" is meant to denote "Seemingly, in a way, as in He was living in a dream world, as it were. A shortening of “as if it were so,” this idiom has been in use since Chaucer's time (he had it in his Nun's Priest's Tale, c. 1386). Also see so to speak."

In other words, "The moral definition is set, as it were, in stone" does not mean it was in the Ten Commandments.

It would be a phenomenal waste of time to debate the Bible with a man who does not believe it or the God of it, who does not recognize the value of consistent hermeneutics, and merely wants to joust. So, I respectfully decline, as it were.

Doctor Fate wrote:

danivon wrote:You do realise that the Ten Commandments do not define marriage, right? If you like, we can explore the 'set' 'morality' of the the definition of marriage in Biblical law if you like. Just let us know beforehand which part of the canon you are including and excluding.

You do realize that "as it were" is meant to denote "Seemingly, in a way, as in He was living in a dream world, as it were. A shortening of “as if it were so,” this idiom has been in use since Chaucer's time (he had it in his Nun's Priest's Tale, c. 1386). Also see so to speak."

In other words, "The moral definition is set, as it were, in stone" does not mean it was in the Ten Commandments.

I know what 'as it were' means, thanks. I was just playing with the use of stone.

Still, what bits are 'as if' they were set in stone, and which bits are not? If the 'moral definition' of marriage is 'as if it were' set in stone, that suggests that it doesn't change. So let's see evidence for that - what is the earliest expression of that moral definition?

It would be a phenomenal waste of time to debate the Bible with a man who does not believe it or the God of it, who does not recognize the value of consistent hermeneutics, and merely wants to joust. So, I respectfully decline, as it were.

Debate it? No. I just want to know what the source is of this 'moral definition'. Perhaps it does not lie within the Bible, but either way, I'd love to understand.

If it is the Bible, then fair enough, but let's not pretend that parts of the Old Testament (indeed the same parts as contain the Ten Commandments) include definitions that today we would not see as moral (on marriage, on slavery, on punishments). Even if the New Testament changes that, it's a signifier of a change in morality.

So, to keep it simple (and to avoid word games), it really boils down to this:

What is the 'moral definition' of marriage?

I read the Windsor opinion carefully (including Scalia's dissent). I have the following observations:

(1) Scalia felt the case should not have been taken because there was a lack of adverse parties (because the executive declined to defend the law) It seems to me that since a House legal advisory group was allowed to intervene to defend a law passed by the Congress, then the requirement that in effect that there be two parties adverse to each other motivated to give the best possible arguments to help the court in coming to a decision was met.

(2) It really is not clear the precise reason supporting the Court's ruling. There are discussions regarding federalism, there are discussions regarding due process (presumably substantive process) and also equal protection. If it is substantive due process, then what is the fundamental right being protected? What is level of scrutiny? Sexual orientation had not been declared a suspect classification and thus subject to only rational basis level of scrutiny (generally speaking if a law only has to pass a rational basis level of scrutiny it is almost never struck down, whereas the reverse is true if there is strict scrutiny) There may be a higher level of scrutiny for laws that discriminate against homosexuals. (see http://law2.umkc.edu/faculty/projects/f ... swbite.htm)

(3) It seems like the best bet is an equal protection argument with a heightened level of scrutiny because the effect on people who are gay (similar to gender which is subject to intermediate scrutiny) While there is a right to procreate and a right to contraception, it is not clear what the fundamental right here would be.. I suppose an argument could be made that the government is hindering the ability of gay couples to adopt, to act as a family. But you don't have to cover as much new ground if you use an equal protection argument.

(4) I think Justice Kennedy was purposefully vague here. He sketched the outlines of the arguments (federalism, substantive due process, equal protection), let the lower courts hash it out and see which arguments rise to the top. If he sided with one particular argument, then he would have foreclosed alternate ones. He may be laying the groundwork for a future case regarding whether states can ban gay marriage