danivon wrote:What is the 'moral definition' of marriage?

He answered, "Have you not read that he who created them from the beginning made them male and female, 5 and said, 'Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh'? 6 So they are no longer two but one flesh. What therefore God has joined together, let not man separate." (Matt 19:4-6 ESV)

I'll take His word for it. You may do as you please.

Doctor Fate wrote:

danivon wrote:What is the 'moral definition' of marriage?

He answered, "Have you not read that he who created them from the beginning made them male and female, 5 and said, 'Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh'? 6 So they are no longer two but one flesh. What therefore God has joined together, let not man separate." (Matt 19:4-6 ESV)

I'll take His word for it. You may do as you please.

The question being answered there was about divorce, which while relating to marriage does not necessarily mean that the full 'moral definition' of marriage is being given.

It also indicates that you believe (based on the following verses) that the moral position for marriage is that only in cases of sexual immorality shoudl divorce be allowed.

Knowing someone who was a victim of spousal abuse (physical and mental), Ithink that is an immoral position. But hey, perhaps that sort of stuff never happened in biblical times.

danivon wrote:The question being answered there was about divorce, which while relating to marriage does not necessarily mean that the full 'moral definition' of marriage is being given.

It also indicates that you believe (based on the following verses) that the moral position for marriage is that only in cases of sexual immorality shoudl divorce be allowed.

Knowing someone who was a victim of spousal abuse (physical and mental), Ithink that is an immoral position. But hey, perhaps that sort of stuff never happened in biblical times.

Three things:

1. There is also provision if an unbeliever leaves. (1 Cor. 7:15).

2. Again, you are free to do what you will. I would call the police and have the husband arrested.

3. I said you may believe as you like. That, apparently, is not good enough for you. Look up "tolerant." You'll see it's defining me, not you.

Doctor Fate wrote:
Three things:

1. There is also provision if an unbeliever leaves. (1 Cor. 7:15).

Still more about defining divorce thsn marriage.

2. Again, you are free to do what you will. I would call the police and have the husband arrested.

You assume the victim was the wife? Not always. Anyway, that is beside the point - this is not about whether someone should be arrested, it's about whether allowing divorce in the case of such abuse is morally right. I contend that it is, your source appears to disagree.

3. I said you may believe as you like. That, apparently, is not good enough for you. Look up "tolerant." You'll see it's defining me, not you.

So it is 'intolerant' to disagree with you? I can tolerate gay marriage, but I don't hold with rigid definitions of marriage and divorce that force dysfunctional couples to remain joined. I certainly don't want that 'moral' definition to return to law

Thanks for being on my side Danivon. I said Ricky is cherry picking the portions of the definition that suits him. He is the one who brought up one aspect and it is he who wants to ignore another aspect. If you want to go with the definition to support your opinion, then you must accept ALL of the definition. And when doing so we are speaking of the current definition of course. Yes, definitions change over time, and in a dozen years, in one hundred years, whatever, the definition may certainly include gays, but it does not yet.

danivon wrote:

Doctor Fate wrote:
Three things:

1. There is also provision if an unbeliever leaves. (1 Cor. 7:15).

Still more about defining divorce thsn marriage.

Sure, because I responded to what you wrote. I know, I know-silly:

danivon wrote:The question being answered there was about divorce, which while relating to marriage does not necessarily mean that the full 'moral definition' of marriage is being given.

It also indicates that you believe (based on the following verses) that the moral position for marriage is that only in cases of sexual immorality shoudl divorce be allowed.

2. Again, you are free to do what you will. I would call the police and have the husband arrested.

You assume the victim was the wife? Not always. Anyway, that is beside the point - this is not about whether someone should be arrested, it's about whether allowing divorce in the case of such abuse is morally right. I contend that it is, your source appears to disagree.

Yes, but it does not condone the violence. My source would say a husband is to love his wife as Christ loved the Church. Christ didn't hit the Church; He voluntarily laid down his life for her.

3. I said you may believe as you like. That, apparently, is not good enough for you. Look up "tolerant." You'll see it's defining me, not you.

So it is 'intolerant' to disagree with you?

Nice twist.

Actually, I was letting you have whatever belief system you like. I think you'll find that it is you who is not willing to afford me the same--on any variety of moral and social issues. Liberals are very tolerant--until someone disagrees with them.

DF - in what way am I not letting you believe what you like? I am expressing disagreement and asking for the basis of your beliefs.

You are the one who asserted that "the moral definition" of marriage is as if it were set in stone. I don't think there is a single moral definition, or that it is unchanging.

It seems that your source for 'the' definition does not allow for divorce in cases of non-sexual abuse. Whether such abuse is condoned is beside the point. Pointing out my objection is not intolerace, less still oppressing you by not letting you have your own beliefs.

Funny thing, I keep seeing all this nonsense posted about laws regarding marriage have changed over the past several hundred years but the definition has been the same for centuries now hasn't it? In fact, I looked online and still the main definition states a union between man and woman. Your laws were applied in different ways but the definition had not changed. Courts did not force a change in definitions but rather culture did over time. It's a simple matter of courts deciding to ignore definitions and apply their own reasoning. Go ahead and argue what you think is right or justified but please spare us the lectures about definitions changing and trying to use them to your benefit, that portion of your argument just isn't working!

GMTom wrote:Funny thing, I keep seeing all this nonsense posted about laws regarding marriage have changed over the past several hundred years but the definition has been the same for centuries now hasn't it? In fact, I looked online and still the main definition states a union between man and woman. Your laws were applied in different ways but the definition had not changed. Courts did not force a change in definitions but rather culture did over time. It's a simple matter of courts deciding to ignore definitions and apply their own reasoning. Go ahead and argue what you think is right or justified but please spare us the lectures about definitions changing and trying to use them to your benefit, that portion of your argument just isn't working!

To whom is that addressed?

How do you square this:

"Courts did not force a change in definitions but rather culture did over time."

and

"It's a simple matter of courts deciding to ignore definitions and apply their own reasoning. "

If the legal definition of a thing changes, because the courts 'apply their own reasoning' and 'ignore' the previous definition (or rather challenge it), then it is them forcing a change to the legal definition.

Now, the courts could be reacting to societal change. And if they are, that's fine. But laws - and so legal definitions of a legal construct (which a marriage is, whether you like it or not) are made either by legislatures or by judiciaries.

Given what DF has told us is the 'moral' definition of marriage, it's quite clear that as soon as legislators or courts started to allow divorce in cases other than sexual immorality (or apostacy and abandonment), they 'changed' the definition.

I know that you are - by your own admission - hung up on the word, but the thing about it is that words are just words. While they usually mean the same thing over time and geography, the definitions of them vary over time - and even at the same time.

GMTom wrote:Yes, definitions change over time, and in a dozen years, in one hundred years, whatever, the definition may certainly include gays, but it does not yet.

Except that it has changed in several countries and several US states already. I anticipate that it will also change in Scotland and in England and Wales within the year, too.

Cool, let culture do it's thing! It's working quite well, yet having a court force an issue simply is the wrong way to go about it. Culture will accept the change over time and the time it is taking of late is rapid to say the least. Letting people get used to a thing vs forcing it upon them, it's not the same.

GMTom wrote:Cool, let culture do it's thing! It's working quite well, yet having a court force an issue simply is the wrong way to go about it. Culture will accept the change over time and the time it is taking of late is rapid to say the least. Letting people get used to a thing vs forcing it upon them, it's not the same.

Quite right. In the 1960s, they should have waited for the 'culture' to catch up, and Mr & Mrs Loving should just have accepted that mixed race marriages were not allowed where they lived [/sarcasm].

danivon wrote:[

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..

The problem here Dan is you are either taking the quote out of context or misunderstanding what Scalia is saying. It is in the part of his dissent that discusses the standing issue. Scalia's position is the party bring the appeal, the Bipartisan Legal Advisory Group (BLAG) which is a standing committee of the House of Representatives, lacked standing to bring the appeal so the case should have been reversed and remanded to the Appellate Court with directions to dismiss the appeal which would mean the decision of the District Court would be final.

To understand what Scalia is saying in this quote, one needs to understand two basic facts, One about the Constitution and one about this specific case.

First the Constitutional fact. Our Constitution says that the Court can only hear cases and controversies. This means that Court can not opine on the validity of a law, i.e. declare a law unconstitutional, unless there is an actual disagreement by the parties of the action, i.e. a controversy. If there is no disagreement between the parties, there is no controversy. Therefore, the courts have no jurisdiction. In the case of an appeal, if the parties do not disagree with the outcome of the lower court, the Appellate Court has no jurisdiction to hear an appeal of the case.


It is 218 year precedence the Court can not hear a case that does not include a controversy.

The second fact is about the procedural background of the case. The Plaintiff was the partner of a deceased same sex partner. Because of DOMA, she had a to pay an inheritance tax even though NY recognized here as a spouse, which usually doesn't have to pay the tax. She filed suit in the Southern District of NY requesting a refund. The DOJ said it thought DOMA was unconstitutional and that it would not oppose her suit. BLAG stepped into oppose the case. The District Court found for Windsor and directed the Gov't to refund her payment. At this point, BLAG appealed. The official Appellate Brief from the DOJ (the official Defendant/Appellee) said it thought the District Court made the right decision and the Appellate Court should uphold the District Court.

Scalia's entire dissent is basically the Appellate Court had no jurisdiction to hear the appeal. Both the Plaintiff (Windsor) and the Defendant (the DoJ representing the United States) agreed with the outcome of the District Court so there as no longer any controversy.

So what Scalia is saying as part of the above quote is that the Majority is creating a false controversy, i.e. the Gov't could in the future decide to refuse to pay the refund, in order to maintain jurisdiction because it wants to issue a decision on a law.

In response to Dan's specific comments, yes Marbury v. Madison allows the Court to over rule Congress but only as in an actual controversy. What the Court did here would not qualify under Marbury because it fails under the Cases and Controversy clause according to Scalia.

freeman3 wrote:(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.

The impression I got he was moving from the position that BLAG was only an interested party to the case but not a party to the outcome. This would give them ability to have access to all the information of the case as well as present evidence, witnesses and cross examine but not appeal the final decision. This happens all the time in municipal issues.

It is basically the same argument as in Hollingsworth v. Perry.

freeman3 wrote:(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

I got the impression that this was less courageous/set up of the future from Kennedy as much as an opinion in search of a majority.

This is what I think happened. Kennedy wrote an opinion deciding for Windsor on the ground of DOMA sec. 3 being a violation of Federalism. However, nobody joined it. The 4 "Liberal" Justices do not really recognize Federalism except in the narrowest of issues. The other "Conservative Justices were set on dismissing for standing. His Clerks then went back and just added a section saying this isn't a Federalism argument (w/o actually changing the basis of the Federalism section) but is really an equal protection argument because she was deprived of property without due process as required by the 5th Amendment.

I also do not think he is setting this up for a future decision banning anti-gay marriage laws because he had the majority to do it with this case. The fact that he only limited the case to states that already allowed shows this is entirely a Federalism opinion.

tom

Yes, definitions change over time, and in a dozen years, in one hundred years, whatever, the definition may certainly include gays, but it does not yet.

The decision on DOMA means that the federal Governemnt must recognize the marriages of same sex couples in states that have legalized same sex marriage.
Therefore the definition has changed. And Scotus says that the Federal government must recognize that change.
You should recognize it too.

As more Americans become married in same sex marriages, the harder it becoms for any court to go back in time and affect the way these marriages are treated. (Undo them.) It creates two classes of citizens. One who were allowed to get married, and who's marriages must therefore continue to be recognized. And those who don't have access to the contract of marriage. Unequal treatment under the law .... is unconstitutional.

The definiton has, in effect, already changed. Most of the US is now willing accept marriage between same sex couples according to recent polls. And as people understand language in new and different ways .... concepts change. The evolution of the English language has provided us with countless examples... The defintion of a citizen has changed radically over the last 300 years.


regarding Saclia: The House has a compelling interest to support legislation it has written, meaning there was a controversy for SCOTUS to resolve between legitimate (with standing) petitioners.
However Archdukes comment about Scalias arguement is narrowly right, in that the House did not vote to authorize the defence of DOMA by BLAG in the session in which the defence was filed. But it did vote in the next session... Its really just a question of the timing of the authorization coming from the wrong session of the House.
Still, it would be nothing more than a narrow technicality. Had there been a vote in the earlier session, the House would have supported BLAG. And to deny there was a genuine controversy is Scalia grasping.Dodging the inevitable conclusion that Saclia recognized once sodomy laws were struck down.
Scalia

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity ... every single one of these laws is called into question by today's decision

.

If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution?'

Archduke Russell John wrote:Scalia's entire dissent is basically the Appellate Court had no jurisdiction to hear the appeal. Both the Plaintiff (Windsor) and the Defendant (the DoJ representing the United States) agreed with the outcome of the District Court so there as no longer any controversy.

So he's saying that BLAG has no standing? Perhaps then the GOP House majority should not have wasted all that money on getting them to be a party to the case.

Chadha v INS gives precedent for a house of Congress to have standing (both the Senate and House in that case), so It's not revoking 200+ years of precedent, it's recognising a precedent from 30 years ago. He relies on a very minor technical point - a change of sessions - to ignore that BLAG had already been authorised to raise briefs in 2012, and the vote in the 2013 session merely restated that BLAG would be taking up defence of DOMA.

I can't see why a legislature could not have standing to defend a statute that it had passed, should it wish. If it doesn't wish, then fair enough, there's no case.

So what Scalia is saying as part of the above quote is that the Majority is creating a false controversy, i.e. the Gov't could in the future decide to refuse to pay the refund, in order to maintain jurisdiction because it wants to issue a decision on a law.

In response to Dan's specific comments, yes Marbury v. Madison allows the Court to over rule Congress but only as in an actual controversy. What the Court did here would not qualify under Marbury because it fails under the Cases and Controversy clause according to Scalia.

What I find interesting is that another previous case that BLAG has been involved in is Dickerson v US, which involved an interesting dimension. Basically, the case was over a law that contradicted Miranda. Neither side was arguing that the law was constitutional, but the Supreme Court decided that someone should. Step up Paul G. Cassell, invited by the court to make that case. Scalia didn't object then. He did offer a dissent to the decision to declare the law in question unconstitutional as it countered Miranda, but on different grounds. Cassell was a law professor, but had previously been a clerk for Scalia while he was on the DC Circuit of the Court of Appeals (and also for Burger on the USSC).

I think Scalia's opinion is pretty shonky.