I've already refuted this argument in this thread, Amlord. Perhaps you should read that refutation before reintroducing the argument.

If you know that I fall back on this argument "again and again." You must certainly be aware of the refutation of which I speak. Right? You'll forgive me if I don't re-argue a point I've refuted. I have enough people coming in and re-stating arguments as if those arguments went unchallenged in this thread. If, however, you'd like to challenge that refutation, please do.

Besides, if what you state is true, you are claiming that non-procreative heterosexual couples do not have the fundamental right to marry. Is that true? If so, the State would most likely not go out of its way to allow non-procreative heterosexual couples to marry. Right? Because there is absolutely no difference between a non-procreative heterosexual couple and a same-sex couple when it comes to procreation. Right?



And this is, yet again, where you show your ignorance when it comes to constitutional law, Blackstone. If the ability to fulfill that interest is unharmed by the absence of a restriction, the restriction is unnecessary. In Massachusetts the aim of providing an ideal environment for children is unharmed by allowing same-sex marriage. Actually, the interest is furthered by allowing same-sex marriage, given the State's view regarding sexual orientation and parenting.

Like I said, if the State sees no difference between same-sex and opposite sex couples when it comes to raising children, it can't restrict marriage to opposite sex couples on the grounds that same-sex couples are less fit to raise children.

But it's not unharmed. If Massachusetts were to finally come to its senses and start pursuing that interest, that restriction would quite arguably be an essential component of doing that. That's what the word "necessary" means.

If you want to build a house, it's necessary to have some lumber. If you then don't bother to get tools and workers, you won't be able to build the house, and the lumber will sit there uselessly. Until you do, it won't make a difference whether you have a pile of lumber sitting there or not. But that doesn't change the fact that the lumber is indeed necessary to that goal, even if, by itself, it's not adequate.

Your argument boiled down to "the courts are wrong". You gave examples that you felt backed your assertion (Loving did not assert the fundamental nature of interracial marriage, only of marriage, ditto for inmate marriage, etc.)

However, you leave out that each of these decision did mention procreation and the fact that the courts have explicitly ruled (at least at the state level) that same sex marriage is not a fundamental right. This is reinforced by the fact that they have used the rational basis test in each case (which it has passed).

Your line of argument does not pass the prima facie test.

I most certainly did not leave out that these cases mention procreation. Nor have I left out the fact that the courts have ruled that same-sex marriage is not a fundamental right. I have actually considered those cases. You've left out that two cases that stated that the fundamental right of marriage includes the right to choose to marry an individual of the same-sex. Sure, one of those cases is up for appeal, but those decisions did occur, did they not? Goodridge, did very clearly state:



Don't accuse me of ignoring the facts. I haven't.

If the fundamental right to marry includes the right to choose who we marry, the State can only restrict that choice if it is necessary to do so. If the State is going to claim that it can restrict this right because of procreation, how can it allow non-procreative heterosexual couples that it knows can't procreate to marry and not allow same-sex couples to marry because they are unable to procreate?

This debate is an examination of marriage as a fundamental right. You can choose to participate in that debate, or you can adopt the mentality of "the decision's been made, so any argument that challenges that decision must be wrong on its face." I'd say the latter is not engaging in the debate, but, rather, simply dismisses it. If you choose the latter, I thank you for your completely unfounded accusation and rather useless reiterations. I take them as they should be taken.



That is... that's completely absurd.

The State of Massachusetts is pursuing that interest. The State does not believe that sexual orientation harms that interest. So, while they hold this belief, you believe that they should... what?... ban same-sex marriage until they come to their senses and remove that regulation? To what end? I didn't think that the "we might come to our senses, so we need this restriction on a fundamental right just in case" argument went very far when it came to justifying a restriction. Perhaps the State of Massachusetts should have brought that up in their decision because the Court, for some bizarre reason, assumed that the State Legislature was in its right mind when it passed that regulation. Silly of them.

Perhaps, the Court should not assume that the Legislature is in its right mind and make a ruling based on possible future valid State interests and necessities that might present themselves in future. That wouldn't be legislating from the bench at all. Pardon me, I've got to wipe the sarcasm from my chin.

Whooo.

Okay.

This debate is not about whether or not same sex marriage is a fundamental right.

However, you have used that as the basis of your arguments here.

Courts can most definitely be wrong. However, we must use precedent as it exists today, not as we envision it 25 years from now.

It would be useless for us to debate an issue such as this purely based upon our personal interpretations of Constitutional law. Each of us would have our interpretation with no neutral ground between us. However, if we remain grounded in existing precedent, we can at least come to an understanding based upon where Constitutional law exists today.

State Supreme Courts in Washington and New York (not exactly conservative bastions) have both specifically declined to assign fundamental status to same sex marriage. Indeed, Washington State denies there is a right to same sex marriage at all.



Andersen v. King County

The United States Supreme Court has rejected same sex marriage cases thus far, indicating upon rejecting the consideration of Baker v. Nelson (1972) that there was no Constitutional issue at stake. It issued a denial of certiorari, which is a legally binding precedent on all lower courts. In it:

Until the US Supreme Court revisits this decision, the law of the land is that marriage is subject to the jurisdiction of state legislatures.

As noted in Lockyer v. San Francisco:



That is the law of the land. Marriage is a state issue. State after state has rejected same sex marriage. Even in Massachusetts, there is currently an initiate to get a Constitutional amendment banning same sex marriages. Due to procedures there, it will almost certainly be voted on by the people in 2008.

I am not trying to silence you. However, repeating an argument which the US Supreme Court has rejected (that same sex marriage is a right, let alone a fundamental right) carries little weight. Same sex marriage may be a right in some states, but I would submit that like adoption it is a statutory right, not a natural right.

So its not a fundamental right for same sex couples to be able to obtain marriage, well its not a fundamental right for them to be able to shop at wal mart, so I guess wal mart should ban homosexuals, that line of logic could apply to a grand variety of issues really, hardware stores, certain types of cars you can own, the list is gigantic.

Marriage was adopted into law, and has a definite impact on a couples life after the fact, regardless of children happen to be present or not in the situation. So we say that these benefits if you will should only be allowed to be obtained by heterosexual couples, that may not have children or cannot have children, or decided not to have children, or may even be handicapped mentally or some other physical form of handicap, such people can also be of any race or creed and even be prior felons, but if you are homosexual, have a partner that you share life with, you cannot obtain marriage, or the benefits around such.

ON that note, what about Christian homosexuals, or homosexuals of a certain religion, they cannot get married? what if its important in there religions heritage or belief system, is that not some form of civil rights being obstructed?

Personally I do not find any logic here, simply because in relation to the rest of the environment, it does not add up past bias against the sexual orientation of the parties involved. Most the groups that advocate against homosexual marriage do so from a very bias point of view.

On a last note, if they cannot obtain traditional marriage, should not some alternative be granted to them, or is the issue really about the institution of traditional marriage or simple bias against homosexuals being able to live the commonly accepted normal life of a typical American?

Amlord,



It is useless to debate this issue purely based upon the idea that courts have already made a decision and, therefore, the courts must be right when there is a well known history in this country of rational people choosing to unnecessarily discriminate in violation of the constitution. If the argument is that the courts have made a decision so it must be right... what's the point in debating? I think an examination of how they made the decision and the possible flaws in the reasoning of those decisions is worthy of debate.



Well, considering the fact that this debate was an extension of other debates – as I stated in the original post, the basis for my arguments made in this debate arise out of those conversations. Someone in this thread challenged the assumption that the right to marry included the right to choose to marry someone of the same sex and we began addressing that.



90% of Americans opposed interracial marriage in 1948 and I'm pretty sure liberals made up more than 10% of the population in 1948.

Just because normally rational people make a decision does not necessarily mean that the decision is rational.

If the courts work a certain way... if, as courts have recognized, we have the fundamental right to choose who we marry, on what grounds can the State restrict that choice? Does it not have to be related to a valid State interest? Does the restriction not have to be necessary in order to fulfill that interest? If that's the case, then you are arguing that we do not have the fundamental right to marry the person of our choice. If the State decided to spend the money for testing, the State could very easily claim that it has an interest in maintaining and protecting a particular level of intelligence in future generations, so you can't marry an individual whose IQ is below a certain level. If, we do not have the fundamental right to choose who we marry, such a thing would be consitutional, would it not? I know that IQ tests are not conclusive, but the State might feel it better to err on the side of caution. I mean, why undertake such a social experiment with the intelligence of our children at stake? Right?

Likewise, if we do not have the right to marry the individual of our choice and the nature of marriage as a fundamental right is tied to the ability to procreate, then every non-procreative heterosexual individual does not have the fundamental right to marry at all. Those beyond child-bearing age do not have the fundamental right to marry, any sterile individual in this country does not have the fundamental right to marry.

As, I stated to lederuvdapac previously, if we do not have the fundamental right to marry the person of our choice, these non-procreative heterosexual married couples who many times raise the children – got by procreation and abandoned by their constitutionally protected procreative neighbors – could quite easily have their marriages voided should the Government ever decide to do so. Yet they are held equally responsible for those children by the State. Your claiming that they take on this burden without constitutional protection for the framework they use in order to provide the ideal environment in which to raise these children?

As I've stated previously in this thread, if what you propose is true, then the minimum requirement to gain the constitutionally protected benefits of marriage is that you simply be able to procreate. You can then dump your child on the state or some other schmuck whose marriage isn't constitutionally protected and continue to enjoy your sexual appetite without having to actually ever care for a child. Is this the case?

And, please, do not manipulate my argument by claiming that I am asserting that the government is absolutely prohibited from restricting this right – I make no such assertion and never have.



Really? If we remain grounded, we can cite cases like Skinner that reflect outdated sexual mores and infer from that 60 year old decision – which, itself, was based on laws that no longer exist – the current legal state of marriage today? Is that the type of grounding we should be doing? That's not being grounded, that's being rooted in the past and ignoring the evolution of marriage in our society. Or should we, rather, look to that decision and examine if, indeed, marriage is a fundamental right today separate from procreation – that procreation is only part (and the easiest part) of the equation when it comes to ensuring our survival and that the successful raising of our children is the other.

QUOTE

I am not trying to silence you. However, repeating an argument which the US Supreme Court has rejected... carries little weight.

As I've stated previously in this thread, I'm sure some rational person somewhere said the same thing to Perez in the 40's and Loving in the 60's.

Its not only this but what exactly is a natural right? Last time I checked human nature does not exist in terms of absolute understanding. I can by "natural rights" go and kill another person, and by my "natural rights" I could mutilate by own body with a toaster oven. For the most part people that speak on human nature that have nothing to do with the slow and boring process of the scientific method I doubt to really hold any real understanding of such past just personal anecdotes on the issue, i mean after all can you think of anything you cannot associate with anything you already know? I think its actually impossible, so what does that mean in regards to human nature, probably just more questions we should simply care not to have empirical fact for in regards to answering

To simply allow this really means that homosexuals in general are open to diverse and broad forms of discrimination, its a legal definition in regards to a persons ability from a current label they have about there lives and what they can do with it. To simply say that same sex people do not have to be allowed to get married because its not a fundamental right is loaded with danger for such people. First of all like the natural rights issue, fundamental rights issue is open to perception, that does not have to be non selfish, or working for an interest or group of people, its not only that but such a perception in no way has to deal with fact or care to take such into consideration, its much like Hitler dehumanizing Jewish people in his speeches to make it so they were lesser in base then other people. With such a precedent set legally a person could go about and get support to put such people in socialization or correction camps, much like a prison, where civil rights could end actually do to legal definition, being discrimination is allowed on the basis of a behavior that in itself is not harmful to anyone past personal disgust with it or rejection of such, on that note there are many things i reject, like door to door salesmen, but that’s another issue.

What is to stop a company from saying we do not want to hire homosexuals, or for a state to say we do not want homosexuality in any form to come to exist in public school, or homosexuals or people that commit such should pay a special tax, or be open to more severe forms of police control, the idea being is where will the discrimination, the acceptance of such and bias be allowed to go and create for such people? After all they are not asking for a free ride, simply equality in a base sense of being able to marry someone they want.

This had lead the government or some individuals in such to create the idea of a constitutional ban on same sex marriage in a federal form, not state level, which to me is scary on how easy some people will warp the entire constitution to reflect a temporary personal position that does not have to exist in 20 years... its not only that but it basically saying that politicians should use such a living document as yet another tool in political battles, very bad taste in my opinion.

What’s to stop some far left liberal putting in the constitution that a person can only own one gun then? I mean after all I think the freedom for one adult to marry another adult would be realized in the ability to be able to purse life liberty and happiness, but what we are having is the natural right of some to enforce beliefs on others with no real reason, we are not talking about people trying to make murder legal, or arson again.

its not only this, but its pushing such bias that leads to people, sometimes very young to be beaten to death, its this advocating that leads to such, that makes such look socially acceptable overall. We see the problems brought on by such when it comes to race, sex or creed, but we as a society fail to see it on this issue, because people do not want to because they are bias against homosexuals, this is nothing more then an expression of such, because they are willing to place restrictions on them like this, and more often then not even attempt to make such people illegal basically, that’s like outlawing someone’s existence, or making people with blonde hair illegal for I am sure a large majority of the homosexual population.

I'm sorry you feel I manipulated your argument.

You have continued to rely on a standard which the courts have not given same sex marriage. You continue to insist upon strict scrutiny where court after court has determined rational basis review to be the standard.

I know that you know the difference between these concepts, but for the spectators out there, rational basis review does not require an action to be related to a compelling state interest, only to a legitimate function of government. The rational basis test also does not require that the government action be narrowly tailored: it requires the action to be rationally a means to an end that may be legitimately pursued by government. It also does not have to be the least restrictive means available.

In other words, the courts have not given legislatures carte blanche on the matter, but they give them wide latitude.

Of course the concept of what is a right differs between people. The Universal Declaration of Human Rights includes the right to paid holidays and protection from unemployment. What does it say of marriage?



I guess that mean spirited United Nations forget sexual orientation in there. Either that, or they never felt that marriage between same sex partners would be an option.

My statement was pre-emptive and not a comment on you directly. Some people have come in here and done that.



You are ignoring the court that did use strict scrutiny (though Kramer also showed how the ban also fails even rational basis.) Goodridge also included the choice to marry a person of the same-sex as a part of the fundamental right to marry, but felt the case didn't merit strict scrutiny because the ban couldn't even hold up under rational basis, so such an analysis was unnecessary.



Once again, you have simply dismissed my argument by assuming the courts are right. You haven't even attempted to rebut my argument... simply dismissed it. Completely ignored the questions I posed in the last thread. Well, again, I thank you for your input, but if you are just going to claim the courts are right without examining how or the possible repercussions of such decisions, then there's no point in debating with you, Amlord. Because you're not engaging in the debate. If you hold a position on this topic, back up your argument with something more than the courts said so.

The Supreme Court held that bans on interracial marriage were constitutional. Using your logic, that should simply have been enough. Perez, then, was a gross example of judicial activism, then, eh? Legislating from the bench, were they? Completely defied a Supreme Court ruling with that one.

So, either participate in the debate, Amlord... or don't. But don't come in here and, without addressing any challenges to your argument, simply dismiss mine.

If you won't accept court precedents as evidence, I don't know where that leaves us.

The courts have addressed the similar logic that you have used. Most courts have rejected the notion that same sex marriage is akin to interracial marriage.

Kramer's ruling is quite a feat of legal gymnastics if you ask me. By his logic, no definition of marriage could be legal. He cannot see any basis for a male-female definition of marriage, despite about 5,000 years of human history. Kramer is the only judge to rule that banning same sex marriage does not meet the rational standard review. It leaves one wondering who would be right: this lone judge or the dozen or so panels of judges that have ruled the other way in this decision. Further, he ruled that strict scrutiny applied in this case. Obviously since he opined that the referendum did not meet rational review, his conclusion was that this could not pass strict scrutiny.

California Marriage Cases text of ruling

Kramer flatly ignores the main rational argument for same sex marriage: the encouragement of procreation and family building. Doesn't even consider that argument. Instead, he insists that the State's case rests on two things: marriage has always been between a man and a woman (which he rejects) and the fact that civil partnerships offer same sex couples the same benefits as marriage. Interestingly, the judge agrees that each of these is a Constitutionally valid reason--he simply rejects them.

Perhaps the AG in California did not use the arguments that Courts in Washington and New York states accepted as a rational basis for hetero marriage.

Judge Kramer says that he can look beyond the State's evidence to look for any rational reason, but can find none. He cites Baker v. Baker where a man sued for an annulment of his marriage based upon the fact that his wife was pregnant with another man's child at the time of the marriage. He finds that the case does not help the State's case. Apparently, the man cannot read or simply denies what was ruled in that case:



Granted, Baker v. Baker was ruled upon in 1859. But there is a legal precedent (in California) ruling on marriage, procreation, man and wife all being integral. Kramer rules that despite the plain language, the statement that "the first purpose of marriage...is procreation" does not really mean that at all. What it means, I have no idea.

Kramer goes on to say that despite the court referencing Stewart on Marriage and Divorce (in Sharon v. Sharon 1888) and quoting from it that "the procreation of children under the shield and sanction of law" is a purpose of marriage, the court really didn't mean it and it held no legal standing. I'm beginning to wonder if only what this guy agrees with is precedent. All else can be discarded.

Kramer apparently is under the false assumption that if 100% of an activity is not covered under a state law or if the law does not cover 100% of of the activity, then the law has no rational basis.

He concludes that because procreation does not occur 100% during marriage and marriage is not a 100% guarantee of procreation, then marriage and procreation cannot be linked even on the loosest of bases. Incredible.

After re-reading this, I predict it will be reversed.

The Massachusetts case, which was certainly more disciplined in its approach, used some logic that other courts have not used. Text of decision.



This court has different precedents than other courts, including rulings stating that the "best interests of the child" standard does not turn on a parent's sexual orientation or marital status. (Doe v. Doe, Mass 1983). This certainly is relevant in Massachusetts, but not necessarily elsewhere. If the court has ruled that marital status of the parents does not affect a child's best interests, heaven help them. I disagree, I think most of America would disagree. It is legally binding and thus the court ruled as it did.

So now this is about what states "believe"? States don't have minds of their own. They're just tools to be used by many different minds simulatneously, so it shouldn't be a huge surprise if not all their laws are motivated by the same belief.

You said that in order for a restriction to be constitutional, it has to be necessary to a given end. You didn't say that "the state" has to "believe" it's necessary.

Agreed, but shouldn't those decisions be made upon rational ideas and thought and not base emotion and bias?
Do we really want legislation passed by the flashfire emotions of some groups?
this was once the true job of the senate--to root out bad law.

Well its not fundamental for same sex couples to be wed, or necessary, but it is both fundamental and necessary to make sure they cant, with law... I simply don’t understand, but you cannot call it bias for some reason.

So we then have to deal with the onslaught that its not natural, even though its occurring in the natural world, and not only that there is no definite scientific explanation of nature currently or human nature also, though its being worked on, besides that such explanation is typically usually based on personal anecdotes, which are usually spilling over with fallacy, but you really cannot get the point accepted by all those people that simply know everything, I wonder if such was justice to ever try to progress period.

So overall you are left with just that and its expression in the form of law or government, and of course this issue will flip flop as different perspectives come into power, leading to our legacy of fallacy and or corruption or in my opinion fascism in the minor overall Simply because people seem to want to use the government anymore to enforce there beliefs on everyone that lives in America or is an American citizen, I can only wonder how long liberty will survive such tumbles, at least every four years the people get to fight or vote for regime change, but even that is open to corruption it seems, i mean you vote then the public control basically comes to an end there, then its just government doing whatever it wants from whatever perspective or vision such people may hold, no fact, no care to obtain fact, just might makes right or whatever really in relation to our systems design.

So beyond that, its rational to say that same sex people cannot get married, because some people say so, and that is the ultimate rational, giving human society lives in a utopia of 100% empirical factual understanding of nature and or reality, so there is no point to argue the issue, and if you do you are probably just a closet communist or something or simply anti patriotic because there is only one way to be that is American anyways.

Oh, please, Amlord. I've accepted them as evidence, I put forth an argument challenging the reasoning. Yet again, you simply ignore that challenge and rest on precedent for precedent's sake. And, as I explain below, you don't seem to be concerned too much with the validity of precedents... just so long as the quotes provided – even if they are pulled out of context – say what you want them to.



This is another flaw in their reasoning. The two cases Perez and Loving both deal with the choice of who we marry. As such, there is some connection between the issue of interracial marriage and that of same-sex marriage. The question these cases raise is, on what grounds can the government constitutionally restrict that choice? You see, this is one of those questions I asked above... you know... the ones you haven't answered? You see, the courts you mention all immediately state that marriage is not a fundamental right for same-sex couples without really examining the nature of that right and whether, as is explicitly stated in Perez and implied in Loving, the choice of who we marry is an important aspect of that fundamental right. So, I ask again... is it? I ask with the hope that you might actually provide an answer.

And, it should be noted, if we'd relied entirely on whether the question had been answered by the Supreme Court, interracial marriage would still be banned.



Eh, no. Completely untrue. Goodridge was decided using the rational basis standard.



No, obviously, you haven't read the entire document. He actually dedicates many pages to a detailed strict scrutiny analysis and does not rest that decision simply on the fact that the referendum did not meet the rational basis standard of review.



Is the Justice supposed to help the State come up with valid State interests? Or is that the State's job?



He insists? This is what the State brought to the table, Amlord – he did no such insisting.



Really? And where does he do that again? Where does he... simply reject them? Where does he claim that they are Constitutionally valid as related to this particular restriction?



First, let's be clear here. Justice Kramer did not cite this case as precedent. The State cited this case as precedent. The Justice rejected that citation's validity.

Second, if you read the entire document you would see this:



What this means, Amlord, is that you can't pull a quote from a case, claim it provides precedent, without looking at the complete argument... the context from which the quote is pulled and the implications of that complete argument.

It would be like if I stated, "God created man, if you believe the Bible." and you took the first part of that argument and used it to claim that I believe that "God created man."

Baker very clearly stated that, despite this "first purpose of matrimony", an individual can legally choose to marry an individual who is unable to produce children – as long as he voluntarily does so and is not the victim of fraud.

This being the case, the precedent does not support the State's argument.



Another falsehood. Kramer states that the quote had nothing to do with issues of the case being presented as precedent, therefore the precedent had no bearing on this case. That one quote from that obscure treatise was all that they could pull from that case... a case that had absolutely nothing to do with procreation. Sharon v. Sharon was not a valid precedent for their argument.

For somebody so concerned with precedent, you don't seem to show much interest in whether the precedents are actually valid.


What?! So, this should be reversed simply because the State did not make their case?



So, are you claiming that the Justices were not legislating from the bench in this case?



I've already explained to you the "State as an entity separate from the populace" concept, Blackstone.



All I can say to this is... huh? I have no idea what you are talking about here.

Did you cite the Supreme Court opinion that articulated this interesting constitutional principle? (sorry, it's a long thread)


It shouldn't be that hard to figure out. In order for the restriction to be constitutional, are you saying that the state has to believe it's necessary to fulfill a given purpose?

Blackstone,





I didn't say that at all.

That makes sense enough as far as it goes. But it doesn't contradict my point that the expectations of "the state" are really just a subset of the expectations of society. Whether those expectations are valid reasons for considering a law constitutional is another matter, but the point I'm making is that the state can not logically have a mind of its own, because it's just an instrument. Therefore, the fact that some politicians have been prevailed upon to legalize something can not be considered proof of any expectation on the part of "the state". It's at most, just proof of an expectation on the part of some political faction within the state.


Then your statement in this post that "The State does not believe that sexual orientation harms that interest," is of no relevance to this discussion. States don't "believe". What matters is whether same-sex parenting actually does harm that interest, not whether or not the state believes it does.

Blackstone,

You are not making any sense. You say that you understand the concept of the State having expectations and beliefs – expressed through its laws – that conflict at times with the expectations and beliefs of Society. Then you claim that State's can't have a belief.

Only in a very metaphorical sense - that's why I said, "as far as it goes". Just to put it in as direct terms as possible, when it comes to evaluating the constitutionality of laws, it doesn't matter what the state supposedly believes. What matters is whether the laws in question are actually necessary to accomplish a particular goal, not whether the state "believes" that they are necessary.

You appeared to agree with that point when I asked you if you thought the state's beliefs were a necessary criterion, and you said you "didn't say that at all."

The State has to prove the restriction is necessary. The State's belief that sexual orientation does not harm their interest – as expressed through the law – proves that the restriction of marriage based on that interest is actually not necessary. If the State believes that allowing gays to adopt does absolutely no harm to its interest – as it has expressed through it's passage of the regulation – then the State does not have a valid interest in restricting marriage for that purpose... the interest isn't even valid let alone necessary. This is how Goodridge ruled.

No, it proves that whoever was actively responsible for getting that particular law enacted doesn't believe it's necessary. It does not prove that it actually isn't necessary.

I'm curious about something: If, say, Alabama does not have an adoption law like the one in Massachusetts, does that mean that Alabama would possibly be able to make the case that it can constitutionally exclude same-sex marriage, at the same time that Massachusetts could not? Could the same law be constitutional in one state but not in another, because the two states "believe" two different things?

No. In terms of serving a State interest, it means that it actually isn't necessary.



This is true. I don't know the adoption laws in Alabama. But, let's take Florida, for instance. Florida is the only State in the country that absolutely prohibits adoption by homosexuals. Florida would be able to support its claim that it has that valid State interest. Whether the restriction is necessary is another story. A ban on same-sex marriage for that reason would certainly pass rational basis review. It might not pass the strict scrutiny test.



Marriage is regulated on a State by State basis - as is adoption, as I recall. While the State constitutions can offer no less protection than the Federal Constitution, they can certainly offer more. California is a prime example of this. The California equivalent of the 14th Amendment offers broader protections in its language than the US Constitution.

In terms of marriage, however, you do have the Full Faith and Credit clause of the US Constitution. If a couple's marriage is legal in one State, every other State must, under the US Constitution, recognize the validity of that marriage.

For example, if the age of consent for marriage is lower in one State than others, the other States must recognize the validity of that marriage even though such a marriage would be illegal if performed in these other States.

The current laws banning recognition of out of state same-sex marriages – which very clearly violate the Full Faith and Credit clause – have yet to be challenged in Court, I think. I'd have to look.

Is there a Supreme Court ruling which holds that the laws a state already has on the books are direct evidence of that state's interests?


When I asked if the same law can be constitutional in one state but not another, by "constitutional" I mean, consistent with the U.S. Constitution, not their own state constitutions. I know that state constitutions are quite variable from each other.


I don't think that's a generally accepted view. According to Wikipedia, at least:

entspeak:

You would do well to consider another thought. Marriage is not being restricted. It is only being created and extended as desired. And the state is allowed to do that. And we don't call it invidious discrimination.

And you miss the point in another area as well. Why do we care just who we marry? Because we want to procreate with the human of our choice. Homosexuals simply cannot say that, since they are not marrying for purposes of procreation.

And do you know what the bastard child was called at common law, going back to Blackstone? Filius nullius, or son of no one. The bastard child was considered to have no father or mother and became a ward of the parish church. Now, please revisit the miscegenation cases that you erroneously believe to be so apropos. Can you see that without any regard to any notion of "white supremacy", that there was good reason to allow interracial couples to marry? If not, not giving the interracial couple a marriage license does not mean that they cannot and will not ever reproduce, and so why create any of those called filius nullius? You might otherwise check the law[s] of the various states regarding the termination of parental rights, and you should find that it was so long ago that the single father had next to no rights to his child. To make the point in rather unmistakable terms, please see:

http://tinyurl.com/hssrv

Lastly, I suspect that Judge Kramer will receive the same spanking on appeal as did Judge Ling-Cohan in New York.


Edited to add:

From the dissent in Stanley v. Illinois, since the same can be used by the State to demonstrate why it provides benefits in order to encourge marriage:

"Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male's often casual encounter. This view is reinforced by the observable fact that most unwed mothers exhibit a concern for their offspring either permanently or at least until [405 U.S. 645, 666] they are safely placed for adoption, while unwed fathers rarely burden either the mother or the child with their attentions or loyalties. Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State's obligations as parens patriae."

As you yourself have seen, there is indeed talk in the marriage cases about that accidental child of the heterosexual couple. And so the state has also reported that it is not invidously discriminating against homosexuals, but is instead trying to further the welfare of illegitimate children in fulfillment of the state's obligations as parens patriae.

Read back this to yourself slowly. Perhap you might have the laugh I did. Ridiculous. You aren't really going to argue that state interests are nor reflected in laws. All laws must serve a State interest. So, yes... a law would be direct evidence of a State's interest.



If a law violates the US Constitution it is unconstitutional in every state. As I stated, no state can offer less constitutional protection than the US Constitution. This is why Supreme Court decisions – which are based on the US Constitution – are binding to all states. This is what occurred with marriage in the Loving decision.


I will concede that there is some question regarding the applicability of the Full Faith and Credit Clause to same-sex marriage. The article you linked to does not say definitively that it wouldn't.

Here's another quote that uses the word "traditionally":



I will concede that there is a question as to its application to same-sex marriage.

Kivrot,

When a child is adopted in this country, the adoptive parents assume the rights and obligations of the biological parents. End of story.

So, is procreation the fulfillment of the marriage contract? Is that what's being assumed here with these two questions? Is procreation like fulfilling a debt to the state for marriage rights? It's like "payment"? Like, the state says it will legally marry you, meaning certain benefits and protections, but you must agree to offer up your first born for the privilege? Something like that? You must offer the state children?

How can the state have any rights to require progeny from people in exchange for anything it provides? What about the rights of people who do exist and the state's recognition and service to their rights? How can it demand progeny from them? Is that what two people who wish to marry are seeking from the state with the state marrying them? A legal "cradle" for the babies they must plan to have? I thought people sought a legal union with another for the purpose of their commitments to each other being legally recognized. That means granting to another person and receiving from another person certain legal powers regarding their lives and each others lives. That's marriage.

I don't think marriage is for children, unless children are a natural part and outcome of their lives, but it's two lives being legally bound that's marriage, regardless of children, if any, or how many.

I mean if a married woman who hasn't had any children yet, got pregnant, then would she have the right to an abortion, or would that be some breach of contract to the state that it gave here her marriage for? Does anyone owe the state a child once it married them? I don't think people have to promise the state children for them to get a marriage contract from the state. Isn't that a bit barbaric? Is there any clause in marriage contracts that the two will, if possible, have children and then they are obliged to reproduce in fulfillment for being granted a marriage? I mean marriage vows aren't vows between a state representative and two people; they are between the two people. People don't stand before a state representative vowing to have children for the state's interests in order to get a marriage contract, do they?

I think maybe there is an assumption here of a authoritarian interest on the state's part in granting marriage. However, married people aren't legally indebted to the state for offspring.

I thought the "beauty" of marriage, that is the reason why someone wants another to consent to marry them is that it means mutual legal rights regarding each others lives. They are legally consenting to giving each other acess to one another's intimate affairs. Wether those affairs involve children or not depends upon the individuals, but I don't think that's the purpose of marriage. They want the legal and social bond produced by the marriage contract. I think that is what a marriage contract is meant to serve. It's the meaning people typically find in it I think. Otherwise people would have to agree to have children, if possible, in exchange for being granted a marriage license.

If that is true, why limit the extension of marriage to gay people? Why not any group of non-child bearing people? Why not allow people to marry people?

This is a common argument used to promote gay marriage. But in using it, I can't find a convincing argument of why marriage should be arbitrarily extended to gay couples only. Limiting the extension of marriage to gays seems arbitrary and discriminatory.

The only issue is whether the restriction is arbitrary, DaytonRocker – not whether the extension of the right is arbitrary. Everyone has the fundamental right to marry the person of their choice. That right can be restricted by the government. According to Constitutional law, this restriction can't be arbitrary. You assume that by allowing same-sex couples to marry, the restriction of other groups becomes arbitrary... this isn't the case. This is what you continue to ignore when your argument is challenged.



I believe that the fundamental purpose of marriage relates to the raising of children. While there can't, in this day and age, be a requirement that a couple procreate, up until early in the last century, couples had to allow for the possibility. At that time, the only option available to absolutely not allow for that possibility was to not have sex. So, while the focus on how children arrive in families have changed, and while the choice not to have children has become easier, I think that the fundamental purpose of marriage... it's true aim, is to create an ideal environment in which children may be raised. This is not to say that those marriages that do not produce children also do not provide a benefit to society, there are benefits provided to society just by being in a stable familial environment even if no children are present. But, the ultimate aim of marriage, in my mind, is to provide an ideal environment in which children can be raised.

You aren't really going to argue that those responsible for getting laws enacted always have the state's interests at heart, are you? Yes, "all laws must serve a State interest." That doesn't mean they always do.


So then what difference does it make whether or not Massachusetts prohibits taking into account the sexual makeup of the couple wishing to adopt a child? If the law against same-sex marriage is unconstitutional, it's unconstitutional regardless of whether or not Massachusetts has that law on the books, right? Otherwise, a state that didn't have such a law on the books would be able to prohibit same-sex marriage, whereas Massachusetts would not.

This may be true, but it is not the job of the courts to determine whether an unchallenged law actually serves the State's interest. That would be legislating from the bench. It can only address the issue at hand. It must assume that these other laws are evidence of the State's interest. If it's on the books, the State must've wanted it there. So, in determining whether a ban on same-sex marriage is unconstitutional in that State, the courts have to assume that the State knew what it was doing when it passed the adoption regulation.



We need to remember that Goodridge was not decided via a strict scrutiny analysis – the court didn't feel it was necessary because the law so obviously didn't even pass the less stringent rational basis standard. So, while an absence of a law on the books might allow a ban to survive rational basis review based on that interest, it may not survive strict scrutiny analysis.

I absolutely disagree with this. The issue of marriage, in my mind, is a legal bond between two people. Whether those two people are potential parents or not is a separate issue. As evidence of this separateness, consider the legal bonds between parents and children. Those bonds are independent of whether the parents are married. The legal rights and obligations in parent/child relationships exist independent of the parents marriage status.

Marriage is in fact a contract between two people. So it is their interests the contract serves. What's an ideal environment for a child is dealt with by separate laws. Marriage is for the security of the two it involves, and children are a separate consideration. I mean people typically marry prior to having children and at least intend on remaining together long after, "til death do us part", not "until our children leave the nest". Marriage is primarily then in the interest of each party to the contract and that's what it's for. It's whole meaning is the binding of two people's lives together- for life.

That means the primary purpose of marriage regards the two individual's promise to one another.

Consider also the interests people seek with a marriage when they are already past chchildbearing age, or have already had all the children the plan to. People still have that primary interest marriage serves as something they seek marriage for. They want marriage even after divorces and grown up children. How many people fit in this cacategory? I bet it's a large percentage. Marriage serves the inindividual interests of the parties to the contract , and that doesn't include children. They are a third party.

The purpose of marriage is to satisfy the need people have to share their lives with another. That's the whole agreement of marriage, to "forsake all others, through health and sickness etc...". It's about two people agreeing to be there for one another for life. People need that, or want it because it sucks to be alone, to not have someone there just for you to put you first and you to do the same, to have someone to count on. It's a promise to each other to be there for the other person, and yourself for them. That is what the contract means. It's about that personal security that people get married for and say their vows in promise for. The security of children is dealt with independently of this in the law.

And when it was illegal to have sex if you weren't married? What was the primary purpose of marriage then? When it was illegal to use contraception? When it was illegal to have any sex in marriage that was not conducive to procreation? What was the primary purpose of marriage then? What were the legal bonds between parents and children outside of marriage then? They didn't exist. As Kivrot points out, children not born in marriage were legally considered "son of no one."

You have shown that the State allows more people to marry than is necessary. The State is most certainly allowed to do this. It is the restrictions that need careful consideration because if the State is going to allow more couples to marry than is necessary, it can't arbitrarily restrict another group from marrying for reasons that could be easily applied to these other couples.

Why two? Why not 3? Or 4?

You've chosen the traditional limitation of marriage and wish to extend it to same sex couples. But what makes same sex couples different than any other class of non-child bearing groups of people that may want the same benefits for the same reasons?

It seems Utah has already started the ball rolling on this issue. If you are for gay marriage, I don't see how you could oppose what these groups of people want as well. Will we see the staunch support for gay marriage found here on AD roll over to polygamous groups as well?

edited to correct wording

Says who? Why does it have to make any assumption one way or the other? Why can't it simply evaluate the law under review? As I said, the state doesn't have a mind of its own, so those responsible for enacting one law aren't necessarily going to be the ones responsible for enacting a later one. That doesn't mean the ones enacting the later one don't have a rational reason for passing it, even if it's not consistent with the reason someone else had for passing the earlier one.

Well, how else is the court supposed to determine if the State's interest is valid and related to the restriction imposed by the law under review if it doesn't look at other laws that deal with that interest? The laws are evidence of the State's interest.





Yet again, you make the same assertions without responding to the challenges to your argument. You don't see because you ignore these challenges to your assertions. Thanks for the article, I'll look into it.

By the by, the Wikipedia entry for Warren Jeffs has a lovely little message from him to women. Worth taking a listen to. Then you can go back in the thread and read the arguments that illustrate why a ban on polygamy isn't arbitrary while a ban on same-sex marriage is. Warren Jeffs is the only person in his faith that is allowed to perform marriages. He assigns wives to husbands – and he has been accused of assigning under age girls to older men. He exiled a group of men and re-assigned their wives to different husbands. Is this the type of marriage that you seem to claim the State arbitrarily discriminates against if same-sex marriage is arbitrarily discriminated against? Are you somehow claiming that the State has no valid interest related to preventing these types of marriages? Polygamy opens the door to this kind of abuse, it is necessary to restrict marriage for this reason. Polygamy is not only banned, it is a criminal act. There is absolutely no comparing the issues associated with polygamous unions and those of same-sex unions.

I'm disagreeing only with the notion that marriage is for raising children, that that's it's purpose. I think it's just a diversion from the obvious to argue that marriage is for procreation. I mean marriage vows themselves make the purpose of marriage self-apparent. I think it's a joke when people say this, that they really think marriage is for children. I mean come on. How often do straight folks in a marriage engage in sexual relations for procreative purposes? It's like this argument is made tounge in cheek, hoping the naive will fall for it.

Seriously, sex is only occasionally at best for procreative purposes, but that makes it no less valid a need, and one people seek to secure through marriage. Uh, haven't you ever heard "To have and to hold, til death do us part"? Marriage is a romanic institution that people get into for their own individual needs. That's what it serves and everybody knows this. They know it for themselves.

Anyone who's ever witnessed and cried at a marriage ceremony undertstands what the damn purpose of it is.
When someone takes their marriage vows, what in the world is important about that?! It's the other person. It's the other person that's important! Who doesn't know that? What "bride to be" doesn't get weak in the knees over that alone as her reason for donning such an ostentatious outfit?

I'm not choosing a traditional limitation of marriage. Anyone arguing that marriage is basically for children is taking a traditional consequence of it, one that only exists because marriage has been restricted to opposite sexed couples, and trying to define marriage by it. That's just trying to use that to make it necessarily a heterosexual institution.

Why not two or three? Indeed why not? I mean if you're going to argue marriage is for procreation, why not? Polygamists probably provide the most secure practical environment for raising kids. I still think they are crackpots though, and so too might be their kids, but I'm sure they are well-fed and clothed and what else matters ala "procreation"? I mean if one is going to argue that marriage is for procreation, well, religious extremists of the polygamist variety have more kids than just about anyone else. They might be crazy, but hey, the numbers I guess make up for that. There is your perfect example of marriage serving a primarily procreative purpose. The "Husbands" are more like cattle ranchers and their "wives" are just cows whose sole purpose is to bear children for the glory of god. When one wife is pregnant, there's another to work on inseminating.

You could replace "god" with the "state" when people argue that marriage is granted by the state primarily for breeding. I'm just not of the mind that marriage should be based on a view of people as so mcuh heads of cattle.

Why not two or three, or more? Well, for one, there is an inherent inequality to the traditional types of "multi-marriages", like the mormons. The commitment the man makes to any one wife is subverted and contradicted by the addition of another or more. Also it's within the inherent nature of any contract that it's between two parties. Think about a three party marriage for a second: each party to the marriage is one party to the other party of two. So there is always this necessary duality. For each person it's just that person and the other party. Here again, one can see an inherent inequality involved for any individual in a "multi-marriage". That is if I am one member of a three party marriage, there is an inequality between me and the other party. The other party outnumbers me. Each individual is at this disadvantage. This, however is not true of a two person marriage.

So there is a good reason to limit marriage to two people. The reason is that it actually only takes two for a marriage, and any more than that ruins something marriage is supposed to provide for. I don't think you can go beyond two without contradicting it. A marriage requires at least two, and I think it only can be two as well.

If you do try to go beyond two, one can see that the marriage becomes unjust. It does, like I said, because once there are at least three, there is inequality for any one member. I think an essential aspect of marriage is equality, yet with three or more any one person in it is opposite a party that is superior to themselves. They are opposite a party of two. I mean you can't get away from the two party nature of it, even if for any individual it's a party of two against one. That's inherently unjust.

entspeak:

To reply to:

"Kivrot,

When a child is adopted in this country, the adoptive parents assume the rights and obligations of the biological parents. End of story."

Yes. And in some other country Jews were gassed. So what does "in this country" mean and why is it "end of story"? And my aunt and uncle otherwise assumed the rights and obligations of my mother when my mother placed me in their care while she went off to attend university out of state for purposes of completing one of her post-grad degrees, and so what does "in this country" and "end of story" have to do with that? So if you are going to have a legal theory, at least try to make it consistent, rational, and otherwise in line with our existing reality. Given what you said above re the purpose of marriage, one, me, wonders why you have any great trouble with the notion of heterosexual only marriage in the first instance, I mean, at least with that, we are at the right starting point. Now we just need some introduction, some romance, what Bob Seger called the "horizontal bop" and that purpose will hopefully become our reality. Now to apply our consistent, rational, etc., legal theory, if you claim to be playing the so-called "devil's advocate" and are merely taking the one side for purposes of mere legal argument, well, the consistent and rational view is simply that you need look at the matter through the eyes of the correct model. Or did you not learn and/or were not taught that when you took Con Law?

It's all in the model. And the model here says that you don't get to complain merely because the statute might be a little over and under inclusive. You agree with the basic premise posited by the state, i.e., the purpose of marriage is so that if some have some child or two or twenty, that such occurs in a setting that will best serve the interests of all concerned. Two minds and four hands to parent, the love of both of souls for the child, the child's living in and appreciating the same, the child's healthy introduction to both genders, etc. And the state will here justify the overinclusion to which you so wrongly object on the simple ground that there's this thing called "privacy" and the state does not see how it can preserve that right and determine whether any individual married couple is fertile and/or otherwise desirous of creating little Jane and Johnny. So, in my best street lawyer, it's a case of, well judge, there's that, and also, this is going to get damn rather expensive and the state believes that it could use the money for more other worthy purposes, I mean, judge, have you ever heard of WIC? That's one of those more worthy purposes. Your Honor, the state knows that with man and woman, at least the basic premise has been met. Only with lack of desire and/or some incapacity is there a risk of no child, and as the Family Court's paternity and divorce calendars make plain, the desire of some to not have children does not override the laws of our more human biology and should "sparky" swim and win that literal race of a lifeti