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Old 03-28-2013, 07:29 PM   #41
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. That would create a massive constitutional issue. All of a sudden legal contracts in one state are not binding in another. A slippery slope.
We already have that with different ages of consent to marry in different states. We allow different standards for many things across the states.
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Old 03-28-2013, 08:05 PM   #42
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No one is stopping gays from being married in their own "churches." They have the "civil right" to do so. However, for a state to recognize that relationship doesn't fall under the protection of the constitution, at least the way I understand it. Just like mormons can have 15 wives, they have the RIGHT to do it, but they don't have the right to have anyone recognize it.


Who is talking about churches.
We are talking about a state being able to decide which two legal adults enter into a contract. In Loving vs Virgina, the state of Virginia did not issue marriage licenses to inter-racial couples. This practice was deemed unconstitutional.

If someone is going to say, well states can discriminate and not issue marriage licenses to two adults of the same gender. That rationale applies to other examples list above.
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Old 03-28-2013, 08:08 PM   #43
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We already have that with different ages of consent to marry in different states. We allow different standards for many things across the states.
That has to do with the age of consent as an adult. It is true for entering into any legal contract within that state. (And you know it. You are just trying to deflect)
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Old 03-28-2013, 09:45 PM   #44
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So you disagree with the ruling in Loving vs Virgina. You hold that states should be able to forbid inter-racial marriage as well?

How far do those states rights go. Should states have the right to prohibit inter-faith marriages? What about not legally sanctioning the marriages of a particular religious group?
Personally I don't believe the states should be in the business of marriage in the first place. But I also believe that the Constitution isn't supposed to protect us from bad laws. Marriage is not something I believe is inalienable from the intrinsic worth of a human (or two humans, for that matter).

The guys in here are talking about preferential tax treatment. Not once did anybody mention marriage as something holy or sacred or anything like that. The arguments made before the court are about preferential treatment for couples willing to procreate. Everybody is talking about the practical benefits of marriage. Not the spiritual ones.

If we're talking about practical benefits, then of course states and the Federal government have the right to regulate that. As for marriage itself? Is it a religious institution? If it is then any laws, state or Federal, would be in violation of the 1st Amendment. But if it's not, then I think the states should be entitled to do whatever they want with this thing that we call marriage so long as it doesn't infringe on the Constitution or our inalienable rights.


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As history has shown, individuals have rights under the constitution that trump the rights of states. That is the question in both cases. Although the USSC is going to try and punt on both of these given other non-discrimination marriage rulings in the past. Loving being the most well known, that is gonna be a bit of a tough punt.

I would love to see the govt get out of the marriage business. But, that is not going to happen any time soon. Unfortunate, but, true.

I hope they uphold the Prop 8 ruling and finally overturn DOMA, it should have been overturned years ago and never put on the books in the first place.


The reason they did was worries about damage to the "full faith and credit" clause. They did not want the problem of certain states recognizing a marriage when others didn't. That would create a massive constitutional issue. All of a sudden legal contracts in one state are not binding in another. A slippery slope.
Actually, that's what I think is gonna happen as well (Prop 8 upheld, DOMA struck down). And I think it's the best decision possible given the circumstances.
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Old 03-29-2013, 12:23 AM   #45
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Who is talking about churches.
We are talking about a state being able to decide which two legal adults enter into a contract. In Loving vs Virgina, the state of Virginia did not issue marriage licenses to inter-racial couples. This practice was deemed unconstitutional.

If someone is going to say, well states can discriminate and not issue marriage licenses to two adults of the same gender. That rationale applies to other examples list above.
Homosexuality has not been deemed a protected class, like race, at the federal level. These decisions may create that protected status, however. But the discussion I heard from the hearing before the USSC seemed to be focusing on rational basis scrutiny for both Prop 8 and DOMA, so it may be that the USSC isn't quite ready to go there.
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Old 03-29-2013, 12:45 AM   #46
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Homosexuality has not been deemed a protected class, like race, at the federal level. These decisions may create that protected status, however. But the discussion I heard from the hearing before the USSC seemed to be focusing on rational basis scrutiny for both Prop 8 and DOMA, so it may be that the USSC isn't quite ready to go there.
Quite so. I have to admit I think the arguments on both sides have been pretty weak sauce. I have said it since DOMA passed in 96. This has nothing to do with straight or gay. It is about gender. The federal DOMA and Prop 8 (and virtually all the state DOMA statutes) are quite clear. It is defining marriage as "legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."

Last I checked the term man and woman defined gender, not sexual orientation. And gender is a protected class, is it not. It is clear both sides have made these legal fights "gay/anti-gay" issues. But, in looking at the language of the law, the laws really aren't.

It will be a very interesting next 3 months, and the months following that even more interesting.

But, at present there are much more pressing matters of import to attend to, like now that Marquette pimped slapped Miami, just what state are my brackets in.
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Old 03-29-2013, 12:47 AM   #47
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Who is talking about churches.
We are talking about a state being able to decide which two legal adults enter into a contract. In Loving vs Virgina, the state of Virginia did not issue marriage licenses to inter-racial couples. This practice was deemed unconstitutional.

If someone is going to say, well states can discriminate and not issue marriage licenses to two adults of the same gender. That rationale applies to other examples list above.
Thats why I put churches in quotes. I meant in their own private ceremonies.
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Old 03-29-2013, 12:50 AM   #48
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Quite so. I have to admit I think the arguments on both sides have been pretty weak sauce. I have said it since DOMA passed in 96. This has nothing to do with straight or gay. It is about gender. The federal DOMA and Prop 8 (and virtually all the state DOMA statutes) are quite clear. It is defining marriage as "legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."

Last I checked the term man and woman defined gender, not sexual orientation. And gender is a protected class, is it not. It is clear both sides have made these legal fights "gay/anti-gay" issues. But, in looking at the language of the law, the laws really aren't.

It will be a very interesting next 3 months, and the months following that even more interesting.

But, at present there are much more pressing matters of import to attend to, like now that Marquette pimped slapped Miami, just what state are my brackets in.
Thats a hell of a stretch, but interesting nonetheless.
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Old 03-29-2013, 01:06 AM   #49
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Quite so. I have to admit I think the arguments on both sides have been pretty weak sauce. I have said it since DOMA passed in 96. This has nothing to do with straight or gay. It is about gender. The federal DOMA and Prop 8 (and virtually all the state DOMA statutes) are quite clear. It is defining marriage as "legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."

Last I checked the term man and woman defined gender, not sexual orientation. And gender is a protected class, is it not. It is clear both sides have made these legal fights "gay/anti-gay" issues. But, in looking at the language of the law, the laws really aren't.

It will be a very interesting next 3 months, and the months following that even more interesting.

But, at present there are much more pressing matters of import to attend to, like now that Marquette pimped slapped Miami, just what state are my brackets in.
Did anyone talk in terms of gender under the EPQ? I haven't heard it discussed, although I have actually not heard all (or even that much) of the oral arguments.

But, like you said, it will be interesting to see how this all shakes out.
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Old 03-29-2013, 02:36 AM   #50
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What if Congress passed a law outlawing arugula as a food. Is it a stupid law? Yes. Is it unconstitutional? Probably not.

Nowhere in the Constitution does it say that the states don't have the right to regulate marriage in a way they see fit so long as it doesn't violate the Constitution.
If Congress passed a law that said purple people could eat arugula, but chartreuse people could not, yes, that would probably be unconstitutional. It's not about the arugula, it's about the govt denying access to one group and allowing it to another.

Not that anyone has a "right" to eat arugula. But they have a right to be treated equally by their govt. THAT is the part that's unconstitutional.

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People are challenging the law because they want the Courts to overturn something that was certified by the majority of voters in California. Instead of taking the time and effort to amend the law via a similar plebiscite, they want 5 judges to do the dirty work for them.

I believe in judicial restraint, and if the Court can't find something in the US Constitution to overturn a bad law, then the bad law should stand.
Power is not vested in the majority to deny basic civil rights to the minority. You're correct that a majority of voters in CA voted to deny access to a civil institution to a certain demographic. The constitutionality of that law is now being challenged. SCOTUS is performing one of it's most important checks/balances upon the legislative branch by reviewing a law and possibly striking it down if it violates the Constitution.

As many have stated, this wouldn't even be a discussion if Prop 8 (voted in by a majority) defined marriage as a union between two people of the same race.

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Personally I don't believe the states should be in the business of marriage in the first place. But I also believe that the Constitution isn't supposed to protect us from bad laws. Marriage is not something I believe is inalienable from the intrinsic worth of a human (or two humans, for that matter).

The guys in here are talking about preferential tax treatment. Not once did anybody mention marriage as something holy or sacred or anything like that. The arguments made before the court are about preferential treatment for couples willing to procreate. Everybody is talking about the practical benefits of marriage. Not the spiritual ones.
That's because the anti-gay marriage lawyers are smart enough to know that if they try to base their arguments on religion or spirituality, they'll sink their own ship.

One group using the govt to impose their religious views on another group would be an egregious violation of civil rights in this country. So even though the anti-gay marriage crusade is largely motivated by Christianity, the people in that courtroom are dancing all around the issue and trying to find other reasons to be against gay marriage.

That's why their arguments ring so hollow. They're getting into all this procreation crap and it's just ridiculous.
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Old 03-29-2013, 10:41 AM   #51
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If Congress passed a law that said purple people could eat arugula, but chartreuse people could not, yes, that would probably be unconstitutional. It's not about the arugula, it's about the govt denying access to one group and allowing it to another.

Not that anyone has a "right" to eat arugula. But they have a right to be treated equally by their govt. THAT is the part that's unconstitutional.
Actually that wouldn't be unconstitutional. It is perfectly legal to have a law that discriminates based on any number of characteristics such as age, whether you are a contractor or an employee, the amount of money you make, your marital status, your racial categorization. Really, there are any number of things that the government can use to treat two people differently from one another.

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Power is not vested in the majority to deny basic civil rights to the minority. You're correct that a majority of voters in CA voted to deny access to a civil institution to a certain demographic. The constitutionality of that law is now being challenged. SCOTUS is performing one of it's most important checks/balances upon the legislative branch by reviewing a law and possibly striking it down if it violates the Constitution.
I don't think it violates the Constitution. I'm not sure the Justices do either.

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As many have stated, this wouldn't even be a discussion if Prop 8 (voted in by a majority) defined marriage as a union between two people of the same race.
Right, but that's a different ballgame. There are things incorporated into social norms that are inviolable. Right now, gay marriage isn't one of them. Again, the Constitution doesn't protect us from bad laws.
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Old 03-29-2013, 11:52 AM   #52
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Actually that wouldn't be unconstitutional. It is perfectly legal to have a law that discriminates based on any number of characteristics such as age, whether you are a contractor or an employee, the amount of money you make, your marital status, your racial categorization. Really, there are any number of things that the government can use to treat two people differently from one another.


I don't think it violates the Constitution. I'm not sure the Justices do either.


Right, but that's a different ballgame. There are things incorporated into social norms that are inviolable. Right now, gay marriage isn't one of them. Again, the Constitution doesn't protect us from bad laws.
You're right that there are certain laws that discriminate based on a demographic. But the govt can show at least some reason or benefit for them.

Example: voting law discriminates by denying access to the civil institution of voting based on age. But the govt can show that it has well intentioned and sound reasons for denying access to a certain group (<18) for the betterment of society in general. Is the age somewhat arbitrary? Sure. Is it unfair to allow an immature 21 y/o to vote but prevent a mature 16 y/o from voting? Of course. But the nature of the law itself can stand up to at least some scrutiny.

Denying access to the civil institution of marriage based on gender is a lot harder to justify. I have yet to hear a reasonable anti-gay marriage arguement that doesnt involve imposing one group's religious views onto another.

We'll see what SCOTUS says. I certainly hope they'll rule that these laws are bad laws because they violate civil rights in violation of the Constitution.
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Old 03-29-2013, 12:42 PM   #53
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Right, but that's a different ballgame. There are things incorporated into social norms that are inviolable. Right now, gay marriage isn't one of them. Again, the Constitution doesn't protect us from bad laws.
At the time of Loving vs Virginia, inter-racial marriage held much of the same disdain as same-sex marriage does today. Depending on exactly which data you look at at that time inter-racial marriage was socially less violable to the populace than same-sex marriage is today.
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Old 03-29-2013, 02:12 PM   #54
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At the time of Loving vs Virginia, inter-racial marriage held much of the same disdain as same-sex marriage does today. Depending on exactly which data you look at at that time inter-racial marriage was socially less violable to the populace than same-sex marriage is today.
Yeah, that's exactly my point. Society will govern itself by the rules it feels comfortable with today. Not with what society will feel comfortable with a decade from now. The overarching document from which our government derives its legitimacy from, the Constitution, protects certain rights regardless of what society says is proper at a given time, but if laws don't infringe on those rights, everything else basically goes.
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Old 03-29-2013, 04:01 PM   #55
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Yeah, that's exactly my point. Society will govern itself by the rules it feels comfortable with today. Not with what society will feel comfortable with a decade from now. The overarching document from which our government derives its legitimacy from, the Constitution, protects certain rights regardless of what society says is proper at a given time, but if laws don't infringe on those rights, everything else basically goes.
Perhaps, but just become American society, or some subsection of it (states) feel either comfortable or uncomfortable with a law says nothing about its basic Constitutionality. America has often legislated rules to govern itself that were, and are, clearly unconstitutional and hence the critical function of judicial review in our democracy. Ideally society itself will realize this on its own and rectify that legislated injustice. However, it sometimes doesn't and it is the explicit role of our judicial system and the SCOTUS to ensure that our laws and regulations do comport fully with the Constitution. As you mention, the Constitution does protect certain inalienable rights and ample case law clearly states that marriage and equal treatment under the law are among those. Anti-gay marriage laws clearly do infringe upon them, cause deep and significant harm and damage both to gay couples and their families/children, and thus must be overturned.

When the Loving decisions was reached, most of American society was then deeply uncomfortable with interracial marriages, more so than with gay marriage today (which now a majority of Americans support anyway). Yet, it was unconstitutional, all anti-miscegenation laws were struck down by judicial fiat and the impetus was then for our society to get comfortable with the Constitutionally-protected idea of interracial marriage, which it mostly has.

I think anti-gay marriage is in pretty much the same boat and will inevitably suffer the same demise as anti-miscegenation laws. The arguments for such laws in the two recent SCOTUS cases were, to put it charitably, tortured, contorted and incoherent, becoming almost farcical at times. DOMA is clearly doomed and Prop 8 may get some technical stay of execution, but that too is clearly on the way out.

More broadly, public opinion on gay marriage, perhaps seeing the weakness of the anti-gay marriage arguments, is rapidly and broadly changing to being in favor of doing away with such laws. This might be somewhat distinct from being in favor of gay marriage itself as a personal matter - that's a personal matter - but I think that most Americans don't want the government discriminating against it.

At best, these battles against gay marriage at the SCOTUS are desperate rear-guard attempt to somehow, anyhow, preserve anti-gay marriage laws, to stand athwart not only of the Constitution but of modernity, progress and evolving, more enlightened public views.

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Old 03-30-2013, 10:17 PM   #56
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More broadly, public opinion on gay marriage, perhaps seeing the weakness of the anti-gay marriage arguments, is rapidly and broadly changing to being in favor of doing away with such laws. This might be somewhat distinct from being in favor of gay marriage itself as a personal matter - that's a personal matter - but I think that most Americans don't want the government discriminating against it.
The reality is that the biggest anti-same-sex marriage supporters are quite literally dying off. If you look at the various DOMA/anti-DOMA voting and chart it to the age demographics over time.

In Cali, compare Prop 22 (2000, a nearly 23 point difference) with Prop 8 (2008, a 4 point difference.) The biggest anti-same-sex marriage group are voters over 55. And the biggest range supporting same-sex marriage is the newer voters.

Same-sex marriage being the law of the land is going to happen. Whether it happens in June remains to be seen. I hope the USSC has the guts to strike down DOMA and keep the lower court ruling that Prop 8 is unconstitutional. Slit the throat of the anti-same-sex marriage camp in one fell swoop and get it over with. They certainly have precedent to do so given the ruling in Loving.
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Old 03-30-2013, 10:41 PM   #57
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Yeah, that's exactly my point. Society will govern itself by the rules it feels comfortable with today. Not with what society will feel comfortable with a decade from now. The overarching document from which our government derives its legitimacy from, the Constitution, protects certain rights regardless of what society says is proper at a given time, but if laws don't infringe on those rights, everything else basically goes.
Quite so, and the 14th Amd is one of them and is applicable to marriage. See Loving vs Virginia. And a state specifically removing rights from a certian group, in this case gays and lesbians is not constitutional, see Romer vs Evans.

Better yet, here is the ruling of the 9th court.
http://cdn.ca9.uscourts.gov/datastor...1016696com.pdf
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Old 03-31-2013, 02:36 AM   #58
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Quite so, and the 14th Amd is one of them and is applicable to marriage. See Loving vs Virginia. And a state specifically removing rights from a certian group, in this case gays and lesbians is not constitutional, see Romer vs Evans.

Better yet, here is the ruling of the 9th court.
http://cdn.ca9.uscourts.gov/datastor...1016696com.pdf
The equal protection clause is effectively meaningless in this day and age. It prohibits uneven enforcement of the law, but if the law is discriminatory in and of itself, that's perfectly Constitutional. There is a reason why many states rushed to define marriage as between a man and a woman.

If the law stated that marriage was defined as between two human beings and gay couples weren't allowed to marry, that would be a violation of the equal protection clause. If the law states that marriage is between a man and a woman, because that discrimination is built into the statute itself, it's perfectly Constitutional.
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Old 03-31-2013, 10:57 AM   #59
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There are plenty of discriminatory laws. Again, you should be wanting government out of your life instead of begging for its intrusion.

p.s - Mr. Fake Lawyer, Loving v. Virginia isn't the slam dunk you think it is.
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Old 03-31-2013, 07:30 PM   #60
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There are plenty of discriminatory laws. Again, you should be wanting government out of your life instead of begging for its intrusion.

p.s - Mr. Fake Lawyer, Loving v. Virginia isn't the slam dunk you think it is.
I would be happy to have govt get entirely out of the marriage business. They are not going to do that. That is the simple reality.

With this court nothing is a slam dunk. As I said, don't take my word for it. Look at the ruling of the 9th. The ruling of the 9th uses both Loving and Romer in fairly specific terms.
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