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Thread: Appeals court upholds laws against gay marriage in Michigan, 3 other states

  1. #191
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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by roguenuke View Post
    Posted at least once in this thread alone, but I'll post again for you.

    Video: 14 Supreme Court Rulings on Marriage | American Foundation for Equal Rights

    Your specific claim is that marriage is not a right (note: that is marriage alone).

    SCOTUS disagrees with you.





    These and many more are from SCOTUS decisions that prove you wrong.
    No, I have not claimed that marriage isn't a right. I've stated that there is no right to have your marriage recognized by the state. It would not be unconstitutional for a state to decide to do away with the idea of civil marriage altogether.

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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by Hicup View Post
    Of course it is, but not quite. I didn't say they did not benefit society, even though I really don't see any upside to homosexual relationships, I'm sure there are some that disagree. The point of Sutton pointing out this in his opinion was not what you might initially think. He mentions it because he eloquently leads up to the inescapable fact (At least in this decision) that the cases cited do not constitute a 14th and due process challenge (Something I've been saying upon deaf ears for almost a decade), and further, that a legislative body coming to this conclusion about what compliments society "better" is arrived upon with careful, lucid, and rational basis.
    There are lots of things that could be "better" (which is subjective to say the least). However, there is not an interest in state bans on gay marriage considering that homosexual relationships are not illegal, gays rasising children is not illegal, homosexual sex is not illegal, etc. You can't cite morality as being the reason because the act of homosexuality is legal and that is considered immoral by some. Face facts, the anti-SSM folks have lost this one.

    Similar to, IMO, why courts consistently avoid challenges from would-be fathers to decide the fate of their unborn children, should the mother choose to abort. Although I fervently disagree that only the women gets to decide, I at least see the rationale behind it.
    There are also no laws forcing the male to finiancially support the female DURING the pregnancy nor are there any laws forcing the male to provide food and shelter for the pregnant woman during the pregnancy. You look at the fact the male has no say in the "aborting" of the fetus, but then again the male doesn't have ANY obligation LEGALLY to the female during the pregnancy either.

    It's ironic how the pro-life folks always point to the woman's olbligation and they try LEGALLY to obligate her to the pregnancy, but there isn't ONE pro-lifer bill to obligate the male to provide for the female during the pregnancy. Why the discrimination against females huh?

  3. #193
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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by roguenuke View Post
    No, it should not include the desire of the majority, since that is the way the law was enacted to begin with. That is counter to the entire point of having the law reviewed for whether it was constitutional or not. If someone has standing under the Constitution, then that would mean that the law might conflict with their rights, which means it should not matter how that law was put into place, only whether it violates the rights of a person/group or not.
    correct the majority or minority is 100% meaningless to equal rights or constitutionality of a law. See loving vs Virginia over 80% or the country didn't favor interracial marriage . . . meaningless because it was a rights issue.
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  4. #194
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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by Taylor View Post
    No, I have not claimed that marriage isn't a right. I've stated that there is no right to have your marriage recognized by the state. It would not be unconstitutional for a state to decide to do away with the idea of civil marriage altogether.
    Those cases, especially Loving, Turner, and Zablocki, were all about having their marriages recognized by the state, which has been upheld by the SCOTUS.

    In reality, given the nature of our laws surrounding family and the hierarchy in which we place the significance of legal kin when it comes to a person's life, it could actually be considered unconstitutional for a state to decide to do away with civil marriage while still recognizing other legal kin. It would prevent a person from choosing their closest legal next of kin, relying solely on blood relations. Unless they provided something else, they couldn't get rid of civil marriage.
    "A woman is like a teabag, you never know how strong she is until she gets in hot water." - Eleanor Roosevelt

    Keep your religion out of other people's marriages.

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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by roguenuke View Post
    No, it should not include the desire of the majority, since that is the way the law was enacted to begin with. That is counter to the entire point of having the law reviewed for whether it was constitutional or not. If someone has standing under the Constitution, then that would mean that the law might conflict with their rights, which means it should not matter how that law was put into place, only whether it violates the rights of a person/group or not.
    That is the entire problem that I have with this level of judicial review. First of all, even if one "has standing" there is still absolutely nothing to compel a judge to hear/review a case. In other words, the squeaky wheel gets the grease ONLY if that issue appeals to a given judge.

    Surely one can see that many (if not most) laws tend to restrict freedom and few of them have a compelling state interest, other than that is what the folks wanted at the time the law was passed, and even fewer can be shown to be the least restrictive means to attain the desired end. The 2A defines the same "right of the people" yet has more state to state variations (restrictions or infringements) than marriage laws do; not many 2A cases ever make it to the federal courts, much less to the SCOTUS.
    “The reasonable man adapts himself to the world: the unreasonable one persists to adapt the world to himself.
    Therefore all progress depends on the unreasonable man.” ― George Bernard Shaw, Man and Superman

  6. #196
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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by Taylor View Post
    No, I have not claimed that marriage isn't a right. I've stated that there is no right to have your marriage recognized by the state. It would not be unconstitutional for a state to decide to do away with the idea of civil marriage altogether.
    The distinction is important and again addressed in Sutton's brilliant opinion.
    E.

    Fundamental right to marry.

    Under the Due Process Clause, courts apply more muscular review—“strict,” “rigorous,” usually unforgiving, scrutiny—to laws that impair “fundamental” rights. In considering the claimants’ arguments that they have a fundamental right to marry each other, we must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects—from education to healthcare to living conditions to decisions about when to die— would be subject to unforgiving review. They are not.

    See



    San Antonio Indep.



    Sch. Dist. v. Rodriguez

    , 411 U.S. 1, 35 (1973) (public education);

    Maher v. Roe

    , 432 U.S. 464, 469 (1977) (healthcare);

    Lindsey v. Normet

    , 405 U.S. 56, 73–74 (1972) (housing);

    Glucksberg

    , 521 U.S. at 728 (right to die). Instead, the question is whether our nation has treated the right as fundamental and therefore worthy of protection under substantive due process. More precisely, the test is whether the right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”

    Glucksberg

    , 521 U.S. at 721 (internal citations omitted). That requirement often is met by placing the right in the Constitution, most obviously in (most of) the guarantees in the Bill of Rights.

    See id

    . at 720.



    But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist. That leaves the other option—that, even though a proposed right to same-sex marriage does not appear in the Constitution, it turns on bedrock assumptions about liberty. This too does not work. The first state high court to redefine marriage to include gay couples did not do so until 2003 in

    Goodridge

    . Matters do not change because

    Loving v. Virginia

    , 388 U.S. 1 (1967), held that “marriage” amounts to a fundamental right. When the Court decided

    Loving

    , “marriage between
















    Nos. 14-1341/

    3057/ 3464/ 5291/ 5297/ 5818



    DeBoer v. Snyder

    Page 29 a man and a woman



    no doubt [was] thought of . . . as essential to the very definition of that term.”

    Windsor

    , 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,”

    Loving

    confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples.

    Loving

    did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had

    Loving

    meant something more when it pronounced marriage a fundamental right, how could the Court hold in

    Baker

    five years later that gay marriage does not even raise a substantial federal question?

    Loving

    addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.
    Tim-
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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by ttwtt78640 View Post
    That is the entire problem that I have with this level of judicial review. First of all, even if one "has standing" there is still absolutely nothing to compel a judge to hear/review a case. In other words, the squeaky wheel gets the grease ONLY if that issue appeals to a given judge.

    Surely one can see that many (if not most) laws tend to restrict freedom and few of them have a compelling state interest, other than that is what the folks wanted at the time the law was passed, and even fewer can be shown to be the least restrictive means to attain the desired end. The 2A defines the same "right of the people" yet has more state to state variations (restrictions or infringements) than marriage laws do; not many 2A cases ever make it to the federal courts, much less to the SCOTUS.
    So you keep filing until you find a judge that recognizes your standing if it is really an issue. That is the best you can do. There are certainly some flaws, but that doesn't mean the system should be completely thrown out, particularly when there is no other way being given for how to handle this. Unless you want to just throw out the Constitution altogether and just trust the government to ensure everyone's rights are upheld.

    Also, you seem to continue to be going off on tangents here. None of this has anything to do with the specific case we are discussing, which is same sex marriage and whether those who are challenging the same sex marriage bans are having their rights violated by these specific laws. They have standing, evidenced by the fact that their case has been heard and ruled on multiple times now (for each one, at least twice). The fact that other groups who feel that laws are violating their rights have not been found to have standing (or have, but have not had it ruled on in their favor) doesn't matter in any way to this particular case/issue.
    "A woman is like a teabag, you never know how strong she is until she gets in hot water." - Eleanor Roosevelt

    Keep your religion out of other people's marriages.

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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by Hicup View Post
    The distinction is important and again addressed in Sutton's brilliant opinion.

    Tim-
    There is nothing "sound" or "brilliant" about his argument at all. Striking down the bans to same sex couples getting married does not "fundamentally change" marriage at all, nor does it change any legal definition of marriage itself, unless you consider the legal definition of marriage to be based in how it is restricted, which means you could not legitimately use such a definition as a legal argument for why that restriction should not be in place since the argument itself relies on the restriction being in place for the definition not to be changed. It is circular reasoning, and not legally legitimate.
    "A woman is like a teabag, you never know how strong she is until she gets in hot water." - Eleanor Roosevelt

    Keep your religion out of other people's marriages.

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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by Taylor View Post
    No, I have not claimed that marriage isn't a right. I've stated that there is no right to have your marriage recognized by the state. It would not be unconstitutional for a state to decide to do away with the idea of civil marriage altogether.
    This is why the 'government should get out marriage' nonsense needs to stop. That. Is. Not. Going. To Happen. Constitutional or unconstitutional, there isn't a single federal/state government that would even consider doing away with civil marriage. Not only would the political ramifications leave a giant black hole in civil law (as well a child adoption, custody and property laws) it would also mean that the government isn't in the business of recognizing and enforcing social contracts between individuals. Do you people think of this before you try and steer the conversation away from what is actually in question here? Again, your imaginary world where marriage can be done away with, isn't real.
    I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality. - MLK

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    Re: Appeals court upholds laws against gay marriage in Michigan, 3 other states

    Quote Originally Posted by roguenuke View Post
    Those cases, especially Loving, Turner, and Zablocki, were all about having their marriages recognized by the state, which has been upheld by the SCOTUS.
    Those are equal protection cases that allowed access to the legal mechanism in place. They do not assert that the existence of the mechanism itself is a constitutional right.

    I don't understand the resistence to this - people talk all the time on this forum about "government getting out of the marriage business" and though many (myself included) have provided reasons for why this is a bad idea, I've never come across claims that it would be illegal or unconstitutional.

    In reality, given the nature of our laws surrounding family and the hierarchy in which we place the significance of legal kin when it comes to a person's life, it could actually be considered unconstitutional for a state to decide to do away with civil marriage while still recognizing other legal kin. It would prevent a person from choosing their closest legal next of kin, relying solely on blood relations. Unless they provided something else, they couldn't get rid of civil marriage.
    As you allude to in that last sentence, there are a myriad of vehicles that could be used to accomplish this, the concept of "civil marriage" is convenient, but hardly necessary, much less constitutionally required.

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