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Court won't force state to defend Prop. 8

danarhea said:
Hicup - What does science have to do with it? If a man wants to marry a man, or a woman wants to marry a woman, it is none of the government's damn business.
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We could close the thread right here.
 
CriticalThought said:
If you want to get into a phiilsophical debate on rights, then fine.
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No philisophical debate is necessary -- rights are not grated by states, privileges are.
The fact that marriage as a legal institution disappears once the legilsation that created it is repealed means that marriage is, undeniably, a privilege; the fact that the legal institution of marriage only exists because of the state passed legislation to create it means that marriage is, undeniably, a privilege.

Rights are the result of a social contract between the people and the state. The state agrees to protect the rights that are important to the people in exchange for the people recognizing the legitimacy of the state.
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And privilieges are something that you can do because they state created the legal framework to allow it. Rights require no such framework; that you cannot get legally married unless there is a state laws that creates the legal institution of marriage necessitates that marriage is a privilege, not a right.

Your thoughts are simply an irrelevant hypothetical extending from a misconception of the origin of rights.
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On the contrary -- the misconception here is yours, as demonstrated.

Our Constitution, which is the social contract between the people and the state has been recognized by the Supreme Court to extend protection to marriage. That makes marriage a right.
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This is absolutely unsupportable. The constititon specifically protects rights, privileges and immunities; that these things are listed seperately illustrates the fallacy of your argument. That the Constitution specifies that you shall benefit from the right to equal protection when a state issues privilges in no way makes said privilege a right -- your right is found in equal protection, nothing else.

And since the Supreme Court has recognized it as a right, it can only be overturned by a Federal Constitutional Amendment.
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This is absolutely unsupportable as well. All that has to happen for marriage, as a legal instititon, to disappear from a state is for the state to repeal the relevant laws.
No court can stop that and no court can change that, as no court has the power to prevent a state from repealing its laws.

Under your argument, only a constitutional amendment could repeal Social Security, Medicare, etc.
That's absurd on its face.
 
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CriticalThought said:
Are you kidding me? Even corprorations in our country are recognized as having Constitutional rights.
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Yes... and are treated as individuals in that respect.
 
Singularity said:
Yes. The only problem is, your example was an example of emancipation and those individuals who are considered minors. And unfortunately for your example, we're not discussing minors. We are discussing homosexual adults.
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Irrelevant to my point, a point you have already accepted.
 
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Singularity said:
No, I understood perfectly. You are discussing 'under (certain) current law', as am I. The only difference is you are attempting to interpret the 14th Amendment, and I was reading it literally. And being that the lawyers argued the case on this very point (and won), then there you have it. You may certainly disagree with same sex marriage, but in a court of law, you'd better be ready to prove that the privilege is not Constitutionally protected. Given the wording of the Amendment, it's pretty much cut-and-dried unless you engage in interpretation; in which case, every Amendment would potentially be subject to interpretation regardless of how plain the wording.
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Not sure how any of this is supposed to negate the argument that the prohibition against all men from marrying another man discrimitates against homosexuals.
Might be because you didnt address the argument that was made.
 
CriticalThought said:
Fundamental right
"In constitutional law, certain rights protected by the due process or equal protection clause that cannot be regulated unless the regulating law passes a rigorous set of criteria (strict scrutiny). Fundamental rights, as defined by the Supreme Court, include various rights of privacy (such as marriage and contraception), the right to interstate travel, and the right to vote."
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Marriage is a privilige grated by a state; it must be a privilige because it cannot exist until the state creates it and oinly exists for as long as the state allows it.
Thus, your definition is meaningless in this discussion.
 
I don't know if I agree with you that marriage is a priviledge, Goobieman. If the state repeals all laws pertaining to marriage, it could not by definition, restrict marriage at all. Marriage will still take place, but be unrecognized by the state. This is why marriage is fundamental, granted not by the state, but by ones own God. The state simply regulates marriage, and places limits, and requisits for inclusion. As such, it is the state that must provide a rational reason to restrict, limit marriage to only a certain class of people. I think that the procreative capacity of men and women to produce true blood line offspring is a vurtue over the homosexual parenting model. I think that many thousands of studies have shown that chidlren do best when both a mother and a father are present in the marriage, and although the research on homosexual parenting is in its infiancy, intuition tells me that equal parenting samples of SSM, and OSM deliver a more well rounded, and self healthy individual that the OSM marriage couple will enjoy a measurable advantage over the SSM couple. I reserve that judgement until more data comes out, but, logic tells me this will be the case.

Is this advantage enough to stop gay couples from parenting? Nope, not even close, we can't stop it, nor should we, but it doesn't answer the question of what about marriage makes it fundamental, and why society would have any vested interest in it. Is the procreative advantage in parenting enough to limit marriage to heterosexuals only? Is it rational? Should procreative value be the single rationale for the state to even be involved in marriage? If it is, then should it extend to all heterosexuals, even those that do not produce children? Should the state recognize marriage in a tier system? Should they call it something else? Should they get out of it altogether?

All of these questions are on the table. I don't know how it will turn out. I know in my heart that heterosexuals do have a clear advantage with procreative capacity. Is it enough to draw a rationale? I'm not so sure.


Tim-
 
Hicup said:
I don't know if I agree with you that marriage is a priviledge, Goobieman. If the state repeals all laws pertaining to marriage, it could not by definition, restrict marriage at all. Marriage will still take place, but be unrecognized by the state.
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The whole of the issue involved here is marriage as a legal instituton, and the recongition of a marriage as such by the state.

The state simply regulates marriage, and places limits, and requisits for inclusion.
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Not so. The state creates the legal institution, in total.

Thus, it must be a privilege.
 
Harshaw said:
Whether it was or wasn't, it isn't what you're arguing here.
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Sure it is. This is what my argument in this entire thread has been about - the right of the same sex individual to marry their partner.


Harshaw said:
People marry for many reasons, as is pointed out every time someone says that the point of marriage is children.

People may marry for convenience. People may marry because they want money. People may marry because they just want companionship. Or they want security. In none of those cases is sexual attraction necessary.

Nor is a "healthy" marriage necessary for the right to marry be exercised, especially considering that the definition of "health" in a marriage may and does vary widely from person to person.

So, I ask again -- why is sexuality a necessary component of marriage?
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Unless you are planning on not having sex in your marriage, then sex is an integral part. I don't know anyone who gets married to avoid sex, do you? I'm not sure what you are driving at here.
 
Goobieman said:
Irrelevant to my point, a point you have already accepted.
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Wrong. Your argument was regarding minors and emancipation. The argument is not about minors, but about adults - specifically homosexual adults wishing to include themselves in marriage. The Amendment is specific.
 
Goobieman said:
Marriage is a privilige grated by a state; it must be a privilige because it cannot exist until the state creates it and oinly exists for as long as the state allows it.
Thus, your definition is meaningless in this discussion.
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That would be wrong again, as the state's powers are limited by the Constitution. In the case of the 14th Amendment, the state shall take away no immunity or privilege to any citizen without due process of law.

And regarding my definition as 'meaningless', I simply used the same thing that the lawyers who overturned prop 8 used - the literal wording of the 14th Amendment.
 
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Singularity said:
Unless you are planning on not having sex in your marriage, then sex is an integral part. I don't know anyone who gets married to avoid sex, do you? I'm not sure what you are driving at here.
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I said in detail what I was getting at. You quoted me. You can ignore it if you like, but I did say so.

Are you saying that everyone who's ever chosen to get married has been sexually attracted to the person whom they've married? If they weren't, was it a "real marriage"?
 
Harshaw said:
I said in detail what I was getting at. You quoted me. You can ignore it if you like, but I did say so.

Are you saying that everyone who's ever chosen to get married has been sexually attracted to the person whom they've married? If they weren't, was it a "real marriage"?
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No, i'm not saying that at all. And regarding me ignoring you, maybe we should take a step back and rehash the argument you're attempting to make, as I am not quite following your point.
 
Singularity said:
No, i'm not saying that at all. And regarding me ignoring you, maybe we should take a step back and rehash the argument you're attempting to make, as I am not quite following your point.
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I've already said a few times. Sexual attraction -- or sexuality in general -- is not a necessary component of marriage.
 
Harshaw said:
I've already said a few times. Sexual attraction -- or sexuality in general -- is not a necessary component of marriage.
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There are a few points that come to mind here. If sexual attraction is not a necessary component of marriage, then what does that have to do with excluding homosexual couples? If your argument is that heterosexual couples often get married due to sexual attraction, then it stands to reason that homosexual couples could potentially marry for this reason, too. Likewise, if heterosexual couples get married without sexual attraction, then it stands to reason that homosexual could as well, all things being equal. So, how does this make any sort of argument against gay marriage?

In addition, there are number of folks who would argue against this point that may not necessarily be pro-gay marriage. Many folks believe that sexual attraction is in fact an integral component to marriage, but that's neither here nor there for purposes of this argument. I'm more interested in why you think this somehow excludes homosexual couples from the institution.
 
Singularity said:
There are a few points that come to mind here. If sexual attraction is not a necessary component of marriage, then what does that have to do with excluding homosexual couples? If your argument is that heterosexual couples often get married due to sexual attraction, then it stands to reason that homosexual couples could potentially marry for this reason, too. Likewise, if heterosexual couples get married without sexual attraction, then it stands to reason that homosexual could as well, all things being equal. So, how does this make any sort of argument against gay marriage?

In addition, there are number of folks who would argue against this point that may not necessarily be pro-gay marriage. Many folks believe that sexual attraction is in fact an integral component to marriage, but that's neither here nor there for purposes of this argument. I'm more interested in why you think this somehow excludes homosexual couples from the institution.
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I never said it excludes anyone from anything. We're arguing about equal protection, not about gay marriage as a whole.

The argument is that homosexuals are discriminated against in marriage laws because of their sexuality. But sexuality isn't a necessary component of marriage. There is nothing in marriage law which discriminates against homosexuals on the basis of their homosexuality, because as it applies, it applies to heterosexuals and homosexuals equally.

Yes, you will repeat that homosexuals can't marry people they're sexually attracted to. But I will then say again that sexual attraction is not a necessary component of marriage.
 
Harshaw said:
I never said it excludes anyone from anything. We're arguing about equal protection, not about gay marriage as a whole.

The argument is that homosexuals are discriminated against in marriage laws because of their sexuality. But sexuality isn't a necessary component of marriage.
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Actually, the argument is that they are discriminated against because of they are of the same gender, not because of their sexuality (when I think 'sexuality', I think more along the lines of acting in a manner or being receptive to the actual act of copulation). You can certainly argue that sexual attraction has nothing to do with who can or cannot get married, but this has provided no reason for why homosexual couples can't be included. The bottom line is simple. If heterosexuals can get married based on sexual attraction alone (which does happen), then so should homosexuals. Likewise, if heterosexuals get married even if there is a lack of sexual attraction, then homosexual couples should, too. Basically, if heterosexual couples enjoy the privilege of marriage, homosexual couples should, too. But don't take my word for it. The 14th Amendment says it perfectly.

Harshaw said:
There is nothing in marriage law which discriminates against homosexuals on the basis of their homosexuality, because as it applies, it applies to heterosexuals and homosexuals equally.

Yes, you will repeat that homosexuals can't marry people they're sexually attracted to. But I will then say again that sexual attraction is not a necessary component of marriage.
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You still have not provided any explanation whatsoever as to why homosexual couples are being excluded from marriage based on sexual attraction (or lack thereof). In addition, if heterosexuals couples get married without sexual attraction (as your implying it could and does happen from time to time), then how does that exclude homosexual couples? You can keep repeating "well because sexuality is not a component of marriage", but that fails to address why heterosexual sexuality (or lack thereof) doesn't matter to marriage, yet homosexual sexuality (or lack thereof) does. Even if sexuality were not a component of marriage, what is different about the sexuality of homosexual couples versus that of their heterosexual counterparts, and what about that difference excludes one group and not the other?
 
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Singularity said:
Wrong. Your argument was regarding minors and emancipation.
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False. My argument was that not every person is guaranteed every privilege offered by a state; my argument is sound.
 
Goobieman said:
False. My argument was that not every person is guaranteed every privilege offered by a state; my argument is sound.
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No, you used a minor as an example rather than an adult, and failed to consider emancipation. I assume you are ready to toss that particular example and present a more relevant one, yes?
 
Singularity said:
That would be wrong again, as the state's powers are limited by the Constitution. In the case of the 14th Amendment, the state shall take away no immunity or privilege to any citizen without due prcess of law.
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What is -actually- says is that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Nothing here prevents a state from repealing a privilege that it granted or forces a state to grant a privilege granted by other states that the state itself does not grant.
 
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Singularity said:
No, you used a minor as an example...
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Irrelevant -- that there is any example at all proves my statement - that not every person is guaranteed every privilege offered by a state - is sound.
 
Goobieman said:
What is -actually- says is that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Nothing here prevents a state from repealing a privilege that it gratned or forces a state to grant a privilege granted by other states that the state itself does not grant.
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No. The part in bold prevents a state from doing just that. As a matter of fact, it can't get any plainer. The state cannot make or enforce any law which abridges the privileges or immunities of any citizen of the US without due process of law.
 
Goobieman said:
Irrelevant -- that there is any example at all proves my statement - that not every person is guaranteed every privilege offered by a state - is sound.
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Irrelevant, as minors are an example of legal emancipation.
 
Singularity said:
Actually, the argument is that they are discriminated against because of they are of the same gender, not because of their sexuality (when I think 'sexuality', I think more along the lines of acting in a manner or being receptive to the actual act of copulation). You can certainly argue that sexual attraction has nothing to do with who can or cannot get married, but this has provided no reason for why homosexual couples can't be included. The bottom line is simple. If heterosexuals can get married based on sexual attraction alone (which does happen), then so should homosexuals. Likewise, if heterosexuals get married even if there is a lack of sexual attraction, then homosexual couples should, too. Basically, if heterosexual couples enjoy the privilege of marriage, homosexual couples should, too. But don't take my word for it. The 14th Amendment says it perfectly.
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No, you're simply pulling this out of thin air. The equal protection argument is very much about discrimination against homosexuality. Look, if we can't even agree on that, then it's pointless to continue. What you say doesn't even make any sense.

And again, you're saying I'm arguing that homosexual couples "can't be included," which isn't the argument and not at all what I was talking about.


You still have not provided any explanation whatsoever as to why homosexual couples are being excluded from marriage based on sexual attraction (or lack thereof). In addition, if heterosexuals couples get married without sexual attraction (as your implying it could and does happen from time to time), then how does that exclude homosexual couples? You can keep repeating "well because sexuality is not a component of marriage", but that fails to address why heterosexual sexuality (or lack thereof) doesn't matter to marriage, yet homosexual sexuality (or lack thereof) does. Even if sexuality were not a component of marriage, what is different about the sexuality of homosexual couples versus that of their heterosexual counterparts, and what about that difference excludes one group and not the other?
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Dude. Get it through your head. I am not arguing that homosexuals should be excluded from marriage. Nothing I said equates to that, at all.

I'm explaining why the equal protection argument fails, which is only one argument, and I prefaced this by saying I found other arguments compelling. But you don't actually want to argue "equal protection" at all; you're arguing the whole gamut of gay marriage.

And the whole point, dude, is not that homosexual attraction doesn't matter to marriage, it's that sexual attraction of any kind -- homo, hetero, or bi -- isn't a necessary component to marriage at all. So, seriously, if you want to argue this, keep it together.
 
Harshaw said:
I'm explaining why the equal protection argument fails, which is only one argument, and I prefaced this by saying I found other arguments compelling.
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I'm not sure where you get this idea.

A ban against Blacks from marriage would violate Equal Protection because it would based on a trait, a discrimination against a protected class. Homosexuals are also a legally recognized class. I don't see how you can agree the first example is a violation of Equal Protection--and several other Constitutional Protections--but not in the case of homosexuals. Besides, there are more Constitutitonal protections than in the 14th Amendment. That's just one avenue of legal argument for equality.

I agree that there are "more" arguments to make, but I can think of several Supreme Court justices that would disagree with you about the Equal Protection clause.
 
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