Is gay marriage unconstitutional?

I get it.

The thing for me is that I have relatives who are same sex oriented. I also managed a group large enough to include a number of those who are same sex oriented, and I ended up having to deal with some of the problems these people faced - mainly from religious zealots taking action that was aimed at me as much as anyone, as it involved corporate policy. How much Scientology does one guy really have to put up with??

And, I just tend to hate it when I see bigotry and discrimination going on.

 

Sure....I as well am hardwired to defend those who cannot defend themselves.

There are a lot of ignorant people out there.

AA

 

Of course I do. That's why I pointed out this case has nothing to do with anything you posted.

there is no connection. Each case is seperate. This one dealt with same sex couples.

- - - Updated - - -

The court needed to overturn baker in order to allow same swx marriages in that district.

 

But of course procreation is completely irrelevant.

 

We no longer need both a male and female to continue the species.

Geneticists can take any human living cells from one person of either sex and turn them into stem cells then turn them into sperm and egg cells and fertilize the egg and implant it into an artificial uterine wall in an artificial womb and birth a child.

AA

 

And we're back to you straightsplaining to me as if being gay means I was dropped here by aliens and don't know any of this.

I'm seriously not going to indulge this strawman, nor your effort to derail us into talking about incest in a thread asking whether or not same-sex marriage is constitutional. In point of fact, have you even addressed that aspect at all in this thread?

And when those kids are adults, and the couple is no longer producing, then there is no purpose to them remaining married - not if marriage is all about protecting children.

 

Were you drinking when you wrote that? I ask this honestly because your post is relatively incoherent and quite different from your other posts.

For someone who has lost interest- you sure are posting a lot on the issue.
As pointed out- the legal term of marriage before Obergefell had nothing to do with 'the children' which is why my 80 year old uncle could marry his 70 year old bride even though there was no chance of any children.
Children of any parents have automatic rights- they have the right to be provided for by their legal parents.
I don't know whether your care about children or not.

 

If you preached Jesus in public in many of those 79 countries, you might put you in jail. There are also countries where husbands can still legally beat their wives- and others where women abandoned by their husbands are expected to commit ritual suicide. Hell there are still countries where fathers essentially sell their daughters to their husbands.

I don't even know why you thought what other countries do is something we should take as a standard for how we in the United States do things.

 

Robert, lets just dispense with and cut through all of the nonsensical and convoluted crap about reproduction and whatever and deal with the question posed in the OP.

In your opinion.....did the high court act appropriately and within the law on Obergefell? If not why not? Give it a try bubba.

 

A woman giving birth, automatically creates the right of the child to care and support from his mother. Fathering that child with the marriwed mother automatically creates a right of the child to care and support from his father. Beyond these two, the child has only the hope that someone will voluntarily assume those obligations.

 

They are also automatic with the father if he is married to the mother.

160.204. PRESUMPTION OF PATERNITY. (a) A man is
presumed to be the father of a child if:
(1) he is married to the mother of the child and the
child is born during the marriage;

Before marriage became an institution to help gays feel equal to heterosexuals, this was its primary purpose in the law.

 

Until it comes time to rationalize excluding closely related couples, then it becomes central.

 

I have never made any such argument.

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lol, no it wasn't. This is a paternity statute, not a marriage one.

 

No one claimed you had. You wont be the one to make such decisions.

What wasn't? I am talking about the present.

Call it whatever you like. Not sure of your point.

 

Great...

I don't mind one bit.

But so as to make a well thought out argument, let me have one of the Justices that ruled, explain it to all of us.

Justice Antonin Scalia’s dissent in the Obergefell v. Hodges decision:

I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

I

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. 1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work. 2

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,” 3 denying “Full Faith and Credit” to the “public Acts” of other States, 4 prohibiting the free exercise of religion, 5 abridging the freedom of speech, 6 infringing the right to keep and bear arms, 7 authorizing unreasonable searches and seizures, 8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” 9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” 10

“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” 11

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. 12 We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. 13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” 14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” 15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” 16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman. 17 This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers 18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans 19 ), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. II But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. 20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, 21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution. The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. 22 Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” 23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” 24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” 25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis. *  *  * Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” 26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence. - See more at: http://srdiocese.org/Scalia_on_Obergefell#sthash.5pP1Tjq0.dpuf

 

Yes, you and I are correct.

This argument needs to be made a lot more.

What is the function of the SC?

Is it there to legislate?

My reply is certainly not.

It has a duty to examine the constitution as written, not one as some of them hope was written.

The 14th amendment never was crafted to be about marriage. Certainly not same sex marriages.

That case Obergefell v Hodges, was not decided by the people. We are told the government is of the people, for the people and by the people and clearly that intent is for we the public to cast our votes.

Some states peoples did vote to favor homosexuals. But the vast majority of states peoples did not agree.

Given plenty of time, perhaps 50 states would all agree. That would be how the constitution works.

Does the law allow for unequal treatment?

Does the left approve of this unequal treatment? They certainly do approve of unequal treatment.

The taxes to fund the Federal Government was established in law to be equal to all.

Even in the latter 1800's era, when the Feds tried to tax income unequally, the court struck that down as unconstitutional.

So what do the wiseacres do in the prior to 1920? Pass a constitution amendment (validity is hotly contested even today) imposing taxes no matter the source of the people's revenue.

Who was so dumb as to impose on the public a clear system of inequality?

There is a very intelligent man, a former IRS enforcement officer, a man who is a certified public accountant, the man who gave up his career to fight for all of us, that did research to see if the amendment is valid or a con job.

His research took him 2 years. And when he first wrote his paper with his evidence, he went to his IRS office in San Jose, CA and handed it to his supervisor. His comment was to the effect that he wanted to be certain he was working to uphold the law. That his research showed that in the actual real world, he was not upholding the law.

(time out. I am well aware some wise acres will tell me this is not the topic. But law is the topic. How there is bad law yet they accept bad law. Bad law that makes a sham of their 14th amendment claims. They are not being honest to the forum)

We can dig up other laws proving that the 14th amendment must be viewed as it was when it was crafted and accepted by the entire country.

Those of you interested in the former IRS agent and his discussion .... see this

I have met this man and he has it together

http://www.freedomabovefortune.com/

So, my quarrel is not so much with homosexuals, as the justices that legislated as a small committee.

As Scalia tells us, the group is a rather small group and they come from a very localized perspective of law.

Some that despise one or more SC decisions will pick and choose which to accept.

The left wingers despise Citizens United. Ask them. They flat hate that ruling.

So, why do they hate that but enjoy Obergefell?

 

The people did not make the law.

We have voted for people to legislate. We have them legislate in the state government house. We have them legislate in DC.

But this case was legislation but not by legislators, but by judges.

This is how mad the Democrats and supporters have become. They hated Citizens united and hate it today. But for some odd reason, this decision they love.

It is odd that we approve when the SC legislates.

At least in Citizens united, the SC was not legislating.

 

you post so many falsehoods it seems you have lost track of them........

that is past tense. and incorrect as I pointed out.

my point was obvious. your statement was incorrect. that wasn't the primary purpose of marriage. that law is about paternity, and does not apply to all married couples. it is a paternity statute, not a marriage law.

 

you don't seem to understand how US judicial system works. The court can't and didn't legislate. They struck down an unconstitutional law, as is their duty.

 

As the justice complains about the asserted lack of analysis in the majority opinion, he does little to actually analyze the case himself? Or rather, he rather sadly dismisses the possibility of analysis because of the assertion that the 14th amendment can't possibly mean to protect anything other than what the original authors had in mind (rather than the principal of it), and that the court cannot protect any right that isn't explicitly named in the constitution (the 9th amendment be damned). Such an assertion confirms the fears of those who opposed the enumeration of rights, fearing it would imply those were the limits. I will absolutely agree with him that the "reasoned judgment" of 9 judges is not perfect, but just because it's not perfect, this is not the same as saying it should't exist or that that it is or isn't better than nothing at all. That is not the question. We'd be fools to believe any part of the government is "perfect", which is irrelevant to the question of whether or not this particular imperfect part of it should exist.

While it is certainly possible under a given legal philosophy that the courts cannot protect anything other than what is enumerated, I think it warrants a close look at what else that would undo before making such a bold assertion. Had he gone down that route of striking down every other protection granted by the court when saying that, I'll bet there would be a lot less sympathy for his position. I think he also gives in to hyperbole when claiming that when the justices, using their "reasoned judgment", decide to strike down a law, that this amounts to "super-legislation". An alternative view is that the court has a strong, but narrow power that favors expanding and protecting freedom without due cause justified by the government. If this amounts to "super-legislation" for that sole purpose, then so be it. But that alone amounts to very narrow legislative power, expressed as "super-legislative" for the sake of creating hyperbole, and dismissing any notion that the court has any responsibility to protect rights not enumerated or expressly understood by authors from 150 years ago... authors who curiously apparently wanted their amendment enforced strictly for the sole purpose they had in mind, but who nevertheless chose to leave the amendment broad and principled.

 

Amazing, isn't it?


That the anti-SSM guys who went to the Supreme Court to argue the Obergefell case....


didn't bring a brilliant Constitutional and legal scholar like dixon with them?

 

What's amazing to me is the justices themselves opposed to it are arguing on the basis that the country needs less protection from government intrusion, and the supreme court exists only to argue the obvious, based on the facts and understandings from 200+ years ago. They should be replaced by a bench of historians.

 

LOL- you do realize that what you posted is not in any way evidence of what the 'primary purpose of' marriage was- or is?

Once again I will point out that marriage law doesn't care whether a couple has the ability to procreate, intends to procreate or does procreate.

The actual evidence shows that the 'primary purpose' of marriage has always been to create a binding and enduring contract between two persons- regardless of procreation- or the potential for procreation.

This is a definition of marriage from the Supreme Court that i particularly like

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

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He pretty much parrots the losing arguments the states made.

 

No, just lost track of which part of my post you were referring to. And my evidence that it in fact WAS


Heterosexual couples are the only couples who can produce biological offspring of the couple.
http://www.courts.wa.gov/newsinfo/co.../759341opn.pdf



We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.
http://caselaw.lp.findlaw.com/cgi-bi...=316&invol=535



The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis...

"Marriage and procreation are fundamental to the very existence and survival of the race." This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation
http://www.cas.umt.edu/phil/faculty/Walton/bakrvnel.htm



i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. . . .

t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.
http://caselaw.lp.findlaw.com/cgi-bi...=434&invol=374



In addition, within limits, a statute generally does not fail rational basis review on the grounds of over- or under-inclusiveness; “[a] classification does not fail rational-basis review because ‘it is not made with mathematical nicety or because in practice it results in some inequity.’”...

Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes.....

Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing....

But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple....

And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis....
http://www.courts.wa.gov/newsinfo/co.../759341opn.pdf



Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that "abstract symmetry" is not demanded by the Fourteenth Amendment
http://www.cas.umt.edu/phil/faculty/Walton/bakrvnel.htm



In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.
http://ky.findacase.com/research/wfr...0029.KY.htm/qx



"matrimonium is an institution involving a mother, mater. The idea implicit in the word is that a man takes a woman in marriage, in matrimonium ducere, so that he may have children by her."
http://en.wikipedia.org/wiki/Same-sex_marriage

 

That WOULD explain why Richard Hodges and the Ohio Department of Health didn't call in an outstanding legal expert like dixon for an amicus brief.