Is gay marriage unconstitutional?

This is how this topic got started.

First, the ideas are well stated. I explain that I do not side with the 5 justices. While I understand they "won" they really were not following law, they made it up.

The SC is not there to make up laws.

 

I think supporters of same-sex marriage can and should support other "similarly situated" cases, or else risk being hypocrites guilty of doing the same thing to others as was done to them... however, in order to challenge a law in Court, one must have "legal standing", otherwise the court will not review it. This means that in order to sue in court, you must be able to demonstrate that you have been directly harmed (or will imminently be harmed) by the law in question. Same-sex couples obviously have legal standing to challenge the limits on marriage based on gender, but they don't have legal standing (as a class) to challenge it based on other limitations. So yes, these other cases you speak of do need to go to court independently, but this is because that's the way the system works, not because they were specifically chosen to be excluded.

That said, while same-sex marriage advocates can't directly sue on any other group's behalf, other "similarity situated" groups certainly can benefit from the ruling already made. This ruling established a precedent, and other groups who are similarly situated have a much easier path made for an equal protection claim by appealing to that established precedent. (edit: in fact, if they are so similarly situated that the states enforcing these other bans can't argue against these other bans under that same precedent, then the states can and should stop enforcing other such bans now, even without going to court. This is essentially the same thing that happened with same-sex marriage. The supreme court only technically struck down the bans in a handful of states. Other states fell in line because they knew the precedent would bind them one way or the other... waiting to get sued and have the ruling applied directly to them would just delay the inevitable. But if a state chooses not to apply a precedent to another similarly situated case, then that state too must be taken to court to have it applied to them. This also provides the court the opportunity to determine whether or not these "other cases" are similarly situated to the one that was already reviewed, or if there is cause for different treatment)

I also just want to say that arguing that other groups should have been included too isn't, in my opinion, much of an argument against equal rights for same-sex couples. Even if same-sex marriage advocates are being entirely hypocritical and selfish, the constitution provides the same rights to selfish and hypocritical people as it does to anybody else, making your argument more of a red herring and ad hominem than it is an actual cause for dispute. I also disagree with your line of reasoning because you're essentially shifting the burden of proof. For example, did black people have fight for the equal rights of children to vote before they could be allowed to fight for the right to vote themselves? Or did the black people need to prove why children should still not be allowed to vote before they could argue their case for why they should? Would it be fair to require those who are arguing for equal rights to also have to delve in and argue on behalf of, or against, other groups before they can argue their own case? When the burden of proof should be on the STATE in both cases, it seems a little unfair that your line of reasoning instead shifts the burden on the parties petitioning for equal protection.

 

Gosh, i enjoyed the top two paragraphs too.

 

A matter of opinion I suppose. Philosophy and formal logic were my favorite courses in college, making me somewhat partial to addressing arguments by pointing out logical fallacies, such as ad hominems and red herrings. But in case that wasn't enough, I also tried to address your concerns more directly with the first two paragraphs (and I'd say fairly adequately unless you still have objection). I like to argue against something from multiple angles in order to cover my bases... it's a problem of mine that sometimes makes my posts WAY too long :-/

In any case, you leave me somewhat confused as to your position. You started by supporting the "originalist" position of Scalia. Despite this, you were open to a more "principled" approach that I advocated. but questioned whether it was actually being applied fairly with an example of people being paid differently. You noted I had "good arguments" when addressing that, but then dismissed the whole thing entirely on a somewhat different but related path of logic that says the opinion isn't fair or lawful unless it had been applied to these other cases as well. My response to that about the issue of "legal standing" and precedent earned a "you were cooking..." response. You leave me somewhat confused, basically being agreeable towards my arguments at every turn, and leaving me somewhat bewildered at what your actual argument or objection is.

In any case, I guess that's where I'll leave the argument. I believe the ruling of same-sex marriage is correct, and I also believe some of these other cases you also brought up also have strong cases as well, based on the same logic. I believe the government should have a good reason for restricting a fundamental right, and that means it has a very high bar to prove a compelling interest in making a restriction, which must be weighed against the burden it causes.

Moving on from the same-sex marriage case....

In the case of minors, this is already legal in many jurisdictions, provided certain procedures are followed (review of a local court and/or consent of their parents, for example). This restriction, in my opinion, could survive an equal protection challenge because there is a compelling interest in protecting children who may be unable to give informed consent, may be pressured, or are otherwise unprepared for the social and legal obligations tied to marriage. This would be decided on using the same logic that applies to any case that limits a minors ability to give consent... removing this restriction, for example, would also likely end statutory rape laws, which exist on the basis that minors are unable to give informed consent.

Closely related relatives is an interesting case. Whether or not this survives an equal protection challenge depends on A: how significant the burden is, and B: how significant the risk is. If the risk is insignificant, then the government should not be able to ban it. If the risk is real, but not catastrophic, then likely he government should not be able to ban it either, but they may be able to justify some degree of regulation that may depend on the closeness of the blood relation and other options which may limit the concern (one state I know of, for example, allowed close-relative relationships between infertile couples. Perhaps a look at gene comparability could be useful?). I really don't care what close relatives do, the only reason there is any cause for government interference is if there is risk to a third party.

Multiple partners is more a question of practicality and potential for abuse. Laws would need to be reformed to accommodate and account for potential abuse, and to clarify what might become a rather complicated mess when dealing with issues of divorce and custody among parties of 3+ people.

In any event, each of the above cases could claim the same precedent that was granted to same-sex couples. The only question for them remaining is if they are similarly situated.

 

Im just pointing out the absurdity of this "marriage equality" crap. Gay marriage is INEQUALITY by design for the benefit of the gays.

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And getting DIFFERENT rights as someone else is inequality by design.

 

Or at least stop this nonsense about marriage equality when they are talking about gay marriage, Inequality by design for the benefit of the gays.

 

And certainly not there to make up the facts like they did in the gay marriage cases. Alleging that marriages limitation to men and women has nothing to do with procreation and children and is instead all just a nefarious plot to discriminate against gays. Ive said before, its like alleging that marriages limitation to just one, is all a nefarious plot to discriminate against Mormons. Absurd.

 

In this new institution of marriage that is unrelated to procreation, there is no risk.

 

If that were true, then marriage prior to same sex marriage being legalized was a case of inequality by design for the benefit of heterosexuals.
And since that was the case, ADDING homosexual couples to list of people who can marry only DECREASES the number of
people who were excluded. Your argument is a fail.

What rights or privileges do gay people have that is special to gay people? Straight males can now marry straight males. Straight women
can now marry straight women. Gay men cannot marry their close relatives any more the straight men can. Gay women cannot marry
underage men or women any more than heterosexuals can. There are no "special" rights for gay people over and above those of heterosexual people. Your argument is a fail on all levels.

 

Why is it incumbent on gay people to spend their time and money to take a case to court that would have damaged their chances
of winning the the day? If you want to be able to marry your your sister's daughter, then do what gay people had to do - spend your
money and time and get off your fat arse and take it to court.

You seem to think that fighting marriage bans is this simple process - but in reality, it was a long, expensive one and adding
incest and marriage to 5 year olds would have hardly have been a winning hand.

But I know this is just a troll tactic for you. You seem to think that if you can just link gay marriage to incest or marrying your
pet rock - that you will win the day. But it is a tired and transparent bit of trolling on your part. I've seen it done by much more eloquent
and thoughtful posters, but it was still just as pathetic.

 

But they aren't. They are getting the same rights as opposite sex couples.

 

AAAAND different rights to those who are excluded by law from marriage. Unequal treatment for the benefit of gays.

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Not sure what you are babbling on about now. Nobody suggested any such thing.

 

I don't think it is; it's nothing more then a business contract between two consenting adults.

 

The basis of your argument is fundamentally flawed.
You are resorting to logical fallacy, i.e. the "Straw Man".

 

How is what he's saying flawed? What other group of people have had the USSC order that all states issue marriage licenses for them? There are other groups of people who do not enjoy that type of blanket order and if marriage is a right then there are many more groups of people who should be able to marry as they see fit but right now they can't.

 

How many of them have taken their case to court or pursued change through legislation? The court cannot rule on an issue unless it is before them.

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I feel sorry for you or anyone who's marriage is nothing more than a "business contract"

 

Was the issue marriage rights or was it being gay and married? If there is a right to marriage then why is it limited to gays?

 

Just being realistic. In the legal world that is all it is like it or not.

 

The issue was whether or not same sex couples should have the same rights under their state laws as opposite sex couples, but I find it hard to believe that you or anyone did not already know that.

Same sex couples won the right to marry through an arduous, decades long political and legal fight and ultimately prevailed because restrictive state laws could not stand up to Constutional scrutiny.

Anyone else who want to further expand marriage rights is free to do the same. Right now, it is what it is because it's the law and it has not been challenged. I think that you knew that answer too.

This argument is worse than a straw man. It is a red herring intended to detract from the real issue and it is a tu quoque (To kwok we )(Latin for "you, too" or "you, also") because it implies that anyone who supports same sex marriage but not other variations on marriage is a hypocrite

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In the legal world but not in the real world. Not for most people and not for the same sex couples who can now marry.

 

I don't think you understand the concept

 

Did SCOTUS say marriage is a right? Don't bother answering, they did.

I guess only Irish-Americans have gun rights because McDonald sued the Chicago gun board and won? We either have equal protection or we don't. I have no problem with gay marriage but if marriage is a right the it applies to everyone because...equal protection.

 

The courts determined that it was gays who were desperately in need of respect and dignity.

Although there is no constitutional right to respect and dignity.

 

The arc is long, but glad to see it bending in the right direction. Of course more work remains.

 

It’s flawed; the inability to recognize that is “your” problem.

 

I already addressed it in another post. Your reluctance to deal with that post says a lot about you. Cry all you want to but equal protection means exactly that, it doesn't mean targeted social activism from the bench.