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Federal Judge Rules Va. Gay Marriage Ban Unconstitutional


The lower court rulings are not irrelevant. The Supremes examine the arguments in the rulings made by those lower courts with purpose. In addition, the lower courts can foreshadow the relative strength of the logic in the inevitably differing opinions. As such, I think they can assist in forecasting what the SCOTUS will eventually do.

So far, the rulings have generally been following a logic somewhat like this:
1. By precedent, Marriage is a right.
2. The 14th compels equal protection of the laws.
3. If the State has no compelling interest, the State must apply the 14th to the matter of whether the right of marriage extends to SSM.
4. The State has no compelling interest.
So, the 14th applies to SSM, and laws which say otherwise are illegal.

This is rough, but it is the essence of what we are likely to see. I see no flaw in the reasoning unless a person holds with originalist jurisprudence, and that is a minority view on the current court. The originalists will attack the automatic connection in 3 above, saying that because the intent if the 14th did not extend to SSM at its inception, it's principles should not apply to it today. But they will not carry.

Opponents of SSM will have to pin their hopes on Kennedy finding some flaw in the above, and my intuition says that will not occur. Outside of a seeming adoration of Corporate rights, he has generally been broad in his interpretation of individual rights. And, since he hasn't been particularly courageous in his application of a consistent jurisprudence, I see him blowing the way the wind is going on this one.
 
CaptainCourtesy said:
I'd like to see statistics on how often getting government out of marriage came up and how many supported that... compared to now. I'd be interested in seeing the difference.
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I believe that slope upward would have started to climb right around interracial marriage bans going away.

However, to be fair, I am a supporter of SSM and I want the government out of all marriage. I support SSM simply because I know marriages won't go away and therefore gays should have the same rights as well.
 

Absolutely nothing is being imposed upon you. Exactly what grave injustice have you just suffered? How is your life affected in any way? Does this ruling suddenly make you support homosexuality? Because it sure doesn't seem like your definition has changed at all. You have absolutely no response to the judge pointing out that restricting rights of women and minorities was once the "will of the people," and that people voted for interracial marriage bans. Why do you think "will of the people" stands the test of equal protection now when those laws did not?

Unless you also think Loving v. Virginia was a grave injustice, in which case I withdraw the question.
 
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Equal protection under the law requires it.
 

Why should the government be allowed to compel me to testify against my spouse? Why shouldn't I automatically inherit the possessions of my spouse and take custody of our children upon the spouse's death? Why shouldn't I have automatic medical power of attorney? Why shouldn't the government recognize such a relationship as a legal next-of-kin?
 
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Why should someone who has a girlfriend be forced to do all those things? What makes YOUR marriage more special for protection?

BTW you can STILL have those protections applied, just provide a marriage certificate from the religious (or non-religious) church of your choice. Why must a government approved marriage be needed?
 

You would think a judge might know this sort of stuff.

"Our Constitution declares that 'all men' are created equal. Surely this means all of us," Judge Allen wrote on the first page of her opinion."

VA Same-Sex Marriage Ruling Confuses Declaration of Independence with Constitution
 
TheNextEra said:
Yes, we are all created equal. And when SSM is legalized, you too can marry someone of the same sex. EQUAL.
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What about people who want to marry children? Why should pedophiles be treated as second class Citizens? Why do want pedophiles to die while on hold with 911?
 

Because the law requires a hospital to follow the wishes of next of kin if the patient can't make a decision. A piece of paper from a local church does not circumvent that. The law gives possession of property to next of kin on death. The law grants child custody to next of kin. (Although a girlfriend would still have custody if she were the biological mother, but if the children are adopted they get shuttled off to foster care)

If you want your girlfriend to be recognized by the state as next of kin, you are free to do that. There's a contract you can sign....
 
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Paleocon said:
What about people who want to marry children? Why should pedophiles be treated as second class Citizens? Why do want pedophiles to die while on hold with 911?
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Children cannot sign a legal contract. The state has an important interest served by not allowing children to do that.

This is not the case in banning same sex marriage. There's the guard rail for your slippery slope fallacy.
 
TheNextEra said:
Yes, we are all created equal. And when SSM is legalized, you too can marry someone of the same sex. EQUAL.
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But it's not in the Constitution. You'd think a judge might know this.
 

This falls apart once you factor in things like infertility and relationships which don't have sex for the sake of procreation. A man has a penis but can't procreate. A woman has a vagina but is sterile. What happens then? Is their marriage unnatural and dysfunctional? Are they meant to be discriminated upon like gay people? Obviously not because your entire "biological" argument is ridiculous and here is the kicker - marriage has never been about biological functions. Get a history book on marriage, my young friend.
 
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Heebie Jeebie said:
But it's not in the Constitution. You'd think a judge might know this.
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Equal protection under the law is in the constitution. And "everyone has the same right to marry someone of the same race" didn't hold up before, I don't expect "everyone has the same right to marry someone of the opposite sex" will either. Gender and race are both protected classifications.
 

Dude the quote she used is from the Declaration of Independence. You'd think a judge would know this kind of thing. But hey apparently you and her both don't know where it is stated.
 
Deuce said:
Children cannot sign a legal contract. The state has an important interest served by not allowing children to do that.

This is not the case in banning same sex marriage. There's the guard rail for your slippery slope fallacy.
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Oh why do you bigots want to stand in the way of LOVE and EQUAL RIGHTS? How un-American. Just because your personal moral beliefs are against pedophilia, doesn't mean you have a right to force everyone else to adhere to your rules. Keep your religion out of other people's bedrooms. Why are you such a xenophobe?

(Sarcasm, in case the degenerate state of our culture makes it unclear)
 

Read the virginia constitution. Literally the first thing.


Edit: and holy **** the comments section on your link!
 

It was very clear that you had no actual answer to my argument.

Equal protection is not a magic bullet to any grievance. The state can circumvent equal protection when a good enough reason exists. The level of scrutiny applied varies based on the characteristic. Race, for example, falls under the highest level of scrutiny. A "compelling state interest" must exist and the measure must be "narrowly tailored" to meeting that interest.

Gender has historically fallen under intermediate scrutiny. An "important state interest" must be served and the measure "substantially related" to that interest.

"The people want it" doesn't pass the test. "It's tradition" doesn't pass the test. "I morally disapprove" doesn't pass the test. Feel free to stick with hyperbole and slippery slope fallacies, though.
 

What was your argument?
 
One, the pedophile argument is just weak. The government can, and should, discriminate against people. There's a reason there's levels of the Equal Protectoin Clause with regards to the court of law, and the level of impact to the states interest that the discrimination provides. There's a state interest to view minors as unable to enter into contracts, therefore there's a state interest in disallowing them to become married.

Two, the Virginia Constitution is kind of irrelevant to this whole thing if my understanding is correct. The law in question was an amendment TO THE VIRGINIA CONSTITUTION. In terms of the "constitutionality" in regards to Virginia's Constitution, the marriage law was just as inherently "constitutional" as the notion that "all men are by nature equally free". The issue was that the judge believed it did not function within the Constitution of the United States.

If, through the proper constitutionally designated method, passed an amendment that proclaimed that "People may no longer use the word "Boob", then that would be constitutional. Would it theoritically be at odds with the first amendments freedom of speech? Yes. However, there is no superiority over one amendment or the other and both are "constitutional"...thus basically suggesting you have the freedom of speech except you can't say boob. In a similar way, referencing other things Virginia's Constitution says as a counter to an amendment to Virginia's constitution is hollow.

Third, the reason I say that the lower court cases are somewhat useless is because one, ultimately SCOTUS is going to have a say and it's the only one that matters, and two, many are basing it off a principle that has not been established at the SCOTUS level yet...that sexual orientation is greater than rational basis scrutiny, more akin with middle teir (like gender) or strict (like race).

I've been saying for multiple years now, the thing I'm going to find most interesting when this finally reaches SCOTUS is to see if they rule based on discrimination based on sexual orientation and provide definite precedent bumping sexual orientation into a higher tier of the EPC OR if they rule based on gender discrimination.

Oh, and since apparently some posters ignorantly and ridiculous believe that they can read minds and enjoy making retarded and foolish statements of what "ALL" people think (of course, they then backtrack a few sentences later from the ridiclous assertion...but don't bother to erase it in the first place), I've also long been one saying since this issue started actually being discussed that our marriage laws are unconstitutional on the basis of gender discrimination.
 
Paleocon said:
What was your argument?
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No important state interest is served by defining marriage as between a man and a woman, therefore the laws that do so are unconstitutional.
 
Paleocon said:
Oh why do you bigots want to stand in the way of LOVE and EQUAL RIGHTS?
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1) Love is a stupid reasoning to determine the law

2) Equal Rights per the rule of law. Pedophiles, or children (take your pick which angle you want to come at this one), do not fall under middle or strict scrutiny under the equal protection clause. As such, they're subject to rational basis scrutiny. I believe the discrimination against either group can be shown to be rationally related to a legitimate state interest (the least of which, children not being able to enter into binding contracts)

The same can not be said, imho, for gender discrimination where a man can do something a woman can't do and vise versa. I can't see where that discrimination is substantially related to serving an important state interest. As such, I believe our current marriage laws unconstitutional when it comes to SSM.

We have equal rights under the law, but allow for discrimination, in multiple ways. Keeping on the children theme, curfew laws are an example of this. Age to buy alcohol or cigerettes. Age to be drafted into the military. Etc

Just because your personal moral beliefs are against pedophilia
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Won't speak for others, but my objection to it when discussing these matters has nothing to do with my personal beliefs that pedophilia is wrong and everything to do with the Law and the constitution.

Your sarcasm would be of more use if it was actually making a point
 

actually it is and there are already lawsuits being generated out there that are waiting to see how this thing blows up.

polygamists are lining up along with other non-traditional marriage arrangements to press the same argument and there is nothing you can do to argue against it.
so it isn't a slippery slope as much as it is waiting in the wing sort of speak.
once you redefine marriage into a generic definition of just people that love each other then everything else doesn't matter.

we are not talking race, we are not talking gender.
we are talking about peoples lifestyle choices. lifestyle choices are not a protected class like race and gender.

you can't say that gay people and heterosexuals can marry but polygamist or any other alternate lifestyle can't. if you do then you are being a bigot and whatever other name you call people. your own view then fails to it's own hypocrisy.

i am sure there are good polygamist marriages out there so how can you say that 2 or 3 adults that love each other shouldn't be allowed to marry and co-habitate as married?
you are discriminating against their rights. (argument sound familiar it should.)

if you don't think that this won't be pressed in court for the same reasons think again. then we will see where you really stand on the matter.
the fact that you are speaking out against it pretty much sums it up.
 
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