The Constitutional SSM Argument

[ttwtt78640]

If it is "simply a matter of STATE contract law" as you state (say - not that other kind of state, ain't English fun?), how then is the STATE which has a constitution forbidding SSM supposed to deal with a legally married couple who moves into the STATE with no SSM? According to multiple court cases, what is legal in one state shall be legal in all states.

Not necessarily true as state CCW permit laws vary as do hunting and fishing laws, as far as reciprocity. E.g. AZ requires NO CCW permit, yet its neighbor CA does, that does NOT invalidate CA law. Simply because one state requires a drinking age of 21 does not mean that its neighbor may not choose 18 as their drinking age. PA issues "junior" driver's licenses yet its neighbor MD does not. VA outlaws radar detectors yet MD permits them. Some states have different window tint laws for vehicles, different seat/handlebar height restrictions for motorcycles and even different laws as to when headlights must be lit.

 

[Somerville]

Not necessarily true as state CCW permit laws vary as do hunting and fishing laws, as far as reciprocity. E.g. AZ requires NO CCW permit, yet its neighbor CA does, that does NOT invalidate CA law. Simply because one state requires a drinking age of 21 does not mean that its neighbor may not choose 18 as their drinking age. PA issues "junior" driver's licenses yet its neighbor MD does not. VA outlaws radar detectors yet MD permits them. Some states have different window tint laws for vehicles, different seat/handlebar height restrictions for motorcycles and even different laws as to when headlights must be lit.

and you are comparing laws that affect human relationships to those that are seen as safety oriented - really?

 

[ttwtt78640]

and you are comparing laws that affect human relationships to those that are seen as safety oriented - really?

I am pointing out the absurdity of your unsubstantiated FIAT that "what is legal in one state shall be legal in all states". The class or subject of the law has NO bearing on reciprocity or uniformness of ANY state laws. Drinking ages/hours/days are NOT safety oriented, nor are fishing laws. You made the ASSERTION that state laws SHALL BE THE SAME IN ALL STATES, now back it up.

 

[roguenuke]

SSM and polygamy are NOT different, as they are BOTH simply "alternative" versions of the DSM marriage contract. One seeks to make gender not be considered (but seeks to keep the limit of only TWO partners), the other removes the limitation of the number of partners as well. Neither has any basis in "need", as both are simply prefered changes to accomodate a minority view CURRENTLY excluded by law from a STATE marriage contract. Business partnership contracts lack restrictions on either the gender of or the number of partners, thus show that no great difficulty in dealing with either change REALLY exists, it is simply as a matter of STATE contract law.

The problem here is you are trying to approach this from the view of why people need to get married, which is wrong. That is not the way the EPC works. It says that it is the state's responsibility to explain what state interest is being furthered in denying a certain group of people equal treatment under a law and how. It is not the group's responsibility to say why they should be recognized as equal, except to counter the state's arguments for what is being furthered. The state has to prove their side first. And those arguments should be different for same sex couples and multiple partners, since they would affect the laws differently and are different types of relationships.

So far, no state has a sufficient legal argument for denying access to marry to same sex couples, even under the rational basis test, and seeing how the treatment is based on the characteristic of sex/gender not sexuality, then they should have be under the intermediate scrutiny level which means it needs to further an important state interest. There are several legitimate arguments for state interests being furthered in limiting the number of people who can be involved in a marriage or how many marriages a person can be involved in just due to the laws marriage themselves.

 

[Redress]

SSM and polygamy are NOT different, as they are BOTH simply "alternative" versions of the DSM marriage contract. One seeks to make gender not be considered (but seeks to keep the limit of only TWO partners), the other removes the limitation of the number of partners as well. Neither has any basis in "need", as both are simply prefered changes to accomodate a minority view CURRENTLY excluded by law from a STATE marriage contract. Business partnership contracts lack restrictions on either the gender of or the number of partners, thus show that no great difficulty in dealing with either change REALLY exists, it is simply as a matter of STATE contract law.

Hey, did you know the United States and the Moon are NOT different? They are both big.

That is exactly what you did there, and exactly why it is a stupid argument.

 

[ttwtt78640]

Hey, did you know the United States and the Moon are NOT different? They are both big.

That is exactly what you did there, and exactly why it is a stupid argument.

What? Both SSM and polygamy are forms of marriage used elsewhere in the world. You simply assert that TWO is somehow the "correct" number of partners in a marriage contract, yet that their genders are not important. Polygamists assert that TWO is not special or "correct" except by the SAME tradition that you assert is INVALID for barring SSM. What "compelling state interest" makes a business partnership allow for mutiple partners yet limits a marriage contract to only two partners?

Simply because YOU favor altering marraige only for SSM, does not make those that may wish to have multiple partners any less "worthy" of having their beliefs or "strong desires" being certified by the state any less valid that yours. I am discussing two POSSIBLE alternate forms of marriage, neither of which is now sanctioned by state law. You assert that SSM is better or "not as radical of a change" based on NOTHING that can not also be said for polygamy; if two mommies are good then why are three mommies not even better? One man and one woman, bothers you, yet you see the ONE part as correct and only the gender difference as wrong. Polygamists simply see the one part as EQUALLY being an unjustified restriction, that lacks any compelling state interest.

 

[ttwtt78640]

The problem here is you are trying to approach this from the view of why people need to get married, which is wrong. That is not the way the EPC works. It says that it is the state's responsibility to explain what state interest is being furthered in denying a certain group of people equal treatment under a law and how. It is not the group's responsibility to say why they should be recognized as equal, except to counter the state's arguments for what is being furthered. The state has to prove their side first. And those arguments should be different for same sex couples and multiple partners, since they would affect the laws differently and are different types of relationships.

So far, no state has a sufficient legal argument for denying access to marry to same sex couples, even under the rational basis test, and seeing how the treatment is based on the characteristic of sex/gender not sexuality, then they should have be under the intermediate scrutiny level which means it needs to further an important state interest. There are several legitimate arguments for state interests being furthered in limiting the number of people who can be involved in a marriage or how many marriages a person can be involved in just due to the laws marriage themselves.

When did the state acquire this need to show "valid reason" for only ONE aspect of the current marriage law? Does it not also have the SAME resonsibilty to show a "valid reason" for all other laws? Why is 16 the legal age to drive yet NOT the legal age to drink? Is it not a far greater public danger to allow a MINOR to operate a 2,000+ vehicle on public roads than to drink a beer at home?

 

[roguenuke]

When did the state require this need to show "valid reason" for only ONE aspect of the current marriage law? Does it not also have the SAME resonsibilty to show a "valid reason" for all other laws? Why is 16 the legal age to drive yet NOT the legal age to drink? Is it not a far greater public danger to allow a MINOR to operate a 2,000+ vehicle on public roads than to drink a beer at home?

It is only required when a law is challenged. That is why these same sex marriage bans are being struck down by the courts. No law can be ruled unconstitutional until it reaches a court.

 

[Redress]

What? Both SSM and polygamy are forms of marriage used elsewhere in the world. You simply assert that TWO is somehow the "correct" number of partners in a marriage contract, yet that their genders are not important. Polygamists assert that TWO is not special or "correct" except by the SAME tradition that you assert is INVALID for barring SSM. What "compelling state interest" makes a business partnership allow for mutiple partners yet limits a marriage contract to only two partners?

Simply because YOU favor altering marraige only for SSM, does not make those that may wish to have multiple partners any less "worthy" of having their beliefs or "strong desires" being certified by the state any less valid that yours. I am discussing two POSSIBLE alternate forms of marriage, neither of which is now sanctioned by state law. You assert that SSM is better or "not as radical of a change" based on NOTHING that can not also be said for polygamy; if two mommies are good then why are three mommies not even better? One man and one woman, bothers you, yet you see the ONE part as correct and only the gender difference as wrong. Polygamists simply see the one part as EQUALLY being an unjustified restriction, that lacks any compelling state interest.

I am not asserting any correct number(false statement number 1). What I am claiming, and correctly, is that SSM and polygamy are inherently different, and as such need to be considered differently. I am not claiming to favor altering marraige for only SSM(false statement number 2). I have not asserted that SSM is better(false statement number 3), nor that it is not as radical a change(false statement number 4). I am not saying the ONE part is correct(false statement number 5).

Really, stop building those straw men. When you have to make up positions for me and then argue against those positions, that might tell you that there is a problem with your argument.

 

[beerftw]

Debatable, certainly not "fact"



False.



Debatable and not going to happen.



Or the world could end tomorrow, which is just about as likely as your scenario, maybe more likely.

are you going to refute anything or simply make snide comments and avoid disproving anything.

 

[Redress]

are you going to refute anything or simply make snide comments and avoid disproving anything.

I did, while offering more evidence for my positions than you did.

 

[teamosil]

To argue to uphold a law under rational basis review, you need to be able to show a legitimate government interest. No one has done that yet for banning SSM.

The thing is, the court doesn't really look into whether the interest is true, or if that is a good way to achieve it, or anything like that under rational basis review. They more or less just look to see if the state is claiming some kind of reason they want the law in place, and if so, and that reason isn't illegal, then they pretty much pass it. If the courts were to find that only rational basis review was appropriate, that would be a big loss to marriage equality. There are literally only maybe a dozen instances in US history where a federal court struck down a law for failing rational basis review. The Ninth Circuit did do that for CA's prop 8, but it was for a very California-specific reason: CA already had civil unions that were identical to marriage, so the only effect prop 8 has is to demean gay people. It doesn't change anything about taxes, anything about hospital visitations, adoption, nothing. It is ONLY about stigmatizing gay people, and that isn't a legitimate interest. But, in a state that doesn't have civil union laws that are identical to marriage, I think it is almost certain that a court which only applies rational basis review would find that it passed.

That said, it is unlikely that the courts will ultimately decide that only rational basis is required. I'd bet they go with intermediate scrutiny, in which case the bans are certain to fall.

 

[beerftw]

I did, while offering more evidence for my positions than you did.

saying things like that will never happen and debateable???????????i didnt see that as evidence of any kind.

 

[roguenuke]

The thing is, the court doesn't really look into whether the interest is true, or if that is a good way to achieve it, or anything like that under rational basis review. They more or less just look to see if the state is claiming some kind of reason they want the law in place, and if so, and that reason isn't illegal, then they pretty much pass it. If the courts were to find that only rational basis review was appropriate, that would be a big loss to marriage equality. There are literally only maybe a dozen instances in US history where a federal court struck down a law for failing rational basis review. The Ninth Circuit did do that for CA's prop 8, but it was for a very California-specific reason: CA already had civil unions that were identical to marriage, so the only effect prop 8 has is to demean gay people. It doesn't change anything about taxes, anything about hospital visitations, adoption, nothing. It is ONLY about stigmatizing gay people, and that isn't a legitimate interest. But, in a state that doesn't have civil union laws that are identical to marriage, I think it is almost certain that a court which only applies rational basis review would find that it passed.

That said, it is unlikely that the courts will ultimately decide that only rational basis is required. I'd bet they go with intermediate scrutiny, in which case the bans are certain to fall.

At least one of those instances was a marriage law.

 

[teamosil]

At least one of those instances was a marriage law.

The Ninth Circuit's decision in Perry v. Brown that I discussed is about marriage. Was there another one you had in mind?

 

[roguenuke]

The Ninth Circuit's decision in Perry v. Brown that I discussed is about marriage. Was there another one you had in mind?

Yes, Turner v Safley. The SCOTUS struck down a law that said prisoners could not get married on the rational basis. They in fact refused to rule that it should be held to a strict scrutiny level, like the Court in Zablocki v Redhail ruled.

 

[Redress]

The thing is, the court doesn't really look into whether the interest is true, or if that is a good way to achieve it, or anything like that under rational basis review. They more or less just look to see if the state is claiming some kind of reason they want the law in place, and if so, and that reason isn't illegal, then they pretty much pass it. If the courts were to find that only rational basis review was appropriate, that would be a big loss to marriage equality. There are literally only maybe a dozen instances in US history where a federal court struck down a law for failing rational basis review. The Ninth Circuit did do that for CA's prop 8, but it was for a very California-specific reason: CA already had civil unions that were identical to marriage, so the only effect prop 8 has is to demean gay people. It doesn't change anything about taxes, anything about hospital visitations, adoption, nothing. It is ONLY about stigmatizing gay people, and that isn't a legitimate interest. But, in a state that doesn't have civil union laws that are identical to marriage, I think it is almost certain that a court which only applies rational basis review would find that it passed.

That said, it is unlikely that the courts will ultimately decide that only rational basis is required. I'd bet they go with intermediate scrutiny, in which case the bans are certain to fall.

See, you just contradicted yourself. The court did look into whether the interest is true.

 

[Redress]

saying things like that will never happen and debateable???????????i didnt see that as evidence of any kind.

Here, let's look at your post that I was replying to:

fun facts on constitutionality of marriage.

fact govt has no power over mariage except by 14th amendment which prevents discrimination without due process of law.

fact lovely vs virginia covers interacial marriage,already protected under 14th amendment,it doesnt give govt power oover marriage,it reinforced existing standards of an amendment,saying govt cant discriminate over marriage without due process.


fact states are not obligated to even accept marriage,all it takes is for the unconstitutional doma to end,and any state that doesnt accept ssm can outlaw all marriage and civil unions,since the 14th calls for equal protection,and equally giving no one protection is equal.the federal govt could do nothing since marriage is not defined under the constitution and left to the states,pre 14th amendment states had 100% say.post 14th states can either accept all or none,which both are withing constitutional rights.

all answers on this subject can easilylead to problems,since as stated under the constitution states hold rights over marriage,the 14th amendment blocks most that power,therefore any state can easily just deny marriage/civil union for everyone to block ssm.it would be where marriage would only be recognized by church and community,and maybe federal for tax reasons only,but not on a state level

Note that you substantiated none of your claims, so I responded with my answer to those unsubstantiated claims. In this thread, one of us has presented actual argumetns and information. That one is not you.

 

[teamosil]

See, you just contradicted yourself. The court did look into whether the interest is true.

No, not really. It looked at what the law does- nothing tangible. If it had a tangible effect, say denying same sex couples equal tax status, then if the state said, for example, that it was doing that to save money, that'd be that. Rational basis review is generally for "groups" like "people without drivers licenses" or "homeowners in a particular neighborhood" or "people who rob liquor stores". The courts allow states enormous latitude in distinguishing between how they treat different groups if they're just rational basis level groups.

 

[beerftw]

Here, let's look at your post that I was replying to:



Note that you substantiated none of your claims, so I responded with my answer to those unsubstantiated claims. In this thread, one of us has presented actual argumetns and information. That one is not you.

its a thing called the 14th amendment and the 10th amendment.of course marriage in the constitution is not defined in anyway.therefore since the tenth amendment grants all power not granted under the constitution for federal govt is granted to the states.

the 14th requires equality under law.

anything else does not count.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

on the 14th i only posted section one,as it is the only one that applies to this subject,the other 3 sections are unrelated.


now to that point since the constitution grants no power over marriage or even defines it,and the welfare and commerce clause do not apply to this subject,that therefore makes it solely the states power over marriage under the constitution,with limitations set forth by the 14th amendment.


if that doesnt satisfy you i can easily post every section of the constitution and every amendment and explain each one and where they are related to the constitution.


just face it,constitution never drew sides on this issue,and left it to the states from day one.the only way ssm marriage people would win under a constitutonal battle would be to push for an amendment,not to fight it constitutionally,because the constitution ignored the subject altogether.

 

[roguenuke]

its a thing called the 14th amendment and the 10th amendment.of course marriage in the constitution is not defined in anyway.therefore since the tenth amendment grants all power not granted under the constitution for federal govt is granted to the states.

the 14th requires equality under law.

anything else does not count.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

on the 14th i only posted section one,as it is the only one that applies to this subject,the other 3 sections are unrelated.


now to that point since the constitution grants no power over marriage or even defines it,and the welfare and commerce clause do not apply to this subject,that therefore makes it solely the states power over marriage under the constitution,with limitations set forth by the 14th amendment.


if that doesnt satisfy you i can easily post every section of the constitution and every amendment and explain each one and where they are related to the constitution.


just face it,constitution never drew sides on this issue,and left it to the states from day one.the only way ssm marriage people would win under a constitutonal battle would be to push for an amendment,not to fight it constitutionally,because the constitution ignored the subject altogether.

You're wrong, and many judges have already ruled as such.

First of all, the EPC does cover same sex marriage. The only question is if the state is able to come up with a good argument for why banning same sex marriage furthers a state interest and whether the SCOTUS will require the state interest to be just any state interest or an important state interest.

Second, DOMA most certainly violates the 10th Amendment and the EPC since it tries to impose a sex/gender restriction on marriage and gives absolutely no legitimate state interest being met in not recognizing same sex marriages on a federal level. They can't even make a legitimate claim about it being about procreation since the federal government recognizes first cousins who are married in Arizona, Illinois, Idaho, Utah, and Wisconsin, states whose laws say that first cousins must not be able to procreate in order to legally marry.

 

[teamosil]

You're wrong, and many judges have already ruled as such.

First of all, the EPC does cover same sex marriage. The only question is if the state is able to come up with a good argument for why banning same sex marriage furthers a state interest and whether the SCOTUS will require the state interest to be just any state interest or an important state interest.

Exactly right.

Second, DOMA most certainly violates the 10th Amendment and the EPC since it tries to impose a sex/gender restriction on marriage and gives absolutely no legitimate state interest being met in not recognizing same sex marriages on a federal level. They can't even make a legitimate claim about it being about procreation since the federal government recognizes first cousins who are married in Arizona, Illinois, Idaho, Utah, and Wisconsin, states whose laws say that first cousins must not be able to procreate in order to legally marry.

I am strongly anti-DOMA and I think it is unconstitutional for the reasons you list in the second half- no legitimate state interest, so it violates the equal protection clause.

However, I don't agree with the 10th amendment rationale. If the federal government is acting within the powers it was granted for an objective that falls within the traditional realm of the states, that does not violate the 10th. You only violate the 10th if you are acting outside of powers granted to the federal government. For example, the federal government can cut spending to a state to try to coerce it to set the drinking age to 21 because it is empower to spend or not to spend, so it didn't violate the 10th amendment. And things like deciding who to give federal benefits to and whatnot are powers granted to the federal government.

 

[roguenuke]

I am strongly anti-DOMA and I think it is unconstitutional for the reasons you list in the second half- no legitimate state interest, so it violates the equal protection clause.

However, I don't agree with the 10th amendment rationale. If the federal government is acting within the powers it was granted for an objective that falls within the traditional realm of the states, that does not violate the 10th. You only violate the 10th if you are acting outside of powers granted to the federal government. For example, the federal government can cut spending to a state to try to coerce it to set the drinking age to 21 because it is empower to spend or not to spend, so it didn't violate the 10th amendment. And things like deciding who to give federal benefits to and whatnot are powers granted to the federal government.

I actually agree with you about the 10th Amendment rationale and I'm praying that if it comes up in the SCOTUS reasoning at all, it is extremely downplayed beneath the EPC rationale. I added it because it is part of the rationale that has gone into at least one of the lower court rulings and it could be how DOMA is struck down, it would just be very bad for pro-same sex marriage arguments on a state level.

 

[Hicup]

Anyone NOT in support of gay marriage that read the appeal by the legal team for Prop 8, could only conclude that their argument is not only sound, and rational, it is also compelling. The mere fact that a single gay judge (In walkers case) or a panel of three loons (in the case of the 9th circus) struck it down, doesn't grant those in support of gay marriage some victory in the hearts and minds of the people. I laugh whenever I hear the rhetorical talking points by the gay left when they claim that there really is no moral argument, or any other rational argument against gay marriage anymore, so why is it still illegal..

There's a few good arguments, and whether you like it or not, or whether you consider their arguments objective or not, does not grant you the right to claim your right on the issue. The tactic of brow beating those against gay marriage into submission will work for some, and has to some degree shamed enough people into either being indifferent, and or dispassionate about the matter, or even changed some minds, however I fear that it will still be a long time before the vast majority of people are accepting of it. You might find tolerance as a result of the shaming and brow beating but acceptance is a whole nother thing. I think people instinctively and inherantly abhor same sex relationships, and this is as a difficult thing to chnage as same sex attraction itself.


Tim-

 

[TheNextEra]

There's a few good arguments, and whether you like it or not, or whether you consider their arguments objective or not, does not grant you the right to claim your right on the issue. The tactic of brow beating those against gay marriage into submission will work for some, and has to some degree shamed enough people into either being indifferent, and or dispassionate about the matter, or even changed some minds, however I fear that it will still be a long time before the vast majority of people are accepting of it. You might find tolerance as a result of the shaming and brow beating but acceptance is a whole nother thing. I think people instinctively and inherantly abhor same sex relationships, and this is as a difficult thing to chnage as same sex attraction itself.


Tim-

More and more people are accepting of it each year. Take a look 50 years ago, would you ever think back then that gay marriage would even be on the ballot or legal in some states? How about even 20 years ago?

As more and more of the anti-SSM die out, they will be replaced by more accepting people. I agree you will never change the minds of some hardcore anti-SSM people, but then the pro-SSM doesn't really need to do that. They just need to wait until more and more of the anti-SSM people die out.