Gay Marriage

[lawcat]

That is not a ruling on a case, it is a dismissal of one. Precedent is set by rulings, not dismissals.

 

The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal "for want of [a] substantial federal question". That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage.

 

Baker v. Nelson - Wikipedia, the free encyclopedia

 

You also failed to notice that the Minnesota Baker court cited SCOTUS for that sentence: marriage is fundamental to our very existence and survival.

[InfiniteNow]

The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal "for want of [a] substantial federal question".

 

Well, perhaps that was the case in 1972, but it's hardly the case now in 2009. This is a pretty major federal issue, as evidenced by all of the recent challenges to these laws, recent changes in state laws which explicitly allow same sex marriage, discussion of this issue during a national/federal presidential election campaigns, and also simply by the fact that we are here now discussing it at Hypography.

 

Also, I'm just checking... You do know, right, that SCOTUS cases are not the FINAL ruling on constitutionality issues, just the current one, and are often overturned as society evolves and becomes better educated? Oh... and Baker v. Nelson wasn't a ruling at all, just a refusal by the courts to offer one for (how did your quote state it?) "want of a substantial federal question."

 

So, another pretty big whiff for you on multiple fronts there... I must say.

 

I'm still waiting for that legitimate secular reason for the state conferring benefits and privileges to opposite sex partners, but not same sex partners.

 

Also, I still have the 14th amendment (Equal Protections clause) in support of my position. We haven't even begun to address that. :)

[lawcat]

Here is a 2006 decision of a federal appellate court:

 

In an opinion upholding Nebraska's Marriage Amendment, the United States Court of Appeals for the Eighth Circuit mentioned Baker v Nelson and the authority of States on Marriage Law.

 

"In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, 409 U.S. 810 (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.) There is good reason for this restraint. As Judge Posner has observed: This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority. But public opinion is not irrelevant to the task of deciding whether a constitutional right exists. . . . If it is truly a new right, as a right to same-sex marriage would be . . . . [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right. Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1585 (1997). As we have explained, Appellees’ attempt to isolate § 29 from laws prohibiting same-sex marriage because it is a state constitutional amendment fails. If there is no constitutional right to same-sex marriage, that is, if a statutory prohibition satisfies rational-basis review, then § 29 likewise survives rational-basis review. We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States." Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)

[InfiniteNow]

Well, that's just super.

 

How about you go ahead and address the questions put to you, now.

[lawcat]

LIST OF STATE STATUTES PROHIBITING SAME_SEX UNIONS

See Code of Ala. § 30-1-19 (same-sex prohibited, and rights void if entered into anywhere); Alaska Stat. § 25.05.013 (rights unenforceable if relationship seeks marriage rights); Ark. Rev.Stat. § 25-112 & § 25-101 (prohibiting same-sex marriage and evasions by traveling to other jurisdictions); Ariz.Code Ann. § 9-11-109 & § 9-11-208 (same-sex marriage is void and all rights granted by that license are void); 13 Del. C. § 101 & § 104 (marriage between persons of same gender prohibited and void and residents are penalized for evading state law by entering into marriage in outside states); Dean v. District of Columbia, App. D.C., 653 A.2d 307 (1995) (same-sex marriage void by judicial decree on the day of celebration, and when entered outside the state pursuant in D.C.); Fla. Stat. § 741.212 (prohibiting same-sex marriage and denying any claims arising thereof); O.C.G.A. § 19-3-3.1 (prohibiting same-sex marriage and denying claims arising thereof); Haw. Rev. Stat. § 572-1 (only one man and one woman are recognized in law); Idaho Code § 32-201 & § 32-209 (only one man and one woman, same-sex marriage is invalid); 750 Illinois CS 5/212 & 5/216 (same-sex marriage void even when entered into to avoid the laws of the state); Burns Ind. Code Ann. § 31-11-1-1 (same gender marriage void even if out of state); Iowa Code § 595.2 & § 595.20 (same-sex marriage invalid even if entered out of state); Kan.Stat. Ann. § 23-101 & § 23-115 (same-sex marriage not recognized even if entered out of state); Ky. Rev. Stat. § 402.020 & § 402.045 (same-sex marriage is prohibited and any rights arising thereof unenforceable); La. C.C. Art. 89 & Art. 3520 (same-sex marriage is prohibited and any rights arising thereof unenforceable); Ma. 19-A Ma. Rev. Stat. § 701 (same-sex marriage prohibited if entered into in any state); Md. FAMILY LAW Code Ann. § 2-201 (only one man and one woman can join); MCLS § 551.1 & § 551.271 (same-sex marriage invalid in Michigan and given no rights to any extent); Minn. Stat. § 517.03 (same-sex marriage void and rights arising thereof); Miss. Code Ann. § 93-1-1 (same-sex marriage void even if entered into in another state); § 451.022 R.S.Mo. (same-sex marriage not recognized even if valid where contracted); Mont. Code Anno., § 40-1-401 (Same-sex marriage is prohibited, as well as civil relationship); Neb. Const. Art. I, § 29 (same-sex union not valid or recognized); Nev. Rev. Stat. Ann. § 122.020 (only a man and a woman may be joined); In N.Y. same-sex marriage unauthorized by judicial decree. See Hernandez v Robles (2005, Sup) 7 Misc 3d 459, 794 NYS2d 579. N.C. Gen. Stat. § 51-1.2 (same-sex marriage not valid); N.D. Cent. Code, § 14-03-01 (marriage only between opposite sexes) N.D. Cent. Code, § 14-03-08 (same-sex marriage not recognized even out of state); ORC Ann. 3101.01 (any act or judicial proceeding in another state giving rights based on same-sex relationship is void); 43 Okl. St. § 3.1 (same-sex marriage prohibited); ORS § 106.010 (only a man and a woman can marry, see Li v. Sta te of Oregon, 338 Or 376, 110 P3d 91 (2005)); 23 Pa.C.S. § 1704 (same-sex marriage void); S.C. Code Ann. § 20-1-15 (same-sex marriage prohibited); S.D. Codified Laws § 25-1-38 (same-sex marriage contracted out-of-state is invalid); Tenn. Code Ann. § 36-3-113 (same-sex marriage void and unenforceable if contracted anywhere else); Tex. Fam. Code § 6.204 (no effects to rights or claims arising from same-sex unions elsewhere); Utah Code Ann. § 30-1-4.1 (same-sex marriage prohibited and void and no effect to rights and duties arising from it); Rev. Code Wash. (ARCW) § 26.04.020 (same-sex marriage prohibited if entered into outside state); W. Va. Code § 48-2-603 (no effect given to acts/proceedings respecting same-sex marriage-like relationships); Wis. Stat. § 765.001 (marriage is union between a man and a woman by using husband and wife definition); Wyo. Stat. Tit. 20 Note (marriage is reserved for a husband and a wife);

[InfiniteNow]

Yep... That, too, is super.

 

Let's try something different now, shall we? How about you make a post which answers the questions put to you?

[lawcat]

Yep... That, too, is super.

 

Let's try something different now, shall we? How about you make a post which answers the questions put to you?

 

Have you ever wondered how can a State regulate private wills or trusts? How can a State impose worker comp on employers?

 

You are questioning the extent of the power of the State? Your misunderstanding of the power of the State is your problem. It is not my problem that you remain blind to the overwhelming evidence of an important State's interest in matters of marriage, and signposts are all over every judicial opinion and legislative act.

 

We take marriage seriously in our legal system. Marriage is deemed essential to our survival because it produces ordered society, oredered continuation of civilization, and offspring about which the State cares; we educate children for free, we ensure that they have stable environment in family courts if breakdown of families occurs. We encourage that stability through incentives. But our society has no civilixational incentive to recognize same sex marriages.

If you fail to see and understand that, that is your problem, and you are in an overwhelming minority. Evidence is above.

[InfiniteNow]

That's a great response. You should have your parents print that out using their inkjet printer and hang it up on their refrigerator with magnets to show off to all their friends how smart their little boy is.

 

Now, will you be so kind as to address the question put to you like ten or twelve times already?

 

 

What legitimate secular reason(s) are there for the state to confer benefits and privileges to opposite sex partners, but not same sex partners?

[Zythryn]

Lawcat, you keep avoiding the same question.

I applaud you for attempting to answer it a number of posts again. Your answer was refuted and you did not support or defend it.

Do you have another answer or do you care to defend your answer (regarding the survival of society)?

I must say, you must have been a star at dodgeball;)

[Larv]

Bigotry always gets defeated.

Do you mean bigotry on both side of an issue like gay marriage? Or do you mean only the bigotry that opposes your side?

 

The arc of the moral universe is long, but it bends toward justice.

Didn't know there was a "moral universe," especially one with an arc. Maybe you're talking about the one that blue birds fly over, you know, somewhere over the rainbow.

[InfiniteNow]

Do you mean bigotry on both side of an issue like gay marriage? Or do you mean only the bigotry that opposes your side?

Did you just call me a bigot for arguing in favor of equal rights and protections for all people, regardless of their sexual preference or genitals? That's rather funny. Thanks for the chuckle. :hihi:

[modest]

I've only read the last couple pages of this thread, so I hope I'm not repeating anything that's been beaten to death.

 

Wouldn't homosexuals be granted suspect classification? Statutes prohibiting same sex marriage would then have a very hard time of equal protection judicial review because it would be reviewed under strict scrutiny. That's the impression I get from briefly looking over this issue.

 

As I understand, courts have not granted gay people a suspect class, but that doesn't seem at all right to me by looking at wikipedia's listed guidelines:

 

Strict scrutiny is applied to regulations that affect groups that fall under a "suspect classification." To be considered a suspect classification in the United States, the statute at issue must target:

1. a "discrete" or "insular" minority[1] who
   
2. possess an immutable trait (race or alienage),
   
3. share a history of discrimination, and
   
4. are powerless to protect themselves via the political process.
   

Gay people are a discrete minority with an immutable trait who share a very long history of discrimination and are powerless to protect themselves in the political process (ironically, because they can't get married and single people are far less likely to be elected to office). By what rational could homosexuals not qualify as a suspect classification? That seems crazy to me.

 

And... religion is a suspect class! :hihi: How could some religious cult meet the qualifications above more than homosexuality? I'm pretty sure that makes no sense at all.

 

So, if gay people were found to be a suspect class then DOMA (or other anti-gay statutes) would have to meet all 3:

 

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

 

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

 

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

 

Strict scrutiny - Wikipedia, the free encyclopedia

 

This is a rather different standard from the rational basis under which the courts are reviewing the statutes now where the law only needs to be "rationally related to a legitimate government interest." Well, what isn't "rationally related"?

 

No, it seems the only reason gay people are not finding protection from discrimination under the 14th amendment is because the courts have arbitrarily decided that only racial minorities and religious groups warrant the highest protection against discrimination. The court's very method of choosing who is discriminated against is discriminatory.

 

I guess—I don't know much about this issue, and I'm not very well educated in the legal system, but this issue of "suspect class" seems very suspect to me.

 

~modest

[modest]

Now, will you be so kind as to address the question put to you like ten or twelve times already?

 

 

What legitimate secular reason(s) are there for the state to confer benefits and privileges to opposite sex partners, but not same sex partners?

 

Reading one of Lawcat's link's, I found a Florida court's answer to that:

 

The burden in on the Plaintiffs to negate “every conceivable basis which might support [the legislation], whether or not the basis has a foundation in the record.” Id. at 818, (quoting Heller 50 U.S. at 320-21). The United States has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. (quoting Heller, 50 U.S. at 320). “A statutory classification fails rational-basis review only when it ‘rests on grounds wholly irrelevant to the achievement of the State’s objective.’” Heller, 50 U.S. at 324 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978)). The United States asserts that DOMA is rationally related to two legitimate governmental interests. First, the government argues that DOMA fosters the development of

 

relationships that are optimal for procreation, thereby encouraging the “stable generational continuity of the United States.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). DOMA allegedly furthers this interest by permitting the states to deny recognition to same-sex marriages performed elsewhere and by adopting the traditional definition of marriage for purposes of federal statutes. Second, DOMA “encourage

the creation of stable relationships that facilitate the rearing of children by both of their biological parents.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). The government argues that these stable relationships encourage the creation of stable families that are well suited to nurturing and raising children.

 

Plaintiffs offer little to rebut the government’s argument that DOMA is rationally related to the government’s proffered legitimate interests. Rather, Plaintiffs repeatedly urge the Court to apply the more rigid strict scrutiny analysis.

 

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION (page 15-16)

 

~modest

[Zythryn]

Good find Modest!

Dang, though, I suppose they will be coming after my marraige next since my wife and i will never have children.

[lawcat]

Reading one of Lawcat's link's, I found a Florida court's answer to that:

 

 

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION (page 15-16)[/indent]

 

~modest

 

Thank you Modest. I've been saying the same thing here for 5 pages.

[Larv]

Modest, do you know scientifically that homosexuality is an "immutable trait"? It certainly is not an immutable trait like race is.

[Zythryn]

Thank you Modest. I've been saying the same thing here for 5 pages.

 

A simple quote would have sufficed.

Now, to my question for you.

Should marraige between a man and woman that are unable, or unwilling to have children also be banned on the same basis?