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No argument from me on that if it is for a political cause.
Groups like the DAR that fund political discussion fall under a different camp.
No argument from me on that if it is for a political cause.
Groups like the DAR that fund political discussion fall under a different camp.
Of course lesbians can be artificially inseminated, and many heterosexual couples are no longer no longer naturally fertile (i.e. able to have children without medical help if they can at all) at least by the time they get married.
You can make some other arguments against incestuous marriages for the record, such as the potential inherent danger to society with the inherent power imbalances which could exist with such marriages and especially when between parents and their children it could effectively simply be a way to completely evade estate taxes.
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So is doing so by gender; it does not harm anyone; nor does it harm society in general.
It only emotionally harms those that can find no other reason than because they do not like it.
Right, that's what I told you to begin with, that this ruling states the federal government cannot define marriage for states without a compelling federal interest. Your idea that the federal government cannot prohibit child marriage in the states is unproven however, so bad example.
If you are referring to established legal precedence as the 40 year old unexplained dismissal of Baker v. Nelson, good luck on that. It appears quite likely that the 9th circuit is about to strike down anti-gay marriage statutes and I fully expect the USSC will let them, as the USSC knows which way the cultural winds are blowing.
Regardless of all that, you're off on a tangent. This court ruled that it violated a separation of powers issue, it did not in any way reaffirm the right of states to enact discriminatory marriage laws that I have seen. Other federal courts are moving to strike down homophobic statutes on other grounds, which is what I mentioned earlier.
Equality for all is coming, just like for men and women. Aren't you excited??
An incestuous couple could also be artificially inseminated eliminating the possibility of genetically inferior offspring.
That would not apply to siblings. And power imbalances could exist if unrelated people are married with say a massive age difference. And both traditional and same-sex marriage can be sued to evade estate taxes now.
We are discussing whether it is arbitrary. Please explain why you think it arbitrary to limit marriage to between a man and woman.
cybrsage
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I still say the government should have to get OUT of the religion business and not do ANY marriages at all. Just because the Constitution has been violated for centuries is not a good reason to violate it more and more. Shift to all civil unions and everyone wins.
So it seems at best there will be disagreement on whether it is arbitrary. So why dont you explain why YOU think it is arbitrary instead of mindlessly appealing to a future court ruling.
And as for the USSC, you are basically saying it will strike down anti-gay marriage measures not because they are illegal discrimination, but because people have come to accept gay marriage. This is not the purpose of the court, but of state legislatures.
True for the first one, but that doesn't really come across as an actual argument to keep gay marriages banned. (You may be making at least a theoretical argument for incestuous marriages, but you are not explaining how current marriage policies actually make sense since they don't cover all the cases of naturally infertile couples who can get married regardless unless they are same sex ones.)
Power balances in relationships at least have a more obvious potential to be a problem if someone has the aspect of actually being their parent who raised them on top of everything else. Its not clear what you're actually talking about with the "sued to evade estate taxes" so I would appreciate clarification on this point. Ordinarily my understanding is its straightforward for the remaining partner to keep all the assets without them being subjected to estate taxes if a will is written properly.
I'm sure it is. This is also the same court that has made the Dredd Scott decision, Plessy v. Ferguson, and Brown v. Board. It interprets the Constitution based on evolving standards of what is decent and reasonable. Anti-gay bigotry is swiftly becoming unacceptable, and the court will follow.
Why gay marriage bans are arbitrary has been done to death on here. There are many threads, some of which I have participated in, that spell it out in excruciating detail. Simply put, opposition to same sex marriage is based in arguments of tradition and moral objection to homosexuality. Neither of these is a constitutionally rational basis for discrimination.
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It is arbitrary because there are two other combinations that can also happen.
And neither combination shows to be any danger to society.
Defining marriage as between a man and woman is not homophobic bigotry and more than denying incestuous marriage makes you a siblingphobic bigot.
eskimospy said:
No. It is based on the fact that only a man-woman relationship can produce children as was the basis of past court rulings.
There are more than 2 other combinations, unless you insist on restricting marriage to 2 people. But why not 1 or 3 or 4, defining marriage as between 2 people is completely arbitrary.
Atomic Playboy
Lifer
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Incorrect. Prohibiting same sex marriage is done so for irrational reasons, making it bigotry. Prohibiting sibling marriage has a number of rational reasons to oppose it, although I do not believe that the arguments really hold up for that either.
I will ignore the now numerous court rulings to the contrary and simply point out that you just asked me why I personally believed it to be unconstitutional instead of appealing to court rulings. Then when I say so, you go right back to court rulings. Furthermore, it is completely illogical to base marriage on child production capacity when gays marrying has no effect whatsoever on nationwide child production.
This is of course plainly wrong because there are clear additional legal problems with three people getting married, such as dividing assets during a divorce, possible additional child custody complications, and issues such a social security survivor benefits and other federal policies.
The last one could be a real issue because depending on the circumstances 2 people being eligible for such benefits as long as they live for a single person gives them a clear advantage over other tax payers. (Even if you split it as long as they are alive, as long as both are eligible the odds are higher such benefits will continue to go to at least one of them for a longer period.)
There are also clear concerns about power imbalances which have often clearly been at issue with historical polygamous marriages in the U.S.
I am not saying you can't make an argument for allowing such marriages as well, but there are identifiable legal justifications for choosing to treat same sex marriages differently than polygamous ones.
To cover the obvious, the way legal recognition of marriage works in the U.S. it only applies to more than one individual in how it actually has any legal impact, so the point about one person is stupid. (I.E. an individual religion could argue one person could marry themselves or something along those lines, but there is no reason government would need to get involved in the situation one way or the other.)
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sactoking
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Without coming down on either side of the debate I will take a moment to say that nehalem's original point, that the ruling's basis of states' rights is interesting, does appear to be valid.
In this case the court has said the DOMA cannot restrict federal benefits to same-sex couples because the marriage is defined at the state level and the federal government must accept that. Yet in other cases courts have said that states cannot define marriage as between a man and a woman because states do not have that ability. Each ruling appears valid on its own but together they say that states have the discretion to define marriage yet states cannot exercise that discretion to define marriage.
It has been posited that states do have the discretion to define marriage but they cannot do so to limit the definition to one man and one woman, since that would be arbitrary and serve no purpose. Yet I would counter that any definition that was not "anyone can marry without restriction" would fail that same test of arbitrariness. In other words, only one valid definition would not be arbitrary and thus the states would have no discretion in defining marriage.
And yes, any other marriage limitation scenario fails the logic test:
Marriage can only be between people of the same race? Arbitrary
Marriage can only be between people of the same height? Arbitrary
Marriage can only be between people of the same political affiliation? Arbitrary
There is no limiting definition of marriage which is not arbitrary, so the only non-arbitrary definition is to be all-inclusive. If the definition must be all-inclusive then there is no discretion.
The current existing limiting factors are, contrary to popular belief, also arbitrary. The banning of polygamy was previously mentioned and accepted based on legal complications yet similar legal complications arise with same-sex marriage. Do the laws regulating the divestiture of assets need to be amended in a polygamous marriage? Yes they do. But in a non-polygamous same-sex marriage there are also legal hurdles to tackle. If two women are married, one donates an egg to be artificially inseminated, and the other carries the child to term, how does that fit into our legal framework? It currently doesn't and we know that because that scenario has already occurred. Tackling that legal obstacle is no more daunting than tackling legal obstacles surrounding polygamy, incest, or any other number of currently banned marriage scenarios. The difference is that society is willing to handle some scenarios and not others; but the fact remains that they are all still arbitrary.
So, regardless of whether I agree with DOMA or not, I do have to say that the legal reasoning in this particular case does not mesh with the reasoning in other, more established cases. That's why the USSC exists...
In this case the court has said the DOMA cannot restrict federal benefits to same-sex couples because the marriage is defined at the state level and the federal government must accept that. Yet in other cases courts have said that states cannot define marriage as between a man and a woman because states do not have that ability. Each ruling appears valid on its own but together they say that states have the discretion to define marriage yet states cannot exercise that discretion to define marriage.
It has been posited that states do have the discretion to define marriage but they cannot do so to limit the definition to one man and one woman, since that would be arbitrary and serve no purpose. Yet I would counter that any definition that was not "anyone can marry without restriction" would fail that same test of arbitrariness. In other words, only one valid definition would not be arbitrary and thus the states would have no discretion in defining marriage.
And yes, any other marriage limitation scenario fails the logic test:
Marriage can only be between people of the same race? Arbitrary
Marriage can only be between people of the same height? Arbitrary
Marriage can only be between people of the same political affiliation? Arbitrary
There is no limiting definition of marriage which is not arbitrary, so the only non-arbitrary definition is to be all-inclusive. If the definition must be all-inclusive then there is no discretion.
The current existing limiting factors are, contrary to popular belief, also arbitrary. The banning of polygamy was previously mentioned and accepted based on legal complications yet similar legal complications arise with same-sex marriage. Do the laws regulating the divestiture of assets need to be amended in a polygamous marriage? Yes they do. But in a non-polygamous same-sex marriage there are also legal hurdles to tackle. If two women are married, one donates an egg to be artificially inseminated, and the other carries the child to term, how does that fit into our legal framework? It currently doesn't and we know that because that scenario has already occurred. Tackling that legal obstacle is no more daunting than tackling legal obstacles surrounding polygamy, incest, or any other number of currently banned marriage scenarios. The difference is that society is willing to handle some scenarios and not others; but the fact remains that they are all still arbitrary.
So, regardless of whether I agree with DOMA or not, I do have to say that the legal reasoning in this particular case does not mesh with the reasoning in other, more established cases. That's why the USSC exists...
They really aren't arbitrary. You can't marry a 5 year old because they are unable to understand what is going on, among many other reasons. I don't see how such a restriction is arbitrary. Similarly the situation where both people must be of sound mind.
So sure they are able to define marriage, they just aren't able to do so irrationally.
You're simply outright mistaken here. The court DID NOT rule on those grounds, (only the lower did basically did) but on the argument that the federal government lacked a sufficient legitimate justification to implement a policy which specifically targeted a minority group and therefore justified heightened scrutiny by the court. They noted that historically the federal government deferred to the states on this issue, but this was only a minor element of the case.
This is clearly a VERY badly flawed argument. With our current court system rules, who is the natural parent of the child actually has very little legal relevance anymore. (The only exception might be a case where a partner cheated, and even then it generally doesn't matter much.) Basically what matters is things like who participated in raising the child with regards to custody issues, along with the need of society and the child for the child to receive financial assistance regardless of whether both parents are considered the "natural" parent of the child or not. In the case in question, you could make an argument they should both be counted as the natural parents, but its practically a legal irrelevancy either way.
It should be noted that regardless you can have a practically identical situation occur with a hetero couple where the sperm is from the husband, the egg is donated, but the wife is artificially inseminated and brings the child to term, so its not even clear how the same sex situation actually creates a legally different situation.
In other words, you're at best talking about an incredibly minor almost legal irrelevancy, versus VASTLY more serious complications from a legal perspective involving possible marriages involving incest or polygamy.
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sactoking
Diamond Member
- Sep 24, 2007
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But it is arbitrary. The age of consent to marriage is an arbitrarily-defined phenomenon. Does it make sense that a five year old is incapable of understanding the ramifications? Yes. Does it make sense that someone one day, one week, or one month away from the age of consent is somehow incapable of understanding the ramifications of marriage but if they wait 24 hours or seven days they magically become capable? No, it does not. Even the soundness of mind test is arbitrary; two psychologists can easily disagree on the capacity of an individual.
That's the whole point: when a threshold is set it is done so at a point where most cases will seem appropriate but borderline cases will always be open for interpretation. That's pretty much the definition of an arbitrary threshold. (Where arbitrary is defined as: contingent solely upon one's discretion)
To which case are you referring? If you're referring to the recent DOMA ruling you're wrong. If you're referring to any of the state-level cases that have invalidated same-sex marriage bans based on Constitutional provisions you're also wrong.
Really? Because in the case I referenced the natural parentage of the child was the crux of the legal ruling. The same-sex couple got divorced and the woman who donated the egg was left out in the cold. The court ruled that the woman who carried the baby to term was the "natural parent" of the child and her rights superseded those of the other woman.
And this is your problem: you quickly dismiss the legal complications surrounding same-sex
unions while overstating the legal complications surrounding all other types of classification. The simple fact of the matter is that if society had an appetite for some other form of relationship we could easily craft a framework for it. After all, we are, by your own admission, easily crafting a legal framework around same-sex marriage which was, until recently, a "distasteful" relationship.
Look, I'm for same-sex marriage. Many of my homosexual college friends are married. I'm not religious. I don't see same-sex marriage as an affront to the sanctity of marriage. Hell, I've participated in marriage ceremonies between heterosexual couples that would enrage zealots. But, all that being said, as someone who makes a living dealing with legal interpretation I cannot ignore the logical double-standard being used in these rulings.
Unless I'm misunderstanding your argument in the first place, you're factually wrong. Read the actual decision yourself, it was not about the states rights argument with regard's to the court's specific justification. (That was at best a minor side consideration.)
http://www.boston.com/news/local/breaking_news/Doma_decision4.pdf?p1=News_links
You DIDN'T reference the specific case, you merely vaguely referred to it at best.
If you're talking about the case I suspect you are THE LESBIAN COUPLE WAS NOT LEGALLY MARRIED.
http://articles.nydailynews.com/201...1_custody-battle-biological-mother-egg-donors
Edit: The appeals case also overturned the verdict you are talking about and said both parents have biological rights.
In other words, the case proves the precise opposite of what you are claiming, with it being an example of how not legally recognizing gay marriage COMPLICATES things for the judicial system. (I do know for certain in the case in question a key issue is that Florida doesn't legally recognize gay marriage period.)
To spell it out, with today's court system, cases involving legally married hetero couples where the egg was donated, the man provided the sperm, and the woman was then artificially inseminated are straightforward (and have certainly happened plenty of times in the past.) Who is considered the natural parent is irrelevant to child custody, with the factors like I previously talked about being the sole consideration. It is ONLY when a couple is not legally married that who is the natural parent becomes a question with any particular legal relevancy.
To be clear, the ruling you are claiming would today be a case of clear judicial misconduct ignoring current laws and not an argument against gay marriage. You actually brought up a good example of how legally recognizing gay marriage can simplify current court disputes.
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While there may be a little bit of arbitrariness to some decisions, the point is there is a considerable amount of reasoning behind the limits. The idea is the age of consent to marriage is generally supposed to be a good cutoff which balances protections and rights, with it for instance not being the end of the world if they have to wait one extra month before they get married. A sound mind provision also makes sense, with courts generally tending to side with the person wanting to get married if they are determined enough about it and its a borderline case.
The different is there simply are not similarly actually good justifications for excluding gay marriage from recognition, especially when you factor in issues such as how many hetero marriages there are where the couple can't naturally have children but that's not an issue with regards to marriage recognition for them.
Edit: The point is its only a few cases which may come across as a bit arbitrary when cutoffs like age are used, but the overall standards which are used have sound reasons behind them and therefore don't qualify as arbitrary.
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