Is DOMA Unconstitutional? Part 2

Can't believe how fast it reached 500 posts!

 

It's not that sexual couples have preferrential treatment in the case of related 'couples', it's that the negative effects of legitimising relationships between family members in the form of marriage outweigh the positives - the insignificant desire and demand for the 'right' to have a platonic marriage between family members versus the inevitable encouragement of incestuous relationships. No government wants to be seen promoting it. And legalising it for only same-sex related couples would be on very shaky constitutional ground as it's not equal protection.

All other forms of non-sexual consenting couples can marry with the addition of same-sex marriage, so there is no overall discrimination against non-sexual couples.

But that link is weak at best because aside from "the presumption of paternity" aspect of marriage law, there are very little (if any) provisions which couldn't apply to same-sex couples. There is no lawful requirement for procreation, meaning the "link" is not the qualifying factor by a long shot -old couples in their 90's who obviously cannot procreate can still attain the 1000's of rights of marriage. What this means is that procreational ability has never been a requirement or qualifier, and marriage is granted in spite of this in all states that have banned SSM. As such, it CANNOT be denied to same-sex couples solely on that basis.

Nope, all non-sexual couples that are defined as being legal and consensual in their nature are permitted to marry in the 6 SSM states.

No, just the fact a kinship already exists that could never exist between a unrelated couple without marriage, and the inevitable (and possibly unfortunate) association with incest such a law would create.

I think it's 'reasonably withheld' for the above reasons, and so do you I'm guessing, but at the same time I wouldn't really have a problem with it being legalised.

 

http://www.politicalforum.com/4995688-post518.html

My point is they have the same rights as everyone else, but that the equal protection law is not regarding issues of sex or sexual orientation.

 

You are under the impression that this is because of our constitution?

 

Laws that discriminate based on sex do not violate the equal protection clause?

 

Marriage is between a man and a woman. That is how the word is defined, that is how it has historically been defined, and because some assinine clowns now wish to change the definition and does not mean that your redefinition was in anyway acknowledged or understood by those in the past. So stating that marriage is between a man and a woman is not false, but a well defined understanding of the definition of marriage. If for instance you would have suggested back in 1967, that the Supreme Court decision meant that a man could now marry a man and a woman a woman, you would have been laughed out of court.

Notice the decision of the court specifically says, "a person of another race". It says nothing about "a person of the same sex".

You cannot change the essence of the courts decision by editing out (in bold red below) as you please, the portion of the quotation of the court which clearly says that the decision only applies to matters of race:

 

Yes, this is true. This is why as a man, I am not allowed to go into the woman's restroom.

 

You're not?

 

Actually marriage is legally between two persons in six states and DC. Everything in marriage itself can apply as easily to two men or two women - the only part that requires modification is the law that limits it to "one man and one woman", just like the laws that limited it to "a man and a woman of the same racial background". Marriage is otherwise simply a legal contract between two people.

The historically percieved definition is no more relevant to the current-day concept of marriage than "All men were created equal" once not being understood to include black people was relevant to interracial marriage. We don't revert to the initial intention of that do we?

 

Do you want more examples? I can't sue the national woman's basketball league for not letting me play on their teams. See, there are lots of situations where the law does discriminate based on sex. And that is okay.

 

A lot of this can be boiled down to appeals to tradition for its own sake. It's not that the history of marriage is wholly irrelevant, but it is not absolutely controlling of the future of marriage as some people here seem to wish.

Legal marriage is a human-invented construct. This legal definition can be altered. You're welcome to make arguments that it shoudn't be changed, but don't fool yourself for one moment that it can't be changed.

Therefore, declarations that same-sex couples don't fit the definition of marriage, and those which are further based on the origins and history of marriage, aren't very persuasive. They rely on a false premise that the legal definition can't be changed (it can), or that the origins & history are absolutely controlling (they aren't).

I'm frankly sick of those defeated positions being repeated over and over and over again. Find another argument already.

 

Once a case of this sort reaches the US Supreme Court, and it will soon enough, the laws of those states and the DC will be overturned as unconstitutional. The reason being, Federal laws superceed state laws, and federal laws state that other states must recognize legal contracts from other states (to include marriage). Just as Utah could not become a state until the changed the definition of marriage in their state constitution to mean a union of ONE man and ONE woman, the other states must conform to the accepted definition of the term and cannot force other states to accept a total redefinition of the term marriage.

Again, comparing race to sexual orientation is complete misguided. It is in fact insulting to people of color. Most people of color do not agree with same sex marriage. The reason we do not revert to the initial intentions of laws that have been deemed unconstitutional is because they have been deemed unconstitutional. Even those laws did not define marriage as a union between one white man and one white woman, or one black man and one black woman, it just forbade the union of a black person to a white person. So again, your argument falls flat on its face.

 

Perhaps someday it will be changed, but for now it hasn't been changed. The people who are in the wrong in this debate, are those who are under the assumption, that the matter has been changed and the debate on the matter is closed.

And declarations that same-sex couples will eventually be accepted into some future definition of marriage and therefore we need no longer debate the substance of the issue is equally unpersuasive. Why don't you conceed the point if you wish to end debate on it?

 

One maybe? In your new offering, the law is not discriminating by sex. The NWBL are discriminating. We're still at no examples.

People (individually or collectively) can discriminate. That's a liberty we allow. Yes there are private organization that men (or women or blacks or whites) can't join (freedom of association). Some won't even let a woman enter their buildings, others won't let a black person on their golf course. You're allowed to discriminate based on race, religion, or sex in who you socialize with and even who you choose to date. When that organization starts operating in the public sector (like a lunch counter) the line between personal liberty and public equality get's more contentious... and we don't have a perfect record of dealing with that conflict. But we're working on it.

The laws that our government applies to all of us... for those a different standard applies. We don't tolerate the same discrimination in our laws we allow in our personal lives. Archie Bunker or the Old Boys Club of America can focus all they want on our race, religion, or sex -- that is okay. The law we all share cannot -- that is not okay.

Anyway, if you're aware of a law that discriminates based on sex I'd like to hear about it. I don't doubt that some have existed, we've had some bad laws and we're trying to clean them up. Getting rid of DOMA is just one more example.

 

The power to regulate marriage is not a power reserved to the federal government. It is therefore a power reserved to the states (or The People).

Federal law may supersede state law where powers reserved Constitutionally to the federal government are concerned. That principle doesn't apply here, since the power to regulate marriage isn't reserved to the federal government.

If you think there's someone out there suing to force the states to adopt the federal definition, then I'd love for you to present us with the details of that case.

The cases making their way through the system that challenge Section 3 of DOMA will decide whether or not the federal government can have its own definition of marriage, effectively usurping what is essentially a state power. They will not address the question you assert - that states are required to apply the federal definition to matters of state jurisdiction.

I believe you're thinking of the Constitution's "full faith and credit clause":

DOMA actually negates this section's requirements regarding marriage recognition, the interpretation being that Congress has the power to determine what legal effect must be given by one state to another's marriages between persons of the same sex - including none whatsoever. I don't necessarily agree with that interpretation, but so far it stands.

Under DOMA, it's true that one state can't force its definition of legal marriage upon another - when those marriages are between persons of the same sex. It is NOT true that states must conform to a singular, accepted definition of the term marriage.

 

I gave two examples and by your own definitions they are valid. If the restroom is a public restroom, then by what right are they denying me access based upon my sex? Likewise, the NWBL are employers, and as such are not allowed to discriminate based on sex, right? Now you are arguing or will have to argue that discrimination based on sex is okay in the eyes of the law, which is the very point I and others have been making regarding marriage.

 

The definition has been expanded in a handful of states, and each state has the power to define what constitutes a legal marriage in that state.

It's clear to me that the debate continues, though and that the matter is not fully settled.

I agree. It's also true that declarations which proclaim the future voiding of currently legal marriages between same-sex couples are also unpersuasive.

Which point is it that you wish me to concede?

 

That is about as close to a concession that I am going to get out of you so I will accept the fact that you are admitting I am right. You are presenting information more supportive of my argument than your own.

 

Umm.. The right to define marriage rests solely with the states. The only federal definition, DOMA, does not require that the states define marriage as such. The US Supreme Court would never overturn the right of the states to define marriage to include same-sex couples. Not unless there was a federal marriage amendment limiting it to one man and one woman, which isn't what DOMA is - it simply sets a definition by which the federal government awards federal rights to married couples.

Never heard of that.

False.

What has the merits of the comparison got to do with what "coloured" people (do we still use that term? :/) think? I think the comparisons to interracial marriage prohibition are extremely apt.

And the Supreme Court once ruled that anti-miscegenation laws were constitutional because "blacks and whites were punished equally", which is akin to the argument that gay people are equal in that they, too can marry anyone of the opposite sex so there's no violation of the fourteenth amendment.

 

You too seem to presenting arguments which seem to reenforce my position. As for Utah, that is what took them so long to become a state.

 

We could examine their rulings in Plessy v. Ferguson too, but what would be the point? It has been overturned. What hasn't been codified into law is the right of a man to marry a man.

 

Oh, and how do you suppose that is?

You claimed that same-sex marriage would be struck down as per DOMA, which is nonsense. Nothing you were claiming was "reinforced".

Just an example of case history and how the Constitution continues to be interpreted differently to fit society's evolving views. Original intention seems rather irrelevant when we consider that the founding fathers of the US may not have meant for their declarations and amendments to be interpreted in a way that explicitly permits interracial marriages for example. But the fact is it does - or has been interpreted to mean that. So regardless of what marriage meant when it was lawfully established, the reality is that it can and certainly does exist in some states as a binding and lawful contract between ANY two persons. And there's no reason, as with anti-miscegenation laws, that the 14th Amendment's Equal Protection clause can't apply to a ban on same-sex marriage, as well as DOMA. Depends on the interpretation...

 

You are mistaken. You are getting confused between what the law allows each of us to do and what the law does. The examples you have provided are of individuals discriminating, not of the law discriminating. You don't seem to fully understand even those situations.

For example, you have provided no evidence that the medallions on a bars restroom are more than suggestions to offer privacy. More importantly, discrimination in private employment is not illegal. Many churches employ only Catholic priests, Playboy Magazine hires only female models, Ebony Magazine hires almost exclusively black cover models, and no law prevents you from hiring only a male doctor to do your annual prostate exam. People (individually or collectively) are allowed to discriminate -- even in hiring.

In hiring, housing, and when publicly funded can be some regulation. This is because these situations may cross the line between personal decisions and public policy. For example, equal opportunity laws may required covered employers to disclose and explain any apparent discrimination. If the discrimination exists and appears to be malicious or capricious, there may be grounds for a civil suit. In some cases fines may be assessed. This process (which I don't advocate) doesn't prevent a business from discriminating, it provides remedies if such discrimination capriciously or maliciously causes harm. Anyway, these are all examples of what the law allows people (individually or collectively) to do.

There is a world of difference between one person choosing to put only black women on the cover of his magazine and a law that says only black women can appear on a magazine cover. It's the same difference between you or your church choosing to only marry someone of a certain race, religion, or sex and a law which requires you to only marry someone of a certain race, religion, or sex. It is the difference between what the law tolerates in how people make decisions and what we as a people tolerate in how the law makes decisions. People can be avoided or ignored. The law imposed on all of us cannot. The law which belongs to all of us must therefore meet a different standard.

 

Right about what, exactly?

 

Since a man can marry a man in some states, it hardly matters that the law doesn't explicilty define marriage as one man/one man etc. The plain fact is that men do marry men, with those unions accorded legal recognition in some locations.

So I'm not seeing your point.