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READ IT HERE: Utah’s reply brief in Kitchen v. Herbert

LGBT Legal Cases Marriage equality Marriage Equality Trials

On Friday, the final brief in Kitchen v. Herbert, the Tenth Circuit appeal in the challenge to Utah’s same-sex marriage ban, was filed by the state of Utah. You can read it here:

13-4178 #7831 – Utah's Reply by Equality Case Files

The opening brief, filed by the state of Utah, is here. The plaintiffs’ brief is here.

Kitchen v. Herbert will be argued in the Tenth Circuit Court of Appeals on April 10.

Thanks to Kathleen Perrin and Equality Case Files for these filings

For more information on Kitchen v. Herbert from The Civil Rights Litigation Clearinghouse, click here.

246 Comments

  • 1. sfbob  |  March 17, 2014 at 10:29 am

    In the course of its first few paragraphs it manages to insult gay people (while claiming not to do so) and misconstrue the legal and constitutional issues involved in the case. For example the brief claims that a statement in Windsor indicating that states generally get to control marriage is an absolute when it clearly is not. It regurgitates all of the "think of the children" arguments while ignoring the legal situation of the children of gay men and lesbians, it invokes Baker, it claims the plaintiffs' case rests on the "right to marry a person of the same sex" (that isn't the argument on our side as I'm sure virtually all of us here understand) and spews an enormous variety of nonsense ("child-centric marriage" being the most obvious). It's a winner all the way around. Just not for the State of Utah.

  • 2. davep  |  March 17, 2014 at 10:34 am

    Yup. I got as far as the top of page seven and then lost count of the blatant lies. This brief is really reckless and hysterical (the literal meaning, not like 'hysterically funny', although it is that, too). I'll have to come back to this and read the whole thing later.

  • 3. Ragavendran  |  March 17, 2014 at 11:02 am

    I guess they are really hoping and praying hard that three of the most conservative judges of the 10th circuit get picked.

  • 4. bayareajohn  |  March 17, 2014 at 11:56 am

    This is what you get when the state turns over legal steering to The Sutherland Institute, a Utah-based LDS conservative think tank. More properly captioned, this case should be "Gays vs. Mormons". Utah just happens to be there.

  • 5. StraightDave  |  March 17, 2014 at 11:57 am

    That would be the fast track to SCOTUS that UT would live to regret. It always amazes me the way people caught in a death spiral continue to spin even harder.

  • 6. RAJ  |  March 17, 2014 at 12:03 pm

    And of course, there is the bad hyperbole, ". . . judicial wrecking ball" !

    please.

  • 7. StraightDave  |  March 17, 2014 at 12:03 pm

    Oh good lord! "Avoiding religion-based strife" showed up again as a rational basis. Why can't the religions just stop strife-ing all the time and there wouldn't be any problem? I thought holy wars were banned in the First Amendment.

  • 8. Zack12  |  March 17, 2014 at 12:46 pm

    We don't like guys and we want to be allowed to continue to treat them like second class citizens.
    That is their whole brief in a nutshell.

  • 9. davep  |  March 17, 2014 at 12:52 pm

    Yup. And apparently it can cause them 'religious-based strife' if the people they want to see harmed by unconstitutional laws are no longer being harmed. Sorry Utah, but appeasing anti-gay personal prejudices is not a 'states interest' and not a valid purpose for a civil law.

  • 10. Reformed  |  March 17, 2014 at 12:57 pm

    Whats the word? Oh yeah. driv·el . (future)child centric if the message they want to send?

  • 11. RAJ  |  March 17, 2014 at 1:04 pm

    Two things,

    1.) It would really help if level of scrutiny were to be decided once and for all and spelled out by SCOTUS (not just telegraphed, if that's what they were doing in Windsor). Otherwise, arguments like this are still live, at least in the minds of ME opponents).

    From the brief:

    "If that is the standard, and in light of the largely undisputed analysis presented in Section C of Utah’s opening brief and recapitulated in Section I.A. above, it is hard to fathom why Plaintiffs expend so much energy pressing for heightened scrutiny." (p.64)

    and

    "It is also consistent with the Supreme Court’s refusal to apply heightened scrutiny to sexual
    -orientation classifications in Windsor, where the plaintiffs and the federal government expressly asked the Court to reach that very result." (p.94)

    2.) A quick side note, but so sad and creepy. The argument that gays can marry someone of the opposite sex, so, no discrimination there. This one features a uniquely Mormon flavor in a footnote: (Looking at some of the people on the ldsvoicesofhope website is heart-breaking, but revealing of LDS culture).

    "35 In fact, some gays and lesbians have chosen to exercise their fundamental right to marry a person of the opposite sex. E.g., Brief of Doug Mainwaring et al.; Brief of Parents And Friends Of Ex-Gays & Gays; see also voice(s) of hope ,http://www.ldsvoicesofhope.org/. Obviously, that would be a very difficult choice for gays and lesbians who have already formed or wish to form an abiding, loving relationship with someone of the same sex. But it does highlight the difference between the man-woman marriage definition and a law prohibiting certain people to marry at all — such as a restriction on marriage by inmates serving life sentences.
    See Butler, 415 U.S. at 953."

  • 12. bayareajohn  |  March 17, 2014 at 1:24 pm

    Usually such insults to the judges are not included in briefs for the judges. Way to make a pal… spit on the hand you are asking to feed you.

  • 13. Rose  |  March 17, 2014 at 1:38 pm

    Thank you all for these comments, it saves me having to read this drivel yet again after reading similar stuff in the Prop 8 briefs!!!

  • 14. sam  |  March 17, 2014 at 1:45 pm

    Let them try those lines of argument, both have been shot down in the courts already, 1) in Smithkline and 2) in Loving. It doesn't exactly help their case when they drag up causes they've clearly lost, even if the 10th might differ on Smithkline.

    IMO a SCOTUS scrutiny ruling is probably the one after ME.

  • 15. davep  |  March 17, 2014 at 2:36 pm

    … this latest one has a 'tone' which is distinctly less logical and distinctly more like a temper tantrum.

  • 16. Eric  |  March 17, 2014 at 2:52 pm

    The level of scrutiny has been clear for over 150-years, marriage is a fundamental right and subject to strict scrutiny and substantive due process.

  • 17. montezuma58  |  March 17, 2014 at 3:02 pm

    The best way to describe the brief is a gigantic word salad.

    I find it curious that the defense team is so adept at tossing word salads.

  • 18. montezuma58  |  March 17, 2014 at 3:09 pm

    I like the part where they try to argue that heightened scrutiny does not apply. They note how the courts are hesitant to apply heightened scrutiny to classifications to which they didn't previously apply it. Then they argue that the law does not discriminate on gender. Rather the laws classify on "gender complementarity" (I looked it up, complementarity is an actual word) therefore heightened scrutiny cannot be applied. In other words they think by relabeling the form of discrimination they can circumvent any analysis regarding the level of scrutiny.

  • 19. karen in kalifornnia  |  March 17, 2014 at 3:20 pm

    As opposed to "discrimination-based strife" the ban imposed on LGBT citizens….

  • 20. Steve  |  March 17, 2014 at 3:29 pm

    It's by far the most absurd and offensive brief that has been filed in a while

    Other briefs had some offensive comments here and there, but this one's thinly veiled condescension and disdain is systematic.

  • 21. Steve  |  March 17, 2014 at 3:38 pm

    The fools are also big on "genderless marriage".

    Deliberately making such idiotic "arguments" should really get one disbarred.

  • 22. Steve  |  March 17, 2014 at 3:39 pm

    Utah IS the Mormon Church. It's a theocracy. Nothing happens there without the cult giving it's ok.

  • 23. sfbob  |  March 17, 2014 at 3:47 pm

    They make up these expressions ("genderless marriage;" "childcentric marriage") which actually don't mean anything, hoping that the judge will somehow be impressed with their creativity.

    Isn't it an axiom of law practice that if you don't have a case, you should go for distraction instead?

  • 24. RAJ  |  March 17, 2014 at 4:01 pm

    Oh, I'll bet Schaerr & Company poured over that one, trying to be persuasive, even aggressive, while striking a right tone of foreboding. I agree, though, I don't think issuing threats to the 10th circuit panel is a good strategy.

    btw, here's the expanded quote:

    "…an unprincipled judicial wrecking ball hurtling toward an even more important arena of traditional State authority."

  • 25. montezuma58  |  March 17, 2014 at 4:56 pm

    ". . . judicial wrecking ball" shall henceforth be known as the "Miley Cyrus defense".

  • 26. StraightDave  |  March 17, 2014 at 5:27 pm

    Wow, that expanded quote is even worse!
    "Unprincipled"?!?!?
    Are they questioning the court's integrity? Fellas, I don't know if that's how things work in the Temple, but this here's the real world.
    This is gonna be good. Ass, meet hands.

  • 27. StraightDave  |  March 17, 2014 at 5:41 pm

    That's what you should expect to get when you hire a die-hard Mormon to write it. I'm sure the sponsors are thrilled with the creativity, enthusiasm, and sincerity I just hope they don't have to write that $2M check until *after* they lose. Then it will really annoy the shit out of them.
    .

  • 28. bayareajohn  |  March 17, 2014 at 5:49 pm

    Yes, I often feel p*ssed off after reading state briefs, but after this one I feel p*ssed on.

  • 29. Ragavendran  |  March 17, 2014 at 6:30 pm

    Yes, Witt (9th Cir.) interpreted Lawrence as applying heightened scrutiny for substantive due process (not for marriage though). I guess it is still unclear what the level of scrutiny is for the equal protection claim. Another issue that keeps creeping up with respect to due process is the dispute over whether this is the fundamental right to marriage, or a new right to same-sex marriage which is not a fundamental right and therefore not subject to due process claims. (The definition of marriage is in dispute here.) SCOTUS should and will ultimately resolve this.

  • 30. marvelmvs  |  March 17, 2014 at 6:32 pm

    But that only works when you are speaking to a jury. Here they are speaking to the 10th Circuit Court of Appeals.

  • 31. marvelmvs  |  March 17, 2014 at 6:34 pm

    Even when I was writing a brief where the judge below was clearly wrong on one point, the appellate advising us had us remove any language that got remotely close to suggesting the judge didn't read the briefs or was stupid. Such things are frowned upon by all serious appellate counsel.

  • 32. Mike in Baltimore  |  March 17, 2014 at 7:17 pm

    "The best way to describe the brief is a gigantic word salad."

    Don't tell me Sarah Barracuda was involved?

  • 33. Mike in Baltimore  |  March 17, 2014 at 7:35 pm

    I find ludicrous the whole argument by Utah about 'the redefinition of marriage' and/or 'traditional marriage'.

    Wasn't it Utah that had to redefine marriage before being admitted to the Union, from a definition of one man and as many females as that man wanted to marry to one man (of legal age) and one woman (of legal age)? And wasn't that less than 125 years ago (in 1890)?

  • 34. Rick O.  |  March 17, 2014 at 7:35 pm

    Hmm, this phrase might be recycled by the secessionists for a Declaration of independence.

  • 35. Rick O.  |  March 17, 2014 at 7:46 pm

    Straight Dave alludes to what I suspect. Not only are the vast briefs filed by the state in Kitchen indicative of "pay per word" billing, but perhaps the real audience is not the Appeals Court judges at all. Rather, it's the assorted Mormon and NOM choir (who will be asked for donations to cover the legal bills). Another momento of a "footnote in the annals of American history"?

  • 36. GregG  |  March 17, 2014 at 8:19 pm

    One aspect of their reply brief that stands out to me is that they spent about 15 pages arguing that "if same sex couples are allowed to marry, heterosexuals will behave more irresponsibly". That doesn't sound like a rational basis upon which to make a case.

  • 37. bayareajohn  |  March 17, 2014 at 8:23 pm

    Will there be room for the footnote when their heads are already so far up in their annals?

  • 38. StraightDave  |  March 17, 2014 at 10:00 pm

    Right, RickO. Win, lose, draw, get embarrassed, run out of town, whatever. Doesn't matter as long at it pays well. Just ask Maggie (formerly)

  • 39. Rose  |  March 17, 2014 at 10:16 pm

    These briefs are rather pathetic by the anti-gay folks because they say the same thing….Blah, Blah Blah, Bad Gays and Lesbians….Blah, Blah, Blah………Gays and Lesbians are the downfall of America…..Blah, Blah, Blah……it's all Because the Gays are Getting married……..you should hear this video and it will help you out: https://www.youtube.com/watch?v=rixkck8QnjY

  • 40. tim  |  March 17, 2014 at 10:19 pm

    Wasn't SmithKline heightened for equal protection? So with Witt having heightened for due process and SmithKiine for equal protection aren't both bases covered (so to speak)?

  • 41. Jon  |  March 17, 2014 at 10:32 pm

    When the facts support your case, pound the facts.
    When the law supports your case, pound the law.
    When neither supports your case, pound the table.

    Neither supports their case, and there's no table to pound.

  • 42. Ragavendran  |  March 17, 2014 at 10:33 pm

    Yes you are right about Smithkline, but that is only binding within the 9th Circuit. As Witt goes, it recognized heightened scrutiny for due process claims based on the right to sexual intimacy. But we don't need Witt for due process. As Eric points out, the right to marry is a fundamental right and merits strict scrutiny. The problem is that one has to convince the Courts that the right to marry is indeed at stake here, not some new "right to same-sex marriage".

  • 43. bythesea  |  March 17, 2014 at 10:54 pm

    Nah… just that mentality.

  • 44. bayareajohn  |  March 18, 2014 at 12:27 am

    Is that from the BOOK OF MORMON musical? It could fit in so many ways.

  • 45. Deeelaaach  |  March 18, 2014 at 12:33 am

    Yes Mike, that is correct. The first manifesto ending (suspending?) the practice was issued in 1890. So I find it hilarious when I see a car with LDS bumper stickers and a bumper sticker that says marriage has always been between one man and one woman.

    And at least in the congregation I grew up in (I was raised in a Mormon household in Central CA), it was believed that one day the laws on marriage would change and that polygamy would be allowed again. So far as I know, that idea is not doctrine. But then again, I forget since I haven't been to church regularly in about ten years.

    Regardless, it looks like the laws are changing.

  • 46. Mahnahvu  |  March 18, 2014 at 1:11 am

    Wait a minute. I thought they couldn't introduce new arguments on appeal. So now they are throwing out a bunch of novel rationals such as "child-centric marriage," "avoiding religion-based strife" and the bit about straights abandoning marriage and family responsibilities? Don't they have to stick to the original facts of the case?

  • 47. Steve  |  March 18, 2014 at 8:05 am

    Apart from "religion-based strife" they aren't really new ;)

  • 48. Marriage Equality Round-U&hellip  |  March 18, 2014 at 8:14 am

    […] USA, Utah: The state filed the final brief with the tenth circuit in the marriage equality case. full story […]

  • 49. davep  |  March 18, 2014 at 9:32 am

    Nope. They do that a lot. 'giving same sex couples a marriage license will lead to more fatherless children', etc. They argue that laws on this issue should not receive heightened scrutiny, and then somehow think that this means they can offer ANYTHING as a justification for the law. They forget that the effect of the law must at least be rationally related to the stated goal, even under the most lenient rational basis scrutiny. And in every example they give, the effect of the law is either:

    1. Not rationally related to the stated goal.
    2. Actually IMPEDES the goal rather than advancing it,
    3. The stated goal offered as a justification isn't a genuine 'states interest' in the first place.

  • 50. Retired lawyer  |  March 18, 2014 at 9:56 am

    I have just finished reading Utah's Reply. A more poorly written appellate brief does not come to mind readily. The arguments do not cohere. Especially weird is the assertion that a lawful marriage that must be recognized by the sovereign, the United States, can be be disregarded by a lesser sovereign, the State of Utah, which, after all, is the product of the United States, having been its territory. The slang, cliches, made-up words, colloquialisms, and mixed metaphors would have end the career of any law firm associate who dared to use them in a draft.

  • 51. Retired lawyer  |  March 18, 2014 at 9:58 am

    would have ended

  • 52. StraightDave  |  March 18, 2014 at 5:49 pm

    These guys are just hilarious.
    "an affirmance of the decision below would create a class of “second-class sovereigns”–those with populations the federal judiciary deems too backward or ill-informed to fall in line behind national opinion leaders."

    Uhhh, the court isn't creating anything new here. You fools created your own backwards sovereign, one that certainly doesn't fall in line behind the only opinion that counts – SCOTUS. It's almost like they're dissing their own state.

  • 53. jennydesuza  |  March 18, 2014 at 10:18 pm

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  • 54. Schteve  |  March 19, 2014 at 5:47 am

    Oh, didn't you get the memo? When you get married you get to kidnap the child of some straight couple and raise her as your own. Uhm and having two fathers totally makes her fatherless.

  • 55. Razor  |  March 19, 2014 at 3:37 pm

    Sorry guys, but the message of marriage counts-it shapes human behavior. You can't simultaneously say that marriage is enormously important to the dignity and social equality of gay couples and then deny that changing the definition of marriage will be a significant change. As many gay commentators have noted, it will indeed have significant effects and, in the nature of all changes, there will be winners and losers. Is it irrational that some heterosexuals will find marriage less relevant or compelling to them–as one more choice rather than a key way to establish heterosexual identity, for example? Sorry, but the answer is yes. And under rational basis review Utah can reasonably prefer its current status quo over the uncertainty and downsides of a marriage definition that no longer turns on gender.

  • 56. Razor  |  March 19, 2014 at 3:39 pm

    That is, "sorry, but the answer is NO."

  • 57. StraightDave  |  March 19, 2014 at 3:50 pm

    That is, "sorry, but I don't know what the eff I'm talking about".

  • 58. Kevin  |  March 19, 2014 at 3:55 pm

    I agree. Obviously heterosexuals have a major problem establishing identity and absolutely need marriage to do it. Just look at the lack of heteronormative neighborhoods, sports, communities, arts, social groups, films, advertisements … … oh wait.

  • 59. Razor  |  March 19, 2014 at 4:00 pm

    Keep saying it, StraightDave, but that doesn't make it true. Marriage is a social institution. Institutions shape behavior. The definition of an institution determines its nature and the behavior it shapes. Change the definition and the behavior changes. Some changes are good and others aren't. Changing the number of people who can marry (monogamy v. polygamy), the expectation of permanence (no fault divorce), consanguinity (cousin marriages?), age, rules of consent, and yes gender–all of these affect the outcomes marriage produces. That's obvious.

    At bottom, though, you don't care. It's about gay dignity and acceptance above all else. So be it, but don't pretend there are no rational concerns about downsides.

  • 60. Razor  |  March 19, 2014 at 4:08 pm

    But Kevin, the less central to heterosexual male identity marriage is, the less often heterosexual males will marry. And the less they marry, the more children will grow up without their heterosexual fathers. How has single heterosexual motherhood worked out in the inner city since Daniel Patrick Moynihan pointed out the problem 50 years ago? President Obama has spoken eloquently on the problems with fatherless parenting. Maybe you don't care because of other concerns. Fine. Maybe those effects won't happen, although (like those who said no fault divorce would have no bad effects on children) you simply can't know that. But don't pretend there is no rational reason for concern. That's absurd–and dishonest.

  • 61. Craig Nelson  |  March 19, 2014 at 4:28 pm

    I find the idea that gay people need to be excluded from marriage (even when they have children of their own to bring up) as a result of the moral turpitude of heterosexual men to be absolutely hilarious. In the past heterosexuals were the virtuous ones and marriage a kind of stamp of societal approval whereas homosexuals were the dissolute ones. Now all of a sudden marriage's purpose is to seek to remedy the dissoluteness of heterosexuals and gay families have to pay the price of others' misdemeanours. How can this be fair? And in any case the idea people would be less likely to marry is tenuous and speculative to say the least. If heterosexual people have turpitude then their turpitude be on their own heads – marriage exists and is promoted and encouraged but we can't punish other families just to pander to people who can't take advantage of an institution even with all the advantages attached to it – the door is open to them, all they have to do is walk through it. Punishing gay families for others' benefits appears to me to barbaric.

  • 62. Razor  |  March 19, 2014 at 4:40 pm

    Marriage has existed in essentially all cultures throughout all human history to deal with a challenge: sex between men and women often makes babies and babies need mothers and fathers. Call it moral turpitude, animal instinct, biology or whatever, but marriage has always existed to deal with that challenge. Marriage, therefore, has had to be relevant to heterosexual male identity and "manhood" to make it effective for dealing with that challenge. Has society outgrown that challenge through the welfare state and other mechanisms? Hardly. The widely recognized problem of fatherlessness remains more acute now than ever. Again, a state is entitled to take such things into account when deciding whether to change the definition of marriage.

  • 63. sfbob  |  March 19, 2014 at 5:01 pm

    What you state is not even remotely factually correct. In most societies and even in our own until recently, the majority of marriages were common-law; they essentially reflected and acknowledged the simple fact of cohabitation. Only under certain conditions, either within certain religious communities such as the Orthodox Jewish community or where significant amounts of property or other forms of wealth were involved were formalized marriages the norm.

  • 64. Steve  |  March 19, 2014 at 5:09 pm

    Repeating lies endlessly doesn't make them true.

    The only challenge there was with babies was that men (and most cultures are patriarchal) needed to find a way to make sure that their children were really theirs. It was obviously easy to show who was the mother, but anyone could be the father. That was often solved by making women the men's property and keeping a tight control on their sexuality. But marriage wasn't even required for that.

    Given the high mortality rate through war and disease, lots and lots of children grew up without their biological fathers. Children being raised in extended families was the norm anyways. At some times and in some cultures it was also considered a bad idea for children to be raised by the biological parents. It was considered advantageous to have them raised by someone else for a few years though, so fostering wasn't uncommon. It was a way for the children to learn a trade and learn social customs. And for the family to make connections to potentially useful allies.

  • 65. Razor  |  March 19, 2014 at 5:15 pm

    That begs the question of what "marriage" is. Polygamy is certainly not a fundamental right. Nor is marrying your sister or cousin, even if you both are sterile. Nor is marriage between two 15 year olds. Nor is a marriage contract that automatically expires after a term of years (e.g., 10 years and done; re-up if you like). Nor is there some amorphous "right to marry the person of one's choice," since that might encompass the foregoing unions. Rather, the American right to marry has meant the right to marry one person of the opposite sex who is otherwise qualified to marry you, unless the qualification is based on race (Loving). That's what gets strict scrutiny.

  • 66. Steve  |  March 19, 2014 at 6:04 pm

    Incorrect use of the phrase "begging the question"

  • 67. Sagesse  |  March 19, 2014 at 6:11 pm

    The biggest insult in this brief is the implied insult to Justice Kennedy. Kennedy was genuinely concerned about the effect on the children being raised by LGBT families. This brief argues the opposite… that any harm to the families of LGBT couples is incidental to the greater good of the real children, the children of opposite sex couples… the ones who count (and future generations of them, even). The judges of the tenth circuit are being invited to consider who got it wrong… Schaerr… or Kennedy. Tough call.

  • 68. Kevin  |  March 19, 2014 at 6:19 pm

    There is no rational reason for concern because there is no evidence of any propensity for heterosexual males to marry less or to 'construct identity' less as a direct result of same-sex marriage, which has now been in place in some parts of the country/world for more than a decade.

  • 69. SoCal_Dave  |  March 19, 2014 at 6:52 pm

    Fear with no evidence that the fear is warranted is not rational, it is the defintion of irrational fear. That's what you've got. Show a stick of evidence and someone might take you seriously. And by evidence, I don't mean your convoluted logic that ends up with straight men avoiding marriage because gays can get married.
    At bottom, you don't care. It's about the icky gays getting into your private marriage club.
    So be it, but don't pretend you are rational.

  • 70. JustMe  |  March 20, 2014 at 6:09 am

    Ah but we do have rational fear… just look how no-fault divorce has turned out. It was the great social experiment of the '70s….

  • 71. Michael Grabow  |  March 20, 2014 at 6:55 am

    No, you were right the first time, it is absolutely irrational to think that straight people should feel slighted that gay people are allowed to get married as well. I am a straight man, and I know for a fact that when I get married this October exactly nothing will be different one way or the other.

    I'm going to let you in on a little secret. Now don't go around telling everyone this, becuase it might not go over well…gay people have been getting married in the US for ten years, in the Netherlands since 2001, and registered partnerships became law in Denmark in 1989. Guess how that has impacted straight people who are married. Go ahead, guess.

    I will give you a hint, it hasn't. Not in the least. You cannot name one negative consequence.

  • 72. Michael Grabow  |  March 20, 2014 at 7:02 am

    It is not absurd or dishonest, there is not a single rational reason for concern.

    If there is anyone who would not get married because gay people can do the same in their state (because as we know, it's happening all around them already), those people are nuts and probably should not get married anyway…since we all know people only get married to procreate, so they would be creating children who might be more likely to be as nuts.

  • 73. Michael Grabow  |  March 20, 2014 at 7:07 am

    I want to create 100 more accounts just to give this more thumbs up.

  • 74. JayJonson  |  March 20, 2014 at 7:13 am

    Gay people are not seeking to redefine marriage, but to gain access to it. We do not want to create an institution called "gay marriage," we want to exercise our fundamental right to marry the person we love.

    The argument that allowing same-sex couples to marry has been repeatedly rejected by Courts, including the Supreme Court of the United States. It will not prevail.

  • 75. JayJonson  |  March 20, 2014 at 7:15 am

    If no-fault divorce was such a disaster, it should behoove you and others who believe that to turn your energy into attempts to reverse the no-fault divorce laws instead of fighting same-sex marriage. It is certainly not rational to attempt to "protect" marriage by preventing people from marrying.

  • 76. Eric  |  March 20, 2014 at 7:31 am

    Actually, Oklahoma brought no-fault divorce to the US in the 50's. Ronald Reagan then brought it to California and mainstream attention. The last state to get no-fault divorce was New York in 2010.

  • 77. SoCal_Dave  |  March 20, 2014 at 7:36 am

    Again, looking for factual evidence not unrelated fear. No need to speculate, Massachusetts has had same sex marriage for 10 years. Please show factual evidence that it has affected straight men's propensity to marry. Waiting….

  • 78. Michael Grabow  |  March 20, 2014 at 8:34 am

    With nearly 700,000,000 people living in a place with marriage equality, you would think it wouldn't be very difficult for one of these people to come up with something. Gee, maybe…just maybe it's because there is not a single example to point to.

  • 79. Razor  |  March 20, 2014 at 9:06 am

    The point, sfbob, is not whether marriage is a statutory institution or common law institution, but rather that for important reasons it has been a heterosexual institution in essentially all societies throughout all time. “The family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.” Claude Levi-Strauss, The View From Afar 40-41 (1985).

  • 80. Michael Grabow  |  March 20, 2014 at 9:21 am

    No, I don't.

    Netherlands
    Belgium
    Spain
    Canada
    South Africa
    Norway
    Sweden
    Portugal
    Iceland
    Argentina
    Denmark
    Brazil
    France
    Uruguay
    New Zealand
    England and Wales
    Scotland
    Parts of Mexico
    17 US states and DC

  • 81. Razor  |  March 20, 2014 at 9:50 am

    Here's what we know: (1) Prior to the gay marriage movement, there was no debate, based on decades of research, that the family structure that most benefits children is the stable, two-parent biological family. (3) There is still no debate that fatherless parenting by single women or by women who marry other men (i.e., stepfather parenting) is associated with much higher rates of every negative outcome for children–there is no dispute over this. (3) Historically, marriage has been society's way to link fathers with mothers and children. (4) The social meaning and importance of marriage affects human behavior, including whether people marry and whether they stay in marriage. (Scandinavia really doesn't care about marriage and so its marriage rates have fallen dramatically in the last two decades in favor of cohabitation.)

  • 82. Razor  |  March 20, 2014 at 9:50 am

    Cont . . . (5) Changes in the meaning of marriage can lead to changes in the stability of marriage (see, e.g., no fault divorce). (6) In the past and likely still in the present, marriage has been linked with heterosexual male identity–the understanding that to be a real man a heterosexual male should grow up, get a job, find and marry his girl, have kids, and be a good dad. That ethos is reflected in a thousand cultural signals–from diverse religions to Hollywood movies and everything in between.

  • 83. Razor  |  March 20, 2014 at 9:50 am

    Here is what we don't know: (1) The long-term effects of gay parenting (sample sizes too small and not randomized and time periods too short). [But are we really required to believe teenage girls don't need their mothers or fathers? Boys? Can that possibly be true? Let's be honest–that's an astounding proposition.] (2) What severing the normative link between marriage, parenting, and biology will do? To take just one example, is a culture of surrogacy and children who by design cannot know their biological parents healthy for kids, for surrogate (often poor) mothers, for society, etc.? (3) How a full cultural shift away from the traditional norm of marriage will affect heterosexual marriage patterns, especially among heterosexual men. Will they, in other words, find marriage simply less relevant to who they are and want to be? Pointing to the Netherlands or other places where the marriage culture was already weak and where very few people marry doesn't help your argument.

  • 84. Razor  |  March 20, 2014 at 9:51 am

    So, is it rational to be concerned about the effects of gay marriage? Of course. Will rosy predictions of absolutely no adverse consequences be fully vindicated over the next two or three decades? Highly doubtful–many responsible gay marriage advocates avoid this position. That doesn't mean that legislatures shouldn't balance the pros and cons and enact gay marriage. What it does mean is that a State's present refusal to redefine marriage so as to make its primary historical pillar–that it exists to unite men and woman–no longer part of its basic definition (yes, to make marriage a "genderless" institution) is not remotely irrational or unconstitutional.

    So be persuasive, not hysterical. Respectful of different views, not condemning. Those of us who support traditional marriage are not going away, our positions are not based on hate or ignorance, and even if you disagree we are all going to have to live together through this one way or another.

  • 85. sfbob  |  March 20, 2014 at 9:55 am

    Well this is very interesting I'm sure but it really is rather beside the point.
    Under normal circumstances, couples that wish to marry are not questioned as to what sort of marriage they intend to enter into and for what purposes. They are asked whether they are considered to be of legal age so as to be able to give consent to marriage to each other, whether they are not too closely related by birth and whether or not they are currently married to someone else. And of course, if they have the money to pay for the marriage license. Yet now when gay couples who otherwise meet those qualifications appear before the county clerk their motives become a matter of concern as does the question as to whether or not they "need" to be married. Marriage suddenly becomes a scare resource to be doled out only on an "as-needed" basis simply because gay and lesbian couples. This is certainly a novel notion; the courts have ruled repeatedly that marriage is a fundamental right, to be withheld under only the most compelling of circumstances. Unless, apparently, both members of the potential couple happen to be of the same sex.

  • 86. Zack12  |  March 20, 2014 at 9:59 am

    SOrry I'm not going to be respectful of views that are being used to justify keeping us second class citizens.
    More to the point, if I was straight I wouldn't be having kids either so your arguments about why I should be denied marriage equality mean squat to me and millions of other LGB couples.

  • 87. SoCal_Dave  |  March 20, 2014 at 10:08 am

    Not hysterical, just asking for FACTUAL EVIDENCE not more speculation. Still waiting.

    If my comments seemed disrespectful, well….
    your comment:
    At bottom, though, you don't care. It's about gay dignity and acceptance above all else. So be it, but don't pretend there are no rational concerns about downsides.
    my comment:
    At bottom, you don't care. It's about the icky gays getting into your private marriage club.
    So be it, but don't pretend you are rational.

  • 88. Klaus  |  March 20, 2014 at 10:12 am

    We can live together, but homophobia makes me feel icky all over. Ewwww!

  • 89. Razor  |  March 20, 2014 at 10:26 am

    Where is YOUR evidence of no long-term harm, since you're the one with the new idea–the one that contradicts essentially all of human history and experience? Short-term studies with small, nonrandomized sample sizes don't count.

    My point was simply this: If, like David Blankenhorn, you think gay dignity and acceptance are the paramount concerns, then it doesn't matter how much evidence is amassed. It's a matter of equality, end of story. If that's your view, fine. But don't pretend there aren't other rational views. It is not necessary to think gay equality=gay marriage. We don't think female equality means eliminating mixed doubles tennis. Different names and different institutions can be used to address the needs of different situations. That's what many gay-friendly European countries do.

  • 90. Michael Grabow  |  March 20, 2014 at 10:49 am

    Asks the person who has yet to provide a single example of tangible proof that two men/women marrying each other will impact a man and a woman getting married. Please do it, provide one example of harm.

    Are you married? If so, explain how your marriage has been negatively impacted by same sex marriage. If you are not married, does the existence of same sex marriage make you plan to avoid marriage in the future?

  • 91. Michael Grabow  |  March 20, 2014 at 10:56 am

    So…"because that's the way it's been" is your arguement to deny human rights?

    You should join the legal teams of the states defending the bans. Fight to bring back segregation while you're at it!

  • 92. Michael Grabow  |  March 20, 2014 at 10:57 am

    So what about the marriages of straight people who don't/cant' have children? Should they be banned as well?

  • 93. Michael Grabow  |  March 20, 2014 at 10:59 am

    "Prior to people thinking the earth was round, people thought the earth was flat! Ahh, the good old days."

  • 94. Michael Grabow  |  March 20, 2014 at 11:01 am

    I see an awwfulll lot of talk of male identity/being a real man coming from this person. Who wants to bet me $100 that they're not very interested in women's rights either?

  • 95. Michael Grabow  |  March 20, 2014 at 11:03 am

    I would like you to go to MA, study the marriages of straight people there who have lived in a place with marriage equality for ten years and report back on your findings. Don't rush, take your time.

  • 96. Michael Grabow  |  March 20, 2014 at 11:06 am

    You may not be going away, but that does not matter a lick. In a short few years, marriage equality will be the law of the land all throughout the US and you will either change your mind or live the rest of your life complaining. It's really as simple as that.

    You may not believe your position is based on hate or ignorance, but you'd be wrong. See, that's the thing about ignorance.

  • 97. Michael Grabow  |  March 20, 2014 at 11:09 am

    Wow! I just re-read the last few sentences.

    "We don't think female equality means eliminating mixed doubles tennis."

    You are absolutey right! EXACTLY the same way no one thinks that marriage equality means eliminating straight marriages.

    "It is not necessary to think gay equality=gay marriage."

    No see, that is precisely what the word equal means. If gay and straight people were equal in everything, but the ability to get married…they woudln't be equal.

  • 98. SoCal_Dave  |  March 20, 2014 at 11:22 am

    This idea of straight men passing up marriage because gay men do it is irrational. YOU are making that claim – back it up with facts.
    I'm stuck on that because it is representative of the creative but desperate arguments that keep getting invented. To my knowledge this claim was never part of any same-sex marriage ban legislation or ballot proposition. No evidence will be "amassed" because none exists.

    HUMAN (not gay) dignity and acceptance are paramount concerns.

  • 99. JayJonson  |  March 20, 2014 at 11:26 am

    Yes, and if this doofus was so concerned about proper parenting, he would be advocating that lower income people not be allowed to marry because they might have kids and we know that people with lower income are not optimal parents. Lots of other heterosexual demographics have poor records of parenting. Surely, if marriage is only about procreation, no one should be allowed to marry who cannot pass a parenting test.

  • 100. Straight Ally #3008  |  March 20, 2014 at 11:27 am

    I would love to have a rational discussion with someone from the other side.

    But don't pretend there aren't other rational views…We don't think female equality means eliminating mixed doubles tennis.

    OK…if you're going to lead with an example that has nothing to do with civil legal contracts, this discussion will go nowhere fast. If I'm reading you right, your argument against legalization of same-sex marriage boils down to "it's a (relatively) new idea." Yes?

  • 101. Michael Grabow  |  March 20, 2014 at 11:27 am

    It's so interesting that they think the burden of proof lies on us when he is the one asserting the claim of inevitable harm.

  • 102. Christian  |  March 20, 2014 at 11:35 am

    That's surely a historical understanding of marriage (where America is concerned), but then until 'Loving' the historical and social understanding of marriage was not only heterosexual, but racially homogenous (at least for whites).

    To that end, 'Loving' made it clear that such basis' are not foundations of constitutional law. When the Fifth Amendment says "No person shall be denied…Liberty or the pursuit of happiness", it doesn't make an exemption for historical or social bias/animus. Nor does the Fourteenth Amendment make such an exemption to equal protection or due process.

    So there is an element of the "amorphous 'right to marry the person of one's choice' " where the state, or the courts (considering we are a common law, constitutional democracy), have determined that there is no rational basis for precluding certain couples from civil marriage. Such a rational basis does not exist in the preclusion of same-sex couples from civil marriage.

    And considering the long standing hardship endured by gays and lesbians by the hand of the tyranny of the majority, such a preclusion is subject to strict scrutiny (SmithKline).

  • 103. Steve  |  March 20, 2014 at 12:19 pm

    Nearly all Western and Northern European countries have marriage equality by now. The only outliers are Ireland (which will get it in 2015), Northern Ireland (ruled by religious nuts), Switzerland, Austria and Germany (all ruled by conservative Christians and/or far-right nationalists), Italy (ruled by the Catholic Church) and Finland (which may get it too soon).

  • 104. Steve  |  March 20, 2014 at 12:20 pm

    Large parts of Brazil too

  • 105. Michael Grabow  |  March 20, 2014 at 12:30 pm

    All of Brazil if I am not mistaken. That accounts for just over 200 million people alone.

  • 106. StraightDave  |  March 20, 2014 at 12:35 pm

    And it's not even about passing the "parenting test". Razor and his ilk won't even give you the damn test. He will just automatically fail you right out of the box, by default. All straights automatically pass.

    Hey, Razor, if you're listening …. why should only part of the population get tested, whether that be a real test, group test, stereotype test, or imaginary test in your mind? I can't think of anything less rational.

  • 107. Steve  |  March 20, 2014 at 12:41 pm

    I see that you listed Brazil already. Somehow I missed that. D'oh :(

    You're right: http://en.wikipedia.org/wiki/Same-sex_marriage_in

    It was even more of a mess than in the US at first (quite a feat), but by now it's country-wide

  • 108. JustMe  |  March 20, 2014 at 12:50 pm

    Wrong answer. You are the one who is saying the law is unconstitutional – burden of proof on YOU.

  • 109. JustMe  |  March 20, 2014 at 12:53 pm

    No the idea is that you are changing the foundation that holds up the society.

    You now want to say that a male female couple is exactly the same as a male male or female female couple.

    Just as a woman cant be a role model for a boy to be a man, a man cant be a role model for a girl to be a woman.

  • 110. SoCal_Dave  |  March 20, 2014 at 12:59 pm

    If by "traditional marriage" he means opposite sex marriage, well, I support that 100%. I don't think any of us are hoping that will go away. I don't understand this irrational idea that if same sex marriage is legal, straight people will stop choosing opposite sex marriage. Is being gay that enticing? I think if you're a straight man, and same-sex marriage enters into your decision to marry AT ALL, you need help. And probably shouldn't get married until you get some counseling.

  • 111. Kevin  |  March 20, 2014 at 1:13 pm

    If marriage is the institution that 'holds up society' then society must have suffered at least a dozen catastrophic collapses in the past few centuries since the 'definition' of marriage has shifted in countless ways across cultures and across history (see the testimony of Nancy Cott).

  • 112. Michael Grabow  |  March 20, 2014 at 1:38 pm

    You have absolutely got to be kidding me. There is just no way that you can honestly believe what you just typed.

    I don't know my biological father in the least and my parents did not get married until I was nine years old. You don't think I look up to my mother (A WOMAN) as a role model?

    Even if that wasn't the case…what about the countless straight married couples that live together with their child, but one parent is an awful human being? The boy can only have his father as a role model even if he abuses his wife?

  • 113. Kevin  |  March 20, 2014 at 1:42 pm

    The fundamental question is not whether there are other rational views, it is whether there is a rational basis to justify the exclusion of gay men and lesbians from the institution of marriage solely on the basis of their sexual orientation. Under rational basis review, there must still be a reasonable fit between the pre- or post-hoc justifications of the state and their purported ends.

    It is unreasonable to assert that states should ban same-sex marriage due to a lack of 'evidence' that same-sex marriage harms heterosexual society because the only way to produce said 'evidence' would be to allow same-sex marriage and test its effects.

    It is unreasonable to assert that states should ban same-sex marriage because of a phantom threat to heterosexual 'identity' because there is not a scintilla of evidence to show that equal marriage does or even could affect such a thing, and even if it could, it would be impossible to measure.

    It is unreasonable to assert that states should deny the equal protection of law to a class of citizens who pose some illusory threat to 'family,' 'tradition,' children, etc. because it is possible to show that no such threat exists. Unfortunately for you and the sad company you keep, the sociological data that has now been presented in two trials is the result of excellent science and current best practices. Predicating an invidious and vindictive second-tier classification of loving couples on a demand for more and 'better' 'evidence' while simultaneously insisting that said 'evidence' meet an impossible standard is the essence of irrationality.

    It is unreasonable to assert that a state should honor discrimination and bigotry with the sanction of its imprimatur when you are utterly unable to draw any connection between marriages of men and marriages of women to your completely undefined 'worries.'

    Is it rational to be worried about changes in our culture? Sure. I worry about technology, privacy, government largesse, resources, etc. Is it rational to predicate the full force of local and state governments on my worries alone. Absolutely not.

  • 114. sfbob  |  March 20, 2014 at 1:53 pm

    Congratulations. You have manage to insult all of the single mothers who ever raised sons, and all of the sons ever raised by single mothers. Who else would you like to insult?

  • 115. Michael Grabow  |  March 20, 2014 at 2:12 pm

    So well said. There is no intelligent argument for anything you just said.

  • 116. StraightDave  |  March 20, 2014 at 2:25 pm

    @JustMe- It sounds like you are really hung up on gender stereotyping, as if that were a cultural "necessity". Kids have the whole of society to observe as role models, not just their parents. Sometime a parent just has to be a good parent and a decent human being to be a role model. Virtually all good human behavioral attributes are gender neutral. If you think a boy has to be taught how to "be a man", etc, then you are in the wrong century.

    I grew up with a single mom and 3 sisters, but had plenty of male role models in my life – teachers, uncles, friends' parents, etc. So thanks for insulting me, too.

  • 117. Zack12  |  March 20, 2014 at 2:36 pm

    Single fathers. I have a friend whose mother dumped her son on the father's doorstop the day he was born and didn't look back.
    Today he's a happily married father of two despite the fact his dad didn't date anyone until he was in his early teens.
    These arguments are an insult to all single parents as well.

  • 118. StraightDave  |  March 20, 2014 at 3:01 pm

    That should be the sum total of every legal brief from here on out. There's nothing else to say. Short, sweet, right on target, and irrefutable. Great summary of the entire issue!

  • 119. StraightDave  |  March 20, 2014 at 3:04 pm

    Shit, that's easy.
    1. Patently unequal treatment
    2. Demonstrated harm to SS couples and their children
    3. No demonstrated harm to anyone else

    We rest our case. Everything else is just hot air.

  • 120. JustMe  |  March 20, 2014 at 5:32 pm

    Yes i think you look up to your mother as a role model of how to be a woman.

    I dont think you look up to her as a role model of how to be a man.

    Why dont you know your biological father? Dont you feel cheated that the man who fathered you didnt want to have anything to do with you?

  • 121. JustMe  |  March 20, 2014 at 5:35 pm

    No. There is no question that those single mothers had it harder than if the male had been present.

    Just think if the father was actually made to be present, support the child, etc how much easier the burden of raising a child is among a husband and wife…

  • 122. JustMe  |  March 20, 2014 at 5:37 pm

    The question is… if any two people can get married… what makes it so special?

    The state doesnt license love… they have no interest in it. You dont need a license to have a boyfriend or girlfriend..

    Thats the issue.

  • 123. Razor  |  March 20, 2014 at 5:56 pm

    Let's try this: What is marriage (define it) and why does government have any business being involved in it in the first place?

  • 124. Razor  |  March 20, 2014 at 6:25 pm

    Kevin: It might help to read up on rational basis review. You know, read a Supreme Court decision or two on the standard, which is the most lenient standard of review and, when properly applied, virtually assures that the law will be upheld. First, under rational basis review all laws–including traditional marriage laws–must be “accorded a strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 320 (1993). Second, such laws must be upheld “so long as there is a plausible policy reason for the classification.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). Third, such reasons “may be based on rational speculation unsupported by evidence or empirical data.” Beach Commc'ns, Inc., 508 U.S. at 315.

  • 125. Razor  |  March 20, 2014 at 6:25 pm

    And some more bad news (fourth), there is NO BURDEN ON THE STATE to prove that excluding homosexual couples–or poly couples, or infertile cousin couples, or any other configuration you can come up with–will harm the state's interest. That's what the Supreme Court held in Johnson v. Robinson, 415 U.S. 361, 382-83 (1974). There the Court concluded that when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, [the Court] cannot say that the statute’s classification . . . is invidiously discriminatory.” Id. at 383.

  • 126. Razor  |  March 20, 2014 at 6:34 pm

    So it's pretty simple: The state has a legitimate interest in encouraging heterosexuals–who often procreate outside marriage and even accidentally–to get married and parent their own biological children. This is especially true since every sane person recognizes the increased risks to children of fatherlessness–50 years of studies and millennia of common sense confirm this problem. Focusing marriage on heterosexuals–who present the risk–is rationally related to advancing that state interest. The inclusion of same-sex couples will not promote that interest, at least not to the same degree. End of story under true rational basis.

    So, pray for heightened scrutiny or the party's up. You lose under rational basis. And don't come back with more slipshod, emotional arguments. Give me a case from the Supreme Court that remotely says otherwise. You don't have one. Not Windsor (extraordinary denial by feds of a STATE-created status for same-sex couples based on animus, while extolling the "State's power in defining the marital relation"), not Romer (extraordinary political disability imposed on gays), and not Lawrence (purely private sexual activity–and not really rational basis anyway).

  • 127. Razor  |  March 20, 2014 at 6:37 pm

    Please, make that your argument. You will lose every time. That's a politician's argument–or that of a bad lawyer who doesn't understand the law.

  • 128. Kevin  |  March 20, 2014 at 6:39 pm

    I am an attorney and this argument has won in every courtroom in which it has been presented post-Windsor.

  • 129. Kevin  |  March 20, 2014 at 6:43 pm

    Nice selection of completely inapposite cases that have nothing to do with equal protection or due process claims.

    First, rational basis is not the appropriate level of scrutiny for laws that discriminate on the basis of sexual orientation. Yes, 9th circuit now, I know, but soon to be the national standard.

    Second, even if it were, courts have either a) uniformly applied rational basis with bite to every same-sex marriage/doma case before it or b) affirmed the view that heightened scrutiny is appropriate but also remarked that the law(s) would not have survived even the most lenient level of review.

    I don't think I will be reading up on anything jackass.

  • 130. Troll Slayer  |  March 20, 2014 at 6:45 pm

    What's your bar number?

  • 131. Kevin  |  March 20, 2014 at 6:49 pm

    I won't be doing much praying either. I don't have to. We already have heightened scrutiny in the 9th circuit. And nationally we have it in everything but name. Read Windsor, Romer, and Lawrence any which way you like. There are five on the SCOTUS who will disagree with you (Scalia told us as much).

    And by all means, continue to waste your time trolling a website devoted to the dissemination of accurate and meaningful reporting and commentary on a spectrum of gay rights issues. You will be all the more educated for it.

  • 132. Straight Ally #3008  |  March 20, 2014 at 6:52 pm

    I can't wait to see your reaction when same-sex marriage is legal in the remaining 33 states. :)

  • 133. Razor  |  March 20, 2014 at 6:57 pm

    Come on, Kevin. Don't be lazy and resort to name calling. The standard for rational basis review has been quoted in dozens of Supreme Court cases. Pick any one you like. You lose under all of them.

    Not the right standard? Says which court? The Tenth (the relevant circuit) holds that gays are not a suspect class. Smith-Kline (9th) is another Reinhardt special but it involves targeted peremptory challenges–a different context. The First in its DOMA case used rational basis with a bite only because (it said) federalism concerns were in play, which is not the case in the Utah litigation. (And it held, by the way, that Baker would otherwise bar the gay marriage claim–the only honest reading of Baker.) The Second gets to heightened scrutiny in Windsor but then SCOTUS doesn't go there. Indeed, there were NO takers at the Windsor or Hollingsworth arguments (I was there) for suspect class status for gays–none–despite the SG's arguments. Meanwhile, the 8th rejects the whole gay marriage argument in Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006). If the judges do law, not politics, you lose.

  • 134. Razor  |  March 20, 2014 at 7:03 pm

    Oh, one more thing. If you want heightened scrutiny you have to show political powerlessness. Good luck with that one. Gays are the most powerful political movement in a generation. So make your case to your fellow citizens rather than resorting to bogus constitutional theories.

  • 135. Kevin  |  March 20, 2014 at 7:11 pm

    SmithKline = Heightened Scrutiny. The context is irrelevant. Listen to the questions in oral argument. Don't care what you think about Reinhardt. I had a seminar with Judge Berzon and she is eloquent and amazing.
    Romer = Rational Basis with Bite
    Lawrence = Rational Basis with Bite
    All of the Circuit Court opinions on DOMA = Rational Basis with Bite or heightened scrutiny.

    Oh, and I read Bruning, it's about four paragraphs long, still accepts Baker as precedent, and was well before Windsor.

    Hate to break it to you. You have already lost.

  • 136. Kevin  |  March 20, 2014 at 7:12 pm

    Oh, and one more thing, and because I actually practice and know the law I can say this, that is only true for EPC claims. We win on due process too asshole.

  • 137. Razor  |  March 20, 2014 at 7:13 pm

    Then you should know that gay plaintiffs are winning in district courts by putting the burden on the state to justify the exclusion. That won't work on appeal with judges who understand better what rational basis review requires. It's heightened scrutiny or bust, Kevin, and that isn't looking good for you. (See below.)

  • 138. SoCal_Dave  |  March 20, 2014 at 7:17 pm

    I realize I'm not the only one in this convo, but the proof *I* was asking for was proof that same-sex marriage would cause straight men to avoid getting married, which was claimed by Razor. I'm still waiting for that.

    As far as proof of unconstitutionality of the discriminatory laws, I think StraightDave has provided above. [thx, SD]

  • 139. Kevin  |  March 20, 2014 at 7:18 pm

    You realize it makes absolutely no sense to speak in terms of burdens. There is no burden or burden shifting on MSJs when both parties have stipulated as to the facts.

  • 140. SoCal_Dave  |  March 20, 2014 at 7:20 pm

    Not to speak for Michael, but perhaps his mother is a role model for how to be a decent human being. Why the obsession with sex?

  • 141. Eric  |  March 20, 2014 at 7:28 pm

    Seriously, special pleading may work with superstition, but not with the Constitution.

  • 142. Eric  |  March 20, 2014 at 7:30 pm

    No, the anti-gays lost in court. The burden of proof is on you to explain why the district court erred in its legal analysis.

  • 143. Zack12  |  March 20, 2014 at 7:31 pm

    Yup, we're so politcally powerful we still face the risk of being fired in 29 states solely because we're gay or lesbian.
    We're so politcally powerful people keep trying to pass bills under the guise of "religious freedoms" to discriminate against us.
    And we're so powerful we have to use the courts like so many other minority groups before us because the majority or their representatives have made it clear they will NEVER allow a repeal of the bans they put in place.
    Just another bigot talking from his place of privilege.

  • 144. Razor  |  March 20, 2014 at 7:36 pm

    Name calling. Nice. Pick the rational basis standard from any Supreme Court case you like and you still lose. You're relying on district courts decisions, which don't even count as binding precedent in their own courts. The bottom line is that no federal court of appeals has found a right to gay marriage under rational basis review. The 8th has already rejected it, just as the Supreme Court did (summarily) in Baker. And you won't get heightened scrutiny in the Tenth, which has already rejected it.

  • 145. Eric  |  March 20, 2014 at 7:37 pm

    Why the disingenuous interest in protecting children? In 31 out of 31 states when the anti-gay put marriage on the ballot, not a single time did they require couples with minor children to stay together. Nor, did those ballot initiatives define marriage as the biological or adoptive parents of minor children. Nor, did those ballot initiatives seek to defer the divorce of any heterosexual couple with minor children present in the home.

    Yet, the protections of marriage are denied to the children that happen to have same-sex parents (20% of same-sex households according to the last census).

  • 146. Eric  |  March 20, 2014 at 7:40 pm

    Marriage is a fundamental right, it is subject to strict scrutiny, not rational basis. And if you want to go the gender route, the state denying one a marriage license based on one's gender, then intermediate scrutiny is required. What would make you think that rational basis applies to fundamental rights and discrimination on the basis of gender?

  • 147. Eric  |  March 20, 2014 at 7:43 pm

    Razor, SCOTUS has ruled fourteen times in the past 150-years that marriage is a fundamental right and therefore subject to strict scrutiny. What makes you think the court will rule differently this time?

  • 148. SoCal_Dave  |  March 20, 2014 at 7:45 pm

    " if any two people can get married… what makes it so special?"

    Are you saying that what makes your [I'm assuming opposite sex] marriage special is that same sex couples can't have it? Why stop there? Let's go back to denying interracial marriage. That should really make you feel special.

  • 149. Eric  |  March 20, 2014 at 7:45 pm

    I so hope the anti-gays take heed of your jurisprudence.

  • 150. Eric  |  March 20, 2014 at 7:50 pm

    Actually Windsor found:

    Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404.

    Razor, you must understand that while cherry picking verses out of context may work in your superstitious belief system, it does not work in the US legal system.

  • 151. Eric  |  March 20, 2014 at 7:54 pm

    I don't follow your reasoning. No state has ever required love as a condition of marriage.

    Marriage is a bundle of rights, benefits, and obligations. For the state to deny that bundle the state needs a compelling governmental interest that is narrowly tailored to meet that interest. Denying marriage to same-sex couples because of their sexual orientation or a gender stereotype does not meet that burden.

  • 152. Eric  |  March 20, 2014 at 7:58 pm

    Marriage is a legal construct that unites consenting legal strangers with a bundle of rights, benefits, and obligations.

    The government is involved as a recorder of that legal mechanism. It is akin to registering one's title or deed or property with the county.

  • 153. sfbob  |  March 20, 2014 at 9:26 pm

    Maybe yes, maybe no. Suppose the male was abusive, violent or irresponsible? Suppose the two members of the relationship found it impossible to get along? What about those cases where the presence of the father creates added burdens for the mother?

    If it is true (no doubt it is) that a single parent, whether a mother or a father, may well have a harder time than two parents would have, then in the context of sharing responsibilities why should the gender of the two individuals in question matter? What does this have to do with prohibiting gay men or lesbians from marrying? Certainly you don't presume that the denial of marriage equality will cause gay couples to split up, with each member marrying a person of the opposite sex, do you?

    Or perhaps you would like to see states issue a substitute spouse to single mothers or fathers. A state-operated matchmaking service if you will, differing from the online services in that each single parent is legally required to select one individual from the list of prospective partners and to marry that person whether he/she wishes to or not.

  • 154. sfbob  |  March 20, 2014 at 9:53 pm

    Well, you're in luck. The State of Oklahoma's definition of marriage was posted here just the other day. It was included in the plaintiffs' first brief on the appeal of the circuit court's ruling:

    "…Oklahoma has defined marriage to be “a personal relationship arising out of a civil contract,” which simply requires “the consent of the parties legally competent of contracting and entering into it.” Okla. Gen. Stat. ch. 31, § 3249 (1908)

    Naturally there have been some marriages ruled not valid; for example, until Loving vs Virginia, Oklahoma banned interracial marriages, and of course under their marriage equality ban same-sex couples are currently banned from marrying. But that has to do with who ISN'T allowed to marry, not with what marriage is. It seems pretty apparent and straightforward that under the above definition there is intrinsically no reason same-sex couples should not be able to marry. The only reason they can't is because they are banned, in effect "because the state doesn't want them to be able to." Interestingly, it appears that the status of common law marriage in Oklahoma is uncertain (it was at one time specifically permitted as was the case in most other states though not all and is still recognized in nine states and the District of Columbia). Anyway above we have a pretty concise and unproblematic definition of marriage.
    As for why the government has any business being involved in marriage in the first place, there are certainly reasons. Virtually all of those reasons are based on matters of practicality. First and foremost, marriage provides a convenient way of administering various laws from the perspective legal responsibility, the disposition of assets, and access to assorted legal benefits and protections.

  • 155. Jesse  |  March 20, 2014 at 10:18 pm

    The institution of marriage is a fundamental right and therefore has to be held to a higher standard than rational basis review. By all the arguments you would deny gay/lesbian community marriage, you would permit a death row inmate, hell, any prisoner inmate to marry (see Turner v. Safley). Wait for it…wait for it, the SCOTUS used Loving v. Virginia to define marriage to be a personal liberty element of the due process clause.

    I'm surprised you keep bringing up Baker. Windsor deprecates Baker.

  • 156. Jesse  |  March 20, 2014 at 10:21 pm

    Razor,
    Please tell me how Turner v Safley supports your first paragraph? Prisoners and death row inmates who cannot satisfy your first paragraph have the fundamental right to marry. Turner v Safley essentially dictates marriage as a fundamental right, and as such must be held to a higher standard than rational basis.

  • 157. Kevin  |  March 20, 2014 at 10:45 pm

    I wanted to follow up with this gem from Maggie Gallagher, who you probably recognize as the former Chair of the National Organization for Marriage.

    "As I said last summer, it was clear to me from reading Windsor [the U.S. Supreme Court decision in United States v. Windsor], gay marriage advocates now have five votes for inserting a right to gay marriage in our Constitution. We are now in the 'gay marriage in all 50 states' phase whether we like it or not."
    http://www.huffingtonpost.com/2014/03/20/maggie-g

  • 158. JustMe  |  March 20, 2014 at 10:57 pm

    Straw man.

    A marriage of the biological parents of the children is clearly not the same as a marriage of two same sex partners.

    So the "protections" of the marriage of the biological parents are not present in a same-sex marriage.

  • 159. JustMe  |  March 20, 2014 at 11:00 pm

    Gender matters because as the US Supreme Court has stated:

    "It is said, however, that an all-male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men — personality, background, economic status — and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables."

  • 160. SoCal_Dave  |  March 20, 2014 at 11:05 pm

    What about heterosexual adoptive parents? In your eyes are they on a par with the biological parents? Or are they 2nd rate, like same sex parents?

  • 161. JustMe  |  March 20, 2014 at 11:11 pm

    To quote President Obama:

    "Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation. They are teachers and coaches. They are mentors and role models. They are examples of success and the men who constantly push us toward it.

    "But if we are honest with ourselves, we'll admit that what too many fathers also are is missing – missing from too many lives and too many homes. They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it."

    "But we also need families to raise our children. We need fathers to realize that responsibility does not end at conception. We need them to realize that what makes you a man is not the ability to have a child – it's the courage to raise one.

    We need to help all the mothers out there who are raising these kids by themselves; the mothers who drop them off at school, go to work, pick up them up in the afternoon, work another shift, get dinner, make lunches, pay the bills, fix the house, and all the other things it takes both parents to do. So many of these women are doing a heroic job, but they need support. They need another parent. Their children need another parent. That's what keeps their foundation strong. It's what keeps the foundation of our country strong."

  • 162. JustMe  |  March 20, 2014 at 11:15 pm

    Marriage is a SOCIAL construct that has a legal component.

  • 163. JustMe  |  March 20, 2014 at 11:18 pm

    "The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables."

  • 164. JustMe  |  March 20, 2014 at 11:28 pm

    A same-sex marriage and opposite-sex marriage are not on the same footing when it comes to those "rights benefits and obligations".

    And thats the problem.

  • 165. Christian  |  March 21, 2014 at 2:39 am

    First of all, Razor and JustMe are obviously sociopaths. Sociopathic tendencies are defined as "a mental health condition in which a person has a long-term pattern of manipulating, exploiting, or violating the rights of others. This behavior is often criminal."

    Arguably, this condition common in the most virulent of social conservatives. Particularly in members of anti-gay hate groups. And considering their dialogue, they would qualify as trolls and therefore sadists/sociopaths http://time.com/8265/internet-trolls-are-actually

    Now let's discuss the "burden of proof". There is no empirical evidence that homosexuals, or homosexual couples, are poor parents or compromise the psychology of parenting. And it's been demonstrated, in various studies dating to the late 1990s, that the lack of parenting and marital rights proves detrimental to both the parents and children in question. http://www.apa.org/pi/lgbt/resources/parenting.as

    Nor has there been any document scientific reasoning as to why same-sex marriage should be banned. To that end, there is no professional psycho-medical association that would concur with the reasoning of social conservatives that same-sex marriage compromises social constructs or that heterosexual men are somehow less inclined to marry or reproduce as such occupancies are not documented.

    Therefore, those 'extrapolations' are merely fear based and conjectural. They only continue to harm same-sex couples and homosexual individuals by singling them out for discrimination .https://www.apa.org/topics/divorce/same-sex-marriage.aspx

    That is why, JustMe, marriage bans aren't about preserving social institutions but about unbridled hatred.

    As for why homosexuals desire marriage, I think it was said best in Perry v. Shwarzenegger that children don't grow up wanting to be "domestic partners". Where as marriage is an honored status is society and hold deep significance, to deny a certain (often persecuted) minority the right to marriage is extremely detrimental. Which is why, all vitriol from the proponents aside, the bans don't stand up to rational basis much less strict scrutiny!

  • 166. Randolph Finder  |  March 21, 2014 at 3:17 am

    Given what's going on in Nigeria, Saudi Arabia, and Belarus, I hardly think that a place where there are Civil Partnerships counts as being run by Religious Nuts. *Every Single One* of these places have more rights for Same Sex couples than *any* place in the world did 25 years go.

  • 167. Rick O.  |  March 21, 2014 at 6:21 am

    Well, Razor is perhaps like many Conservatives (which I was myself for years); at heart risk averse, leading to being terrified of any change, and willing to validate emotional arguments against change. Having two children myself, I fully appreciate his concerns for children, and how raising them effects society, and thus there is a state interest in marriage (just as there is a state interest in Obamacare to address the massive drag of millions of uninsured).
    But I still don't "get" his argument – which the district judge in Nevada bought – that SSM will reduce the appeal, of opposite-sex marriage because it will reduce the hetero-normal validation of straight males. Really? Are straight men's identities this fragile? Is this a good reason to get married?
    Marriage sexual identity "validation" does exist, but having opposite sex only drives a different dynamic he doesn't mention: gay closet cases marrying opposite sex partners. These unions tend to work out poorly, with everyone involved, including the children, damaged.

  • 168. JustMe  |  March 21, 2014 at 6:33 am

    "It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion."

  • 169. JayJonson  |  March 21, 2014 at 7:32 am

    Razor, no one is attempting to make same-sex marriage mandatory. If you are opposed to same-sex marriage, please do not marry someone of the same sex. No one will be angry with you or condemnatory toward you for marrying someone of the opposite sex or for supporting traditional marriage. However, when you condemn our marriages, when you suggest that they will cause dreadful social harms–maybe even, as some of your allies have claimed, even tornadoes and hurricanes–then you can expect some push back.

  • 170. Michael Grabow  |  March 21, 2014 at 7:37 am

    You are truly a dolt. I don't care about being a "man", she is a role model for me to be a good human being.

    I don't see how this is relevant, but my mother was young, they were not in a committed relationship, and went their separate ways. No, I do not feel cheated in the least, nor have I ever felt that way. The only thing I ever felt was that I had a great childhood with a wonderful mother, grandparents, and aunts and uncles. On top of that, my mom married an awesome man when I was nine who has been there for me since.

    I don't know what has caused you to have such an obsession with gender, but I hope you get it worked out.

  • 171. Guest  |  March 21, 2014 at 7:43 am

    Really dumb question because nobody gave a damn that the government was granting marriage licenses to opposite sex couples before the gays were allowed to marry in some states, but now that it's legal in some states, Christian bigots like you want the government out of the business. Guess what, bigot, you're powerless to control the lives of others. Your religious is empty.

  • 172. JayJonson  |  March 21, 2014 at 7:45 am

    Yes, they will be so impressed by Baker and Johnson. Razor thinks the judges will never have heard of Romer, Lawrence, or Windsor.

  • 173. Jesse  |  March 21, 2014 at 7:48 am

    Legal components are the affirmation of the fluid social construct. Without the legal protections and recognition, the terms husband/wife/spouse would be synonymous with boyfriend/girlfriend/partner/significant other.

  • 174. Michael Grabow  |  March 21, 2014 at 7:57 am

    I would like to see that too, but we both know they won't show their face then.

  • 175. Jesse  |  March 21, 2014 at 8:01 am

    Actually, that's an unfair conclusion. And who are you quoting?

    To say that marriage's role and function have remained unchanged is a fallacy. Marriage's role and function throughout the history of civilization as a social construct was a power play and a means for parents to elevate their social and financial status by acquiring land and property through the arranged marriage of their children through dowries. This is why it was common for families to employ incestual marriages and relationships to preserve what wealth they had accumulated thus far. It was not about the love of the two getting wed, nor even the couple's desire to have children. All of that was already predetermined as a contractual agreement by the parents of the betrothed in their desire for wealth.

  • 176. sfbob  |  March 21, 2014 at 8:05 am

    And this means…what exactly? Do you presume that if marriage equality prevails, we're headed for a long, slow decline in world population as a result? Somewhere between 90% and 97% of the human population is heterosexual. We won't be running out of people anytime soon. We're far more likely in fact to run out of resources for keeping people alive.

  • 177. Razor  |  March 21, 2014 at 8:26 am

    If Eric's definition is right, then we sure don't need a big legal code, solemnization, elaborate rules for divorce, etc. Hard to imagine everyone hyperventilating and screaming about needing access to that, especially when civil unions would suffice. And that doesn't describe why it has existed in all societies throughout all history.

    And surely three men could be "married" under that and other definitions below.

    Here's a hint, in the words of Bertrand Russell, “[b]ut for children, there would be no need of any institution concerned with sex.” Bertrand Russell, Marriage & Morals 77 (Liveright 1970). Marriage is not only about children, but the bearing and raising of the couple's children has always been essential to its core meaning. It's the biggest reason why government gets involved.

  • 178. Razor  |  March 21, 2014 at 8:34 am

    Nice! Some liberals used to love fathers and mothers. Not so much any more. Everyone is interchangeable, supposedly. Does anyone with any serious experience with children really believe that? Biological connections don't matter children? (They matter to essentially the entire rest of the mammal world, but not humans?) Having a dad to mentor a son, or a mom to mentor a daughter (say, as she enters puberty) doesn't really matter? That's insane–the triumph of ideology and rank adult self interest over reality. Meanwhile, children suffer as society indulges such patent nonsense.

  • 179. Razor  |  March 21, 2014 at 8:49 am

    Oh, Kevin, you have no idea what you are talking about. There are no disputed "judicial" facts in these SSM cases. Hence, on a motion for summary judgment when the standard is rational basis review the plaintiff ALWAYS has the burden. Indeed, he has the burden to negative every conceivable rational basis for the law–even if the legislature never thought of it. And even worse for your side, the court itself is required to come up with its own rational bases to support the law, even if the parties never raise them. This is really, really deferential review, Kevin. Essentially all of these arguments on this site don't count. Under true rational basis review, the courts should just respond with, "terrific argument; go make it to the legislature."

    So, as I've said, it's heightened scrutiny or nothing before a court that does law rather than politics. And heightened scrutiny is not going to happen with the panel in the 10th because binding post-Lawrence circuit precedent holds that gays are not a suspect class.

  • 180. Razor  |  March 21, 2014 at 8:49 am

    And political powerlessness is now key to proving suspect class status. You can't prove that. Homosexuals are the most powerful social and political movement in a generation. They are neither "discrete" (much less "discreet" :-) nor "insular."

    Legally, gay marriage should lose. It may win, but only (like abortion) by judges making it up.

  • 181. Jesse  |  March 21, 2014 at 8:50 am

    Here's a hint to your argument of civil union vs marriage: "Separate but equal". It's already been proven in the NJ study that civil unions are societally understood as less than equal to marriage. You would propose to take that cross for us to teach our country that a civil union is, in fact, equal to marriage despite having a different name?
    http://writ.news.findlaw.com/grossman/20090120.ht

  • 182. Kevin  |  March 21, 2014 at 8:52 am

    Lol, you go ahead and believe what you want. You're wrong on facts and wrong on the law.

  • 183. Razor  |  March 21, 2014 at 9:00 am

    Eric–Because while "marriage" is a fundamental right, the word "marriage" is subject to a historical and legal meaning–that of the union of one man and one woman. Under the Glucksberg case, the description of the right must be particular and must flow out of America's historical legal practices. (Why? Because none of this is in the Constitution, so courts don't want people claiming they have a right to commit suicide, for example, based on some broad right to "personal autonomy" that has never existed in American law. That is what was at issue in Glucksberg–no, I'm not making a comparison.) So the right to marry can't be the right of any persons who love each other and want to make a life together to get married, because that would sweep in poly unions, incestuous unions, under age unions, etc. It is too broad. So the appellate courts won't accept it. All of the cases that speak of marriage do so in heterosexual terms, and that is the right that grows out of our legal tradition. That may be good or bad, but it is the reality.

  • 184. Razor  |  March 21, 2014 at 9:00 am

    Gay marriage is not going to win judicially before SCOTUS on a fundamental rights theory, at least not under current doctrine. No judge at the Supreme Court has expressed any interest in that theory. Equal protection is your best shot. But see above and below for your problems there.

  • 185. Razor  |  March 21, 2014 at 9:08 am

    More name calling? Perhaps you're just tired and stressed. I forgive you. But you won't win on due process. Glucksberg kills you (no pun intended). You can't meet the test. At oral argument in Windsor and Hollingsworth, NO justice expressed any interest in a substantive due process theory.

  • 186. Razor  |  March 21, 2014 at 9:19 am

    No so fast, Kevin. Although I am glad you are reading to up your game. SmithKline is a 9th Circuit case and Reinhardt is almost uniformly disrespected at the Supreme Court. And it doesn't apply in the 10th, where binding precedent holds that gays are not a suspect class. Better hope you get three Berzons on the panel. Romer said it was doing ordinary rational basis review, and in any event it involved a provision that was "unprecedented" in American law; can't say that about man-woman marriage. And the district court in Utah rejected the animus argument. So Romer's not looking good for you. Lawrence is a fundamental rights case based on the right to privacy, and it expressly disclaimed that it was dealing with marriage.

    And Windsor is all about FEDERAL interference with STATE created legal and dignitary interests. (The word "state" appears in nearly every important sentence.) It's a very different case than a garden variety law that defines marriage as between a husband and wife.

    As for Bruning, four paragraphs are three more than necessary to reject these legally baseless, emotion-filled constitutional claims.

  • 187. Razor  |  March 21, 2014 at 9:24 am

    Romer, Lawrence, and Windsor don't address Baker's core holding. So lower courts are still bound by Baker. And those cases, in any event, don't get you across the finish line. They get you a right to engage in sodomy as long as you don't scare the horses (Lawrence), a right to full access to the ordinary channels of democracy (Romer), and the right to have STATE created marriage interests respected by the federal government. What they don't get you is a constitutional right to STATE recognition of gay marriage.

  • 188. Razor  |  March 21, 2014 at 9:26 am

    Maggie is not an attorney.

  • 189. Razor  |  March 21, 2014 at 9:31 am

    Not trolling, just educating. You're the one who hurls the insults.

    Here's the really big honest truth: There are four votes at the Court against gay marriage and perhaps (not clear but likely) four votes in favor of it. That leaves Justice Kennedy. And no one knows what Kennedy will do. None of his gay rights cases compel a gay marriage ruling. So it will come down to a still-devout-Catholic Kennedy.

    You might want to pray after all.

  • 190. Razor  |  March 21, 2014 at 9:34 am

    He's quoting that right-wing, anti-gay bigot Justice Kennedy from the Supreme Court's Windsor decision. He's your best shot, by the way.

  • 191. Razor  |  March 21, 2014 at 9:42 am

    I don't condemn your "marriages," and obviously they don't cause hurricanes. I just think they undermine the primary reason for which the state has marriage in the first place. I hope gay couples are happy when they marry. But what I most hope is that all of society's children survive the increasingly prevalent view–among gay and straight couples alike–that marriage exists primarily to serve adult-centric interests. It doesn't–or at least it shouldn't in my humble (and apparently now hateful) view. Marriage is really about children–and their deeply engrained almost desperate need to know and be loved by their own father and mother.

  • 192. Razor  |  March 21, 2014 at 9:49 am

    I don't know if it's a matter of fragility, but it is a matter of relevance. Law, society, religion and the media define what it means to be a man–it's socially constructed. The less marriage is relevant to that socially constructed identity, the less men will use marriage to form their identities. Surely that's not hard to understand. Same-sex marriage sends the message that fathers are not essential to the meaning and purpose of marriage. Okay, some will say within themselves, then why bother? It's expensive. It has all kinds of legal obligations. And it's a lot of hard work. Better to push my career, have sex with the ladies without marriage, hang out with the guys, watch sports and porn, and play video games.

  • 193. JayJonson  |  March 21, 2014 at 9:58 am

    Sorry, you don't get to decide that "Marriage is really about children." Thanks to heterosexuals, marriage has become almost irrelevant to children. It is neither a prerequisite for having children (a large percentage of whom are born outside of marriage), nor is having children a requirement of marriage. Indeed, procreation has never been a requirement of marriage. Moreover, the obligation of parents to children is the same whether they are married or not.

  • 194. Razor  |  March 21, 2014 at 10:01 am

    Most adopted kids really struggle with not knowing their biological parents. If that's not a big deal for you with respect to your father, terrific. Your experience does not apply to millions of other children, especially boys.

  • 195. JayJonson  |  March 21, 2014 at 10:01 am

    I assume that the others of you who like me have been feeding the troll Razor are really here wanting to find out the decision in the DeBoer case in Michigan. Anyone heard anything yet?

  • 196. Christian  |  March 21, 2014 at 10:01 am

    You keep referring to marriage being about the need of children needing to know their mother and father and that it's ideal for them to be raised in that situation. That's simply not true, there's no scientific basis for this "desperate need" for a heterosexual parental upbringing.

    "The results of some studies suggest that lesbian mothers' and gay fathers' parenting skills may be superior to those of matched heterosexual couples. For instance, Flaks, Fischer, Masterpasqua, and Joseph (1995) reported that lesbian couples' parenting awareness skills were stronger than those of heterosexual couples. This was attributed to greater parenting awareness among lesbian nonbiological mothers than among heterosexual fathers. In one study, Brewaeys and her colleagues (1997) likewise reported more favorable patterns of parent-child interaction among lesbian as compared to heterosexual parents, but in another, they found greater similarities (Vanfraussen, Ponjaert-Kristoffersen, & Brewaeys, 2003). A recent study of 256 lesbian and gay parent families found that, in contrast to patterns characterizing the majority of American parents, very few lesbian and gay parents reported any use of physical punishment (such as spanking) as a disciplinary technique; instead, they were likely to report use of positive techniques such as reasoning (Johnson & O'Connor, 2002). Certainly, research has found no reasons to believe lesbian mothers or gay fathers to be unfit parents (Armesto, 2002; Barret & Robinson, 1990; Bigner & Bozett, 1990; Bigner & Jacobsen, 1989a, 1989b; Bos et al., 2003, 2004; Bozett, 1980, 1989; Patterson, 1997; Patterson & Chan, 1996; Sbordone, 1993; Tasker & Golombok, 1997; Victor & Fish, 1995; Weston, 1991). On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive home environments for children." http://www.apa.org/pi/lgbt/resources/parenting.as

    Again, your obvious and painful lack of scientific research in the parenting skill of gays and lesbians reveals an astonishing lack of concern for them or their children. Ultimately, this is about prejudice and bigotry. That is why your view is "apparently hateful".

    Secondly, there's nothing about marriage itself that inherently requires children to be a part of the union. Much less is there anything that legally would demand such a definition (and as I demonstrated, even if that were the case gays and lesbians could still partake in marriage). If that were the case, we wouldn't allow sterile couples to marry and we would have to police such unions to ensure the creation of offspring. And then we would have to decide if adoption counts! If you ask me, the modern definition of marriage is about two people being in love and there's plenty of societal evidence to support that claim. To demand children from matrimony is an egregious violation of individual privacy.

  • 197. Razor  |  March 21, 2014 at 10:04 am

    They aren't an insult. It's a reality. There are innumerable studies on this point showing that the risk of every social pathology goes up for kids raised by single moms–and the risks get worse when their moms remarry. That's not even subject to any dispute. Yes, many kids do well enough in those circumstances; and some thrive no matter what. But many don't. That's no slight to single mothers. It's just a fact of human nature.

    Why the war on nature and common sense?

  • 198. Razor  |  March 21, 2014 at 10:06 am

    Not on rational basis review–you're just wrong on that legally. Government always has the burden. (I said this earlier but the post didn't go through.)

  • 199. Razor  |  March 21, 2014 at 10:08 am

    I have several, including at the Supreme Court.

  • 200. Razor  |  March 21, 2014 at 10:11 am

    Another hate-filled, right-wing quote. You should be ashamed. Oh wait, isn't that from Justice Ginsburg in the VMI case?

  • 201. Razor  |  March 21, 2014 at 10:15 am

    And now I'm a sociopath! How fun. Notice it's the gay marriage supporters who hurl all the hate-filled invective. It used to be routinely said that people of good will could disagree on this subject. But now there are only good people who agree with gay marriage and bigoted, hate-filled, sociopaths who don't. So much for civility.

  • 202. Concern_troll  |  March 21, 2014 at 10:18 am

    Being as I am not a man, I won't speak for them, but I will say that you seem to have a VERY low opinion of men. You don't believe that they want stability, intimate companionship, or relationships with their offspring. I believe that not all males will be children their entire lives, and some will grow up and be men regardless of who can marry. Also, everyone seems to forget that there are lesbians out here, and we matter as well.

    Okay, some will say within themselves, then why bother? It's expensive. It has all kinds of legal obligations. And it's a lot of hard work. Better to push my career, have sex with the ladies without marriage, hang out with the guys, watch sports and porn, and play video games. They still have to pay if they have children out of wedlock.

  • 203. Steve  |  March 21, 2014 at 10:23 am

    Until the 18th/19th century it was considered extremely foolish to marry out of love. People were aghast when someone said that such an important decision should depend on emotions or something as fragile and fleeting as love.

    The idea that someone's primary social and emotional bond should be one's spouse was considered equally absurd. That doesn't mean that people didn't deeply love each other, but they also had close friendships to other people that were considered equally important.

  • 204. Steve  |  March 21, 2014 at 10:24 am

    You use scare quotes and them complain that people don't take you seriously or react with hostility. You are nothing but a troll and homophobic gutter trash.

  • 205. Christian  |  March 21, 2014 at 10:26 am

    1) There is still no debate about the upbringing of children being ideal in a two parent, monogamous household". Civil rights advocates and social scientists do not seek to compromise this in parental infrastructure and fears about polygamy and children being raised in a polygamous or otherwise sexually perverse environment are just right-wing hysterics. Nothing more and much less need be regarded as legitimate concerns, as they are borne from a prejudiced understanding of homosexuals.

    Research continues to support monogamous and married household as an ideal childbearing environment, however bans on the recognition of same-sex marriage continue to harm homosexuals couples and their children alike. Ultimately, if conservatives were concerned about the welfare of the child, they would not support these discriminatory (and evil) laws.

    2) This misogynistic view of parenting is disturbing, where the appearance of a father is considered pivotal to a child's development. Research conducted and cited by the APA regarding gay and lesbian households worth children do not seem to support this assertion.

    3) Historically, Marriage has been polygamous, homosexual, political and otherwise archaic in practices. Marriage can hardly be called historically child-centric (no matter what those wackos at the Catholic League may say), that's simply not factual.

    4) Cite your source on this claim about Scandinavian marriage-rates. In fact, cite all your sources!

  • 206. Warren  |  March 21, 2014 at 10:26 am

    Razor, you're not going to change anybody's mind on this board. Equal Rights is the issue here. Separate is not equal. Homosexuals deserves to same rights as heterosexuals.

  • 207. SoCal_Dave  |  March 21, 2014 at 10:41 am

    That quote is from a court case about sex discrimination in jury selection. JustMe posted a more extensive quote in an earlier upstream post.
    [I think it's Ballard v. United States]
    Here is a bit more…
    "To insulate the courtroom from either [sex] may not, in a given case, make an iota of difference. Yet a flavor, a distinct quality, is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded."
    In context, I believe the point is that a jury should be "representative of the community". To me, it's really reaching to use this as a point about marriage. Should marriages be "representative of the community"?

  • 208. JustMe  |  March 21, 2014 at 10:49 am

    OK heres some actual statistics for you:

    Sixty-four percent of children ages 0–17 lived with two married parents in 2012, down from 77 percent in 1980.

    In 2012, 24 percent of children lived with only their mothers, 4 percent lived with only their fathers, and 4 percent lived with neither of their parents.

    Seventy-four percent of White, non-Hispanic, 59 percent of Hispanic, and 33 percent of Black children lived with two married parents in 2012.

    The proportion of Hispanic children living with two married parents decreased from 75 percent in 1980 to 59 percent in 2012.

    Due to improved measurement, it is now possible to identify children living with two parents who are not married to each other. Four percent of all children lived with two unmarried parents in 2012.

    Among children living with two parents, 92 percent lived with both of their biological or adoptive parents, and 8 percent lived with a biological or adoptive parent and a stepparent. About 70 percent of children in stepparent families lived with their biological mother and stepfather.

    Six percent of children who lived with two biological or adoptive parents had parents who were not married.

    The majority of children living with one parent lived with their single mother. About 14 percent of children living with one parent lived with their single father.

    Some single parents had cohabiting partners. Twenty-six percent of children living with single fathers and 11 percent of children living with single mothers also lived with their parent's cohabiting partner. Out of all children ages 0–17, about 5.6 million (8 percent) lived with a parent or parents who were cohabiting.

    Among the 2.6 million children (4 percent of all children) not living with either parent in 2012, about 55 percent (1.5 million) lived with grandparents, 22 percent lived with other relatives only, and 22 percent lived with nonrelatives. Of children in nonrelatives' homes, 33 percent (193,000) lived with foster parents.

    Older children were less likely to live with two parents: 65 percent of children ages 15–17 lived with two parents, compared with 67 percent of children ages 6–14, and 72 percent of those ages 0–5. Among children living with two parents, older children were more likely to live with a stepparent and less likely to live with cohabiting parents.

    And the biggie:

    Increases in births to unmarried women are among the many changes in American society that have affected family structure and the economic security of children.
    Children of unmarried mothers are at higher risk of adverse birth outcomes such as low birthweight and infant mortality than are children of married mothers. They are also more likely to live in poverty than children of married mothers.
    http://childstats.gov/americaschildren/famsoc1.as

    That data right there tells you how "connected" procreation and marriage are.

  • 209. DrPatrick1  |  March 21, 2014 at 10:50 am

    Razor, I am so perplexed by your passion here, and I certainly have no intention to begin a useless conversation with you. HOWEVER, I am an adopted parent, so you might say I have a bit of expertise here. My son's birth mother found herself unexpectedly pregnant from a casual relationship (this was a heterosexual coupling). She determined that her personal circumstances were such that she could not provide the life for her child that she desired for him. She searched out for a gay couple to adopt her son, as it was her calculation that a gay couple would cherish her child, as it was not so easy for a gay couple to have children. She felt that a gay couple would be able to provide for her child in a way that she could not. She invited me to share in her pregnancy experience. She showed us, and everyone around her, the love that she had for her child, a love so great that she would so selflessly choose not to raise her child so that he may have a chance for a better life. We have had him since birth, and he has brought so much to our lives, and we maintain a relationship with her. She sees him through us, and repeatedly compliments us by saying she is so grateful she made the decision she made to choose us for his adoption.

    I tell you this story not to say look at us and what a wonderful job we are doing. I simply mean to show you that it is not the fault of the adoptive families that a child is adopted. In the US, children available for adoption are almost uniformly the result of a heterosexual pairing, and it is either the parents themselves who choose to place their children in another's care, or some third party like the state which removes children from only the most unfit of parents. In any case, the child adopted is not adopted because of any choice the adoptive parents made, but due to a choice or actions by the birth parents. While some of these children are raised with questions that are never answered and thus they grow up to wonder about their missing birth parents, this situation is not the fault of the adoptive parents. Clearly it is a blessing both for the children and for the adoptive families that the children find a home that is capable of providing the care their birth families were not. Please do not try to use the struggles of adopted children as an excuse to justify your own prejudice.

  • 210. JayJonson  |  March 21, 2014 at 10:56 am

    If marriage is so fragile, perhaps you should not spend so much effort preventing gay people from getting married. Perhaps you should spend time urging heterosexual couples, particularly those who have children, to marry. It is a curious strategy to "protect" marriage by spending millions and millions of dollars preventing people who want to marry from getting married.

  • 211. Razor  |  March 21, 2014 at 11:04 am

    More insults. Best to have this a self-congratulatory echo chamber, right. Keeps it simple: Fathers don't matter. Mothers don't matter. Kids turn out fine if adults are happy . . . .

  • 212. Michael Grabow  |  March 21, 2014 at 11:17 am

    "But not there are only good people who agree with equality and bigotied, hate-filled, sociopaths who don't."

    Yep, exactly.

  • 213. Warren  |  March 21, 2014 at 11:17 am

    Razor, you do know that the Feds recognize Same sex marriages. Have you read the DOMA ruling? You have no rational reason why same sex marriage should be ban in any state.

    What happens to your review of the law when Heightened scrutiny is applied to cases involving discrimination against HOMOSEXUALS?

  • 214. Michael Grabow  |  March 21, 2014 at 11:21 am

    I don't know why I am bothering to type this because this question has been posed to you and people you share your thoughts and not a single answer has been provided, but here we go anyway.

    You say marriage does not exist to serve adult-centric interests and that it is really about children. I'm confident you will not respond, but what do you have to say about the countless people who are not able to or choose not to have children? Should those couples be banned from marriage?

  • 215. DrPatrick1  |  March 21, 2014 at 11:22 am

    Perhaps it is not the presence of a penis and a vagina in a relationship that makes the difference. Perhaps it is the disintegration of the family of intention that causes the harm. I mean, whatever destructive power that existed to pull a family apart, perhaps that is what is so destructive as to have a long term negative impact on the children. If we both agree that marriage has a stabilizing impact on children, and the family itself, then what of children in families with same sex parents. Don't you agree that solely with respect to those children, there is harm because their parents are not permitted into this institution which is so stabilizing?

    All of this assumes children are even involved. There is not now, nor has there ever been, a requirement to have children in order to be married. We also grant a myriad of rights and privileges to a marriage that are not dependent on the presence of children. Denying those rights to a subset of people certainly raises the question of illegal discrimination. Combine that with a group of people who have historically been discriminated against, locked away in prisons and mental hospitals, deprived other fundamental rights, well, excuse me if I find it challenging to accept that this is not simple illegal discrimination at play.

  • 216. JayJonson  |  March 21, 2014 at 11:22 am

    Uh, it seems to me that you are the one who is saying kids don't matter, especially the kids of same-sex couples. You are trying to leave them without protection.

    If you want to impose parenting tests, it would be more efficient to ban people who we know will not make good parents from having children. Unfortunately, when that was tried before, the results were not encouraging. The experiment known as eugenics is actually a very dark stain on the history of this country.

  • 217. Michael Grabow  |  March 21, 2014 at 11:30 am

    You just wasted so much of your time.

    No one is saying the two aren't connected, just simply refuting the insane statement that the reason for marriage is for children.

    Peanut butter and jelly are connected, but no one requires you to have both if you are partaking in one of them. Just like children are not a requirment for getting married. Razor stated above that his/her concern for children is the reason behind his feeling toward marriage equality. If the two of you could get it through your heads that the two aren't linked by law, then evidently this would all be a moot point.

  • 218. Michael Grabow  |  March 21, 2014 at 11:33 am

    So, that is what you let define what it means to be a man for you? Society, religion, and the media?

    That is pathetic and I feel bad for you.

  • 219. DrPatrick1  |  March 21, 2014 at 11:48 am

    This is not a condemnation of same sex families with children, but a condemnation of a society in which a man can abandon his children so casually. Everyone, or nearly so, would agree that in a heterosexual household, having both parents is ideal. We will disagree with whether the presence of a penis and a vagina is what matters, or whether it is the stability of the family of intention, the intentional parent(s), that is critical.

    Because the VAST majority of children are begotten from a heterosexual pairing, the VAST majority of troubled youth are so troubled due to the issues resulting from that pairing, or the falling out of that pairing. The President was speaking to address the very common problem which extends across the country of parents in general, and fathers specifically, who abandon their children. There is no question that father abandonment is a terrible societal affliction. Yet, this speaks nothing to intact same sex households. Because heterosexual couples have a longstanding history of failing their children, is certainly not an excuse to prevent children of same sex couples the benefit and stability marriage can provide their families.

  • 220. DrPatrick1  |  March 21, 2014 at 11:53 am

    All major professional societies who are charged with the health and well being of children and families have come out in support of marriage equality.

  • 221. DrPatrick1  |  March 21, 2014 at 12:29 pm

    Politically powerful? So powerful they are denied what all other people are afforded as a fundamental right? So powerful most states continue to deny employment, housing, and a whole host of other protections? So powerful that despite their small size as a percentage of the population, the Justice department reports it as being the most commonly targeted minority group for discrimination and hate crimes?

    Because you are wrong, and are only now being found wrong in a few jurisdictions and in a small minority of states, does not mean we have a higher amount of political powerfulness. The denial of fundamental rights, the targeting for discrimination is evidence of political powerlessness. This standard does not require a complete absence of political wins, rather it is at issue if political wins are unlikely to secure those rights which otherwise are granted. Thus, in this case, gays have clearly demonstrated a political powerlessness to achieve what is being asked. If you agree with that side, it is easy to see the truth of this. I think your bias is preventing you from even considering it. You can dismiss ALL of the district court rulings, if you so choose, but I feel it is your loss. Just take Windsor. Either the 9th circuit is correct, and the Majority found there is some justification for some sort of heightened scrutiny so they found that portion of DOMA at issue to be unconstitutional, OR they found that despite the extremely lenient standard of rational basis was overwhelmed by the evidence in that case. Either way, your confidence that these challenges will ultimately be fruitless seems to be a mistake. You may disagree, but all evidence suggests those with whom you disagree on this issue are far more likely to ultimately be found to be correct than those who would agree with you.

  • 222. sfbob  |  March 21, 2014 at 12:51 pm

    That's nice and also quite interesting. But you've confused correlation and causation here. In addition, not one state–even the states using "procreation" arguments to defend their anti-marriage-equality amendments in court–links procreation to its own statutory definition of marriage for the purpose of stating who may marry, though Utah does provide that first cousins over a certain age may marry provided they prove they CANNOT procreate.

  • 223. davep  |  March 21, 2014 at 1:33 pm

    Yup, that's what I'm waiting for. While I've been waiting and reading this thread, I've learned some amazing things! Apparently, straight men are only enticed into marrying women as long as gay couples are denied a civil marriage license. Who knew? And even though opposite sex couples are not subjected to any preliminary parenting tests before being given access to civil marriage, and are in fact are allowed to marry even in cases where it is well established that they are poor parents, same sex couples should all be denied access even without any actual test, just by assuming they are all inferior parents. And apparently, all of the societal problems of children being abandoned by their irresponsible heterosexual birth parents and being left for the state and adoptive couples to care for are somehow not the fault of those biological couples, but the fault of the adoptive couples who step up to provide homes for these kids, and apparently denying civil marriage to same sex couples somehow addresses this issue… somehow…..

  • 224. davep  |  March 21, 2014 at 1:57 pm

    Oh yeah! And also, when offering an argument against allowing same sex couples to get a civil marriage license, when you do so on the basis of 'rational basis review', you can simply disregard that pesky word "rational" and toss out whatever 'argument' you want, even when the effect of the law is not remotely related to the rationalization. Anything goes!

    Want to use the justification of 'protecting marriage'? Sure! Doesn't matter that denying a civil marriage to same sex couples does nothing to protect marriage from anything. Just disregard the fact that marriage continues to provide the exact same rights and protections and advance all of the same states interests both before and after same sex couples were marrying.

  • 225. davep  |  March 21, 2014 at 1:57 pm

    ….Maybe try 'encouraging responsible procreation'? Sure, why not? Doesn't matter that denying civil marriage to same sex couples does nothing to encourage other couples to procreate more responsibly.

    How about some "kids need a mom & dad" remarks? Sure! Just disregard the fact that same sex couples already exist, and already raise children and that the state encourages them to fulfill their parental responsibilities to the same extent that it does so for other families, and disregard the fact that denying these couples a civil marriage license harms those kids, and does nothing to benefit any other kids.

  • 226. davep  |  March 21, 2014 at 3:12 pm

    … And for a breath of fresh air, look at the new article posted about the Michigan decision, and follow the links to the court's ruling. Sanity prevails. The Constitution prevails.

  • 227. Christian  |  March 21, 2014 at 3:16 pm

    Yet you fail to draw where this impacts same-sex couples negatively and instead highlight the importance of marriage in child upbringing. What can be gleaned here is that you would rather children be stripped of the chance of growing up in a stable, and married two parent household than extend marital rights to same-sex couples.

    Again, you're failing to build your case.

  • 228. sfbob  |  March 21, 2014 at 3:30 pm

    A decision in the Michigan marriage equality (and second-spouse adoption) case was issued about an hour ago. The content of the decision speaks directly against the points you're attempting to make.

    Between you and Razor it appears you're suggesting that each judge that has overturned a marriage equality ban since Windsor was handed down has done so incorrectly. Granted it is possible that each and every one of those rulings was fatally flawed–it may be possible but how likely is it?

  • 229. Kevin  |  March 21, 2014 at 3:34 pm

    You should tell that to the last Federal judge who just eviscerated your argument about two hours ago.

  • 230. JayJonson  |  March 21, 2014 at 6:45 pm

    The lower courts are so bound by Baker that, even before Windsor, they completely repudiated it except for a couple of Mormon judges in Nevada and Hawaii.

  • 231. JayJonson  |  March 21, 2014 at 6:50 pm

    Ah, now we understand the anxieties of JustMe and Razor. The only reason they aren't in a gay relationship right now is because marriage equality is not legal. Once marriage equality is the law, they will be marrying men! The only thing that is holding them back is that marriage equality is not yet legal in whatever backwater state they hail from. (They are a little confused. I think they think that we are advocating that same-sex marriage be made mandatory.)

  • 232. Zack12  |  March 21, 2014 at 6:56 pm

    Someone should tell him that the judge in PA has already stated Baker has no relevance to the trial he'll be hearing, as things have changed in the 43 years since that ruling.

  • 233. bayareajohn  |  March 21, 2014 at 9:08 pm

    I suggest that any man who decides not to get married because "the gays" can do it isn't mentally stable enough to be a parent anyway.

    I can just imagine the conversation between your proposed flaky straight man and his nearly-wife…. "Sorry babe, I was gonna marry you but the Gays, the Gays can do that now and I can't or I'd look Gay. You know. Like. Gay. Besides, videogames. You understand."

  • 234. bayareajohn  |  March 28, 2014 at 2:27 pm

    "Oh and good luck with the baby… You understand, the Gays… I am irresponsible now because they can marry."

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  • 236. TKinSC  |  April 20, 2014 at 11:57 pm

    You're just plain wrong on this. So wrong, in fact, that I suspect you *know* you're wrong.

    Either that, or you're much less intelligent than your moniker or the coherence of your text would suggest. So let me spell it out for you:

    Once Utah became a state, it joined the rest of the states (including the original states) on a fully equal basis. That is to say, the fact that it was previously just a federal territory does not diminish Utah's current sovereignty in the slightest. As to Utah being a "lesser sovereign", that is true, but only insofar as the Constitution, and federal laws consistent therewith, take precedence over state constitutions and laws. But the Constitution itself, in the 10th Amendment, leaves to the states the vast majority of government and police powers. And in the area of defining marriage — *as the Windsor decision expressly declared* — state determinations take preference over federal ones. Yes, the federal government must recognize a New York same-sex marriage, but only if 1) New York does, and 2) the couple actually lives in New York.

    Once a couple decides to move (or return) to a state that doesn't recognize their marriage, they lose the federal protections of the Windsor decision (although, in the absence of new federal legislation, the striking down of DOMA Section 3 might authorize the federal government to extend them if it chooses for the time being). And even if they didn't, they certainly lose the right to have their marriage recognized by the state, since the states are not "lesser" sovereigns, but rather *supreme* sovereigns, with respect to the powers reserved to them under the 10th Amendment.

    Sorry but this brief as well as the original was brilliantly written, and dispenses one by one with every argument the plaintiffs advance, which themselves were also very good, but all with an Achilles heel. Utah found every heel and attacked with it with a sniper's precision.

    Utah wins a split decision, possibly unanimous if Lucero understands his role as a judge is not to impose his personal opinion of equal protection or fundamental rights on the sovereign states.

  • 237. TKinSC  |  April 21, 2014 at 12:02 am

    And SCOTUS has ruled on a constitutional right to same-sex marriage in which case?

    That's what I thought.

  • 238. TKinSC  |  April 21, 2014 at 12:10 am

    How do you know it hasn't? How do you know it won't? Saying "I'm straight and it hasn't affected me" is like saying "It was cold today so global warming is a hoax." (Which it is, but not because it was cold today.)

    And by the way, even if a line of reasoning is wrong, that doesn't mean it's irrational. Maybe in 50 years, if the people of the Netherlands are still holding hands in one big rainbow circle, other places might be willing to take the same-sex "marriage" plunge. But there's nothing in the U.S. Constitution that requires American states to.

  • 239. TKinSC  |  April 21, 2014 at 12:16 am

    Homosexuals already have the same rights as heterosexuals, to get married or do anything else.

  • 240. TKinSC  |  April 21, 2014 at 12:22 am

    The feds are not required to recognize same-sex "marriages" under the DOMA ruling unless the couple lives in an American state that recognizes their marriage. The fact that they do nationwide is simply due to an aggressively liberal policy shift by Obama/Holder, and the lack of a replacement law to restore as much of DOMA as the Supreme Court will bear.

    Heightened scrutiny won't be applied to homosexuals; nor would it matter if it were, as nobody is prohibited from marriage because of their sexual orientation. A gay man has the same right to marry a woman as a straight one, and a lesbian has the same right to marry a man as a straight woman does. The fact that they don't care to do so is neither the state's fault nor the state's problem.

  • 241. TKinSC  |  April 21, 2014 at 12:30 am

    Most people love their siblings, parents, and children. Should they have the right to marry one of them as well?

    If not, why not?

    The fact is, the fundamental right to marry is *by definition* limited to opposite-sex couples. If there's nobody of the opposite sex that you want to marry, then you don't want to marry.

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