Sign Up to Receive Email Action Alerts From Issa Exposed
×

Marriage equality at SCOTUS: could sex discrimination tip the scale?

DeBoer LGBT Legal Cases Marriage equality Marriage Equality Trials

Chief Justice John G. Roberts, Jr. (Credit: Steve Petteway)

Last week, the U.S. Supreme Court heard two-and-a-half hours of wide-ranging oral arguments on marriage equality, a timeframe which any outside observer might have assumed would be enough to exhaust both sides of the argument.

Before the arguments, the consensus between legal observers was that the eventual, history-making decision would be made on one of two grounds: the first, equal protection, leading to an opinion that it is illegally discriminatory to allow different-sex couples to wed while prohibiting same-sex couples to do so, and the second, due process, or the ‘fundamental right’ track, resulting in a decision that the right to marry the partner of one’s choice is such a fundamental aspect of an individual’s liberty that any law holding Americans back from exercising this right violates the U.S. Constitution.

Throughout oral arguments last Tuesday, the Justices bounced around these two different rationales, poking and prodding them and leading observers on all sides to question just where the nine black robes stood (or rather, sat) on the issue.  And of course, this being the Supreme Court, there was cause for joy and concern on both sides.

On the fundamental rights issue, marriage equality advocates might have blanched at Justice Anthony Kennedy’s question of Solicitor General Donald Verrilli Jr. of whether a 1997 due process case at the high court called Glucksberg “says that we should … define a fundamental right in its narrowest terms.”  And yet their spirits would likely have soared on hearing Justice Elena Kagan ask the lawyer for the anti-marriage equality states why the Court shouldn’t follow its earlier reasoning in marriage rights cases such as Loving v. Virginia and Zablocki v. Turner, which held, in her words, that “there’s a right to marry that is fundamental and that everybody is entitled to … unless there’s some good reason for the State to exclude … them.”

On the equal protection grounds, things were thornier–and murkier.  Long-time readers of this website will know that there are several levels of constitutional scrutiny to which laws that affect certain classes of individuals are subjected.  Race, for instance, merits the highest level, strict scrutiny, while sex or gender merit intermediate scrutiny.  All other classes are–in theory–subject to rational basis scrutiny, the most deferential form and one which laws can usually satisfy.  The Supreme Court has never recognized sexual orientation as a protected class, so while lower courts have invalidated marriage discrimination laws under higher levels of scrutiny, the question of which level the Supreme Court might resort to is an open and extremely important one.

Intriguingly, the proper level of scrutiny with which the Court should view the marriage laws in question didn’t really come up that much during oral argument.  None of the Justices mentioned anything other than rational basis scrutiny–although Justice Kagan did so in a way that seemed like she wasn’t sure if that were the right test–and Justice Stephen Breyer went so far as to say it might be “wise” for the Court to avoid the “scholastic effort to distinguish between rational basis and middle tier and some higher tier.”

What does this all mean?  Reading between the lines of the Justices’ words, it would appear that the five jurists most likely to vote in favor of marriage equality (Sonia Sotomayor, Ruth Bader Ginsburg, Kagan, Breyer and likely, although not assuredly, Kennedy) have qualms about how they might get to that position.  For the most part, that’s because the Court is extremely hesitant to declare a new protected class or broad fundamental right to just about anything–remember, the legal system is designed, for the most part, to move slowly and cautiously.

Enter Chief Justice John Roberts, Jr. Partway through the arguments of John Bursch, the attorney for the state of Michigan arguing in support of marriage equality bans, the Chief interrupted what was really a bashing of Bursch by the more liberal Justices (Breyer and Sotomayor led the charge) to ask one of the most intriguing questions of the entire morning.  “I’m not sure it’s necessary to get into sexual orientation to resolve this case,” the Chief Justice began, going on to invoke an example of two hypothetical couples:

I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

That question probably made a few jaws drop at 1 First St. that Tuesday morning–mine did when I listened to the arguments later in the day.  It’s a sound and rather elegant little theory: marriage discrimination laws allow women to marry men, but don’t allow men to do so, and vice versa–a pretty clear example of a law that has disparate effects based on sex.  But while this argument has gotten some attention in the lower courts (for example, one out of three judges on the Ninth Circuit Court of Appeals pointed to sex discrimination as an additional rationale for invalidating Idaho and Nevada’s marriage equality bans), it’s been mostly rejected, probably because anti-marriage equality laws discriminate so obviously on the basis of sexual orientation that most jurists think it isn’t necessary to go the extra step to sex discrimination.

John Roberts, however, is not ‘most jurists,’ and his statement that it might not even be “necessary to get into sexual orientation to resolve the case” strikes me as extremely important.  Bursch danced away from the Chief Justice’s question, but there’s no denying that it opens a potentially appealing window right next to the twin doors of equal protection on the basis of sexual orientation and fundamental due process liberties that the other Justices were showing reticence to open.

Here’s the scenario: instead of a 5-4 decision written by Justice Kennedy (and likely applying some elements of the equal protection argument as well as Kennedy’s storied paeans to dignity à la Romer, Lawrence and Windsor), the Chief Justice authors a 6-3 opinion invalidating the marriage equality bans on the basis of sex discrimination.

The appealing element of this solution to the Chief Justice (and perhaps also to Kennedy, who asked a question about sex discrimination in 2013 while the Supreme Court considered the constitutionality of the Defense of Marriage Act in the Windsor case) is that such a decision would apply the Court’s established sex discrimination doctrine, with its attendant intermediate scrutiny test, without resorting to new protected classes or fundamental rights.

For marriage equality advocates, this would be an open and shut win.  For the broader range of LGBT legal advocates, it would be a frustrating split-the-baby approach.  A remarkable number of lower courts have declared sexual orientation a protected class that deserves heightened scrutiny, but without any clear Supreme Court directive to that effect, other lower courts are free to employ only rational basis scrutiny when making constitutional considerations.  There are many legal fights ahead for the LGBT community, and a marriage decision based on sex discrimination–while almost certainly not harmful–will make further progress a slower process.

Perhaps that’s what the Chief Justice is counting on.  With the country’s views on marriage equality steaming towards support, a decision in the current Obergefell case that supports states’ rights to limit marriage to different-sex couples would be derided–not to mention a potential legal and administrative nightmare.  But he may have found a way to slow the train down just a bit.

245 Comments

  • 1. Raga  |  May 5, 2015 at 11:09 am

    For argument's sake, let's suppose Roberts agrees that the marriage bans are unconstitutional, under intermediate scrutiny triggered by sex discrimination. And further, let's suppose nobody from the Windsor majority disagrees with him. Then, Roberts could author a 6-3 opinion striking down the bans. However, in that case, my questions are: (a) whether the Windsor majority (under Kennedy's pen) would be free to write a concurring opinion that addresses the sexual orientation aspect, and (b) since such a concurring opinion is also a majority of the Court, would that have binding precedential effect? Has there been any instance of this with any other SCOTUS case in the past?

    Or, in such a situation as above, would the Windsor majority author an opinion that strikes down the bans on both sexual orientation and sex discrimination grounds, and be considered the majority opinion, with Roberts simply left concurring in part (the bans fall under intermediate scrutiny triggered by sex discrimination) and dissenting in part (that the bans do have a rational basis)?

  • 2. guitaristbl  |  May 5, 2015 at 11:14 am

    An interesting scenario but no. Roberts is playing devil's advocate as he often does during oral arguments. His hypothetical which led to the sex discrimination question should be given as much gravity as Kennedy's "millenia" comment, whatever that means to everyone, in my opinion.

    Even if Roberts is interested to control a possibly more far reaching result in favour of equality (since both equal protection and due process offer more to LGBT people than a plain sex discrimination basis) I believe he is so fundamentally opposed to the heart of this issue he won't care that much in the end. It might be as well that the other 5 judges are not interested in making compromises to get Roberts with them.

    At best IMO Roberts will write his own dissent to the first question (if the result is positive for us of course) and say he would rule in favour of the plaintiffs in the 2nd question but now the 2nd question is moot.

  • 3. davepCA  |  May 5, 2015 at 11:27 am

    While a decision on the basis of sex discrimination could well win the case, it would be doing so on a basis that amounts to 'ignoring the elephant in the room' – the fact that these laws are being challenged because they intended to serve as some sort of official state declaration of a disapproval of citizens who are GAY by imposing upon them a denial of equal recognition of status. These measures are anti-GAY measures, not anti-'two people of the same sex' measures.

    I think it's very important that the decision address this basic truth and make it clear that laws which seek to target and disadvantage citizens because the state or a group of its citizens simply wants to show disapproval of gay citizens are unconstitutional. A ruling that says that marriage laws cannot be used for this purpose will address the REAL issue, and will then provide a basis for testing other laws which are not marriage laws but which have the same unconstitutional goal of unnecessarily and harmfully giving force in law to anti-gay sentiments.

  • 4. FredDorner  |  May 5, 2015 at 11:40 am

    In fact heightened scrutiny to address that long history of persecution is what the DOJ's amicus brief is all about, although it wasn't very apparent during oral arguments. It's a shame that Verrilli didn't take advantage of the perfectly timed bible-babbling outburst in the courtroom because it proved the DOJ's argument regarding both the utter irrationality and the level of anti-gay animus still present in society.

  • 5. Roulette00  |  May 5, 2015 at 11:45 am

    I agree that that (a decision based on sexual orientation) would be ideal, but I can't help but think a decision on sex alone would be useful. No longer would the roaches be able to pass laws with sly dog-whistle language (eg, "anti-same-sex" when what they want to say is "anti-gay"). Instead they'll be forced to pass laws that leave them no plausible deniability. No more pearl-clutching, "Oh, we didn't mean anti-gay, heavens no, we meant 'religious freedom!'"

    Sure, it would postpone a host of other issues, and cause more expensive lawsuits, until sexual orientation finally does get a day in court. As I said. It's not ideal. But it moves one of the rocks where the roaches like to hide.

  • 6. NetAmigo  |  May 5, 2015 at 11:52 am

    Roberts may want to slow the march toward ending discrimination against the gay community and may find sex discrimination one way to do it. However, he has little if any leverage. The four liberal justices and Kennedy are convinced that such discrimination must end. They have no need for Robert’s vote to continue their journey. They have undoubtedly permitted the lower courts to end the marriage discrimination laws during the past year by refusing to grant stays so their commitment is fairly obvious. Roberts can either join their march or write a dissent but I don’t see them permitting him to derail or slow their march. They made clear with Windsor that they have no reluctance to move forward on their own.

  • 7. DoctorHeimlich  |  May 5, 2015 at 11:59 am

    If an opinion carries 5 or more votes (and more votes than any other opinion), that IS the majority opinion. Everything else is a concurrence.

    In exactly the scenario you describe, it would be a 6-3 majority, with a 5-vote concurrence. But I have to think that in that situation, the more likely outcome would be that the 5, if truly comfortable enough to declare for gay rights, would take the opinion for themselves, leaving Roberts to write a concurrence agreeing in judgment (which might or might not gather supporting votes from members of the majority).

    The most on point example of such a ruling might be Lawrence v. Texas. Kennedy wrote for the majority. O'Connor concurred in judgement, but did not sign on to the majority opinion agreeing with the logic. (I assume because the majority opinion expressly disavowed Bowers v. Hardwick as wrongly decided — a case in which O'Connor herself cast an affirming vote.) Lawrence is considered a 6-3 opinion invalidating sodomy laws. AND, because 4 more votes signed on to Kennedy's opinion, its logic about gay people having a right to associate became a precedent which subsequent cases (Windsor and this one) could cite as a majority.

    You ask a good question about a 6 vote majority with a 5 vote concurrence. I don't know of a case like that, but I'd love to be educated on it.

  • 8. Decided_Voter  |  May 5, 2015 at 12:19 pm

    ^This^

  • 9. Mike_Baltimore  |  May 5, 2015 at 12:31 pm

    According to some, Verrilli will be seen as the 'savior' of the arguments on April 28.

    According to others, Verrilli will be seen as just another player in the arguments that took place on April 28.

    From 'The Advocate' (the headline is 'U.S. Solicitor General: Marriage Equality's Hero at the Supreme Court?'): http://www.advocate.com/politics/marriage-equalit

  • 10. wes228  |  May 5, 2015 at 12:37 pm

    To clarify: there is only one Opinion of the Court. We would not have two separate opinions of the court. There would be one Opinion of the Court and it would be announced like this:

    The Opinion of the Court was delivered by the Chief Justice, joined by J.J. Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg as to parts I-III (or whatever parts discuss sex discrimination) and delivered by J. Kennedy as to part IV (discussing sexual orientation), joined by J.J. Breyer, Sotomayor, Ginsburg, and Kagan.

  • 11. DrPatrick1  |  May 5, 2015 at 1:01 pm

    Alternatively, why wouldn't there be an opinion written by Kennedy and signed by Breyer, sotomayor, Kagan, RBG with a concurrence by Roberts. Then a dissent written by Scalia, joined by Thomas and Alito? This would be read as a 6-3 vote in favor of ME.

    I believe, as DrHeimlich seems to have written above, that Lawrence was written this way…

  • 12. wes228  |  May 5, 2015 at 2:00 pm

    In that scenario, Roberts' concurrence would not be binding precedent, just as O'Connor's Lawrence concurrence is not binding precedent.

    In reality, this will be a 5-4 decision. Roberts will dissent.

  • 13. VIRick  |  May 5, 2015 at 2:36 pm

    Off-topic and OMG! completely off-the-wall:

    NEBRASKA: Sane (???) Woman Files Federal Lawsuit Against All Homosexuals

    Via the "Omaha World Herald:"

    An Auburn NE woman claiming to be an ambassador for God and his son, Jesus Christ, is suing all homosexuals. Sylvia Driskell, 66, asked an Omaha federal judge to decide whether homosexuality is a sin. Citing Bible verses, Driskell contends “that homosexuality is a sin and that they, the homosexuals, know it is a sin to live a life of homosexuality. Why else would they have been hiding in the closet(?)” Driskell wrote in a seven-page hand-written petition to the court that God has said homosexuality is an abomination. She challenged the court to not call God a liar. “I never thought that I would see a day in which our great nation or our own great state of Nebraska would become so compliant to the complicity of some people(’s) lewd behavior.”

  • 14. Eric  |  May 5, 2015 at 2:48 pm

    So much for Nebraska's and Oklahoma's claims of respecting the will of the people through voter initiatives:
    http://www.omaha.com/news/nebraska/nebraska-oklah

  • 15. guitaristbl  |  May 5, 2015 at 3:02 pm

    I was just coming to report on that lol ! Here is the lawsuit but it's pretty ineligible for me at least :
    http://www.lgbtqnation.com/assets/2015/05/Driskel

    She asks the court to declare homosexuality a sin, not even illegal. Suddenly courts have the power to define religious concepts as well lol ! I thought only god could do that ? Apparently courts can too now..!
    I would say the court should declare homosexuality is not a sin and that should be the law in Nebraska..!

  • 16. guitaristbl  |  May 5, 2015 at 3:07 pm

    That has been filed quite some time ago but on Monday the court asked the views of the federal government.
    They do not want for Marijuana to be illegal no, of course not.
    They just want the court to strike down all provisions of the law concerning its legal regulation controlled by the state and have the federal government (which treats marijuana as an illegal drug of course) come in to regulate it and, given that under federal law it is illegal, the only choice the federal government would have would be criminal prosecution.
    But no, they clearly state they respect the will of the people of Colorado and not want to make it illegal again.
    They just do everything they can for it not to be legal. Very different (in their minds).

    I hope SCOTUS tells them to take the hike after the federal government (who has admitted it cannot possibly enforce marijuana regulation laws) tells them what they think.
    On the other hand if they don't, then I don't want to hear again a single thing from Fallin on the bad federal courts infringing on people's rights to vote. Although I am sure I will…

  • 17. RnL2008  |  May 5, 2015 at 3:21 pm

    OMFG, where in the world do these people come out of and why do they think that their personal religious beliefs should RUN this Country?

  • 18. RnL2008  |  May 5, 2015 at 3:23 pm

    This looks ALMOST like some kid wrote it instead of a 66 year old woman….does she even know that the Court DOESN'T accept handwritten lawsuits?

  • 19. RnL2008  |  May 5, 2015 at 3:30 pm

    They are ONLY concern about the "WILL" of the people when it suits their needs……how is the sale of marijuana in Colorado the business of Oklahoma or Nebraska ?

  • 20. jm64tx  |  May 5, 2015 at 3:56 pm

    Yes the courts do accept handwritten lawsuits. And the petitioners do in fact win them.
    http://blog.constitutioncenter.org/2015/01/prison

  • 21. jm64tx  |  May 5, 2015 at 4:03 pm

    Actually there are opinions which are known as plurality opinions. These are opinions where each judge writes his own, but together they achieve the desired result.

    "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks, 430 U.S. at 193."

    Crawford v Marion County Election Board is an excellent example of a plurality opinion from SCOTUS.

  • 22. Rick55845  |  May 5, 2015 at 4:15 pm

    Rose, SCOTUS does accept handwritten suits. I would think that all courts would accept a handwritten petition, but I suppose I could be wrong. I just can't imagine that any court in the US would decline to hear a case because someone lacked the wherewithal to file a typewritten or electronically-submitted petition. But in any event, I'm certain that the SCOTUS accepts such petitions.

    There is a very recent example, a case filed by a Muslim inmate in Arkansas who was representing himself. He wanted to be allowed to grow a 1/2 inch beard while in prison, citing the Federal RFRA to support his petition. The case was mentioned a few times on this site. That's the only reason I'm aware of it. The inmate won.

    The case was argued in October 2014 and was decided in January of this year. Alito authored the opinion. Here's a link to a PDF copy of his handwritten brief.
    https://www.documentcloud.org/documents/1033938-m

    Here is a link to an article about the case:
    http://www.scotusblog.com/case-files/cases/holt-v
    and https://www.techdirt.com/articles/20140303/112846

  • 23. RnL2008  |  May 5, 2015 at 4:18 pm

    We have had issues here in California and the County I specifically live in….thank for the correction.

    I still DON'T believe she will get a hearing though.

  • 24. Mike_Baltimore  |  May 5, 2015 at 4:35 pm

    Well, hell. Let's call the Buddhist monk to tell us what the Bible says, why don't we?

    The Federal District Court, or the Court of Appeals, should tell the woman the Federal government and the Federal court system are not the place to bring religious questions, but religious questions should be answered by the specific religion one practices. Either that, or SCOTUS can tell the woman to take a hike (and not on the Appalachian Trail).

  • 25. VIRick  |  May 5, 2015 at 4:40 pm

    "She asks the court to declare homosexuality a sin, not even illegal."

    Guitar, I was laughing so hard when I posted that report, so much so, that I never actually moved past the portion of the article's title questioning the woman's sanity, to even fully realize that she was actually asking the court to declare homosexuality a sin, rather than to determine its legality/illegality.

    So, suggested court decision: Homosexuality is NOT a sin, and henceforth shall be THE law of the land in the great, prideful, rainbow-colored state of Nebraska!

  • 26. VIRick  |  May 5, 2015 at 4:50 pm

    Rose, wait!! As "an ambassador for God and his son, Jesus Christ," she "is suing all homosexuals."

    That means she is suing all of us! Are you worried yet? LOL

  • 27. RnL2008  |  May 5, 2015 at 5:01 pm

    Look between her silliness and the idiot with the shoot the Gays proposition…..I'm shaking in my boots with laughter……..these folks aren't to be taken seriously……just like the couple from Kansas who tried to intervene and got tossed….lol!!!

  • 28. RnL2008  |  May 5, 2015 at 5:04 pm

    Well, my religious beliefs trump this woman's beliefs EVERY time………I just think to myself that people like this are pathetic and seek attention……let's just NOT give them any and laugh at them instead.

    I saw an article on facebook about how dirty a man's beard can be…..that would make most men shave……lol!!!

  • 29. A_Jayne  |  May 5, 2015 at 5:16 pm

    "[W]hy do they think that their personal religious beliefs should RUN this Country?"

    They are routinely thus misinformed by charlatans who seek to profit from delivering that very message – and they do profit in uncountable ways – directly, through donations, financially – and indirectly from the beneficence of political "kickbacks" from those elected by the gullible in their audiences.

  • 30. RnL2008  |  May 5, 2015 at 5:20 pm

    Oh, so they think if by doing this garbage, someone will set up a gofundme.com account and they can get rich fast……ummm, maybe they should go ask the florist and bakers in Oregon how that is working out for them……lol!!1

  • 31. Mike_Baltimore  |  May 5, 2015 at 5:22 pm

    You DO realize the petitioner was a prisoner, who used a publicly available form? In other words, the petitioner was filing 'in forma pauperis' under Rule 39 of the Supreme Court.

    According to SCOTUS Rule 20, it is possible, but RARE, for a handwritten petition to be filed. It is not a daily thing.

    And it is an even rarer thing for SCOTUS to accept such a filing. Why does Rule 20 say "sparingly exercised"?

    Just as you usually do, you present one side of the argument, and pretend that there is no other side or sides.

  • 32. VIRick  |  May 5, 2015 at 5:28 pm

    Holy shit!! I just checked the original filing.

    In that hand-written thingie of hers, she's actually quoting from the "plaintiff's god" and from the "plaintiff's jesus christ." Unreal. Plus, not to be outdone, we even get hot quotes in rebuttal from the "defendant's homosexuals."

  • 33. StraightDave  |  May 5, 2015 at 5:47 pm

    Well, I guess it's not just LGBT coming out of the closet now. Everyone is getting brave enough to show their true colors. Don't worry, lady, we won't stone you or arrest you or send you to hell. But you should expect to get laughed at.

  • 34. davepCA  |  May 5, 2015 at 5:52 pm

    yes, all those voices in her head seem to be having quite a lively round table debate.

  • 35. StraightDave  |  May 5, 2015 at 6:13 pm

    On the other hand, I think the Appalachian Trail would be the perfect place for her to get lost on. Go for it!

  • 36. ianbirmingham  |  May 5, 2015 at 6:16 pm

    In this scenario, (a) and (b) are both "Yes".

    (1) If Roberts is on the prevailing side, then he gets to assign the writing of the majority opinion, and he can easily assign that written opinion to himself. Otherwise the most senior judge on the prevailing side (almost certainly Kennedy) gets to assign the writing of the majority opinion.

    (2) The majority opinion must have at least five justices either joining or concurring as to the result (i.e., affirmed or reversed). Otherwise it is instead called a plurality opinion.

    (3) To the extent that at least five justices agree with a particular logical path from the facts of the case to the result, that logical path is a holding and will be legally binding precedent on all lower courts. It does not matter whether the logical path is in only one opinion that at least five justices sign onto, or mentioned independently in any number of separate opinions; as long as it is possible to fairly count five justices endorsing that logical path, it is a holding of the case and constitutes legally binding precedent on all lower courts. It is possible to have any natural number (0..infinity) of these logical paths in the court's ruling. If there are zero such logical paths, then the case is binding precedent only as to the specific facts of the case and the result (affirmed or reversed) assigned to that exact set of facts.

    (4) If at least five justices agree with a particular set of statements which do not constitute or contain a logical path from the facts of the case to the result, those statements are considered to be dicta (aka "hot air") and they do not constitute binding precedent on any lower court whatsoever.

  • 37. SoCal_Dave  |  May 5, 2015 at 6:41 pm

    There are lots and lots of them, just most of them are not as honest and open as this person. They come up with "religious freedom" and other dishonest laws but they really want what she wants.

  • 38. Mike_Baltimore  |  May 5, 2015 at 6:56 pm

    NBC News now has an article up about the suit: http://www.nbcnews.com/news/us-news/nebraska-woma

    I had to laugh at "The court noted dryly that, regarding to the defendants, "No summons [was] issued." " I also laughed at some of the other comments people have made, both in the article and in comments to the article.

  • 39. VIRick  |  May 5, 2015 at 7:21 pm

    Mike, that's why jm64tx is commonly known here at EoT as the resident troll.

    If jm64tx is not careful, that nut-job woman in Nebraska (who is suing all homosexuals) might well file an amended complaint and sue him for aiding/abetting/consorting with known homosexuals.

  • 40. RnL2008  |  May 5, 2015 at 7:23 pm

    I liked the part where the couple stated they would have to sell everything because the restitution that the judge would grant her would take their last penny…….and that's how ridiculous this suit is.

  • 41. VIRick  |  May 5, 2015 at 7:38 pm

    Oh shit! I can't get past the docket entry for the filing, "Driskell v. Homosexuals."

  • 42. Sagesse  |  May 5, 2015 at 7:44 pm

    Obnoxious anti-equality amicus brief comes under fire.

    Professors say UVU president’s signature against gay marriage harms Utah school’s mission [Salt Lake Tribune]

    "Scores of Utah Valley University professors say the school's president has undermined students and the university's mission by signing on to a "friend of the court" brief opposing gay marriage.

    "UVU President Matthew Holland was one of "100 scholars" who signed an amicus brief last month written by attorney Gene Schaerr."
    http://www.sltrib.com/home/2474696-155/professors

  • 43. wes228  |  May 5, 2015 at 7:45 pm

    A plurality opinion is not the same as a split majority opinion. Whenever at least five justices sign onto any portion of an opinion, that writing becomes the speech of the Supreme Court personified. It is precedent binding on all courts in the country.

    So a situation where Justice Roberts writes an opinion striking down the laws on sex discrimination claims, joined by the "Windsor 5" makes for a majority opinion. If the Windsor 5 want to go further and on their own strike down the laws on sexual orientation claims, that too is part of the majority opinion. We would have one majority opinion divided into several parts (marked by Roman numerals), with say parts I-III delivered by Roberts and parts IV-V delivered by Kennedy. But all of it is the Opinion of the Court, a majority opinion that is binding on all courts.

    A plurality opinion is where you can't even get 5 justices to agree on a rationale. The only thing that at least 5 justices can agree to is the single sentence at the end (called "the judgment"), e.g. "The judgment of the Court of Appeals is affirmed."

    Say 4 justices think that the Court of Appeals should be affirmed for reason X and 2 justices think they should be affirmed for reason Y. No one in the "X" group agrees with the "Y" group and vice versa. The opinion of the "X" group is the plurality opinion because it has the most number of justices attached to it. But this is not a majority, so it is not the speech of the Supreme Court personified, and it is not binding precedent. The most authoritative opinion in a plurality decision is the opinion that uses the most limited reasoning for concurring in the judgment.

  • 44. Mike_Baltimore  |  May 5, 2015 at 7:53 pm

    There are several other trails in the US other than the Appalachian.

    One might be the Florida to Oklahoma "Trail of Tears" (well, it would get her back close to Nebraska if she made it to the end of the trail).

  • 45. Raga  |  May 5, 2015 at 8:30 pm

    Thanks, Wes. That makes sense that there'd be just one majority opinion with different groups (of five or more) claiming different sections.

  • 46. DeadHead  |  May 6, 2015 at 2:43 am

    Better yet, she could walk Mark Sanford’s Appalachian Trail: http://www.mnn.com/earth-matters/wilderness-resou

  • 47. Sagesse  |  May 6, 2015 at 4:01 am

    I missed this last week. Apologies if it's been posted.

    Obama Calls for End to Discriminatory Parenting Laws [The Advocate]

    "When President Obama declared May to be National Foster Care Month this week, he included words never before included in a White House proclamation about adoption. Those words reflect the second time in 2015 the president called for transgender individuals and bisexuals, lesbians and gays be afforded their full civil rights.

    “With so many children waiting for loving homes, it is important to ensure all qualified caregivers have the opportunity to serve as foster or adoptive parents, regardless of race, religion, sexual orientation, gender identity, or marital status,” according to the proclamation. “That is why we are working to break down the barriers that exist and investing in efforts to recruit more qualified parents for children in foster care.”
    http://www.advocate.com/politics/transgender/2015

  • 48. jm64tx  |  May 6, 2015 at 5:47 am

    Rule 20 applies to extraordinary writs … mandamus and habeas corpus. That's why it says "sparingly exercised."

    It does not apply to a writ of certiorari … which is what the prisoner above applied for.

    Rather, rule 12 applies to the case I cited above. And Rule 12.2 specifically states:

    "An inmate confined in an institution, if proceeding in forma pauperis and not represented by counsel, need file only an original petition and motion."

    Nevertheless, since you say I present only one side of the argument..

    Here are the NON PRISONER rules for civil suits in Illinois Federal Court (which are pretty much the same for every federal court):

    "Your complaint may be typed or handwritten. If handwritten, it must be readable."
    http://www.ilsd.uscourts.gov/Forms/Non-PrisonerCi

  • 49. sfbob  |  May 6, 2015 at 8:16 am

    She thinks federal courts declare things to be a sin? The woman seems very confused; probably flunked civics.

  • 50. Mike_Baltimore  |  May 6, 2015 at 11:11 am

    And the rule for SCOTUS is what (NOT 'Illinois Federal Court', and which Federal court in Illinois? There are 3 districts in Illinois, and the 7CA sits in Chicago, which the last time I checked is in Illinois), since I was talking SCOTUS rules, and you made such a big deal about a unanimous SCOTUS ruling?

  • 51. VIRick  |  May 6, 2015 at 12:23 pm

    "…. she could walk Mark Sanford’s Appalachian Trail:"

    Indeed, except Mark Sanford's "Appalachain Trail" was its southern-most extension,– in Argentina!!

  • 52. VIRick  |  May 6, 2015 at 12:27 pm

    "The court noted dryly that, regarding to the defendants, 'No summons [was] issued.'"

    And in retort, Dan Savage claims to be utterly heart-broken.

  • 53. Lymis  |  May 7, 2015 at 6:04 am

    I agree with you, but it's worth clarifying – a plurality decision as it relates to the specific outcome they agree on will be binding – and precedential.

    In a plurality decision where, say 2 justices agree that marriage equality must be allowed because it's sex discrimination but that sexual orientation is not an issue and need not be addressed, 2 justices rule that marriage equality must be allowed because it's a fundamental right and requires strict scrutiny that the bans fail to meet, and 2 justices rule that marriage equality must be allowed because sexual orientation is a class requiring it's own heightened scrutiny, then it would be binding precedent that all the states much allow marriage equality. Similarly, issues directly stemming from questions of the legitimacy of such marriages would be somewhat resolved – states could not declare that straight marriages are eligible for state-funded adoption, but gay ones would not be, on the basis that gay marriages aren't "real" marriages, for example.

    But it would not extend to other cases that aren't related to marriage. Such a ruling would not create a binding precedent that gay people cannot be discriminated against in employment – nor that gay men and lesbian women must be treated equally in employment. (though a case could be made that other sex discrimination precedents would apply to that).

    The question of whether you could throw a juror off a case for being gay would not be settled. Nor would the question of whether some kinds of discrimination in regards adoption is unconstitutional (because "children deserve a mother and a father," for example.)

    It would create "official" reasoning that lower courts could expand on, such as supporting lower courts finding that heightened scrutiny applies to all issues relating to orientation.

    As long as a majority doesn't explicitly state that some reasoning does NOT apply, such as that sexual orientation is NOT subject to heightened scrutiny (as opposed to simply dodging the question), such a non-majority view would not be binding, but neither would NOT using it be binding.

    But such an opinion would not be a loss, because it wouldn't necessarily tie the hands of lower courts which did want to declare things like heightened scrutiny.

  • 54. Lymis  |  May 7, 2015 at 6:12 am

    The bigger problem is that, when it comes down to it, she's attempting to sue all homosexuals for simply existing. To the degree you can even infer that she's claiming personal harm, it's the harm of living in a society that allows people to be openly gay.

    I'm not a lawyer, but I don't think you can sue a class of people that way. A class of people can sue YOU, but that's different.

    The judge in question is going to rule on the most obvious flaw, and that isn't going to be her handwriting.

  • 55. sfbob  |  May 7, 2015 at 7:13 am

    Her suit has been dismissed.
    https://docs.google.com/viewer?url=http://bloxima

    With prejudice. It's a fun read actually.

  • 56. Mbneely  |  May 7, 2015 at 6:42 pm

    I believe Justice Roberts may have been lobbing Bursch a softball question. The answer to Justice Roberts question would be no. In his scenario, Sue would not be able to marry Jane although Tom could marry Jane. So Sue and Tom are being treated the same as neither can marry someone of the same-sex although both can marry someone of the opposite sex so there is no disparate treatment between Tom and Mary thus no sex discrimination.

  • 57. FredDorner  |  May 7, 2015 at 6:59 pm

    That's the exact same bigot-logic the state of Virginia used to justify its ban on mixed-race marriage where they claimed there was no racial discrimination since everyone was prohibited from marrying someone of another race.

    And as the federal courts have noted, equal application of the law doesn't immunize a law from an equal protection challenge when only one class of persons is burdened by the law.

  • 58. Mbneely  |  May 7, 2015 at 8:43 pm

    I fully support same-sex marriage and married my same-sex partner of 15 years two years ago. We had to travel 3 states away to do it. I just believe that the legal response to Justice Roberts question is that there isn't sex discrimination under the law in the scenario he described.

  • 59. FredDorner  |  May 8, 2015 at 9:22 am

    It doesn't matter who you are, your logic fails anyway. As judge Shelby in Utah noted:
    "The Supreme Court rejected an analogous argument in Loving v. Virginia, 388 U.S. 1, 8-9 (1967). In Loving, Virginia argued that its anti-miscegenation laws did not discriminate based on race because the prohibition against mixed-race marriage applied equally to both white and black citizens. Id. at 7-8. The Court found that “the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Id. at 9. Applying the same logic, the court finds that the fact of equal application to both men and women does not immunize Utah’s Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex."

    In fact most judges have noted the same thing, that these bans are sex discrimination on their face. At least one chose to strike the ban down on that basis, while others didn't need to since the bans lack any rational basis. However, one federal judge (McShane in Oregon) did buy your logic and completely missed the direct analogy to Loving…..possibly because that judge is himself gay and more aware that the underlying intent of these bans is to harm gays.

    In my view these bans are unconstitutional no matter how you analyze them, so if you ignore the principle of judicial restraint the question then becomes which is the most effective way to strike the bans. Heightened scrutiny for sexual orientation might be best, but equally good would be treating sexual orientation discrimination as an aspect of sex discrimination (ie gender role discrimination).

  • 60. Shelagh  |  May 29, 2015 at 5:43 pm

    Who exactly is being discriminated against? Marriage doesn't discriminate; the first recorded marriage ceremonies took place 4,350 years ago in Mesopotania to unite one woman and one man. Thousands of years on, millions of ceremonies take place daily around the world without any discrimination against any particular group. ALL men are denied a ceremony that unites one man and one man. ALL women are denied a ceremony that unites one woman and one woman. Love doesn't come into it. When men and women apply for a marriage certificate, they are not asked to prove that they love one another; this is not a requirement. There is no discrimination agaist men; they are all treated equally. Similarly, there is no discrimination agaist women; they are all treated equally.

  • 61. davepCA  |  May 29, 2015 at 6:19 pm

    Try reading any of the 50+ court rulings in the past few years which all spell this out for you in great detail. The entire premise of your comment is nothing more than a long-debunked specious argument that does nothing at all to show that laws which denied the rights and protections of civil marriage to same sex couples served any legitimate beneficial purpose or complied with the mandates of our Constitution. You have no argument.

  • 62. sfbob  |  May 29, 2015 at 9:44 pm

    Yes. And in like fashion laws prohibiting interracial marriages didn't discriminate against anyone because they applied equally to all races. That sort of reasoning got tossed in 1967. It didn't work then and it won't work now. Neither does the rationale that simply because something was customary in the past it must never be changed in any way. The public conception of marriage changes almost constantly.

    The way in which marriage equality bans discriminate both based on sex and on sexual orientation is this: marriage equality bans tell gay men and lesbians "You're free to marry anyone who you, by your very nature, have no intrinsic interest in forming an intimate relationship with."

    And yes you may be right: love is not a requirement for marriage. What IS required however is commitment. In fact that is the essential thing about civil marriage: Marriage is a civil contract that commits both spouses to provide support for each other no matter what mood they may be in and, if nothing else, not to skip out just because it may at certain times become inconvenient or bothersome to stick around. On that basis there is absolutely no good reason why men can't marry men and women can't marry women.

  • 63. Shelagh  |  May 30, 2015 at 2:55 am

    Marriage is not a right; it is a social construct. Presumably, it was not written into the constitution because amendments could be added that would change the way marriage was at the time the compilers wrote the constitution. There is nothing to amend. The founding fathers wanted it that way, so they left marriage out of the constitution; men and women do not have the constitutional right to marry. Read the comments on this article for more information:
    http://www.suanews.com/constitution/gay-marriage-

  • 64. Shelagh  |  May 30, 2015 at 3:02 am

    Discrimination against race is a civil rights issue. In the case of marriage, no GROUP is being discriminated against. Gays and lesbians are part of the human race. They have insisted that they are the same as everyone else. GAY is an acronym for "good as you" and is a constant reminder that a gay man is no different to a straight man. The community of gay people is no different to any other community set up by like-minded people. As such, marriage does not discriminate; all men and all women are treated equally.

    The Institution of Marriage was set up thousands of years ago to unite one woman and one man. It lasted because it provided society with a structure that benefitted everyone. Had marriage not proved to be beneficial, it would have died out long ago.

    The gay community is causing conflict and fracturing men and women. Eventually, those who want to celebrate the uniting of one woman and one man will abandon marriage and set up an alternative.

  • 65. 1grod  |  May 30, 2015 at 4:17 am

    Good on you to be a supporter of marriage. You apprehensions for the Institution appear to be ill-founded. One man and one woman continue to marry in Canada, some in churches, as they did prior to 2003 when straight-only-marriage availability was first found to be unconstitutional in Ontario and as they have done since 2005 in all of Canada and in Massachusetts. Why? As seen in 37 states, marriage equality where present, it is all but invisible except to the individuals themselves entering into a civil law contract. Agree that it is too soon to tell, but young people collectively are overwhelming in favour of marriage equality. And straight or non-straight, they are by in large are the ones entering into first time marriage…..
    Let me reply to your failure to see discrimination in the absence of equal access and recognition to civil marriage in some USA states. Are you aware in Kansas, the state permits you to marry and except for vital statistics, no other department of government recognizes the legal marriage? Are you aware that some states will not recognize your legal marriage performed in your home state. Ask your teenage kids who have been required to move because of their parents' job to understand that! Place yourself in their shoes when you reply. You fail to use the lens of the individual in your analysis. That is a flaw because the right to choose your 'life partner' is an aspect of the fundamental right to liberty. Whether unique to USA or not, liberty is a founding principal of America's system of law.
    There are fifteen USA Supreme Court cases in which marriage is identifies as a fundamental individual right (Myers 1923). Zablocki (1978) says it's available to all individuals. Loving (1967), Cleveland (1974), Moore ( 1977), Carey (1977), Planned Parenthood (1992), MLB (1996), Lawrence (2003) say the ‘freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Cary also help clarify your observations: “It is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage” Windsor (2012) says the Defense of Marriage Act (DOMA) contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. Thirty Seven states either have chosen (19) or are required by courts to offer marriage licences and to recognize in and out of state marriages. The question before the court in Obergefell is ought not freedom to marry be available to all. Discrimination does exist when fundamental individual rights and freedom – the choice who one can marry – is not available, and not available for a justified reason. Since Windor over 35 court decisions essentially have found no justifiable reason why it is not available to all citizens. While you as an individual may hold the views stated above, the federal and state constitutions may not. State bans on same-sex marriage are founded on “hate, prejudice, ignorance, fear or moral disapproval,” according to a report issued April 15 2015 by Maryland Attorney General Brian Frosh. Please read it before you reply http://www.oag.state.md.us/Reports/The%20State%20

  • 66. Shelagh  |  May 30, 2015 at 5:19 am

    Taking your reply to its logical conclusion, ANY man can marry ANY man for any reason. The same is true of women. In fact, any human being can marry any other human being and live together as a married couple. Marriage was not set up for this. Marriage was set up to unite one woman and one man. If the courts feel that this is no longer appropriate in the twenty-first century, then the abolishment of marriage would provide a better solution. Whatever was to be put in its place could be decided by the people, if they so wished.

  • 67. mu2  |  May 30, 2015 at 5:52 am

    You are a god damned liar. And I think you know it. Fuck off and die, asshole.

  • 68. JayJonson  |  May 30, 2015 at 5:52 am

    Hard to tell whether this stupid person posting as Shelagh is simply a troll or not. She certainly has no real point to make. She keeps repeating over and over again the same tired NOM talking point. She needs to get over it and go back to the NOM blog from which she originated.

  • 69. Shelagh  |  May 30, 2015 at 5:56 am

    Thanks for the kind words, Jay.

  • 70. sfbob  |  May 30, 2015 at 7:00 am

    Oh please. The gay community is "causing conflict and fracturing men and women?"

    That's quite funny really. We're the troublemakers; if only we would stop insisting on civil equality and "ruining" the institution of marriage for everyone else.

    This is a classic example of blaming the victim. And by the way "gay" did not start as an acronym for anything though there is now an LGBT rights website which uses it as one. Like other similar euphemisms, such as "magical," "in the life," and other such expressions, it originated as a means for us to identify ourselves to each other at a time when we were widely persecuted and disdained.

    You are speaking of something you don't know much about beyond your prejudices. Thank you for your concern…as well as your pathetic attempts at historical revisionism.

  • 71. 1grod  |  May 30, 2015 at 7:10 am

    Shelagh thank you for your reply. Let me address three point. First, ANY man or woman. In rereading my reply I can see that I neglected to mention that states sets age because of the matter of deemed capacity to consent to a contract, and consanguinity. Second I'll address not set up for this. Do you realize – at least in Canada – women were not persons before 1917 (Alberta), Canada 1928. The previous common law up to then stated "women were eligible for pains and penalties, but not rights and privileges". Have you heard of the law of coverture which were also operative in the USA and which also address the relationship of men to women in the marriage institution you trumpet? "They stipulated that a married woman did not have a separate legal existence from her husband. A married woman or feme covert was a dependent, like an underage child or a slave, and could not own property in her own name or control her own earnings". http://www.library.hbs.edu/hc/wes/collections/wom…. The laws bagan to changed in the 1930s. Regarding the third, abolishment, just how do you propose to abolish a fundamental civil right of individuals. Jay Jonson encourage you to read, and then reread any of the decisions on the Courts. It is hard to take you seriously when you provide a solution to a non existing problem. The 19 states I mentioned above have already chosen to expand the definition of marriage represent 45% of the population. The opinion polls range close to 60% in favour of an expanded definition. But your views seem open to influence. Are you an American? I am not. If so, have you forgotten another fundamental premise of the American system of Justice, there to guarantee the civil rights of minorities – LGBTQ make up less than 10% of the USA population. These right will not be put to a vote. In other words an aspect of right of liberty of a person is guaranteed! Therefore very, very difficult to abolish in a society premised on the rule of law. While some here may view you as a troll, I'm willing to give you, Shelagh, the benefit of the doubt. Please take time to read court decisions.

  • 72. sfbob  |  May 30, 2015 at 7:22 am

    Of course I'll believe the words from a website of a person whose only citations for his conclusions are his own previously published works. That's some credibility right there.

  • 73. Shelagh  |  May 30, 2015 at 7:37 am

    Marriage is much older than Canada and the USA. Neither country devised marriage. The union of a man and a woman, recognised by authority or ceremony, is as old as civilization itself and marriage of some kind is found in virtually every society. But throughout the centuries marriage has taken many different forms.

    Understanding of marriage contrasted greatly from culture to culture. Some cultures viewed the institution as endogamous (men were required to marry within their own social group, family, clan, or tribe), exogamous (marrying outside the geographical region or social group) or polygamous (allowing men to take more than one bride).

    Polygamy was formally banned towards the end of the Roman Empire with laws against adultery, fornication and other relationships outside a monogamous lifelong covenant. The seeds of modern marriage were sowed here and they extended into the modern Western world.

    In European nations, marriage was traditionally considered a civil institution. Around 5AD great Christian theologians such as Augustine wrote about marriage and the Christian Church started taking an interest in the ceremony.

    It was at this point that Christians began to have their marriages conducted by ministers in Christian gatherings, but it was in the 12th century that the Roman Catholic Church formally defined marriage as a sacrament, sanctioned by God.

    In Catholicism, it is still believed that the Sacrament of Matrimony is between God, the man and the woman, while the Reformation of the Sixteenth Century CE re-valued marriage as a merely life-long and monogamous covenant between a man and a woman.

    Throughout the ages, whether civil or religious, the institution of marriage has remained resolutely for the union of a woman and a man.

  • 74. mu2  |  May 30, 2015 at 8:01 am

    She's a Scottish whore who loves NOM https://www.facebook.com/shelaghwatkins

  • 75. Shelagh  |  May 30, 2015 at 8:05 am

    Gay is an acronym:
    http://acronyms.thefreedictionary.com/GAY

  • 76. sfbob  |  May 30, 2015 at 8:14 am

    Now perhaps. But that is an after-the-fact phenomenon.
    http://en.wikipedia.org/wiki/Gay

    It was not original even then; its use as slang was more generalized and referenced living a carefree life, uninhibited by moral constraints and became (apart from its everyday meaning of "happy") mainly a euphemism for being homosexual only more recently. As for it being an acronym well…it's easy to take a short word of any sort and turn it into an acronym convenient for one's purposes. But that isn't the origin.

  • 77. Shelagh  |  May 30, 2015 at 8:14 am

    Shelagh is the Irish spelling of Sheila, but I'm English. A Lancashire lass.

  • 78. Shelagh  |  May 30, 2015 at 8:18 am

    I recommended the comments on the article.

  • 79. gay_avenger  |  May 30, 2015 at 9:27 am

    mu2 calling someone a "whore" is uncalled for and it says something about your own character traits.

  • 80. guitaristbl  |  May 30, 2015 at 10:05 am

    Oh cute a "tradition" argument (alas on historically not so strong grounds). "We did like that for centuries (which we did not I will add) so it's the right way". Let's see what the 7th circuit judge Richard Posner has to say on that in his opinion striking down the marriage bans in Indiana and Wisconsin :

    "The state’s argument from tradition runs head on into
    Loving v. Virginia, 388 U.S. 1 (1967), since the limitation of
    marriage to persons of the same race was traditional in a
    number of states when the Supreme Court invalidated it.
    Laws forbidding black-white marriage dated back to colonial
    times and were found in northern as well as southern colonies
    and states. See Peggy Pascoe, What Comes Naturally:
    Miscegenation Law and the Making of Race in America (2009).
    Tradition per se has no positive or negative significance.
    There are good traditions, bad traditions pilloried in such
    famous literary stories as Franz Kafka’s “In the Penal Colony”
    and Shirley Jackson’s “The Lottery,” bad traditions that
    are historical realities such as cannibalism, foot-binding, and
    suttee, and traditions that from a public-policy standpoint
    are neither good nor bad (such as trick-or-treating on Halloween).
    Tradition per se therefore cannot be a lawful
    ground for discrimination—regardless of the age of the tradition.
    Holmes thought it “revolting to have no better reason
    for a rule of law than that so it was laid down in the time of
    Henry IV.” Oliver Wendell Holmes, Jr., “The Path of the
    Law,” 10 Harv. L. Rev. 457, 469 (1897). Henry IV (the English
    Henry IV, not the French one—Holmes presumably was referring
    to the former) died in 1413. Criticism of homosexuality
    is far older. In Leviticus 18:22 we read that “thou shalt not
    lie with mankind, as with womankind: it is abomination. The limitation on interracial marriage invalidated in Loving
    was in one respect less severe than Wisconsin’s law. It
    did not forbid members of any racial group to marry, just to
    marry a member of a different race. Members of different
    races had in 1967, as before and since, abundant possibilities
    for finding a suitable marriage partner of the same race. In
    contrast, Wisconsin’s law, like Indiana’s, prevents a homosexual
    from marrying any person with the same sexual orientation,
    which is to say (with occasional exceptions) any
    person a homosexual would want or be willing to marry.
    Wisconsin points out that many venerable customs appear
    to rest on nothing more than tradition—one might even
    say on mindless tradition. Why do men wear ties? Why do
    people shake hands (thus spreading germs) or give a peck
    on the cheek (ditto) when greeting a friend? Why does the
    President at Thanksgiving spare a brace of turkeys (two out
    of the more than 40 million turkeys killed for Thanksgiving
    dinners) from the butcher’s knife? But these traditions, while
    to the fastidious they may seem silly, are at least harmless. If
    no social benefit is conferred by a tradition and it is written
    into law and it discriminates against a number of people and
    does them harm beyond just offending them, it is not just a
    harmless anachronism; it is a violation of the equal protection
    clause, as in Loving. See 388 U.S. at 8–12.
    Against this the state argues in its opening brief that Loving
    “should be read as recognizing the constitutional restrictions
    on the government’s ability to infringe the freedom
    of individuals to decide for themselves how to arrange their
    own private and domestic affairs.” But that sounds just like
    what the government of Wisconsin has done: told homosexuals
    that they are forbidden to decide for themselves how to arrange their private and domestic affairs. If they want to
    marry, they have to marry a person of the opposite sex."
    (cont.)

  • 81. guitaristbl  |  May 30, 2015 at 10:06 am

    (cont.)

    The state elaborates its argument from the wonders of
    tradition by asserting, again in its opening brief, that “thousands
    of years of collective experience has [sic] established
    traditional marriage, between one man and one woman, as
    optimal for the family, society, and civilization.” No evidence
    in support of the claim of optimality is offered, and
    there is no acknowledgment that a number of countries
    permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan,
    Morocco, and Algeria—and that it flourishes in many African
    countries that do not actually authorize it, as well as in
    parts of Utah. (Indeed it’s been said that “polygyny, whereby
    a man can have multiple wives, is the marriage form
    found in more places and at more times than any other.”
    Stephanie Coontz, Marriage, a History: How Love Conquered
    Marriage 10 (2006).) But suppose the assertion is correct.
    How does that bear on same-sex marriage? Does Wisconsin
    want to push homosexuals to marry persons of the opposite
    sex because opposite-sex marriage is “optimal”? Does it
    think that allowing same-sex marriage will cause heterosexuals
    to convert to homosexuality? Efforts to convert homosexuals
    to heterosexuality have been a bust; is the opposite
    conversion more feasible? Arguments from tradition must be distinguished from
    arguments based on morals. Many unquestioned laws are
    founded on moral principles that cannot be reduced to costbenefit
    analysis. Laws forbidding gratuitous cruelty to animals,
    and laws providing public assistance for poor and disabled
    persons, are examples. There is widespread moral opposition
    to homosexuality. The opponents are entitled to their opinion. But neither Indiana nor Wisconsin make a
    moral argument against permitting same-sex marriage."

    Enjoy reading !

  • 82. mu2  |  May 30, 2015 at 11:47 am

    I like whores. Go clutch someone else's pearls. I call a spade a spade…you don't like it, shove it.

  • 83. Shelagh  |  May 30, 2015 at 11:58 am

    Opposition to homosexuality has nothing at all to do with maintaining the Institution of Marriage for the uniting of a woman and a man. Before the first recordings of marriage in 2350 BC, generations of people lived together in communities and collectively reared children. Over the centuries, it became apparent that men and women were forming partnerships and producing more than one child. These "family" units worked together and supported one another. Eventually, men and woman were given the opportunity to celebrate their commitment to one another in a marriage ceremony. Those who chose to remain single continued to form relationships without an obligation to marry.

    Nothing has changed in thousands of years. Suddenly, those who preferred to remain single in the past want to change the Institution of Marriage because they feel they have been excluded. No one excluded them. Marriage was not set up to coerce or exclude anyone. It was simply a formal contract that reflected the way that people in communities had organised themselves. Human behaviour came first, marriage followed, not vice versa.

  • 84. Shelagh  |  May 30, 2015 at 12:22 pm

    There is a great deal of emotional baggage attached to all the listed cases. None of the problems would have arisen if marriage only applied to the union of a woman and a man.

    All these considerations about the different laws in different States should have been taken into consideration before the couples decided to apply for a marriage certificate that was only legal within certain states.

    Scottish Law is quite separate to rest of the UK. Residents in England, Wales or Northern Ireland who move to Scotland have to abide by Scottish Law, they cannot change the law because it disadvantages them in a way they were not disadvantaged in the rest of the UK.

  • 85. A_Jayne  |  May 30, 2015 at 12:26 pm

    You seem to be very confused about very many things. As others have said here, that may be due to you absorbing misleading information from websites designed for that purpose.

    However, in this instance, I urge you to reread your own words posted here.

    First you say, "Discrimination against race is a civil rights issue."

    Then you say, "Gays and lesbians [don't suffer discrimination because they] are part of the human race."

    Two things about those two statements:

    1) When you attempt to define "civil rights" issues, you seem to miss the salient point that the word "civil" is equivalent in that usage to the word "law" – making "civil rights" equivalent to "lawful (or legal) rights." While I agree with you that all races have the right to not have others discriminate against them on the basis of race, the concept of "civil (legal) rights" is not limited to race. Indeed, other minority groups also have the right to not experience unlawful discrimination: members of religious sects, women, the physically challenged, the elderly and more are already enumerated in our laws as such groups. Several states acknowledge (in their discrimination laws) that many are prone to discriminate against gay people and have made that unlawful. "Civil rights" (legal, lawful rights in our civil society) apply to everyone.

    2) Those statements appear to reflect your belief that, while members of individually classifiable races (presumably other than the caucasian race) get "civil rights" due to their (other than caucasian) racial classifications, gay people do not get civil rights because they are part of the human race. Most of us understand that members of those individually classifiable races are also part of the human race. (Not to even mention that not all gay people are caucasian, so how would you then separate out all of the non-caucasian people who are also gay?)

    —————————————————————————————————————-

    In your comment, you also say, "[Marriage] lasted because it provided society with a structure that benefitted everyone." I will ignore your erroneous claims about the origins and limits of the "Institute of Marriage," but agree with you that marriage benefits society in many ways. Marriages between men and women and between same-sex members of gay couples benefit society equally. Claiming otherwise reflects a prejudice, not a fact.

    —————————————————————————————————————-

    Finally, you say, "Eventually, those who want to celebrate the uniting of one woman and one man will abandon marriage and set up an alternative."

    Any couple choosing to do so would fall outside the structure that our laws and our society recognize as marriage. They have that right, certainly, but not the "special right" to then have their alternatively-defined (and alternatively-named) relationships recognized in society and law. That would be what we know as "cutting off one's nose to spite one's face." Most of us know that some people are inclined to do that, but it's not recommended, and seems an awfully foolish response when one's own selfishness is the only reason behind it.

  • 86. Sagesse  |  May 30, 2015 at 12:36 pm

    On days like this, what I wouldn't give for an ignore button.

  • 87. DrBriCA  |  May 30, 2015 at 12:52 pm

    "Suddenly, those who preferred to remain single in the past want to change the Institution of Marriage because they feel they have been excluded. No one excluded them."

    I believe you are now confusing the concepts of being "unmarried" with "single." Same-sex couples have existed for thousands of years, and many have paired off into longterm monogamous relationships. I would never say that either individual in such a relationship is "single." This statement shows some form of bias/prejudice that same-sex relationships are not of equal merit to opposite married relationships (married or not).

    Furthermore, remember that times change. We're not asking for a new type of commitment or to destroy existing marriage principles… we simply want a seat at the table. You're right in that marriage rights for same-sex couples is a relatively new legal concept, but again, longterm same-sex relationships have existed for generations–they just weren't allowed the chance to have formal legal recognition of their unions. The 20th Century was a dramatic period of social upheaval in the US that saw African-Americans standing up to time-honored segregation and women launching their own movement, among other groups. With these movements in place during the 60s, it inspired the gay rights movement to finally begin with Stonewall. Claiming that gay people preferred to be "single" until the last decade would be like claiming that Black people preferred to have their own schools/fountains/etc. until the 50s/60s or that women prefer to earn less than their male coworkers. We just finally needed some spark to wake the nation up to inequality.

  • 88. RemC_Chicago  |  May 30, 2015 at 12:56 pm

    I'm sorry that my colleagues on EoT took the time and trouble to try to engage you with logic an reason. I've learned over time that there are people so insistently entrenched in their misplaced perspectives that even the full weight of the world's reason can not make them understand. There are none so blind as those who will cannot or will not see. What a shame that you can't demonstrate to your fellow humans the same nurturing spirit that you bestow on your flowers.

  • 89. Shelagh  |  May 30, 2015 at 1:47 pm

    1. I didn't say that. You added words that I neither used nor implied.

    2. I haven't expressed any beliefs: mine or anyone else's.

    3. Marriage does not discriminate; all men and all women, irrespective of race, religion and creed, are treated equally.

    4. There is nothing in the constitution to stop people from setting up an alternative to marriage.

  • 90. Shelagh  |  May 30, 2015 at 1:52 pm

    If I were alone in my misplaced perspective, this discussion would not be here.

  • 91. A_Jayne  |  May 30, 2015 at 2:01 pm

    1. Untrue.
    2. Untrue.
    3. Untrue.
    4. Untrue.

    We're done here.

  • 92. Shelagh  |  May 30, 2015 at 2:06 pm

    You are being pedantic over the words single and unmarried. Some men with no interest in marrying a woman, preferred to remain single. Others actually married for the sake of convention. Oscar Wilde being among the most famous.

    I doubt very much that homosexuals desired to marry prior to women being given the vote. Women had no rights that homosexuals needed to covert or envy.

  • 93. Zack12  |  May 30, 2015 at 2:10 pm

    Whether they are here or abroad, the bigots simply parrot the same old talking points.

  • 94. Shelagh  |  May 30, 2015 at 2:15 pm

    1, 2, 3 and 4 all true.

  • 95. 1grod  |  May 30, 2015 at 2:53 pm

    Shelagh: You have presented three thoughts, I will address each
    Paragraph 1) What you identified as problems exist whether marriage equality becomes normative. There are 1100 federal benefits – Edith Window and the estate of Thea Clare illustrate the inequality well. Then there are state benefits. Have you considered the rights of children who are being adopted or produced by these couples – often difficult to place children. I think you missed the point of featuring 12 of the 32 plaintiffs in Obergefell. The couples' motivation to be married is not dissimilar to any straight couple. Not about self!
    Paragraph 2) Let's both get our minds around 72% of Americans living in equality states. Their individual fundamental civil right to marriage choice as an aspect of their rights to liberty and privacy is protected. It is not only the military that limits your choice as to where you live. Your employer transfers you. I appreciate your concern for the Institution of Marriage. But on a higher order is the founding principle of equality of all. If straights can have the marriages celebrated in another state, recognized where they now live, so should non-straights. If straight divorce can be recognized in all receiving states, so should non straights. Americans are equal before and under the law. That is all law. Do you have an issue with this principal of fundamental justice?
    Paragraph 3) The UK is not a good example of what you are looking to emulate. The UK does not have a written constitution, and was until recently characterized as a unitary state. The devolution of powers to Scotland, Norther Ireland, Wales and Britian is so new that there is not yet a solution for Britain who only has Westminister. AND except in monetary policy and currency UK is bound by the policies of the EU. You might have suggested Ireland, Canada, and Australia because their gained automony from the UK when it was a unitary state and the definition of marriage was vested in their federal parliaments. By the end of this year all three will have achieved equality, Ireland by ballot initiative, Canada and Australia by a redefinition by the federal parliaments. It would be a tad unusual for a Nation that rebelled against a country with an unwritten constitution and a bill of right written of 1215 that set down some rules about marriage at that time, to look to as a model.
    Why not join those favouring equality. Many believe that it will strengthen the Institution of Marriage, but most tellingly, it will help US build a more perfect Union and further secure the Blessings of Liberty for themselves and their Posterity.
    .

  • 96. Shelagh  |  May 30, 2015 at 4:00 pm

    Homosexuality is illegal still in some States, while same-sex marriage is legal in other States, many of which have been forced into acceptance and are trying to find ways to resist the pressure forcing them to allow same-sex marriage.

    Under these circumstances, before any couple takes on the responsibility of bringing up a child, the couple should be in a position to ensure the wellbeing of that child until adulthood. If they cannot guarantee a stable environment throughout a child's life, they should not apply to adopt a child.

    Heterosexual couples, who fail in their duties, lose their rights and children are taken into care and found new adoptive parents. Homosexual couples have to accept that this might happen to them if they can no longer offer a safe and secure home for their adopted children. To say that they could offer the right environment if there was a change in the law is not a justifiable defence against losing their adopted children.

    The military is a special case and has its own rules and regulations. Those who enlist are aware of the rules and have to lead their lives within those rules, which are set up to protect the lives of all military personnel, especially if they are on active duty.

    Marriage does not discriminate against men and women. Some States take a lenient view of same-sex marriage, others don't, but there is nothing in the constitution to force them one way or the other. I know that you wish there was, but there isn't.

    The Republic of Ireland has marriage written into its constitution; the American constitution does not. This is proving to be a headache for the Supreme Court. Everyone is of the opinion that the SC will rule in favour or same-sex marriage and force federal law on all the States. Whether or not the States will accept the ruling is another matter.

  • 97. sfbob  |  May 30, 2015 at 4:02 pm

    You have no idea what homosexuals did or did not want prior to 1920. It would be equally–if not more appropriate–to say that in the past, a great many more men and women would have preferred to remain single than to pair off with anyone were it not for the benefits of being married had it not been a widespread expectation in virtually all cultures that people should pair off. Of those who would have wanted to marry, how do you know that homosexuals weren't interested? On what basis do you make that claim? There was in the late 19th Century what was called a "Boston marriage" which involved two women, almost certainly lesbians, pairing off and living as a couple. The expression exists because it was a noteworthy phenomenon. It is not implausible to suppose that gay men desired to do the same thing and at least occasionally did. The greater reality is that as long as we were mainly concerned with not being demonized by the larger society, our lives more than occasionally being threatened were we to reveal who we were, having access to legal marriage remained on the back burner. But there's no reason to think there'd have been a shortage of male-male or female-female couples wanting to avail themselves of the chance to marry if it had seemed even remotely a possibility for them.

  • 98. JayJonson  |  May 30, 2015 at 4:20 pm

    What I don't understand is why so many intelligent people here are wasting their time trying to convince such an obvious nincompoop and troll of anything.

  • 99. Shelagh  |  May 30, 2015 at 4:26 pm

    edit: covet not covert!

  • 100. Shelagh  |  May 30, 2015 at 4:32 pm

    You are too kind, Jay.

  • 101. davepCA  |  May 30, 2015 at 4:57 pm

    Marriage most certainly IS a 'right', and the Supreme Court of the United States has repeatedly explained this, even calling it a "fundamental right", more than ten times. The right to marry, and to marry the consenting person whom you CHOOSE to marry, is a fundamental component of a free citizen's capacity to autonomously direct their own life, and shall not be needlessly restricted by harmful and pointlessly discriminatory laws. And legal civil marriage ALSO coveys over 1000 ADDITIONAL rights and legal protections. And in addition to all of THAT, the Constitution guarantees a citizens right to the Equal Protection of all of those laws which convey those rights and protections. You have no idea what you are babbling about.

  • 102. davepCA  |  May 30, 2015 at 5:08 pm

    Homosexuality is not "illegal" in any state. You are extremely ill-informed about this entire issue. And so far, all you have done with all of your comments is dance around the real issues and try your best to avoid them.

    Those real issues are HARM and PURPOSE.

    All laws must serve a legitimate beneficial purpose. They must, at the very least , be rationally related to a legitimate goal for a law. They cannot exist simply to allow one group to harm or disadvantage another group simple because they wish to do so. That is not a valid purpose for a law.

    About ten years ago in the USA, when the first state began allowing same sex couples to legally marry, nearly all of the other states hastily enacted laws that served no purpose other than to deny same sex couples equal access to civil marriage, and deny recognition of the legal civil marriages these couples may have entered into in another state which allowed this.

    It is THOSE LAWS which are all being taken to the courts, examined for compliance to the mandates of the Constitution, and are all being found unconstitutional. Because they HARM a targeted group by denying them a vast number of rights and protections, while doing so fails to serve any legitimate beneficial purpose or advance any 'states interest'. That means the laws HARM CITIZENS FOR NO REASON and do so UNEQUALLY, which means the law amounts to discrimination for its own sake. And you have absolutely no argument to counter this well established fact, which has been abundantly proven in case after case after case, all over the country.

  • 103. 1grod  |  May 30, 2015 at 5:41 pm

    Shelagh: Rather than post here, I would suggest again that you would do well to read. You would be a more enlightened commentator!. Are you familiar with Romer and with Lawrence. In Romer v. Evans, the Supreme Court found a violation of equal protection doctrine when Colorado voters passed an initiative barring antidiscrimination laws protecting gays and lesbians. In Lawrence v. Texas, the Supreme Court held criminal sodomy laws to be unconstitutional under the Due Process Clause. Justice Scalia in Romer wrote [The Court's decision] "places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias." In Lawrence, he wrote: If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution?'
    The Windsor decision looks at the circumstances of children different than you do. "This places same-sex
    couples in an unstable position of being in a second-tier
    marriage. The differentiation demeans the couple, whose
    moral and sexual choices the Constitution protects, see
    Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

  • 104. bayareajohn  |  May 30, 2015 at 9:47 pm

    I don't doubt your sincerity. I doubt your rationality.
    Easy picking: #2
    You say you haven't expressed any beliefs.
    You have asserted a great many things, and perhaps you don't think they are beliefs, because you don't question their truth.
    Sadly for you, that's a classic definition of a belief.

    You are ignorant of what you attempt to explain away. And worse, you are comfortable, even smug in that ignorance. Moreover, you are impressed with your opinion of things, and seek arguments that you somehow feel you win by dismissing facts. Fortunately things are swinging away from those who would use history to support wrongs, and swinging away from you and those who BELIEVE that whatever they don't personally experience must have no value.

    Lastly, you may simply be impersonating the posting ID. The profile shows that this ID wasn't used for nearly a year until just yesterday, and the old posts don't resemble the new ones in tone, content, or style. Which may imply this is a hacked ID and a malicious and pointless trolling.

  • 105. bayareajohn  |  May 30, 2015 at 10:04 pm

    Right, and Shelagh is short for "She Laughs" at those of us who pointlessly attempt to engage her in a dialog. She (he?) is only here to disrupt. Whether or not she/he/it is another paid shill of NOM, it's not to engage a dialog or contribute to her own or anyone's legitimate search for truth or fairness. It's a narcissistic venture into the cold water to prove how brave she is… to herself. She only THINKS we are as impressed as she is.

    You presume to come here, and educate us on what we are about, what we have personally lived all our lives. If you aren't US, if you come here, it should be to learn about us. Would you go to France with the intent to explain to the French what you think is wrong with them? Learning is humility. Trolling is arrogance.

  • 106. bayareajohn  |  May 30, 2015 at 10:17 pm

    Did you just suggest that non-whites are not part of the human race? That follows from your assertion that Gays and Lesbians "are part of the human race", to be differentiated from the situation of non-whites, whose discrimination is a civil rights issue…

    Wow. Scary things in your head. Do you write for Santorum? He'd like your style.

    After 60 years of being gay, including many activist years, I've only heard the "good as you" acronym a few times, only in the last 20 years, and only in the UK. "Gay", "fey", "sissy", 'faggot"… I suppose you have ideas on how they mean something else too. Have fun explaining "Lesbian" creatively and dismissively.

    Get over yourself. Because you heard it somewhere doesn't make it so, and to tout your authority despite your low level of factual knowledge on the subject to debate on one of the world's great LGBT legal news sites is beyond arrogant.

    Again, you are not here for dialog. You are a suicide blogger.

  • 107. bayareajohn  |  May 30, 2015 at 10:31 pm

    Part of it is a hope that the offender is actually here in an intellectual effort… and as such should not have their ignorance go without remedy.

    Part of it is a fear that to say nothing amounts to submission to the trolling argument. Tacit agreement.

    Part of it is to show others that we don't take such condescension lying down, and to put the public on notice that such offenses have consequences.

    Part of it is to be certain that any impressionable readers have ample points of authority to assist their own evaluation of where the high ground is.

    Part of it is simply not being willing to take the bullshit anymore. It feels like justice to punch back when punched.

    And for some, it's just another chance to argue.
    Is not.
    Yes it is!
    Says who?

  • 108. Decided_Voter  |  May 30, 2015 at 10:50 pm

    We're watching something become quaint. In another month, it will seem different when people get lost on this site as they try to justify and overthink reasons to exclude and hold back another group of people. They will only have their opinions. They will no longer have the law.

  • 109. Shelagh  |  May 31, 2015 at 1:37 am

    It isn't a constitutional right, which is why the Supreme Court is judging these cases.

  • 110. Shelagh  |  May 31, 2015 at 2:04 am

    Since when has a gay man been part of a separate group as defined by the constitution? Does that group include women? Is American society made up of four groups of people: men, women, homosexual men, lesbians?

  • 111. Shelagh  |  May 31, 2015 at 2:47 am

    Yes, I am aware that sodomy laws are defunct, but a dozen states still have anti-sodomy laws on the books.

    Okay, I did some reading, and found this:

    “…By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law …"

    There is no federal law for marriage, which means that state residents live under these exact same conditions with respect to many State Laws that are not Federal Laws. All married couples are married for the purpose of state law but unmarried for the purpose of federal law.

  • 112. Shelagh  |  May 31, 2015 at 2:58 am

    I've learned a great deal. As to my name, I've already explained that Shelagh is the Irish spelling of Sheila.

  • 113. Shelagh  |  May 31, 2015 at 3:07 am

    No, I didn't say that. Get a grip. Homosexuals and lesbians are not race specific. A suicide blogger, I like that. It has quite a ring to it. I'm not sure what it means though.

  • 114. itscoldoutside  |  May 31, 2015 at 3:50 am

    I'm counting down the days. These bigoted posters have less than a month now to feel superior. The death rattle indeed.

    I suggest they start learning foreign languages immediately if they want to find a new audience.

  • 115. josejoram  |  May 31, 2015 at 5:12 am

    100% agree with you.

  • 116. wes228  |  May 31, 2015 at 5:50 am

    It's always the same old "Marriage has always been this way, so therefore it can only ever be this way" argument.

    "[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." (Lawrence v. Texas)

  • 117. Shelagh  |  May 31, 2015 at 5:50 am

    A fundamental right to choose whomever you wish to marry would, ipso facto, have to allow a man to marry another man, bestowing the married couple with all 1,000 rights and legal protections. That means ALL men, not just gay men. A straight man could marry a straight man and claim to be married, just as a gay man could marry either a gay man, a straight man or a bisexual man. The same would apply to women; any woman, of any sexual orientation, who wished to form a legal, marriage partnership with another woman would be allowed to do so. Anything else would be discriminatory.

  • 118. wes228  |  May 31, 2015 at 6:10 am

    Yes, that's correct. Right now a gay man could marry a straight woman if they really wanted to have a loveless marriage. The only time the government really cares if a married couple is genuinely "in love" is for immigration purposes.

  • 119. 1grod  |  May 31, 2015 at 7:09 am

    Shelagh: Social constructs and civil rights are not necessarily mutually exclusive. While marriage may be a social construct, it is also a fundamental right:. Regarding this is why the Supreme Court is judging these cases (Obergefell?); no, the Court is determining the extend to which states may limit the fundamental right to choose whom to marry available to all citizens, specifically to couples of the same gender. Re a fundamental civil right to marry, the Supremes have said:
    1.Maynard v. Hill, 125 U.S. 190, 205, 211 (1888): Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
    2.Meyer v. Nebraska, 262 U.S. 390, 399 (1923): The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
    3.Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942): Marriage “one of the basic civil rights of man,” “fundamental to the very existence and survival of the race.”
    4.Griswold v. Connecticut, 381 U.S. 479, 486 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
    5.Loving v. Virginia, 388 U.S. 1, 12 (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
    6.Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971): “[M]arriage involves interests of basic importance to our society” and is “a fundamental human relationship.”
    7.Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974): “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
    8.Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality): “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
    9.Carey v. Population Services International, 431 U.S. 678, 684-85 (1977): “[I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
    10.Zablocki v. Redhail, 434 U.S. 374, 384 (1978): “[T]he right to marry is of fundamental importance for all individuals.”
    11.Turner v. Safley, 482 U.S. 78, 95 (1987): “[T]he decision to marry is a fundamental right” and an “expression[ ] of emotional support and public commitment.”
    12.Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992): “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
    13.M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996): “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
    14.Lawrence v. Texas, 539 U.S. 558, 574 (2003): “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
    15. United States v Windsor (2013) , the Court invalidated a provision of the Defense of Marriage Act (DOMA) on the grounds that it violated the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

  • 120. RemC_Chicago  |  May 31, 2015 at 7:38 am

    Yes to all points. Thanks.

  • 121. FredDorner  |  May 31, 2015 at 9:13 am

    Shelagh, the state doesn't care whether you're attracted to your spouse and doesn't care why you're choosing to marry. It doesn't even ask prior to issuing a license. The reasons you and your spouse marry generally aren't the concern of the state, but racial or gender restrictions on marriage are quite clearly unconstitutional.

    In fact your side really lost this argument two years ago, as the federal courts have unanimously observed. You'll just have to learn to survive with equal rights rather than special rights.

  • 122. FredDorner  |  May 31, 2015 at 9:21 am

    Shelagh, if you live in the US you'll lose your special rights and privileged status at the end of next month. If you live in Ireland you'll lose your privilege in a few months, certainly by October. And if you live in England or Scotland I suspect you're struggling to compete on a level playing field…..which is why you're posting here.

  • 123. Shelagh  |  May 31, 2015 at 9:39 am

    That's interesting, Fred, that you consider marriage bestows a privileged status. The historical romance author, Catherine Cookson, was born out of wedlock and hated the word "bastard". I don't think today's children born to single mothers consider themselves to be bastards. How times have changed. There is no longer any status to being married or stigma to being a single mom.

  • 124. FredDorner  |  May 31, 2015 at 9:42 am

    Shelagh, I'm delighted to see you bigots on the wrong side of civil rights history not just here in the US but in the UK and Ireland too. I'm especially delighted to see the Irish dumping your nutty cult and your sharia laws in the dustbin of history, something which should have been done long ago.

  • 125. FredDorner  |  May 31, 2015 at 9:47 am

    Sounds like the Irish have rejected you bigots and theocrats.

  • 126. FredDorner  |  May 31, 2015 at 10:20 am

    In fact Justice Kennedy found your desire to stigmatize and harm the children raised by gay couples to be quite vile. I can see why he's consistently ruled against you bigots.

  • 127. Shelagh  |  May 31, 2015 at 10:25 am

    So, if two widows seeking companionship applied for a marriage license, it should be granted otherwise it would be discrimatory? I presume sisters or half-sisters or step-sisters would not have the right to marry? Same with widowers, brothers, half-brothers and step-brothers? According to the constitution, that is.

  • 128. Shelagh  |  May 31, 2015 at 10:38 am

    No, you are quite wrong. Children are innocents and utterly blameless. Stigmatising children because of their parents' behaviour was always wrong, and always will be wrong. Sexual orientation isn't a factor. Children deserve to be treated with respect; they did not ask to be brought into the world.

  • 129. bayareajohn  |  May 31, 2015 at 10:47 am

    I thought it was clear enough… likening your behavior of attack on this blog to a jihadist suicide bomber.

  • 130. bayareajohn  |  May 31, 2015 at 10:52 am

    Yes, and we already explained that your explaining things your way is no more than your way. That's our way. Go away. There's a place where your bigot-based perspective will be appreciated. It's not here. You aren't adding anything to the discussion here but citing things you either don't understand or choose not to. You aren't taking away anything but the smug self satisfaction of stirring things up. That doesn't further any agenda beyond your own ego.

  • 131. Shelagh  |  May 31, 2015 at 10:54 am

    Mmm, right. Godwin's Law.

  • 132. bayareajohn  |  May 31, 2015 at 11:07 am

    You seem to have no idea what happens in the real world already. Many man-woman marriages are entered exclusively for benefits or avoidance of penalties, and always have been. Including arranged marriages, inter-Royalty "mergers" (you might learn something from GAME OF THRONES), and for a long time, cover marriages for LGBTs.

    When a man-woman couple marries (or divorces) for financial or any non–romantic reasons, you are fine with it… but shocked if same sex couples might do the same exact thing? That's bigotry, and you don't even know it.

    Consanguinity laws, intended to prevent inbreeding, vary by state, and will inevitably eventually realign with the realities of marriage equality. And these laws don't typically arise from constitutional reference.

  • 133. bayareajohn  |  May 31, 2015 at 11:14 am

    You somehow missed the Supreme Court of the US declaring DOMA unconstitutional? As many of us can attest, our Federal Government does indeed accept our IRS filings as a MARRIED couple. And Federal employees get spousal benefits for their same-sex spouses. You are simply wrong again.

    You repeatedly state things authoritatively that are objectively wrong, and then change the subject. Might you just eventually come to grips that you're not the authority here? We collectively know a LOT about our history and our legal passage. (No, you won't.)

  • 134. FredDorner  |  May 31, 2015 at 11:20 am

    "So, if two widows seeking companionship applied for a marriage license, it should be granted otherwise it would be discrimatory"

    Of course they should be granted a marriage license. It's strange that you think they should not, but I'm delighted to see your sharia laws come to an end.

  • 135. FredDorner  |  May 31, 2015 at 11:25 am

    And thus it's very curious that you want to stigmatize and harm families led by same-sex spouses, thus stigmatizing and harming any children they might raise and depriving them of the full protections of family law. As I noted, Justice Kennedy was quite disgusted by your vile intent. That's why he voted against you bigots.

  • 136. Shelagh  |  May 31, 2015 at 11:35 am

    … and step-sisters, and step-brothers, too?

  • 137. Shelagh  |  May 31, 2015 at 11:42 am

    I just made the point that children with unwed parents are not stigmatised. Marriage comes with no status in the twenty-first century, apart from Mr. and Mrs., that is. Ah, but same-sex parents are not Mr. and Mrs., so I supposed those titles will have to go.

  • 138. FredDorner  |  May 31, 2015 at 11:48 am

    I'm not sure the relevance of your comment since the same consanguinity laws would apply regardless of the gender of the spouses, but it is interesting that all along you've been recycling the exact same moronic arguments which the racists used 50 years ago against mixed-race marriage.

    No wonder you bigots are losing unanimously in court again.

  • 139. FredDorner  |  May 31, 2015 at 11:52 am

    And yet Justice Kennedy recognized that the denial of marriage and the 2nd-class treatment of gay couples and the children they raise does indeed stigmatize and harm them, as the DeBoer case in Michigan proves.

    I can see why Justice Kennedy was disgusted by bigots like you.

  • 140. RemC_Chicago  |  May 31, 2015 at 11:55 am

    Again and again, I wonder what motivates someone on the outside to devote considerable time and energy on gay issues. The more fervent and vehement the argumentative voice, the stronger my suspicions.

    How to respond to the absurdity of claims like "Marriage comes with no status in the twenty-first century, apart from Mr. and Mrs., that is. Ah, but same-sex parents are not Mr. and Mrs., so I supposed those titles will have to go." Baffled by the point of this doomsday sort of prophesying— surely anyone who makes it can't possibly be serious. What are previously designated Mr. and Mrs. now calling themselves in Spain, Portugal, Argentina, France, the Netherlands, Norway, Sweden, Brazil…? In New England and the West Coast? I haven't witnessed or heard of any negative impact here in Illinois. Am wiling to receive evidence to the contrary.

  • 141. Shelagh  |  May 31, 2015 at 12:00 pm

    Are consanguinity laws written into the constitution, or are they State Laws?

  • 142. bayareajohn  |  May 31, 2015 at 12:15 pm

    Maybe if you started by asking questions about what you don't know instead of spouting "how things are and always have been", you would not be such an irritant (though that's possibly your intent).

    Your ignorance of US laws and constitutions is understandable (if you are who your ID says you are) due to not being in the USA or a citizen. But that hasn't slowed your roll in telling us about us.

    There are no "laws written into" any constitution – and there are 51 constitutions in the USA. One for each state, and one federal. The constitution sets out the rules, guidelines, and intents. The LAWS are passed by legislative organizations of the states, and must comply with the local state AND federal constitutions.

    When issues arise (like interracial marriage, like SSM) that aren't specifically addressed in the constitution(s), the state or federal supreme court rules, rendering their judgement of what the constitution demands considering fairness, history, intent, and current realities, and either allows the law to stand, or modifies it to comply, or overrules the law, or sends the case back for more development, or elects not to judge the case due to standing or other technical issues.

    Consanguinity limits (like interracial marriage) aren't directly regulated in any constitutions I've reviewed. That's not many. But it's not the kind of thing constitutions are for. Constitutions are PRINCIPLES, the measuring stick for laws, and are intended to seldom be revised (it's hard!). Laws come and go with political and social trends. When they are overturned by the Supreme Court(s), it is because it is their judgement that they violate the letter or the PRINCIPLES of the constitution, and that the constitutional guarantees to the people cannot be met if the law stands.

    If you are learning now, consider that your learning should take place before your decreeing.

  • 143. Shelagh  |  May 31, 2015 at 2:21 pm

    According to Luke Boso, associate professor at Savannah Law School, it's that very idea of same-sex marriages being more egalitarian that keep some couples from changing their names. "A lot of LGB [lesbian, gay, and bisexual] couples reject the idea of changing their names because of the sense that the name-changing practice has roots in a gendered, sexist marriage institution in which women literally became their husband's legal property and lost their identity under the law," explains Boso, whose research focuses on law and personal identity, and who has decided against taking his husband's last name due to the publications he already has under his own.

    "Many LGB people see same-sex marriage as a way to transform the institution of marriage itself,” Boso continues, “moving it away from its property/ownership roots and more towards an egalitarian partnership model based on mutuality and a greater degree of independence."

    http://www.theatlantic.com/national/archive/2013/

  • 144. Shelagh  |  May 31, 2015 at 2:29 pm

    Thank you. That was very informative.

  • 145. bayareajohn  |  May 31, 2015 at 2:43 pm

    Sounds like a real plus for all marriages. Most countries have moved away from the concept of a wife being chattel. If contemplation of SSM has accelerated the recognition of and the reconsideration of the remaining symbols of that misogyny, good on us.

    But do you present this quote as a good thing or a bad thing? Are the words "transform the institution of marriage itself" so very scary to you that you can't see the horrid past of this institution, and how "how it has always been" has radically changed already for the better, long before the SSM aspects came into play?

  • 146. bayareajohn  |  May 31, 2015 at 3:02 pm

    Actually, I mean "suicide blogger" more to relate your behavior to how a cloaked intruder ventures into what they know to be hostile (to them) territory, then, knowing they have no chance to survive, nonetheless splatter the populace with unwelcome shrapnel in the name of some personal truth.

    And it's not a bad play on words either.
    Should I get a copyright?

  • 147. bayareajohn  |  May 31, 2015 at 3:05 pm

    Hi there, Hopalong! How's your new ID working out?

  • 148. Shelagh  |  May 31, 2015 at 3:24 pm

    The horrid past of this institution that you were denied for centuries can only get better now that the gay community has taken over? How did we manage without you for the past four thousand years?

  • 149. bayareajohn  |  May 31, 2015 at 3:28 pm

    Your self-righteous sarcasm aside, you again miss the point. The redefinition of marriage has been ongoing since the first definition, which certainly preceded the biblical perspective of wife-as-man's-possession. How we managed in the past was the gradual maturing of the human social mind. Something for you to try.

  • 150. Shelagh  |  May 31, 2015 at 3:29 pm

    LOL! Cloaked intruder! Someone has already posted a link to my facebook page. Look aound, you'll find it.

  • 151. bayareajohn  |  May 31, 2015 at 3:37 pm

    Actually, it was MATURITY that I was suggesting you try.

    The redefinition of Marriage has been going on for centuries, and will continue as long as there are people. With or without your permission.

  • 152. davepCA  |  May 31, 2015 at 4:07 pm

    Gay men (and gay women) are EQUAL CITIZENS and are therefore entitled to the EQUAL PROTECTION of all of our laws, the same as other citizens. Laws which were created for the specific purpose of targeting them and denying them equal legal treatment, and which fail to advance any legitimate goal for a law which would somehow justify allowing the HARM caused by the law to remain in effect, violate our Constitutional principles of justice, equal protection, and liberty. You cannot make laws simply for the purpose of treating gay people in a separate and inferior manner. It is discrimination for it's own sake, and is plainly unconstitutional. These are VERY basic concepts in our laws and our Constitution. You really are extremely uninformed about all of these issues.

  • 153. bayareajohn  |  May 31, 2015 at 4:12 pm

    Hey Hop, do you really think you'll make this new ID last much longer than the last one with that kind of contribution?

  • 154. davepCA  |  May 31, 2015 at 4:13 pm

    Shelagh, it is entirely normal for a state law to remain 'on the books' even after it has been ruled unconstitutional and completely unenforceable by the federal government. All that means is that the state hasn't bothered to go to the effort and expense to clean up the state's law books. Those old laws don't in any way mean that homosexuality is 'illegal' anywhere in the country. This issue of old unconstitutional law remaining 'on the books' is fairly common and affects practically every aspect of law, not just marriage laws. You can still find old obsolete and unenforceable laws on all kinds of topics. Again, you didn't know what you were talking about.

  • 155. Shelagh  |  May 31, 2015 at 4:17 pm

    True, marriage has undergone changes over the years. The rockbed of marriage remains the union of one woman and one man.

  • 156. davepCA  |  May 31, 2015 at 4:20 pm

    YES, Shelagh, that is correct! Children should not be needlessly harmed by unjust and pointlessly discriminatory laws which deny them all of the very important legal rights and legal protections that come from living in a family with LEGALLY MARRIED parents. And that is one of the many reasons that the courts have repeatedly ruled those laws which denied the protections of marriage to same sex couples – and their children – to be unjust needlessly harmful, and blatantly unconstitutional. These laws HARMED CHILDREN, and did so for NO LEGITIMATE REASON. So tell us – why do YOU think that it should be okay for laws to harm these children? What valid purpose would possibly be served by this denial of these important protections?

  • 157. davepCA  |  May 31, 2015 at 4:21 pm

    That does nothing to explain how a law which harms same sex couples by denying them the same rights and protections of legal marriage could possibly comply with the Constitution. You have no argument.

  • 158. davepCA  |  May 31, 2015 at 4:26 pm

    Stigmatizing or not, it causes the constant potential for terrible HARM to subject families (including children) to the denial of all of the important legal rights and legal protections of legal, civil marriage. And you have absolutely no argument that offers a justification for why that harm and denial of protections should be allowed to remain in effect. You haven't even BEGUN to actually address the actual topic of whether laws can be allowed to do that to citizens and still comply with the Constitution. But that's because the answer is clear – no, laws cannot do that. It's unconstitutional.

  • 159. Shelagh  |  May 31, 2015 at 4:32 pm

    Earlier this year, two men were arrested and held in prison under an old statute.
    http://thinkprogress.org/justice/2015/02/20/36247

  • 160. Shelagh  |  May 31, 2015 at 4:38 pm

    So why would an unmarried couple apply to adopt a child? Why would the authorities allow it? Why was a condition not put on married couples ensuring that they would always reside in a State that recognised the couples' marriages?

  • 161. davepCA  |  May 31, 2015 at 4:47 pm

    And it will be thrown out of court if that is the only charge against them. There are still valid laws against things like public acts and trespassing which apply equally to everyone, gay or straight, but if they were only charged with violating a law that has been ruled unconstitutional and therefore unenforceable, there is no case against them. Duh. THINK.

  • 162. Shelagh  |  May 31, 2015 at 4:48 pm

    Why is a homosexual man legally different to a heterosexual man? Marriage allows every man the right to marry a woman. It gives no man the right to marry a man. That's equality. Forget sexual orientation. If one man is allowed to marry one man then all men are allowed to marry a man. This is not a gay rights issue. It is the right of a man to marry a man, and the right of a woman to marry a woman.

  • 163. davepCA  |  May 31, 2015 at 4:50 pm

    That can obviously happen when a couple wish to raise a family and when they are prevented from legally marrying by pointlessly discriminatory laws. The problem is the discriminatory law, not the couple's desire to raise a child. And of course lots of same sex couples are raising the biological child of one of the parents from a previous relationship and the other parent is a step parent, just like millions of opposite sex couples.

    And really? You think the government should mandate where people are allowed to live? What happens when their employer transfers them? What happens when they need to move to another state to care for an aging parent? No, Shelagh, the state CANNOT restrict a citizen's free movement to any state unless it has a VERY compelling reason to do so, and doing so simply to lend legitimacy to some pointless discrimination in some state's law that has not yet been overturned certainly does not meet that requirement. Again, the problem is in the discriminatory law, not in anything that these citizens are doing in living out their lives as free citizens.

    And again, you fail to address the point. What valid purpose would possibly be served by denying these couples and the children they are raising all of the legal protections of being a legally married couple? Why would you want to do that to these children? What possible benefit could this provide?

  • 164. davepCA  |  May 31, 2015 at 5:04 pm

    You are relying on a specious argument. In 36 of the 50 states right now, marriage laws already allow every man and every woman to marry either a man or a woman, they are not restricted to marrying only someone of the opposite sex. Because doing so amounts to a pointless restriction in law which serves no purpose other than to target and harm only those people who wish to marry someone of the same sex, meaning it only serves to target and harm gay people for no legitimate reason. The right to marry includes the right to marry the consenting person you choose to marry, and the state may not interfere with this fundamental right of a citizen's choices regarding their life without a legitimate reason for doing so, and there is no such legitimate reason for denying the rights and protections of marriage to same sex couples. Why are these basic concepts so difficult for you to comprehend?

  • 165. bayareajohn  |  May 31, 2015 at 6:05 pm

    "RemainED."

    If you are in fact from the UK, you can also relate to how the rockbed of social and governmental order was ROYALTY. Inherited relationship with the gods. How's that working for you these days?

  • 166. bayareajohn  |  May 31, 2015 at 6:14 pm

    You cite that story as though it supports something other than proving that some cops are neanderthal. I think we knew that.

    Your endlessly shifting "point" is typical of trolls. What is in this for you, really, are you being paid to do this? You would not be the first.

  • 167. RemC_Chicago  |  May 31, 2015 at 9:49 pm

    Dang, John of the Bay Area. Accidentally hit down vote instead of up. Startling news that we've taken over marriage. I had no idea. I'll put in a call to my pastor in the morning and inform him that all marriages at our church from here on out have to go through me. OUCH. I rolled my eyes so fast and hard that I pulled a muscle.

  • 168. Shelagh  |  June 1, 2015 at 2:54 am

    Allowing all men the right to marry a man and all women the right to marry a woman does not dignify same-sex marriage; it reduces marriage to a legal contract between two adults, and degrades the Institution of Marriage, which is held in very low regard by the activists fighting for the right to marry.

  • 169. DeadHead  |  June 1, 2015 at 4:07 am

    It must be really tiring to spend so much energy trolling this board and considering the time you have put into into all the responses it appears you don't have much of a life.

  • 170. RnL2008  |  June 1, 2015 at 5:48 am

    Well seeing as there is NO such thing as "GAY" or "SAME-SEX" Marriage, you've already wasted your time making this comment, but seeing as you did, I'm going to explain why STUPID should hurt.

    Marriage is a FUNDAMENTAL right and the State HASN'T shown a compelling interest as to why it is okay to place SPECIFIC gender restrictions on that right. That is why the bans preventing Gays and Lesbians from marrying the person of their CHOOSING have been found UNCONSTITUTIONAL.

    Marriage is ALREADY a contract between two consenting adults and what truly degrades marriage is DIVORCE!

    ACTUALLY the activist fighting for their right to marry are making the Institution of marriage strong again……straights have been making a mockery of marriage for quite some time now. NO ONE should take the Institution of marriage lightly!

  • 171. RnL2008  |  June 1, 2015 at 5:53 am

    Wow, are you a SPECIAL sort of STUPID? NOT all married women take their husband's name, sometimes the woman is an established Professional and will opt to keep her maiden name or they will hyphen it. This allows the person to use the maiden name, the married name or a combination of both.

  • 172. RnL2008  |  June 1, 2015 at 6:06 am

    You do know that the first Same-Sex male couple to marry per say took place around 600 B.C:
    A Kiev art museum contains a curious icon from St. Catherine’s monastery on Mt. Sinai. It shows two robed Christian saints. Between them is a traditional Roman pronubus (best man) overseeing what in a standard Roman icon would be the wedding of a husband and wife. In the icon, Christ is the pronubus. Only one thing is unusual. The “husband and wife” are in fact two men. – See more at: http://disinfo.com/2012/05/when-gay-marriage-was-

    Evidence exists that same-sex marriages were tolerated in parts of Mesopotamia and ancient Egypt. Artifacts from Egypt, for example, show that same-sex relationships not only existed, but the discovery of a pharaonic tomb for such a couple shows their union was recognized by the kingdom. http://www.randomhistory.com/history-of-gay-marri

  • 173. Shelagh  |  June 1, 2015 at 6:10 am

    As far as the law is concerned, there is no such thing as gay; there are men and there are women. Same-sex marriage according to the law is the union of one man and one man or one woman and one woman.

    In the UK, single-sex marriages are recognised, but they are not equal to opposite-sex marriages. Same-sex couples can divorce, but not on the grounds of adultery; sex between same-sex couples is not recognised in UK divorce courts.

    In 2013, this memo written by a gay man was published in Hansard. In it, he wrote:

    "I welcome the fact that the Government intends to extend marriage to same sex couples. However, I was very disappointed to note that the Marriage (Same Sex Couples) Bill 2013 contains provisions that mean that same sex couples will be prevented from relying on adultery as a ground for divorce, or non- consummation as a ground for annulment. By excluding only same sex couples from these provisions the Government undermines its commitment to truly equal marriage."

    The bottom line: he wanted homosexual sex to be on a par with heterosexual sex, so that homosexuals could be seen to consummate a marriage in as acceptable a way as heterosexual couples. The Government disagreed and added a clause that excluded homosexuals from the annulment of marriages that were not consummated. The right to annulment was not the real basis of his complaint; the Government's refusal to accept that homosexual sex and heterosexual sex are the same was his main objection.

    http://www.publications.parliament.uk/…/memo/m0…

  • 174. TDGrove  |  June 1, 2015 at 6:20 am

    In the US, there is no such thing as same-sex marriage. That is what Rose was trying to point out to you. All of the existing marriages between couples of the same gender are exactly the same in every way as opposite gender marriages, in the eye of the law. That is really the whole point.

    Fortunately for us, we no longer are bound by the laws of the UK. So the rest of your comment is not relevant to a discussion of US marriage laws. The first paragraph, however, is wrong because the states don't treat them differently. There are probably still some laws that haven't been updated in some states regarding divorce, adoption, etc. but that will get fixed over time as those laws are challenged.

  • 175. TDGrove  |  June 1, 2015 at 6:29 am

    Exactly, Rose. My wife didn't take my name, which didn't bother me the slightest bit. As much as anything, we didn't want to be bothered with the paperwork. I even know of a couple where the man took the wife's last name. Yet another example where tradition isn't a good enough reason to keep doing things a particular way. The courts have said the same thing over and over in these marriage equality cases.

  • 176. Shelagh  |  June 1, 2015 at 6:41 am

    Where in the American constitution does it say that marriage is a fundamental right?

  • 177. wes228  |  June 1, 2015 at 6:45 am

    The 14th Amendment guarantees everyone a right to "liberty" that cannot be taken away without due process of law. The Supreme Court has held, multiple times, that a right to marry is implicit in this right to liberty. "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause." (Cleveland Board of Education v. LaFleur)

  • 178. Shelagh  |  June 1, 2015 at 6:55 am

    There is no precedence to say that, which is why the constitution was written that way. The only way to preserve marriage, as it was at the time of writing, was to leave out any reference to marriage. You cannot amend something that does not exist. The founding fathers wanted it that way, and who is the Supreme Court to put itself above the founding fathers?

  • 179. wes228  |  June 1, 2015 at 7:01 am

    I just cited you precedence to say that… :-/ 14th Amendment was ratified long after the Founding Fathers have died. In any event, "the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights" (Harper v. Virginia Board of Elections).

    There are many instances of the Supreme Court ruling that a certain activity is protected by the Constitution, despite historical approbation of that activity. For example, same-sex intimacy (Lawrence v. Texas) or the use of contraception (Griswold v. Connecticut).

    The Constitution protects a general notion of personal dignity and autonomy that needs to be applied to the "evolving standards of decency that mark the progress of a maturing society." (Trop v. Dulles)

  • 180. Shelagh  |  June 1, 2015 at 7:09 am

    … but it says nothing about marriage.

  • 181. wes228  |  June 1, 2015 at 7:24 am

    The Supreme Court has held that there is a constitutional right to marry, as they re-iterated in the LaFleur decision I quoted. The Supreme Court has before struck down state laws as violating the constitutional right to marry (e.g. Zablocki v. Redhail, Turner v. Safley).

  • 182. RemC_Chicago  |  June 1, 2015 at 7:28 am

    THE ORIGINAL ALSO DOESN'T SAY ANYTHING ABOUT SLAVERY OR THE RIGHTS OF WOMEN, EITHER!!!!! FOR THE LOVE OF GOD, IF YOU'RE GOING TO PRESUME TO LECTURE US ABOUT HOW OUR SYSTEM OF GOVERNMENT WORKS, READ UP ABOUT IT FIRST.

    You're a writer. You have no business being so inept in your inability to read. Don't go by editorials and comments. Learn about the facts. Read any of the rulings released in the last two years eliminating marriage bans. Read about the evolution of modern marriage through Zablocki, Turner, Loving, Griswold, I'm utterly mystified as to why you should care so much, given the absolute irrationality of your arguments, none of which are the arguments of serious people.

    The wisest advice regarding trolls is to ignore them, but even a lowly mosquito deserves a good swipe when it's being so maliciously annoying.

  • 183. Eric  |  June 1, 2015 at 8:07 am

    The constitution places limits on government, not the people. Your question should be, where does the Constitution authorize government to restrict marriage?

    See the Ninth and Tenth Amendments for your answer.

  • 184. Eric  |  June 1, 2015 at 8:10 am

    For someone so concerned with what the Constitution reads, could you point out where the Constitution gives deference to the founding fathers over SCOTUS?

  • 185. Shelagh  |  June 1, 2015 at 8:24 am

    Thank you. What people want and what laws governments are allowed to enforce seem to be very much at odds. Homosexuals see themselves as victims because they cannot form legal marriages that give them the same rights as heterosexuals. This brings the Institution of Marriage into question. If it didn't exist, how would society organise itself?

    If a group of like-minded people gathered together and said that they wanted to set up a contract that formed a binding relationship between a man and a woman, and only a man and a woman, would the state be able to sanction this, or would it be unconstitutional?

  • 186. Shelagh  |  June 1, 2015 at 8:40 am

    Our founders clearly revealed their central purpose was defending Americans’ rights and liberties against encroachment, particularly by an overbearing national government. The Supreme Court’s major purpose is preventing such overstepping. That requires following the Constitution as the highest law of the land in fact as well as on paper …

    Constitution first, Supreme Court second.

  • 187. TDGrove  |  June 1, 2015 at 8:49 am

    Quoting some random professor (without attribution) who happens to agree with you is a long way from evidence. Gary Galles is not an authority that anyone is going to pay particular attention to. He's just an economics professor as well, not even a constitutional scholar.

  • 188. wes228  |  June 1, 2015 at 9:06 am

    The state cannot sanction any position that homosexuals are unequal to heterosexuals. Any legal recognition afforded to a domestic relation between two people of the opposite sex must also be made available to two people of the same sex.

  • 189. Shelagh  |  June 1, 2015 at 9:15 am

    The hypothesis did not exclude homosexuals; they would exclude themselves by choice.

  • 190. wes228  |  June 1, 2015 at 9:25 am

    I don't understand the hypothesis. A group of people can get together and exclude homosexuals if they like. They can require the group's members to pair off in heterosexual pairings. They can have their members make legal agreements among themselves.

    What they can't do is control the lives of people outside their group.

    So I don't understand how this "hypothesis" is relevant to the legal issues presented by Obergefell. In the present case, the state registers marriage, bestowing certain legal rights and responsibilities inherent in the governmental recognition of that relationship. The state prohibits those who enter into relationships with members of the same sex, and by extension, homosexuals as people ("Our decisions have declined to distinguish between status and conduct in this context." Christian Legal Society v. Martinez) from getting married

    The state lacks a rational basis for making this distinction on Equal Protection grounds (religion, tradition, and moral approbation of homosexuality not being rational bases for legislation), least of all a compelling government interest in depriving an entire class of people of their constitutional right to marry based on their inherent status as homosexual. The state takes what is supposed to be a profoundly personal choice, and instead draws up a list 3.5 billion names long of people one is prohibited from marrying, which not coincidentally contains the name of every person a homosexual would want to marry. This puts far too much control in the hands of the government than what the Constitution allows in this domain, which is why the Supreme Court is expected to rule in the gay couples' favor.

  • 191. weaverbear  |  June 1, 2015 at 9:32 am

    Shelagh- your tone is both condescending and offensive to me. For the bulk of us here this is a real life issue. Sexuality is immutable. Making a life with a partner of the opposite gender in not an option for most of us. Homosexuality was removed from the DSM II's list of mental illnesses 43 years ago. Our partnerings are as normal for us as opposite sex partnerships are for you.

    You talked about marriage of one man & one woman being about protections for the people inside the union. The story is the same for us. I've had to face & fight the societal injustice directly. 17 years into my marriage my husband had a heart attack followed by a quintuple bypass. Without a durable power of attorney for health care I would have had no ability to speak for him when he could not speak for himself. No wife would have had to face that. Without it I was a legal stranger.

    I am far from the only one here who's had to face that reality.

    Your callous disregard of what our community faces and our desire for the equality that our American constitution was written to provide and protect is offensive to most of this readership. Thank God your side is on the losing end of the argument here. It cannot be soon enough.

  • 192. davepCA  |  June 1, 2015 at 10:00 am

    You said: "What people want and what laws governments are allowed to enforce seem very much at odds" …. Well, yes, Shelagh. That is always the view held by those people whose personal prejudices favor an unjust and discriminatory law which targets other people they wish to see targeted. This conflict between some peoples personal preferences and constitutional law happens every time a pointlessly vindictive law gets ruled unconstitutional. But that is THEIR problem. The Constitution does not tolerate laws that do nothing but appease the prejudices of one group by disadvantaging some other group, simply because the first group wants to do so, and not for the advancement of any separate, legitimate and beneficial purpose. Appeasing your prejudices is not a valid purpose for a law. Got it?

  • 193. bayareajohn  |  June 1, 2015 at 10:11 am

    Correction: The Shelagh ID was used last – before 2 days ago – SIX YEARS ago, and briefly then. I think "our" Shelah is an imposter, a fraud, here only to dominate our attention. I'm done with "her".

  • 194. 1grod  |  June 1, 2015 at 10:19 am

    Shelagh: Only a person who has blinders on, perhaps self imposed, would make statements like no longer any status to being married or stigma in being a single parent. Remember Nicole and Pam Yorksmith who were married in 2008 in California. Their children are Grayden, 4, and Orion 1. A trip to the emergency room with their infant son made the importance of marriage real. The hospital had to call his birth mother "to get permission to treat my child." What if Orion’s birth mother could not be reached. No stigma to have to beg from others for care of your loved one. Have you taken the time to learn of how heroic are nurses April DeBoer and Jayne Rowse. Walk in their shoes for a day and we’ll see if you appreciate that they have reason to believe marriage is a difference that would make a difference.

  • 195. Shelagh  |  June 1, 2015 at 10:19 am

    You offer your personal situation as grounds for allowing same-sex couples to marry, yet stubbornly reject that marriage was never meant to be a ceremony other than that for the union of one man and one woman. Yes, fight for equal rights, fight for a civil partnership to be recognised in law with equal benefits to those afforded married couples. The Institution of Marriage was set up for the union of a man and a woman. Nothing you say will change that.

    I hope your partner has fully recovered and is enjojing good health and continues to do so.

  • 196. wes228  |  June 1, 2015 at 10:29 am

    These truisms are just simply not legal arguments. "Marriage is only between a man and a woman because it is only between a man and a woman" is not a legally valid argument. You are free to hold whatever personal philosophies on marriage that you want. The government, however, has other obligations.

  • 197. davepCA  |  June 1, 2015 at 10:29 am

    You are still offering nothing more than the long-debunked 'tradition' fallacy, and that does not create an argument which explains how laws that deny the protections of legal marriage to same sex couples could possibly comply with the mandates of the Constitution. You are reducing your participation here to mere 'trolling'.

    So get on topic, and address the real issue instead of dancing around it and avoiding it.

    All laws must serve a legitimate beneficial purpose. They cannot exist simply for the purpose of harming and disadvantaging one group of citizens relative to others by subjecting them to a harmful denial of rights and legal protections simply because others may want to do so. That is not a valid purpose for a law.

    So – what legitimate beneficial goal would be advanced by denying the protections of legal marriage to families headed by same sex couples? What "states interest" would be advanced by this harmful denial of Equal Protection? NAME IT.

    And good luck, because the opposing lawyers tasked with defending those laws banning same sex marriage were given every opportunity to answer that simple question in over fifty state and federal court cases and they never came up with anything, which is why those cases resulted in the marriage bans being ruled unconstitutional. Your move.

  • 198. 1grod  |  June 1, 2015 at 10:30 am

    Shelagh: After April 2 1981, it became illegal in Quebec to take the name of your partner.
    Those who were already married -say 50 years of using your partner's name had to revert to their maiden name. If you are moving to Quebec from the other provinces, or the States, you must revert to your maiden name. Imagine the feral government will accept your married name but that province will not. Sounds like a number of non-marriage equality states. Too much government intrusion in the lives of ordinary folk.

  • 199. guitaristbl  |  June 1, 2015 at 10:32 am

    Why do people continue to argue with this troll ? It only spoils the mood for the upcoming decision of the supreme court really..It has been slammed down with facts again and again, I quoted Posner who very eloquently puts it to its position and it still lurks around. Let it be. Marriage equality will come in the remaining 13-14 states, as it is the current reality in 20 countries and that number will only increase.
    Let it argue about 2nd class contracts such as civil unions, let it argue historically innacurate facts about marriage, let it argue the heavily debunked argument that tradition only is good enough to deny people their rights.

    No serious person cares ! Let it go..

  • 200. RemC_Chicago  |  June 1, 2015 at 10:38 am

    I pledge not to re-engage.

  • 201. wes228  |  June 1, 2015 at 10:49 am

    To quote Archer (one of my favorite TV shows)…"Save it for four-ninths of the Supreme Court!"

  • 202. Shelagh  |  June 1, 2015 at 10:50 am

    That is an assumption on your part. You are saying that the Institution of Marriage cannot be protected because it is discriminatory, and therefore the Institution itself must be changed. You are also saying that it is wrong to want to protect the Institution of Marriage. Yet you know only too well that two men alone cannot produce a child, neither can two women, the purpose for which marriage was established.

    As a defence against this argument, infertility is thrown out as somehow vindicating the sterility of a homosexual relationship. This is a very poor argument since infertile couples often suffer numerous miscarriages and still born births, something a homosexual couple would never have to suffer. Childless couples are not synonymous with same sex couples; they are oceans apart.

  • 203. mu2  |  June 1, 2015 at 10:58 am

    And for what purpose was the institution of slavery set up? Go. The. Fuck. Away. you dirty crunt.

  • 204. davepCA  |  June 1, 2015 at 10:59 am

    You failed to even attempt to address the question. Bumper-sticker rhetoric about 'protecting marriage' is no argument that explains how denying the protections of legal marriage to same sex couples serves a legitimate beneficial purpose and could possibly survive scrutiny for constitutional compliance. So I'll ask again, and we're now going to play a game of "internet hangman". The rules are: each time you fail to address the actual questions posed and the actual topic of the debate, we add a letter, starting with "T". When it spells "T-R-O-L-L" you lose.

    We'll ignore the fact that your previous fifty or so comments have already meant that you would have lost the game long before you started, and we'll begin anew.

    Q: All laws must serve a legitimate beneficial purpose. They cannot exist simply for the purpose of harming and disadvantaging one group of citizens relative to others by subjecting them to a harmful denial of rights and legal protections simply because others may want to do so. That is not a valid purpose for a law.

    So – what legitimate beneficial goal would be advanced by denying the protections of legal marriage to families headed by same sex couples? What "states interest" would be advanced by this harmful denial of Equal Protection? NAME IT.

  • 205. SethInMaryland  |  June 1, 2015 at 11:05 am

    ikr, just ignore the troll and wait for that decision , I do hope though that scottie will be back soon, we need him to take care of this troll and make a new tread, this tread is getting really long

  • 206. wes228  |  June 1, 2015 at 11:05 am

    No, it's the "Institution of Slavery"…proper noun. All of these institutions are physical buildings, and the gay is bad for the infrastructure.

  • 207. davepCA  |  June 1, 2015 at 11:07 am

    …. and by the way:
    1. Yes, civil laws which regulate civil marriage SHOULD be changed, and ARE changed, every time it is revealed that they are needlessly harmful and unconstitutional, just like every other civil law. This has already happened many times, including some significant change to these laws which specifically regulate civil marriage.
    2. No, YOU are making the assumption and the unfounded conclusion that there is anything about a same sex couple having equal access to legal marriage which marriage needs to be "protected" from, and that is simply not correct. Now that same sex couples are legally marrying, legal marriage continues to serve all the same purpose that it did before and continues to provide the same rights, protections, legal responsibilities, and incentives that it did before. Your view about 'protecting' marriage simply reveals your personal anti-gay prejudice, and nothing more.
    3. Nope, the desire or ability to procreate has never been an eligibility test for access to legal marriage for any couple, same or opposite sex. It's irrelevant to the legal question. The fact that some couples WANT to procreate and cannot does not have anything to do with this fact. You have no argument. Answer the question.

  • 208. Shelagh  |  June 1, 2015 at 11:37 am

    Following your reasoning, any adult should be allowed to marry any other adult unless the State can prove that it is not in the State's interest. Which means that no individual or institution should be protected, under any circumstances, because it might infringe upon other people's rights. Well, if that's the society you want, go for it, and good luck!

  • 209. weaverbear  |  June 1, 2015 at 11:38 am

    Thank you, my husband is well. We're now 17 years past that event. We've been partnered for 34 years and legally married for the last 7. Our daughter is turning 22.

    As for the terms I use, I generally refer to civil marriage. I have no desire to see any religious group, however misguided I might think them to be, forced to conduct a union within their religious body that does not jive with their denomination's teachings. However, I am just as fervently opposed to their attempt to deny me and those of my community equal protections under civil law. That's what this is about.

    As for heterosexual monogamists' ownership of the word marriage, forgive me my language, but that's simple BS. If you like, call it religious marriage if you need to differentiate it from civil. Marriage remains a societal construct and societies have chosen to construct their definitions to suit their practices. There are societies that have chosen to permit polygamous and at times even polyandrous marriages. Not my cup of tea, nor I suspect yours, but some societies have done so for thousands of years. Further there have also been societies that have recognized and supported same sex partnerings.

    In the US there are something like 1700 rights and responsibilities that come along with the word marriage. It is precisely why we need to use that word for our relationships, and codify them as such, if we are to move forward with equality within our society. I, nor the remainder of the readership of this site are not asking for any special rights – only the recognition of our own equality. The experience of Jim Crow laws in this country showed us that "separate, but equal" is rarely, if ever, anything other than separate.

    I had to deal with some of the older members of my own family asking "why to you have to call it marriage?" No longer do they ask that question. If you look at the treatment our unions have had even after their codification, being disrespected and treated as invalid, as Ruth Bader Ginsburg remarked in the hearings in the DOMA case two years ago, alleging "skim milk marriages". Because she had a wife and not a husband, Edith Windsor was hit with an inheritance tax of 1/3 of a million dollars on her wife's half of their joint estate, a levee not put on any heterosexual widow or widower. Where is the fairness or equal treatment in that? Both Mom and my mother-in-law who are contemporaries of Edith Windsor, get it. You call it what it is – a marriage, and you treat it accordingly.

    I am not for using or constructing new words to describe our relationships when ones that people understand already exist. He is NOT my "life partner", "domestic partner", "co-habitant", or "partner"; he is my husband (or spouse if the use of the gendered word makes you too uncomfortable). Anything less is an attempt to negate our relationship. Further, I do not have a same sex marriage. I have a marriage. The members within it happen to be of the same gender. The moment you need to qualify it with a descriptor, you are saying is is something other than a marriage, and that per se is an affront to equality.

  • 210. Shelagh  |  June 1, 2015 at 11:39 am

    You are too kind.

  • 211. Elihu_Bystander  |  June 1, 2015 at 12:22 pm

    I cannot be considered an objective observer on this site, because I am after all a gay man. If one simply applies the rules of logic 101 to both sides of the discussion it is clear that the members of this site have won the argument.

    I'm very proud of the well informed and documented comments by our community. I actually believe something very good came out of our interaction with the troll. Maybe he/she was rehearsing for the up and coming debate tomorrow? Thank you EOTers for your heart rending conversations.

  • 212. davepCA  |  June 1, 2015 at 12:25 pm

    Okay, that's a " T " for you. You're not off to a good start with the game.

    Kindly get on topic and answer the question – what valid purpose for a law would be served, and what 'states interest' would be advanced, by a law that does nothing other than deny same sex couples equal access to the legal rights and legal protections of legal, civil marriage? Name it.

  • 213. RnL2008  |  June 1, 2015 at 12:31 pm

    The UNTIED STATES SUPREME COURT has ruled marriage is a FUNDAMENTAL RIGHT and they have DONE so 14 times.

  • 214. davepCA  |  June 1, 2015 at 12:39 pm

    Nope, you're not following the language. The state is not required to prove that something is NOT a states interest. That would be the plaintiffs job (the same sex couples who are harmed by the law and are arguing that it violates the Constitution). Once the plaintiffs show that they are harmed, and argue that the harmful law fails to serve a legitimate purpose, the state has to show that the harmful denial of equal treatment IS advancing a states interest, making it necessary. And it has repeatedly failed to do so.

    The state CAN restrict marriage eligibility, but ONLY when there is a valid reason to do so which actually advances a legitimate goal for a law and advances a legitimate 'states interest'.

    Your second sentence is irrational and fails to withstand basic scrutiny for logic because it is once again based on the false notion that marriage is in need of being "protected" from a same sex couple simply participating in the legal institution of civil marriage, when that participation does nothing which would require any such 'protection' to be implemented.

    Most laws treat everyone equally (nobody is allowed to shoplift, etc.) It's far less common for a law to target particular groups of citizens and subject them to unequal legal treatment, When a law does that, it gets tested to see if there really is any reason for this unequal treatment. If there is, the law remains in effect. If there isn't, and the law is just harmful and unnecessary discrimination, it gets overturned. Pretty basic stuff.

    You CAN make a law that singles out blind people and denies them access to a drivers license, because even though it could be argued that it subjects them to different legal treatment, it serves the important "states interest" in protecting public safety. You can NOT make a law that denies a drivers license to left-handed people or red-haired people because the effect of the law is not rationally related to any legitimate goal for a law.

    And laws that denied legal marriage to same sex couples failed basic tests for constitutional compliance for the same reason. They harmed a targeted group and, in the process, didn't accomplish anything that a law ought to be doing.

  • 215. RnL2008  |  June 1, 2015 at 12:40 pm

    First off……we DON'T really give a DAMN about the laws in the UK, they are IRRELEVANT to the laws of this Country and have been for over 200 plus years.

    Secondly….there is NO "GAY" or "SAME-SEX" Marriage. The State issues the EXACT same Marriage license to either an opposite-sex couple or a Same-Sex couple!

    Thirdly……again, you cite a man's personal opinion that is again IRRELEVANT. If someone is married and they spouse steps out, trust me those laws that claim ADULTERY is ONLY this way, they will be challenged and changed. Adultery in my opinion can happen REGARDLESS of how it is defined in the law.

    The true meaning of CONSUMMATING a marriage is a mixing of bodily fluids……it is again IRRELEVANT to whether or NOT one is still legally married……older couples marry and some CAN'T have sex, in the eyes of the law, they are still married!!!

  • 216. RnL2008  |  June 1, 2015 at 12:44 pm

    We have a little know thing known as SEPARATE but Equal is NOT equal, therefore Civil Unions and or Domestic Partnerships by their very name IMPLY that one is NOT the same as Marriage……and besides that, that boat has long since sailed.

    I am a married woman, my wife is also a married woman to me……..therefore your comment is as IRRELEVANT as you are!

  • 217. Eric  |  June 1, 2015 at 1:05 pm

    I'm always amazed that those that claim to take the Bible literally, seem to have such trouble with reading comprehension.

  • 218. Shelagh  |  June 1, 2015 at 1:15 pm

    Who takes the bible literally? I most certainly don't.

  • 219. davepCA  |  June 1, 2015 at 1:22 pm

    Your score is now

    " T "
    " R "

    Because you once again fail to address the topic. Kindly attempt to do so by answering the simple question which is at the center of all of the 50 + court cases that have examined this issue in the U.S. Courts in recent years:

    Q: All laws must serve a legitimate beneficial purpose. They cannot exist simply for the purpose of harming and disadvantaging one group of citizens relative to others by subjecting them to a harmful denial of rights and legal protections simply because others may want to do so. That is not a valid purpose for a law.

    So – what legitimate beneficial goal would be advanced by denying the protections of legal marriage to families headed by same sex couples? What "states interest" would be advanced by this harmful denial of Equal Protection? NAME IT.

    Tick tock, troll.

  • 220. Shelagh  |  June 1, 2015 at 2:03 pm

    When Thomas Jefferson wrote in the Declaration of Independence that "all men are created equal," he did not mean social or economic egalitarianism. Rather he and others of the Founding generation believed that society by its nature could never be socially or economically homogeneous because men differ in their abilities and virtues. They did not want to level society, but rather give to each individual the opportunity to make the most of his abilities. In order for this opportunity to exist, all men (and at the time they were only concerned with men) had to stand before the law on an equal footing. There could not be one law for the rich and another for the poor, although the Founders ignored the fact that there was clearly one law for white people and another for slaves. A generation later, when Andrew Jackson's Democrats talked about equality, they meant the same thing — equality of opportunity based on equal treatment by the law.

    http://www.ait.org.tw/infousa/zhtw/DOCS/RightsPeo

    So, all men, rich or poor, had the right to take a wife. This was the original right. How was this right changed?

  • 221. RemC_Chicago  |  June 1, 2015 at 2:09 pm

    Excellent.

  • 222. RemC_Chicago  |  June 1, 2015 at 2:12 pm

    Dave, thank you for your tireless persistence and for your emphasis on facts & logic. Bravo to you.

  • 223. Shelagh  |  June 1, 2015 at 2:17 pm

    Shouldn't you be thanking me for giving everyone the chance to shine so brightly?

  • 224. davepCA  |  June 1, 2015 at 2:26 pm

    It has changed because it is now clearly understood, with abundant supporting documentation in the judicial record in over fifty state and federal cases, that the right to marry includes the right to marry the consenting person whom you choose to marry, and that this is every bit as true for gay citizens as it is for straight citizens because they are EQUAL CITIZENS, fully entitled to have every right equally recognized. And arbitrarily denying them this equal treatment subverts the exact same principles outlined in the very comment you just referenced – it needlessly interferes with their liberty as autonomous independent citizens by preventing them from exercising their rights to make fundamental personal choices to marry the person they wish to marry, and does so for no legitimate reason. It also causes these couples to be exposed to the constant potential for severe HARM due to this denial of protections, and does so unequally since opposite sex couples are unaffected by the law which bans marriage for same sex couples, and does so for no valid reason. Got it?

    Even within that comment, it plainly shows how the right changed from originally only being recognized for MEN to also being recognized for WOMEN, and that changed for the same reason – it became understood and recognized, with abundant legal precedent, that women are indeed equal citizens and are entitled to recognition of all of the same rights as others. Now the same has happened for citizens who are gay. Laws can't single them out and deny them the same rights and protections simply on that basis. It's arbitrary, harmful, pointless, and therefore unconstitutional.

  • 225. davepCA  |  June 1, 2015 at 2:29 pm

    Your score is now:
    " T "
    " R "
    " O "

    Because you again fail to address the topic of the constitutional compliance of civil laws which deny same sex couples equal access to all of the rights and legal protections of a legal "Certificate of Civil Marriage". So tell us – what legitimate beneficial goal is served, and what "states interest" is advanced, by a law that targets and harms same sex couples by denying them these rights and legal protections? NAME IT.

    Tick tock, troll.

  • 226. VIRick  |  June 1, 2015 at 2:30 pm

    Guitar, indeed, the troll selected the same thread for her endless diatribe where, higher up, before her untimely presence, I had posted this peculiarly off-the-wall missive:

    NEBRASKA: Sane (???) Woman Files Federal Lawsuit Against All Homosexuals

    How apropos! The two are in the same league, and at about the same level of competency.

  • 227. VIRick  |  June 1, 2015 at 2:38 pm

    Rose, we need to give the troll one of those hats with your favorite slogan on it.

  • 228. RnL2008  |  June 1, 2015 at 2:40 pm

    I saw on Amazon or someplace that has a hat with that saying on it and I agree…..lol!!!

  • 229. davepCA  |  June 1, 2015 at 2:43 pm

    You're welcome. I suppose it's just for the benefit of anyone new to the site and new to the issue who is actually interested in what the legal issue really is and how the process of determining constitutional compliance of these laws actually works. I'm certainly not expecting a silly troll with such abject and willful ignorance to actually look at the facts and the legal reasoning with an open mind and actually learn something.

  • 230. VIRick  |  June 1, 2015 at 2:47 pm

    Rose, this is fun. Both you and I (and many others here) know what your favorite slogan happens to be, but the troll does not,– or they wouldn't continue to stick around.

  • 231. davepCA  |  June 1, 2015 at 2:49 pm

    Repeated trollish comments from our visitor could just receive a reply from all of saying "hat's off to ya!"

  • 232. RnL2008  |  June 1, 2015 at 2:49 pm

    Exactly…..but we'll just keep that our little secret……lol!!!

  • 233. Shelagh  |  June 1, 2015 at 2:54 pm

    Okay, so you are saying that a man's right to take a wife now means that a wife can be a man, whereas, originally, a wife meant a woman. The law can be so confusing to us dimwits.

  • 234. VIRick  |  June 1, 2015 at 2:57 pm

    Precisely. Hats off to ya, Shelagh! Enjoy the rest of your life.

  • 235. RnL2008  |  June 1, 2015 at 3:00 pm

    Hugs to you my friend<3

  • 236. VIRick  |  June 1, 2015 at 3:01 pm

    No, we're not saying anything. We're just shutting you down, dimwit or not.

  • 237. davepCA  |  June 1, 2015 at 3:04 pm

    Nope, the "right to marry" is now recognized equally for both straight citizens (who would choose to marry someone of the opposite sex) and gay citizens (who would choose to marry someone of the same sex).

    Your comment was merely pointless wordsmithing ("right to take a wife") and only reflects poorly on you and your inability to construct a rational, meaningful argument. For that, you now have:

    " T "
    " R "
    " O "
    " L "

    So you're losing this simple little game that is intended to steer participation onto the actual topic of the debate, and you are doing so rather quickly.

    So once again:

    Q: All laws must serve a legitimate beneficial purpose. They cannot exist simply for the purpose of harming and disadvantaging one group of citizens relative to others by subjecting them to a harmful denial of rights and legal protections simply because others may want to do so. That is not a valid purpose for a law.

    So – what legitimate beneficial goal would be advanced by denying the protections of legal marriage to families headed by same sex couples? What "states interest" would be advanced by this harmful denial of Equal Protection? NAME IT.

  • 238. VIRick  |  June 1, 2015 at 3:09 pm

    "…. crunt."

    Mu2, in lower-class Caribbean lingo, it's properly referred to as a "skunt."

  • 239. davepCA  |  June 1, 2015 at 3:12 pm

    Hey! I just learned something! Huh.

  • 240. Shelagh  |  June 1, 2015 at 3:18 pm

    You are so impatient. I gave an answer to your last comment. Here it is again:

    Okay, so you are saying that a man's right to take a wife now means that a wife can be a man, whereas, originally, a wife meant a woman.

    I claim the two lls to save you the bother of continuing your game. It's late in the UK, and tomorrow I will be travelling to visit my dad to celebrate his ninetieth birthday. I know you will all miss me. Parting is such sweet sorrow that I’ll say good night …

  • 241. VIRick  |  June 1, 2015 at 3:34 pm

    Dave, stick around because if I start to really cuss in Caribbean lingo, you may learn quite an earful of overly-ripe expressions, just like the one at hand which is simultaneously hinting at its aromatic potential.

  • 242. davepCA  |  June 1, 2015 at 4:20 pm

    Nope, you are replying to the wrong comment in a futile attempt to avoid the fact that I already responded to this remark from you and explained the flaw in your "reasoning", which was nothing more than specious wordsmithing (and which already gave you the first " L ").

    The quote you offered included THIS:

    "They did not want to level society, but rather give to each individual the opportunity to make the most of his abilities. In order for this opportunity to exist, all men (and at the time they were only concerned with men) had to stand before the law on an equal footing. There could not be one law for the rich and another for the poor, although the Founders ignored the fact that there was clearly one law for white people and another for slaves. A generation later, when Andrew Jackson's Democrats talked about equality, they meant the same thing — equality of opportunity based on equal treatment by the law. "

    And it proves OUR point and clearly debunks YOUR "argument". The quote itself clearly points out two examples of how the understanding of, and recognition of, "rights of citizens" has indeed changed over time. First, because it originally referred to recognition of rights for MEN, and not WOMEN as equal citizens entitled to having their rights equally recognized, and second, the remark within the quote which points out that, at the time it was written, slavery was still in effect which by definition was a denial of recognition of rights of individuals as free and equal citizens. Both of those understandings of "rights of citizens" changed.

    And it is this change over time in the way rights are understood and recognized which is once again happening. This phenomenon of the understanding and recognition of rights changing and developing over time has always been the case. This time, regarding the right to the equal protection of civil marriage laws for citizens who choose to marry a partner of the same sex. It is another change in a long list of changes in the way rights are understood and recognized, which continues to bring us closer to our constitutional ideals of justice and liberty for free citizens.

    And you have repeatedly been asked to try to answer the simple questions at the heart of this issue, and you have failed to even attempt to do so. Sometimes by attempting to steer off into a tangent of the topic, sometimes with outright pointless trolling like a spoiled brat who found the password to mommy's computer. In either case, you have shown that you are entirely unwilling (and unable, since there is no answer to the question) to debate on the actual topic of what possible legitimate goal could be served by a law that denies the rights and protections of civil marriage to same sex couples.

    The fact is, as has been amply proven in over fifty state and federal rulings, that laws which deny the rights and protections of legal marriage to same sex couples are unconstitutional because they harm a group by denying them the equal protection of our laws and fail to serve any legitimate purpose for a law in the process. You have no argument because there ARE no arguments that would show that such laws complied with the Constitution and would justify allowing the law to remain in effect. Shoo, troll.
    " T "
    " R "
    " O "
    " L "
    " L "

    You fail.

  • 243. davepCA  |  June 1, 2015 at 4:20 pm

    I'm all ears : )

  • 244. 1grod  |  June 1, 2015 at 5:50 pm

    In terms of constitutional thinking Justice Scalia and Thomas are closer to your approach to constitutional interpretation. As I've encourage you to read, I do so again. wikipedia.org/wiki/Originalism Sadly I'm providing you with an authority for you already skewed way of thinking. Scalia, who has been in the minority of the cases mentioned here, is widely read because he states a logical like between the majority's opinion and its future impact. In this, he has been prescient. Lawrence and what is expected to be the ruling in Obergefell. It saddens me that people here has engaged you, you seem to broaden your horizon, and then latter fall back to the place you got stuck before. Fourteen times – and I've given a synopsis of each ruling – the Supreme Court has said marriage is a fundamental right – either understood as an aspect of liberty or privacy.

  • 245. FredDorner  |  June 1, 2015 at 8:23 pm

    Shelagh, for a troll you seem a tad dimwitted..

Having technical problems? Visit our support page to report an issue!