Same sex marriage questions.

[hiaasenrocks]

First, I'm not going to get into a debate about whether I'm for it or against it. I'm looking here for concrete legal reasoning in answers to these questions:

When people say that gays and lesbians are being denied rights that others have, what exactly does that mean, legally?

Here's why I ask. All American males have the right to marry women. All American women have the right to marry men. No American men have the right to marry men. No American women have the right to marry women. In other words, speaking from a strictly legal perspective, everyone has the same rights and everyone lives under the same restrictions. So is there really a legal inequality there?

I've been having some discussions about this with some law students, as Con Law is in full swing. I'd appreciate some serious answers, based on legal reasoning, and in advance, let me thank those of you who try to do this without attacking me for asking serious legal questions. Thanks.

[NMDemDist2]

1. it's not a legal issue, it's a civil rights issue

and remember only 50 years ago, men couldn't marry any woman (and vice versa) they could only marry within their own race. Interracial marriage was 'illegal' then

[hiaasenrocks]

6. Civil Rights is a legal issue.

In the example you use, certain people were not allowed to take advantage of a right that others enjoyed. So there was a clear inequality in the law.

[NMDemDist2]

8. Bingo

you just answered your own question

Equal protection under the law and all that

[hiaasenrocks]

12. Inequality under equal protection laws would assume that

I have a right that someone else doesn't. Wouldn't it?

[ulysses]

19. yes.

If you're heterosexual, you *do* have a right that someone else doesn't.

[LostinVA]

184. You got it -- the right to marry an adult you love

[Lex]

23. You have the right to marry someone that you are attracted to

and have a primary bond with, correct?

Does everyone have this same right under the law?

[hiaasenrocks]

29. That is true.

But I am also prohibited from marrying someone of the same sex. Every American enjoys the same right to do something, and lives under the same restrictions.

Keep in mind here, I'm coming from the standpoint of examining the idea that homosexuals "just want rights that others have," and it seems as though that might not be the case, legally.

[uppityperson]

93. Consenting adults should have the right to marry, regardless of sex.

In your example, everyone living under the same restrictions, let's say all black people are slaves. They all live under the same conditions. Is this legal? Is it a civil rights issue?

People want to be able to marry whom they want, if both are consenting and of age and not related issues, but why does it matter who has outies and who has innies? Equal rights mean no PEOPLE should be slaves, regardless of color, sex, and all adults should be able to marry whom they want, regardless of color or sex.

[pnwmom]

131. I'm in favor of gay marriage, but legally speaking, I understand

the OP's point.

Marriage laws don't contain any mention of "love." All they do is allow all people, on an equal basis, to choose to bind themselves to a person of the opposite sex.

And, over the centuries, lots of gays have married straights, as we all know.

[ulysses]

135. at one time, marriage laws allowed all people,

on an equal basis, to choose to bind themselves to a person of the opposite sex and the same race.

Marriage is not, and has never been, a static institution, culturally or legally.

[pnwmom]

166. I agree it hasn't been a static institution. And I also think it's time

to rewrite the laws, as a matter of public policy.

But I'm skeptical that the laws we have now can technically be said to discriminate -- that's why Courts such as in my state haven't intervened. Rather than relying on the Courts to reinterpret old marriage laws, I think we should demand that our lawmakers give us new ones.

[ulysses]

192. then by the same token

laws prohibiting interracial marriage weren't discriminatory, by virtue of the fact that they were the laws.

[uppityperson]

140. Marriage laws deny the right to bind yourself to someone of the same sex.

Used to be you couldn't bind yourself to someone of another color/race/whatever they called it. That changed finally. Our laws change and evolve. Time for this one to. It is a civil rights issue (would a legal civil rights issue be an oxymoron?). Let adults marry other adults.

I know gays and straights who have married. I know people who married for financial things (like insurance). Love has nothing to do with it. It is who can you legally make this legal commitment with. I read the marriage laws once, before getting married and was amused to find out how much the legalities were who owns what, how is it divided up when/if you split up.

Don't deny it because of skin color or who has innies or outies. Make it legal for people to marry people.

[pnwmom]

144. I agree we should change the laws to legalize gay unions.

But I also agree with the OP that the laws as presently written, aren't necessarily discriminatory.

[uppityperson]

151. Depends on which 2 parties are beng looked at.

Anything can be discriminatory or not. For instance, I can't get admitted to a kindergarten class and that's unfair because I don't see why I can't have the right to go to kindergarten now because I didn't when I was a little kid. (discrimination) Or, all kids aged 4-6 can attend a public school kindergarten class free of charge, ALL of the kids can regardless of color. (not discrimination)

Was women not being able to vote a civil rights, a legal issue, because no women could vote so the law was applied equally? Only all men could.


Edited to add, hi to another WA mom.

[pnwmom]

162. My point is that I think we should be concentrating on working

to pass new, better laws -- rather than hoping some judge on some Court will interpret the old laws the same way we would. Unfortunately, they do have a legal basis for their decisions. And as much as we might want to argue about the logic, many other people accept it.

I think we're better off talking about good policy and about changing the laws -- rather than expecting the Court to reinterpret the old outdated laws.

And hi back to you, uppityperson! Was it as foggy today in your neck of the woods?

:hi:

[uppityperson]

171. I like the idea of new laws also, but new laws are often based on precedent.

Gets complicated. Fog? Was that fog or just really low clouds. All day long. Better than wind though. It was very foggy here all day.

[pnwmom]

176. Yeah, better than wind. I'd almost forgotten about

my EIGHT days without power. Made me feel like such a wimp. Time to get a generator.

[uppityperson]

178. Cousin's house had 4 trees drop ON it. I felt like a wimp after hearing that too

We were out a couple days in Nov, missed the other big one being in the rain/wind shadow. It was scary enough but I felt really bad when I heard about my cousins house. Generators are good, make sure use outside and have fresh gas (don't store for a yr)

[pnwmom]

191. Four trees!? Okay, I'll stop complaining.

I hope things are getting back to normal for your cousin. Thanks for the tips -- I didn't know that about fresh gas.

[pnwmom]

134. Nope. The law says nothing about attraction or bonding.

You could legally marry someone you hadn't even met till you got to the altar, like the Moonies and their mass marriage ceremonies. The legal qualifiction is that you marry someone of the opposite gender who is not a close relative.

[Lex]

139. The classification being used is "gender" and is as capable of being

struck down as a legitimate classification to inhibit marriage as race was in Loving v. Va.

The Supreme Court there said:

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.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

[pnwmom]

168. I don't see a word in there about love or bonding. Happiness, yes.

The point is that we don't have to wait and hope for Courts to reinterpret old law. We can ask our legislatures to rewrite the law.

And when the fundies object, I have an answer that always stops them cold. "Would you like your daughter to marry someone like Ted Haggard, because he couldn't marry another man? Because we'll always have gay/straight marriages as long as gays are prevented from marrying other gays."

I've never met a fundie who would want his daughter to marry a gay man.

[Lex]

177. Precisely. That is because the legal argument will deal with gender as a classification

and it is as capable of being struck down as a classification for disallowing marriage just as race was.

[ToolTex]

41. The law is reversed, men should only marry men, and women should only marry women.

There, would that solve your confusion? Why do you think the law should break only your way?

Gay people have more taste and creative ability so we should get the law, not the more common heteros. Default to the superior and rare, not the mundane and common.:sarcasm:

[fishwax]

90. why is there an inequity in his scenario that there isn't in your scenario?

When miscegenation was illegal, every man had the right to marry a woman of the same race, and every man had the right to marry a man of the same race, so there was "equality" in the same perameters as you outlined in your OP.

[ruggerson]

108. Apparently you need to study up on Romer V Evans

n/t

[Maven]

159. How so?

The example is exactly the same.

Anti-miscegenation laws prevented a person of one race from marrying a person of another race. No one had that right, therefore all were "equal" by your logic.

Rights derived from, for example, equal protection and substantive due process are based on broader constitutional guarantees that don't reduce to algebraic form. Your conception of law as a matrix of purely semantic rules is misguided.

[MissB]

2. I think the difference is this:

When I married my husband, I took his name. If he dies, I get his social security benefits and his 401k and his other investments. When he is in the hospital, I can make appropriate medical decisions for him.

All without going to a lawyer and having plenty of complicated legal paperwork drawn up. All I had to do was say "I do."

[hiaasenrocks]

15. I'm not arguing against people getting the same perks as others.

So I see your point.

I'm asking for something more along legal lines.

[uppityperson]

101. Legally, it is defined who owns what, who can inherit how if no will, who can see

whom in the hospital, who is financially liable (bills, income, retirement). That is the legal lines of marriage. If I were married to MrUP and got in an accident, he could talk his way into seeing me in ER. If we were not married, he could not.

[PDJane]

3. No, gays do not have the same legal rights.

If they cannot marry, they don't have the right to inherit property, obtain part of their partner's pension, qualify for Social Security, be covered under their partner's medical plan, share custody for minor children, get visitation rights to those minor children, adopt children.......Oh, hell, the list goes on.

They can be barred from their partner's death bed, they can be kicked out of a shared.....and financially shared ......home if their partner dies. Even a legal will may not allow them to inherit if the will is challenged, because it needs the force of law to make it viable.

[hiaasenrocks]

7. That's the question, though.

They can marry the same people I can marry. And I can't marry the same people they can't marry. So, again, what legal marriage rights does one group have that another doesn't?

[pnwmom]

81. I knowl what you are saying.

You're saying that, legally speaking, all adults have the right to marry a person of the opposite gender. The law doesn't say anything about "attraction" or "bonding." Merely that two people of opposite gender (other than close relatives) can form a legal, binding union.

[uppityperson]

106. substitute skin color for sex.

It used to be that whites couldn't marry blacks. It was illegal. But all whites could marry other whites, and blacks blacks. So, each had the equal right to marry someone of their own (insert definition here) color. However, they were prohibited by law to marry across color lines. They got equal rights, could marry anyone regardless of color.

Now, insert sex. The right that is missing is being able to marry whom you want (consenting adult not already maried). Period.

[LostinVA]

186. Approximately 1,400 rights are denied same sex partners

That are given married partners.

[ToolTex]

4. Would you see a problem with laws that say men and women can marry only within their own race?

Can you extrapolate this to your question?

[hiaasenrocks]

9. Addressed in post #6.

[mondo joe]

5. The same "strictly legal" distortion was used in Loving V Virgina.

Back then it was "all black people are allowed to marry each other, all white people are allowed to marry each other, so it's equal".

Except the SCOTUS found this was not a legitimate argument against interracial marriage.

Or if you want to stick with "strictly legal", if my sister is allowed to marry a man but I am not, we are not equal.

[Lex]

11. Ya beat me to it, mondo joe.

Perhaps the OP's Con Law class hasn't reached that case yet, hmmm?

[hiaasenrocks]

14. Addressed in post 6.

[mondo joe]

40. And certain people (gays) are not permitted to take part in a right others enjoy.

Gays exist as a class, already.

[uppityperson]

110. substitute sex for color. Same thing.

[pnwmom]

87. But you and your sister are both allowed to marry a person of

the opposite gender (whether you would want to, or not), so in that limited sense you have the same right as she.

[mondo joe]

118. No, those are equivalent rights, but not equal rights.

[pnwmom]

136. I don't understand the distinction.

[mondo joe]

138. Equivalent

All black people can marry within their race.

All white people can marry within their race.

Those are equivalent rights, not equal rights.

[pnwmom]

146. All people can marry a person of the opposite sex.

I don't understand what's not equal about that.

My father was free to marry my mother, even though he was gay. His right to marry a woman wasn't taken from him. Unfortunately, the law has nothing to do with love or bonding.

I think the law should be changed, as a matter of public policy. But I'm not sure that the law, as presently written in my state, discriminates against anybody in the legal sense -- although it may in other states, as it did in Massachusetts.

[mondo joe]

147. Again, Loving v Virginia. "All people can marry a person of their own race".

Unconstitutional.

[Lex]

10. And by the same token, all white men could marry white women.

And all black men could marry black women. Same rules.

I mean, really, what was the problem?

[LostinVA]

187. Exactly -- big deal, they had the same rights, right?

Who cares if they couldn't marry who they loved? They could marry someone. Geez.

[originalpckelly]

13. Legally, those who are homosexuals and attracted to members of the same sex...

are being discriminated against by not being able to marry one another. In this case it must be asked:
"Why are some people's sexual and emotional attractions given sanction by law and others not?"

And since homosexuality is mutual, and not a predatory relationship like polygamy or pedophilia, the state has no right to discriminate.

[pnwmom]

102. The laws are "attraction blind" in a way. They were developed

not out of some romantic idea of sanctioning heterosexual love, but to protect the children who often appeared, seemingly willy-nilly, as a result of certain unions, but not in others.

Obviously, the concept of marriage has evolved, but its legal basis had nothing to do with romantic love and bonding.

[ulysses]

16. is there a legal inequality? sure.

Not to put too fine a point on it, but your argument reads like this with a few descriptors changed: All American whites have the right to marry whites. All American blacks have the right to marry blacks. No American whites have the right to marry blacks. No American blacks have the right to marry whites.

Discrimination based on an inherent quality is legal inequality, isn't it?

[hiaasenrocks]

18. Addressed in post 6.

[ulysses]

21. certain people were not allowed to take advantage of a right that others enjoyed

Right. I don't understand the disconnect.

[hiaasenrocks]

25. Right. And that is not the case under current law.

Neither group enjoys a right that the other doesn't have.

[ulysses]

26. was it the case under current law 100 years ago

that blacks and whites could intermarry? Neither group enjoyed a right that the other didn't have, in your terms.

[hiaasenrocks]

32. In that case, people were denied rights that others had.

In this case, everyone has the same rights, and the same restrictions, legally speaking.

[ulysses]

33. how are the cases different?

[hiaasenrocks]

35. See posts 6, 20, 29, and others.

[rpgamerd00d]

39. Again, you're missing the point.

Your premise is flawed, because it defines marriage as between a man and a woman, rather than between two people who love each other. It also ignores the existence of homosexuality.

Again, the exact same thing was used to justify whites only marry whites, blacks only marry blacks, and it was defeated, legally.

[hiaasenrocks]

46. I don't think that's accurate.

And I've already addressed the race issue. Sorry, no offense, but I'm looking more for some legal reasoning about same-sex marriage here.

[rpgamerd00d]

48. Already addressed the race issue?

It was struck down as illegal, how did you address it?

[hiaasenrocks]

53. It's not relevant.

Unless you can provide a legal classification that equates the two. I don't think that exists in the law, but I'd be happy to review it if you have a link or a reference.

[rpgamerd00d]

54. Clearly, Gender.

[mondo joe]

65. Besides, gays are recognized as a class. See Romer v Evans.

[hiaasenrocks]

67. See post 62.

[mondo joe]

52. Sorry but you fail to deal with Loving v Virgina, which legally is nearly identical.

[hiaasenrocks]

68. "Nearly identical"? See post 62.

[mondo joe]

49. You again fail to deal with Loving v Virginia

[ulysses]

60. let's take 29, then.

But I am also prohibited from marrying someone of the same sex.

You were also prohibited, at one time, from "miscegenation". Until that prohibition was struck down.

Every American enjoys the same right to do something, and lives under the same restrictions.

No we don't. I enjoy, and exercised, the right to marry my chosen spouse. Had I been gay, I would not have enjoyed that right.

[pnwmom]

111. Mixed race couples were still capable of bearing children together, so it

made no sense, even under the laws of 100 years ago, to prevent them from marrying. Allowing them to marry protected the children born from their unions.

[ulysses]

119. so...

the lack of ability to bear children together means that it makes sense to prevent gays from marrying?

[pnwmom]

141. I didn't say it was good policy. I'm pro gay marriage.

But I think the OP has a point as to the legal right involved. Technically, it's correct to say that all adults have the same legal right, to marry any person of the opposite sex who isn't a close relative.

The analogy of mixed marriage doesn't hold up because certain men were being prevented from marrying certain women of the opposite sex who weren't close relatives.


I think we'll get farther faster by stressing the human issues. For example, how many of these fundies would be happy if their daughter had married Ted Haggard? But there will always be women like that as long as gay marriage is not allowed and gays and lesbians are shamed into marrying people of the opposite sex.

[ulysses]

153. hold up, you brought up the children issue.

I'd like for you to unpack that a little, if you wouldn't mind.

The analogy of mixed marriage doesn't hold up because certain men were being prevented from marrying certain women of the opposite sex who weren't close relatives.

The only difference is the axis along which you're willing to look. The OP has stated below that he doesn't see gay folks as a legal class, yet it was pointed out shortly afterwards that the military certainly looks at them as a legal class. Under anti-miscegenation statutes, whites weren't allowed to marry blacks. Under current law in most states, same-gendered people cannot marry, even though their sexual orientation places them in a government-recognized class of citizens.

[pnwmom]

174. I'm not sure what you're asking.

But current marriage laws, at least in most states, specifically define marriage as the union of two people of opposite sexes. That's what has to change. Until it does, many Courts will continue to rule that gays aren't being discriminated against, for the reasons stated in the OP. A gay man, like my father, has as much right as a straight man does to marry a straight woman. He's not being discriminated against, in that legal view.

[fishwax]

100. sure they do

Men have a right to marry a woman. Women do not have that right. Women have the right to marry a man. Men do not have that right.

I don't see how that is any more "equal" than the situation under laws which restricted interracial marriage.

[LostinVA]

188. Good post -- and the analogy is with the framework of the OP's thesis

Which flies in the face of Con Law cases.

[rpgamerd00d]

17. Here is my opinion on your question.

I think the phrasing of your original premise is off.

The inherent problem in what you originally wrote is that in its very statement, the question made the assumption that marriage is about the opposite sex, instead of being about love. I will re-write it, so you see my point.

"All American heterosexual males have the right to marry who they love. All American heterosexual women have the right to marry who they love.
No American homosexual males have the right to marry who they love. No American homosexual women have the right to marry who they love."


Given that new premise, I hope you can see that there is not LEGAL equality.

[hiaasenrocks]

20. Under that re-write, both males and females

still enjoy equal protection under the law. Neither group has something the other doesn't, and neither group is denied something the other isn't.

[ulysses]

24. you're looking at it along one axis, gender.

Gender is a fair POV, of course, but not the only one.

[pnwmom]

148. Legally speaking, it is the only one.

In most states, anyway. But the laws can be changed.

Rather than insisting that we reinterpret existing law, I think we should be pushing for making new laws in our legislatures.

[rpgamerd00d]

28. Only if you deny the existance of homosexuals as a distinction.

If you pick someone and say "You do not have the right to marry who you love", the reason is irrelevant, they are still being denied their civil rights. Whether its because they are homosexual, or whether they have a certain skin color.

There is no difference between denying it due to sexuality vs denying it due to skin color.

According to your logic, you COULD legally prevent whites from marrying blacks because they still have the same rights. That argument has already been defeated, legally.

[Lex]

30. Wrong. Straight people are allowed to marry people they are attracted to

ie, the opposite sex.

Because gay people don't have straight sexual orientation they are not able to marry the people they are attracted to and wish to settle down with, do they?

So they are not afford the same rights as straight people.

[hiaasenrocks]

38. Right. And that goes to the second part of my question.

Since I, as a straight man, also cannot marry a man (regardless of whether I want to or not), I am being denied the same legal rights, theoretically. Correct?

So where is the "inequality" from a legal perspective?

[Change has come]

44. And we wonder why people dislike lawyers

:rofl:

[hiaasenrocks]

50. Call a plumber next time you need legal advice. :)

I'm used to the lawyerphobia. No offense taken. :)

[mondo joe]

45. Gays are a class. There is your inequality.

And you failed to address Loving v Virginia.

[hiaasenrocks]

47. By what legal definition?

[rpgamerd00d]

51. Gender

[hiaasenrocks]

56. Which brings us back to the original question.

And the fact that both genders (all Americans) have the same rights and same restrictions.

[mondo joe]

58. Again, see Loving v Virginia. Same failed argument.

All people could marry within their own race - where was the inequality?

[hiaasenrocks]

62. It's not relevant.

Otherwise, some enterprising lawyer would have been able to take this to an appellate court and win. It hasn't happened. There's no legal basis for equating the two.

[mondo joe]

70. Fallacious.

You are now not arguing the merits of a position but whether it has been used or not.

[hiaasenrocks]

72. I pointed out the reason it wouldn't be used.

It's not relevant.

[rpgamerd00d]

75. "Never been used" does not mean "cannot be used." That is 100% flawed logic.

All it means is its never been used.

[hiaasenrocks]

80. No lawyer would, because it's irrelevant and a court

wouldn't entertain the notion. That's my point. And therefore, that's why I say it's irrelevant to the discussion.

[rpgamerd00d]

84. Dude, you asked for a legal interpretation, we gave you one, and you're rejecting it.

I think you're just not interested in one, because its right there.

[hiaasenrocks]

92. I'm aware of that.

And I'm just pointing out that the one you're using hasn't been (and wouldn't be) used by a civil rights attorney because it wouldn't stand a chance in court.

If there are others, I'm certainly open to it.

[rpgamerd00d]

94. Why?

You keep saying its not viable.

Why?

[hiaasenrocks]

For the reasons I've stated in several other posts.

No offense, but I've already explained it, namely in post 6, I think. That, and there's been no explanation of why it is viable.

[mondo joe]

107. Please stop repeating a falsehood.

Goodridge v Dept of Public Health used that argument, and did so successfully.


For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, 32 Cal. 2d 711, 728 (1948), or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967).<16> As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra at 717 ("the essence of the right to marry is freedom to join in marriage with the person of one's choice"). See also Loving v. Virginia, supra at 12. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance -- the institution of marriage -- because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.<17>

[mondo joe]

No lawyer would? Dude - look at fucking Goodridge v Dept of Public Health

For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, 32 Cal. 2d 711, 728 (1948), or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967).<16> As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra at 717 ("the essence of the right to marry is freedom to join in marriage with the person of one's choice"). See also Loving v. Virginia, supra at 12. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance -- the institution of marriage -- because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.<17>

[Maven]

167. You're not a lawyer yet, and you're telling us what "no lawyer" would do?

Hilarious.

BTW, Loving v. Virginia is perfectly applicable--maybe you haven't learned to cite indirectly or by analogy yet. In fact, the Massuchusetts Supreme Court seems to disagree with you, as they cited Loving in their Goodridge opinion.

One problem is that sexual orientation has been treated under rational basis review, whereas race is treated under strict scrutiny. Therefore it's easier to "justify" broad institutional discrimination against gays and lesbians as opposed to racial minorities due to this systemic inequity.

[mondo joe]

77. Again, See Goodridge vs Dept of Public Health

For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, 32 Cal. 2d 711, 728 (1948), or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967).<16> As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra at 717 ("the essence of the right to marry is freedom to join in marriage with the person of one's choice"). See also Loving v. Virginia, supra at 12. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance -- the institution of marriage -- because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.<17>

[mondo joe]

76. See Goodridge v Dept of Public Health

For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, 32 Cal. 2d 711, 728 (1948), or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967).<16> As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra at 717 ("the essence of the right to marry is freedom to join in marriage with the person of one's choice"). See also Loving v. Virginia, supra at 12. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance -- the institution of marriage -- because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.<17>

[pnwmom]

125. Marriage laws were set up to encourage permanent unions between

people of opposite gender. There was no reason to deny marriage to a man and a woman of different races because their union could produce children who would benefit from their parents being in a marriage.

[rpgamerd00d]

61. Incorrect.

The restrictions on gender apply as equally as those on race.

Whites can marry whites, blacks can marry blacks - a distinction on race - found illegal.
Men can marry women - a distinction on gender - equally illegal.

[originalpckelly]

78. No, it's sexual orientation.

That's the problem.

[originalpckelly]

79. I would say your incorrect answer is gender. It is not about gender but sexual orientation.

[rpgamerd00d]

82. I'm not sure, but I think gender is just as valid.

"A Man can marry a Woman" is making distinctions on who can marry who, based on gender, which is just as illegal as adding in a racial distinction.

See my point ?

[originalpckelly]

91. What the OP is pointing out is that s/he as a wo/man may marry only the opposite sex...

and may not marry the same sex. For that purpose, your distinction is invalid. However, from the perspective of sexual orientation, gays and straights do not have the same rights to marry a person of the same sexual orientation.

[theHandpuppet]

155. By the very fact that they are a group which can be denied their rights...

... they must be acknowledged as a "class". It is the denial in itself which creates and defines the parameters for the class distinction, which is why some would propose a constitutional amendment to define marriage as between one man and one woman. There's where you'll find the legal definition of specific classes -- ie, when laws are written specific to a certain group of individuals and those laws are exclusionary, you have effectively created classes of people who may or may not be extended certain rights under the law. It's not about being included it's about being EXcluded, and it's been used throughout history as a way to deny various groups of people their civil rights.

[Lex]

57. That is a distinction that lies in knowing the difference between

de facto and de jure in the application of laws.

For instance, I suppose white people could've sued in the south for not being allowed to attend black schools.

[pnwmom]

150. The law doesn't care whether a straight person is attracted to his or her

spouse or not.

[pnwmom]

115. But the legal definition of marriage has nothing to do with love.

The marriage could be an arranged marriage, the spouses might never have even met each other, and it would still be legal -- as long as the spouses were of the opposite sex.

[Lex]

157. Exactly why the classification of "gender" to base marriage on will fail

eventually. It is an "unsupportable basis" for denying marriage for the reasons you stated. Just as race was struck down as basis to deny marriage, so will gender:

As the Supreme Court said in Loving v. Virginia about using "race" as a classification:

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.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

[polmaven]

22. It really is more like...

All straight American men have the right to marry the people they love. All straight American women have the right the marry the people they love. So yes, there most certainly is an inequality if gay men and lesbians are denied the right to marry the persons they love, don't you think?

When the argument is made that no one is denying the right of gay men and lesbians to "get married", as long as it isn't "to someone from their own sex" (as my illustrious State Representative so eloquently put it), doesn't that undermine the very reason to marry? To live the rest of your life with, and to raise children with someone you love?

Is "getting married" the point? Or is it the lifelong loving commitment?

I am a straight woman, so maybe I can't really speak properly to the question, but that is the way I see it.

[Coloradan4Truth]

31. Bravo! I second this

and I was just about to write something similar, though not as completely thought out.

Under the laws we have today, I cannot marry someone I love. And that is not equal - no matter how many men nice men there are out there that I can marry.

[Nicole]

27. As a straight, american woman I can marry a man

So can a lesbian woman.

I can also marry the person I love, a lesbian can't.

[LostinVA]

189. Good post, Nicole -- thanks!

[Snot Hannity]

34. I am a man.

I cannot marry my sister. But my male friend who is no blood relation to me can marry my sister. We are both men. But we don't have equal rights under the law to marry my sister. I can marry his sister. But he cannot marry his sister. Again he and I don't have equal rights to marry his sister. So, all men (or women) do not have equal rights. Your premise is flawed.

[hiaasenrocks]

37. Question.

Does that mean you are coming from the perspective that you are being denied civil rights if you can't marry your sister? If not, how is that comparison helpful to examining the question I raised?

By the way, your handle is awesome!

[Coloradan4Truth]

142. I noticed you didn't address, or say, refer to number some such

about the "love" issue (refer to number 22). Is equality of love and happiness not a consideration of the law?

[Snot Hannity]

143. My comparison was to poke a hole in your premise. Not explain it.

You said "everyone has the same rights and everyone lives under the same restrictions". That is not true, per my example. My friend has the right to marry my sister. But I don't. That is not "has the same rights". "Similar rights" may be. That means your premise of "everyone has the same rights and everyone lives under the same restrictions" needs to be qualified. The woman has to be a non-sister, or the man a non-brother. It is not as simple as "All American males have the right to marry women. All American women have the right to marry men". You have to apply the qualifying concept to men/women as straight men/women and gay men/women and give them "similar" rights, not "same" rights.

Glad you like my handle.

[Hippo_Tron]

74. But there's another legal issues involved in marrying your sister

And that is the right of your potential offspring who are likely to have birth defects if you two decide to reproduce.

[JackBeck]

36. Legally, it means that same-sex couples are denied close to 1700 rights on both a state and federal

level. Gay and lesbian families are disproportionately taxed, for example, when it comes to inheriting a dead partner's social security.

And to those who say just get a lawyer to draw up a contract that you can drag around everywhere you go in case something happens, I would observe that when a sex discordant couple gets asked if you are a member of the family at the hospital, chances are you are allowed to see your husband or wife a lot easier than a same-sex couple.

[hiaasenrocks]

42. "Sex discordant" LOL!

Some might say that's heterophobic! :)

What examples do you have of the point you raise in the second paragraph?

[JackBeck]

69. Ahh...the "some may say" argument.

Classic.

As for an example, would a personal one help? Husband in the hospital with kidney stones and couldn't sit with him in the emergency room because I wasn't considered immediate family.

Or would you like me to share my lawyer's advice, as well? "Even though you're drawing this contract with me, unfortunately, it may not hold up in court".

But I guess we're asking for too much.

[JackBeck]

170. Which ones?

I see you still haven't addressed my post.

[bear425]

64. Since when can we inherit our dead partner's social security?

As far as I know, that's one of the many legal rights we're not entitled to. I agree with you regarding the hospital. I had to produce the papers.

[JackBeck]

73. To clarify, I meant for our kids.

Thanks for pointing that out.

If we were to have kids, our kids would be taxed more in an inheritance situation.

[bear425]

97. Yes. thank you.

I'm so tired of the inequity and the callous attitudes of people who just don't have to live as second class citizens. Aren't you? In my opinion, the OP is flamebait. I'm sorry for what you had to go through with your partner. It makes it so much harder to handle crisis when you have to explain yourself and produce legal papers in order to do what any legally married individual can do without question.

[JackBeck]

130. Like we should be forced to produce legal documents in the first place.

Sex-discordant couples are never asked to prove their marriage.

Yes, bear425, I'm a just as tired as you with the inequalities that our community faces. How so-called "progressives" on DU continue to get away with questioning our demand for rights, let alone make us prove why we are worthy of these equal rights as American citizens, is beyond me.

[LostinVA]

190. And, in Virginia, those "contracts" are illegal and thus null and void

[Lex]

43. Look at the "classification" that is used. What's the classification

used by the state and federal government to allow or disallow marriage? In Loving v. Virginia, the state used race as a classification to bar marriage (even though back then all whites could marry other whites and all blacks could marry other blacks so they could get married, just to the same race).

The Supreme Court said then:

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.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

So if the classification of race was struck down as regards inhibition of marriage, then the classification of gender could also be struck down too, as regards inhibiting marriage.

[MadMaddie]

55. So maybe you are looking at this at a high overview level

Lets get more detailed-As a Lesbian Woman

Health Insurance
Currently I am paying for indivdual HealthCare plans because I can't get my partner on my insurance, this costs about $250.00 more than it would if we were married.

Estate Planning Benefits
Inheriting a share of your spouse's estate. (Marriage leads to this benefit, as a gay couple we will have to spend thousands of dollars to ensure that if one of us dies that our families cannot take our shared Property and the leave the remaining spouse destitute)This happens daily.

Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf. (This only applies to married couples)
Government Benefits

Receiving Social Security, Medicare, and disability benefits for spouses. (Nope, we are not eligible because we are a gay couple)

Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans. (Nope, gay coupled need not apply)

Receiving public assistance benefits. (Nope, we are not eligible because we are a gay couple)

Making burial or other final arrangements. (Once again we must spend $$$ to file legal paperwork to allow us this right)

I only chose a few rights guaranteed to married couples to show that gay couples do not have the same rights has married heterosexual couples.

So to answer your question, legally a gay couple does not have the same rights a a straight couple with a marriage certificate. If the gay couple has to spend thousands of dollars to achieve the same type benefits then it is not equality.


Just sayin....
MadMaddie

[hiaasenrocks]

59. Addressed in post 15.

[MadAsHellNewYorker]

63. Yes, there is legal inequality here. Look at the history of marriage

in America. I defer to this 'toon, cause it sums it up so :



Marriage always evolved with social norms. To not open the institution to all Americans who want to marry someone who is of legal age and not blood related is clearly unconstitutional.

[Hippo_Tron]

66. By that logic, paraplegics have the right to walk up stairs like everyone else

So therefore we shouldn't build wheelchair ramps.

Homosexuality isn't a choice, people are born that way. If you are gay, marrying someone of the opposite sex isn't a suitable option because it's physically impossible to have a romantic relationship with someone of the opposite sex if you're only attracted to people of the same sex. Just as it is physically impossible for paraplegics to walk up stairs.

[ulysses]

71. that

is a beautiful analogy. :D

[Hippo_Tron]

86. People are afraid to use it because it can be seen as associating gay with being disabled

But I think it's necessary to make the comparison. People who argue that gay people have the same rights as everyone else to marry someone of the opposite sex have absolutely no understanding of homosexuality whatsoever and usually believe the propaganda that it's just a "lifestyle choice".

[bear425]

83. Well done. n/t

[hiaasenrocks]

88. I wouldn't classify homosexuality as a disability.

And, under the law (since we're talking legal issues here) that's not a good comparison.

[Hippo_Tron]

95. I'm not classifying it as a disability

I'm using it as an analogy to show that people are born different and that part of civil rights is about accommodating peoples differences.

Legally it's very relevant because the we passed the Americans with Disabilities Act so that disabled people would have the same rights and opportunities that people without disabilities would have. There's no reason that we shouldn't legalize gay marriage so that gay people can have the same rights and opportunities that straight people have, which is to marry someone that you can have a romantic relationship with.

[originalpckelly]

96. Under law, a straight person may marry the sex they are attracted to...

while a gay person may not.

[ulysses]

98. see post #86

[ulysses]

85. a question: do you not recognize

sexual orientation as a basis on which to identify a group of people, legally speaking? That seems to be the problem in understanding what people are telling you.

[hiaasenrocks]

99. I wouldn't.

I don't believe there's a firm legal basis for doing so.

[ulysses]

104. *dingdingding* I think we have our answer.

When that firm legal basis is established, and I very much suspect that it will be to your satisfaction within my lifetime, will you recognize it as such?

[hiaasenrocks]

109. Thank goodness!

It's nice to understand something, even if you disagree with it. Thanks for cutting to the heart of the matter.

To answer your question, it would depend upon the legal reasoning for such a thing.

[originalpckelly]

112. What right does the government have to deny two men or two women the ability to marry?

Could you provide a legal justification for that?

[hiaasenrocks]

120. That's pretty much covered in this subthread already.

There's no legal basis for using orientation as a legal classification.

It would first have to be established, with legal reasoning for doing so, not a question of why it shouldn't be.

[originalpckelly]

126. No, that's not what I asked. If you do not believe there is a justification...

for the use of sexual orientation, we may simply limit ourselves to the sexual composition of a marriage.

Where is the legal reasoning allowing the government to prevent two men or two women from marrying? (They may be of any sexual orientation in this case, as you have previously shown two homosexual people of differing sex may indeed marry.)

[ulysses]

113. well yeah. in order to understand the idea that same-sex marriage

should be legal, one needs to understand that GLBT folks are distinguishable under the law.

[Duncan Grant]

128. "it would depend upon the legal reasoning for such a thing"?

I'm reluctant to take that at face value. As a gay man, I'm naturally curious to hear a little more. Care to spill it?

[cboy4]

179. Why don't we just cut to the chase, since you just admitted

that you do you not recognize sexual orientation as a basis on which to identify a group of people, legally speaking.

It doesn't sound like you will ever be convinced legally speaking.

Because when firm legal basis is established, you're saying it's going to "depend upon the legal reasoning for such a thing," as to whether you feel there should be marriage equality for all.

You willing to dissect a civil human right, that will have been "established" in the courts.

With all due respect, you sound like one of these conservative judges I hope NEVER, EVER makes it to SCOTUS.

[originalpckelly]

105. Isn't that already being done?

If marriage between a man and a woman were outlawed, would that not have the same net effect of outlawing marriage between two men or women?

[mondo joe]

114. Missed out on Romer v Evans, huh?

[hiaasenrocks]

123. No, already explained above why it is

not relevant to what I'm asking.

[mondo joe]

129. No, you failed to acknowledge gays as a class. You also failed to recognize

the arguments in Goodridge v Dept of Public Health while falsely claiming no judge would permit such arguments.

[Maven]

173. Some things are just called "facts."

They're simply accepted by a court and don't require separate "legal basis."

The existence of gays and lesbians as an identifiable group is a social reality that would not be (and has not been) denied by any court in recent memory.

[Hippo_Tron]

121. I think there is already some legal basis for classifying homosexuals as a group of people

I believe that homosexuals are forbidden from serving in the military under the law. Clinton wanted to allow gays into the military by executive order but the GOP kept arguing that he needed an act of congress to change the military code until they finally got their way. Assuming that the GOP was right and that military code can't be changed without an act of congress, then homosexuals are classified as a group under the law.

[ulysses]

124. *excellent* point.

:thumbsup:

[Duncan Grant]

133. Good one.

:thumbsup:

[rpgamerd00d]

149. OP hasnt responded here...

[originalpckelly]

175. Well, that's because we started making sense...

admittedly, it took a while, but we came to our point. :rofl:

[ruggerson]

89. Your OP is not logical

People use the legal institution of marriage to receive protections from society when they decide (usually, in our society for reasons of love and intimacy) that they wish to legally commit to a life partner and create a family unit.

Since gays and lesbians do not, by definition, fall in love or have the desire to commit to someone of the opposite gender, they are, ipso facto, being discriminated against. A straight male or femal have the right under our current laws to marry the person with whom they fall in love. A gay male or gay female does not, because the law does not recognize same sex marriages.

Were I arguing this in a court of law, the way I would destroy the thesis in your OP is to remind the sitting Judge(s) that Caesar famously responded to the pleas of Christians in regards to religious freedom, by saying "They already have religious freedom. They are free to worship Caesar."

His reasoning was as specious as yours.

[Lex]

132. Exactly.

:thumbsup:

[ToolTex]

103. The law is reversed, men should only marry men, and women should only marry women.

There, would that solve your confusion? Why do you think the law should break only your way? How would you argue if this were the current law?

Gay people have more taste and creative ability so we should get the law, not the more common heteros. Default to the superior and rare, not the mundane and common. :sarcasm:

[karlrschneider]

116. Begging the question. It -is- a legal issue because it is a legal issue.

Or to put it another way, an ILlegal issue. Framing your question as you have neglects to address
the fact that EVERYONE regardless of sexual orientation is prohibited -legally- from exercising what
should be a civil right whether or not they have the desire to do so. Other than a few instances
such as genetic issues between closely-related persons and those involving minors, no person should be
prevented from obtaining all the rights and privileges automatically conferred by marriage regardless of their genders.

[rpgamerd00d]

117. WAIT A SECOND! I FIGURED IT OUT! ITS A TRICK QUESTION !

It finally hit me.

This is totally a trick question.

No one is being denied any "Rights" of Marriage. Why?
Because no one HAS any "Rights" of Marriage, because NO MARRIAGE RIGHTS EXIST FOR ANYONE.

Let me look at the Constitution a second....

Yep. No Marriage Rights exist in the Constitution.

You cannot, therefore, prevent anyone from marrying anyone, because there isn't any "Rights" argument as pertains to marriage in the Constitution.

The 1st Amendment (freedom of expression) prohibits you from interfering in people's life choices.

Any case involving a prohibition of Marriage need only show an infringement of the 9th Amendment.

Amendment IX - Construction of Constitution. Ratified 12/15/1791.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

[originalpckelly]

122. Actually, in practice the Supreme Court has killed off the 9th and 10th amendments...

which is quite sad as both are the very basis of the entire US Constitution, and the government of limited powers it outlines. The government must always justify its use of power, including the ability to regulate marriage, which it does not have the power to do, as the power is not declared in the constitution.

[uppityperson]

127. Of course it is a legal issue.

Everyone is prevented from doing something because the law says they can't. What they are prevented from doing is legally marrying the (consenting unmarried of legal age and other factors) PERSON they want to. People are denied the right to marry other people. Just because no one can marry someone of the same sex does not mean it is equal because some don't want to.

[rpgamerd00d]

137. "All American males have the right to marry women. All American women have the right to marry men."

False.

No such Right exists.

[pnwmom]

152. You're certainly right about that.

For many reasons, but chief among them is that no man is allowed to marry "women."

[ThomCat]

145. Damn, that's a stupid post.

It was once decided that insurance companies were not discriminating against women by refusing to pay for pregnancy related expenses, because if men got pregnant they wouldn't be covered either.

Ridiculous? Absolutely. And you just used the same reasoning.

You just said that Gay people aren't discriminated against as long as they aren't gay. If they all suddenly become straight they have all the same rights as everyone else.
x(

[pnwmom]

154. It's not a stupid post. The legal reasoning involved is why we need

to change the laws AS THEY ARE PRESENTLY WRITTEN rather than to rely on the Courts to interpret them in the way we WISH they were written.

Otherwise, Courts like those in my own state will continue to uphold laws that deny marriage to gays and lesbians.

[mondo joe]

158. The legal reasoning is already there. The courts are simply too timid.

You want legal reasoning, see Goodridge v Dept of Public Health.

For that matter, see Andersen v King County.

[pnwmom]

164. It's not the legal reasoning that prevailed, unfortunately.

But we have an alternative -- rewrite the laws. Do it through the legislatures. First step, civil unions across the whole country. From there it's a pretty easy step to marriage.

[Maven]

181. It is the reasoning that prevailed in Goodridge,

where the Mass. Supreme Court ordered the expansion of marriage to include same-sex couples.

Constitutional interpretation is not about rigid rules, as the inexperienced OP assumes, but more about the application of rather abstract rights and guarantees to flesh out their boundaries. The placement of these boundaries is often revised as social conditions change; for example, the Supreme Court decision in Bowers v. Hardwick, upholding an anti-sodomy statute, was overruled by Lawrence v. Texas less than ten years later. Did "the law" change? Well, in a manner of speaking, yes. But it was all a matter of interpretation.

The legal argument for same-sex marriage would not be an answer to the sort of logic game the OP has conceived in a vacuum, but rather a claim based upon constitutional rights and guarantees at the state or federal level. Whether or not a court chooses to see things your way on this point is another issue, and is based on the language of the constitution, precedent construing that language, and not a little discretion on the court's part in deciding whether to expand the boundaries based on changed social conditions.

Thus, there is some merit to the realist school of jurisprudence, which basically asserts that courts often decide cases first, and come up with a legal rationale second--that they decide cases the way they want them to be decided. Certainly when it comes to constitutional law, this theory is apropos, as more liberal judges can (and often do) see fit to construe constitutional rights and guarantees more broadly.

Hope this helps.

[ruggerson]

156. Look at Loving V Virginia

which today stands as the law of the land.

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival...."

Now look at the language in Lawrence V Texas thirty five years later:

"the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections."

If six justices in Lawrence V Texas found that the 14th amendment protected intimate, adult consensual conduct (thus strengthening what Romer started - the constitutional recognition of gays and lesbians as a separate and distinct "group" of citizens under the law) AND if Justices had previously found in Loving that the US Constitution protected the right to marriage, indeed, going so far as to label marriage as "one of the basic civil rights of man," it stands to reason that there is no rational basis for any state to deny marriage based on the gender of the two participants involved.

This has not been argued at the SCOTUS level as of yet, but the language in Lawrence was already
cited in the reasoning of the Mass Supreme Court in Goodridge vs The Dept of Public Health, the landmark decision which legalized same sex marriage in Massachusetts.

The Goodridge decision can easily be extrapolated to the federal level based on the precedent cited above: "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."


I would suggest you read the entire decision in Goodridge, as it may shed some light on your inquiry.

http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html

[mondo joe]

161. Whenever I suggested Goodridge the OP ran away.

:eyes:

[ruggerson]

165. Which tells us what we already suspected :)

n/t

[Madspirit]

160. So?

That's correct, in marriage, the law only recognizes straight men and straight women and their desire. So it should be changed to recognize the Real World. The law is not sacrosanct. If it's broken, fix it. It is broken.

I have been with my girlfriend for 15 years. We've gone through all our parents dying; we've bought a house. ...many cars. We buy groceries together and we cook for each other and we eat together and we've seen horrible sadness and we've been over the moon happy. We've had the flu together, grieved together, loved together. Together we have animals and friends and we've shared every single thing two people can share. We love each other more than I even have words for. ...and after 15 years, I still like watching her walk away.

...AND I CAN'T EVEN BE ON HER FUCKING INSURANCE. ...and if I was in the hospital and couldn't make my own decisions, legally, they would call in some Neanderthal, East Texas hick-assed relative I haven't spoken to in 25 years, to make my decisions for me rather than the woman I've shared my life with.

This little point is, IMO, backasswards, homobaiting, (not by the OP, by the people they said they have been arguing the point with), because it's irrelevant if it is THE law or not. ...because if it is, screw it, change it, fix it.

NO document is sacrosanct. No law is above scrutiny. Not even The Constitution is. If some ancient damned piece of paper no longer works, take what you need from it, tear it up and write another one.

Like the flag, for some, these symbols have become more important than the Idea of It or The People it is supposed to serve.

I want my rights. ...and I want them yesterfuckingday. I want to marry her.
Madspirit

[JackBeck]

169. On freakin' top of it!

K&R for your post.

[donco6]

183. What she said. And then some. n/t

[Maven]

163. Get back to us when you're done with Con Law.

:eyes:

[Lex]

180. LOL!

:thumbsup:

[kevinbgoode]

172. The right to marry rests on principles of the right to privacy and

the right of individuals to freedom of association. Now when some con-servative says that doesn't mean the government has to "sanction" it, that's when you ask them to define the government's interest in regulating marriage. Just as in laws which regulate health decisions and define "family," the government's interest is NOT to arbitrarily deny all citizens the right to pursue happiness or secure liberty for themselves and their property - the intimate nature of marriage relationships certainly rises to the category of individual rights. In order for the government to deny equal access to protections and benefits under the law because of a relationship, it has to prove that there is an inherent physical or material harm that prevents recognition. They can't do that with same-sex couples. They can do it with people who, as brother and sister, might create a baby with major birth defects, and they can do it with setting an age of consent, because children are not always capable of making an informed decision.

From a legal standpoint, you should ask students if they believe marriage is no longer about love. Because the way con-servatives define it, and the way in which you frame your argument about any man being able to marry a woman, so everyone has the same right, it presumes that marriage is NOT about love - but nothing more than a born gender identification which doesn't even require procreation to receive the system of benefits. Their argument demeans marriage even more - leaving the institution as nothing more than an empty symbol rather than a celebration of love. Moreover, there are cases in which a baby is born without completely developed genitals, and the sex is assigned by the doctor and/or his parents. If the child, however, grows up with a different mindset than that assignment, in many states he/she can STILL be denied marriage, simply because some other man/woman and parents determined the gender without the child's permission. But the way laws are interpreted now in some states (like Oregon, for example), a man who changes his gender - who is already married to a woman when he has the operation - can STILL be married. I think if you explore the legal principles behind that action, you'll discover a foundation to mount an effective argument beyond the smoke-screen, poorly-thought-out line that con-servatives use on this issue.

[MasterDarkNinja]

182. Compare your legal argument to interracial marriages and it falls apart

By that legal argument you could argue that laws banning interracial marriages are fine, here's an example just changing what your legal statement to being about interracial marriages.

All white men can marry white women, all white women can marry white men, all black men can marry black women, all black women can marry black men. No whites have a right to marry blacks, no blacks have a right to marry whites, in other words from a strictly legal perspective, everyone lives under the same restrictions. So is there really legal inequality there?

Yeah my example assumes that interracial marriages are illegal when they aren't, but still it's a good comparison I think, because almost no one today would say interracial marriages are wrong, so it helps show how banning gay marriage is wrong to.

[LostinVA]

185. Having some Intellectual masturbation with my rights isn't the least bit amusing

And, your so-called thesis is wrong. If you really have studied Con Law, I suggest you have remedial session. ASAP.

[Cerridwen]

193. Something I just remembered...undue burden

I'm not sure if this is a legal justification; valid or invalid but it's something I remember.

When 2 people marry; there are many "rights" which they gain through their marriage license; insurance, death benefits, child custody, etc. Someone in this thread said 1400 rights and benefits kick in with that marriage license.

Those same legally accessible rights and benefits do not automatically kick in under our current definition of civil union, either.

Therefore, by denying marriage to a particular class, that class then is required to acquire those 1400 legally accessible rights and benefits (should they so choose) via legal process; contracts and so forth. Some of them can be denied (e.g., child custody) because of their sexual orientation.

So, it places on one class, the undue burden of acquiring rights and benefits which are given to another class automatically upon marriage. In addition, they have the added burden that some of those "rights" can be denied (e.g. again, child custody).

/my $0.02

edit to update: link and rights and benefits