Supreme Court Will Hear DOMA and Prop 8 Challenges: An Analysis

Dec 7, 2012 Read more: www.towleroad.com 769

The Supreme Court issued orders granting hearings in the Prop 8 case, Hollingsworth v. Perry , and one Defense of Marriage Act case , Windsor v. United States .

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“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#632 Dec 23, 2012
Fitz wrote:
<quoted text>
The side with the majority ends up being what is called "standing law". The minority writes a "dissent" - saying we think the law says X, Y or Z. At no point does the culture of the law decree that the other side is wrong, it's not terribly edifying in that regard.
As Roe vs Wade teaches us - just because an opinion is issued dosent mean the issue itself is settled culturally.
This could accrue to your advantage or mine...but I'm afraid that if your looking for "closure"...neither side is going to find it at the Supreme Court.
Exactly.

And considering the way the issue of marriage for same-sex couples in trending in society- with 70% of those under age 30 in support- any signifanct opposition to a court opinion affirming our right to marry will quite literally die out over the next generation.

It's only a matter of time.

Since: Jun 11

AOL

#633 Dec 23, 2012
"it is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage,(2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment." ""If we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions."

"Conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice." "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."
(In re marriage)
Fitz

Roseville, MI

#634 Dec 23, 2012
WeTheSheeple wrote:
<quoted text>
Because studies have shown that committed couples (including same-sex couples) are healthier, happier, live longer, and are more productive members of society whether they ever have children or not.
THAT is why the govt has an interest in promoting & giving certain rights/benefits to committed couples. Our govt has chosen to do that by giving those rights/benefits to those couples who have committed to each other through civil marriage.
It COULD be done any number of ways, including other civil unions/partnerships, but the easiest way is to do it through marriage- whether opposite-sex or same-sex.
The studies you allude to are all done on existing male/female marriages. Same-sex "marriage" has simply not been studied enough to justify making the same claims regarding same-sex couplings. Further more not every or even most same-sex couplings are sexual in nature. There becomes no rational reason to exclude multiple social relationships from the title and benifits of "marriage".

More importantly you assertion is completley a-historical. There is nothing in the legal precedents of marriage, nor in the historical record of our shared understanding of marriage that predicates a fundmental consititional right being rooted in in justification that marriage makes one "healthier, happier, live longer, and are more productive members of society"

Physical excercise delivers all the benifits of the above but no one ever called working out a fundemental consitiutional right.

Yours is an ad-hoc & psot-hoc rationalization for trying to piggy-back your need for social recognoition on the fundmetal consititutional right to marriage. You end up simply looking anti-intellectual and ill-liberal, you would be better off simply insisting that we change the definition because it fits your sexual ideology than pretending that marriage is not premised on responsible procreration.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#635 Dec 23, 2012
Fitz wrote:
<quoted text>

The deeper questions however, concerning the need for ones natural parents, the importance of gender, the importance of Fathers & Mothers in the lives of children young and old.
Their is a real cultural resistance and continued understanding of the importance and streagth of the natural family. True marriage will always be the gold standard, regardless of political pressure from the left.
Any allowing or denying same-sex couples the right to marry has ZERO effect on whether opposite-sex coulples get married or divorced or have children or not.

The ONLY thing it does if affect same-sex couples and the children we are going to raise regardless of marriage laws.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#636 Dec 23, 2012
Fitz wrote:
<quoted text>
The studies you allude to are all done on existing male/female marriages. Same-sex "marriage" has simply not been studied enough to justify making the same claims regarding same-sex couplings. Further more not every or even most same-sex couplings are sexual in nature. There becomes no rational reason to exclude multiple social relationships from the title and benifits of "marriage".
More importantly you assertion is completley a-historical. There is nothing in the legal precedents of marriage, nor in the historical record of our shared understanding of marriage that predicates a fundmental consititional right being rooted in in justification that marriage makes one "healthier, happier, live longer, and are more productive members of society"
Physical excercise delivers all the benifits of the above but no one ever called working out a fundemental consitiutional right.
Yours is an ad-hoc & psot-hoc rationalization for trying to piggy-back your need for social recognoition on the fundmetal consititutional right to marriage. You end up simply looking anti-intellectual and ill-liberal, you would be better off simply insisting that we change the definition because it fits your sexual ideology than pretending that marriage is not premised on responsible procreration.
If marriage was premised on "responsible procreation", then those who can't or don't or won't procreate wouldn't be allowed to marry.
Fitz

Roseville, MI

#637 Dec 23, 2012
WeTheSheeple wrote:
<quoted text>
If marriage was premised on "responsible procreation", then those who can't or don't or won't procreate wouldn't be allowed to marry.
Thats a bit silly, is it not enough to simply reserve marriage to the one and only coupling of individuals (male/female) capable of reproduction?

Since: Jun 11

AOL

#638 Dec 23, 2012
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.”

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.”

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.”

Zablocki v. Redhail, 434 U.S. 374, 384 (1978):“[T]he right to marry is of fundamental importance for all individuals.”

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.”

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.”

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.”

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.”
http://www.afer.org/blog/14-supreme-court-cas...

Since: Jun 11

AOL

#639 Dec 23, 2012
"The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies." (American Anthropological Association)
Fitz

Roseville, MI

#640 Dec 23, 2012
Not Yet Equal wrote:
"it is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage,(2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment." ""If we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions."
"Conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice." "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."
(In re marriage)
Very nice quote. Do you have a source for that particulat opinion. It would be appreciated.

Such blandishments are certainly derigure amoung leftists in our academies. They present certain unsurmoutable obstacles however after forty years of such "jurisprudence".

Heavy reliance on the 14th amendment, but a single amendment to our constitution. Often refered to in legal circles as "the amendment that swalloed our consitition" - a refrence to its persisted abuse.

Thats amendments context was of coarse the equal aplication of the law to newly freed slaves. Discrimnination based on race however has become permissable under the color of the state (called affirmative action). This from the same "jurisprudence" who's tortured logic cannot admit to the resonablness of contecting parent and child.

Advesaries of such tactics of coarse have been watching and learning. There comes a time when it becomes apparent that ones opposition is willing to say and do anything to obtain the results oriented jurisprudence that wins them their policy goals.

In such an enviroment it becomes obvious that principled opposition on well established legal principles is not enough to succesfully counter your advesary. One can game any system, especially when one is willing to break the law in pursuit of an agenda. The otherside can only be expected to excercise the same lack of priciple once it becomes apparent that good faith excercises to the contrary are futile.

This understanding is already permenating the academy, State Supreme Courts and the Federal Bench. One should not expect ones advesaries to continue in the same manner they have in the past. Indeed the definition of inanity is to "keep doing the same thing in the same manner & expecting a different result"
Fitz

Roseville, MI

#641 Dec 23, 2012
Not Yet Equal wrote:
"The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies." (American Anthropological Association)
Is that the same American Anthropological Association that wants to divest in Isreal, boycott Coca-Cola and the Catipilar Corporation thats support Union efforts and right to organize and a host of other issues unrelated to anthropology?

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#642 Dec 23, 2012
Fitz wrote:
<quoted text>
Thats a bit silly, is it not enough to simply reserve marriage to the one and only coupling of individuals (male/female) capable of reproduction?
If it was, then marriage would be reserved to only those able, willing, and intending to procreate. That of course would eliminate the infertile, elderly, and any other unwilling or unable to procreate.

So NO, it is NOT enough to simply reserve marriage to male/female.

Since: Jun 11

AOL

#643 Dec 23, 2012
WeTheSheeple wrote:
<quoted text>
If it was, then marriage would be reserved to only those able, willing, and intending to procreate. That of course would eliminate the infertile, elderly, and any other unwilling or unable to procreate.
So NO, it is NOT enough to simply reserve marriage to male/female.
It also ignores the reality that many gay people can and do procreate as well as raise adopted children, just like straight families. The artificial requirement the two marriage partners must be the biological parents is irrational,(even if raising children was or had ever been a requirement for marriage.)

Since: Jun 11

AOL

#644 Dec 23, 2012
Fitz wrote:
<quoted text>
Is that the same American Anthropological Association that wants to divest in Isreal, boycott Coca-Cola and the Catipilar Corporation thats support Union efforts and right to organize and a host of other issues unrelated to anthropology?
Fails to refute the information provided.

Same sex households can be found across time, place, and culture.
Fitz

Roseville, MI

#645 Dec 23, 2012
WeTheSheeple wrote:
<quoted text>
If it was, then marriage would be reserved to only those able, willing, and intending to procreate. That of course would eliminate the infertile, elderly, and any other unwilling or unable to procreate.
So NO, it is NOT enough to simply reserve marriage to male/female.
No, you see..instead of the law poking around and asking if anyone is infertile or ordering medical tests or asking if they intend to have children..

Instead you simpley reserve marriage to the one and only coupling of individuals capable of producing children together.

That way when you go an expect Fathers (for instance) to take responsibility for the children they sire, you can do it with an ounce of integrity.

For instance the Maryland Supreme Court..

The majority next rejected the idea “that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in history and tradition of Maryland.” In fact, the court noted that previous cases recognizing a fundamental right to marry “infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.” In fact, the court said that virtually all of the cases “indicate[] as the basis for the conclusion the institution’s inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman.”

In terms of the justifications for the current marriage law, the court ruled “fostering procreation is a legitimate government interest” and the “‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).” The court held “the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation.”
Fitz

Roseville, MI

#646 Dec 23, 2012
Not Yet Equal wrote:
<quoted text>
Fails to refute the information provided.
Same sex households can be found across time, place, and culture.
I was simply asking if it was the same orginization. No attemopt at refutation was attempted.

The idea here is that organizations can be transparently poltically motivated even though the uniformed may consider them "detached" "objective" and "academic".

Since: Jun 11

AOL

#647 Dec 23, 2012
"In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision. The court has no doubt about its conclusion: the Debtors have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled."

http://metroweekly.com/poliglot/57794777-DOMA...

“SCOTUS will Rule in June for”

Since: Aug 08

MARRIAGE EQUALITY:-)

#648 Dec 23, 2012
Fitz wrote:
Instead you simpley reserve marriage to the one and only coupling of individuals capable of producing children together.
This is the problem though.....PROCREATION is NOT a requirement to getting married.....and therefore the argument is IRRELEVANT!!!!

“SCOTUS will Rule in June for”

Since: Aug 08

MARRIAGE EQUALITY:-)

#649 Dec 23, 2012
Fitz wrote:
For instance the Maryland Supreme Court..
The majority next rejected the idea “that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in history and tradition of Maryland.” In fact, the court noted that previous cases recognizing a fundamental right to marry “infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.” In fact, the court said that virtually all of the cases “indicate[] as the basis for the conclusion the institution’s inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman.”
In terms of the justifications for the current marriage law, the court ruled “fostering procreation is a legitimate government interest” and the “‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).” The court held “the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation.”
Please site case....thanks!
Mona Lott

Hoboken, NJ

#650 Dec 24, 2012
Fitz wrote:
<quoted text>
The studies you allude to are all done on existing male/female marriages. Same-sex "marriage" has simply not been studied enough to justify making the same claims regarding same-sex couplings. Further more not every or even most same-sex couplings are sexual in nature. There becomes no rational reason to exclude multiple social relationships from the title and benifits of "marriage".
Arithmetic is a rational reason.

Since: Jun 11

AOL

#651 Dec 24, 2012
Gill v OPM
"This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.

But even if Congress believed at the time of DOMA's passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it "prevents children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure, when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country. Indeed, "the sterile and the elderly" have never been denied the right to marry by any of the fifty states. And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.

Similarly, Congress' asserted interest in defending and nurturing heterosexual marriage is not "grounded in sufficient factual context for this court to ascertain some relation" between it and the classification DOMA effects.

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law..."
http://docfiles.justia.com/cases/federal/dist...

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