Gay Marriage goes to the Supreme Court

Forum adverts like this one are shown to any user who is not logged in. Join us by filling out a tiny 3 field form and you will get your own, free, dakka user account which gives a good range of benefits to you:

No adverts like this in the forums anymore.
Times and dates in your local timezone.
Full tracking of what you have read so you can skip to your first unread post, easily see what has changed since you last logged in, and easily see what is new at a glance.
Email notifications for threads you want to watch closely.
Being a part of the oldest wargaming community on the net.

If you are already a member then feel free to login now.

**Huffy**

From BBC

The US Supreme Court has agreed for the first time to hear challenges to laws banning gay marriage in the US.

The court will hear challenges to the Defense of Marriage Act (Doma), which defines marriage as between a man and a woman.

It will also consider Proposition 8, a constitutional amendment in California that overturned a state law allowing gay weddings.

The court is likely to hear the cases in March next year.

A ruling could be issued in June.

Both Proposition 8 and Doma have been previously struck down by lower courts.

The Supreme Court has the option of reversing the lower judgements - thus reinstating both laws - or upholding them, which could afford gay weddings legal status under the US Constitution.

However, the justices have also reserved the right to decide that they do not have jurisdiction to hear the cases.

'Unfair discrimination'
Backers of the California case argue that voters in the state breached the US Constitution by passing Proposition 8
They will argue that a state Supreme Court ruling allowing gay marriage to go ahead should stand. No gay weddings are currently allowed in California, pending the outcome of the Proposition 8 case.

Doma, a federal law signed by former President Bill Clinton, has been overturned by four federal courts and two courts of appeal. They said Doma unfairly discriminated against same-sex couples.

It was most recently rejected by the 2nd Circuit Court of Appeals in New York, which ruled 2 to 1 on October that it violated the equal protection clause of the Constitution.

President Barack Obama, who backed gay marriage in May, also took the unusual step of announcing that his administration would not back Doma in court.

Although the federal government no longer defends Doma, it is the New York case, first brought by a widow called Edith Windsor, that the Supreme Court will hear.

She was forced to pay more than $350,000 (£220,000) in taxes after the death of her wife because Section 3 of Doma defines "marriage" and "spouse" as only relating to unions of men and women.

The law is supported by Republicans in Congress, and lawyers acting for the House of Representatives leadership are defending the law instead of the US government.

The court was also asked to consider the merits of a challenge to part of a 2009 Arizona law granting marital benefits only to legally married state employees. Gay marriage is not legal in Arizona.

But the nine justices chose not to hear that case, instead opting for the two cases analysts say offer a chance of a broad ruling.

Can't wait to hear the results on this

**Peregrine**

Well, I guess we're about to find out what the ratio of bigoted

s to decent and sensible people on the supreme court is.

**d-usa**

They won't rule on it.

They will find that the parties that ate trying to enforce it and are appealing don't have the legal right to enforce it and it will be send back to the lower courts that struck it down.

So no real verdict on the legality of the DOMA or the California law, just that a lower court struck it down and congress or special interest groups can't appeal something that the executive refuses to enforce so the lower courts ruling stands.

**LordofHats**

IDK bout that. This Supreme Court has in the past few years surprised observers (slightly) with some of their decisions. Will be interesting.

**Ratbarf**

Well, I guess we're about to find out what the ratio of bigoted s to decent and sensible people on the supreme court is.

Well actually it should be about the letter of the law and not about whether they are bigoted or not. Really the states could so easily correct this by not calling the act of civil union marriage. It's a religious term and should be left to religion, you only really get these kind of issues when you mix religion and policy in the first place.

**AlexHolker**

Ratbarf wrote:
Well actually it should be about the letter of the law and not about whether they are bigoted or not. Really the states could so easily correct this by not calling the act of civil union marriage. It's a religious term and should be left to religion, you only really get these kind of issues when you mix religion and policy in the first place.

Do you honestly believe that? Renaming "marriage" to "civil union" isn't going to satisfy the people who oppose same-sex marriage, it's going to make them start shouting "See! See! They killed marriage!"

Not to mention the complete screwup it's going to be to ensure compatibility between marriage states and civil union states, given the problem is defined by irrational opposition to same-sex marriage. For example, if you travel to the UK, are their laws going to give the same rights to civil unions as to marriages?

**Ratbarf**

Do you honestly believe that? Renaming "marriage" to "civil union" isn't going to satisfy the people who oppose same-sex marriage, it's going to make them start shouting "See! See! They killed marriage!"

Not to mention the complete screwup it's going to be to ensure compatibility between marriage states and civil union states, given the problem is defined by irrational opposition to same-sex marriage. For example, if you travel to the UK, are their laws going to give the same rights to civil unions as to marriages?

Which part? The issue about legality or misuse of a religious term for state policy?

If it's the prior, well, that's what judges are for in this case, to determine the legality of a law, not to write it the way they feel it should be written.

If it's the latter, I am against same sex marriage for religious reasons. If they changed it to civil union then I would have no issue with it, because then it wouldn't be marriage, and my religion wouldn't give two feths.

**hotsauceman1**

Marriage has not always had religious meaning.
Right around the colonisation of american, Marriage was nothing more then a way to control people into certain roles. That is what marriage really got started, a way to control and mold people into acceptable roles.

**Mannahnin**

Marriage is as much a civil contract and a legal status as it is a religious concept. And it always has been; going back millenia.

Looking forward to seeing what comes of this. Although I suspect that DoMA may get shot down in the way that d-usa described, by the Supremes deciding that Congressional Republicans have no standing to defend it, the fact that they decided to handle Prop 8 at the same time makes me a bit more optimistic that we could get a broader ruling.

**whembly**

This one of the few cases that I think it's clear.

Gays are being treated differently and thus equal protection of the law isn't applied "equally".

I hope the SC strikes them down.

**d-usa**

Mannahnin wrote:
Marriage is as much a civil contract and a legal status as it is a religious concept. And it always has been; going back millenia.

Looking forward to seeing what comes of this. Although I suspect that DoMA may get shot down in the way that d-usa described, by the Supremes deciding that Congressional Republicans have no standing to defend it, the fact that they decided to handle Prop 8 at the same time makes me a bit more optimistic that we could get a broader ruling.

But I think Prop 8 has been handled similarly, with the governor and AG refusing to enforce it so all the appeals and such have been filed by special interest groups and not the executive.

I would like a clear ruling on this, but I think this is the way they will punt.

If they do it will also be fuel for democrats though for every election until they do a real ruling. "Vote for us and marry, but if a Republican wins they will enforce it so don't vote for them!"

**KalashnikovMarine**

As a nation we need to agree that there's religious and legal states called marriage, and that these things are not the same.

**d-usa**

As a nation with religious freedom we need to agree that the religious concept of marriage has absolutely no bearing on the legal status of marriage.

**LoneLictor**

But then we'll get religious fanatics screaming, "THEN PEOPLE WILL MARRY ANIMALS, BLOW-UP DOLLS, AND DEAD BODIES!" and making other strawman arguments.

**d-usa**

My usual comeback is to ask them of sidewalks and animals can sign legal documents, that usually shuts them up fairly quickly.

**Ratbarf**

Marriage has not always had religious meaning.
Right around the colonisation of american, Marriage was nothing more then a way to control people into certain roles. That is what marriage really got started, a way to control and mold people into acceptable roles.

Really? Because I would love to look at that, every marriage law I've ever heard of has always been based in the religion of the time for it's justification, making it a religious thing.

**AlexHolker**

Ratbarf wrote:
Really? Because I would love to look at that, every marriage law I've ever heard of has always been based in the religion of the time for it's justification, making it a religious thing.

So what? If you're a Christian, why do you give a damn what the Greek pantheon had to say about marriage?

**Captain Fantastic**

I can't believe the nonsense that people actually get upset about in this country.

It's really pathetic how hard the religious-right is trying to hold on to the issue.

**Peregrine**

Ratbarf wrote:
Really? Because I would love to look at that, every marriage law I've ever heard of has always been based in the religion of the time for it's justification, making it a religious thing.

Of course they used religion for justification, because saying "marry so that I can make sure that the heirs you provide me with are my biological children and I don't let some other guy's kids inherit my wealth" or "I need a contract to prove that I own this woman" isn't going to be very persuasive. Instead you make up a bunch of nonsense about how god demands marriage and you'll burn in hell if you have sex outside of it, and suddenly it has more "legitimacy".

Also, my religion says that gay marriage is the ONLY allowable kind of marriage, so please stop claiming that your religion's definition of marriage is the only one.

**dogma**

Peregrine wrote:
Instead you make up a bunch of nonsense about how god demands marriage and you'll burn in hell if you have sex outside of it, and suddenly it has more "legitimacy".

That is generally how legitimacy works.

**d-usa**

And we are away from talking about how the Supreme Court might decide and why and are back to our usual talk about marriage and religion.

**nomotog**

whembly wrote:
This one of the few cases that I think it's clear.

Gays are being treated differently and thus equal protection of the law isn't applied "equally".

I hope the SC strikes them down.

I kind of wonder how they are going to argue this. I guess you could say that it's fair because straight people can't gay marry. That's insane though.

**Peregrine**

d-usa wrote:
And we are away from talking about how the Supreme Court might decide and why and are back to our usual talk about marriage and religion.

Of course we are, because there's not really much to talk about. Legally and ethically it's perfectly clear what the correct answer is, so the only question is whether the court will make the obvious correct ruling, deal with the case on a technicality and avoid making any substantial comment on the law, or have five votes out of bigoted spite and uphold the existing law. The only real news here is that the court has decided to accept the case, and there's not much to say about that besides "it's about time".

**Ratbarf**

Also, my religion says that gay marriage is the ONLY allowable kind of marriage, so please stop claiming that your religion's definition of marriage is the only one.

Well it is for me and my religion. That's why I would prefer state marriage to be called civil union. That way I could have my cake and you can unionise with all the blokes you want.

**Peregrine**

Ratbarf wrote:
Also, my religion says that gay marriage is the ONLY allowable kind of marriage, so please stop claiming that your religion's definition of marriage is the only one.

Well it is for me and my religion. That's why I would prefer state marriage to be called civil union. That way I could have my cake and you can unionise with all the blokes you want.

Fine, as long as ALL state-recognized marriage is called a civil union, whether it's between a man and a woman, a man and a man, three men and sixteen women, whatever. Have whatever ceremony you want in your church for whatever people you want, call it "marriage", or "bdofjgd", or whatver you want, but it doesn't mean anything unless you go to the courthouse and sign the civil union paperwork.

Not that your preference matters, as your religion doesn't have a monopoly on the term "marriage", and there's absolutely no reason for the state to grant you exclusive use of it. The court should (and hopefully will) ignore your preference, just like it would ignore a (hypothetical) preference that "marriage" only applies to white people.

**dogma**

Peregrine wrote:
Legally and ethically it's perfectly clear what the correct answer is, so the only question is whether the court will make the obvious correct ruling...

Ethically maybe, legally not at all. In fact, I suspect you're conflating the two.

**AlexHolker**

dogma wrote:
Peregrine wrote:
Legally and ethically it's perfectly clear what the correct answer is, so the only question is whether the court will make the obvious correct ruling...

Ethically maybe, legally not at all. In fact, I suspect you're conflating the two.

Prohibiting same-sex marriage is a violation of the Fourteenth Amendment of the US Constitution. If a consenting adult man can obtain a particular set of rights and protections by marrying a consenting adult woman, there needs to be a damn good reason to forbid that same set of rights and protections to a consenting adult woman. And no, the "whites and blacks are equally forbidden from marrying outside their race, so it's not discriminatory" argument has already been thrown out.

**Peregrine**

dogma wrote:
Ethically maybe, legally not at all. In fact, I suspect you're conflating the two.

Legally it's perfectly clear in two ways:

1) The whole "equal protection" thing has been settled many times already. The same reasoning that strikes down laws against interracial marriage also strikes down laws against gay marriage, and the only thing keeping DOMA and other similar laws around is the fact that race-based discrimination is socially disapproved, while sexuality-based discrimination still has support.

2) The "full faith and credit" clause also settles it. DOMA doesn't just let states decide who they will issue marriage licenses to, it bans recognition of legal contracts issued in some states and causes a couple that is legally married in one state to magically become un-married as soon as they cross the wrong state line. There's obvious precedent, if not explicit rulings, that marriage and similar contracts should be valid across state lines, as the alternative is a confusing mess. The only reason some marriages are considered unquestionably valid while others aren't is that this particular form of discrimination is still socially acceptable, not because of some fundamental legal difference between the two.

If the supreme court wants to rule according to the law instead of out of bigotry and spite, they have only two options: strike down the laws, or reject the standing of the third-party defense and allow the lower court rulings to stand (at least until a new administration decides to defend the law).

**dogma**

AlexHolker wrote:
Prohibiting same-sex marriage is a violation of the Fourteenth Amendment of the US Constitution.

No it isn't. The 14th Amendment, in this case, provides for equal protection under the law. If marriage is defined as a particular union between a man and a woman it is not unconstitutional as said law does not stipulate that the partners need to be in a loving, sexual relationship; ie. a gay man could very readily marry gay woman. It would, however, be unconstitutional if there existed a law that defined marriage as above, but further stated that homosexuals were not permitted to marry.

In this last case equal protection is violated because a specific stipulation exists to deny equal protection to a select group.

AlexHolker wrote:

If a consenting adult man can obtain a particular set of rights and protections by marrying a consenting adult woman, there needs to be a damn good reason to forbid that same set of rights and protections to a consenting adult woman.

Morally, yes. Legally, not necessarily. It is important to recognize the difference between the two.

AlexHolker wrote:

And no, the "whites and blacks are equally forbidden from marrying outside their race, so it's not discriminatory" argument has already been thrown out.

Yes, that is a terrible argument, because laws defining marriage as being between a man and a woman are discriminatory. However, that does not make them unconstitutional.

**Peregrine**

dogma wrote:
No it isn't. The 14th Amendment, in this case, provides for equal protection under the law. If marriage is defined as a particular union between a man and a woman it is not unconstitutional as said law does not stipulate that the partners need to be in a loving, sexual relationship; ie. a gay man could very readily marry gay woman. It would, however, be unconstitutional if there existed a law that defined marriage as above, but further stated that homosexuals were not permitted to marry.

"
Except this reasoning has already been struck down in other cases. You can't define marriage as "a union between a white man and a white woman or a black man and a black woman" and ban interracial marriage just because that's what the definition says.

Yes, that is a terrible argument, because laws defining marriage as being between a man and a woman are discriminatory. However, that does not make them unconstitutional.

The courts have very clearly decided that laws banning interracial marriage are unconstitutional, and the same reasoning applies to gay marriage.