subgenius wrote:Darth J wrote:Show me this magical, wonderful jurisdiction in the United States where marriage is anything other than a domestic partnership.
i have already...in about 30+ states. Simply put, your omission of marriage being a domestic partnership between a man and woman is revealing of your inability to close the deal. If it were, as you say, simply a domestic partnership, then the obvious presumption and flat-out requirement in most jurisdictions ,for marriage to be composed of a man and woman would not occur.....but it does.
The reason I can't close the deal is because you're an idiot. None of this says why a marriage has to be exclusively between a man and a woman. "Because that's how we've always done it" is not a rational basis. It is an appeal to tradition. "Because that's what marriage is" isn't a rational basis, either. It's circular reasoning. There is nothing about the substance of what a marriage is that is contingent on a biological difference between the sexes. There is nothing about this domestic partnership that two people of the same sex can't do just as much as two people of the opposite sex can do.
The issue in an equal protection claim being decided under a rational basis test is whether the discrimination is arbitrary. You are not refuting the proposition that there is no rational basis for prohibiting same-sex marriage. You are confirming it. Name ONE substantive right or duty incident to the validity of a marriage that necessarily requires the parties to be of the opposite sex.
subgenius wrote:1 USC § 7 - DEFINITION OF “MARRIAGE” AND “SPOUSE”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
http://www.law.cornell.edu/uscode/text/1/7
28 USC § 1738C - CERTAIN ACTS, RECORDS, AND PROCEEDINGS AND THE EFFECT THEREOF
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
http://www.law.cornell.edu/uscode/text/28/1738C
http://caselaw.lp.findlaw.com/cgi-bin/g ... 4&invol=15
These provisions of DOMA are unconstitutional. I already gave an example in this thread of a federal court ruling on that. Here's another example: http://law.justia.com/cases/federal/dis ... 123233/58/
It means absolutely nothing to refer to an unconstitutional statue to show a "legal" definition. That's about as meaningful as referring to the Extermination Order to show that it's against the law to be a Mormon in Missouri, or antebellum statutes from Georgia to show that it's legal to buy and sell black people.
Murphy v Ramsey 114 U.S. 15 (1885)
where Supreme Court clearly describes marriage as
"the union for life of one man and one woman.....the sure foundation of all that is stable and noble in our civilization."
I've already explained in this thread and a previous one why this means nothing. The dissent in Romer v. Evans recognized that. It's dicta. It's a judicial editorial. This statement does not have the force of law.
Darth J wrote:Yeah, you have already demonstrated your utter inability to understand how to tell the difference between a holding and dicta, or how stare decisis works, in reference to this case. And here's what I said before:
and yet the point was to provide a "legal definition"...and once again it has been provided...and once again you deny that what is before you actually exists.
and don't forget the following link http://www.clgs.org/marriage/state-definitions
your ineptness is in that you dismiss the factual references to State Constitutions (Law / Legal) that literally DEFINE marriage, and then your rebuttal consists of "anyone can title a webpage "legal definitions""....for which i agree on this latter point, and by the referenced example the "anyone" has rightly and accurately done so. Your position has not contradicted or dis-proven the validity of the "definitions" provided.
No, it's things like Perry v. Brown and Golinski v. United States that disprove the validity of the "definitions" (which you unwittingly but correctly put in scare quotes). NONE OF THE THINGS ON YOUR LIST TALK ABOUT THE SUBSTANCE OF WHAT HAPPENS IN A MARRIAGE AND WHAT THE RIGHTS AND DUTIES OF THE PARTIES ARE. NONE OF THIS EXPLAINS WHY THE PARTIES HAVE TO BE OF THE OPPOSITE SEX.
Darth J wrote:I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. [/color] (Scalia, J., dissenting).
so, when i reference from a "dissenting" opinion you dismiss it as invalid...because it is "dissenting"....yet, here you expect to carry weight as a valid rebuttal....
....hmmm...you might be right in that its not fascism i smell.......its hypocrisy
And stop talking about fascism. You don't understand what that is, either.
The reason you think this is hypocrisy is that you don't understand what you're purporting to talk about. You picked Holme's dissent from Lochner to suggest that it was a legally binding opinion on the scope of the 14th Amendment. It wasn't. The only thing your reference to that dissent did is show how oblivious you are to what you're attempting to talk about. You give this sermon about how wonderful natural law is (even though you don't understand it), and then try to pair that with a dissenting opinion by Oliver Wendall Holmes, Jr., who was an opponent of natural law theory.
My citing Scalia's dissent was not to suggest that it was binding law, like your citation was. I was demonstrating that nobody---not even judges opposed to judicial review of marriage laws---thinks that your little snippet from Murphy means anything.
Darth J wrote:At the time the 14th Amendment was ratified, women could not vote, and the common law held that "the husband and wife are one, and that one is the husband." So that must mean we are forever bound to interpret equal protection as applied to marriage through 19th-century social conventions about women.
excuse me, but we are talking about marriage. Your feeble attempt to transpose the argument for suffrage, etc is sad...try to stay on the topic.
You wanted to talk about the historical, social, blah, blah, blah considerations about marriage. You can't cherry pick just faith-promoting aspects of social and legal views of the sexes if you start that discussion. That history is the context of this wonderful idea of "traditional marriage" that you are pretending to have ever existed.
Darth J wrote:Every time you post your pseudolaw gibberish, it makes Jesus cry.
but He laughs at you
Well then I guess I won't have the benefit of Him giving me radioactive rocks the next time I'm set adrift in a wooden Bronze Age submarine for a year.
Darth J wrote:Because there aren't any. Not that you have asserted that are relevant to the issue.
but your mention of a woman's right to vote is relevant, right?....geeezz
A woman's changing place in society, and views on gender roles in society, absolutely are relevant to the discussion you invited about a textual, historical, functional, doctrinal, prudential, equitable, and natural look at what marriage has meant over the years.
Darth J wrote: North Carolina Supreme Court held that a woman could not divorce her husband just because he beat her with a switch and a horsewhip.
and yet another addition to the long list of logical fallacies you promote...i must compliment you on your ability to be inaccurate both with inductive and deductive aims.
That's not inductive or deductive reasoning. I don't have to guess. That's what they actually said.
http://sobek.colorado.edu/~mciverj/2481_59NC322.html
There are circumstances under which the striking of his wife with a horsewhip, or switch, by a husband, and inflicting bruises, would not be the ground of a divorce. Where, therefore, such violence was made the ground of an application for a divorce, it was Held, to be necessary that the bill, or petition, should set forth particularly and specially what she did and said immediately prior to and during such use of force.
Darth J wrote:.... But I'm not asserting a fundamental right to same-sex marriage and never have, so this is irrelevant.
yes, we know....your concern is the right to "ban"...or lack of that right. Which has been beaten to death. As is obvious, the State has the right to ban or endorse marriages composed of whatever elements.
So you'll agree with me that the state can make it illegal for two Mormons to marry each other, since "the State has the right to ban or endorse marriages composed of whatever elements."
Darth J wrote:If the state recognizes marriages irrespective of the partners producing a child, then this supposed interest in limiting marriage to only a male and female does not exist.
what a ridiculous conclusion and ultimatum. The State clearly recognizes the burden in policing the fetility of its citizens, but that does not mean it has no interest in said fertility. The interest is explicitly expressed by the requirement for man and woman...there can be little concluded otherwise from the already existing laws that require such and by the simple fact that it is the tradition and definition of marriage. Your denial of this simple truth does not make it false.
The traditional definition of marriage includes the right for a husband to beat his wife with a switch and a horsewhip.
The U.S. Supreme Court has repeatedly and consistently held that the "interest in fertility" is vested in individual citizens, not the government. Choices about reproduction are covered by a substantive due process right to privacy (that originates in concept of natural law). The state does not have the power to impose its supposed "interest" in fertility on people. That's what a right is. It's a limit on government power. So this whole "government interest in fertility" babble is a non-starter.
It's also a non-starter in substance. Even assuming, contrary to decades of constitutional law, that the government legitimately has this "interest" in fertility, that interest has been waived by the complete absence of any law anywhere in this country that annuls a marriage based on the failure of the couple to reproduce.
If the state really believed in this fantasy about "traditional marriage" (which in history has condoned wife beating, arranged marriages, dowries, and the refusal to recognize a wife as a separate, legally competent adult person), then the state would enact a law to that effect.
by your logic with anecdotes about "it used to be legal eat children with a spoon", it is clear that all laws are inherently useless by the fact that they will all eventually be proven as such...therefore their existence is futile and unnecessary.
Joyner v. Joyner isn't an "anecdote." It's case law from North Carolina. At the time it was decided, and for years afterward, it was law. Conversely, it has never been legal to eat children with a spoon or anything else.
So what you really mean by a "a textual, historical, functional, doctrinal, prudential, equitable, and natural" analysis of marriage is that you want to talk about Adam and Eve.
Darth J wrote:The legal definition of marriage does not include the presumption of the ability to have children. Not anywhere in the United States.
Actually every single definition does,
Tell me which one says infertile heterosexual couples cannot get married.
the notion that the history of marriage laws was a conspiracy against the LGBT is retarded,
And since I'm not saying that, this is irrelevant.
and your unwillingness to accept the factual information regarding these definitions is no longer my problem - even when you have already conceded this point you still deny deny deny:
Tell me which one says infertile heterosexual couples cannot get married.
subgenius wrote:Glad to see you recognize that marriage is a fundamental right as described above, and has been supported over over by case law....or do you now deny that marriage is a "fundamental right".
The only thing you're proving by characterizing this as a contradiction is showing that you're an uninformed rube who relies on Heritage Foundation-type editorials for an understanding of family law and constitutional law.
I don't think same-sex couples have a fundamental right to marry. I think they have an equal protection right to marry. When state law defines a liberty or property interest, the state cannot arbitrarily deprive certain citizens of that right. There has to be a rational basis for doing so. There is no rational basis for prohibiting same-sex couples from marrying because there is no right, no duty, nor anything else substantive about marriage as it exists in law today (positive law, not stories from Sunday school) that is contingent on biological differences between the sexes. Nothing.
...but hey i can entertain your under-a-rock gleanings, what other possible reason could be given as to why countless legal definitions are specific to the "man and woman" requirement for marriage? What possible State interest is served by such a specification?
None. And it is not my fault that you can't understand the difference between capacity and a substantive definition.