Massive, crushing defeat for Marriage Equality in New York

[The Duchess of Zeon]

You are being treated equally under the law right now. If you choose to marry a woman, your marriage will be recognised, just as it would be for a heterosexual. And if a heterosexual man chooses to marry another man, his marriage will be equally invalid as though he were a homosexual.

Now, that was, of course, a cheap shot; my point, however, is that homosexual marriage rights do not automatically follow from the fourteenth amendment. According to the interpretation favoured by you (and most other people here on this board), they do; but other people have other opinions, and it is nothing short of dishonest to claim that yours alone must be correct when the paragraph is phrased as it is. Interpreting the Constitution is exactly what the courts are there for, and their interpretation trumps yours unless the Constitution was rewriten since last I read it. You may disagree with Seraphine, but being an arsehole towards him for not valuing your interpretation over the presently legally valid one neither helps anything, nor does it make you look good.

Conversely, it does also trump Serafine's, which renders the arguement of "courts expanding rights" (as opposed to just clarifying what the existing rights actually mean) ludicrous and equally frivolous.


Serafine: Sorry about not getting those definitions to you, but I'm in the middle of finals, and I remain first and foremost a practical engineering student.

[Darth Hoth]

Under the Constitution, that is true, and the chief authority of interpretation is ultimately the Supreme Court. This does not, of course, disallow others from having their own opinions, but they cannot claim them as having obvious validity. Alyrium's "Because I say so, fuckwit, and by the way you're a cocksucker!" attitude was frankly moronic.

[Simon_Jester]

I'd be fine with it because all I'd be losing is those 1400+ little tidbits. I might be miffed if the 1st Amendment was put up to a popular vote, tho.

How do you establish that the First Amendment is fundamentally more important than each and every one of those "tidbits?" That it is any less a right, even if a bunch of random people in 1790 didn't think to label it as such?

[Alyrium Denryle]

Now, that was, of course, a cheap shot; my point, however, is that homosexual marriage rights do not automatically follow from the fourteenth amendment.

No. It was less than a cheap shot. That argument has been ripped to shreds in several courts now. It is unequal for the same reason that bans on interracial marriages are unequal even though both individuals could choose to marry a member of their own race.

You may disagree with Seraphine, but being an arsehole towards him for not valuing your interpretation over the presently legally valid one neither helps anything, nor does it make you look good.

Actually the legally valid one at the federal level is my viewpoint. Why? It has not come up directly but there was a certain case regarding interracial marriages that uses the exact argument you just used. It failed miserably.

[Alyrium Denryle]

Under the Constitution, that is true, and the chief authority of interpretation is ultimately the Supreme Court. This does not, of course, disallow others from having their own opinions, but they cannot claim them as having obvious validity. Alyrium's "Because I say so, fuckwit, and by the way you're a cocksucker!" attitude was frankly moronic.

Actually no. I laid out an argument based on the text. The fuckwit bit was flourish. It takes some really fucking special logical gymnastics to get around the plain text of that particular part of the constitution.

[Darth Hoth]

Actually the legally valid one at the federal level is my viewpoint. Why? It has not come up directly but there was a certain case regarding interracial marriages that uses the exact argument you just used. It failed miserably.

I am not a lawyer or anything of the sort, but I would believe that such a case sets no authoritative precedent for the case of homosexual marriages (or else, they would be accepted by now). Until the Supreme Court strikes down DOMA on this basis you have no legal authority to claim that it is the legally accepted view, since presently the law is allowed to stand as is. Your opinion is another matter, but as long as the law is not successfully challenged, it is assumed to be valid for all legal intents and purposes.

Actually no. I laid out an argument based on the text. The fuckwit bit was flourish. It takes some really fucking special logical gymnastics to get around the plain text of that particular part of the constitution.

Your argument that the wording explicitly supported your position lacked support, hence profanity was basically your only point. The text as written does not clearly and beyond any doubt reveal the right to homosexual marriage. That is contingent on your interpretation thereof. You may argue that your interpretation is more reasonable or better supported by precedent, or not, but it is still a matter of interpretation, you cannot claim otherwise. Gratuitously flaming Serafine like that was uncalled for; he was not being dishonest, and the matter of the correct interpretation is not ironclad or set in stone. (And yes, I am aware that "This is StarDestroyer.Net where we have none of those stinking God-damned net-nanny Miss Manners rules, FUCK-YEAH!" but still, one can exercise personal restraint and good taste; just being allowed to pour bile on people is not a good reason to do so.)

[Alyrium Denryle]

). Until the Supreme Court strikes down DOMA on this basis you have no legal authority to claim that it is the legally accepted view, since presently the law is allowed to stand as is.

This is correct. it would be persuasive precedent, not binding. At least not on the SCOTUS.

Your argument that the wording explicitly supported your position lacked support, hence profanity was basically your only point. The text as written does not clearly and beyond any doubt reveal the right to homosexual marriage.

"All Persons" and "Equal Treatment of the laws" is about as explicit as we ever see in the constitution. Said individual was claiming that it was not a specifically enumerated right. It is, very clearly. Now I realize that "logic" and "what happens in a court" are not often the same thing. However if we take an honest and purely logical look at the text and what it means, given what marriage laws are, there is only one logical conclusion. That I am legally entitled to said marriage laws protecting me. Under Loving v. Virginia that means that I am ALSO entitled to have said marriage laws protect me and the person of my choosing. Is it possible that the SCOTUS might say "Now we know these exact same arguments were used before and they failed, but because you are a gay abomination unto the lord we will accept them to rationalize bigotry"? Of course. But the legal reasoning there will look like what happens to someone who experiences a rock slide. It will be bent and twisted and will need to be identified through DNA.

[Qwerty 42]

It is a good thing that is is going to be voted on: at least, in the sense that the only present alternative is the preservation of the current system of injustice. I would much rather have the former than the rather.

[Darth Hoth]

"All Persons" and "Equal Treatment of the laws" is about as explicit as we ever see in the constitution. Said individual was claiming that it was not a specifically enumerated right. It is, very clearly. Now I realize that "logic" and "what happens in a court" are not often the same thing. However if we take an honest and purely logical look at the text and what it means, given what marriage laws are, there is only one logical conclusion. That I am legally entitled to said marriage laws protecting me. Under Loving v. Virginia that means that I am ALSO entitled to have said marriage laws protect me and the person of my choosing. Is it possible that the SCOTUS might say "Now we know these exact same arguments were used before and they failed, but because you are a gay abomination unto the lord we will accept them to rationalize bigotry"? Of course. But the legal reasoning there will look like what happens to someone who experiences a rock slide. It will be bent and twisted and will need to be identified through DNA.

It is not specifically and explicitly enumerated as the rights he cited are, in various amendments. If one takes Amendment 15, for example, it is very clearly and explicitly defined and limited; "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Here, the intentions are fairly much crystal clear. By contrast, Amendment 14 is vaguer in absolute terms and leaves more room for interpretation; using that, you need to infer that lack of the right to homosexual marriage constitutes denial to homosexuals of equal protection under the law, something that not everyone (or if I recall correctly, even the majority) in the United States would agree with. The point is not whether this interpretation is better supported than another, but that there does exist room for different interpretations in the first place. There is no "absolute truth" on the matter; the Constitution is unclear enough on this point as to leave the question open. Which is why a SCOTUS ruling is presently needed on the issue.

[Serafine666]

To knock it into your thick skull, how would you feel if homosexuals ( no offense to the homosexuals here) tries to restrict heterosexuals from marriage? Would you still claim that you are not losing your civil rights?

I doubt you believe me but I would not regard a vote on heterosexual marriage as an instance of my civil rights being voted on. I regard the rights I listed to be my civil rights and although it is entirely legitimate to derive certain other rights using the 9th Amendment, if someone was voting to strip me of those rights, I would not argue that they were voting on my civil rights.

[Serafine666]

Listen to me you miserable cousin fucking whore spawn, one of those specifically enumerated rights is the the right to be equal under the law. Let me drill a hole in your thick skull and spell it out for you.
-citation of 14th Amendment snipped-
Emphasis mine, cuntsickle.

I know what the 14th amendment says, Alyrium. I don't think there's ever going to be a limit found to the creative uses of "equal protection" but that is neither here nor there; point is, I am aware of what it says.

There are only two ways that marriage rights, and all of the legal protections that go with it (as well as a host of other legal protections like the employment and housing anti-discrimination laws that protect you that you take for granted because you are a myopic self-centered sack of shit) are not guaranteed to me under that text.

I am either not a person..

Which possibility I think we can safely eliminate based on the fact that you're sitting at a computer and typing words.

Or there is a hidden clause in it written in small print or hidden ink that requires lemon juice and an oven to uncover that has the words "With the exception of queers, dykes and trannies"

There is also not a Section 6 in the law that says "A person may not be deprived of anything which they choose to call a civil right."

Now, that little section is not there, so the obvious implication is that I am not considered a person. If any other group of people were being discriminated against in this fashion in the 21st century, say a state made a law banning Jews from getting married, you could be damn fucking sure that it would go before a court and get smacked down and you sorry ass would not be sitting around prattling about how it needs to be voted on.

I'd be more creative that THAT, Alyrium... I'd be out there advocating that the concept of marriage as a right guaranteed under the Constitution should be voted on. That there would unleash some fascinating firestorms.

Fuck you, fuck your mother, and just so you know... I fucked your dad last night.

I very much doubt you want to, that would be odd, and I doubt it.

[Serafine666]

Serafine: Sorry about not getting those definitions to you, but I'm in the middle of finals, and I remain first and foremost a practical engineering student.

It's alright, Your Grace. I am enduring well enough with my charming donnybrooks involving those whose vocabularies far outstrip my own. Good luck on those finals! I don't envy anyone who undertakes such a challenging subject.

[Serafine666]

How do you establish that the First Amendment is fundamentally more important than each and every one of those "tidbits?" That it is any less a right, even if a bunch of random people in 1790 didn't think to label it as such?

Simply put, I establish that it's a civil right because it is indisputably a civil right. It may not have been a civil right prior to the adoption of the Bill of Rights but we're in 2009, not 1790, so the question of the five freedoms under the First Amendment being rights of US citizens living on US soil has been long settled. Moreover, either legislatures invented more than 1400 new rights or the 1400+ benefits of a state-recognized marriage include very few things that are actually rights.

[Pint0 Xtreme]

Serafine, SCOTUS defined marriage as a civil right in Loving v Virginia. Marriage is supposed to be a constitutionally protected civil right. It's not enumerated in the text of the constitution but SCOTUS was clear on this.

[Serafine666]

"All Persons" and "Equal Treatment of the laws" is about as explicit as we ever see in the constitution. Said individual was claiming that it was not a specifically enumerated right. It is, very clearly. Now I realize that "logic" and "what happens in a court" are not often the same thing. However if we take an honest and purely logical look at the text and what it means, given what marriage laws are, there is only one logical conclusion. That I am legally entitled to said marriage laws protecting me. Under Loving v. Virginia that means that I am ALSO entitled to have said marriage laws protect me and the person of my choosing. Is it possible that the SCOTUS might say "Now we know these exact same arguments were used before and they failed, but because you are a gay abomination unto the lord we will accept them to rationalize bigotry"? Of course. But the legal reasoning there will look like what happens to someone who experiences a rock slide. It will be bent and twisted and will need to be identified through DNA.

I've a question, Alyrium... how familiar are you with the Loving v. Virginia opinion? The well-known aspects are pretty clear: a white man named Richard Perry Loving wished to marry Mildred Delores Jeter who was of mixed black and Native American descent and a Virginia law called the "Racial Integrity Act" forbid it. It got to the Supreme Court at which point the RIA was smacked down hard, a unanimous decision. The Supreme Court, however, determined that because there was no purpose to outlawing only white and non-white marriages outside of racial discrimination, the state did not even meet the rational basis test. However, the rationale that the SCOTUS applied to reach their ruling does not apply as easily to homosexual marriage as was recognized by the New York Court of Appeals (Hernandez v. Robles) which is the only time (so far) that a case using the 14th Amendment and Loving as justifications has reached a federal court. Part of their opinion read

It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

They also wrote that

here is no question that the Court viewed this antimiscegenation statute as an affront to the very purpose for the adoption of the Fourteenth Amendment—to combat invidious racial discrimination. In its brief due process analysis, the Supreme Court reiterated that marriage is a right "fundamental to our very existence and survival" (id., citing Skinner, 316 US at 541)—a clear reference to the link between marriage and procreation. It reasoned: "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes . . . is surely to deprive all the State's citizens of liberty without due process of law". Although the Court characterized the right to marry as a "choice," it did not articulate the broad "right to marry the spouse of one's choice" suggested by plaintiffs here. Rather, the Court observed that "the Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations". Needless to say, a statutory scheme that burdens a fundamental right by making conduct criminal based on the race of the individual who engages in it is inimical to the values embodied in the state and federal Due Process clauses. Far from recognizing a right to marry extending beyond the one woman and one man union, it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.

[Serafine666]

Serafine, SCOTUS defined marriage as a civil right in Loving v Virginia. Marriage is supposed to be a constitutionally protected civil right. It's not enumerated in the text of the constitution but SCOTUS was clear on this.

Technically, Loving was only the bookend to at least 3-4 other cases in which it was established that marriage was a right but it is the most easily-recognized one because it struck down laws against interracial marriage, an issue intimately associated with the classic civil rights struggle of the 1950s and 60s.

[Pint0 Xtreme]

Serafine, SCOTUS defined marriage as a civil right in Loving v Virginia. Marriage is supposed to be a constitutionally protected civil right. It's not enumerated in the text of the constitution but SCOTUS was clear on this.

Technically, Loving was only the bookend to at least 3-4 other cases in which it was established that marriage was a right but it is the most easily-recognized one because it struck down laws against interracial marriage, an issue intimately associated with the classic civil rights struggle of the 1950s and 60s.

Then how do you contend that marriage is not a civil right worth caring for? Is its status as a civil right in question?

[The Duchess of Zeon]

Serafine's argument is unquestionably that marriage is in fact a civil right, and the courts had a right to define it as a civil right (and were indeed appropriate in doing so), but that that's marriage between a man and a woman ; Serafine is, I believe, contending that the expansion of the definition of marriage to include same-sex marriage is beyond the constitutional review of the scope of the courts system. Note however an interesting point in this--should, by long usage and common custom, gay marriage be accepted as a legitimate definition by a broad part of the societies from which our legal heritage is drawn (i.e., both ourselves and European nations)--then the definition of marriage will have in essence changed and therefore the extension of the civil right would be inevitable.

So a great deal therefore depends on the redefinition of marriage, which is precisely why I suggested in this thread or one other that queer couples should just start calling each other married for all but strict legal purposes and constantly use spousal terms to refer to their partners and so on. In that sense the popular will is relevant, and Loving is not. In short, marriage is a civil right--but you cannot redefine marriage from its original conception through the constitutional process which extends it as a civil right--seems to be the gist of his argument.

Now as for the validity of that argument, it depends entirely on whether or not the Supreme Court could find a separate constitutional justification for redefining marriage opposed to that of Loving, or find some legal argument in which it can justify the redefinition of marriage as part of the provision of civil rights. The later seems the most likely avenue.

[Pint0 Xtreme]

But Serafine said that he wouldn't care that much if HIS (heterosexual) marriage rights were taken away. There's an implication that marriage is a lesser civil right constitutionally. However, SCOTUS has already deemed his marriage rights as constitutionally protected civil rights. I am asking how he thus contends that he wouldn't be that concerned if it was one day taken away from him.

[Alyrium Denryle]

However, the rationale that the SCOTUS applied to reach their ruling does not apply as easily to homosexual marriage as was recognized by the New York Court of Appeals (Hernandez v. Robles) which is the only time (so far) that a case using the 14th Amendment and Loving as justifications has reached a federal court. Part of their opinion read

You cannot even get the level of the court correct. Herndandez V. Robles was done in the NY state court of appeals.

It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

It can be boiled down to "No one even thought gay people existed back when the definition of marriage was defined in NY. Therefore it cannot be bigoted"

What the judges failed to realize is that now that it is known that we do exist, the law as it existed in NY fell under the same auspices.

That having been said, it can be argued that the NY law would not fall under it because it did not have the express purpose of discriminating against homosexuals. After all, the definition was ancient.

Current constitutional amendments most assuredly do have that exact stated purpose and this ruling would not even be considered persuasive precedent in a federal court.


As for your second quote, I assume your point is about procreation. Guess what, gay people can in fact have and raise children. Would you use that ruling to deny marriage rights to straight couples who cannot or will not reproduce?

[Serafine666]

But Serafine said that he wouldn't care that much if HIS (heterosexual) marriage rights were taken away. There's an implication that marriage is a lesser civil right constitutionally. However, SCOTUS has already deemed his marriage rights as constitutionally protected civil rights. I am asking how he thus contends that he wouldn't be that concerned if it was one day taken away from him.

I'm not really sure how it could be described as a "contention" since there is no cite-able evidence for or against the genuineness of my willingness to accept my right to be married being nullified. Partly, my stance about my own right to marriage is influenced by a wish to be genuine; me actually standing up and saying "I want the courts to protect my right to marriage but take away yours" would be appalling and justify any righteously indignant abused heaped upon me. Partly, however, I draw a distinction between legally intervening to prevent someone from going to a priest or justice of the peace and getting married and someone going before a state officer and getting a certificate entitling them to a whole slew of legal privileges. I think that most any court would step in and slam a law imposing legal penalties for religiously marrying a gay couple (I'm unclear about whether the Virginia law prevented religious marriage or legally-recognized marriage). But since the social definition of marriage is such and such a thing (as Duchess has correctly pointed out), it seems at least basically justifiable to confine legal recognition to marriages that are commonly socially recognized which pretty much describes the previous standard for marriage: the marriages that were commonly socially recognized (whether monogamous or polygamous) were the ones that had the strongest claim to official state recognition. In contrast, the marriages that did not meet the social recognition (which seems to be the present status of gay marriage) received either persecution or no state recognition. I agree with Her Grace that there is a very powerful social component to this and frankly, I think her idea that raising the social acceptance of gay marriages as valid has the greatest potential to overpower opposition to the legal route.

I'll add that as a conceptual matter, I'm in opposition to changing the marriage laws to encompass gay marriage. I'll caveat, however, that it is both something that I do not regard as harmful to me personally and something that I could tolerate and even perhaps accept so long as it is something that enjoys powerful societal support. Otherwise, in my view, those who are the self-designated "morally correct" are using the law to ram their vision of social acceptance down the throats of the majority and I regard that as despicable; to turn it around, wouldn't any of you who regard gay marriage as legally and morally right be outraged and resentful if a court rammed the stereotypical Christian nutjob's vision of social acceptance down the throats of a majority in vehement opposition? Not a regional majority (i.e. the post-Civil War South), mind you, but a national one? Ultimately, this is why I see the majority's consent as being the most legitimate (although not the only legitimate) course for altering the ruling social paradigm.

[Pint0 Xtreme]

Why is it, Serafine, that you regard social acceptance the standard for what should be considered the ethical law as opposed to other standards, such as harm being inflicted upon individuals?

[Stark]

PS the 'stereotypical Christian nutjob's vision of social acceptance' is the status quo, which is why people are trying to change it.

Why exactly do you oppose changing the marraige laws to encompass gay marriage if you're NOT a stereotypical Chrisitian nutjob? Oh right sorry 'ruling social paradigm', 'justifiable to confine legal recognition to marriages that are commonly socially recognized', you're just absurdly conservative.

[The Duchess of Zeon]

Here's an interesting question for you, Serafine, and a brief one so it should be easy to answer:

What about religious groups which do in fact marry homosexual couples? Would you object to legalizing the sanctification of their marriage rights on freedom of religion grounds?

[Serafine666]

You cannot even get the level of the court correct. Herndandez V. Robles was done in the NY state court of appeals.

I apologize, Alyrium; the site I got the quotations from did not specify that it was a state appeals court instead of a federal appeals court. I reasoned that there would be no reason to quote a state judgement on a federal ruling and so erroneously assumed that it must be a federal judgement on a federal ruling.

As for your second quote, I assume your point is about procreation. Guess what, gay people can in fact have and raise children. Would you use that ruling to deny marriage rights to straight couples who cannot or will not reproduce?

Actually, my intention in italicizing that last line of the ruling was that in the only judicial interpretation of Loving that I could find, the judge argued that the wording of Loving suggested that the Supreme Court's ruling was confined to heterosexual marriage and thus, the decision was not applicable to the gay marriage issue. I didn't intend it to suggest that I was adopting their argument as my own contention. I also thought it interesting that the state court, whatever the weight its opinion may have on the federal level, felt that Loving didn't actually establish a right to marry but contended that the Fourteenth Amendment preserved a freedom of choice to marry irregardless of racial differences. Admittedly, the (surprisingly short) text of the Loving decision seems to support the appeals court's viewpoint.