Same Sex Marriage and the constitution

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EviPolevhia said:
The only way this is true is if you make Marriage = Procreation. That is not the case secular law, so your point that “Opposite sex pairs are needed” doesn’t apply.
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Procreation is the reason the institution ultimately exists…or at least procreation is intimately tied to the institution in a way that is inseparable. The procreative aspect is why marriage has existed in virtually every human society that we are aware of. It’s also why same sex marriage completely unknown in human history until the last 15 years or so.

A male-female union may or may not produce children, but a male-male or a female-female union will never produce children without a third person. A same sex union is different in kind.

In any event, with respect to the constitution, one needs to understand the context in which the text was written and authors’ intent. I’m confident that gay marriage wasn’t on anyone’s radar when pen went to paper.
 
trapper1 said:
Procreation is the reason the institution ultimately exists…or at least procreation is intimately tied to the institution in a way that is inseparable. The procreative aspect is why marriage has existed in virtually every human society that we are aware of.
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The ability or even the willingness to have biological offspring is not a prerequisite for marriage.
If it were we would be denying infertile people and the elderly from getting married
It’s also why same sex marriage completely unknown in human history until the last 15 years or so.
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Same gendered marriage actually has a good bit of history behind it…go look it up sometime
A male-female union may or may not produce children, but a male-male or a female-female union will never produce children without a third person. A same sex union is different in kind.
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See above
In any event, with respect to the constitution, one needs to understand the context in which the text was written and authors’ intent. I’m confident that gay marriage wasn’t on anyone’s radar when pen went to paper.
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Neither was interracial marriage
Or segregation
Or ending slavery
Or women’s suffrage
 
Bakmoon said:
The problem with this kind of approach to constitutional interpretation is that very few users of it actually use it consistently. You could literally use the exact same argument to argue that the equal protection clause doesn’t ban racial segregation laws because the congress that wrote the 14th amendment didn’t intend it to bar separate but equal.
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A fair point, but you could make the converse point. But stretching the interpretation of the text to the degree that you could essentially write into what ever you want, what’s the point of having the document at all?
 
TracerBullet said:
The ability or even the willingness to have biological offspring is not a prerequisite for marriage.
If it were we would be denying infertile people and the elderly from getting married

Same gendered marriage actually has a good bit of history behind it…go look it up sometime
See above

Neither was interracial marriage
Or segregation
Or ending slavery
Or women’s suffrage
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Nonsense. It’s the same form. We also don’t know for sure which couples are fertile and which aren’t (though we do know that two men or two women can’t produce offspring without a third party involved).

If your analogies above were self evident, we’d all support gay marriage. Obviously, a lot of us see it as a completely different thing.
 
trapper1 said:
Procreation is the reason the institution ultimately exists…or at least procreation is intimately tied to the institution in a way that is inseparable. The procreative aspect is why marriage has existed in virtually every human society that we are aware of. It’s also why same sex marriage completely unknown in human history until the last 15 years or so.
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If same sex marriage is a modern thing then why was it outlawed in Rome in the late fourth century by the Emperor Theodosian? Homosexual marriage made illegal and all those currently engaged in such unions are to be punished. Codex Theodosianus 9.7.3. Oddly enough the same document where Christianity was declared to be -the- religion of Rome and anyone who was of another religion was deviant and insane. Charming people, to be sure.
trapper1 said:
In any event, with respect to the constitution, one needs to understand the context in which the text was written and authors’ intent. I’m confident that gay marriage wasn’t on anyone’s radar when pen went to paper.
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When the engine was first developed no one had considered the airplane either, specificly the use of an engine in an airplane. Why is it wrong for something to be put to a different use later on.
 
trapper1 said:
A fair point, but you could make the converse point. But stretching the interpretation of the text to the degree that you could essentially write into what ever you want, what’s the point of having the document at all?
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I never said that history and original intent shouldn’t be considered at all. They certainly should enter into the equation of how we interpreter the Constitution, but that doesn’t mean they are the only players in the game or even the most important players. Original intention as gleaned from the circumstances of the writers is something that is a persuasive authority, meaning that it carries weight, but doesn’t in and of itself settle the matter.

The missing ingredient here that makes it all work is a principle called "Stare Decisis’ which literally means “let the decision stand.” This principle is core to the legal reasoning of common law countries like the united states. Briefly stated, it means that when an appellate court (Like the US Supreme Court) decides a case and issues a written majority opinion on the case, the ratio decendi (the core reasoning of the decision) is considered binding law within that court’s jurisdiction. This principle is also called the principle of precedent.

Precedent, unlike other legal authorities, is considered to be a binding authority rather than one that is merely persuasive, and in large measure is what stops American Constitutional law from completely falling to pieces. Other countries in which precedent isn’t a binding authority (called civil law countries as opposed to common law which the U.S. is) need to have very explicit documents in order to prevent the courts from falling into chaos. For example, the German Constitution is a massive 134 pages long, which is enormous compared to the U.S. Constitution of only about 4500 words. We can get away with a short one that mentions core freedoms and concepts without explaining them in detail because we have a court system that has the power to give legally binding interpretations of it.

It is the use of the binding authority of precedent and the text of the constitution itself combined with the many types of persuasive authorities that make our system work and stop the Constitution from unraveling.
 
Same gendered marriage actually has a good bit of history behind it…go look it up sometime

History, yes.

Good, no.

Hooray, we have returned to pagan times 🤷
 
EviPolevhia said:
If same sex marriage is a modern thing then why was it outlawed in Rome in the late fourth century by the Emperor Theodosian? Homosexual marriage made illegal and all those currently engaged in such unions are to be punished. Codex Theodosianus 9.7.3. Oddly enough the same document where Christianity was declared to be -the- religion of Rome and anyone who was of another religion was deviant and insane. Charming people, to be sure.

When the engine was first developed no one had considered the airplane either, specificly the use of an engine in an airplane. Why is it wrong for something to be put to a different use later on.
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The codex appears to have banned private “marriages.” Is there any evidence that they were publically recognized by government? Roman law did not recognize marriage between men.
 
trapper1 said:
The codex appears to have banned private “marriages.” Is there any evidence that they were publically recognized by government? Roman law did not recognize marriage between men.
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I can’t see in the Codex where it specifies private marriages. Can you point that out for me?
 
Bakmoon said:
I never said that history and original intent shouldn’t be considered at all. They certainly should enter into the equation of how we interpreter the Constitution, but that doesn’t mean they are the only players in the game or even the most important players. Original intention as gleaned from the circumstances of the writers is something that is a persuasive authority, meaning that it carries weight, but doesn’t in and of itself settle the matter.

The missing ingredient here that makes it all work is a principle called "Stare Decisis’ which literally means “let the decision stand.” This principle is core to the legal reasoning of common law countries like the united states. Briefly stated, it means that when an appellate court (Like the US Supreme Court) decides a case and issues a written majority opinion on the case, the ratio decendi (the core reasoning of the decision) is considered binding law within that court’s jurisdiction. This principle is also called the principle of precedent.

Precedent, unlike other legal authorities, is considered to be a binding authority rather than one that is merely persuasive, and in large measure is what stops American Constitutional law from completely falling to pieces. Other countries in which precedent isn’t a binding authority (called civil law countries as opposed to common law which the U.S. is) need to have very explicit documents in order to prevent the courts from falling into chaos. For example, the German Constitution is a massive 134 pages long, which is enormous compared to the U.S. Constitution of only about 4500 words. We can get away with a short one that mentions core freedoms and concepts without explaining them in detail because we have a court system that has the power to give legally binding interpretations of it.

It is the use of the binding authority of precedent and the text of the constitution itself combined with the many types of persuasive authorities that make our system work and stop the Constitution from unraveling.
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Right, right, I understand that. But there is a severe risk of abuse using this approach. It’s become sort of game: twist the words of the text (and extrapolate precident to an unsupported degree) to serve the prevailing mood of the intellectual class…whatever the spirit of the age happens to be. There were unwritten constraints or rules on the judicary, but these have been completely breached, most eggregiously with Roe vs Wade. Now it seems, it simply depends what the politcal beliefs of the judge are (political beliefs that often to appear to have been formed early in life). The judge, often, appears to fit the facts to suit some sort of prejudgement that is driven by a poltiical worldview, not the law…the law is mere cover to serve an agenda.
 
EviPolevhia said:
I can’t see in the Codex where it specifies private marriages. Can you point that out for me?
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It was in one of the citations of wikipedia entry (sorry, I only had 5 minutes to do my reseach:blush:). No, I don’t have the original text.

Williams, Roman Homosexuality, p. 280.

en.wikipedia.org/wiki/Homosexuality_in_ancient_Rome#cite_note-117

*Gay marriageAlthough in general the Romans regarded marriage as a heterosexual union for the purpose of producing children, in the early Imperial period some male couples were celebrating traditional marriage rites in the presence of friends. Same-sex weddings are reported by sources that mock them; the feelings of the participants are not recorded. Both Martial and Juvenal refer to marriage between men as something that occurs not infrequently, although they disapprove of it.[117] Roman law did not recognize marriage between men, but one of the grounds for disapproval expressed in Juvenal’s satire is that celebrating the rites would lead to expectations for such marriages to be registered officially.[118] As the empire was becoming Christianized in the 4th century, legal prohibitions against gay marriage began to appear.[119]

Various ancient sources state that the emperor Nero celebrated two public weddings with men, once taking the role of the bride (with a freedman Pythagoras, and once the groom (with Sporus); there may have been a third in which he was the bride.[120] The ceremonies included traditional elements such as a dowry and the wearing of the Roman bridal veil.[121] In the early 3rd century AD, the emperor Elagabalus is reported to have been the bride in a wedding to his male partner. Other mature men at his court had husbands, or said they had husbands in imitation of the emperor.[122] Although the sources are in general hostile, Dio Cassius implies that Nero’s stage performances were regarded as more scandalous than his marriages to men.[123]

The earliest reference in Latin literature to a marriage between men occurs in the Philippics of Cicero, who insulted Mark Antony for being a slut in his youth until Curio “established you in a fixed and stable marriage (matrimonium), as if he had given you a stola,” the traditional garment of a married woman.[124] Although Cicero’s sexual implications are clear, the point of the passage is to cast Antony in the submissive role in the relationship and to impugn his manhood in various ways; there is no reason to think that actual marriage rites were performed.[125]
 
trapper1 said:
Nonsense. It’s the same form. We also don’t know for sure which couples are fertile and which aren’t (though we do know that two men or two women can’t produce offspring without a third party involved).

If your analogies above were self evident, we’d all support gay marriage. Obviously, a lot of us see it as a completely different thing.
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The ability or even the willingness to have biological offspring is not a prerequisite for marriage
 
EviPolevhia said:
Rats, wish I could get my hands on that book. There are sites that have previews of the book for free online but the page in question is not shown.
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I’m right there with you :D. Looking for info to support my argument; always the risk I’ll find info that works against my argument, however.
 
EviPolevhia said:
The only way this is true is if you make Marriage = Procreation. That is not the case secular law, so your point that “Opposite sex pairs are needed” doesn’t apply.
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Neither I nor the quote I included from Cardinal George made reference to procreation. What I said was that it takes opposite sex couples to engage in specifically marital relations. That is true whether the relations are procreative or not. Sometimes they are, sometimes they aren’t. But same sex couples are inherently incapable of engaging in marital relations.
 
trapper1 said:
I’m right there with you :D. Looking for info to support my argument; always the risk I’ll find info that works against my argument, however.
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I do know that the Romans didn’t consider homosexual marriage to be the same as marriage. But it wasn’t specifically outlawed until Christian laws filtered into the Empire.
 
fastenatingguy said:
Jim,

I like your presentation. The problem is that a woman’s right to abortion wasn’t in there either, but somehow they “found” it. :confused:

I am afraid in the long run that Tracer will be proven correct. So that’s another reason to vote this November.

FG
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Well yes, the right to abortion is found nowhere in the Constitution. Presuming to find it hiding among the penumbras, avoiding discovery for 200 years, was a serious mistake. It would be another mistake to presume to find homosexual marriage in there as well.

But in a society bent on losing its sanity, anything is possible.
 
JimG said:
Well yes, the right to abortion is found nowhere in the Constitution. Presuming to find it hiding among the penumbras, avoiding discovery for 200 years, was a serious mistake. It would be another mistake to presume to find homosexual marriage in there as well.

But in a society bent on losing its sanity, anything is possible.
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The supreme court says it is in the constitution. Along with things like right of interracial couples to marry and the right of minority children to attend public schools with every one else
 
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