Supreme Court Hears Arguments on Same-Sex Marriage

[EmperorNapoleon]

I don’t think we can read that into what came out of the oral arguments in question II. Some justices really didn’t ask very many questions at all; and of course Justice Thomas never does. Trying to read Supreme Court tea leaves isn’t an exact science.

You are right that it isn’t an exact science, but the Justices really tipped their hands on Question II. Particularly Roberts, Breyer, Sotomayor, and Ginsberg. I think we can read into the rest based on the reaction of the Justices to those questions particularly when listening to the audio and their leanings. I also think Douglas Hallward-Driemeier’s argument was masterful.

 

[Dawnia]

I think it is pretty clear that 8 of the 9 Justices disagree with the notion that it is a violation of the nation’s fundamental principles when it comes to Question II. It was actually the conservative Justices who were the most puzzled by the assertion that refusing to recognize same-sex marriages established in other States is not a violation of Article IV. It was a conservative Justice who posed the question and no satisfactory answer was ever given. The 9th Justice was Thomas who, as usual, never said a word.

It’s pretty clear that the judges didn’t think question 2 could be uncoupled from question 1. SCOTUS experts are fairly unanimous on that point. If the answer to question 1 is yes, then 2 is a mute point. If the answer to 1 is no, then 2 will also be no.

 

[SavannahGal]

I think that Justice Scalia’s point was this: State legislatures can write waivers to their own laws. They cannot legislate waivers to constitutional rights. So, if the SCOTUS decides to insert same sex marriage into the Constitution as a right, a state could not offer waivers from siuch a right.

Clergy are not forced to perform any marriage, that is true. But currently, clergy are authorized by the state to perform marriages which are not only religiously binding but civilly binding. In doing so, they act as agents of the State. If SS marriage is a constitutional right, it could validly be argued that any agent authorized to perform civil marriages for the state must not be allowed to discriminate on the basis of sex or sexual orientation in performing marriages.

The State’s only option, if challenged, would be to disallow such clergy from acting on behalf of the state. Thus, a Catholic priest could still perform marriages, but he could not act as an agent of the state, so the parties would be required to be married by a civil magistrate.

A clergy person of a congregation which allowed same sex marriage, however, would have no problem and could still act as an agent of the state.

If gay marriage is made into a ‘constitutional right,’ I fully expect this issue to be raised.

You’ve restated Justice Scalia’s concern quite well. We seem to share the same understanding of his contention, however, I must respectfully disagree with you (and Justice Scalia I suppose) regarding the legitimacy of this concern. There are several points I would make.

1. Justice Kagan offered a very apt example of a rabbi refusing to marry a jewish person and non-Jewish person despite the constitutional prohibition against religious discrimination, while maintaining the civil authority granted to such rabbi by the state. Justice Scalia did not refute that point and I have yet to hear anyone else refute it.
2. If you examine state laws that grant this civil authority to clergy, you will note the historical absence of waivers in most, and find that where they do exist, they have been added recently, one can assume in response to the recognition of gay marriage. In other words, priests and ministers have been turning away heterosexual couples for years (couples that have every right to a civil marriage) despite the absence of such waivers. Clergy have historically been granted this privilege, but I would argue within a limited capacity, that is to say, within the scope of their role in officiating marriages within their particular religious traditions. I’m not suggesting that they would not have a civil authority outside of that scope, but the point is, they have never been expected to fulfill the role of a justice of the peace, probate judge, clerk, etc. when it comes to a responsibility/obligation in providing civil marriage.

The only circumstance that I can see as possibly problematic is a minister, let’s say, opening a wedding chapel in Las Vegas. If this is a for-profit business that provides civil marriages, I think they would have to provide civil marriages to same sex couples as well because in that case they would be considered a business providing a public accommodation rather than a religious institution. I have no doubt that this business would be challenged in court if it refused to provide civil marriage to same sex couples.

1. I have a very hard time believing that if there was a lawsuit filed against the Catholic Church, or other religious institution, that did make its way to the Supreme Court, that Justice Scalia would not find a first amendment exception applicable.

 

[Thorolfr]

It’s pretty clear that the judges didn’t think question 2 could be uncoupled from question 1. SCOTUS experts are fairly unanimous on that point. If the answer to question 1 is yes, then 2 is a mute point. If the answer to 1 is no, then 2 will also be no.

As I already pointed out, apparently Chief Justice Roberts thinks that they can be uncoupled. According to the Washington Post:

Roberts dominated the second argument, about whether states could be forced to recognize marriages performed in states where they were legal.

The question would be moot if the court declares a constitutional right, but the second argument lent force to the idea that it might be the chief justice’s preferred path, and could perhaps win a wider majority.

If states are forced to recognize same-sex marriages performed elsewhere, Roberts suggested, it would be “only a matter of time” before same-sex marriage settled in as a national norm. It would effectively allow “one state” or a minority of states to “set policy for the nation.”

At the same time, the Roberts line of questioning suggested he did not view that possibility with great alarm, at least as an alternative to a court decision holding that all states must permit same-sex marriages within their borders.

Isn’t it “quite rare for a state not to recognize” a marriage performed elsewhere? he asked.

He pointed out that recognizing a marriage performed elsewhere is “pretty straightforward” compared to a state allowing such marriages under its own law, suggesting it was not as much of an imposition.

Getting married “is one thing,” he said. But wasn’t allowing a marriage to exist that has been performed elsewhere just a matter of “applying domestic relations law,” he asked.

washingtonpost.com/politics/courts_law/supreme-court-will-hear-historic-arguments-in-gay-marriage-cases/2015/04/27/083d9302-ed24-11e4-8666-a1d756d0218e_story.html?hpid=z1

 

[Venera_Ocean]

This is the best argument for legalizing same-sex marriage:

Lesbian Aussie Couple has Quintuplets
weprideny.com/wp-content/uploads/2012/02/Quinns-birthday-450x253.jpg

That’s why same-sex marriage must be legalized: to protect and recognize children raised and born in same-sex families.

Regardless of what Catholics want gay people will be raising and giving birth to children even if conservatives somehow manage in the future to ban them from having children for some ridiculous as always reason You can’t kill maternal and paternal instincts that all people regardless of their sexual orientation share.

Recognizing same-sex marriage is protection of universal family values and children’s social security.acceptance, health, morals and happiness.

I sincerely hope that Supreme Court will stand firm and united against obscurantism especially considering who mostly opposes same-sex marriage and that members of a certain religion started mass persecution (real persecution,not the one Catholics like to complain about) of gay people around the globe that lasted for more than thousand years subjecting them, to death, executions, tortures, prison, mental institutions and forcing them to live lives of social outcasts.

I will be praying for my brothers and sisters to overcome the darkness.

No pasaran!

 

[Dawnia]

This is the best argument for legalizing same-sex marriage:

Lesbian Aussie Couple has Quintuplets
weprideny.com/wp-content/uploads/2012/02/Quinns-birthday-450x253.jpg

That’s why same-sex marriage must be legalized: to protect and recognize children raised and born in same-sex families.

Regardless of what Catholics want gay people will be raising and giving birth to children even if conservatives somehow manage in the future to ban them from having children for some ridiculous as always reason You can’t kill maternal and paternal instincts that all people regardless of their sexual orientation share.

Recognizing same-sex marriage is protection of universal family values and children’s social security.acceptance, health, morals and happiness.

I sincerely hope that Supreme Court will stand firm and united against obscurantism especially considering who mostly opposes same-sex marriage and that members of a certain religion started mass persecution (real persecution,not the one Catholics like to complain about) of gay people around the globe that lasted for more than thousand years subjecting them, to death, executions, tortures, prison, mental institutions and forcing them to live lives of social outcasts.

I will be praying for my brothers and sisters to overcome the darkness.

No pasaran!

That is a better argument for outlawing IVF.

 

[Dawnia]

As I already pointed out, apparently Chief Justice Roberts thinks that they can be uncoupled. According to the Washington Post:

washingtonpost.com/politics/courts_law/supreme-court-will-hear-historic-arguments-in-gay-marriage-cases/2015/04/27/083d9302-ed24-11e4-8666-a1d756d0218e_story.html?hpid=z1

I was replying to EN’s comment. Roberts might think it could be uncoupled or he might not, but he is only one judge. I have read all sorts of reports where media have been trying to extrapolate meaning based on questions during oral arguments. Many diametrically opposed to each other.

I think I’ll stick to reading legal expert’s opinions. They at least admit they are making educated guesses.

 

[MarcoPolo]

to protect and recognize children raised and born in same-sex families.

A child cannot be born into a same-sex couple. It’s a naturally biological impossibility. One of the family members can go outside the family, get pregnant, and return, but the child cannot come from “within” such a “family.” Whether your a deist or atheist, God or evolution designed the familial structure as man-woman-child. That committed unit of parents, a marriage, is only pantomimed when we try to amputate the necessary ingredients from the equation.

But let’s continue with the logic of your thought process – what you posit would mean that if a single person got pregnant, that single person would have to be recognized as “married” in order to “protect and recognize children.” That does not make sense. The dignity of a child is not dependent on the marital status of a parent.

 

[EmperorNapoleon]

It’s pretty clear that the judges didn’t think question 2 could be uncoupled from question 1. SCOTUS experts are fairly unanimous on that point. If the answer to question 1 is yes, then 2 is a mute point. If the answer to 1 is no, then 2 will also be no.

Question I was about whether or not a same-sex couple has a Constitutional right to enter into marriage. It was a 14th Amendment question. Question II was about whether or not a same-sex couple has a Constitutional right to be or remain married. It was an Article IV question. The difference is subtle but there isa difference even though, ultimately, the end result is the same if the answer to either question is yes.

 

[MarcoPolo]

It was a 14th Amendment question.

So proponents of gay “marriage” are arguing that the phrase “nor deny to any person within its jurisdiction the equal protection of the laws” means men and women are interchangeable with regard to marriage?

 

[Venera_Ocean]

Dawnia

That is a better argument for outlawing IVF.

How so? Please, do tell. From my point of view itis no argument at all. Like most “arguments” coming from Catholics tbh.

However, let’s assume for the argument sake that somehow it gets outlawed (you will undoubtedly face wrath of heterosexual couples for that and alienate and antagonize even more people than you already have) So what? You do realize that outlawing IVF will not stop gay people from having children? It is quite easy to deliver sperm into a vagina without any intercourse and without any technology just using a syringe and a cup. What then? Are you gonna take these children away and place them into a foster care or what?

Another thing… so you’d rather these children were not born at all ? Need I remind you that not a single child is born without the will of God to let it be so.

MarcoPolo

if a single person got pregnant, that single person would have to be recognized as “married” in order to “protect and recognize children”

What? A single woman with a child and another man who is not this child’s biological father want to get married.Same situation.I’m not even talking about adopted children.

It’s a naturally biological impossibility…

Nature is neutral and has nothing against same-sex relationships. Mammals sexuality (and humans are mammals) is a diverse thing and quite often same-sex pair of animals raise their offspring together. Anyways, even if it wasn’t so, why you are so eager for people to"follow nature" in this case however now almost 90% of your existence is completely unnatural and you sitting here and typing words on a PC is unnatural too as well as getting surgeries, medicine etc.

PS As for religious freedom argument… what about religious freedom of those whose gods allow and celebrate same-sex marriages, huh? I’m talking hypothetically although the gods of Ancient Greece have nothings against same-sex conduct and actually had lovers of both sexes. Why is your religion should be more “protected” in this case than others?Double standards much…

 

[EmperorNapoleon]

So proponents of gay “marriage” are arguing that the phrase “nor deny to any person within its jurisdiction the equal protection of the laws” means men and women are interchangeable with regard to marriage?

Well, equal protection really plays a major role in the arguments in both questions. Perhaps it is more accurate to say that Question I is strictly a 14th Amendment question while Question II necessarily involves 14th Amendment arguments in response to the Article IV question. So what does that mean? Is there a gender discrimination argument there as you suggest? Maybe, but that is not the primary or most powerful argument of same-sex marriage proponents as it relates to equal projection. That argument is best summarized by what Douglas Hallward-Driemeier said in oral arguments for Question II:

“…the essential protection against arbitrary laws is that the majority has to live under the same laws that they would subject the minority to.”

That is what equal protection means. What proponents of same-sex marriage argue is that the State(s) have not, do not, and will not apply in practice the same justifications for denying entry into or recognition of marriage of the minority (same-sex couples) to the majority (opposite-sex couples).That is a violation of equal protection.

 

[Dawnia]

Question I was about whether or not a same-sex couple has a Constitutional right to enter into marriage. It was a 14th Amendment question. Question II was about whether or not a same-sex couple has a Constitutional right to be or remain married. It was an Article IV question. The difference is subtle but there isa difference even though, ultimately, the end result is the same if the answer to either question is yes.

1. Does the Fourteenth Amendment require a state to license a marriage of two people of the same sex?

1. Does the Fourteenth Amendment require a state to recognize a marriage of two people of
   the same sex when their marriage was lawfully licensed and performed out-of-state?

Question 1 was not whether some COULD enter into a ssm, but whether a State must license such a relationship. Slight difference, but outcome is different.

But, regardless, the majority of the judges didn’t seem too interested in question 2 at all. Maybe they already had their mind made up. As was brought up in orals, forcing a state to recognize a marriage from another state that they don’t recognize in their own state would open up the door for states dictate the laws in another state, which is unconstitutional. (It was an interesting discussion though regarding the full faith & credit clause. Seems to be lots of gray area.)

People that are way more knowledgeable than myself believe that if Question 1 is no, Question 2 will be no as well. I trust they know what they’re talking about.

 

[Dawnia]

Dawnia

How so? Please, do tell. From my point of view itis no argument at all. Like most “arguments” coming from Catholics tbh.

However, let’s assume for the argument sake that somehow it gets outlawed (you will undoubtedly face wrath of heterosexual couples for that and alienate and antagonize even more people than you already have) So what? You do realize that outlawing IVF will not stop gay people from having children? It is quite easy to deliver sperm into a vagina without any intercourse and without any technology just using a syringe and a cup. What then? Are you gonna take these children away and place them into a foster care or what?

Another thing… so you’d rather these children were not born at all ? Need I remind you that not a single child is born without the will of God to let it be so.

A topic for a different thread There are many many discussions on CAF about IVF, if you care to search for them.

 

[spes_salvi]

Nature is neutral and has nothing against same-sex relationships. Mammals sexuality (and humans are mammals) is a diverse thing and quite often same-sex pair of animals raise their offspring together. Anyways, even if it wasn’t so, why you are so eager for people to"follow nature" in this case however now almost 90% of your existence is completely unnatural and you sitting here and typing words on a PC is unnatural too as well as getting surgeries, medicine etc.

You’re confusing unnatural vs artificial. Unnatural means going AGAINST one’s nature and purpose, such as a man or a woman whose bodies are designed for heterosexual sex but instead engages in homosexual sex, or someone who engages in sex with animals. IVF is also unnatural, not because there is use of technology, but because here you allow humans to be manufactured when in fact their dignity requires that they are born of their biological parents through the marital act. What is worse in same sex IVF is there is usually an anonymous egg or sperm donor and a surrogate which further complicates things. Who are the real parents of the child? Is parenthood really just something people claim or renounce by paper? In the end, such an unnatural set-up causes suffering for the child who will eventually ask where he/she came from.

No, nature is not neutral. There are biological functions from which we can determine our purpose. This is especially true for the reproductive function because it has a great significance to the society, to families, and the children.

You cannot set the sexuality of animals as the norm to follow for humans. First, they are not humans and second, they are not rational like us and therefore they act without the use of morals or reason. Consequently, there are a lot of animal behaviors that are immoral for humans to do.

 

[spes_salvi]

Well, equal protection really plays a major role in the arguments in both questions. Perhaps it is more accurate to say that Question I is strictly a 14th Amendment question while Question II necessarily involves 14th Amendment arguments in response to the Article IV question. So what does that mean? Is there a gender discrimination argument there as you suggest? Maybe, but that is not the primary or most powerful argument of same-sex marriage proponents as it relates to equal projection. That argument is best summarized by what Douglas Hallward-Driemeier said in oral arguments for Question II:

“…the essential protection against arbitrary laws is that the majority has to live under the same laws that they would subject the minority to.”

That is what equal protection means. What proponents of same-sex marriage argue is that the State(s) have not, do not, and will not apply in practice the same justifications for denying entry into or recognition of marriage of the minority (same-sex couples) to the majority (opposite-sex couples).That is a violation of equal protection.

The law is that marriage is between a man and a woman and this applies to every man and woman.

It is not so much that same-sex couples are denied marriage. Rather, marriage laws were made to protect a man-woman institution. They were made without having same-sex couples in mind, basing on the natural family as the foundation of the society. Now, same-sex couples are claiming discrimination when they have no claims to marriage in the first place. It’s almost like a person whose status is single claiming a married man’s tax benefits on grounds of discrimination.

 

[Elizium23]

Nature is neutral and has nothing against same-sex relationships. Mammals sexuality (and humans are mammals) is a diverse thing and quite often same-sex pair of animals raise their offspring together. Anyways, even if it wasn’t so, why you are so eager for people to"follow nature" in this case however now almost 90% of your existence is completely unnatural and you sitting here and typing words on a PC is unnatural too as well as getting surgeries, medicine etc.

Animals eat their own young sometimes. Would you use this argument to set up restaurants next-door to abortion clinics? It seems like a logical conclusion by your reasoning.

 

[EmperorNapoleon]

The law is that marriage is between a man and a woman and this applies to every man and woman.

Which leads back to equal protection as a gender discrimination issue with the same problem for opponents of same-sex marriage.

Question 1 was not whether some COULD enter into a ssm, but whether a State must license such a relationship. Slight difference, but outcome is different.

But, regardless, the majority of the judges didn’t seem too interested in question 2 at all. Maybe they already had their mind made up. As was brought up in orals, forcing a state to recognize a marriage from another state that they don’t recognize in their own state would open up the door for states dictate the laws in another state, which is unconstitutional. (It was an interesting discussion though regarding the full faith & credit clause. Seems to be lots of gray area.)

People that are way more knowledgeable than myself believe that if Question 1 is no, Question 2 will be no as well. I trust they know what they’re talking about.

Well, we can at least agree that the discussions around the full faith and credit clause, which was really almost all of the Respondent’s time, were very interesting. I particularly found Justice Ginsburg’s rhetorical question (or comment) very meaningful:

“It is - it is odd, isn’t it, that a divorce does become the decree for the nation? A divorce with proper jurisdiction in one State must be recognized by every other State, but not the act of marriage. Interesting.”

 

[Stylteralmaldo]

EmperorNapoleon:

Well, equal protection really plays a major role in the arguments in both questions. Perhaps it is more accurate to say that Question I is strictly a 14th Amendment question while Question II necessarily involves 14th Amendment arguments in response to the Article IV question. So what does that mean? Is there a gender discrimination argument there as you suggest? Maybe, but that is not the primary or most powerful argument of same-sex marriage proponents as it relates to equal projection. That argument is best summarized by what Douglas Hallward-Driemeier said in oral arguments for Question II:

“…the essential protection against arbitrary laws is that the majority has to live under the same laws that they would subject the minority to.”

That is what equal protection means. What proponents of same-sex marriage argue is that the State(s) have not, do not, and will not apply in practice the same justifications for denying entry into or recognition of marriage of the minority (same-sex couples) to the majority (opposite-sex couples).That is a violation of equal protection.

Maybe a better question should be whether or not persons with homosexual attraction ought to be considered minorities?

I’m left-handed. In that regard, I am in the minority. Presently, my status as a left-handed person is not constitutionally recognized. Presently, sexual orientation isn’t recognized. Should both statuses be constitutionally recognized? If one and not the other, why? Trust me, I’ve got plenty of things I’d change in this right-handed dominated society of ours if I could do so.

 

[EmperorNapoleon]

Maybe a better question should be whether or not persons with homosexual attraction ought to be considered minorities?

I’m left-handed. In that regard, I am in the minority. Presently, my status as a left-handed person is not constitutionally recognized. Presently, sexual orientation isn’t recognized. Should both statuses be constitutionally recognized? If one and not the other, why? Trust me, I’ve got plenty of things I’d change in this right-handed dominated society of ours if I could do so.

Correct me if I’m wrong but I think where you are going with this is whether or not sexual orientation should be considered a protected class as a minority and have the benefit of strict scrutiny. I would say the answer to that is that it doesn’t really matter because the Respondent’s arguments don’t survive even rational basis review. The notion that the State preserves marriage by refusing to allow entry into marriage (Question I) isn’t rational. The notion that the State preserves marriage by dissolving marriages (Question II) isn’t rational.