CDZ Contd: Are there ways to separate gay marriage and benefits from govt and protect people equally

[Divine Wind]

Let me play "devil's advocate" for a moment here. As I understand it, it would be illegal to marry a first cousin. Does that, then, not discriminate based on family relationship? I mean, you can't control who you love. Right?

Government should get out of marriage all together, not sanction it, not recognize it. Nothing.

Let me be devil's advocate: can you marry your sister or mother?

IMHO, law should be secular. Marriage is religious. The conflict is the mixing.

 

[Divine Wind]

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

That's not correct. Maybe I'm missing something in your discussion with F&B, but the fact remains that freedom of assembly and speech are enumerated rights. They can't be banned. We know Liberals want to rewrite the Constitution and have worked hard to redefine those rights, but the fact remains we still have them.

 

[TheProgressivePatriot]

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

That's not correct. Maybe I'm missing something in your discussion with F&B, but the fact remains that freedom of assembly and speech are enumerated rights. They can't be banned. We know Liberals want to rewrite the Constitution and have worked hard to redefine those rights, but the fact remains we still have them.

Sorry, but with all due respect you do not know what you are talking about. The body of constitutional law is comprised of the text of the original document, the amendments and case law- all of the supreme court decision which are binding precedents. Regardless of whether rights are enumerated, established but court ruling, or implied, they carry the same legal weight.

Unenumerated Rights
Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it. Unenumerated Rights

Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S. Supreme Court under the U.S. Constitution. In addition, state courts have recognized unenumerated rights emanating from the principles enunciated by their own state constitutions. No comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated.

Nevertheless, a partial list of unenumerated rights might include those specifically recognized by the Supreme Court, such as the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion, which is based on the right to privacy. Other rights could easily be added to this list, and no doubt will be in the future. In washington v. glucksberg, 117 S. Ct. 2258 (1997), the Supreme Court ruled that there is no unenumerated constitutional right to die.

And this :

Penumbras of the Constitution: charting the origins of the abolition of moral legislation Penumbras of the Constitution: charting the origins of the abolition of moral legislation

Though the Supreme Court's power to determine the constitutionality of the laws of the land was never explicitly granted in the Constitution, the Court has exercised the power of judicial review ever since the extremely controversial case of Marbury v. Madison in 1803. Inherent in the power of judicial review is the definition of penumbral rights.

Over years of exercising this power, the Court has established various rights penumbral to explicit constitutional provisions.

A good example of how a un-enumerated right granted by the supreme court cannot be annulled by the state is the recent smack down that the court delivered to Texas on abortion.

 

[FA_Q2]

You keep mentioning this post so I will address it. Let me preface this with the fact that I am in agreement with FairandBalanced - the state should have no part in marriage and should not be sanctioning any relationship at all. This has nothing to do with gay marriage for me just like Fair - I also have argued for gay marriage as long as marrage itself remains state sanctioned as the government has no ability to discriminate against them in this manner.

Actually I have not overlooked anything having been involved in this issue since way before Obergefell. On the other hand, it appears that you have not thought much about it at all. You ask why is it unacceptable and I will be happy to tell you.

· It panders to the religious right and other bigots, while not really getting government out of marriage and not appeasing those opposed to same sex unions. Why? Keep reading.

· Marriage has a special meaning to many people-religious and secular, gay and straight alike. It is universally understood to mean a certain thing. The fact that many do not understand what a civil union is was a big problem for gay couples before Obergefell and would be a problem for every one if we reverted to it now.

This speaks to the fact that eliminating marriage would not work politically rather than being legally impossible. I agree and reality makes this obvious. I don't see this as a debate over what is politically tenable at this moment, many such threads here go over possibilities or positions that are not politically tenable at the moment. That does not mean such is impossible or the position does not have merit.

Further, originally, this was a statement against the idea of converting to a civil union. I find that entire stance to nonsensical. What we call marriage is meaningless - you can call it whatever you want. The crux has always been what special privileges that marriage, civil union and whatnot bring.

· I am a married, heterosexual person and I -along with many others would not be happy if I could not call it marriage. In addition, the Supreme Court has said on numerous occasions that marriage is a “fundamental right” If states tried to take marriage away, they would be violating constitutional law and setting up decades more of costly litigation. More not less government involvement.

No, that is not a case of more government and what you may or may not like is irrelevant to the point.

· If we are not talking about doing away with marriage all together and the idea is to preserve marriage for those who want to be joined religiously, there are additional problems that should be obvious. We may have eliminated discrimination based on gender and sexual orientation but set up a situation where there is religious discrimination were secular people are howling about not being able to call their union marriage. More years of litigation and more government involvement.

Again, utterly incorrect. What we are talking about is the elimination of state sponsored marriage. You have the right to call your union whatever you want. You can call it marriage without the states approval right now. Removing the concept from the state does not increase state involvement.

There will, of course, be a need to adjust law - that is true no matter what you do and is not an indication of more government involvement.

· In addition, many religious institutions do in fact marry same sex couples and it’s naive to think that the religious right would be willing to allow those gay couples to call it marriage, even if there was no government recognition of it. More haggling, more political angst, more litigation and yes more government involvement

This has nothing to do with removing state sponsored marriages at all and 'the religious right' has no purview over what you call your union. The debate has never been forcing people to call one couple or another married - religious people can refuse to call gays married with state sponsorship now. The problem was (and is as it is still the case) the state confers special rights to those that are recolonized and refuses those rights to those that are not.

That is flatly wrong and continues to be wrong as the state continues to discriminate.

· Aside from the constitutional questions, there is the reality that it would take many years for all states to get on the same page with this. There would be a confusing patchwork of differing laws on civil unions while some states would retain marriage. That in would create questions about the legal status of couples who move from to another state-and especially between states that recognize marriage and those who do not. In short we would be right back to where we were before Obergefell with conflicts about reciprocal recognition of marriages from state to state. More litigation and more government involvement.

This is direct to allowing states to come up with their own laws government marriages - not a position that I take ergo not something I am going to defend.

This is also not a case of more government. It seems that there is a huge difference in how you define increased government involvement and I do.

· Speaking of government involvement, civil unions as we knew them before Obergefell did indeed involve government. They were applied for and issued through local government. So that does not remove government from marriage

Because civil union is just another name for marriage.

· If on the other hand, we are talking about private contracts between individuals, that would entail hiring a lawyer, something that may not be affordable for all. More importantly, contracts are provided for in law so you still have government involvement, as you would if it came to a contentious desolation requiring litigation.

And contractual law exists right now. Your govnerment involvment would be a matter of contractual obligation that you can establish WITH ANYONE WHATSOEVER or multiple people.

Solving a 'lawyer' problem is rather simple - there should be some standard contracts that you can set up similar to the licensing process that we have now but it would allow people to tailor what they actually want and with who rather than the state sanctioning what is essentially sexual relationship. Again, this is not more government - this is putting the government where it belongs, out of your relationship.

· A contract between two individuals only governs the terms of their relationship and does not compel any third party entity, government of non-government, to recognize it or to extend any rights or benefits to those parties. Under current law, only marriage accomplishes that. One might say that the law could be changed, but I say good luck with that. Some states would surely resist, it would take decades, and more litigation. Yes, more government involvement.

Again, changing law does not mean more government. There is no reason whatsoever that most of those rights that are involved with marriage should not be extended to everyone with whoever they want to be the other side of those provisions. Less government because government is no longer deciding if a particular person is acceptable or not - they are simply recognizing the contract itself (something that the government already does).

· Sure a constitutional amendment could be drafted to cover all of this a get everyone on the same page but again, I say good luck.

· I might also point out that the federal government never recognized civil unions for the purpose of federal marriage benefits prior to the Windsor case overturning the Defense of Marriage act. It would take an act of Congress to change that. Lets be realistic about the possibility of that happening any time soon

Irrelevant as covered above.

· If, by “government out of marriage we simply mean that no licenses would be issued and the government had no say in who can marry, there would be no way to control inappropriate marriage due to things like age of consent, competency and close relative issues. And if in fact that is the only change, government would still be deeply involved in marriage

Correct in that it still would be involved but it would be a step in the right direction. You, or the government, has no place deciding what an 'inappropriate' marriage is. This is no more bigoted than demanding that gay marriage was inappropriate and no less wrong to do.

However, you are incorrect on one point, age of consent follows another precept that would stand whether or not government is involved in marriage. It is still illegal to have sex with a minor and a minor cannot enter into contractual obligations under normal circumstances. It would, however, close some current loopholes where you can avoid statutory rape by marrying the minor - legal in some states.

· There are many on the religious right who object to any recognition of same sex unions no matter what they are called, so, while we still have government involved in marriage, we have not really solved anything.

· I had great fun responding to this -I wrote it in my head while working out at the gym and then came home and banged it out- and I hope you will enjoy trying to come up with a response. In closing, I will say that the system of marriage that we have is working just fine save for the human short comings and frailties the we bring to it. Marriage does not have to be fixed. Bigots and the religious right wing nut jobs have to be fixed.

So, your entire argument seems to boil down to 'I would not like it' and there will be legal issues that must be addressed. That is a very far cry from the statement such is 'impossible.'

 

[Slyhunter]

sealybobo asked very specific questions on another CDZ thread that deserve answers but weren't directly on the topic of genetics vs. choice.

To keep this in the same section I pose the question as yes or no: Are there ways to separate gay marriage and benefits from govt and still protect people equally.

In other words is managing benefits through govt the ONLY way to make this work (so that people who disagree with same sex couples getting benefits just have to put up with this religious conflict similar to people who don't believe in race mixing with marriage and family); or for the sake of separating beliefs from govt are there feasible options for separating marriage/benefits from govt and still manage these programs where everyone can access and have security/equal protections the same as going through govt, but without imposing conflicting beliefs on anyone (since people could have a choice of which programs to fund or not if this was separated somehow, such as by party).

Here are SB original questions:
==================
Dear Emily,

Are you saying that the government shouldn't give tax breaks to married couples? Are you saying that the government/law shouldn't get involved when a couple wants to get a divorce? Who then decides how much the stay at home wife gets in the divorce? Do Libertarians want the law/government to stay out of divorce?
===============

My answer to this is to give people and parties a choice of how they want to manage it, instead of trying to mandate one system for everyone through federal govt whether they agree or not.

They can go through state, through party, through nonprofits; give people an option to opt out and go through local groups if they want to manage their marriages, benefits, HEALTH CARE, etc that way and quit trying to micromanage "one policy fits all" through the federal/Congressional level that isn't designed for social work which requires one on one individualized decisions.

Now, SB question is basically how do you expect to protect and provide benefits etc. if you don't go through govt.

So the debate question I will frame this as, are
"Are there ways to manage this BESIDES forcing policies through federal govt that conflict with various people's beliefs. and STILL provide the same equal protections or better than what is offered now"

Of course there is, stop issuing government marriage licenses.

OK Then. I'll be looking forward to you comprehensive and detailed plan as to exactly how that would work in reality. Please address the legal aspects as well as the political ramifications when the American people are told that they can no longer be legally married.

Before you embark on this venture, you might want to first review my posy #90 to some perspective as to what the pitfalls and obstacles might be.

Thank you in advance for what I anticipate to be a much a scholarly and thoughtful essay.

I will get right to that, as soon as you show the class where I said anyone should be told that they can't legally marry. In fact that is the complete opposite of my position. I believe, correctly, that the USG has NO business telling anyone who they may or may not marry. By anyone I mean consenting adults , obviously.

Ah yes, now I recall....anybody should be able to marry anybody without government approval.

But, I am not arguing that there should be restrictions on consenting adults being married- I am arguing against the abolition of marriage as we know it for the primary purpose of appeasing those opposed to same sex marriage.

Please note that with the removal of the gender requirement, we already have a system where anyone can marry anyone as long as they are consenting adults-so what purpose does doing away with the license serve - especially if there is going to be any form of government recognition? Would there be ? If not please address the pitfalls that I outlines.

Now get to work

You're ignoring the rights of those who want to be in group marriages.

 

[Slyhunter]

Any law that gives one group special rights and benefits while denying those rights to another group violates the 14th Amendment.

Wouldn't that make any rights/benefits of marriage unconstitutional? It gives one group (those who are married) rights and benefits that others (those not married) do not enjoy.
Case closed.

No, because you see , you can get married and receive those same benefits. Now if the government said "these are marriage benefits" and then proceeded to deny them to some married people, THAT would be illegal.

Democrat benefits are not discriminatory because Republicans can just become Democrats if they want them.
eeech.
Benefits are for people not for actions. Single people should have the same rights as married people.

 

[Slyhunter]

Those who are not married are free to get married . No one is discriminating against them.

Yes, unmarried people are free to marry, however, a person who is not married cannot, for example, file a joint tax return with a person they live with, something married folks can do, if they wish. Just one example. Here's another, an unmarried person has to draw-up and file paperwork for a person of their choosing to be the executor of their estate, married folks have chosen that person by marrying them. I could go on.

Sorry it is still not discrimination. It is a well established principal in law that government may bestow certain privileges or benefits on people when that achieve a certain status that is regulated by said government. It is only discrimination if the government imposes restrictions on those who whish to pursue that status based on their membership in a particular group. If anyone thinks that they should be able to file a joint return with a roommate , the are free to pursue that through the legal process. However, if we start removing those types of distinctions between the married and not married, we may find ourselves at a point where marriage is meaningless- at least legally. Apparently there is little hope of you actually making an attempt to address the issues that I raised in #90.

Fags have already made marriage meaningless.

 

[Slyhunter]

MARRIAGE is a fundamental right, state sanctioned marriage is not.

So when the SCOTUS ruled that state laws prohibiting certain people from marrying and ordered the states to issue marriage licenses to them , that was not establishing marriage sanctioned by the state as a right? Here are 4 examples:

The Supreme Court has ruled State marriage laws/regulations unconstitutional 4 times now.
Each case was distinctive and applied only to the class involved.
Loving v. Virginia- State law against marriage between mixed race couples ruled unconstitutional- citing among other things, our right to marriage.
Zablocki v. Redhall- State law prohibiting marriage for a parent who owes child support ruled unconstitutional- citing among other things, our right to marriage and equal protection under the 14th Amendment.
Turner v. Safley- State regulation restricting marriage of state prisoners ruled unconstitutional- citing: Although such a marriage is subject to substantial restrictions as a result of incarceration, sufficient important attributes of marriage remain to form a constitutionally protected relationship
Obergefell- State law prohibiting marriage between a couple of the same gender ruled unconstitutional citing among other things, our right to marriage and equal protection under the 14th Amendment.

EACH of those cases was about offering EQUAL protection of the law. NO ONE being given state marriage licenses WOULD be equal protection of the law.

?????That actually makes no sense>

It makes PERFECT sense.

If you go to the courthouse and ask for a license and they say "no you have brown hair, so no license for you" that is discrimination
If on the other hand, you go to the courthouse and ask for a license and they say "we don't issue licenses" that isn't discrimination because you got EXACTLY the same thing as everyone else, NO LICENSE, because one is not required.

Question: Is Marriage a Civil Right?

Answer: Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Is Marriage a Civil Right?

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

Freedom of speech is in the constitution. Freedom to marry isn't.

 

[Divine Wind]

Democrat benefits are not discriminatory because Republicans can just become Democrats if they want them.
eeech.
Benefits are for people not for actions. Single people should have the same rights as married people.

Agreed. Government should get out of the marriage "business" as far as tax breaks go. Same for giving tax breaks for children.

Fags have already made marriage meaningless.

Bullshit. Marriage is a religious rite (not right). Government has given married couples 1138 rights and benefits which is a 14th Amendment issue as you pointed out earlier. BTW, being a bigoted asshole doesn't make you wrong, but it doesn't make your valid argument more appealing.

Freedom of speech is in the constitution. Freedom to marry isn't.

Are you a Democrat? They believe our Constitution gives us our rights and fail to understand both the fact we all have those rights already nor the meaning of the 9th Amendment.

 

[Divine Wind]

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

That's not correct. Maybe I'm missing something in your discussion with F&B, but the fact remains that freedom of assembly and speech are enumerated rights. They can't be banned. We know Liberals want to rewrite the Constitution and have worked hard to redefine those rights, but the fact remains we still have them.

Sorry, but with all due respect you do not know what you are talking about. The body of constitutional law is comprised of the text of the original document, the amendments and case law- all of the supreme court decision which are binding precedents. Regardless of whether rights are enumerated, established but court ruling, or implied, they carry the same legal weight.

Unenumerated Rights
Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it. Unenumerated Rights

Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S. Supreme Court under the U.S. Constitution. In addition, state courts have recognized unenumerated rights emanating from the principles enunciated by their own state constitutions. No comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated.

Nevertheless, a partial list of unenumerated rights might include those specifically recognized by the Supreme Court, such as the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion, which is based on the right to privacy. Other rights could easily be added to this list, and no doubt will be in the future. In washington v. glucksberg, 117 S. Ct. 2258 (1997), the Supreme Court ruled that there is no unenumerated constitutional right to die.

And this :

Penumbras of the Constitution: charting the origins of the abolition of moral legislation Penumbras of the Constitution: charting the origins of the abolition of moral legislation

Though the Supreme Court's power to determine the constitutionality of the laws of the land was never explicitly granted in the Constitution, the Court has exercised the power of judicial review ever since the extremely controversial case of Marbury v. Madison in 1803. Inherent in the power of judicial review is the definition of penumbral rights.

Over years of exercising this power, the Court has established various rights penumbral to explicit constitutional provisions.

A good example of how a un-enumerated right granted by the supreme court cannot be annulled by the state is the recent smack down that the court delivered to Texas on abortion.

I fail to see what your disagreement with me is nor how I don't know what I'm talking about when I specify we have both enumerated and unenumerated rights. You claim to disagree with me then go on it prove me correct such as the "right" of abortion, an unenumerated right.

 

[TheProgressivePatriot]

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

That's not correct. Maybe I'm missing something in your discussion with F&B, but the fact remains that freedom of assembly and speech are enumerated rights. They can't be banned. We know Liberals want to rewrite the Constitution and have worked hard to redefine those rights, but the fact remains we still have them.

Sorry, but with all due respect you do not know what you are talking about. The body of constitutional law is comprised of the text of the original document, the amendments and case law- all of the supreme court decision which are binding precedents. Regardless of whether rights are enumerated, established but court ruling, or implied, they carry the same legal weight.

Unenumerated Rights
Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it. Unenumerated Rights

Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S. Supreme Court under the U.S. Constitution. In addition, state courts have recognized unenumerated rights emanating from the principles enunciated by their own state constitutions. No comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated.

Nevertheless, a partial list of unenumerated rights might include those specifically recognized by the Supreme Court, such as the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion, which is based on the right to privacy. Other rights could easily be added to this list, and no doubt will be in the future. In washington v. glucksberg, 117 S. Ct. 2258 (1997), the Supreme Court ruled that there is no unenumerated constitutional right to die.

And this :

Penumbras of the Constitution: charting the origins of the abolition of moral legislation Penumbras of the Constitution: charting the origins of the abolition of moral legislation

Though the Supreme Court's power to determine the constitutionality of the laws of the land was never explicitly granted in the Constitution, the Court has exercised the power of judicial review ever since the extremely controversial case of Marbury v. Madison in 1803. Inherent in the power of judicial review is the definition of penumbral rights.

Over years of exercising this power, the Court has established various rights penumbral to explicit constitutional provisions.

A good example of how a un-enumerated right granted by the supreme court cannot be annulled by the state is the recent smack down that the court delivered to Texas on abortion.

I fail to see what your disagreement with me is nor how I don't know what I'm talking about when I specify we have both enumerated and unenumerated rights. You claim to disagree with me then go on it prove me correct such as the "right" of abortion, an unenumerated right.

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

That's not correct. Maybe I'm missing something in your discussion with F&B, but the fact remains that freedom of assembly and speech are enumerated rights. They can't be banned. We know Liberals want to rewrite the Constitution and have worked hard to redefine those rights, but the fact remains we still have them.

Sorry, but with all due respect you do not know what you are talking about. The body of constitutional law is comprised of the text of the original document, the amendments and case law- all of the supreme court decision which are binding precedents. Regardless of whether rights are enumerated, established but court ruling, or implied, they carry the same legal weight.

Unenumerated Rights
Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it. Unenumerated Rights

Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S. Supreme Court under the U.S. Constitution. In addition, state courts have recognized unenumerated rights emanating from the principles enunciated by their own state constitutions. No comprehensive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated.

Nevertheless, a partial list of unenumerated rights might include those specifically recognized by the Supreme Court, such as the right to travel, the right to privacy, the right to autonomy, the right to dignity, and the right to an Abortion, which is based on the right to privacy. Other rights could easily be added to this list, and no doubt will be in the future. In washington v. glucksberg, 117 S. Ct. 2258 (1997), the Supreme Court ruled that there is no unenumerated constitutional right to die.

And this :

Penumbras of the Constitution: charting the origins of the abolition of moral legislation Penumbras of the Constitution: charting the origins of the abolition of moral legislation

Though the Supreme Court's power to determine the constitutionality of the laws of the land was never explicitly granted in the Constitution, the Court has exercised the power of judicial review ever since the extremely controversial case of Marbury v. Madison in 1803. Inherent in the power of judicial review is the definition of penumbral rights.

Over years of exercising this power, the Court has established various rights penumbral to explicit constitutional provisions.

A good example of how a un-enumerated right granted by the supreme court cannot be annulled by the state is the recent smack down that the court delivered to Texas on abortion.

I fail to see what your disagreement with me is nor how I don't know what I'm talking about when I specify we have both enumerated and unenumerated rights. You claim to disagree with me then go on it prove me correct such as the "right" of abortion, an unenumerated right.

You fail to see what my disagreement is? You may have acknowledged that there are un-enumerated rights-I don't recall but that is beside the point. You are insisting that because marriage is NOT an enumerated right, the states can do away with it.

I wrote: There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

You wrote: That's not correct. Maybe I'm missing something in your discussion with F&B, but the fact remains that freedom of assembly and speech are enumerated rights. They can't be banned. We know Liberals want to rewrite the Constitution and have worked hard to redefine those rights, but the fact remains we still have them.

Now do you see? You are not giving all rights established by constitutional law equal weight and that is just wrong.

 

[Fair&Balanced]

MARRIAGE is a fundamental right, state sanctioned marriage is not.

So when the SCOTUS ruled that state laws prohibiting certain people from marrying and ordered the states to issue marriage licenses to them , that was not establishing marriage sanctioned by the state as a right? Here are 4 examples:

The Supreme Court has ruled State marriage laws/regulations unconstitutional 4 times now.
Each case was distinctive and applied only to the class involved.
Loving v. Virginia- State law against marriage between mixed race couples ruled unconstitutional- citing among other things, our right to marriage.
Zablocki v. Redhall- State law prohibiting marriage for a parent who owes child support ruled unconstitutional- citing among other things, our right to marriage and equal protection under the 14th Amendment.
Turner v. Safley- State regulation restricting marriage of state prisoners ruled unconstitutional- citing: Although such a marriage is subject to substantial restrictions as a result of incarceration, sufficient important attributes of marriage remain to form a constitutionally protected relationship
Obergefell- State law prohibiting marriage between a couple of the same gender ruled unconstitutional citing among other things, our right to marriage and equal protection under the 14th Amendment.

EACH of those cases was about offering EQUAL protection of the law. NO ONE being given state marriage licenses WOULD be equal protection of the law.

?????That actually makes no sense>

It makes PERFECT sense.

If you go to the courthouse and ask for a license and they say "no you have brown hair, so no license for you" that is discrimination
If on the other hand, you go to the courthouse and ask for a license and they say "we don't issue licenses" that isn't discrimination because you got EXACTLY the same thing as everyone else, NO LICENSE, because one is not required.

Question: Is Marriage a Civil Right?

Answer: Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Is Marriage a Civil Right?

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

Well, I argue that the Bill of Rights was NEVER meant to apply to states anyway, but that is another matter.

YOU are conflating issues.

you have a right to marry, you do NOT have a right to a state license to do so.

Really this isn't any different than in the case of free speech in that regard. Do you have to have a license to practice free speech?

 

[Divine Wind]

You fail to see what my disagreement is? You may have acknowledged that there are un-enumerated rights-I don't recall but that is beside the point. You are insisting that because marriage is NOT an enumerated right, the states can do away with it.

You are misunderstanding. I'm not saying states can ban marriage. I'm supporting the idea that states can ban laws regarding marriage and the requirement for marriage licenses. What consenting adults do is up to them. They can start their own church and marry any other consenting adult. The state would have no say in it.

 

[TheProgressivePatriot]

So when the SCOTUS ruled that state laws prohibiting certain people from marrying and ordered the states to issue marriage licenses to them , that was not establishing marriage sanctioned by the state as a right? Here are 4 examples:

The Supreme Court has ruled State marriage laws/regulations unconstitutional 4 times now.
Each case was distinctive and applied only to the class involved.
Loving v. Virginia- State law against marriage between mixed race couples ruled unconstitutional- citing among other things, our right to marriage.
Zablocki v. Redhall- State law prohibiting marriage for a parent who owes child support ruled unconstitutional- citing among other things, our right to marriage and equal protection under the 14th Amendment.
Turner v. Safley- State regulation restricting marriage of state prisoners ruled unconstitutional- citing: Although such a marriage is subject to substantial restrictions as a result of incarceration, sufficient important attributes of marriage remain to form a constitutionally protected relationship
Obergefell- State law prohibiting marriage between a couple of the same gender ruled unconstitutional citing among other things, our right to marriage and equal protection under the 14th Amendment.

EACH of those cases was about offering EQUAL protection of the law. NO ONE being given state marriage licenses WOULD be equal protection of the law.

?????That actually makes no sense>

It makes PERFECT sense.

If you go to the courthouse and ask for a license and they say "no you have brown hair, so no license for you" that is discrimination
If on the other hand, you go to the courthouse and ask for a license and they say "we don't issue licenses" that isn't discrimination because you got EXACTLY the same thing as everyone else, NO LICENSE, because one is not required.

Question: Is Marriage a Civil Right?

Answer: Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Is Marriage a Civil Right?

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

Well, I argue that the Bill of Rights was NEVER meant to apply to states anyway, but that is another matter.

YOU are conflating issues.

you have a right to marry, you do NOT have a right to a state license to do so.

Really this isn't any different than in the case of free speech in that regard. Do you have to have a license to practice free speech?

I know that the bill of rights was not originally intended to apply to the states. But, the southern yahoos rose up and brought the 14th amendment down on themselves.

You keep repeating that you don't have a right to state licensed marriage but I have documented otherwise. Constantly repeating something doesn't make it true. I will add that the fact that you need a license to marry in itself does not mean that it is not a right. The reasons for the license have changed over time and currently it is simply to ensure that the participants meet very minimal requirements

Let us put aside for a moment the fact that the Supreme Court has, on numerous occasions, said that marriage is a right. However, a brief review is in order:

In Turner v Safley (1987), the Court refused to apply strict scutiny to a Missouri prison regulation prohibiting inmates from marrying, absent a compelling reason. Instead, the Court found the regulation failed to meet even a lowered standard of "reasonableness" that it said it would apply in evaluating the constitutionality of prison regulations.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/righttomarry.htm

This is why even the likes of Charles Manson, a mass murderer who stand little chance of ever getting out of prison was granted permission to marry ( Subsequently the blushing bride came to her senses and the deal was off) Yet, until recently, two people who desired and were committed to each other, but happened to be of the same gender could not marry. How does that make sense?

But, let’s focus on the meaning of the words -rights and privileges rather than the legal aspects. If marriage is not a right as some contend, then it is a privilege. There are no other possibilities. So then what is a privilege? I submit to you that a privilege is something that must be earned- something that you must demonstrate a degree of competence to engage in. Driving is a privilege.

As for marriage, there is no such requirement. One must simply meet certain criteria – age, ability to consent, not to closely related, and until recently, being of the opposite sex. There is no test to take, no requirement that they prove that they will be a good spouse or that they “deserve” to be married. They can take for granted that they will be allowed to marry as long as they meet those very minimal criteria. The fact that a license is required does not, in itself make it a privilege. The license only serves to ensure that those minimal requirements are met.

Now, one can lose both rights and privileges under certain circumstances but the bar is set much higher for revoking a right than it is for revoking a privilege. In the case of driving, if you are irresponsible and have accidents and get tickets, or if you have a medical condition that renders you unsafe, your driving privileges can be revoked often by administrative process for which you have no appeal.. On the other hand, while you have the right to your freedom, that to can be forfeited, but only if you are afforded due process in a court of law, convicted beyond a reasonable doubt of a serious crime, and exhaust your appeals.

In the case of marriage, no third party can nullify it, not the government of anyone else for “not being good at it” or breaking the rules. The government only step in and revoke your marriage if it is found that you misrepresented your eligibility based on the aforementioned minimum criteria. Otherwise, the only role for government is to mediate and ultimately grant the desolation of the marriage. Marriage is clearly a right.

 

[TheProgressivePatriot]

You fail to see what my disagreement is? You may have acknowledged that there are un-enumerated rights-I don't recall but that is beside the point. You are insisting that because marriage is NOT an enumerated right, the states can do away with it.

You are misunderstanding. I'm not saying states can ban marriage. I'm supporting the idea that states can ban laws regarding marriage and the requirement for marriage licenses. What consenting adults do is up to them. They can start their own church and marry any other consenting adult. The state would have no say in it.

Start their own Church!!?? Brilliant ! If there is no state/ legal recognition of it, it is not marriage.

 

[Divine Wind]

You fail to see what my disagreement is? You may have acknowledged that there are un-enumerated rights-I don't recall but that is beside the point. You are insisting that because marriage is NOT an enumerated right, the states can do away with it.

You are misunderstanding. I'm not saying states can ban marriage. I'm supporting the idea that states can ban laws regarding marriage and the requirement for marriage licenses. What consenting adults do is up to them. They can start their own church and marry any other consenting adult. The state would have no say in it.

Start their own Church!!?? Brilliant ! If there is no state/ legal recognition of it, it is not marriage.

Do you really believe states grant marriages? Do you really believe marriage came after the Constitution or the States? Sorry to bust your bubble, but marriage is a religious rite and has existed for thousands of years. No state sanctioning was required then and none now.

So what is the purpose of issuing marriage licenses? As mentioned before, it's solely for legal reasons such as parentage, survivorship, tax benefits, etc.

 

[Slyhunter]

You fail to see what my disagreement is? You may have acknowledged that there are un-enumerated rights-I don't recall but that is beside the point. You are insisting that because marriage is NOT an enumerated right, the states can do away with it.

You are misunderstanding. I'm not saying states can ban marriage. I'm supporting the idea that states can ban laws regarding marriage and the requirement for marriage licenses. What consenting adults do is up to them. They can start their own church and marry any other consenting adult. The state would have no say in it.

Start their own Church!!?? Brilliant ! If there is no state/ legal recognition of it, it is not marriage.

You shouldn't be allowed to force the States to license what they don't want to license. If they choose not to license fishing and everyone can fish without a license that's ok. Same goes for marriage.

 

[Fair&Balanced]

EACH of those cases was about offering EQUAL protection of the law. NO ONE being given state marriage licenses WOULD be equal protection of the law.

?????That actually makes no sense>

It makes PERFECT sense.

If you go to the courthouse and ask for a license and they say "no you have brown hair, so no license for you" that is discrimination
If on the other hand, you go to the courthouse and ask for a license and they say "we don't issue licenses" that isn't discrimination because you got EXACTLY the same thing as everyone else, NO LICENSE, because one is not required.

Question: Is Marriage a Civil Right?

Answer: Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Is Marriage a Civil Right?

There is nothing here to suggest that a state can deny marriage to all people and not be in violation of constitutional law. If what you're saying is correct, a state could also ban freedom of assembly, or speech, as long as they did it across the board and not just target certain groups. Your argument fails big time.

Well, I argue that the Bill of Rights was NEVER meant to apply to states anyway, but that is another matter.

YOU are conflating issues.

you have a right to marry, you do NOT have a right to a state license to do so.

Really this isn't any different than in the case of free speech in that regard. Do you have to have a license to practice free speech?

I know that the bill of rights was not originally intended to apply to the states. But, the southern yahoos rose up and brought the 14th amendment down on themselves.

You keep repeating that you don't have a right to state licensed marriage but I have documented otherwise. Constantly repeating something doesn't make it true. I will add that the fact that you need a license to marry in itself does not mean that it is not a right. The reasons for the license have changed over time and currently it is simply to ensure that the participants meet very minimal requirements

Let us put aside for a moment the fact that the Supreme Court has, on numerous occasions, said that marriage is a right. However, a brief review is in order:

In Turner v Safley (1987), the Court refused to apply strict scutiny to a Missouri prison regulation prohibiting inmates from marrying, absent a compelling reason. Instead, the Court found the regulation failed to meet even a lowered standard of "reasonableness" that it said it would apply in evaluating the constitutionality of prison regulations.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/righttomarry.htm

This is why even the likes of Charles Manson, a mass murderer who stand little chance of ever getting out of prison was granted permission to marry ( Subsequently the blushing bride came to her senses and the deal was off) Yet, until recently, two people who desired and were committed to each other, but happened to be of the same gender could not marry. How does that make sense?

But, let’s focus on the meaning of the words -rights and privileges rather than the legal aspects. If marriage is not a right as some contend, then it is a privilege. There are no other possibilities. So then what is a privilege? I submit to you that a privilege is something that must be earned- something that you must demonstrate a degree of competence to engage in. Driving is a privilege.

As for marriage, there is no such requirement. One must simply meet certain criteria – age, ability to consent, not to closely related, and until recently, being of the opposite sex. There is no test to take, no requirement that they prove that they will be a good spouse or that they “deserve” to be married. They can take for granted that they will be allowed to marry as long as they meet those very minimal criteria. The fact that a license is required does not, in itself make it a privilege. The license only serves to ensure that those minimal requirements are met.

Now, one can lose both rights and privileges under certain circumstances but the bar is set much higher for revoking a right than it is for revoking a privilege. In the case of driving, if you are irresponsible and have accidents and get tickets, or if you have a medical condition that renders you unsafe, your driving privileges can be revoked often by administrative process for which you have no appeal.. On the other hand, while you have the right to your freedom, that to can be forfeited, but only if you are afforded due process in a court of law, convicted beyond a reasonable doubt of a serious crime, and exhaust your appeals.

In the case of marriage, no third party can nullify it, not the government of anyone else for “not being good at it” or breaking the rules. The government only step in and revoke your marriage if it is found that you misrepresented your eligibility based on the aforementioned minimum criteria. Otherwise, the only role for government is to mediate and ultimately grant the desolation of the marriage. Marriage is clearly a right.

Maybe I'm just not being clear. I am proposing that states remove all requirements to obtain a license from said state to marry. As for divorce court , or what have you, clearly family court could manage divorces whether the marriage was approved by a church, a state, or wal mart even. For that matter , in most states if you live with someone and then ditch them with all the bills, courts will hold you responsible for your share of those bills.

 

[TheProgressivePatriot]

You keep mentioning this post so I will address it. Let me preface this with the fact that I am in agreement with FairandBalanced - the state should have no part in marriage and should not be sanctioning any relationship at all. This has nothing to do with gay marriage for me just like Fair - I also have argued for gay marriage as long as marrage itself remains state sanctioned as the government has no ability to discriminate against them in this manner.

OK, we agree that gays should have equal rights but disagree on the matter of the state’s involvement in marriage and I don’t suppose that will change. Tell me, do you really think that there are many people who would accept the total destruction of marriage as we know it, including the loss of government benefits, rights and protections? And for what purpose? There are not enough people who hate government enough to get a hair brained idea like that passed.

1. TheProgressivePatriot said: ↑

Actually I have not overlooked anything having been involved in this issue since way before Obergefell. On the other hand, it appears that you have not thought much about it at all. You ask why is it unacceptable and I will be happy to tell you.

· It panders to the religious right and other bigots, while not really getting government out of marriage and not appeasing those opposed to same sex unions. Why? Keep reading.

· Marriage has a special meaning to many people-religious and secular, gay and straight alike. It is universally understood to mean a certain thing. The fact that many do not understand what a civil union is was a big problem for gay couples before Obergefell and would be a problem for every one if we reverted to it now.

This speaks to the fact that eliminating marriage would not work politically rather than being legally impossible. I agree and reality makes this obvious. I don't see this as a debate over what is politically tenable at this moment, many such threads here go over possibilities or positions that are not politically tenable at the moment. That does not mean such is impossible or the position does not have merit.

Further, originally, this was a statement against the idea of converting to a civil union. I find that entire stance to nonsensical. What we call marriage is meaningless - you can call it whatever you want. The crux has always been what special privileges that marriage, civil union and whatnot bring.

It would not work politically , legally or pragmatically. The question is not only whether or not it would be possible, but also why? What useful purpose would it serve and ho would life be any better for anyone.? I will add that civil unions are in no way the same as marriage. Marriage has a special, universally understood meaning. There is no point to this a all

More later.

 

[Fair&Balanced]

You keep mentioning this post so I will address it. Let me preface this with the fact that I am in agreement with FairandBalanced - the state should have no part in marriage and should not be sanctioning any relationship at all. This has nothing to do with gay marriage for me just like Fair - I also have argued for gay marriage as long as marrage itself remains state sanctioned as the government has no ability to discriminate against them in this manner.

OK, we agree that gays should have equal rights but disagree on the matter of the state’s involvement in marriage and I don’t suppose that will change. Tell me, do you really think that there are many people who would accept the total destruction of marriage as we know it, including the loss of government benefits, rights and protections? And for what purpose? There are not enough people who hate government enough to get a hair brained idea like that passed.

1. TheProgressivePatriot said: ↑

Actually I have not overlooked anything having been involved in this issue since way before Obergefell. On the other hand, it appears that you have not thought much about it at all. You ask why is it unacceptable and I will be happy to tell you.

· It panders to the religious right and other bigots, while not really getting government out of marriage and not appeasing those opposed to same sex unions. Why? Keep reading.

· Marriage has a special meaning to many people-religious and secular, gay and straight alike. It is universally understood to mean a certain thing. The fact that many do not understand what a civil union is was a big problem for gay couples before Obergefell and would be a problem for every one if we reverted to it now.

This speaks to the fact that eliminating marriage would not work politically rather than being legally impossible. I agree and reality makes this obvious. I don't see this as a debate over what is politically tenable at this moment, many such threads here go over possibilities or positions that are not politically tenable at the moment. That does not mean such is impossible or the position does not have merit.

Further, originally, this was a statement against the idea of converting to a civil union. I find that entire stance to nonsensical. What we call marriage is meaningless - you can call it whatever you want. The crux has always been what special privileges that marriage, civil union and whatnot bring.

It would not work politically , legally or pragmatically. The question is not only whether or not it would be possible, but also why? What useful purpose would it serve and ho would life be any better for anyone.? I will add that civil unions are in no way the same as marriage. Marriage has a special, universally understood meaning. There is no point to this a all

More later.

Why would government rights be destroyed?

It's simple

No more state marriage licenses, but if you have a marriage license from wal mart, a church, or wherever else, that license is a contract and valid in terms of state benefits. END OF DISCUSSION.