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I personally have spoken to Romer, Lawrence and Windsor ad nauseam.......I was speaking of Sutton who answers all arguments that these could somehow be used as excuses to ignore (by the lower courts) the binding precedent of Baker.
And when you speak of Romer, Lawrence and Windsor....its to tell us why you're ignoring them. Feel free. But that's not a legal argument. That's an emotional one. One that I'm sure Silo responds to. But one that has no relevance to the law.
saying that Scalia recognized that the die was set due to the majorities willful blindness to logic....is not the same thing as saying Scalia approved of ignoring the precedent set in Baker. Yet, that is what you repeatedly imply, as if repetition makes it true.
I never said that Scalia agreed with the majority. I said that Windsor was crystal clear and that even Scalia could see that. The lower courts are to interpret the law in accordance with existing precedent. Sutton largely dismissed Windsor, misinterpreted the clear message the court was sending, and came to faulty conclusions that were ultimately unconstitutional.
Making your reliance on his argument all the more nonsensical. As he was obviously wrong.
I did not ignore them per se, but showed how they are irrelevant to the argument at hand...especially as the lower courts used them as an excuse for striking down existing law, and binding precedent. Well I do I guess, ignore Romer as it is unintelligible garbage. And that is not an emotional argument...thats just what most people who dont have a dog-in-the-fight so-to-speak would say.
Scalia would not say Windsor was crystal clear either...and least not it legal arguments.....its emotion based outcome, that was crystal clear. Sutton too did not "misinterpret the clear message the court was sending" he correctly interpreted what little legal argument there was within the opinion, (basically Baker, i.e. no substantial federal question) , and showed how it did not permit Baker to be ignored, by lower courts especially.
It would appear that there will be no end to the wrangling about who is right with respect to constitutional law and issues such as the relevance of Baker. Let’s face these facts, while many of us have a better than average knowledge of the constitution, none of us here are constitutional scholars. (If I’m mistaken and someone actually is, please make that known) Secondly, we all have our biases and our interpretation of the constitution is shaped by those biases. Of course, that is no less true of the judges and the justices, although they are better disguising those biases through more sophisticated legal jargon and their knowledge of case law.
Therefore, I want to try a slightly different approach. My intention here is to expose Judge Sutton for the biased bigot that he is, not by attacking his legal theories, but by taking a long hard look at his illogical and nonsensical remarks about marriage and children. While there are other inane, subjective, and biased remarks such as his fear mongering about polygamy, I will just focus on the children for now.
As you read through these excerpts from the opinion, and my comments, be cognizant of Sutton’s underlying premise that bans on same sex marriage is not worthy of heightened scrutiny.
A link to the full text of the opinion is contained in this article:
Sixth Circuit: Now, a split on same-sex marriage
Posted Thu, November 6th, 2014 4:50 pm by Lyle Denniston
The American Civil Liberties Union, one of the legal advocacy groups involved in the case, said “we will be filing for Supreme Court review right away.” Presumably, the other attorneys involved will coordinate their filings, although each case is likely to be appealed separately.
Breaking ranks with a wide array of other federal courts, and coming close to setting up almost certain review by the Supreme Court, a divided federal appeals court in Cincinnati on Thursday
upheld bans on same-sex marriage in four states. Dividing two to one, the U.S. Court of Appeals for the Sixth Circuit overturned lower-court rulings in cases from Kentucky, Michigan, Ohio, and Tennessee.
Sixth Circuit: Now, a split on same-sex marriage
The discussion of marriage and children begins on pg. 29
……….One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse.
Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children.
Yes just imagine a world without marriage. And while you’re at it judge, try to imagine a world in which same sex couples cannot get married , many of whom have children in their care, who in the absence of marriage, may not be able to provide two legal parents to those children through third party adoption. Please explain why, when the government puts children at a disadvantage in such a way, that doing so is not worthy of heightened scrutiny. He goes on.....
May men and women follow their procreative urges wherever they take them? Who is
responsible for the children that result? How many mates may an individual have? How does
one decide which set of mates is responsible for which set of children?
Do gay man and lesbians not have “procreative urges”? Do they not desire to be parents and to have the opportunity to nurture and raise children? Is parental responsibility no also an issue among heterosexual individuals and couples? Judge, are you alluding to the well-worn and bigoted view that only heterosexual couples need to get married because they are the only ones who have children “spontaneously” ? Are heterosexuals the only people who encounter custody and parental rights issues-that –by the way-are often exacerbated by not being married. What exactly are you talking about judge? He also states....
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can wellappreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.
One way to pursue this objective is to encourage couples to enter lasting relationships through subsidiesand other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative.
Yes, the need to create stable families. That’s right judge. And we need those stable families to provide stability and security for all children, including the children of gay people whose existence you seem to be unable to acknowledge.
And you say that the way to pursue the creation of stable families is “to encourage couples to enter lasting relationships through subsidiesand other benefits and to discourage them from ending such relationships through these and other means.” Again judge, gay people have children in their care, gay people will persist in acquiring children, even in the absence of their ability to marry, and those children are deserving of those “stable families” that you refer to. How the hell do laws that deprive children-any children of that stability not deserving of heightened scrutiny?
There is more
Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.
Here judge, you are acknowledging the fact that same sex couples are
capable of raising children and providing stable families for them. However, you are willing to undermine their ability to provide that stable family by denying them the ability to marry. That does not make any sense, either morally, logically or legally.
Then, on rational basis review:
But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial fact finding.
If legislative choices may rest on “rational speculation unsupported by evidence or empirical data,” What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g.,with tax-filing privileges and deductions), the States created an incentive for two people whoprocreate together to stay together for purposes of rearing offspring.
That does not convict theStates of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices toallow the States to retain authority over an issue they have regulated from the beginning.
Judge, we are not talking about just any policy issue here. We are talking about a policy, about a law, that has a real material impact on human lives that is measurable and observable. Laws that the states have not been able to defend by articulating a rational basis for and it is doubtful that they could articulate a compelling interest either.
Now, judge, you refer to the Michigan case and “judicial fact finding” but you fail to go into much detail about that. Could it be that you want to avoid the reality that the “judicial fact finding” engaged in by the Michigan District court exposed the State of Michigan’s biased, dishonest and unethical attempt to convince the court that same sex marriage should be banned in order to protect children? For those who don’t know, the state of Michigan, out of desperation to protect the gay marriage ban, hired a fraud and a charlatan who presented a bogus study on gay parenting, that was discredited in court.
Judge, is that why you decry “judicial fact finding.” I will add that the “empirical evidence that you refer to overwhelmingly supports the validity of parenting by gay couples and the values of marriage to those couples and families, you the legislature, that you prefer as the “policy maker” failed to act on that data. ( I have ample documentation of all of this-much of which I have already posted and will be happy to do so again)
Lastly, in this passage, you again refer to “procreation” and talk about how gay people do not procreate in the same way as heterosexuals. Except judge, many heterosexuals-where one or both cannot have a child in the” usual way” do in fact procreate or otherwise have children EXACTLY like gay couples to. And why, may I ask, should the state not be providing the same incentives for gay couples as for straight couples to procreate and maintain a family? Because only straight couples may have “unintended offspring”? What sense does that make? The issue is not why we should encourage anyone to marry buy why we should prohibit certain people from marrying. Do you not understand that when it comes to the denial of a right, that the burden of proof is on the state to justify it ? Do you not know those seeking rights need not prove that they deserve the same rights as others?
And from Pg 34
The debate over marriage of course has another side, and we cannot deny the costs to the
plaintiffs of allowing the States to work through this profound policy debate. The traditional
definition of marriage denies gay couples the opportunity to publicly solemnize, to say nothing
of subsidize, their relationships under state law. In addition to depriving them of this status, it
deprives them of benefits that range from the profound (the right to visit someone in a hospital as
a spouse or parent) to the mundane (the right to file joint tax returns). These harms affect not
only gay couples but also their children. Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer—but from elected legislators, not life-tenured judges.
Here again Judge, you are acknowledging that fact that children are harmed by discrimination against the parents. However, you fall back on the well worn tact of those who really want to maintain the status quo, who really want same sex marriage to not happen at all, but don’t want to admit that. Hence the mantra “leave it to the states” and “leave it to the law makers”
Judge, Michigan and far too many other states are decades away from bringing social justice to those children who you purport to care about. As proof, even as we speak, Michigan and a number of other states are attempting to enact legislation to circumvent Obergefell by removing marriage from the government purview altogether, despite the many thorny legal issues that it raises, including the unknown effect that it would have on recognition by the federal government and other states.
Judge, do you not understand that when the state does not uphold the constitution, that it is a basic tenant of our Constitutional Republic, that the Federal Judiciary has a responsibility to step in and ensure the rights of all people?
This all amounts to nothing more than an emotional rant, wrought with logical fallacies and bizarre assumptions about gays , parenting, and family life. If he is capable of going off the rails to that extent just on the subject of parenting, we should anyone believe or expect that his legal analysis of Baker’s applicability, or anything else is more rational and objective. It is quite clear that Sutton’s agenda was to find ways of justifying his siding with the states and that he began with the conclusion that the bans on gay marriage must be upheld, and proceeded to construct his argument around that preconceived idea.
