Missouri voters ban gay marriage

Hi Coastal Rat
Hi Coastal Rat:

I'm not quite sure I understand your post.

Marriage is defined as a personal relationship between two persons arising out of contract wherein the consent of the parties is essential.

I think your post still contains the "open the floodgates" argument: If government allows gay marriages, then government will have to allow incestuous marriages and polygamy.

If the right to marry is a fundamental right (and court cases say that it is), then state government must have a compelling interest in prohibiting certain marriages.

Does the state government have a compelling interest in prohibiting incestuous marriages? I think state government can successfully argue that protecting children as they are growing up in their families through penalizing and discouraging incest may be a compelling government interest. A family environment might not be safe if a father or brother or other close relative may legally view a child as a potential sex partner and spouse.

In Lawrence v. Texas, the Supreme Court tried to figure out the state's interest in criminalizing private, consensual sexual conduct between two adult males. One of the things the Court said was this:

"The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. . . ."

I think we know that some children living in homes and within familial relationships are subjected to sexual abuse by family members. We know these victimized children are injured through sexual abuse. We know that these children may be coerced and they are not in a position to refuse to participate in incestuous acts. How can we be sure if a father wants to marry his 16 or 18 year old daughter that her own personal will was not overborne and that her essential consent to the marriage contract was not coerced through years of sexual abuse?

I think state government can claim a legitimate or compelling interest in discouraging incest and I think state government can claim that a prohibition on incestuous marriages is necessary to that compelling interest. I doubt that any court in the land will require state governments to place their "stamp of approval" on incestuous relationships by allowing an abuser to marry his victim.

As for your argument that the state should allow polygamy--which in turn would require states to decriminalize bigamy--you will have to study the cases to determine the state governmental interests involved. Perhaps the state has a legitimate or compelling interest in limiting a person to one marriage at a time (and requiring a person to end his first marriage through a legally-recognized divorce prior to entering a new marriage).

The state may have a legitimate or compelling interest in ensuring the welfare and security of the first spouse and the welfare of the children from the first marriage--and this interest can be addressed in a divorce proceeding before a person is allowed to enter a second marriage and assume more responsibilities.

I don't know; I haven't studied the issue. I think one of the leading cases on the issue is over 100 years old--and I don't know if the reasoning used then would hold up today. See, e.g., Reynolds vs. U.S., 98 U.S. 145 (1878).

http://laws.findlaw.com/us/98/145.html

The Reynolds case concerns a conviction for bigamy. You have to scroll way down to read the part entitled "As to the defence of religious belief or duty" in order to read the Court's 1878 views on polygamy.

One should be mindful of the Supreme Court's final words in the Lawrence v. Texas case:

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

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Let me address this quote of yours.

"Does the state government have a compelling interest in prohibiting incestuous marriages? I think state government can successfully argue that protecting children as they are growing up in their families through penalizing and discouraging incest may be a compelling government interest. A family environment might not be safe if a father or brother or other close relative may legally view a child as a potential sex partner and spouse. "

What does an incestuous marriage have to do with viewing children as potential sex partners? That would be making a jump that just because a person is in an incestuous relationship means that the person will look at all relatives (including children) as potential sex partners. Does that mean that gays who marry should not be able to adopt children of the same sex as they because they may look at them as potential sex partners? The reasoning is the same. So do you believe courts should step in (if a case is brought) to have children taken from gay parents if the child and the parents are of the same sex?

Maybe I am a bit dense. Or honestly it could be that my moral values just will not let me see that the reasoning you have put forth is better than mine. But I do think we are in for a lot of heated arguments in this country before this issue is decided.

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so sad
CostalRat:

If you truly cannot understand the connection between incest and child sexual abuse by family members, that is sad. You should look up the definition of incest.

You are making a huge irrational leap when you attempt to equate or compare a father (or other close family member) who sexually abuses his child to a homosexual. I believe that is an attempt to conjure up a basis for homophobia.

I don't believe that a judicial declaration that lifts the prohibition against gay marriages will "open the floodgates" to allow incestuous marriages and polygamy. I am trying to have a reasonable discussion with you, but you are delving into the ridiculous.

Please present a legitimate or compelling interest that a state government might have to prohibit same-sex marriages.

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Re: so sad

Debra_Law wrote:

CostalRat:

If you truly cannot understand the connection between incest and child sexual abuse by family members, that is sad. You should look up the definition of incest.

You are making a huge irrational leap when you attempt to equate or compare a father (or other close family member) who sexually abuses his child to a homosexual. I believe that is an attempt to conjure up a basis for homophobia.

I don't believe that a judicial declaration that lifts the prohibition against gay marriages will "open the floodgates" to allow incestuous marriages and polygamy. I am trying to have a reasonable discussion with you, but you are delving into the ridiculous.

Please present a legitimate or compelling interest that a state government might have to prohibit same-sex marriages.

You remind me of my favorite lawyer joke:

What is the difference between a dead lawyer in the road and a dead dog in the road?

There are skid marks in front of the dog.

You have this knack for talking down to people in your posts. Because you are a lawyer you think you know it all and that the law is your weapon. People have stated reasons for banning same sex marriage. I have said and I quote "I don't think we should change the rules to fit someone's choice of a life style". No one has said that gay people can't marry, we only think that they shouldn't be allowed to marry each other because of their life choice. There is no proof that says homosexuality is genetic and until that is proven it remains a choice in life.

I know we keep going over this but it hasn't been answered.

Quote:

You are making a huge irrational leap when you attempt to equate or compare a father (or other close family member) who sexually abuses his child to a homosexual. I believe that is an attempt to conjure up a basis for homophobia.

Isn't some types of pedophilia a homosexual act? When it is a man having sex with a bay child or even a woman having sex with a female child, wouldn't that be a form of homosexuality?

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First off, let's get one thing right. I am in no way comparing anyone who sexually abuses his child to a homosexual. So I think you have misunderstood my point.

You stated that the compelling reason to prohibit incestual marriages would be to keep the children of those marriages from being viewed as possible future sexual partners. I basically stated that if that is the compelling reason, then states should be able to stop gays from adopting children of the same sex as they because maybe they would view their children as future sexual partners. Do you not see the folly of you making the claim you did based on my example?

There is no compelling reason to ban marriages of any kind if you take away the right of society to define marriage as it has always been defined.

I am not here arguing the pros or cons of gay marriage. Our give and take started when you stated that the Missouri ban would be overturned by the Supreme Court if they do the right thing (as defined by you I guess). You cited court cases to back your arguments (which I applaud btw the time you took to back up your beliefs). I have asked only to be shown what compelling interest it would be to the state to ban marriages between 1) close relatives (sis/bro, son/mom, daughter/father, cousin/cousin, etc.), 2) between more than two people.

The only reason you keep giving me is that the state would have a compelling reason because of some fear that children of these unions would be possibly looked at as future sexual partners. That is bull and we both know it. If that were so, then, as per my example, people could make a case for gays not to be able to adopt children of their own sex. Another example would be banning convicted killers from marrying because they may view their children as possible victims. (Ok, I know that is not a really good example, but it follows along your line of reasoning about incestual marriages)

Finally, I really am trying to have a reasonable conversation with you too, so please read what I write and do not begin hinting that I am homophobic for giving an example of where your line of reasoning would lead.

Oh, guess I should answer your last question. I will, but I can promise you that you won't like the answer. So please refrain from derogatory comments toward me and I will refrain from sending them back to you. Smile

It is not the state banning same sex marriages. It is the people of the state using their right to vote who have decided that same-sex marriage should not be legal. Some may have voted that way for religious reasons, some for reasons based on bigotry, some just because they did not know what they were voting on, lol, but they did. The historical definition of marriage in this and nearly all civilizations has been that of the union of a man and a woman. It is the gay community which seeks to change this definition to include them, so I believe the onus should be on them to convince society that they have a compelling reason to be allowed to marry. Again, that is my opinion and others are free to have differing ones. They are free to attempt to change laws just as I am free to fight for my beliefs.

Ok, now my fingers are getting tired so I will shut up. Take care.

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Coastal Rat
Coastal Rat:

Based on what you just posted, it is clear that you did not read my responses to your questions very close. If you're going to "paraphrase" my words, please do so accurately. Thanks.

Debra

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Re: If only you could read.

Debra_Law wrote:

Finn:

I didn't magically conjure up Fourteenth Amendment jurisprudence out of thin air. My analysis concerning the issue of state prohibitions of same-sex marriages is based upon an application of the law to the facts. I didn't make up either the law or the facts.

Who said you did?

On the other hand, you took one of my statements completely out of context, put your own spin on it, made it a "declaration" when it was not, and then conjured up opinions out of thin air and attributed those opinions to me.

Here's what you wrote about the Supreme Court:

"This is an issue that a cowardly United States Supreme Court would probably like to avoid. But, when the activists are making this a major issue throughout the country to the point where the people are amending their state constitutions to sanction discrimination against homosexuals, they are making it more and more difficult for the U.S. Supreme Court to look the other way."

I read this to mean that you believe the US Supreme Court is cowardly. Are you now saying you don't? You might be able to take refuge in your use of "a," as opposed to "the, " in the first sentence of your statement, and suggest that you were referring only to some hypothetical Court that might be cowardly, and not the current Court, however in the final sentence of your statement you clearly tie the charge of cowardice to the current Court by using the article "the, " and further suggesting the Court is trying to look the other way on this issue [in a cowardly fashion].

Here is what I wrote:

"I read her statement as it was presented and in conjunction with her declaration that the Supreme Court is cowardly. This strongly suggests to me that she is of the opinion that her opinion is dictum and that should the Supreme Court refuse to address it, it is born of cowardice and not jurisprudence."

I really fail to see how you can assert that you did not proclaim the Supreme Court to be cowardly, or that I am misrepresenting your words by stating that you did.

The second sentence of my statement is my interpretation of what you wrote, and I will argue that this interpretation is quite logical, and not at all pulled out of thin air. I suppose all interpretation can be described as "spin," but, clearly, you've chosen to use the word to dismiss mine, which is keeping with my suggestion that a pattern appears to be forming: Debra's interpretation is analysis, while that of those who disagree with her is spin.

I don't see how you can compare my analysis of the law to your complete misrepresentation of my statements.

And here we go again.

You know full well that virtually every legal issue brought before an appellate court involves opposing positions. While there are certainly times when a lawyer will go before the court with only the appearence, and not the conviction, that his or her position is correct, most often each side is convinced of their correctness. Obviously, though, both cannot be correct.

In the end, your much self-esteemed analysis is simply your interpretation of the law and the application of the facts to the law; not the rendering of a judicial decision on the subject.

Unless you have never lost a case, surely you appreciate that your legal opinion is not dictum. It should then follow that there is a alternative interpretation to the one you have laid out here: The majority of the Supreme Court actually knows that the legal argument you have advanced is spot on, and that any refusal they might have for hearing an appeal of this case is based on the (cowardly) desire not to either be forced to rule in the plaintiffs favor, or forced to knowingly issue a ruling contrary to the law.

The alternative for their refusing to hear the case may be any number of reasons other than cowardice, and that they would rule as you believe they must, is by no means certain.

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Finn:

I did not make a declaration as you claim. I pointed out that the advocates of the MO state constitutional amendment believe the amendment will protect their "wise policy" from judicial challenge, but the reverse is true. Instead of thwarting legal challenge in the courts, they are inviting it. The benefit they thought they were achieving may very well be a detriment.

You need to read people's posts within the context in which they are written.

Please do not take my statements out of the context in which they are made, and then make assumptions about my opinions. When you take a word or statement out of context, place your own spin on it and attribute your spin to me, then that is misrepresentation.

You wrote:

Quote:

This strongly suggests to me that she is of the opinion that her opinion is dictum. . . .

I have no idea what you are talking about. I am not writing a judicial opinion in case and stating a judicial opinion on issues that are completely irrelevant to the case. My statements or opinions in a discussion forum can never be "dictum."

See the following definition:

dictum ['dik-tem] pl: dicta [-te]: a view expressed by a judge in an [case] opinion on a point not necessarily arising from or involved in a case or necessary for determining the rights of the parties involved

(called also obiter dictum)

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Oh, Debra-Law, it's not fair to point out the inept amateurs posting on this forum. Your expertise in the field of law should be appreciated instead of vilified with lawyer jokes. In the end, if they don't realize you are giving a personal opinion based on your knowledge of the law, they're just playing the Devil's Advocate and very poorly.

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Debra_Law wrote:

Please do not take my statements out of the context in which they are made, and then make assumptions about my opinions. When you take a word or statement out of context, place your own spin on it and attribute your spin to me, then that is misrepresentation.

This is the heart of FdA's style, and the reason i will no longer engage in debate with him. It is the method which he hopes to employ to get an argument out of someone, controlled by the terms he sets. It is a petty method, and beneath contempt.

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Agreed.

Quote:

I don't think we should change the rules to fit someone's choice of a life style

Tough titty. America is supposed to be about equality for EVERYONE, not just everyone that you are not afraid of.

Cycloptichorn

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Cycloptichorn wrote:

Agreed.

Quote:
I don't think we should change the rules to fit someone's choice of a life style

Tough titty. America is supposed to be about equality for EVERYONE, not just everyone that you are not afraid of.

Cycloptichorn

Who says I
m afraid? It isn't my fault someone chooses a lifestyle and then whats society to change to fit them. Why should this be done, for the sake of equality? The basics of it isn't to fit society to someone but for people to fit society. It has always been this way and shouldn't be changed to fit some political agenda.

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I don't think the government should have its hands in marriage anyway. The reason the goernment regulates it is because of it's fear of poygamy, patient rights, and tax preferences.

The christian marriage should be allowed to remain a christian marriage - under the church.

The Government regulating marriage - a christian religious practice - is a strange violation of church and state and that makes it tricky as far as laws go

The Christians have every right to want to protect their values, but the government should not be allowed to discriminate.

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Faulty assumption

Portal Star wrote:

I don't think the government should have its hands in marriage anyway. The reason the goernment regulates it is because of it's fear of poygamy, patient rights, and tax preferences.

The christian marriage should be allowed to remain a christian marriage - under the church.

The Government regulating marriage - a christian religious practice - is a strange violation of church and state and that makes it tricky as far as laws go

The Christians have every right to want to protect their values, but the government should not be allowed to discriminate.

Portal Star:

You are basing your opinion on the faulty premise that marriage is a "Christian religious practice." Christians cannot claim "marriage" as something they own or control to the exclusion of all others. Marriage in the United States has always been a secular (non-religious) institution regulated by the government--and people of all religious persuasions and people of no particular religious persuasion enter marriages.

The government regulates marriages (and divorces) for reasons far more extensive than the three possible reasons that you listed.

As an example of how marriage is officially/legally viewed, the Massachusetts Supreme Judicial Court recently stated:

"We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. See Commonwealth v. Munson, 127 Mass. 459, 460-466 (1879) (noting that "n Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth," and surveying marriage statutes from 1639 through 1834). No religious ceremony has ever been required to validate a Massachusetts marriage. Id.

"In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31 (2002) ("Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise"); Smith v. Smith, 171 Mass. 404, 409 (1898) (on marriage, the parties "assume[ ] new relations to each other and to the State"). See also French v. McAnarney, 290 Mass. 544, 546 (1935). While only the parties can mutually assent to marriage, the terms of the marriage--who may marry and what obligations, benefits, and liabilities attach to civil marriage--are set by the Commonwealth. Conversely, while only the parties can agree to end the marriage (absent the death of one of them or a marriage void ab initio), the Commonwealth defines the exit terms."

Goodridge v. Department of Public Health

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actually, someone made remark that is pretty interesting - if gay marriages are allowed then why some other kinds of marriages wouldn't be? Like brother-sister.
Of course, Debra is right when saying that incest is very very often related with sexual abuse of children, but what in case of brother and sister that are both adults?

Just to add, I am not moralizing here, because I completely support homosexual marriages, and personally I also think that it would be weird to allow brother and sister to get married. But, from legal point of view, where's difference? Why adult brother and sister should not be allowed?

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Debra_Law wrote:

Finn:

I did not make a declaration as you claim. I pointed out that the advocates of the MO state constitutional amendment believe the amendment will protect their "wise policy" from judicial challenge, but the reverse is true. Instead of thwarting legal challenge in the courts, they are inviting it. The benefit they thought they were achieving may very well be a detriment.

You need to read people's posts within the context in which they are written.

Please do not take my statements out of the context in which they are made, and then make assumptions about my opinions. When you take a word or statement out of context, place your own spin on it and attribute your spin to me, then that is misrepresentation.

You wrote:

Quote:
This strongly suggests to me that she is of the opinion that her opinion is dictum. . . .

I have no idea what you are talking about. I am not writing a judicial opinion in case and stating a judicial opinion on issues that are completely irrelevant to the case. My statements or opinions in a discussion forum can never be "dictum."

See the following definition:

dictum ['dik-tem] pl: dicta [-te]: a view expressed by a judge in an [case] opinion on a point not necessarily arising from or involved in a case or necessary for determining the rights of the parties involved

(called also obiter dictum)

Debra

Yes, you did point out that which you state above, but you also made a claim that the US Supreme Court is cowardly, whether in the context of this limited issue or in general, and if you chose to continute to deny that statement depite clear evidence to the contrary than I suppose I can understand your insistence that I have misrepresented your words.

Clearly, your opinions expressed in this forum are not dictum, that is my very point.

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Huh?

Finn d'Abuzz wrote:

Debra_Law wrote:

dictum ['dik-tem] pl: dicta [-te]: a view expressed by a judge in an [case] opinion on a point not necessarily arising from or involved in a case or necessary for determining the rights of the parties involved

(called also obiter dictum)

Debra

Yes, you did point out that which you state above, but you also made a claim that the US Supreme Court is cowardly, whether in the context of this limited issue or in general, and if you chose to continute to deny that statement depite clear evidence to the contrary than I suppose I can understand your insistence that I have misrepresented your words.

Clearly, your opinions expressed in this forum are not dictum, that is my very point.

You still haven't made a good faith effort to read my entire post and understand my statements within the context. I'm not going to be victimized by your twisting of words and meanings. End of case.

Although I was not writing a judicial decision in a case, everything I wrote was relevant to the entire point of my post. Accordingly, your "very point" concerning "dictum" is completely incomprehensible. I do not understand how you could possibly believe that I was of the opinion that my opinion was "dictum" (an irrelevancy in a judicial decision). Your words are still incomprehensible to me and your alleged clarification makes no sense. Enough is enough.

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Missouri voters ban gay marriage

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