Author Topic: Same-Sex Marriage Legal Nationwide!  (Read 13534 times)

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Offline rookie

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #45 on: July 03, 2015, 12:22:51 am »
Would they have to recognize a marriage license from another state? I know not everyone can slip of to Vegas, but plane tickets aren't that expensive. Find family to stay with, you're not going to be there for more than a weekend anyways. Just cut the honeymoon short. Get the paper signed where you can and have your reception with friends and family when you get home. I know nobody should have to. But love will find a way.
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Offline Veras

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #46 on: July 03, 2015, 01:24:04 am »
I haven't finished reading all of the dissents yet, but I have read the ones from Roberts and Scalia, and I have already heard the highlights (lowlights?) of Thomas's.  And I have a question regarding the fact that Scalia kept going on and on about how the right to marriage and the right to dignity were not mentioned anywhere in the Constitution.  Has he never heard of the 9th Amendment?  It exists specifically to invalidate the argument that he used.  There are enumerated and unenumerated rights, and as an originalist, that shouldn't be a point of contention with him.  So the question then becomes whether or not marriage is a right, and as Kennedy points out in his opinion, precedent clearly establishes that it is.  So then the question becomes whether the states have a compelling reason for denying this right to same-sex couples.  I would say no, and I'm sure that Scalia would disagree.  Fine, whatever, I don't care.

So why isn't the 9th Amendment relevant here?  Because, as far as I remember (and I wasn't looking for it when I read Kennedy's opinion, because I hadn't yet seen what Scalia had to say), Kennedy never brought up the 9th Amendment either.  He had to have known that the issue was going to come up in the dissents, why wouldn't he just toss in a paragraph about the 9th?

Am I fundamentally misreading the 9th Amendment?  What am I missing here?
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Offline dpareja

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #47 on: July 04, 2015, 01:05:23 am »
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Offline The_Queen

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #48 on: July 04, 2015, 08:57:04 am »
I haven't finished reading all of the dissents yet, but I have read the ones from Roberts and Scalia, and I have already heard the highlights (lowlights?) of Thomas's.  And I have a question regarding the fact that Scalia kept going on and on about how the right to marriage and the right to dignity were not mentioned anywhere in the Constitution.  Has he never heard of the 9th Amendment?  It exists specifically to invalidate the argument that he used.  There are enumerated and unenumerated rights, and as an originalist, that shouldn't be a point of contention with him.  So the question then becomes whether or not marriage is a right, and as Kennedy points out in his opinion, precedent clearly establishes that it is.  So then the question becomes whether the states have a compelling reason for denying this right to same-sex couples.  I would say no, and I'm sure that Scalia would disagree.  Fine, whatever, I don't care.

So why isn't the 9th Amendment relevant here?  Because, as far as I remember (and I wasn't looking for it when I read Kennedy's opinion, because I hadn't yet seen what Scalia had to say), Kennedy never brought up the 9th Amendment either.  He had to have known that the issue was going to come up in the dissents, why wouldn't he just toss in a paragraph about the 9th?

Am I fundamentally misreading the 9th Amendment?  What am I missing here?

You're not missing anything. Kennedy's opinion focuses on the substantive due process clause of the 14th Amendment and the equal protection clause of the 14th Amendment (and Kennedy has a bad habit of blurring the two doctrines). Since Kennedy found the right to exist in the 14th Amendment, it made an analysis of finding the right in the 9th Amendment irrelevant. At best, he rights a paragraph, and it is not binding law, but dicta--legal reasoning which is neither binding nor necessary to the final conclusion.

A little known example of dicta is the Dred Scott case: once the Court found that Dred Scott did not have standing to bring a case in court, then it did not have a case or controversy before it that it could rule on, and the whole 5th Amendment deprivation of property analysis was unnecessary to the conclusion, and ergo unbinding dicta. Of course, the 15th Amendment made this whole point a non-issue.

Of course, Kennedy probably could find the right to marriage in the 9th Amendment as well, similar to Griswold v. Connecticut.
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Offline Veras

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #49 on: July 05, 2015, 01:21:56 am »
I haven't finished reading all of the dissents yet, but I have read the ones from Roberts and Scalia, and I have already heard the highlights (lowlights?) of Thomas's.  And I have a question regarding the fact that Scalia kept going on and on about how the right to marriage and the right to dignity were not mentioned anywhere in the Constitution.  Has he never heard of the 9th Amendment?  It exists specifically to invalidate the argument that he used.  There are enumerated and unenumerated rights, and as an originalist, that shouldn't be a point of contention with him.  So the question then becomes whether or not marriage is a right, and as Kennedy points out in his opinion, precedent clearly establishes that it is.  So then the question becomes whether the states have a compelling reason for denying this right to same-sex couples.  I would say no, and I'm sure that Scalia would disagree.  Fine, whatever, I don't care.

So why isn't the 9th Amendment relevant here?  Because, as far as I remember (and I wasn't looking for it when I read Kennedy's opinion, because I hadn't yet seen what Scalia had to say), Kennedy never brought up the 9th Amendment either.  He had to have known that the issue was going to come up in the dissents, why wouldn't he just toss in a paragraph about the 9th?

Am I fundamentally misreading the 9th Amendment?  What am I missing here?

You're not missing anything. Kennedy's opinion focuses on the substantive due process clause of the 14th Amendment and the equal protection clause of the 14th Amendment (and Kennedy has a bad habit of blurring the two doctrines). Since Kennedy found the right to exist in the 14th Amendment, it made an analysis of finding the right in the 9th Amendment irrelevant. At best, he rights a paragraph, and it is not binding law, but dicta--legal reasoning which is neither binding nor necessary to the final conclusion.

A little known example of dicta is the Dred Scott case: once the Court found that Dred Scott did not have standing to bring a case in court, then it did not have a case or controversy before it that it could rule on, and the whole 5th Amendment deprivation of property analysis was unnecessary to the conclusion, and ergo unbinding dicta. Of course, the 15th Amendment made this whole point a non-issue.

Of course, Kennedy probably could find the right to marriage in the 9th Amendment as well, similar to Griswold v. Connecticut.

Thank you!  That's been driving me crazy, and I had no interest in wading into it on facebook.  So, to be clear, Kennedy had no particular need to mention it, but from the perspective of constitutional law, Scalia's argument is total nonsense that would require the elimination of (at least) one amendment to be sound?
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Offline The_Queen

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #50 on: July 05, 2015, 09:06:27 am »
Constitutional law is my forte, but this is a good question. I think that there is a lot of overlap between what the 9th amendment protects and how the Court interprets substantive due process. In fact, I cannot recall which justice, but in Griswold, the Court agreed that married women have a right to contraception. But, the Court could not get a majority opinion on how it reached that conclusion, with the Justices debating whether the 9th Amendment or the Due Process clause of the 14th amendment supported the right to contraception.

And, for what it is worth, Kennedy is a Due Process guy. I cannot recall a decision in which he relied on the 9th Amendment, albeit that does not mean that one does not exist. Of course, for preferring to analyze the situation under Due Process, Kennedy has never done a good job of distinguishing Equal Protection from Due Process. But, that is another issue.

Finally, for what it is worth, Substantive Due Process refers to a doctrine in Constitutional law. The 14th Amendment states that people may not be deprived of liberty without Due Process. Starting in the early 1900's, the Court interpreted this to strike economic regulations, reasoning that people were being deprived of liberty without due process of law. In Carolene products, and the infamous footnote 4, the Court reversed ground and decided that it would use Due Process to protect distinct and insular minorities, giving rise to the Substantive Due Process Doctrine. In contrast, procedural due process refers the rules of the court. A person cannot be sent to jail with procedural safeguards: notice, a trial, the right to jury, appeal, and attorney, etc. Substantive Due Process refers to a set of rights so fundamental to our society and liberty that even with the proper safeguards, the government is not justified in depriving us those rights.
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Offline Lady Evil

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #51 on: July 07, 2015, 12:56:09 pm »
Would they have to recognize a marriage license from another state? I know not everyone can slip of to Vegas, but plane tickets aren't that expensive. Find family to stay with, you're not going to be there for more than a weekend anyways. Just cut the honeymoon short. Get the paper signed where you can and have your reception with friends and family when you get home. I know nobody should have to. But love will find a way.

Ironically enough, before the legislature was passed, Nevada was one of the states where same sex marriage was illegal. A man could marry some showgirl he just met, but not his boyfriend of 15 years.

Offline rookie

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #52 on: July 09, 2015, 11:34:43 am »
Yes, Lady Evil. That's true. I can go to Vegas and get roaring drunk. While rotating drunk I can meet, marry, and impregnate a show girl ask before the hangover sets in. However when I come back home to any of the other 49 states, my home state recognizes the marriage. I guess what I'm asking is do other states have to recognize a same sex marriage preformed in another state?  Not necessarily preform those marriages, but recognize the unions already sponsored.
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Offline Veras

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #53 on: July 09, 2015, 09:02:29 pm »
As a result of this ruling, they do have to recognize same-sex marriages performed in other states, just as they recognize opposite-sex marriages.  One of the cases before the court was from a couple from New York who moved to Tennessee.  If I recall correctly, Kennedy commented on how, if they drove across the country, the would be married and not married repeated as they crossed state lines.  But, in the end, it doesn't matter.  Since states cannot deny the right of same-sex couples to marry, the question of whether or not they have to recognize out of state same-sex marriages is irrelevant.  Legally, there is no distinction between same and opposite sex marriage.
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Offline Svata

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #54 on: July 16, 2015, 04:14:35 pm »
My roommate was bitching about this yesterday.  I asked how it affected him, and he said something about "Now guys can just go 'I don't want to go with girls, it's too hard, guess I'll just be gay'". I informed him that it doesn't work that way, and even if it did, that doesn't answer my question. The he claimed I must be gay to support it, which just made me leave the room. Because yeah, wanting equal rights totally means I have to be gay. Just like wanting equal rights for African Americans means I must be black.
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Offline Askold

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #55 on: July 17, 2015, 01:16:50 am »
My roommate was bitching about this yesterday.  I asked how it affected him, and he said something about "Now guys can just go 'I don't want to go with girls, it's too hard, guess I'll just be gay'". I informed him that it doesn't work that way, and even if it did, that doesn't answer my question. The he claimed I must be gay to support it, which just made me leave the room. Because yeah, wanting equal rights totally means I have to be gay. Just like wanting equal rights for African Americans means I must be black.

I have to say that his sentiment is certainly something that I have seen often in people who are homophobes but your comeback is awesome.
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Offline Barbarella

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Re: Same-Sex Marriage Legal Nationwide!
« Reply #56 on: July 17, 2015, 01:32:59 am »
My roommate was bitching about this yesterday.  I asked how it affected him, and he said something about "Now guys can just go 'I don't want to go with girls, it's too hard, guess I'll just be gay'". I informed him that it doesn't work that way, and even if it did, that doesn't answer my question. The he claimed I must be gay to support it, which just made me leave the room. Because yeah, wanting equal rights totally means I have to be gay. Just like wanting equal rights for African Americans means I must be black.

I have to say that his sentiment is certainly something that I have seen often in people who are homophobes but your comeback is awesome.

Same here! I concur! 8)