Big issues before the Supreme Court

The Supreme Court opens a new session today.  Lots of important cases are on the docket:

The first blockbuster case — a lawsuit challenging affirmative action in college admissions. The court will hear oral arguments in the case on Oct. 10, only the second week of the term. . . .

Another racially charged case could join the docket if justices take up a challenge to part of the Voting Rights Act. On the heels of an election with rampant charges of voter fraud and suppression, the court could weigh whether states with a history of discrimination should be required to get approval from Washington before changing their voting laws.

Walsh also said there’s a good chance the court will take up the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages. Two challenges to DOMA have been appealed to the high court, and a challenge to California’s Proposition 8 is also in the mix.

Legal experts say there’s no question the Supreme Court will rule on same-sex marriage in the near future; the only questions are which case or cases it will hear, and how quickly. . . .

Social issues aren’t the only big cases on the court’s horizon. The term will begin Monday with a closely watched case over whether U.S. judges can hear certain international cases.

The case was argued previously, but some justices seemed to want to rule on a broader question, so a re-hearing was scheduled. The last time that happened was the polarizing Citizens United case on campaign finance reform.

The justices will also consider police officers’ use of drug-sniffing dogs and possible invasions of privacy. A pair of cases set for argument in late October deal with canine units and the scope of the Constitution’s ban on illegal search and seizure.

via Controversial cases await justices – The Hill – covering Congress, Politics, Political Campaigns and Capitol Hill | TheHill.com.

This reminds us of another issue in the presidential race:  Who gets to appoint Supreme Court justices?  At least a couple are in their 80s, and those life terms can have a big impact.    Any predictions as to how any of these cases will be decided?  Can there be any doubt that the Supreme Court, despite or perhaps even because of its conservative bloc, will rule in favor of gay marriage?

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Rose

    Affirmative Action–Let’s hope it’s based on economic need if it’s upheld. What began as an exercise in expiation has become a competition for minority elites.

  • Rose

    Affirmative Action–Let’s hope it’s based on economic need if it’s upheld. What began as an exercise in expiation has become a competition for minority elites.

  • http://www.bikebubba.blogspot.com bike bubba

    I don’t know about the homosexual marriage angle. If we define the right to marry as a function of any relationship, then yes. But if we define family law historically–as a function of society’s need to protect its most vulnerable citizens–then the 14th does not mandate it at all.

    Interestingly, a link to affirmative action. If we are willing to define wives and children as more vulnerable in family law (I believe we should) to restrict the definitions of marriage, then affirmative action, which defines some minorities as more vulnerable, should stand. On the other hand, if we define marriage in terms of endorsing relationships and establishing benefits, affirmative action should fall.

    Something to hate in that for every political persuasion!

  • http://www.bikebubba.blogspot.com bike bubba

    I don’t know about the homosexual marriage angle. If we define the right to marry as a function of any relationship, then yes. But if we define family law historically–as a function of society’s need to protect its most vulnerable citizens–then the 14th does not mandate it at all.

    Interestingly, a link to affirmative action. If we are willing to define wives and children as more vulnerable in family law (I believe we should) to restrict the definitions of marriage, then affirmative action, which defines some minorities as more vulnerable, should stand. On the other hand, if we define marriage in terms of endorsing relationships and establishing benefits, affirmative action should fall.

    Something to hate in that for every political persuasion!

  • DonS

    There are three Supreme Court Justice appointments potentially at stake during the next four year cycle. After four years of Obama filling the federal courts with judges who think like him — that it’s fine to compel people who simply want to do business to act against their religious convictions, for example — voters should give careful consideration to whether they want him to have another four year term to appoint federal judges. His re-election will potentially move the Supreme Court sharply to the left, from a roughly balanced Court to one having perhaps a 6-3 or 7-2 liberal tilt. Such a development would close the door for generations to any hope of overturning or at least narrowing Roe v. Wade, and would also cement the move toward a concept of rights being guaranteed benefits due FROM government, rather than rights FROM our Creator as a protection against government intrusion.

    As for the issues in the post: The Court has recognized, to some extent, that affirmative action stigmatizes its beneficiaries and violates Equal Protection principles, but has so far been unwilling to eliminate it as being a divisive anachronism. The UT case, therefore, will probably be another narrow decision offering little guidance going forward, whichever side wins. I hope, on the other hand, for something more dramatic for the Voting Rights Act. It is past time for that discriminatory law to sunset and for all states and localities to be treated equally with respect to their voting and elections practices. Requiring that affected states and localities get pre-approval from Eric Holder’s Justice Department before making any elections law changes would be a further abuse of those states’ rights.

    The DOMA and Proposition 8 cases need to be taken, and I think they will be. The Court needs to address and resolve the issue of gay marriage now — the conflicting decisions are already in place, and lower courts have thumbed their noses at Supreme Court precedent that gay marriage is not a right of the people.

  • DonS

    There are three Supreme Court Justice appointments potentially at stake during the next four year cycle. After four years of Obama filling the federal courts with judges who think like him — that it’s fine to compel people who simply want to do business to act against their religious convictions, for example — voters should give careful consideration to whether they want him to have another four year term to appoint federal judges. His re-election will potentially move the Supreme Court sharply to the left, from a roughly balanced Court to one having perhaps a 6-3 or 7-2 liberal tilt. Such a development would close the door for generations to any hope of overturning or at least narrowing Roe v. Wade, and would also cement the move toward a concept of rights being guaranteed benefits due FROM government, rather than rights FROM our Creator as a protection against government intrusion.

    As for the issues in the post: The Court has recognized, to some extent, that affirmative action stigmatizes its beneficiaries and violates Equal Protection principles, but has so far been unwilling to eliminate it as being a divisive anachronism. The UT case, therefore, will probably be another narrow decision offering little guidance going forward, whichever side wins. I hope, on the other hand, for something more dramatic for the Voting Rights Act. It is past time for that discriminatory law to sunset and for all states and localities to be treated equally with respect to their voting and elections practices. Requiring that affected states and localities get pre-approval from Eric Holder’s Justice Department before making any elections law changes would be a further abuse of those states’ rights.

    The DOMA and Proposition 8 cases need to be taken, and I think they will be. The Court needs to address and resolve the issue of gay marriage now — the conflicting decisions are already in place, and lower courts have thumbed their noses at Supreme Court precedent that gay marriage is not a right of the people.

  • http://facebook.com/mesamike Mike Westfall

    “… a lawsuit challenging affirmative action in college admissions.”
    I thought that was dealt with way back in 1978 with Bakke?

  • http://facebook.com/mesamike Mike Westfall

    “… a lawsuit challenging affirmative action in college admissions.”
    I thought that was dealt with way back in 1978 with Bakke?

  • Med Student

    @4
    The Bakke case outlawed the use of outright racial quotas in admissions. I believe the current Fisher v. Texas case is challenging the use of race at all in admissions decisions, such as the process of assigning more admissions points to certain races than others.

  • Med Student

    @4
    The Bakke case outlawed the use of outright racial quotas in admissions. I believe the current Fisher v. Texas case is challenging the use of race at all in admissions decisions, such as the process of assigning more admissions points to certain races than others.

  • DonS

    Mike @ 4: The problem with current jurisprudence is that courts never want to make a bright line rule. They decide each case on its individual facts and circumstances. Which, of course, means that those who are intent on doing what they want to do can always find a way to alter their facts and circumstances from those in the decided cases and thereby “distinguish” themselves from that law.

    I believe Med Student @ 5 is correct. Somehow, assigning more admissions points to preferred races is not considered to be setting quotas. Because, though the schools are still discriminating, they are not setting, at least in written policy, a specific goal for demographic “diversity”.

  • DonS

    Mike @ 4: The problem with current jurisprudence is that courts never want to make a bright line rule. They decide each case on its individual facts and circumstances. Which, of course, means that those who are intent on doing what they want to do can always find a way to alter their facts and circumstances from those in the decided cases and thereby “distinguish” themselves from that law.

    I believe Med Student @ 5 is correct. Somehow, assigning more admissions points to preferred races is not considered to be setting quotas. Because, though the schools are still discriminating, they are not setting, at least in written policy, a specific goal for demographic “diversity”.

  • Cincinnatus

    Med Student and DonS:

    Pace Bakke and other rulings, I think you’ll agree that the Court’s position on affirmative action in school admissions is deeply confusing and well-nigh contradictory. Some clarification is certainly in order. In my perfect world, the Court would abolish affirmative action at all public institutions and conclude that private colleges can do whatever they want.

  • Cincinnatus

    Med Student and DonS:

    Pace Bakke and other rulings, I think you’ll agree that the Court’s position on affirmative action in school admissions is deeply confusing and well-nigh contradictory. Some clarification is certainly in order. In my perfect world, the Court would abolish affirmative action at all public institutions and conclude that private colleges can do whatever they want.

  • fws

    bike bubba @ 2

    That depends Bike.

    The American Constitution, unlike any other on earth, is to define and delimit the powers of government. It is not to enumerate the rights of the citizens.
    Your post would seem to reverse that function.

    The fact that people push for a constitutional amendment or state amendments restricting the issuance of a civil marriage license to gays does indeed imply that , without such an amendment, the right exists.

    Why?

    American constitutions are about limiting and restricting the power of government as much as is practically possible. To have the federal constitution restrictively govern the issuance of licenses where there is NO threat whatsoever to the institution of marriage and merely to maintain a preferred dictionary definition of a word is , in a word, extremely radical.

    NOM says that the recusal of issuance of marriage licenses to gays = saving marriage. Ridiculous.

    The real threat to marriage is no fault divorce. But the ones most involved in the movement to deny marriage to gays are the very ones with multiple divorces and a history of marital infidelity . Including lots and lots of churches I offer to suggest.

  • fws

    bike bubba @ 2

    That depends Bike.

    The American Constitution, unlike any other on earth, is to define and delimit the powers of government. It is not to enumerate the rights of the citizens.
    Your post would seem to reverse that function.

    The fact that people push for a constitutional amendment or state amendments restricting the issuance of a civil marriage license to gays does indeed imply that , without such an amendment, the right exists.

    Why?

    American constitutions are about limiting and restricting the power of government as much as is practically possible. To have the federal constitution restrictively govern the issuance of licenses where there is NO threat whatsoever to the institution of marriage and merely to maintain a preferred dictionary definition of a word is , in a word, extremely radical.

    NOM says that the recusal of issuance of marriage licenses to gays = saving marriage. Ridiculous.

    The real threat to marriage is no fault divorce. But the ones most involved in the movement to deny marriage to gays are the very ones with multiple divorces and a history of marital infidelity . Including lots and lots of churches I offer to suggest.

  • fws

    bike @ 2

    “If we define the right to marry as a function of any relationship, then yes. But if we define family law historically–as a function of society’s need to protect its most vulnerable citizens–then the 14th does not mandate it at all.”

    The ENTIRE purpose of american style constitutional law is to exactly limit (ie define) the powers of the state as much as possible.

    There is NO constitutional intent to enumerate or grant rights to anyone therefore. To read that into our constitutions is to miss the entire point and purpose of american style constitutions and assume the European 20th century constitutional and socialistic model.

  • fws

    bike @ 2

    “If we define the right to marry as a function of any relationship, then yes. But if we define family law historically–as a function of society’s need to protect its most vulnerable citizens–then the 14th does not mandate it at all.”

    The ENTIRE purpose of american style constitutional law is to exactly limit (ie define) the powers of the state as much as possible.

    There is NO constitutional intent to enumerate or grant rights to anyone therefore. To read that into our constitutions is to miss the entire point and purpose of american style constitutions and assume the European 20th century constitutional and socialistic model.

  • Cincinnatus

    I’m opposed to gay marriage, but it seems to me that a sensible Court ruling on the issue would be this: states are free to define marriage as they wish–i.e., they can refuse to issues licenses for gay marriages or they can refuse to license anything except gay marriages–but they cannot refuse to recognize any marriages certified in other states. I fear, however, that they’ll hand down a ruling more like Roe v. Wade in structure: no state may refuse to license gay marriages.

  • Cincinnatus

    I’m opposed to gay marriage, but it seems to me that a sensible Court ruling on the issue would be this: states are free to define marriage as they wish–i.e., they can refuse to issues licenses for gay marriages or they can refuse to license anything except gay marriages–but they cannot refuse to recognize any marriages certified in other states. I fear, however, that they’ll hand down a ruling more like Roe v. Wade in structure: no state may refuse to license gay marriages.

  • fws

    We already have a republican appointed majority on the supreme court. and is the reversal of roe v wade any closer? nope.

    conclusion?

    plus Bush II during his term focussed intensely on packing the lower federal courts with conservative leaning justices. So far the impact has been less than newsworthy. I consider that to be really good news.

    Do we really want to try to make social change happen by judicial fiat? Did it work for affirmative action and equality for blacks ? to what extent? To what extent were those movements of the Warren court a failure? From the posts here, it seems as if we are still picking up the pieces from all that judicial activism.

  • fws

    We already have a republican appointed majority on the supreme court. and is the reversal of roe v wade any closer? nope.

    conclusion?

    plus Bush II during his term focussed intensely on packing the lower federal courts with conservative leaning justices. So far the impact has been less than newsworthy. I consider that to be really good news.

    Do we really want to try to make social change happen by judicial fiat? Did it work for affirmative action and equality for blacks ? to what extent? To what extent were those movements of the Warren court a failure? From the posts here, it seems as if we are still picking up the pieces from all that judicial activism.

  • fws

    cinn @ 10

    I dont see how that fits in with 1) constitutional requirements of reciprocity and recognizing the lawful acts of one state by others. I think that is calle the full faith and credit clause? and 2) how it fits in with the idea that the constitution is about limiting the powers of government rather than about deciding what is or is not a “right” of the citizens.

    I have yet to hear someone tell me where there is any public harm at all in issuing marriage licenses to gays. One can easily identify a multitude of benefits to structured society. Arent laws supposed to be all about damage control?

  • fws

    cinn @ 10

    I dont see how that fits in with 1) constitutional requirements of reciprocity and recognizing the lawful acts of one state by others. I think that is calle the full faith and credit clause? and 2) how it fits in with the idea that the constitution is about limiting the powers of government rather than about deciding what is or is not a “right” of the citizens.

    I have yet to hear someone tell me where there is any public harm at all in issuing marriage licenses to gays. One can easily identify a multitude of benefits to structured society. Arent laws supposed to be all about damage control?

  • Cincinnatus

    fws@12:

    Where’s the reciprocity issue in my suggestion? If Wyoming wants to prohibit gay marriage and Idaho doesn’t, fine. But Wyoming (in my ruling) shouldn’t be allowed to refuse to recognize the marriage of a gay couple who were licensed in Idaho, get it? It’s a compromise: states can do what they want–keeping Mississippi’s conservatives happy and Vermont’s liberals pleased–without violating the “faith and credit” clause.

    Right?

  • Cincinnatus

    fws@12:

    Where’s the reciprocity issue in my suggestion? If Wyoming wants to prohibit gay marriage and Idaho doesn’t, fine. But Wyoming (in my ruling) shouldn’t be allowed to refuse to recognize the marriage of a gay couple who were licensed in Idaho, get it? It’s a compromise: states can do what they want–keeping Mississippi’s conservatives happy and Vermont’s liberals pleased–without violating the “faith and credit” clause.

    Right?

  • Cincinnatus

    Of course, my ideal solution would be to outlaw gay marriage altogether, but since some states have already legalized gay marriage, the cat is out of the bag. So I’ve proposed a compromise.

  • Cincinnatus

    Of course, my ideal solution would be to outlaw gay marriage altogether, but since some states have already legalized gay marriage, the cat is out of the bag. So I’ve proposed a compromise.

  • fws

    cinn

    i agree that would be a good solution. I am not sure it fits in with the idea that the constitution is about limiting government and not enumeration of rights. even state constitutions therefore.

    but I do favor your solution. states are good laboratories in that way. massachussets is serving as that now along with iowa and other states . and that seems to be working out pretty well so far.

  • fws

    cinn

    i agree that would be a good solution. I am not sure it fits in with the idea that the constitution is about limiting government and not enumeration of rights. even state constitutions therefore.

    but I do favor your solution. states are good laboratories in that way. massachussets is serving as that now along with iowa and other states . and that seems to be working out pretty well so far.

  • fws

    cinn
    that would also mean that for federal law, such as immigration law and tax law etc, marriages legal in a gay marriage state would be recognized for federal purposes.

  • fws

    cinn
    that would also mean that for federal law, such as immigration law and tax law etc, marriages legal in a gay marriage state would be recognized for federal purposes.

  • Cincinnatus

    fws@15:

    While I applaud the sentiment, I’m not sure it’s factually true that the Constitution isn’t about the enumeration of rights. Another cat left the bag when the Bill of Rights was proposed.

    Opponents of the bill of rights made an argument similar to yours, though: the Constitution shouldn’t explicitly enumerate rights because the government will take that as a license to restrict our rights only to those actually enumerated. But, the famous quote (which I can’t find) goes, I can name thousands of rights that I possess by birth: the right to wear a hat, for example, or to eat breakfast at noon.

  • Cincinnatus

    fws@15:

    While I applaud the sentiment, I’m not sure it’s factually true that the Constitution isn’t about the enumeration of rights. Another cat left the bag when the Bill of Rights was proposed.

    Opponents of the bill of rights made an argument similar to yours, though: the Constitution shouldn’t explicitly enumerate rights because the government will take that as a license to restrict our rights only to those actually enumerated. But, the famous quote (which I can’t find) goes, I can name thousands of rights that I possess by birth: the right to wear a hat, for example, or to eat breakfast at noon.

  • fws

    cinn

    i fail to see a constitutionally valid argument against gay marriage, or even no fault divorce for that matter or even polygamy. but each needs to be decided upon its own merits of course.

    and that… within the structure of american constitutional law, which, again is ALL about limiting power of the government definitionally in order to NOT be about enumerating or assigning rights to the populace.

  • fws

    cinn

    i fail to see a constitutionally valid argument against gay marriage, or even no fault divorce for that matter or even polygamy. but each needs to be decided upon its own merits of course.

    and that… within the structure of american constitutional law, which, again is ALL about limiting power of the government definitionally in order to NOT be about enumerating or assigning rights to the populace.

  • http://facebook.com/mesamike Mike Westfall

    If one state defines marriage as a man and woman, and another state defines marriage as any two random sentient beings, then you have two different things that are called by the same word.

    Other than by judicial chicanery, I don’t see how the “faith and credit” clause could be used to overcome the fact that these are two different things.

    If I call a tail a leg, then how many legs does a horse have?

  • http://facebook.com/mesamike Mike Westfall

    If one state defines marriage as a man and woman, and another state defines marriage as any two random sentient beings, then you have two different things that are called by the same word.

    Other than by judicial chicanery, I don’t see how the “faith and credit” clause could be used to overcome the fact that these are two different things.

    If I call a tail a leg, then how many legs does a horse have?

  • Cincinnatus

    Mike@19:

    That’s a fair point. Other potential compromises, then:

    The Court can dismiss the idea of “marriage” as a state institution altogether and argue that states are free to define domestic partnerships (what they’re called in Wisconsin) or civil unions however they wish, as long as they recognize DPs/CUs licensed in other states. Religious marriages, defined as only between man and woman, can be licensed as DPs/CUs, but need not be.

    As you can see, I’m a bit of a fatalist here. The writing’s on the wall: some kind of official recognition of homosexual relations is essentially inevitable at this period in our culture. The trick, in my opinion, is allow state governments–which are closer to the people and more malleable–to do what they want without committing the federal government to the so-called “homosexual agenda.”

  • Cincinnatus

    Mike@19:

    That’s a fair point. Other potential compromises, then:

    The Court can dismiss the idea of “marriage” as a state institution altogether and argue that states are free to define domestic partnerships (what they’re called in Wisconsin) or civil unions however they wish, as long as they recognize DPs/CUs licensed in other states. Religious marriages, defined as only between man and woman, can be licensed as DPs/CUs, but need not be.

    As you can see, I’m a bit of a fatalist here. The writing’s on the wall: some kind of official recognition of homosexual relations is essentially inevitable at this period in our culture. The trick, in my opinion, is allow state governments–which are closer to the people and more malleable–to do what they want without committing the federal government to the so-called “homosexual agenda.”

  • fws

    cinn

    probably the error there is the idea that the grand rubric is “rights”.
    “rights” is a rather artificial (and nebulous) construct.
    Ditto the idea “liberty”.

    Our country seemed to be founded around the idea of property rights. Originally only male real property owners had the voting franchise as you well know. Another idea of “rights” that simply assumes lots of stuff. And that idea is sort of breaking down under the weight of the reality of no longer being an agrarian society and with a bulging population. Example: air used to seems so unlimited that no “rights” needed to be assigned as to the use of it. Ditto water. ditto the idea of public wilderness up to the “need” or need to set aside national parkland.

    I suggest that if we make the larger rubric , once again, about limiting the power of the many to dictate to the few in the form of decree/rule of men (read popular referendums) versus… the Rule of Law that is aimed, specifically at frustrating the rule of the majority over the rest.

    The reason that Mass. has gay marriage is that their constitution is better (more speed bumps) than the federal one. How? It required a vote by the legislature, followed by a second vote 3 years later, to allow a referendum requiring a plurality of voters, to overrule the constitutional court. Conservative is the name for that. It was impossible therefore, to use the issue as a way to solicit campaign donations etc and make change by swaying the public emotions of the moment.

    That metanarrative shift, from rule of Law vs rule by decree to framing the issue around “rights” , I suggest, is precisely where the national conversation has gone off the rails.

    Conservatives who oppose gay marriage would do well to consider the methods they favor in anticipation of the day when christianity will be a group just as hated and opposed as are homosexuals and other such groups. What protects them against the will of the many will also protect us. As long as we favor such safeguards and value them and leave them in place.

  • fws

    cinn

    probably the error there is the idea that the grand rubric is “rights”.
    “rights” is a rather artificial (and nebulous) construct.
    Ditto the idea “liberty”.

    Our country seemed to be founded around the idea of property rights. Originally only male real property owners had the voting franchise as you well know. Another idea of “rights” that simply assumes lots of stuff. And that idea is sort of breaking down under the weight of the reality of no longer being an agrarian society and with a bulging population. Example: air used to seems so unlimited that no “rights” needed to be assigned as to the use of it. Ditto water. ditto the idea of public wilderness up to the “need” or need to set aside national parkland.

    I suggest that if we make the larger rubric , once again, about limiting the power of the many to dictate to the few in the form of decree/rule of men (read popular referendums) versus… the Rule of Law that is aimed, specifically at frustrating the rule of the majority over the rest.

    The reason that Mass. has gay marriage is that their constitution is better (more speed bumps) than the federal one. How? It required a vote by the legislature, followed by a second vote 3 years later, to allow a referendum requiring a plurality of voters, to overrule the constitutional court. Conservative is the name for that. It was impossible therefore, to use the issue as a way to solicit campaign donations etc and make change by swaying the public emotions of the moment.

    That metanarrative shift, from rule of Law vs rule by decree to framing the issue around “rights” , I suggest, is precisely where the national conversation has gone off the rails.

    Conservatives who oppose gay marriage would do well to consider the methods they favor in anticipation of the day when christianity will be a group just as hated and opposed as are homosexuals and other such groups. What protects them against the will of the many will also protect us. As long as we favor such safeguards and value them and leave them in place.

  • http://facebook.com/mesamike Mike Westfall

    I think the hand is writing on the wall as far as the federal government is concerned too, given that the federal government recognizes marriages for certain purposes.

  • http://facebook.com/mesamike Mike Westfall

    I think the hand is writing on the wall as far as the federal government is concerned too, given that the federal government recognizes marriages for certain purposes.

  • Joe

    Cinn — what you are proposing (reciprocity) would actually be a pretty dramatic change in the full faith and credit jurisprudence in the area of marriage. The law as it stands now is that a state must recognize a marriage preformed in another state with 2 exceptions:

    1. the couple traveled from their home state to the other state for the express purpose of getting married under circumstances not available in their home state (think minimum marriage age laws). The home state would not have to recognize the marriage.

    2. the marriage preformed in State A does not have to be recognized by State B if it is contrary to an express public policy of State B. Thus, a gay marriage preformed elsewhere would not have to be given full faith in credit in a state that has adopted a marriage amendment or otherwise expressly stated its public policy.

    So the only why for your compromise to work would be if the S. Ct. first declare all gay marriage bans unconstitutional thereby removing the exceptions from the equation.

  • Joe

    Cinn — what you are proposing (reciprocity) would actually be a pretty dramatic change in the full faith and credit jurisprudence in the area of marriage. The law as it stands now is that a state must recognize a marriage preformed in another state with 2 exceptions:

    1. the couple traveled from their home state to the other state for the express purpose of getting married under circumstances not available in their home state (think minimum marriage age laws). The home state would not have to recognize the marriage.

    2. the marriage preformed in State A does not have to be recognized by State B if it is contrary to an express public policy of State B. Thus, a gay marriage preformed elsewhere would not have to be given full faith in credit in a state that has adopted a marriage amendment or otherwise expressly stated its public policy.

    So the only why for your compromise to work would be if the S. Ct. first declare all gay marriage bans unconstitutional thereby removing the exceptions from the equation.

  • fws

    mike @ 19

    The government legally defines the very essence of “marriage” as the possession of a marriage license. if you have one you are married. If not, then not.

    That is not the biblical definition of “marriage” by any stretch is it now Mike?

    Marriage further is defined by the government as a contract. We are talking about who is eligible to enter into a contract. the classic requirements are 1) offer 2) acceptance 3) contractual capacity. It is number 3 that is at question.

    You argue in abstract. “sentient beings”. You wont find that in law books. You will find my 3 points. Contractual capacity to marriage before around 1860 was, with parental consent age 13 for a girl in most states. As a fact taken for granted then. Today the assertion of that definition of “contractual capacity” would result in being called a “registered sex offender”. Definitions change as radically as that Mike.

    Lutheranism also defines marriage as a contract (cf LC 4th and 6th commandments) ie, as the God sanctioned governing of a man and woman over the entire affairs of a household. We say there are 3 governments in the world sanctioned by God. Church, society, and the household (matrimony). Lutherans say that the ENTIRE purpose of marriage is to kill Old Adam. Period.
    marriage =death.
    Marriage = romans 8 flesh/body categorically.

    Rome has an entirely different definition of marriage based upon Thomist Natural Law theories and centered upon an imagined mystical sacramental grace-conferring one flesh union of man and woman. It is about an infusion of Divine Life as a returning and conformity to God´s Divine Design. It is about a false distinction made between sacred and profane as being virtue vs vice. Lutherans entirely (!) reject such notions.

    If Marriage is , indeed, ALL and ONLY about death and reining in Old Adam, then it is clear that homosexuals need this curb to promiscuity and lsexual lawlessness just as urgently as any other sector of the population.

    We should want them to be so regulated. This protects the marriages of others in fact. Protecting the marriage of others is the purpose of your own marriage in fact (cf Large Catechism 6th commandment).

    In short, your arguement about definitional marriage just doesnt stand up to even the lightest scrutiny either religiously or governmentally.

  • fws

    mike @ 19

    The government legally defines the very essence of “marriage” as the possession of a marriage license. if you have one you are married. If not, then not.

    That is not the biblical definition of “marriage” by any stretch is it now Mike?

    Marriage further is defined by the government as a contract. We are talking about who is eligible to enter into a contract. the classic requirements are 1) offer 2) acceptance 3) contractual capacity. It is number 3 that is at question.

    You argue in abstract. “sentient beings”. You wont find that in law books. You will find my 3 points. Contractual capacity to marriage before around 1860 was, with parental consent age 13 for a girl in most states. As a fact taken for granted then. Today the assertion of that definition of “contractual capacity” would result in being called a “registered sex offender”. Definitions change as radically as that Mike.

    Lutheranism also defines marriage as a contract (cf LC 4th and 6th commandments) ie, as the God sanctioned governing of a man and woman over the entire affairs of a household. We say there are 3 governments in the world sanctioned by God. Church, society, and the household (matrimony). Lutherans say that the ENTIRE purpose of marriage is to kill Old Adam. Period.
    marriage =death.
    Marriage = romans 8 flesh/body categorically.

    Rome has an entirely different definition of marriage based upon Thomist Natural Law theories and centered upon an imagined mystical sacramental grace-conferring one flesh union of man and woman. It is about an infusion of Divine Life as a returning and conformity to God´s Divine Design. It is about a false distinction made between sacred and profane as being virtue vs vice. Lutherans entirely (!) reject such notions.

    If Marriage is , indeed, ALL and ONLY about death and reining in Old Adam, then it is clear that homosexuals need this curb to promiscuity and lsexual lawlessness just as urgently as any other sector of the population.

    We should want them to be so regulated. This protects the marriages of others in fact. Protecting the marriage of others is the purpose of your own marriage in fact (cf Large Catechism 6th commandment).

    In short, your arguement about definitional marriage just doesnt stand up to even the lightest scrutiny either religiously or governmentally.

  • fws

    joe @ 23

    Yea that sounds about right.
    The best conceptual frame for this is, I suggest Joe, “Loving vs state of virginia 1970″. It was illegal for a black to marry a white in virginia until this case came before the supreme court.

    Why is this a good conceptual frame? It shows what Cinns suggestion would actually need to look like in practice before laws overturning anti micogeny laws were declared federally unconstitutional.

    By the way, exactly the same arguments used against gay marriage , including slippery slope, beastiality, etc were argued by those in favor of such laws, in this and similar cases. Google it. Interesting stuff.

    Has the sky fallen in in states where gay marriage has been made legal? has heterosexual marriage been destroyed as NOM is predicting? stay tuned!

  • fws

    joe @ 23

    Yea that sounds about right.
    The best conceptual frame for this is, I suggest Joe, “Loving vs state of virginia 1970″. It was illegal for a black to marry a white in virginia until this case came before the supreme court.

    Why is this a good conceptual frame? It shows what Cinns suggestion would actually need to look like in practice before laws overturning anti micogeny laws were declared federally unconstitutional.

    By the way, exactly the same arguments used against gay marriage , including slippery slope, beastiality, etc were argued by those in favor of such laws, in this and similar cases. Google it. Interesting stuff.

    Has the sky fallen in in states where gay marriage has been made legal? has heterosexual marriage been destroyed as NOM is predicting? stay tuned!

  • fws

    mike westfall

    I am still waiting for one argument of what harm giving gays marriage licenses is going to cause. Just one.

    “better for children to be raised by two birth parents?” red herring. gays can already adopt and have foster kids. marriage wont change that.

    what WOULD change that would be to require heterosexual divorcees and serial polygamists (those who remarry) to continue to live under the same roof! Now that idea WOULD ensure children being kept with both birth parents wouldnt it? Picture government mandated communes for such demographic groups. … it would be interesting eh?

  • fws

    mike westfall

    I am still waiting for one argument of what harm giving gays marriage licenses is going to cause. Just one.

    “better for children to be raised by two birth parents?” red herring. gays can already adopt and have foster kids. marriage wont change that.

    what WOULD change that would be to require heterosexual divorcees and serial polygamists (those who remarry) to continue to live under the same roof! Now that idea WOULD ensure children being kept with both birth parents wouldnt it? Picture government mandated communes for such demographic groups. … it would be interesting eh?

  • http://www.bikebubba.blogspot.com bike bubba

    Frank, you’re correct that the central purpose of Constitutional law is to limit the powers of government, but you’re incorrect in suggesting that limiting marriage to those who can Biblically marry is a violation of that. If it were, then the Founders would have had a radically different version of family law than that which they themselves enacted into law and enforced in the courts.

    Family law, as opposed to Constitutional law, is designed not to enshrine certain privileges to families, or to limit the government. Rather, it exists because the state recognizes the need to protect the next generation of citizens, and to do so, there are certain protections that are enacted especially for women (mothers) and their children. These protections are best enumerated in the best way of raising the next generation, the heterosexual couple married to one another. (see Regnerus et al for details)

    Since homosexual relationships are inherently sterile, and they can only “procreate” using extraordinary means, family law applies to them in the “extraordinary” categories of adoption and single parenting, and there is no need to re-define “marriage” to admit homosexual relationships.

    Now if we do this anyways, what we have done is to define the government interest in marriage not in terms of the next generation (under which polygamy, incestuous, and homosexual relationships are excluded), but rather in terms of government giving its blessing on relationships in the same way President Obama gave his blessing to Solyndra. (great blessing, that)

    The result we should expect is that we will tend to forget what marriage and family law is all about, and we will see judges allowing threesomes to marry (as has happened in Brazil already) and whole nations will fail to differentiate between mothers and fathers (which is most likely going to happen in France).

    The harm here is that Brazil and France have both defined family law to ignore the needs of the weakest vessels, and thus the interests of the weakest vessels–centering on the need for a mother and father, and not too many mothers or fathers–are being ignored. Yes, this is a real harm, and it’s happening already.

  • http://www.bikebubba.blogspot.com bike bubba

    Frank, you’re correct that the central purpose of Constitutional law is to limit the powers of government, but you’re incorrect in suggesting that limiting marriage to those who can Biblically marry is a violation of that. If it were, then the Founders would have had a radically different version of family law than that which they themselves enacted into law and enforced in the courts.

    Family law, as opposed to Constitutional law, is designed not to enshrine certain privileges to families, or to limit the government. Rather, it exists because the state recognizes the need to protect the next generation of citizens, and to do so, there are certain protections that are enacted especially for women (mothers) and their children. These protections are best enumerated in the best way of raising the next generation, the heterosexual couple married to one another. (see Regnerus et al for details)

    Since homosexual relationships are inherently sterile, and they can only “procreate” using extraordinary means, family law applies to them in the “extraordinary” categories of adoption and single parenting, and there is no need to re-define “marriage” to admit homosexual relationships.

    Now if we do this anyways, what we have done is to define the government interest in marriage not in terms of the next generation (under which polygamy, incestuous, and homosexual relationships are excluded), but rather in terms of government giving its blessing on relationships in the same way President Obama gave his blessing to Solyndra. (great blessing, that)

    The result we should expect is that we will tend to forget what marriage and family law is all about, and we will see judges allowing threesomes to marry (as has happened in Brazil already) and whole nations will fail to differentiate between mothers and fathers (which is most likely going to happen in France).

    The harm here is that Brazil and France have both defined family law to ignore the needs of the weakest vessels, and thus the interests of the weakest vessels–centering on the need for a mother and father, and not too many mothers or fathers–are being ignored. Yes, this is a real harm, and it’s happening already.

  • http://facebook.com/mesamike Mike Westfall

    OK Frank, let’s go with the definition of marriage as “in possession of a marriage license.”

    So what? Now what we have are two different things that are both called a “marriage license.”

    They’re still not the same thing.

    If one state issues a “Pilot’s License” for people to pilot airplanes, and another state issues a “Pilot’s License” for people to pilot boats, the two licenses are not equivalent, just because they are both called pilot’s licenses, even if the government legally defines the very essence of a “pilot” is “in possession of a pilot’s license.”

  • http://facebook.com/mesamike Mike Westfall

    OK Frank, let’s go with the definition of marriage as “in possession of a marriage license.”

    So what? Now what we have are two different things that are both called a “marriage license.”

    They’re still not the same thing.

    If one state issues a “Pilot’s License” for people to pilot airplanes, and another state issues a “Pilot’s License” for people to pilot boats, the two licenses are not equivalent, just because they are both called pilot’s licenses, even if the government legally defines the very essence of a “pilot” is “in possession of a pilot’s license.”

  • fws

    mike @ 28

    This seems like we are changing the subject mike.
    A marriage license grants the legal permission to do what?
    It grants the legal right to enter into a legal contract with another someone who both possess contractual capacity.

    Why the need for a marriage license? Public health reasons. Inbreeding is proven to create certain hereditary deseases. It is NOT immoral for someone to marry a sibling or cousin or even for a parent to marry a child even though it jars our current social sensibilities . Secondly, to ensure parental consent in the case of a someone who lacks contractual capacity in the form being unemancipated in terms of age. There are some easily identifiable public harms to be avoided here as well. Maybe here is where you would want to codify the additional requirement that the parties be of opposite genders. But what would be the compelling and identifiable governmental necessity here?

    You talk about 3 way marriages/polygamy being legalized. Society survived such arrangements for thousands of years up till relatively recently.

    Besides:
    That is to change the subject.

    Gay marriage is to be judged upon its own merits. Polygamy is another topic to be judge upon its own merits.

    Moving beyond the licensing aspect now:

    I suggest your argument, in this legal context is framed by the question of what “contractual capacity” must be defined as. You suggest that in this particular contract, a definition of contractual capacity must exist that is different from any other form of contract. This is pretty definitive Mike. We arent talking two sentient beings. a dog and his best friend or… whatever. we are talking about two (or more ) individuals who possess contractual capacity entering into a legally binding contract, recognized by the state that is enforcable by either party according to the terms and definition of that contract.

    So I am not sure where to place what you are saying in all of this Mike and why the government has a compelling and pressing necessity to restrict either the licensing or contractual capacity to two (or more) persons who are the opposite gender. Help me out here.

    While you are at it, could you explain to me why the urgency of imposing this restriction is manifestly more urgent that disallowing no fault divorce? Why would it be wrong to assume that the reasons for this discrepancy is pure hípocracy and perhaps bigotry?

  • fws

    mike @ 28

    This seems like we are changing the subject mike.
    A marriage license grants the legal permission to do what?
    It grants the legal right to enter into a legal contract with another someone who both possess contractual capacity.

    Why the need for a marriage license? Public health reasons. Inbreeding is proven to create certain hereditary deseases. It is NOT immoral for someone to marry a sibling or cousin or even for a parent to marry a child even though it jars our current social sensibilities . Secondly, to ensure parental consent in the case of a someone who lacks contractual capacity in the form being unemancipated in terms of age. There are some easily identifiable public harms to be avoided here as well. Maybe here is where you would want to codify the additional requirement that the parties be of opposite genders. But what would be the compelling and identifiable governmental necessity here?

    You talk about 3 way marriages/polygamy being legalized. Society survived such arrangements for thousands of years up till relatively recently.

    Besides:
    That is to change the subject.

    Gay marriage is to be judged upon its own merits. Polygamy is another topic to be judge upon its own merits.

    Moving beyond the licensing aspect now:

    I suggest your argument, in this legal context is framed by the question of what “contractual capacity” must be defined as. You suggest that in this particular contract, a definition of contractual capacity must exist that is different from any other form of contract. This is pretty definitive Mike. We arent talking two sentient beings. a dog and his best friend or… whatever. we are talking about two (or more ) individuals who possess contractual capacity entering into a legally binding contract, recognized by the state that is enforcable by either party according to the terms and definition of that contract.

    So I am not sure where to place what you are saying in all of this Mike and why the government has a compelling and pressing necessity to restrict either the licensing or contractual capacity to two (or more) persons who are the opposite gender. Help me out here.

    While you are at it, could you explain to me why the urgency of imposing this restriction is manifestly more urgent that disallowing no fault divorce? Why would it be wrong to assume that the reasons for this discrepancy is pure hípocracy and perhaps bigotry?

  • Trey

    Frank, Why hijack the post? You can regurgitate that same-sex marriage does not demean natural marriage, but what is your evidence. There is a large body of evidence that shows it does. For example, if marriage becomes defined by a function and not our unique characteristics where do we draw the line. Scientific studies do not support your assertion that it has no affect on natural marriage as if we all live on an island. How do you reconcile your belief in Christ, yet affirm a behavior that God clearly condemns as sinful being divorced from His design for humanity?

  • Trey

    Frank, Why hijack the post? You can regurgitate that same-sex marriage does not demean natural marriage, but what is your evidence. There is a large body of evidence that shows it does. For example, if marriage becomes defined by a function and not our unique characteristics where do we draw the line. Scientific studies do not support your assertion that it has no affect on natural marriage as if we all live on an island. How do you reconcile your belief in Christ, yet affirm a behavior that God clearly condemns as sinful being divorced from His design for humanity?

  • fws

    trey @ 30

    1) I am not roman catholic. Thomist roman catholic arguments based upon divine design equaling moral law especially regarding marriage denies that the Image of God was completely lost, which is to deny Original Sin. Next.

    2) There are NO scientific studies that show that granting marriage licenses to two homos is detrimental to your own personal heterosexual marriage or the heterosexual marriage of anyone else. The assertion is absurd on its face. Next.

    3) God condemns divorce. It is unnatural. Unnatural defined as contrary to God´s original plan. It is permitted. It was permitted by God himself. If you think this is legalistically inconsistent, take it up with the God who desires mercy rather than sacrifice.

    4) Reconcile gay marriage, divorce, drug laws, prostitution laws with my belief in Christ? Simple. “Regarding morality, nothing can be demanded beyond Aristotles Ethics”. (apology to the Augustana art III) , and “This dstinction is useful to know where the Holy Spirit is necessary ” (apology art 18 on free will).

    Translation: The ONLY thing that requires Christ and the Holy Spirit is the heart-knowing and personal application of Two Words “given and shed, FOR YOU, for the forgiveness of sins. Troy, what we are discussing require NO Holy Spirit or Christ or even a Bible to know and do. Free will, reason and Aristotle are completely sufficient. Marriage is ALL about death Troy. It is romans 8 carnal fleshly righeousness that will perish with the earth. It is nothing more . Nothing at all.

  • fws

    trey @ 30

    1) I am not roman catholic. Thomist roman catholic arguments based upon divine design equaling moral law especially regarding marriage denies that the Image of God was completely lost, which is to deny Original Sin. Next.

    2) There are NO scientific studies that show that granting marriage licenses to two homos is detrimental to your own personal heterosexual marriage or the heterosexual marriage of anyone else. The assertion is absurd on its face. Next.

    3) God condemns divorce. It is unnatural. Unnatural defined as contrary to God´s original plan. It is permitted. It was permitted by God himself. If you think this is legalistically inconsistent, take it up with the God who desires mercy rather than sacrifice.

    4) Reconcile gay marriage, divorce, drug laws, prostitution laws with my belief in Christ? Simple. “Regarding morality, nothing can be demanded beyond Aristotles Ethics”. (apology to the Augustana art III) , and “This dstinction is useful to know where the Holy Spirit is necessary ” (apology art 18 on free will).

    Translation: The ONLY thing that requires Christ and the Holy Spirit is the heart-knowing and personal application of Two Words “given and shed, FOR YOU, for the forgiveness of sins. Troy, what we are discussing require NO Holy Spirit or Christ or even a Bible to know and do. Free will, reason and Aristotle are completely sufficient. Marriage is ALL about death Troy. It is romans 8 carnal fleshly righeousness that will perish with the earth. It is nothing more . Nothing at all.

  • fws

    trey @30

    stop making this into something that is about christianity.
    No Christ or Holy Spirit are needed to know the Law.
    sure the Gospel is used to illustrate our failure to do the Law. Still Law. The Law always and only accuses and kills.

    Marriage, as being , in essence, definitionally, a form of government is pure law that kills and accuses.

    Romans 2:15 says that the Divine Law is fully written in the reason of all men.

    No Bible is needed except to remove the veil of Moses from that Law.

    Gays, as sinful humans can benefit from the killing and accusing effects of Marriage extorting mercy out of them as well as any other humans on the planet. The Law is an equal opportunity accuser and old adam killer after all. Nice to think Gays dont need that Law. But it aint so.

  • fws

    trey @30

    stop making this into something that is about christianity.
    No Christ or Holy Spirit are needed to know the Law.
    sure the Gospel is used to illustrate our failure to do the Law. Still Law. The Law always and only accuses and kills.

    Marriage, as being , in essence, definitionally, a form of government is pure law that kills and accuses.

    Romans 2:15 says that the Divine Law is fully written in the reason of all men.

    No Bible is needed except to remove the veil of Moses from that Law.

    Gays, as sinful humans can benefit from the killing and accusing effects of Marriage extorting mercy out of them as well as any other humans on the planet. The Law is an equal opportunity accuser and old adam killer after all. Nice to think Gays dont need that Law. But it aint so.

  • fws

    trey @ 30

    Last time checked, I am the only gay guy on here. so we can have an echo box here congratulating each other on what we already “know” to be facts. or…

    you can argue for your ideas and argument on anything gay and test the strength of them both biblically and logically with whom on here besides me?

  • fws

    trey @ 30

    Last time checked, I am the only gay guy on here. so we can have an echo box here congratulating each other on what we already “know” to be facts. or…

    you can argue for your ideas and argument on anything gay and test the strength of them both biblically and logically with whom on here besides me?

  • fws

    trey @ 30

    “For example, if marriage becomes defined by a function and not our unique characteristics where do we draw the line”.

    Lutherans do indeed define the very essense of marriage as being a) a God sanctioned form of government of the household (4th commandment LC) and b) your marriage functioning, precisely so, as a protection of the marriage of other. How? By providing a legal sexual outlet. (6th commandment LC)

    I would hasten to emphase that the context is clearly and ONLY male female marriage in the Large Catechism 4th and 6th commandment and Augustana/apology XXIII. I am suggesting that thathat however would not argue against those twin definitionally functional aspects serving society in the case of gay relationships as well. I think reason can point us there. All humans can benefit by the curbing effect of the Law. Including homos.

  • fws

    trey @ 30

    “For example, if marriage becomes defined by a function and not our unique characteristics where do we draw the line”.

    Lutherans do indeed define the very essense of marriage as being a) a God sanctioned form of government of the household (4th commandment LC) and b) your marriage functioning, precisely so, as a protection of the marriage of other. How? By providing a legal sexual outlet. (6th commandment LC)

    I would hasten to emphase that the context is clearly and ONLY male female marriage in the Large Catechism 4th and 6th commandment and Augustana/apology XXIII. I am suggesting that thathat however would not argue against those twin definitionally functional aspects serving society in the case of gay relationships as well. I think reason can point us there. All humans can benefit by the curbing effect of the Law. Including homos.

  • Grace

    fws @12 “I have yet to hear someone tell me where there is any public harm at all in issuing marriage licenses to gays.”

    IF homosexual marriages were made legal, it would allow those who are teachers, or anyone else to instruct children about homosexuality, gender identification, etc. It’s already been done, much to a great deal of opposition from parents, with and without their consent. That’s enough “public harm” -

    The piece below also includes a ⚫ VIDEO that should not be missed.

    PHOTONETDAILYWorldNetDaily Exclusive
    Kids attend prom from ‘sexual hell’
    by Chelsea SchillingEmail
    You won’t believe how children as young as 12 years old partied
    Note: This story contains material that readers might consider graphic and offensive.

    Family advocates are outraged by a prom held at Boston City Hall that was open to children apparently as young as 12 featuring crossdressers, homosexual heavy petting, suspected drug use and a leather-clad doorman who teaches sexual bondage classes.

    Children from middle schools and high schools across Massachusetts on May 9 attended a Youth Pride Day event ending with a prom inside of Boston City Hall sponsored by the Boston Alliance of Gay, Lesbian, Bisexual, Transgender Youth, or BAGLY, a group seated on the Massachusetts Commission for GLBT Youth.”

    http://www.wnd.com/2009/06/100806/

  • Grace

    fws @12 “I have yet to hear someone tell me where there is any public harm at all in issuing marriage licenses to gays.”

    IF homosexual marriages were made legal, it would allow those who are teachers, or anyone else to instruct children about homosexuality, gender identification, etc. It’s already been done, much to a great deal of opposition from parents, with and without their consent. That’s enough “public harm” -

    The piece below also includes a ⚫ VIDEO that should not be missed.

    PHOTONETDAILYWorldNetDaily Exclusive
    Kids attend prom from ‘sexual hell’
    by Chelsea SchillingEmail
    You won’t believe how children as young as 12 years old partied
    Note: This story contains material that readers might consider graphic and offensive.

    Family advocates are outraged by a prom held at Boston City Hall that was open to children apparently as young as 12 featuring crossdressers, homosexual heavy petting, suspected drug use and a leather-clad doorman who teaches sexual bondage classes.

    Children from middle schools and high schools across Massachusetts on May 9 attended a Youth Pride Day event ending with a prom inside of Boston City Hall sponsored by the Boston Alliance of Gay, Lesbian, Bisexual, Transgender Youth, or BAGLY, a group seated on the Massachusetts Commission for GLBT Youth.”

    http://www.wnd.com/2009/06/100806/

  • Sarah Fowler

    Justice Ginsburg, who turned 79 this year, is the oldest current member of the Supreme Court. (Justices Kennedy and Scalia are 76 and Justice Breyer is 74.) Doesn’t take away from your point, but there aren’t quite “at least a couple in their 80s”.

  • Sarah Fowler

    Justice Ginsburg, who turned 79 this year, is the oldest current member of the Supreme Court. (Justices Kennedy and Scalia are 76 and Justice Breyer is 74.) Doesn’t take away from your point, but there aren’t quite “at least a couple in their 80s”.


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