Ember

Lots of things would be nice, but that doesn't mean laws working against that end are unconstitutional. The Constitution does not prohibit legislatures from enacting stupid laws. That's great. Growing support for the cause means that we can soon revert things like prop8 through public acts. I hardly could agree more, but no one shoots at Santa Claus. Don't you think that's a flawed example? There's a difference between having a right to be educated and having a right to make other people fund your education. For legal purposes, marriage is defined by legislation.

How does allowing states to define marriage within their jurisdiction, instead of forcing them to go along with whatever another state has decided to accept as marriage, constitute not extending federal benefits to homosexual couples? With the federal definition of marriage in section 3 found unconstitutional, I expect that we would fall back on state laws to determine whether a couple is married. Which means that any explicit approval or denial of same-sex marriage is going to piss off about half the people in the country. That's not a small number. If money is an issue for unrecognized same-sex couples, why is it not a concern for opposite-sex couples? If there are more recognized couples and the same amount of cash in benefits to go around, somebody's losing out to make up.

Section 3 was found unconstitutional (although I'm not sure off hand on what grounds or if it would be a binding precedent), which leaves this as the meaningful/active portion of the text: In effect, couples states where same-sex marriage is not legally recognized cannot be compelled to recognize same-sex marriage from states which do recognize it. I don't see how this would change federal benefits eligibility or express a will of the legislature separate from that of the people.

I was under the impression that the federal government had remained pretty much silent on the issue, leaving it to the states and the people of the states. It's my understanding that California's prop8 and Michigan's 04-2, for example, were public acts initiated and approved by voters.

"Homosexual marriage" will never be equal to "Heterosexual marriage" because homosexuals cannot naturally reproduce within a marriage. If you want to discuss tax incentives, I'm all ears. What are your thoughts on marriage involving a person who is sterile, elderly, or otherwise unable to reproduce? Whether homosexual or heterosexual, there's no natural reproduction in such cases.

It seems like the argument being presented against prop8 can be essentialized as: Marriage is a fundamental human right Denying same-sex marriage denies the right to marriage to homosexuals Homosexuals are a suspect class Denying individual rights based on suspect classification is a violation of the 14th amendment's equal protection clause. One issue I see with this argument is that there's an assumption that the right to marriage includes the right to marry a person of the same gender. Homosexuals specifically aren't being denied the right to marry, they're just not allowed to marry members of the same sex; that is true of heterosexuals as well. If the right to free speech doesn't include all forms of speech, and the right to keep and bear arms doesn't include all forms of arms or extend to all people, I don't think it's necessarily unreasonable to arrive at the conclusion that the right to marriage might not include all forms of marriage.

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This is a separate thread for the continuation of the discussion started in the Today... thread. Audio of the oral arguments in Hollingsworth v. Perry: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-144

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