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A "Kagan Doctrine" On Gay Marriage

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posted on Jul, 7 2010 @ 01:18 PM
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brookings.edu


Elena Kagan uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

Please visit the link provided for the complete story.


I do not entirely agree with the conclusions of the author, who has a same-sex union himself but does not insist upon the absolute imposition of gay marriage on the American population as a whole.

The article is basically an argument for the states' rights approach, in which each state may decide individually whether or not they will recognize same-sex marriages. This, he argues, has the merit of not imposing a radical change upon a population in which the majority may oppose it while not closing the door on the eventual recognition of gay marriage. It is a doctrine of gradualism, which did not work entirely well for the south in its transition following the Supreme Court's decisions on segregation. The argument against gradualism is that it can sometimes mean "never" in actual practice.

I think this argument will not appeal to absolutists either pro or con gay marriage, but does provide an interesting perspective on the issue.




posted on Jul, 7 2010 @ 01:25 PM
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reply to post by Sestias
 


I guess you could call me an absolutist on gay marriage (or equal access to marriage) because I believe that disallowing gay people to marry is against the Constitution. I realize that each state makes its marriage laws now, so I don't see any reason that should change. But nationally, ALL PEOPLE should have equal protection under the law.

Ideally.

But we don't live in an ideal world, so I would be OK with a gradual movement toward all states accepting equal marriage. It's not ideal, but it's a step in the right direction.



posted on Jul, 7 2010 @ 01:30 PM
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reply to post by Benevolent Heretic
 




The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

-Amendment 10, United States Constitution.


Since marriage isn't specifically mentioned then the decision should be on a state by state basis. Also, marriage doesn't represent commerce so the commerce clause wouldn't apply and it is still possible that each state may not recognize a marriage license from another state. We see the same scenario today with gun laws despite the fact that guns are specifically mentioned in the 2nd Amendment. A hand gun license in Texas might not be recognized in Arizona.



posted on Jul, 7 2010 @ 03:31 PM
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reply to post by dbates
 


I agree with you to a point - in that marriage laws are rightfully on a state-by-state basis. But does that include the power to discriminate? Can the state declare that black people (for example) can't get married in their state? Doesn't the Constitutional Equal Protection Clause prohibit a state saying that certain people can get married and others cannot? And by marry, I mean marry the consenting adult of one's choice.



The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws".



posted on Jul, 7 2010 @ 03:34 PM
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reply to post by Benevolent Heretic
 


This is my entire argument for same sex marriage. By passing laws like the DOMA, you are committing a constitutional crime by singling out a certain group of people and giving them rights than the rest do not have.

Regardless however, it makes no difference and would not affect the lives of ANYBODY who isn't gay or wants to get married.

I don't really understand what the fuss is about.

~Keeper



posted on Jul, 7 2010 @ 03:42 PM
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100 years from now, Americans will be asking how it is that we banned gay marriage, just like today we are asking how it is that we allowed slavery. Both answers will be: "cause the religious types wanted it that way."



posted on Jul, 7 2010 @ 04:06 PM
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There was a time when all that was needed to for a marriage or a union between two people that loved each other was a couple of friends, some family, and a verbal agreement between both parties, and those that attended that stated that they were married.

As soon as we allowed government, and society to say that these types of agreements had to be recognized by TPTB, that's when in was easier to take rights away. So I say this, if contractual law is recognized, before the constitution puts into play, gay people should get married as they did before all of this nonsense, and then duke it out in the courts that a verbal contract has to be recognized in a court of law.

Not only would that baffle the courts, but as long as you learn to play the game, gay people can get married and have the current constitution and contractual law back it up.


Peace to you...



posted on Jul, 7 2010 @ 04:30 PM
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reply to post by Benevolent Heretic
 

But they do have equal protection. They're free to marry just as straight people are. For that matter I'm prohibited from marry a man just as homosexual men are prohibited from marrying each other. The law is the same for all.

Until someone proves that homosexuality is a genetic trait then it's nothing more than a lifestyle choice. People can't choose to be born black so that's not even a fair comparison when speaking of discrimination. Homosexuals want so badly to be the next "race" but they are not. A homosexual man could marry a woman but a black man could not turn "white. (Excluding Michael Jackson) All scientific evidence thus far indicates it is a behavior tendency and not something that can't be helped. That is the difference.



posted on Jul, 7 2010 @ 05:56 PM
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Originally posted by dbates
They're free to marry just as straight people are. For that matter I'm prohibited from marry a man just as homosexual men are prohibited from marrying each other.


As I said, by "marry" I mean marry the consenting adult of one's choice. The state places no restrictions on who can marry whom.



Until someone proves that homosexuality is a genetic trait then it's nothing more than a lifestyle choice.


So, you support the state telling you that you couldn't marry the woman of your choice because of some lifestyle choice of hers? Is "lifestyle choice" really a valid reason for the state to intervene and deny your marriage? Or is it just when it affects someone else that that's OK?

There have been many studies that show that the brains of homosexuals are different than that of straight people. Just because we don't know exactly what determines sexual preference, doesn't mean it defaults to a "lifestyle choice". It just means we're ignorant.

And as long as we're voicing opinions, in my opinion, it doesn't matter if it IS a choice. We should be able to marry any consenting adult that we choose to.



posted on Jul, 7 2010 @ 06:15 PM
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Originally posted by dbates
reply to post by Benevolent Heretic
 

But they do have equal protection. They're free to marry just as straight people are. For that matter I'm prohibited from marry a man just as homosexual men are prohibited from marrying each other. The law is the same for all.

Until someone proves that homosexuality is a genetic trait then it's nothing more than a lifestyle choice. People can't choose to be born black so that's not even a fair comparison when speaking of discrimination. Homosexuals want so badly to be the next "race" but they are not. A homosexual man could marry a woman but a black man could not turn "white. (Excluding Michael Jackson) All scientific evidence thus far indicates it is a behavior tendency and not something that can't be helped. That is the difference.



It isn't fair though Dbates, this whole you can marry a women if your gay does not hold water.

That's not the issue here, there is a lack of equal protection for an entire sect of the population. I should be able to legally mary, whomever I choose.

It should not be left up to the government who I am able to marry, especially considering it makes a difference in taxes and what not.

~Keeper



posted on Jul, 7 2010 @ 06:47 PM
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Originally posted by dbates
reply to post by Benevolent Heretic
 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

-Amendment 10, United States Constitution.
Since marriage isn't specifically mentioned then the decision should be on a state by state basis. Also, marriage doesn't represent commerce so the commerce clause wouldn't apply and it is still possible that each state may not recognize a marriage license from another state. We see the same scenario today with gun laws despite the fact that guns are specifically mentioned in the 2nd Amendment. A hand gun license in Texas might not be recognized in Arizona.

Shouldn't marriage then be addressed by the Constitution, allowing for equal rights for all to marry?



posted on Jul, 7 2010 @ 10:58 PM
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Originally posted by Benevolent Heretic
We should be able to marry any consenting adult that we choose to.

I agree but feel that there's no point in government getting involved and issuing a license for homosexuals to have a legal contract to live together. Really the only reason that government has an interest in marriage is that it provides for the well-being and stability of children. Nearly every point I hear on unfairness falls under this umbrella.
  • Tax breaks - It cost extra money to feed, clothe, and house children.
  • Insurance - Children can't work so someone has to provide their insurance. Women might not be able to work while pregnant and should be given the opportunity to raise children instead of working.

    We'll have to wait and see how Kagan (if she is approved) falls on this issue. So far she doesn't seem to want to let anyone pin her down to an exact opinion on this matter.



  • posted on Jul, 7 2010 @ 11:27 PM
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    reply to post by dbates
     

    In some states gay couples can adopt children. Other gay couples use sperm banks or surrogate mothers or fathers in order to create a pregnancy.

    So the protections for ensuring the stability of the family and thus for the children should extend to gays and lesbians who wish to marry and form a family. No?



    posted on Jul, 7 2010 @ 11:36 PM
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    reply to post by Sestias
     

    If homosexuals adopt children they can claim tax exemptions for children and have insurance cover them just as any normal married couple can. Homosexuals can not have children because same-sex unions never produce children. Only male-female unions produce children. In vitro fertilization is not a natural process. It is expensive. I know a couple who traveled to Brazil to have this done all out of pocket. It is considered an optional health expense by most insurance carriers. The resulting children of course would still be covered I'm sure.



    posted on Jul, 8 2010 @ 11:08 PM
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    Originally posted by dbates
    I agree but feel that there's no point in government getting involved and issuing a license for homosexuals to have a legal contract to live together.


    Again, that's not the isssue. Equal treatment is the issue. The state may not have any business being involved in marriage, but the fact is, they are. And as long as they are doing it for straights, they should do it for gays. It's all about equal treatment.



    Really the only reason that government has an interest in marriage is that it provides for the well-being and stability of children.


    But it doesn't differentiate between people who have kids and those who don't. If they DID, you would have a point.


    So far she doesn't seem to want to let anyone pin her down to an exact opinion on this matter.


    I noticed that about a few things about her.

    I'm in Sedona vacationing, so won't be getting back to this interesting discussion for a while.



    posted on Jul, 8 2010 @ 11:31 PM
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    Originally posted by Benevolent Heretic
    I guess you could call me an absolutist on gay marriage (or equal access to marriage) because I believe that disallowing gay people to marry is against the Constitution.


    If they allow gay marriage, why not polygamy etc....?



    posted on Jul, 8 2010 @ 11:37 PM
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    I actually find it hilarious and also revolting that people think it's any of their damn business whether people get married or not - gay or straight. It's consenting adults, so get your head out their homes. Go clean up your own house.



    posted on Jul, 8 2010 @ 11:43 PM
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    Originally posted by tothetenthpower
    This is my entire argument for same sex marriage. By passing laws like the DOMA, you are committing a constitutional crime by singling out a certain group of people and giving them rights than the rest do not have.


    Thirty-one states have put same-sex marriage on the ballot, but none have passed.


    Originally posted by tothetenthpower
    Regardless however, it makes no difference and would not affect the lives of ANYBODY who isn't gay or wants to get married.


    It will affect my kids and other people's kids and the schools will teach it as normal, etc...


    Originally posted by tothetenthpower
    I don't really understand what the fuss is about.


    It's all about kids. See this website:
    townhall.com...



    posted on Jul, 8 2010 @ 11:44 PM
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    Originally posted by filosophia
    100 years from now, Americans will be asking how it is that we banned gay marriage, just like today we are asking how it is that we allowed slavery. Both answers will be: "cause the religious types wanted it that way."


    How can you compare sexual behavior to skin color? You can't.



    posted on Jul, 8 2010 @ 11:47 PM
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    Originally posted by CodyOutlaw
    I actually find it hilarious and also revolting that people think it's any of their damn business whether people get married or not - gay or straight. It's consenting adults, so get your head out their homes. Go clean up your own house.


    It becomes my business when they try to force that stuff on kids in schools.



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