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Published: Wednesday, Feb. 4 2009 12:00 a.m. MST

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How does the 14th Amendment apply if the Supreme Court says that it is not a federal question?


@Alex | 5:19 p.m.

Scientific studies of the impact of gay marriage on a society would be difficult if not impossible to conduct. At best, all we can do is look to contemporaneous and historical events.

There are many societies today that allow gay marriages. Gay marriage does not seem to be destroying these societies.

Historically, many societies have allowed gay marriage. Probably most notable was ancient Greece from which we get our ideas about equality and liberty. In ancient Greece, same-gender relationships were encouraged in many areas of life, the military being most prominent. These same-gender relationships were given official, public recognition that included inheritance, power of attorney, estate, and other privileges and rights. In a few cases, these relationships were even called a "marriage" (γάμος), but that was because the majority of people in Greek society were heterosexual, not because there was any principled opposition to same-sex marriage. As to the "harm" same-sex marriages might cause, we can see that Greece is here today, and the "society" of the Western World is built on the principles and philosophies of those ancient Greeks! So same-sex marriage didn't harm that (our) society!

@ Stalwart Sentinel

"Hernandez is overrruled. I couldn't find any legal reference to Burns. Lewis and Conaway both cited the case in the dissent!"

Hernandez is the reason gay marriage cannot be preformed in NY. Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002)recognized marriage as between one man and one woman. Lewis ruled same-sex marriage bans were constitutional in NJ. Conaway upheld state law defining marriage between one man and one woman in MD.

There are 20 others that could be rattled off upholding the gay marriage bans. Are you really trying to argue that gay marriage bans are unconstitutional?

Your obsession with strict scrutiny and dismissal of precedent is baffling. What more needs to be addressed with strict scrutiny? Have the lower courts ignored strict scrutiny each time they've upheld bans?

"Courts are more readily exploring the issue and realizing there are no compelling reasons to barring same-sex marriage"

Where? MA? CT? I hardly think those two states constitute the definitive tectonic shift you seem so certain is upon us.

"Ignorance of the law"? That's rich coming from the guy who's ignored every precedent for gay marriage bans.

To: Stalwart Sentinel

Baker "has bad history, has been distinguished, and would be a weak case to cite in a legal forum. Cases like Baker should only be cited as a last resort, hence your reliance on it."

How ironic, considering you've cited no cases in your favor. Your time is indeed being wasted, but that's only because you continue to argue a position that ignores precedent.

Re: Stalwart Sentinel

This is great. Your arguments become less cogent with each post.

"Not all the acts were acts of terrorism (ie protesting outside a store)" When did I say protesting outside a store was terrorism? For that matter, when did I say "all" the acts were acts of terrorism? Does the phrase "Please don't put words in my mouth to make your argument fit" sound familiar?

I did, however, mention mailing white powder, vandalizing private property, along with beating, threatening, and harassing Yes on 8 contributors and supporters.

You seem to have trouble responding when your arguments are challenged. I figured this would have come naturally to a legal scholar such as yourself. But I understand why you don't - you can't, no worries though. You claim the above actions are those of the "lowest common denominator " since "peaceful protests occur every single day of every week." Once again I ask, where were the peaceful protests every day this week? Yes "spoon feed" them to me. Apparently your spidey senses have access to information that is unavailable to the rest of mankind.

How does it benefit the majority


"I am not gay. I don't believe that homosexuality is natural or right. However I do see that the rights of a group is restricted in comparison to another."

That's because you believe marriage is a right but it isn't. Tomorrow the majority could abolish the legal institution of marriage which makes it by definition not a right but a construct of society. As a result all the majority is required to do is provide equal protection UNDER the law which means they have to extend marriage to homosexuals on the same terms as heterosexuals which the majority does. There is no box on a marriage application asking for sexual orientation followed by a list of whom they can marry.

"I would however like to see some evidence or a study that indicates that allowing same sex marrage would have a negative impact on society."

Since it's not relevant I haven't looked into its alleged impact. The majority doesn't have to support same-sex marriage if there isn't a negative impact. It merely has to have no reason to do so thus you must prove its benefit to the majority.

Don't support slavery but have

slaves is like not supporting same-sex marriage but being party to it.


"How does same sex marriage "undermine traditional marriage"? Jeff Reynolds spouts this off as if it is a given, and all the LDS drones follow along. What support can you show for that claim?"

Actually it does do something to marriage which is force those who want to take part in a "traditional marriage" as you like to call it to take part in a legal institution that they no longer agree with because it grants marriages to persons of the same-sex. In essence it compels people to support an act they do not agree with.

You can disagree with this all you want but you have yet to show how the majority GRANTING legal marriage licenses to same-sex couples isn't an act of support by the majority anymore then being legally married isn't benign support for the institution. The reason people get married is because they support it. If they didn't they wouldn't get married so a person who legally marries supports the institution and if it grants same-sex marriage it means we support it as well.

To the narrow-minded bigot


"Being gay is not a choice - but choice of religion is. Interesting to read how the once "persecuted" have now become the persecuters. Replace the word samesex couple with LDS couple or gay with LDS and you may understand?"

If you replace the word same-sex couples with LDS and straight couples with non-LDS then you would have no discrimination.

As it now stands the law states Non-LDS men and LDS men can marry either a LDS or a non-LDS woman or in other words a homosexual or heterosexual man can marry either a homosexual or a heterosexual woman. Both sexual orientations are treated equally under the law. Heterosexuals aren't being given special treatment because of their sexual orientation. They can no more marry a person of the same sex then a homosexual can but both homosexuals and heterosexuals can marry a person of the opposite sex and there is no law allowing heterosexuals to marry one gender based on sexual orientation.

Furthermore, there's no gender discrimination either since a man can't marry another man and women can't marry another woman.

You will never understand because you are a bigot.

Stalwart Sentinel

@ RE: SS | 9:57 a.m.

Sincere apologies, I have had other obligations that have not allowed me to respond. However, I hope to get through all your issues now.

You ask "(h)ow does the 14th Amendment apply if the Supreme Court says that it is not a federal question?" 14th amendment applies to states re: due process. 5th applies to feds re: due process. come on, you should know that.

Stalwart Sentinel

@ @ Stalwart Sentinel | 2:05 p.m. Feb. 6, 2009

First things first LexisNexis Shepardization cites Baker as Questioned: Validity questioned by citing refs and Westlaw Keycites it as Some negative history but not overruled meaning it has not been overruled but is, as stated many times over, a last ditch effort if nothing else exists. Youre digging yourself a deep hole relying on it. sorry, its a failed argument.

Hernandez is keycited as red flagged and No longer good for at least one point of law by westlaw. LexisNexis red signs Hernandez as Warning: Negative treatment is indicated. Sorry, again.

Stalwart Sentinal

Have the lower courts ignored strict scrutiny each time they've upheld bans?

No, there are courts that have held same sex marriage is not a fundamental right; again, those cases have been distinguished and are narrowing in scope as the days pass. However, (repeating once again) courts today are recognizing same sex marriage as a fundamental right, which requires a test you obviously are not willing to attempt to overcome. Yours is a losing argument. Whether you like CT, MA, or CA, they are bellwether states re: the flow of case law and are nearly always at the forefront of most laws that permeate throughout the US. Sorry, just the reality of the situation. Hence, my rearview mirror analogy a few posts back.

Stalwart Sentinel

These next few may appear twice. Sorry if they do.

Burns recognized marriage as between one man and one woman.

First, when I said I couldnt find any legal reference to Burns it meant that Burns was not cited as referencing baker, which you claimed to be true in you previous post of Re: Stalwart Sentinel | 7:25 a.m. you were wrong.

Stalwart Sentinel

@To: Stalwart Sentinel | 2:21 p.m. Feb. 6, 2009

How ironic, considering you've cited no cases in your favor.
Do I really need to cite cases holding marriage as a fundamental right for you? Cases upholding the 14th amendment? Have you digressed that much? Please let me know if you are truly unable to find such cases. I am happy to provide them for you.

Stalwart Sentinel

I submitted a post re: peaceful protests a few days earlier. It appears either my connection failed or was filtered by moderators.

Here is the first result of my first search for them:

Tuesday, January 27th - Equality on Campus Day! - Students across the country will wear the same shirt to school as a way to show unity within the community.

Friday, January 30th in Fresno, CA - To protest California Eye Institute

Saturday, January 31st same above

Thursday, Feb 12th Freedom to Marry Day - Sit In - Steps of your City Hall and ask for a marriage license. If you are denied a license, don't leave. Sit with your community, your allies, and friends.

Friday, February 13th same as above

Monday, February 16th - "Love and Equality Rally"

Tuesday, February 17th - Marriage Lobby Day '09 - CA Capital State Building

Monday, March 16 - Rally in Tally for LGBT Equality at Capitol

Friday, February 13th - Every college campus in the USA and beyond leave your classes but show up to school!

Monday, February 16th - Gather together at the Capitol to demonstrate that the LGBT community and our allies will settle for nothing less than equality.

Tuesday, February 17th - Marriage Equality Lobby Day

Stalwart Sentinel

Please, tell me if there are any more "challenges" you can muster. I am unaware of any I have yet to address and dispel. Additionally, I have posted the peaceful protests twice now but don't know whether such events are precluded per the moderators, etc...

Nevertheless, in all sincerity, I feel anyone capable of posting on this site (ie you) should realistically be able search for those things on your own. Hubris is not becoming of someone who apparently lacks the ability to perform a simple google search.

I understand your frustration, your belief structure seems to be falling to pieces as we trade posts. Like I said before, same sex marriage is a growing recognition among legal scholars and it's unfortunate you have yet to embrace the reality of the situation.

That is not to say stare decisis should be fettered away, I'm simply stating that stare decisis is as much a base for rendering past holdings incorrect as it is a basis for upholding current cases dependent on prior case law. And the issue at bar clearly is moving towards upholding gay marriage as constitutionally protected. Do you disagree with that?


First, the 14th Amendment applies in Federal Courts because it is Federal law. The 14th Amendment is not used in State Courts because they rely on State law. There has been no Supreme Court decision that overrules Baker v. Nelson where the Court ruled that the challenger did not present a substantive federal question. That means the 14th Amendment does not apply in a challenge advocating same sex marriage until the court says otherwise.

Unlike a denail of cert., a dismissal for want of federal question constitutes a decision on the merits and is binding on lower federal courts until instructed otherwise.

"Until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial". Hicks v. Miranda, 422 U.S. 332, 344 (1975)

"Dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction". Mandel v. Bradley, 432 U.S. 173, 176 (1977)

Currently, there are no federal grounds for allowing same-sex marriage. Further support is found in DOMA, passed by Congress and signed into law by President Clinton.

re:@used to be tolerant

Yes, Mormons, especially in CA. are becoming fearful of their lives thanks to Homosexual terrorists. My husband was recently asked at a job interview in CA the MOST illegal of questions before the interviewer even said hello..."What religion are you?" He could see my husband was from Utah and he was MOST unpleasant (we didn't sue but sure could have). Mormons in our early days were treated much like blacks, howbeit not as bad, but awful close with whole communities being murdered and their homes taken from them and being shoved out of them in the middle of winter. Never heard of that among the homosexual community at large. We moved to Utah to live religion in peace...homosexual friends of mine moved to San Francisco to live their lifestyle in peace. I've never and will never hurt a homosexual but I will also NEVER condone marriage among same sex unions and no one in Utah is bying the lie from the homosexual community that this is about basic rights only...that what the homosexual community said in CA. till they bought off their JUDGES who made same sex marriage legal till THE PEOPLE said NO!

In Quiet Desperation

Everyone just stop it. PLEASE!!! Just read the book, In Quiet Desperation" by Ty Mansfield sold at Deseret Book. It will soften your heart through the principles of the Gospel.

Stalwart Sentinel

following up 1/4

Burns recognized marriage as between one man and one woman.

First, when I said I couldnt find any legal reference to Burns it meant that Burns was not cited as referencing baker, which you claimed to be true in you previous post of Re: Stalwart Sentinel | 7:25 a.m. you were wrong.

Stalwart Sentinel


Second, burns does not recognize marriage as between one man and one woman, it is a case re: visitation rights. Here is the holding: The Court of Appeals, Miller, J., held that: (1) ex-wife and her female companion were not married in Vermont, but instead entered into civil union which does not bestow status of civil marriage, and thus, ex-wife violated consent order prohibiting visitation with children while cohabitating with adult to whom party is not legally married when ex-wife exercised visitation while cohabiting with female companion, and (2) although there is right under constitution's due process clause to privacy of intimacy between persons legally able to consent, ex-wife waived that right, to extent it was interfered with in this proceeding, when she agreed to consent decree. Affirmed. Gay marriage was not the issue! The only mention is distinguishing civil union from marriage, which was already well known. Sorry, wrong again.

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