[7th Circ.] Court Rules Against Gay Marriage Bans in 2 States


Another link to the decision, that doesn’t require a log-in:



It would be interesting to know by what standard this judge is declaring some traditions bad. It seems he has some objective standard for morality. If so that same objective standard could also bind us regarding sexual practice and honored relationships. I doubt, or at least sincerely hope, that the only argument made against same sex marriage was not just tradition but also included an appeal to objective morality, something the judge implicitly recognizes in this statement.

It is also interesting that, in my understanding, the SCOTUS ruled that states have the right to define marriage however they want and the federal government is obligated to honor that definition. If so this ruling goes against that ruling. I have a suspicion that argument by the SCOTUS was ad hoc for ruling against DOMA.


I’ve been puzzled at the catholic response to this ruling. I’m unclear whether folks are not understanding it or acting like they don’t understand it for some unknown reason. Given the frequent recourse here to logical arguments in matters of morality, the judge’s use of one should have been easy to understand.

In essence, he didn’t accept “tradition” as a reason to limit marriage. His argument was:

  1. There are good and bad traditions.
  2. If we can distinguish between the good and the bad “traditions”, there are additional criteria that form the basis of the distinction
  3. It is these criteria that should form the basis of a legal argument, not a simple appeal to “tradition”

He’s attacking the argument, rather than pronouncing marriage a bad tradition. Given that tradition was the basis of the states’ cases, he couldn’t uphold the bans as reasonable limits.

In comparison, if you look at the Louisiana and Tennessee decisions, you’ll see they took a different approach and got a different result.

Is it the use of the word “tradition” and its associations for catholics that muddied the waters for you and made the argument harder to parse? To me the ruling seems very clear in what was lacking from the argument.


It’s very simple. Did the people who voted for the Equal Protection Clause understand it to mean that gay marriage was a Constitutional right? If that answer is no then it is not a Constitutional right. No one ever voted to enshrine it as a right. Words have meaning and if they don’t have an enduring meaning they have no meaning at all. You are free to vote to allow gay marriage it if you want. Many states have already done so. You are free to amend the Constitution to enshrine it as a right if you want.

Trust me friend an evolving Constitution that flaps in the breeze of whatever direction society is going at the time is not good for anyone. It has to be an enduring document with a fixed and understandable meaning. Otherwise you are leaving policy making up to the branch of government least accountable to the people instead of the legislatures where the Founders intended.

I would also pose the question to supporters of this decision that the judge in Louisiana did. If marriage is a Constitutional right then why is it not legal for a brother to marry his sister? Or an aunt to marry her niece? Or for a father to marry his daughter? Or for a brother to marry his brother? And you can’t give me any answer about potential birth defects because we’ve already divorced procreation from marriage in this decision. If we indeed have a Constitutional right to marry whomever we want how can we say these people can’t marry?


Not a very useful question, unless you have a time machine to allow you to go back and ask them.

Words have meaning and if they don’t have an enduring meaning they have no meaning at all.

Words change their meaning all the time. Consider the word “gay”; that word has changed its meaning. The word “computer” used to mean a person who worked in a bank and added up bank statements for customers by hand. Now it means something different.



Well, as I said, I think the use of cannibalism was a thinly veiled swipe at Christians who believe in the real presence.

So, some think a ban on same gender “marriage” should be lifted. No one is prohibited from going to the local UCC church where same gender “marriage” is practiced, and being “married” there. Correct?
The issue then isn’t who can and can’t be married. The issue is government sanction of, and benefits to, marriage. This, in fact, is where the “unequal” treatment of marriage occurs. the solution to end the problem is for the government to follow the progressive remake of the 1st amendment regarding religious freedom, and honor the separation of church and state by getting out of the marriage business all together.



Easy question to answer. How many states allowed gay marriage at the time? You have to give the words the reasonable meaning they had at the time. It was illegal for gay men to even have sex in most of the states at the time the 14th amendment was enacted. I don’t see how you could think that people who made gay sex a crime somehow intended to enshrine gay marriage as a Constitutional right. :shrug:

They do change. That’s why you have to apply the original meaning of the word at the time the law or amendment was enacted otherwise the words really are meaningless. How is a democracy supposed to function when a people through their legislators never know what the laws they enact are going to mean 50 years from now? If you want laws to evolve all you have to do is have the elected legislatures enact new ones. Simple as that.


No one voted to make interracial marriage legal either… Are you suggesting that the will of the people or of their elected legislatures is unimpeachable in every circumstance? Every single law that is overturned on constitutional grounds was passed by democratic process, or is a ruled that an administrative office was authorized to make through such a law (like the HHS birth control mandate). It seems your argument is that the courts shouldn’t exist.


Are you suggesting there is a moral equivalence between being African-American and engaging in sodomy???


I’m not… While my church teaches that gay marriage is completely acceptable, I’m addressing the idea that the court cannot overturn the will of the people when they judge the will of the people to be contradictory to the constitution. I made no judgement on either issue’s morality.


But what we are talking about is the Constitution. No one ever said the court can’t overturn the will of the people. What it shouldn’t do is add Constitutional rights that can’t be found in the reasonable meaning of the words of the amendment at the time it was adopted. So I will ask you to answer my question. At the time the Equal Protection clause was voted on sodomy was illegal in many if not all the states. If it was illegal for gay men to have sex with each other how can you possibly say the Equal Protection clause could be understood to enshrine gay marriage as a right?

Remember the Constitution is very difficult to amend whereas it is relatively easy to get a simple majority to pass a law. The Constitution is difficult to amend precisely because it is supposed to set things outside the will of the majority. If the Constitution evolves to mean whatever a judge thinks it means at the time then it has no enduring meaning at all. We are no longer of a government of the people but rather a government by judicial fiat.


No what I’m talking about is how the Constitution should be interpreted. Words had reasonable meaning at the time that they were adopted that in most cases are easy to understand. Take the case of the death penalty. It was declared unconstitutional under the Cruel and Unusual Punishment clause in the 1970’s. How could anyone possibly think that cruel and unusual punishment included the death penalty when the death penalty was the only punishment for a felony at the time the 8th Amendment was adopted? The same thing goes for gay marriage as I’ve laid out in other posts. No one ever voted to enshrine gay marriage as a right but if you can convince enough people to agree with you you can make it legal in every state through statute.


The Court isn’t adding Constitutional rights; it is applying/interpreting the Constitution to answer modern legal questions. The legal question in this case is not whether the Constitution says same-sex marriage is a right.


Most legal cases involve modern legal questions but the question of what constituted marriage is not a modern one and not difficult to discern what the meaning of the 14th Amendment was. In every case I’ve seen so far concerning gay marriage in which banning it has been held to be unconstitutional it has been on the grounds that it violated the Equal Protection Clause of the 14th Amendment.

I still haven’t gotten an answer from supporters of these court rulings. If banning marriage between same sex couples is unconstitutional how can we possibly uphold laws banning marriage between father/daughter or brother/brother or mother/son etc? And remember you can’t use possible birth defects as a reason because these cases reject procreation as being one of the defining purposes of marriage.


The legal question here is one of discrimination and that is why arguments supporting same-sex marriage bans almost invariably fail in the courtroom and will ultimately fail in the Supreme Court. The State can undermine virtually any constitutional right it wants to so long as it can demonstrate a compelling State interest AND applies such a limitation equally. That last part is why the State of Texas lost the Lawrence v. Texas case and why same-sex marriage bans will be struck down by the Supreme Court. Even if a State were to demonstrate a compelling interest, which has yet to happen, none of the States apply it equally across all marriage license applicants.


Actually, you can. But rather than purely on the basis of procreation, you base it on the humanist principle of alleviating suffering; reducing victimization.

If a man and a woman have sex in the context of marriage, who is the victim? No one, unless they turn out to be abusive parents if they concieve

If a man and a man have sex who is the victim? No one, because they are infertile

If a woman and a woman have sex who is the victim? No one

If a brother and sister have sex, who is the victim? The potential child is the victim, because being inbred the incestuous pair has afflicted him with a lifelong genetic disorder which at best will weaken his immune system and ability to procreate, and at worst lead to mental deficiencies and physical formalities.

One can continue to bar incestuous marriages and be open to homosexual ones.


I don’t see how with modern birth control. It’s a difference without a distinction. What if the brother or sister agreed to be sterilized?


When the 14th amendment was adopted almost 150 years ago, no one understood it to mean the redefinition of marriage. It was not even discussed, and if it had been, not one state would have ratified it. The language would have been changed to exclude that possibility. Now judges are deciding that it means something contrary to what the writers meant it to say. How is that anything other than legislating from the bench?

Just two weeks ago one of my nieces and her husband were approved to adopt a second baby through Catholic Charities. If Indiana follows the path of Illinois and Massachusetts that will no longer be possible, because our Diocese will not permit its agencies to violate its moral principles on the protection of children and place children with same sex couples.

Bishop Rhoades statements on same sex relationships and the possibility of same sex marriage can be found here:


Because even abortifecient birth control, the most “successful” kind like IUD’s has a failure rate, a very, very small one admittedly, but it is still a present risk.

It would be rather more difficult to bar if both consented to sterilization, but now we truly are entering the realm of such a fantastic unlikely scenario with astronomical probability that a case such as this would ever reach the courts. In such a case then no, there really would be no bar in secular eyes to barring the marriage; one is free to think it is disgusting (as Catholics view Homosexual marriages and Fundamentalist Baptists view Catholic ones) but provided there is no clear victim one is not free to prevent it if it was done by consent (another leading factor of the secular sphere, which carries far more weight than appeals to tradition)


First of all there is nothing unconstitutional about making laws that so called discriminate. As I’ve already pointed out siblings and close family members cannot marry. You can’t get a driver’s license before 16, smoke before 18 or drink before 21. Everyone in those age groups is being discriminated against because of their age. I can legally do things they cannot do. You have to be a natural born citizen to become president. We are clearly discriminating again’t non natural born citizens.

But more to your specific point about gay marriage. There is no discrimination at all. A gay man has every single right I do. We are treated absolutely equally. I cannot marry a man and he can’t marry a man. I can marry a woman and so can he. There is no difference at all.

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