Gay marriage (1 Viewer)

[timschochet]

Here is an editorial in favor of gay marriage from The New Yorker:

http://www.newyorker.com/talk/comment/2013/04/01/130401taco_talk_toobin

In 2003, the Supreme Court decided that gay people could no longer be thrown in prison for having consensual sex. Specifically, Justice Anthony Kennedy’s opinion, in Lawrence v. Texas, declared that Texas’s anti-sodomy law “demeans the lives of homosexual persons” and violated the right to liberty guaranteed by the Fourteenth Amendment. But Kennedy was careful to describe the limits of the Court’s holding. He wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, in Kennedy’s telling, Lawrence v. Texas was not about same-sex marriage.

To which Justice Antonin Scalia responded, in a dissenting opinion, “Do not believe it.” He explained:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?



What, indeed? A decade later, it’s clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder—and, eventually, impossible—to justify discriminating against them in others. If gay people can’t be prosecuted for being gay, then they shouldn’t be fired for being gay, either. If they can’t be fired, then they shouldn’t be denied custody of children. And so on, to the issue of marriage. Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.

The Court will hear two cases. The first weighs the constitutionality of Proposition 8, the measure passed by voters in California that ended the state’s brief experiment with marriage equality; the second is a challenge to the exquisitely ill-named Defense of Marriage Act, the 1996 law that bars the federal government from recognizing same-sex marriages even in states where they are legal. The two cases present variations on the same fundamental question: Is there any circumstance in which the state can deny gay people benefits that are granted to straight citizens?

The litigation process has served the useful purpose of airing the rationalizations for discriminating against homosexuals. There are really only two reasons that gay marriage is still illegal in more than three-quarters of the country: that’s the way it has always been; and the very idea of same-sex marriage makes some people, well, uncomfortable. But courts, even the current Supreme Court, usually require that laws be justified by something more than tradition and bigotry.

The Obama Administration declined to defend the constitutionality of DOMA, so congressional Republicans gave that task to Paul Clement, who was the Solicitor General during the Administration of George W. Bush. Clement has done his best. “Many states have chosen to retain the traditional definition because of the intrinsic connection between marriage and children,” he wrote in his brief, and this may be true, at least in part. But, since there are many married straight people who do not have children (and many unmarried gay people who do), Clement must know that the argument is not likely to be a winning one. So he has come up with this: “The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples—namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies.” Even after repeated readings, the sentence is baffling. Donald B. Verrilli, Jr., the current Solicitor General, understated matters by saying that justifications like that one for “the institution of marriage would hardly be recognizable to most of its participants.”

This floundering by opponents of same-sex marriage, along with dramatic changes in public opinion on the subject, has led to euphoria among some supporters. It’s true that, by the standards of most American social movements, the gay-rights cause has made an enormous amount of progress in a short time. Nine states and the District of Columbia have marriage equality; Illinois and Rhode Island are on deck. A bill in Congress to overturn DOMA passed the Senate Judiciary Committee and has a hundred and sixty co-sponsors in the House. All major polls now show that solid majorities of Americans support marriage equality, and, according to one recent survey, eighty-three per cent believe that same-sex marriage will become legal nationwide in the next decade. Even some Republican elected officials are starting to come around, although that group appears to be limited, at the moment, to people like Senator Rob Portman, of Ohio, who have openly gay people in their immediate families.

Still, the stakes in the two cases remain huge. Edith Windsor, the eighty-three-year-old plaintiff in the DOMA case, had to pay three hundred and sixty-three thousand dollars in extra taxes after her wife died, because, under the law, the federal government did not recognize their marriage. DOMA also penalizes gay people by preventing them from receiving Social Security survivors’ benefits, filing joint federal tax returns, obtaining green cards for their spouses, and enjoying hundreds of other rights and benefits. And, in addition to these practical considerations, there is the matter of the Supreme Court’s acknowledging the capacity of gay people for commitment and love. It’s important that the Justices decide these two cases the right way.

It’s just not as important as it once seemed. When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that’s not going to happen. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.

 

[timschochet]

The day is finally here. This week, the Supreme Court of the United States of America will examine for the first time the question of marriage between homosexuals.

And then wait several months before issuing an opinion that makes it unclear which side won.

Do you think so? There won't be any clear, unequivocal, Roe vs. Wade type decision that makes gay marriage legal in the country?

 

[timschochet]

Listening to some opponents yesterday, I noticed a shift in tactics. Gary Bauer, longtime a lead spokesman for religious conservatives, argued that each state should be allowed to decide for itself- which was the same argument made by conservatives at the time of Roe vs. Wade. That position would seem to legitimize the 9 states who have legalized gay marriage, while keeping it illegal in the very red states that Bauer's people typically live in.

But this isn't like abortion. If two gays can marry in California, what happens if they decide to move to Alabama? Does the state acknowledge their marriage? This question didn't come up.

Newt Gingrich, on the other hand, conceded that the pro-gay marriage side would likely "win the day", but is hoping for a narrow decision that doesn't have national implications. I am hoping for the opposite. I would like to see a clear statement that gay people deserve equal treatment under the law, and that therefore gay marriage must be legal everywhere.

 

[rct]

Listening to some opponents yesterday, I noticed a shift in tactics. Gary Bauer, longtime a lead spokesman for religious conservatives, argued that each state should be allowed to decide for itself- which was the same argument made by conservatives at the time of Roe vs. Wade. That position would seem to legitimize the 9 states who have legalized gay marriage, while keeping it illegal in the very red states that Bauer's people typically live in.

But this isn't like abortion. If two gays can marry in California, what happens if they decide to move to Alabama? Does the state acknowledge their marriage? This question didn't come up.

Newt Gingrich, on the other hand, conceded that the pro-gay marriage side would likely "win the day", but is hoping for a narrow decision that doesn't have national implications. I am hoping for the opposite. I would like to see a clear statement that gay people deserve equal treatment under the law, and that therefore gay marriage must be legal everywhere.

You won't see it from Scalia who still supports sodomy bans:

At Princeton on Monday a freshman asked Antonin Scalia to explain his legal writings comparing sodomy bans with laws prohibiting bestiality and murder.

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,” Justice Scalia responded, according to the Associated Press. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

http://takingnote.blogs.nytimes.com/2012/12/11/scalias-domino-theory/

 

[Henry Ford]

Listening to some opponents yesterday, I noticed a shift in tactics. Gary Bauer, longtime a lead spokesman for religious conservatives, argued that each state should be allowed to decide for itself- which was the same argument made by conservatives at the time of Roe vs. Wade. That position would seem to legitimize the 9 states who have legalized gay marriage, while keeping it illegal in the very red states that Bauer's people typically live in. But this isn't like abortion. If two gays can marry in California, what happens if they decide to move to Alabama? Does the state acknowledge their marriage? This question didn't come up. Newt Gingrich, on the other hand, conceded that the pro-gay marriage side would likely "win the day", but is hoping for a narrow decision that doesn't have national implications. I am hoping for the opposite. I would like to see a clear statement that gay people deserve equal treatment under the law, and that therefore gay marriage must be legal everywhere.

If this thing isn't at least 6-3, I'd be shocked. I definitely don't expect a 7-2 Roe v Wade level consensus. If it happens, I'd be ecstatic.

 

[Maurile Tremblay]

Here is an editorial against gay marriage, from the Wall Street Journal:

http://online.wsj.com/article/SB10001424127887324103504578374401098039218.html?mod=WSJ_Opinion_LEADTop

The questions in the Prop 8 case will be: (1) what level of scrutiny should be applied, under the Equal Protection Clause, to a law that limits marriage to opposite-sex couples, and (2) is the state's burden under that level of scrutiny met?For the non-lawyers among us, the Equal Protection Clause says, essentially, that the government can't discriminate against any class of people without a sufficiently good reason. How good is sufficiently good depends on the class being discriminated against. If the discrimination is against most classes, for example felons, the government must have a reason with just a modicum of rationality. If the discrimination is against certain suspect classes, for example an ethnic minority, the government has to have a darned good reason. (In the first case, the law must be rationally related to a legitimate state interest; in the second, the law must be narrowly tailored to a compelling state interest.)

So the first question the court must decide is whether to apply the rational basis test, or some form of heightened scrutiny. That analysis will have three parts:

1. Is (gay) marriage a fundamental right? Under the Equal Protection Clause, heightened scrutiny is applied when the discrimination involves a fundamental right. Marriage is a fundamental right — see Loving v. Virginia. In Loving, the state argued that the word "marriage" as traditionally understood did not include interracial marriage. The court ruled, however, that marriage is a fundamental right that cannot be denied to interracial couples. In the Prop 8 case, the state will argue that the word "marriage" as traditionally understood does not include same-sex marriage. The court must decide whether marriage is a fundamental right that should not be denied to same-sex couples.

2. Is the discrimination based on sex, or is it based on sexual orientation? If the discrimination is based on sex ("the reason Jenny can't marry Jane is because she's female"), a form of heightened scrutiny will apply because sex is a suspect (or quasi-suspect) classification. If the discrimination is based on sexual orientation ("the reason Jenny and Jane can't wed is because they're gay"), it's an open question whether heightened scrutiny should be applied. That depends on whether sexual orientation is a suspect classification.

3. If gay marriage is not a fundamental right, and if the discrimination is based on sexual orientation, is sexual orientation a suspect classification such that heightened scrutiny will apply? The Supreme Court has not yet deemed sexual orientation to be a suspect classification, but its general analysis on the topic of which classifications are suspect indicates that perhaps it should. The analysis includes: whether the class has a history of being discriminated against, whether its trait is immutable or highly visible, and whether its members are a political minority. Gays do have a history of being discriminated against; their gayness is immutable and, in the context of marriage, highly visible; and they are a political minority.

Here is the Wall Street Journal's opinion on that topic:

The Court has not used the equal protection clause to create a new category of people who need extra legal defenses in three decades, largely because doing so disrupts the ebb and flow of the ordinary political process. Such caution is prudent, especially here. Homosexuals are not disenfranchised like blacks in the mid-20th century, as the very progress of the gay rights movement shows.

I don't think "disrupt[ing] the ebb and flow of the ordinary political process" is as important a consideration as protecting against a majority's pernicious discrimination against a minority, which is what heightened scrutiny is designed to protect against. (Salutary discrimination would pass even heightened scrutiny.) Also, the progress of the gay rights movement isn't being driven by the voting power of gays; it's being driven by the voting power of non-gays who agree with them. I don't think they are all that different from the blacks in the mid-20th century in that respect.In any case, all of that is a warm-up to the more interesting (IMO) part of the case: whatever level of scrutiny is applied, can discrimination against gay marriage pass it? Is forbidding gay marriage narrowly tailored (or even rationally related) to a compelling (or even legitimate) state interest?

I haven't read Paul Clement's brief in this case. I probably should. It likely has better arguments in it than the Wall Street Journal's editorial does. But here are the Wall Street Journal's arguments for why forbidding gay marriage should pass at least the rational basis test:

The Court ought to conclude on the merits that marriage as historically understood does have a "rational basis." This version of the equal protection test properly defers to the deliberative judgment of voters and their elected representatives. Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.

Deferring to voters means nothing in this context; the question is whether the voters did something that violates the Constitution. We don't defer to voters on that topic any more than we defer to drivers on the question of whether they exceeded the speed limit. Similarly, a desire to maintain the status quo* means nothing, since the question is whether the status quo violates the constitution. Finally, promoting intact, reasonably stable families is a legitimate state interest, but the Wall Street Journal offers no reason to think that forbidding gay marriage is rationally related to that interest. Do they have something like
in mind?I don't think those arguments from the Wall Street Journal would be at all persuasive even to Justice Scalia (although I'm sure Scalia would come up with his own reasons to uphold the law).

I don't think there's any way that forbidding gay marriage would survive any form of heightened scrutiny. So for Prop 8 to be upheld (assuming the case is decided on the merits), the Court will have to find that (a) gay marriage is not a fundamental right, (b) the law discriminates based on sexual orientation rather than sex, (c) sexual orientation is not a suspect classification, and (d) forbidding gay marriage is rationally related to a legitimate state interest.

That's quite the superfecta, IMO, and I don't see it happening.

Maybe I should go read Paul Clement's brief.

____

*And technically, Proposition 8 does not preserve the status quo: it upsets the status quo. Before Proposition 8 was passed, the status quo was that gay marriage was legal in California.

 

[Maurile Tremblay]

Maybe I should go read Paul Clement's brief.

Ah, so Clement is doing the DOMA case, not the Prop 8 case, but the issue of whether forbidding gay marriage should pass the rational basis test is the same: pages 43-48 here.

 

[SaintsInDome2006]

How about every state where this is a controversy just have a vote on it and be done with it?

Thank you.

 

[bigbottom]

How about every state where this is a controversy just have a vote on it and be done with it?Thank you.

Why do you hate the U.S. Constitution?

 

[Henry Ford]

How about every state where this is a controversy just have a vote on it and be done with it?Thank you.

Which will still leave the "Federal Benefits" question up in the air. Also, when somebody gets married in Vermont and moves to Mississippi, can the couple ever get divorced?

 

[timschochet]

Also, the progress of the gay rights movement isn't being driven by the voting power of gays; it's being driven by the voting power of non-gays who agree with them. I don't think they are all that different from the blacks in the mid-20th century in that respect.

Maurile, your post was terrific and highly informative, but I want to correct the bolded, because I don't believe it's true. To be precise, it was not the voting power of blacks which influenced the Civil Rights era, but the economic power. The biggest changes to segregation came when blacks in the South chose to boycott certain industries: the Montgomery buses, the Woolworth counters, etc. But it was blacks that forced these changes, not the overall population.

 

[SaintsInDome2006]

How about every state where this is a controversy just have a vote on it and be done with it?Thank you.

Which will still leave the "Federal Benefits" question up in the air. Also, when somebody gets married in Vermont and moves to Mississippi, can the couple ever get divorced?

Let Congress decide the Federal Benefits issue.As far as full faith and credit is concerned, there are similar issues like incest rules (for instance Louisiana where the state legislature regularly passes a law giving amnesty for certain kinds of incest every few years) and divorce decrees that vary from state to state, treat them the same way. Personally I would say give an out of state marriage FFC in every state and if so no problem.

 

[timschochet]

How about every state where this is a controversy just have a vote on it and be done with it?Thank you.

Which will still leave the "Federal Benefits" question up in the air. Also, when somebody gets married in Vermont and moves to Mississippi, can the couple ever get divorced?

Let Congress decide the Federal Benefits issue.As far as full faith and credit is concerned, there are similar issues like incest rules (for instance Louisiana where the state legislature regularly passes a law giving amnesty for certain kinds of incest every few years) and divorce decrees that vary from state to state, treat them the same way. Personally I would say give an out of state marriage FFC in every state and if so no problem.

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

 

[SaintsInDome2006]

How about every state where this is a controversy just have a vote on it and be done with it?Thank you.

Which will still leave the "Federal Benefits" question up in the air. Also, when somebody gets married in Vermont and moves to Mississippi, can the couple ever get divorced?

Let Congress decide the Federal Benefits issue.As far as full faith and credit is concerned, there are similar issues like incest rules (for instance Louisiana where the state legislature regularly passes a law giving amnesty for certain kinds of incest every few years) and divorce decrees that vary from state to state, treat them the same way. Personally I would say give an out of state marriage FFC in every state and if so no problem.

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.ETA: it would also help to see one or more constitutional amendments similar to the ones grounded in race, such as the 13th, 14th and 15th.

 

[Maurile Tremblay]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

 

[fatguyinalittlecoat]

Sometimes you don't find out it's a dude until later.

 

[Henry Ford]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

And who even cares about "sleeping with"? We're talking about marriage here.

 

[badmojo1006]

Sometimes you don't find out it's a dude until later.

 

[njherdfan]

How about every state where this is a controversy just have a vote on it and be done with it?

Thank you.

Which will still leave the "Federal Benefits" question up in the air. Also, when somebody gets married in Vermont and moves to Mississippi, can the couple ever get divorced?

Let Congress decide the Federal Benefits issue.As far as full faith and credit is concerned, there are similar issues like incest rules (for instance Louisiana where the state legislature regularly passes a law giving amnesty for certain kinds of incest every few years) and divorce decrees that vary from state to state, treat them the same way. Personally I would say give an out of state marriage FFC in every state and if so no problem.

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.ETA: it would also help to see one or more constitutional amendments similar to the ones grounded in race, such as the 13th, 14th and 15th.

Why does it need to be in 100% of cases? If only 80% of people who identify as homosexual are "scientifically" homosexual, is it okay to have those 80% of people unable to get married?

 

[Thorn]

Here is an editorial against gay marriage, from the Wall Street Journal:

http://online.wsj.com/article/SB10001424127887324103504578374401098039218.html?mod=WSJ_Opinion_LEADTop

The questions in the Prop 8 case will be: (1) what level of scrutiny should be applied, under the Equal Protection Clause, to a law that limits marriage to opposite-sex couples, and (2) is the state's burden under that level of scrutiny met?For the non-lawyers among us, the Equal Protection Clause says, essentially, that the government can't discriminate against any class of people without a sufficiently good reason. How good is sufficiently good depends on the class being discriminated against. If the discrimination is against most classes, for example felons, the government must have a reason with just a modicum of rationality. If the discrimination is against certain suspect classes, for example an ethnic minority, the government has to have a darned good reason. (In the first case, the law must be rationally related to a legitimate state interest; in the second, the law must be narrowly tailored to a compelling state interest.)

So the first question the court must decide is whether to apply the rational basis test, or some form of heightened scrutiny. That analysis will have three parts:

1. Is (gay) marriage a fundamental right? Under the Equal Protection Clause, heightened scrutiny is applied when the discrimination involves a fundamental right. Marriage is a fundamental right — see Loving v. Virginia. In Loving, the state argued that the word "marriage" as traditionally understood did not include interracial marriage. The court ruled, however, that marriage is a fundamental right that cannot be denied to interracial couples. In the Prop 8 case, the state will argue that the word "marriage" as traditionally understood does not include same-sex marriage. The court must decide whether marriage is a fundamental right that should not be denied to same-sex couples.

2. Is the discrimination based on sex, or is it based on sexual orientation? If the discrimination is based on sex ("the reason Jenny can't marry Jane is because she's female"), a form of heightened scrutiny will apply because sex is a suspect (or quasi-suspect) classification. If the discrimination is based on sexual orientation ("the reason Jenny and Jane can't wed is because they're gay"), it's an open question whether heightened scrutiny should be applied. That depends on whether sexual orientation is a suspect classification.

3. If gay marriage is not a fundamental right, and if the discrimination is based on sexual orientation, is sexual orientation a suspect classification such that heightened scrutiny will apply? The Supreme Court has not yet deemed sexual orientation to be a suspect classification, but its general analysis on the topic of which classifications are suspect indicates that perhaps it should. The analysis includes: whether the class has a history of being discriminated against, whether its trait is immutable or highly visible, and whether its members are a political minority. Gays do have a history of being discriminated against; their gayness is immutable and, in the context of marriage, highly visible; and they are a political minority.

Here is the Wall Street Journal's opinion on that topic:

The Court has not used the equal protection clause to create a new category of people who need extra legal defenses in three decades, largely because doing so disrupts the ebb and flow of the ordinary political process. Such caution is prudent, especially here. Homosexuals are not disenfranchised like blacks in the mid-20th century, as the very progress of the gay rights movement shows.

I don't think "disrupt[ing] the ebb and flow of the ordinary political process" is as important a consideration as protecting against a majority's pernicious discrimination against a minority, which is what heightened scrutiny is designed to protect against. (Salutary discrimination would pass even heightened scrutiny.) Also, the progress of the gay rights movement isn't being driven by the voting power of gays; it's being driven by the voting power of non-gays who agree with them. I don't think they are all that different from the blacks in the mid-20th century in that respect.In any case, all of that is a warm-up to the more interesting (IMO) part of the case: whatever level of scrutiny is applied, can discrimination against gay marriage pass it? Is forbidding gay marriage narrowly tailored (or even rationally related) to a compelling (or even legitimate) state interest?

I haven't read Paul Clement's brief in this case. I probably should. It likely has better arguments in it than the Wall Street Journal's editorial does. But here are the Wall Street Journal's arguments for why forbidding gay marriage should pass at least the rational basis test:

The Court ought to conclude on the merits that marriage as historically understood does have a "rational basis." This version of the equal protection test properly defers to the deliberative judgment of voters and their elected representatives. Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.

Deferring to voters means nothing in this context; the question is whether the voters did something that violates the Constitution. We don't defer to voters on that topic any more than we defer to drivers on the question of whether they exceeded the speed limit. Similarly, a desire to maintain the status quo* means nothing, since the question is whether the status quo violates the constitution. Finally, promoting intact, reasonably stable families is a legitimate state interest, but the Wall Street Journal offers no reason to think that forbidding gay marriage is rationally related to that interest. Do they have something like

Excellent posting. You should write a letter to the editor at the WSJ.

 

[SaintsInDome2006]

How about every state where this is a controversy just have a vote on it and be done with it?

Thank you.

Which will still leave the "Federal Benefits" question up in the air. Also, when somebody gets married in Vermont and moves to Mississippi, can the couple ever get divorced?

Let Congress decide the Federal Benefits issue.As far as full faith and credit is concerned, there are similar issues like incest rules (for instance Louisiana where the state legislature regularly passes a law giving amnesty for certain kinds of incest every few years) and divorce decrees that vary from state to state, treat them the same way. Personally I would say give an out of state marriage FFC in every state and if so no problem.

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.ETA: it would also help to see one or more constitutional amendments similar to the ones grounded in race, such as the 13th, 14th and 15th.

Why does it need to be in 100% of cases? If only 80% of people who identify as homosexual are "scientifically" homosexual, is it okay to have those 80% of people unable to get married?

No, it would have to be all. Well, because, to me the difference is that people should not be punished for an immutable - or unchangeable - situation they have no control over, so how would the state go about determining the difference? It couldn't, that's my point.

 

[SaintsInDome2006]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

And who even cares about "sleeping with"? We're talking about marriage here.

So what's a marriage without (euphamistically) sleeping together?

 

[SaintsInDome2006]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them? If what you were saying was the case then society could not ban any choices of any kind, and at a minimum even gay marriage advocates concede there are certain kinds of marriage "choices" they would continue to see as bannable.

 

[Henry Ford]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

And who even cares about "sleeping with"? We're talking about marriage here.

So what's a marriage without (euphamistically) sleeping together?

Not married, eh?

 

[Maurile Tremblay]

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons.

Interracial marriage is about race in exactly the same way that same-sex marriage is about gender. If race is immutable, so is gender. So why is it okay for a state to prevent me from marrying Reggie Bush because he's male, but it's not okay for a state to prevent me from marrying Reggie Bush because he's black? In terms of immutability, what's the difference between being male and being black?

 

[SaintsInDome2006]

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons.

Interracial marriage is about race in exactly the same way that same-sex marriage is about gender. If race is immutable, so is gender. So why is it okay for a state to prevent me from marrying Reggie Bush because he's male, but it's not okay for a state to prevent me from marrying Reggie Bush because he's black? In terms of immutability, what's the difference between being male and being black?

I know this is a shocker - the state isn't regulating who can get a marriage certificate it is really regulating sex and procreation. But that's really not the point.The difference is that the law would have to be addressed to males or females (which obviously is everybody).

So - if the state were to say that it is illegal or unconstitutional to ban males (or females) from being married period, then what kinds of marriage could be banned?

No, gay marriage advocates themselves aren't trying to say that males and females can be married to anyone or anything, are they? No, they are trying to legitimize certain kinds of marriages which are founded on certain kinds of physical relationships. The protected classes here are not males and females, there is no class because a "class" has to have some unchangeable definition, rather it is males and females (or just, people) trying to engage in certain activities (no need to elaborate there).

 

[SaintsInDome2006]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

And who even cares about "sleeping with"? We're talking about marriage here.

So what's a marriage without (euphamistically) sleeping together?

Not married, eh?

Ha, very, thank you, moving on.

 

[bigbottom]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them?

So it would be constitutional for the government to pass a law providing that only marriages between Christians will be recognized?

 

[bigbottom]

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons.

Interracial marriage is about race in exactly the same way that same-sex marriage is about gender. If race is immutable, so is gender. So why is it okay for a state to prevent me from marrying Reggie Bush because he's male, but it's not okay for a state to prevent me from marrying Reggie Bush because he's black? In terms of immutability, what's the difference between being male and being black?

 

[SaintsInDome2006]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them?

So it would be constitutional for the government to pass a law providing that only marriages between Christians will be recognized?

No. That's like race in the 13th, 14th and 15th Amendments (whether they mention race or not they were specifically created because of race) - religion is protected by the 1st Amendment.

 

[rct]

A thread started in 2004 and almost nine years later, still a lot of stupid here.

 

[bigbottom]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them?

So it would be constitutional for the government to pass a law providing that only marriages between Christians will be recognized?

No. That's like race in the 13th, 14th and 15th Amendments (whether they mention race or not they were specifically created because of race) - religion is protected by the 1st Amendment.

So the Equal Protection Clause wouldn't apply to such a law?

 

[SaintsInDome2006]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them?

So it would be constitutional for the government to pass a law providing that only marriages between Christians will be recognized?

No. That's like race in the 13th, 14th and 15th Amendments (whether they mention race or not they were specifically created because of race) - religion is protected by the 1st Amendment.

So the Equal Protection Clause wouldn't apply to such a law?

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended. So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?

It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.

It's better to convince people over time anyway.

 

[bigbottom]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them?

So it would be constitutional for the government to pass a law providing that only marriages between Christians will be recognized?

No. That's like race in the 13th, 14th and 15th Amendments (whether they mention race or not they were specifically created because of race) - religion is protected by the 1st Amendment.

So the Equal Protection Clause wouldn't apply to such a law?

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended. So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?

It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.

It's better to convince people over time anyway.

Okay, so your contention is that the Equal Protection Clause only applies to classes expressly mentioned in the Constitution?

 

[SaintsInDome2006]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them?

So it would be constitutional for the government to pass a law providing that only marriages between Christians will be recognized?

No. That's like race in the 13th, 14th and 15th Amendments (whether they mention race or not they were specifically created because of race) - religion is protected by the 1st Amendment.

So the Equal Protection Clause wouldn't apply to such a law?

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended. So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?

It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.

It's better to convince people over time anyway.

Okay, so your contention is that the Equal Protection Clause only applies to classes expressly mentioned in the Constitution?

Hm, I don't know, I think that the EPC covers all people in our country everywhere, but if people are trying to get their behavior deregulated then maybe, yes, I guess that's what I am saying. I guess it could also be argued like I was saying that if a person has some immutable quality that defines them as a certain kind of "person" and that it could be applied to all such persons like him/her then maybe it could be extended to that. Or maybe if there was a federal law, like the Disabilities Act, covering the issue, especially as to the 14th Amendment. People with disabilities can't change their situation either so I think that might be a good example where someone not mentioned by the Constitution is prtected by it.Like I said, gay marriage advocates are not and never have tried to extend marriage rights to all persons everywhere.

 

[Henry Ford]

Are you in favor of allowing each state to decide whether or not interracial marriage should be legal?

No, I'm not, but when the scientific community determines that in all instances (and I mean 100.000%) that who one sleeps with is not a matter of choice or mere predilection or preference but rather absolutely an immutable human characteristic then maybe I will change my mind.

Are you saying that sleeping with a black person isn't a matter of choice, but sleeping with a gay person is? It seems to me that they're both choices, so I don't see that as a basis for different legal treatment.

In one instance, with interracial marriage, the people are being discriminated against because of the race of one of the persons. A person's race is immutable, unchangeable. In the other, with intragender marriage, it's because of the "orientation" of the two persons. Now what is orientation? With bisexuals it changes, no? So what about them?

So it would be constitutional for the government to pass a law providing that only marriages between Christians will be recognized?

No. That's like race in the 13th, 14th and 15th Amendments (whether they mention race or not they were specifically created because of race) - religion is protected by the 1st Amendment.

So the Equal Protection Clause wouldn't apply to such a law?

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended. So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?

It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.

It's better to convince people over time anyway.

Okay, so your contention is that the Equal Protection Clause only applies to classes expressly mentioned in the Constitution?

Hm, I don't know, I think that the EPC covers all people in our country everywhere, but if people are trying to get their behavior deregulated then maybe, yes, I guess that's what I am saying. I guess it could also be argued like I was saying that if a person has some immutable quality that defines them as a certain kind of "person" and that it could be applied to all such persons like him/her then maybe it could be extended to that. Or maybe if there was a federal law, like the Disabilities Act, covering the issue, especially as to the 14th Amendment. People with disabilities can't change their situation either so I think that might be a good example where someone not mentioned by the Constitution is prtected by it.Like I said, gay marriage advocates are not and never have tried to extend marriage rights to all persons everywhere.

It's always nice to hear the non lawyer perpective on the law.

 

[bigbottom]

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended. So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.It's better to convince people over time anyway.

Okay, so your contention is that the Equal Protection Clause only applies to classes expressly mentioned in the Constitution?

Hm, I don't know, I think that the EPC covers all people in our country everywhere,

Ding!

but if people are trying to get their behavior deregulated then maybe, yes, I guess that's what I am saying.

I don't understand what you are saying here.

I guess it could also be argued like I was saying that if a person has some immutable quality that defines them as a certain kind of "person" and that it could be applied to all such persons like him/her then maybe it could be extended to that. Or maybe if there was a federal law, like the Disabilities Act, covering the issue, especially as to the 14th Amendment. People with disabilities can't change their situation either so I think that might be a good example where someone not mentioned by the Constitution.

I think you're making an argument about what would be required for the application of strict (or intermediate) scrutiny under an Equal Protection analysis. See Maurile's post above, which does a good job of breaking it down.

 

[SaintsInDome2006]

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended.

So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?

It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.

It's better to convince people over time anyway.

Okay, so your contention is that the Equal Protection Clause only applies to classes expressly mentioned in the Constitution?

Hm, I don't know, I think that the EPC covers all people in our country everywhere,

Ding!

but if people are trying to get their behavior deregulated then maybe, yes, I guess that's what I am saying.

I don't understand what you are saying here.

I guess it could also be argued like I was saying that if a person has some immutable quality that defines them as a certain kind of "person" and that it could be applied to all such persons like him/her then maybe it could be extended to that. Or maybe if there was a federal law, like the Disabilities Act, covering the issue, especially as to the 14th Amendment. People with disabilities can't change their situation either so I think that might be a good example where someone not mentioned by the Constitution.

I think you're making an argument about what would be required for the application of strict (or intermediate) scrutiny under an Equal Protection analysis. See Maurile's post above, which does a good job of breaking it down.

Hm, ok, I just read it. Great stuff. Frankly it's good writing and I agree it's worthy of a response op-ed anywhere.As to this...

I don't think there's any way that forbidding gay marriage would survive any form of heightened scrutiny. So for Prop 8 to be upheld (assuming the case is decided on the merits), the Court will have to find that (a) gay marriage is not a fundamental right, (b) the law discriminates based on sexual orientation rather than sex, (c) sexual orientation is not a suspect classification, and (d) forbidding gay marriage is rationally related to a legitimate state interest.

That's quite the superfecta, IMO, and I don't see it happening.

...maybe that's the kind of thing I was getting at.I don't claim to have a hold on the truth on this, I haven't said how I would vote if asked and I am still not sure.

But I do know that when courts arrive at a conclusion they just simply decide to do it and then find a reason, it doesn't really work the other way around.

MT may be correct, maybe the courts shoot down Prop 8. It seems bizarre to me in our democracy that a state that authorized the amending of the state constitution now says that that the amending of the state constitution is itself unconstitutional because the state supreme court just feels differently. Really ask yourself who is running the state there.

But if the above is the whole analysis then I still feel the same way, even more so. Marriage may be a fundamental right, but MT refers to "gay marriage" and that is not a fundamental right, and once again gay marriage advocates are not advocating for marriage for all persons in all situations only for some people in some situations. BIG big differenc. I'd agree on (b), obviously that's what the law is based on but on ©, once again how is that a suspect classification? That's where the science comes in so they had better bring it. As for (d) almost every law is found to be "rationally" related to some state interest, well except for maybe Bloomberg's stupid soda ban.

Now, as for (b)-© the SC can go find a study to support any viewpoint they want to expouse, it doesn't make it absolutely so though.

 

[pizzatyme]

I'm for it. I'm also in favor of polygamy. Not for me, but if 2 consenting adults can and should get married, why not 3 or more?

 

[Bottomfeeder Sports]

Well, because, to me the difference is that people should not be punished for an immutable - or unchangeable - situation they have no control over,

So you explicitly advocate that if 1 person can change everyone that cannot must be punished as a result?

No, it would have to be all. ....so how would the state go about determining the difference? It couldn't, that's my point.

Why should the state care to begin with. My God that person that is only choosing to be gay is being allowed a gay marriage! The necessary evil of gay marriage should be reserved for those who have no choice! ?

 

[Bottomfeeder Sports]

I'm for it. I'm also in favor of polygamy. Not for me, but if 2 consenting adults can and should get married, why not 3 or more?

As long as the burden of making decision that are easy with 2 but don't scale to 3 or more is not dumped on the state.

 

[bigbottom]

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended.

So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?

It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.

It's better to convince people over time anyway.

Okay, so your contention is that the Equal Protection Clause only applies to classes expressly mentioned in the Constitution?

Hm, I don't know, I think that the EPC covers all people in our country everywhere,

Ding!

but if people are trying to get their behavior deregulated then maybe, yes, I guess that's what I am saying.

I don't understand what you are saying here.

I guess it could also be argued like I was saying that if a person has some immutable quality that defines them as a certain kind of "person" and that it could be applied to all such persons like him/her then maybe it could be extended to that. Or maybe if there was a federal law, like the Disabilities Act, covering the issue, especially as to the 14th Amendment. People with disabilities can't change their situation either so I think that might be a good example where someone not mentioned by the Constitution.

I think you're making an argument about what would be required for the application of strict (or intermediate) scrutiny under an Equal Protection analysis. See Maurile's post above, which does a good job of breaking it down.

Hm, ok, I just read it. Great stuff. Frankly it's good writing and I agree it's worthy of a response op-ed anywhere.As to this...

I don't think there's any way that forbidding gay marriage would survive any form of heightened scrutiny. So for Prop 8 to be upheld (assuming the case is decided on the merits), the Court will have to find that (a) gay marriage is not a fundamental right, (b) the law discriminates based on sexual orientation rather than sex, (c) sexual orientation is not a suspect classification, and (d) forbidding gay marriage is rationally related to a legitimate state interest.

That's quite the superfecta, IMO, and I don't see it happening.

...maybe that's the kind of thing I was getting at.I don't claim to have a hold on the truth on this, I haven't said how I would vote if asked and I am still not sure.

But I do know that when courts arrive at a conclusion they just simply decide to do it and then find a reason, it doesn't really work the other way around.

MT may be correct, maybe the courts shoot down Prop 8. It seems bizarre to me in our democracy that a state that authorized the amending of the state constitution now says that that the amending of the state constitution is itself unconstitutional because the state supreme court just feels differently. Really ask yourself who is running the state there.

If the Supreme Court shoots down Prop 8, it's because it violates the U.S. Constitution, not because it violates the California Constitution (which was the basis for the California Supreme Court's ruling upholding same-sex marriage rights).

But if the above is the whole analysis then I still feel the same way, even more so. Marriage may be a fundamental right, but MT refers to "gay marriage" and that is not a fundamental right, and once again gay marriage advocates are not advocating for marriage for all persons in all situations only for some people in some situations. BIG big differenc. I'd agree on (b), obviously that's what the law is based on but on ©, once again how is that a suspect classification? That's where the science comes in so they had better bring it. As for (d) almost every law is found to be "rationally" related to some state interest, well except for maybe Bloomberg's stupid soda ban.

In Romer v. Evans, the Supreme Court in a 6-3 decision struck down an amendment to the Colorado constitution that would have prevented any city or county in the state from taking any governmental action to recognize lesbians and gays as a protected class. The Colorado Supreme Court held that strict scrutiny applied and struck down the law. On appeal, the U.S. Supreme Court held that the law didn't even pass constitutional muster under a rational basis inquiry.

 

[SaintsInDome2006]

The Equal Protection Clause would apply to folks protected by the Constitution and extend it to the States via the 14th Amendment. So the 15th Amendment protects race and that is extended. And the 1st Amendment protects religion and that is extended.

So basically, if you extend it to all people who get to create their own protected class defined just by what they do or how they behave, just because they are "people," then no state or federal government could ban anything, now could they?

It's got to be some classification mentioned in the Constitution like race, religion ..... or it's up to the states. And to me it shouldn't even be up to teh states, it shoudl be up to the people so let them vote on it.

It's better to convince people over time anyway.

Okay, so your contention is that the Equal Protection Clause only applies to classes expressly mentioned in the Constitution?

Hm, I don't know, I think that the EPC covers all people in our country everywhere,

Ding!

but if people are trying to get their behavior deregulated then maybe, yes, I guess that's what I am saying.

I don't understand what you are saying here.

I guess it could also be argued like I was saying that if a person has some immutable quality that defines them as a certain kind of "person" and that it could be applied to all such persons like him/her then maybe it could be extended to that. Or maybe if there was a federal law, like the Disabilities Act, covering the issue, especially as to the 14th Amendment. People with disabilities can't change their situation either so I think that might be a good example where someone not mentioned by the Constitution.

I think you're making an argument about what would be required for the application of strict (or intermediate) scrutiny under an Equal Protection analysis. See Maurile's post above, which does a good job of breaking it down.

Hm, ok, I just read it. Great stuff. Frankly it's good writing and I agree it's worthy of a response op-ed anywhere.As to this...

I don't think there's any way that forbidding gay marriage would survive any form of heightened scrutiny. So for Prop 8 to be upheld (assuming the case is decided on the merits), the Court will have to find that (a) gay marriage is not a fundamental right, (b) the law discriminates based on sexual orientation rather than sex, (c) sexual orientation is not a suspect classification, and (d) forbidding gay marriage is rationally related to a legitimate state interest.

That's quite the superfecta, IMO, and I don't see it happening.

...maybe that's the kind of thing I was getting at.I don't claim to have a hold on the truth on this, I haven't said how I would vote if asked and I am still not sure.

But I do know that when courts arrive at a conclusion they just simply decide to do it and then find a reason, it doesn't really work the other way around.

MT may be correct, maybe the courts shoot down Prop 8. It seems bizarre to me in our democracy that a state that authorized the amending of the state constitution now says that that the amending of the state constitution is itself unconstitutional because the state supreme court just feels differently. Really ask yourself who is running the state there.

If the Supreme Court shoots down Prop 8, it's because it violates the U.S. Constitution, not because it violates the California Constitution (which was the basis for the California Supreme Court's ruling upholding same-sex marriage rights).

But if the above is the whole analysis then I still feel the same way, even more so. Marriage may be a fundamental right, but MT refers to "gay marriage" and that is not a fundamental right, and once again gay marriage advocates are not advocating for marriage for all persons in all situations only for some people in some situations. BIG big differenc. I'd agree on (b), obviously that's what the law is based on but on ©, once again how is that a suspect classification? That's where the science comes in so they had better bring it. As for (d) almost every law is found to be "rationally" related to some state interest, well except for maybe Bloomberg's stupid soda ban.

In Romer v. Evans, the Supreme Court in a 6-3 decision struck down an amendment to the Colorado constitution that would have prevented any city or county in the state from taking any governmental action to recognize lesbians and gays as a protected class. The Colorado Supreme Court held that strict scrutiny applied and struck down the law. On appeal, the U.S. Supreme Court held that the law didn't even pass constitutional muster under a rational basis inquiry.

About Prop 8, I was only speaking generally, not legally, about the absurdity of extending from the legislature to the people the direct ability to amend and then the CA SC saying they have no such right. It's kind of crazy.

As for your other point about Romer, hey great point. So why isn't this all over and one with then? Shouldn't Romer just be controlling this whole thing and everyone can stop debating it?

 

[SaintsInDome2006]

Well, because, to me the difference is that people should not be punished for an immutable - or unchangeable - situation they have no control over,

So you explicitly advocate that if 1 person can change everyone that cannot must be punished as a result?

No, it would have to be all. ....so how would the state go about determining the difference? It couldn't, that's my point.

Why should the state care to begin with. My God that person that is only choosing to be gay is being allowed a gay marriage! The necessary evil of gay marriage should be reserved for those who have no choice! ?

Well I don't think it's just one, right? It would be enough of a problem to make the whole debate kind of silly.Hey I agree on point two, I find that very reasonable, so why not just put it to a vote.

 

[timschochet]

so why not just put it to a vote.

This whole "let's put it to a vote" thing, or "let the states decide" reminds me of Stephen Douglas pushing for Popular Sovereignty in the 1850s. One of the reasons we have a Constitution, and a Supreme Court, is that there are certain freedoms which the will of the majority may not protect.

 

[bigbottom]

About Prop 8, I was only speaking generally, not legally, about the absurdity of extending from the legislature to the people the direct ability to amend and then the CA SC saying they have no such right. It's kind of crazy.

You've got it out of order. Prop 8 overruled the CA Supreme Court.

As for your other point about Romer, hey great point. So why isn't this all over and one with then? Shouldn't Romer just be controlling this whole thing and everyone can stop debating it?

Because the marriage laws involved in Prop 8 and DOMA are different than the Colorado amendment in Romer. They involve different assertions regarding legitimate government interests and the extent to which the laws in question are rationally related to such interests. I simply brought up Romer to note that the Court has struck down a law using the rational basis analysis and has done so in the area of gay rights.

 

[SaintsInDome2006]

About Prop 8, I was only speaking generally, not legally, about the absurdity of extending from the legislature to the people the direct ability to amend and then the CA SC saying they have no such right. It's kind of crazy.

You've got it out of order. Prop 8 overruled the CA Supreme Court.

As for your other point about Romer, hey great point. So why isn't this all over and one with then? Shouldn't Romer just be controlling this whole thing and everyone can stop debating it?

Because the marriage laws involved in Prop 8 and DOMA are different than the Colorado amendment in Romer. They involve different assertions regarding legitimate government interests and the extent to which the laws in question are rationally related to such interests. I simply brought up Romer to note that the Court has struck down a law using the rational basis analysis and has done so in the area of gay rights.

On 1, right but later I do believe the CA SC came right back and said that Prop 8 was unconstitutional, which was my point. But maybe I'm wrong.On 2, ok, thanks. Interesting discussion and I think I may have learned something. Thanks.

 

[bigbottom]

About Prop 8, I was only speaking generally, not legally, about the absurdity of extending from the legislature to the people the direct ability to amend and then the CA SC saying they have no such right. It's kind of crazy.

You've got it out of order. Prop 8 overruled the CA Supreme Court.

As for your other point about Romer, hey great point. So why isn't this all over and one with then? Shouldn't Romer just be controlling this whole thing and everyone can stop debating it?

Because the marriage laws involved in Prop 8 and DOMA are different than the Colorado amendment in Romer. They involve different assertions regarding legitimate government interests and the extent to which the laws in question are rationally related to such interests. I simply brought up Romer to note that the Court has struck down a law using the rational basis analysis and has done so in the area of gay rights.

On 1, right but later I do believe the CA SC came right back and said that Prop 8 was unconstitutional, which was my point. But maybe I'm wrong.

The California Supreme Court upheld Prop 8 following its passage. It was a federal district court in California, followed by the Ninth Circuit, that struck it down as unconstitutional (under the U.S. Constitution).

On 2, ok, thanks. Interesting discussion and I think I may have learned something. Thanks.

Good discussion.

 

[timschochet]

The really neat thing is that, as some of the guests on TV have pointed out, there is a sense of inevitability here. The opponents to gay marriage really have no credible argument remaining. I think we are witnessing something momentous this week: the beginning of the end to the last remaining major discrimination in this country.

 

[Novice2]

Marriage is discrimination.