Hey, it’s inevitable, wot? Since those opposed to SSM (or gay rights in general) can’t point to any actual harm they will suffer, they can only fall back on the idea that change is being “forced” on them, a claim which is conveniently unfalsifiable.
Baker said “SSM is not a federal question” meaning the states have the right to decide for or against it.
But DOMA Section 3 made it a Federal question, by defining a Federal marriage standard where it had previously been a state’s decision by which the Feds. abided. Can I marry my first cousin? It’s up to your state; the Feds. will recognize your marriage if your state permits it, and not if it forbids it. There was no Federal marriae law, or rather it was, “What the states decide, we accept.”
But with DOMA, Washington’s big foot came down squarely into the middle of the discussion – whatever your state decides about SSM, Washington won’t recognize it.
While most people read Baker as saying, there’s no EP argument for SSM under the 14th, it was, rather, saying that the definition of marriage is a province of the state, and you may not use the EP argument to overcome that. While I personally consider that to be bad law, it was the standard from 1972 until 1996. But Section 3 of DOMA itself overturned Baker, by imposing a Federal standard, which automatically makes it a Federal question.
Re’ the issue of federalism (which is how President Obama framed his objection to DOMA), the Constitution is clear that rights not enumerated (and that would include the right to marry whomever you wish, since it is not mentioned) revert to the STATE and/or the PEOPLE.
However, I think the Constitutional challenges to a federal ban on same-sex marriage (and/or on benefits to same-sex married couples) go beyond that.
Such statutes also violate the equal protection clause and the 1st amendment, by denying equal legal and economic protections to some citizens based on their sex/gender/orientation/type of marriage; interferring in free association/the forming of contracts with whomever you wish; and finally, the separation of church and state, since objections to same-sex marriage and homosexuality are, ultimately, rooted in RELIGIOUS beliefs and traditions.
Now, I can see how a federal law or court ruling regarding same-sex marriage COULD be Constitutional; if it AFFIRMED the right rather than denying it (e.g. federal anti-slavery and civil rights legislation, Roe V.Wade).
There are instances in which the federal government and the highest court have the authority to, based on Constitutional principles such as equal protection/rights, privacy and religious freedom, FORBID the states or the people respectively from doing something which has been found to violate the Constitutional rights of individual citizens.
No, you can’t have slavery in your state, not even if 100% of the people vote for it. You can’t use state government to cram religion down the throats of citizens, again, not even if 100% of the citizens are in favor of it. Ditto a ban on abortion (encroaching restrictions aside).
But given THIS Supreme Court and some of its unprecidented (and frankly, unsupportable) decisions of late, there is no telling how it would rule on this issue. I suspect along partisan/ideological lines, as it has so often.
Been wooshed, bro. Irrumatio.
ETA: Link is SFW at the time of writing.
"Petitioners contend, second, that Minn.St. c. 517, so interpreted, is unconstitutional. There is a dual aspect to this contention: The prohibition of a same-sex marriage denies petitioners a fundamental right guaranteed by the Ninth Amendment to the United States Constitution, arguably made applicable to the states by the Fourteenth Amendment, and petitioners are deprived of liberty and property without due process and are denied the equal protection of the laws, both guaranteed by the Fourteenth Amendment.[2]
"These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court.
“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.”
Baker v. Nelson, 191 NW 2d 185 (1971)
Contrary to your assertion, Polycarp, Baker IS an equal protection case; Nowhere do they say that the 14th amendment cannot be used to overtutrn legislation that is within a state’s prerogative. Indeed, Baker makes clear that it can be used:
"Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.
We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution."
it is an equal protection case that FAILED.
Nah. Though I wasn’t familiar with the term “irrumatio”, its use made obvious that the objection wasn’t a serious one. It’s just that the “down the throat” phrase has made a comeback of sorts on this board in recent days.
You haven’t actually read Baker, have you?
Here’s Baker v Nelson, for anyone who hasn’t read it:
http://www.cas.umt.edu/phil/faculty/walton/bakrvnel.htm
And, again, the 8th circuit case is Bruning, after this guy, not Bruner.
I have only one question/comment for this thread: why aren’t laws prohibiting gay marriage viewed as attempts at gender discrimination? IANAL, but the whole issue seems trivial when viewed in that way. No gender discrimination allowed in the US, case closed. Why isn’t it that simple?
Because it isn’t discrimination against someone’s gender, I would guess.
I do, however, believe that homosexuality should fall under a suspect classification, which is what I think you probably mean. Up till now, such matters have been decided on a much less demanding rational basis. If this is a suspect classification, homosexuality will be treated (in this sense) like gender or race, and down goes DOMA.
ETA: Gender is a quasi-suspect classification, but same conclusion, I think.
I guess you can make an argument that laws prohibiting gay marriage should be considered gender discrimination, and people have tried (and in fact, that was one of the issues raised in Baker v Nelson.) You can argue, I guess, that if you pass a law saying a man can marry a woman but not a man, or that a woman can marry a man but not a woman, then you’re just basing that distinction of who can get married on the gender of the participants, and that’s gender discrimination.
Neither a man nor a woman may marry someone of the same sex. There’s no discrimination based on gender–if there were, this would already be subject to intermediate scrutiny, and its resolution as simple as Try2B Comprehensive speculated. But it’s not. The discrimination is based on sexual orientation.
If I’m not mistaken, the Massachusetts Supreme Judicial Court used similar logic in deciding Goodridge back in 2003. Although that was based on Massachusetts’s own equal protection language and jurisprudence.
I believe the federalism argument boils down to the fact that Massachusetts is prevented by the federal government from offering same-sex couples in Massachusetts actual marriage. No matter what Massachusetts says, a couple here still has to deal with only getting something that’s not really marriage. Massachusetts believes that it ought to be able to have the ability to offer all its citizens actual marriage, and not just some limited marriage-like arrangement. Which, prior to DOMA had been Massachusetts’s prerogative.
It seems to me like logic similar to Romer might apply. The state of Colorado had no obligation to extend any non-discrimination protections to its residents, but also couldn’t single out gays to be denied such protections by jurisdictions within Colorado. To apply that logic to the current case might continue the current practice (of which I know you’re not a fan) of using “rational basis” to mean something slightly stricter in gay rights cases than elsewhere.
It is being approached that way by some activists.
The reason the case is not closed is that there is no rule “No gender discrimination allowed in the U.S., case closed” that is observed. What we do observe is a little more reasonable than “Joey has a lollipop, I get one too.”
In EP analysis, gender discrimination issues have been evaluated under what we call intermediate scrutiny. intermediate scrutiny is in between strict scrutiny and rational basis. These different levels of scrutiny are devised in order to determine whether denail of a right or privilege or a disparate effect in laws is permissible.
We recognize that it is impossible to enact a scheme of laws that can always treat all people exactly equally. Marijuana laws have a good deal of impact on those inclined to smoke marijuana, and little impact on those who don’t (if you don’t count the superior feeling of drug warriors) and a lot of people think a legal classification of pot smokers as a class of society is silly. Therefore all the government would need to satisfy EP concerns is that it has a rational basis for pot laws. They don’t even need to prove it’s true, it just needs to make some kind of sense.
The reason the case isn’t closed, really, is because gay marriage doesn’t meet the gender discrimination requirements of intermediate scrutiny, which demands that an important government interest must be furthered in a way that substantially is related to that interest.
What it boils down to is that the right to marriage flows from the right to procreate, and the government has a compelling interest in an istitution that is fundamental to the survival and very existence of the species.
Marriage is essentially a bribe to two parents to provide a reasonable environment for child-rearing who otherwise might do any variety of things which leaves a child disadvantaged or neglected. Since homosexuals do not engage in irresponsible procreation, the bribe is not needed and there is no compelling interest in something that is NOT fundamental to the survival and existence of the species.
The existence of childless heterosexuals is an exception to the rule. THe law knows no demand that the existence of one exception compels another unrelated exception. In order to deny marriage to the childless, we’d have to determine the validity after the fact, as well as walk all over their privacy to have the information that they could not/ would not bear children. With homosexuals, we need not attempt peering into the crystal ball or examine their ovaries or testes to discover that there aren’t gonna be any surprise babies from Wednesday night five weeks ago.
Oh… okay, then. As long as it makes sense.
With all due respect, where in anything other than Christian-Right blogs can one find any support for this as a matter of law? (I grant it may be a motivating opinion for some – but where in law do you find support for it?)
It may be easier to ask you a question first:
Is there something about marriage that makes it “fundamental to the survival and existence of the human race” other than procreation?
Nonsense. Marriage is simply the institutionalization of the fact that humans are a pair bonding species that likes to ritually formalize things. Children or the lack of them is besides the point. People can marry and have no children, or they can have children without marriage; they can also adopt. And we live in a world suffering from overpopulation; the government has no particular need to make things worse.
I’m sure I can never find you saying “children are not fundamental to the very existence of the species” and here you are saying they are beside the point.
I do not buy your modern theories on what is important to the existence and survival of the race.
This time instead of your usual “gays can’t possibly hurt, and you can’t prove they can” approach, why don’t you take the position that homosexuality actually is beneficial to society in a fundamental way? Tell me why the country as a whole NEEDS gay marriage?
But there is no right to marriage that can flow from a right to not have children. These people have marriage as a matter of privilege to avoid violating their rights to privacy.
Having children without marriage is more likely to result in either a) poor environments for the children or b) government expenditures to provide a reasonable environment for the children. Either way, government has a compelling interest in seeing children in marriages.
Any adoptee who is worth giving a child to considers whether or not they can provide a suitable environment for the child. As such, they are far more responsible about providing for chidren and are of far less concern than the one night stand that results in a pregnancy which then is subject to abortion or poverty or a need for government monitoring in domestic cases that see to it an absent parent helps maintain the adequate environment.
But your view is closer to the idea that heterosexuals purpose is to be irresponsible so that gays raise the children is a compelling governmental interest. I hate to tell you, but gays will never take up the slack.
For your arguments to succeed, they must show that the advantage of solid gay families outweighs the marriages that will not be formed as a result.
half the coutry despises gay marriage on some theory or another, and the reasons vary. Their voices speak clearly of their disillusionment. As marriage becomes more and more meaningless because it is something not quite “fundamental to the existence of the race” the numbers who do not marry and then engage in irresponsible procreation will far outweigh the responsible gay families that are created.
We’re already below a 50% marriage rate. We have to stop fucking with it.