sigh. No, I did not. I was merely pointing out that you can’t use the 14th amendment to say, “I want to do ___________. Since the 14th amendment says that I have equal protection under the laws, by passing a law saying that I can’t do _____________ violates my equal protection rights, is discriminatory and unconstitutional”.
Whether you think _______ is a good thing or a bad thing does mean it is encompassed under fundamental rights. Any law on the books discriminates against people who have a desire to do the prohibited activity.
I see the point you were making with the comparison, as outlined in your later post. However, thanks to some hypocritical scum who seriously see no difference (both being morally outrageous to them), you can expect to find your drawing any such point, however valid, by that comparison, to elicit outrage from gay people. Consider how outraged you would be if someone compared your behavior with your wife to that of a child molester and the little girl he’s molesting.
The proposition as I understand it is this: Marriage is a fundamental right. Asserted by Chief Justice Warren in Loving; to validate, conduct a reductio ad absurdam and assert it is not; therefore any state can completely abolish marriage, nullifying any that exist and forbidding any future ons from being contracted. If you find this proposition indefensible, then marriage must be a right.
Notice we are not talking about gay marriages yet – this addresses the basic concept of marriage. Now, like any other right, marriage may be regulated. Even the most absolutist defender of freedom if speech does not assert it gives someone the right to drive through a residential neighborhood at 3 AM in a truck with loudspeakers bellowing forth his message. We set a minimum age for marriage, assert that you can marry only one other person at a time, and not while an existing marriage is in force, etc. But any regulations or limitations on marriage must (a) have a legitimate secular purpose, not tied to a religious proposition, and (b) must be justified by a connection to a valid government purpose. Absent these criteria, prohibitions on marriage must fail. An anti-miscegenation statute such as the one the Lovings allegedly violated is an example of a law bereft of such a purpose, and therefore constitutionally void.
The question therefore arises, What legitimate secular governmental purpose is so implicit in our society that it justifies prohibiting two persons of the same sex from contracting a marriage with each other, both being willing to do so, not already married, and of the age of consent for marriage?
This is not a question of a “right to gay marriage” but rather of gay people’s access to the commonly held right of marriage.
Further, the dissolution of 18,000 legal marriages contracted between May and November 2008 by the action of Section 7.5 (the constitutional provision enacted by Proposition 8) is fraught with consequences. Can a state dissolve a marriage between two people who contracted a legal marriage and wish to remain married by act of law? Could the Virginia legislature decide that Bricker and his wife, despite their wishes, no longer are married? Or North Carolina do likewise to Liberal and Edlyn, or to myself and my wife? What if it’s all Vietnamese Americans, or all Mormons? Would such a law be legal? What if it’s part of the state constitution?
Have fun with the consequences. It’s not us deciding something about them; it’s us setting a precedent that may bite some of us. Martin Niemoeller had a point.
Then it would seem to me that before marriage recognition could be withdrawn, someone would have to explicitly disqualify homosexuality from inclusion in the list of suspect classes.
Or, alternatively, someone would have to explicitly remove marriage from list of rights that are protected for suspect classes.
Prop. 8 did not jump through either of those hoops, AFAIK.
My sister went to breakfast today at a local restaurant and met President Monson (the current president/prophet of the LDS Church). After first expressing my surprise that the man ate at Dee’s Restaurant, of all places, I could only comment that meeting him would have been more impressive before it became clear what a complete and utter twat he is.
I’ll ignore the comparison and point out that I meant that we are not contemplating newly allowing same-sex marriage, but rather discussing a right that Californians did have, that was subsequently taken away. I still don’t see how this is permitted.
Also what Polycarp said, with the added point that there must not be a legitimate public interest in banning same-sex marriage, since the State Supreme Court found that it could be permitted – indeed, must be permitted – prior to all of this.
The State Supreme Court said that same-sex marriage is a right guaranteed to Californians in the California constitution. Proposition 8 amended that constitution to specifically remove that right.
Since that same-sex marriage right was given in the California constitution, rather than the US Constitution, the California constitution can be amended to remove it, and it’s not a matter for the federal courts.
If the court finds Prop 8 was intended to invalidate the 18K marriages already conducted does that give them more grounds to invalidate it? What about involvment by the federal courts (I doubt SCOTUS will go anywhere near SSM until they have absolutly no other choice)?
matt_mcl, I’m going to try and cover all your questions in this one post. This isn’t really my area of law, so if anyone wants to clarify what I post or correct it, feel free.
For our purposes here, you should just draw a line through the 14A P&I clause, since the court has basically read it to mean nothing. That’s not quite true, but it may as well be here, and this is fairly well settled law, so I don’t see that changing anytime soon.
As far as the 14A Equal Protection Clause goes, what the court does is it basically asks who is being discriminated against. Depending on which category of people are being discriminated against, the court applies a different test. For certain categories, such as race or religion, the court applies strict scrutiny, which basically means the government has to have a damn good reason for discriminating. This is an extremely hard test for the government to pass, and most discriminatory laws will fail under this test.
For other categories, such as gender, the court applies intermediate scrutiny, which basically means that the government has to have a pretty good reason for discriminating. And for the remaining categories, the court applies the rational basis test, which means that the government just has to have a reason. This last test is fairly easy for the government to pass.
Now, the court doesn’t usually just come out and say, “hey, we’re applying intermediate scrutiny here,” so it’s not always clear what standard they’re applying. In the case of homosexuality, to me, it looks like they apply something in between rational basis and intermediate scrutiny. This means that under the Federal constitution, it’s much easier for the government to discriminate on the basis of sexual orientation then it is to discriminate on the basis of race or gender.
Now, you are actually asking not if a state is required to allow gay marriage under the 14A, but whether a state can remove already existing gay marriages once they’ve been granted. And I think that this is probably a better argument made under the 14A Due Process clause, and given the decision in Romer (the Colorado Amendment 2 case), it’s not clear to me how this would shake out. The court has changed significantly since then, but it’s still a good argument to try. I don’t think the Equal Protection argument is going to get much traction on the Federal level, though.
As I said, this isn’t really my area of law, so take everything I say with a grain of salt.
Yeah, what we have is this weird situation where there’s a carve-out to strict scrutiny for sexual orientation solely for the specific issue of marriage. But for everything else, in CA, sexual orientation is still subject to strict scrutiny.
You know, thinking about this further, it occurs to me that a lot of the arguments made in favor of Prop 8 were pretty nonsensical, since Prop 8 doesn’t do anything to address them. For example, one argument was that if gay marriages were legal, schools would be required to teach about gay marriages. AFAIK, marriage isn’t really part of the CA school curriculum, but if it ever is, then the school is going to have to teach about gay domestic partnerships as well, because it can’t discriminate against sexual orientation in this manner. So, your kiddies are still going to have to learn about those mean ol’ gays forming a legal union together. Oh, well.
Because the US Supreme Court doesn’t, and hasn’t, recognized sexual orientation as a suspect, protected class under 14th amendment equal protection guarantees. The California Supreme Court did, under the California constitution’s equal protection guarantees. So, since under federal law, gays aren’t a suspect class, it’s possible to have a federal or state law that treats gays differently than straights, so long as such a law doesn’t violate the “rational basis” standard.
In other words, the Federal government doesn’t care what rights the state constitutions give their residents. That’s strictly a state question, unless those violate federal laws. But any state can give its residents additional rights the national Constitution doesn’t, but those rights are up to the state not to violate.
I may be somewhat confused here, but can the California Supreme Court not make a decision based on the federal constitution? That may be the basis for my confusion. In this country, provincial-level courts can and frequently do hear challenges against provincial laws, or even against federal laws, based on the federal constitution.
Could it not be an argument that the court previously found that there is no rational basis to violate the state constitution, so there can’t be a rational basis to violate the 14th Amendment either?
The California Supreme Court can make a decision based on the federal constitution, but in the gay marriage case that started this whole thing, they didn’t. They ruled that a ban on gay marriage violated the state constitution. If they had ruled that a ban on gay marriage violated the federal constitution, that ruling could have been appealed up to first the federal court of appeals and finally the US Supreme Court. Had that happened, the California Supreme Court’s decision probably would have been overturned. Because the California Supreme Court just ruled that the marriage ban violated the state constitution (rather than the federal one), that decision couldn’t be appealed to the federal courts.
This was answered by Captain Amazing. A state court can rule on Federal constitutional issues, but the Federal courts and ultimately the US Supreme Court get the final say about how to interpret the US Constitution. That’s well decided law here as well. In Canada, are provinces allowed final say in how to interpret the federal Constitution?
I’m having a little difficult in unpacking the question here. The California court allowed gay marriages on the basis of California’s version of strict scrutiny. If the issue went to Federal court, the Federal court would use the Federal version of rational basis/intermediate scrutiny to analyze the issue (for an EP analysis). Even though we’re using the same terms on the state and Federal level, these are distinct legal regimes.
We don’t have the distinction which you have between the federal Constitution and the state constitutions. We have the Constitution of Canada, which created the federal government and most of the provincial governments, assigns the legislative authority to each, and also puts exactly the same constitutional restrictions on both levels of government, via the Canadian Charter of Rights and Freedoms. In particular, the equality clause applies equally to the federal and provincial governments. There are no separate entrenched provincial constitutional documents equivalent to a state Bill of Rights, giving different equal protection rights than in the federal Bill of Rights.
The provincial courts interpret the Constitution and are not subject to review by the Federal Court. An appeal lies from the highest provincial court to the Supreme Court of Canada. If there is no appeal to the Supreme Court from the decision of the highest provincial court, then that decision stands as the final word, even if it’s interpreting the Constitution. Since the SCC normally only hears ~80 to 100 cases per year, in most cases the decision of the highest provincial court is the last word in that case. A dissatisfied litigant can’t seek review in the Federal Court.
Ah, ok. That’s interesting. I see where the confusion is coming in. matt_mcl, you should think of it this way. Each state in the US has it’s own Bill of Rights, and each state gets the final say on how to interpret its own Bill of Rights. But each person in the United States also gets the protections of the US’s Bill of Rights, and the Federal Courts and ultimately the Supreme Court get the final say on how to interpret the Federal Bill of Rights.
The Federal Bill of Rights, then, limits the power of both the Federal government and the state governments with respect to the people. Each state can give additional rights to its own people over and above the Federal Bill of Rights. But a state can’t take away rights from its people if the Federal Bill of Rights guarantees those rights.
So, what’s happened here is that California has given more rights to homosexuals under its own “Bill of Rights,” then the US Supreme Court has given to homosexuals under the Federal Bill of Rights. Which is why it is going to be difficult to go to Federal Court and try to get Proposition 8 overturned on Federal 14th Amendment grounds. Does that make sense?
I’ll just add for the sake of completeness, the 14 Amendment is technically not part of the Bill of Rights, which people usually limit to the original 10 Amendments. And states don’t necessarily have a section of their constitution which they call a “Bill of Rights.” I just used those terms because you seem to be using Bill of Rights interchangeably with Charter of Freedoms.