That’s the test under substantial due process. This case rests on equal protection, and there are three tests for that depending on what groups we’re talking about…the “rational basis” test, which is to say, “Is the law reasonably related to a legitimate government interest?”, the “intermediate scrutiny” test, which is, “Is the law substantially related to an important government interest?”, and the “strict scrutiny” test, which is, “Is the law narrowly tailored to serve a compelling government interest, and are there no less restrictive ways to achieve the compelling interest?”
The question at hand is, which test should be used for sexual orientation. Strict scrutiny is used for race and national origin. Intermediate scrutiny is used for gender, and most other categories use rational basis. A lot of people think that sexual orientation should judged using intermediate scrutiny. In the big case dealing with sexual orientation, Romer v Evans, the justices said they used the rational basis test, but in reality, the standards they applied were closer to intermediate scrutiny.
In her concurrence of Lawrence v Texas, Justice O’Connor suggested that equal protection be used, using the rational basis test.
Bzzzt, try again. Same-sex marriage was not performed in ancient Greece (although they were accepting of homosexuals), but it’s not true that no civilization has ever allowed it - for one, it was commonplace in ancient Rome:
Some people believe that same-sex marriage was also common in ancient Egypt. And the end of gay marriage came not because of some social problem it caused, but instead because of the artificial and rigid moral code created by Christians.
So really, if anyone is doing the imposing, it’s them.
Even I get it: they had to pass another amendment to make women equal. That means that the original amendment did not cover women. If it didn’t cover women, why would we expect it to cover homosexuals?
But, of course, the argument against that is that we haven’t followed the original intent of Constitution for quite some time. We call it a living document, and say it can be reinterpreted however the people want. And that’s all that’s happening here.
Personally, I wish separate-but-equal worked. I don’t mean black people getting inferior crap–I mean, keep people that hate each other separate geographically. If you hate same-sex marriage, you can live where it isn’t allowed. If you like it, you can live where it is. Stop all this pointless fighting.
It seems to me that the real reason for the fighting is that both sides want their morality enshrined in the law. Having separate laws would be better than ramming your ideologies down someone else’s throat.
I’m to the point where I don’t care about what someone else does. It’s irrational to care if no one is being hurt. And I’ve always been a romantic, and believed that anyone can love anyone–even when I objected to homosexuality. So I refuse to get involved in these pointless squabbles.
It simply boils down to US or THEM. I think that had you asked the people who enacted the 14th Amendment whether THEY had a right to marry the person they loved, they’d say yes. It’s the same with the right not to be a slave to the founders. The founders would certainly say: “If I were forced to be a slave, it would most certainly violate MY constitutional rights. But these rights certainly wouldn’t apply to THEM black people.” The right to order food at the lunch counter, to ride wherever you want on the bus, or the right to travel where you like. All rights that only certain members of the United States had, but not others. Not the THEM.
The problem isn’t defining rights, whether it be to marry the one you love or to not be a slave. The problem has been WHO gets to enjoy those rights. So the question I think you should be asking is not whether the people who enacted the Bill of Rights or the Amendments thought these rights should apply to the THEM, blacks or homosexuals, but rather whether those people thought those rights should apply to the US.
With that in mind, I have no problem making a determination. I think it’s pretty clear that the right to marry the person you love is one that a vast majority of people who enacted our Constitution would agree exists and should be protected. But I do not find their belief that that right only applies to people of the same race or same gender to be binding in the least.
The levels of scrutiny apply to due process analysis as well. The implicit/deeply rooted language in due process is a way to determine what rights are fundamental, and the importance of that classification is simply that under substantive due process, when a fundamental right is at stake, the government action in question is subject to strict scrutiny.
In other words, loosely speaking there are two ways to get to strict scrutiny – either a fundamental right is affected, or a protected class is.
As far as the argument over whether gay marriage involves such a right or such a class, it ends up being a battle of semantics, to some extent. Scalia in Lawrence talked about an effort to create a “fundamental right to engage in homosexual sodomy,” which of course makes it easy to say that there is no such thing, because that’s not accepted as a deeply rooted tradition. But the other way to frame the debate is that Lawrence was a case about the right to love and be intimate with a partner of one’s own choosing. Same facts, same outcome at stake, very different ways to talk about the law.
Same deal with marriage. Are we talking about a fundamental right to gaily engage in a homo marriage like a big gay homo, or are we talking simply about a right to marry the person you want to marry? Little historical support for the former, plenty for the latter. For my part I’d say this is exactly like interracial marriage. There was no fundamental right to marry a person of a different race until we acknowledged that hey, you marry who you want, right, and that seems pretty fundamental.
On preview I see Hamlet is making the same point but from another direction.
It’s my understanding, though, that this decision doesn’t focus very much on marriage as a fundamental right, but more that the denial of marriage for gays but allowance of marriage to straights treats people differently because of their sexual orientation and therefore is an equal protection violation. So substantial due process doesn’t come in in this case.
Bzzzt, try again. Same-sex marriage was not performed in ancient Greece (although they were accepting of homosexuals), but it’s not true that no civilization has ever allowed it - for one, it was commonplace in ancient Rome:
Bzzzt, try again. Bolding mine:
So, not only does he take great liberties in interpreting historical documents, he claims that Jesus himself was “best man” at a wedding. And you give this some level of credence? YEESH!
Some people believe Fred Phelps is not an asshole. Next.
And let’s make believe that Boswell’s opinions are more than just wishful thinking. That would mean that one of history’s great societies was open to homosexuality to such a degree that SSMs were commonplace. But then they did away with it. Seems like it must have not been so good for society, after all, and they dispensed with the nonsense.
I guess I don’t (and never have) understood how someone else’s ability to get married (or go to a particular school, or vote, or sit at the front of the bus) constitutes something being metaphorically rammed down someone’s throat. Can you quantify (in some way not involving throats or ramming) the harm done to you if a gay marriage happens? Will you suffer financially in some way?
If Robin and Sean (neither of whom are known to you) get married, how is your life affected if Robin is a man? A woman? If Sean is a man? A woman?
It’s true that a specific amendment was needed to ensure women had the vote (though in a number of states, they already did). Does this make mandatory a similar amendment for every new spin on equality? Do you know of any other judicial decisions that comprised, in your opinion, a blatant misuse of the 14th? I’m curious if you think Brown v. Board of Education was a “throat ramming” or a corrected injustice (since you acknowledge the unworkability of “separate but equal”), or somewhere in between.
It would be nice if you included the page you are quoting so I could read it too, but lets just say that adelphopoiesis, the Greek ritual that your quote mentions, is, oh,* Greek *in origin. I said ancient Rome. Also, a ‘pronubus’ is a Roman best man figure, and Boswell is saying that Christ is acting that part in an iconic painting. He is acting as a symbol of the blessing of a holy union - that type of iconography is highly typical of art work of the time. No one is arguing that Christ was actual, literally someones best man. So, no dice.
And let’s say that the vast majority of researchers previous to Boswell were viewing the homosexuality that was so prominent in ancient Greece and Rome through the eyes of a society that disproved of homosexual activities. All sociological researchers who study ancient culture bring some of their own values to the study of their subjects, no matter how hard they try to be impartial. So, sure, he was trying to reconcile his faith and his sexuality, but there is no reason why that view is any less valid than anyone elses.
Also did you see where I quoted “These gay marriages continued until Christianity became the official religion of the Roman Empire”, so there was no observed ill effect to society, there was the enforcement of a repressive moral code based on a single book.
I don’t think there’s good evidence that Rome ever had legal gay marriage. Juvenal is a satirist, remember, and the satire is about modern people who condemn immorality and femininity while at the same time being immoral and effeminate, and one of the examples he gives is that men are marriage ceremonies with each other, and if we go the same way we’ve been going, these things are going to be done openly, and men will legally be able to marry other men. But these “brides” have a problem. They can’t bear their husbands children, and their wombs will always be closed.
I wouldn’t necessarily agree with Boswell about the adelphopoiesis ceremony either. His was a very idiosyncratic view, and even contradicts the actual ceremony, which points out that the “brothers” aren’t entering into a carnal relationship.
I’m not saying that homosexuality was frowned up in ancient Rome, or even that they had the same beliefs about sexuality that we do. But that’s a different thread. I’m just saying that it is unlikely that they had official recognition of same sex unions.
I know Juvenal was a satirist, but he was far from the only person to mention gay marriage - for one, Cicero wrote about it too. And I already said, twice, that I know adelphopoiesis is not considered marriage in the true sense.
Anyways, barring the appearance of an actual ancient Greek, Roman, or Egyptian, it’s unlikely we’ll ever know for sure whether those civilizations did or did not officially condone same-sex marriages. And while I agree with you that it is a subject for another thread, I just brought it up because this is not the first time I’ve heard the argument “no other society has ever allowed same-sex marriage and so we shouldn’t either”. It’s a stupid argument already (who cares what they did?), but it’s also based on some pretty questionable assertions. Interestingly, this time it has come with the tag-on argument “well, if they did allow it, they then got rid of it, and that obviously means it was bad”, which is even dumber than the first argument.
I don’t think Cicero actually wrote about it. I assume you’re talking about his attack on Marc Antony in the Phillipics, because that’s what the Wikipedia article is talking about. But Cicero’s making an analogy, he’s not talking about an actual marriage. He’s saying, “When you were in a boy’s dress, you were a bankrupt. When you became a man, you put on the toga of a man, but you soon changed that for the dress of a prostitute, letting any man who wanted to fuck you. Then you met Curio, who took off your prostitute’s dress and put you in a wife’s dress. You were more under Curio’s power than any slave bought to pleasure a man.” And he goes on bit in this vein.
So he’s not claiming they were actually married. He’s using a rhetorical device. “You wore a boy’s dress, then you became a man and wore a man’s dress, then you traded that for a whore’s dress, and then you entered into an exclusive relationship with Curio, trading the whore’s dress for a wife’s dress.” In other words, he acted like a wife to Curio, not that he ever was Curio’s wife.
Over the course of human history thousands and thousands of experiments have been undertaken. Chinese medicine is a great example of each generation building on the experience and wisdom of previous generations and not just throwing it out the window. As is modern science. There have been experiments with religion and law and government. We tend to keep the ones that work well and discard those that don’t. Homosexuality has been around for all that time. We have zero example of any successful society that erased the lines between the genders completely. We have seen marriage, in its various formulations (but never SSM), become a foundational institution of virtually every successful society. We can point to two great societies that were very accepting of homosexuality—certain periods in Ancient Greece in particular. Yet we have zero instances, in even the most tolerant societies in their most tolerant times, of them accepting same sex marriage.
Now, I see why you don’t like this line of thinking. It’s because it points to the possibility that as tolerant societies—pre-Christian, mind you—got very close to accepting something like SSM, they moved away from it. I’d even venture to guess that SSM may have been accepted in some society at some time. But that fact that it was abandoned and not picked up by others, just shows that even if it did pop up now and again, it was not a great idea.
I need to reread the decision.