Does the wall of words style of debating actually work anywhere?
Since when do constitutional rights turn on the results of long-term sampled studies? Given the wealth of data showing that gun ownership is tied to increased numbers of injuries and deaths to children in the home, is the Second Amendment no longer valid? Either same-sex couples are entitled to marry (whether under the equal protection clause or the due process clause), or they’re not.
Are you saying the granting of a new right should be made in ignorance, or on just the claims of the side seeking the right?
They’re not under the EP clause. Due Process remains dubious, but possibly the right could be extended from there.
But the fact is that the second Amendment is firmly established and not debatable as to its being a right, and SSM is a right being sought. That makes your comparison a mixture of apples and oranges.
Besides, I think the wealth of data isn’t about gun ownership; some people do harm with guns they do not own. There is also the point in the data that lack of education and familiarity with firearms is the real culprit–“gun ownership” is oversimplified. Is the gun one owns and never removes from its safe and is 20 miles away from any ammunition for it dangerous? Yet it is owned.
Well, I’d prefer that people like TomnDeb not play games and make things unneccessarily complicated, but in this case it appears necessary to contemplate.
If you cannot deal with the volume, then maybe you should not debate it.
Cite that increased information is bad, please, or keep the irrelevancy out.
The courts disagree with you.
I have already established that two of the circuit courts have ruled on the question there is no federal violation at all, new, recent cases post-doctrinal developments.
The Supreme Court has also said there is no federal right involved, though in 1971, and has never had the question again to answer on the merits.
State Supreme Courts overwhelmingly agree.
If you want to make a claim, CITE what court you are talking about and what case or courts and cases, and you’d better be sure to read each one of them and be sure they follow precedent according to the rules.
There is a somewhat vague claim that Windsor established a doctrinal change, but no-one here can identify it, none of the courts I’ve seen are able to identify it, and the way this seems to work is “Since Windsor was quite vague, the doctrinal change is that we can as vague as we like.”
But no, the majority of the courts who have had the question agree with me, and I have made far more citation than anyone here on the subject, and I say you have to prove your claim.
Marley has made your claim as well, and so far all he has shown is one uncontested case.
Can you do any better?
CITE. An not to someone in media’s opinion.
It’s not a new right any more than interracial marriage was a new right.
On the contrary, the EP argument is much stronger than the DP argument. Gays and lesbians are the very definition of the “discrete and insular minorities” from Footnote Four.
You are completely missing the point. Rights, such as they are, exist regardless of detrimental effects on society. The Fourth Amendment makes it much harder to prosecute criminals. The Seventh Amendment increases the cost and complexity of the judicial process.
You are also deliberately misstating the issue. Marriage is a right. Extending it does not create a new right, any more than some future litigation where the Second Amendment is found to cover laser guns.
“Because Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution,” U.S. District Judge Michael McShane (Uncontested, outside request for a stay refused by circuit court)
“In sum, Defendants have failed to carry their burden, and we conclude that
the classification imposed by the Marriage Laws based on sexual orientation is not
substantially related to an important governmental interest. Accordingly, we hold
that the Marriage Laws violate the principles of equal protection and are therefore unconstitutional.” U.S. District Counrt Judge John Jones. (Pennsylvania, uncontested ruling)
The 9th circuit ruled in Smithkline V Abbott that issues regarding sexual orientation were subject to heightened scrutiny and therefore fall under the equal protection clause. That decision was also not contested.
Every government classification “falls under the equal protection clause”.
Yes, but the ruling was specific in saying that EP applied.
EP applies because there is a classification, not because it was a sexual orientation classification. Heightened scrutiny applied (per the 9th Circuit, though not yet per SCOTUS) because it was an orientation classification.
I’m not disagreeing with you, he asked for examples of why EQ should apply, this is one ruling that states directly that it does.
He said same-sex couples aren’t entitled to marry under the equal protection clause, not that it doesn’t apply. Two different questions.
True. He’s wrong, but yes those are different questions.
Cite sufficient authority.
An oversimplified EP argument in which there is only one thing to consider. EP does not create any new right. it deals with existing ones to be sure their administration is fair.
This may be true to some extent, but this argument overlooks that many rights are curtailed because of the cost to society. You raise the issue of criminals, but do not include in your argument that their right to liberty has been curtailed.
Thus, even if you were correct there already is a right, it could still be curtailed by a compelling governmental interest under EP. But EP has never used strict scrutiny, in NOT ONE SINGLE COURT to my knowledge, which means the courts have universally found there is no fundamental right, yet the right at question is a fundamental right, which renders your argument circular–you depend on EP to uphold your right, but EP has to ask the question “Is there a fundamental right involved” n order to answer any questions.
And if I have that wrong, not a single one of you is forthcoming with a citation with authority to tell me how this is so.
Show me a fundamental right that wasn’t recognized until EP analysis alone recognized it!
And my argument is only aimed at states with SSM bans that do not have domestic partnership/civil union.
Then please show me the Strict Scrutiny the courts are engaging in. This question has already been clearly answered by an absolute concensus in the courts–no fundamental right is involved.
Marriage only as the Supreme Court knew it in Skinner, Loving, Zablocki, Turner, etc. is the existing right. Changing marriage doesn’t give you a right. It might instead make marriage NOT a fundamental right. It depends on what you are changing it to.
Granted, SSM is a right in states that have chosen to recognize it and grant you a right.
Look at how many times Kennedy couched SSM in terms of a gift in Windsor:
(Not all of these say gift, but this is an exhaustive compilation of every time Kennedy taked about where Edith Windsor’s right came from)
Windsor: “The State’s decision
to give this class of persons the right to marry conferred upon them a
dignity and status of immense import.”
“New York’s actions were a proper exercise of its sovereign authority.”
“Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993.
“When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right.
“New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry
“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject
to those guarantees, “regulation of domestic relations” is“an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393”
“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”).”
“Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.”
Thus, the lead the Supreme Court has given us, if any at all, is to consider SSM a gift of a state. But all of you refuse to accept Kennedy’s words and pretend he said somewhere here there is a federal constitutional right to SSM, which he never said.
The EP clause has NEVER meant that the state or federal government has to give an unrecognized right to one group because another groups has it, or change the nature of the right so another group fits in.
“[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Vacco v. Quill, 521 U.S. 793, 799 (1997).
“The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” This provision creates no substantive rights.San Antonio Independent School Dist.v.Rodriguez,411 U.S. 1, 33 (1973);id., at 59 Vacco v. Quill, 521 U.S. 793, (1997).”
The second amendment already covers any kind of arms, not just one particular type of gun. The court has said it covers any kind of weapon with a military application. I do believe a military application of lasers has already been made, thus we do not need a new case to know it covers laser guns.
Nobody can respond to posts like these because the language you use is unclear. First, you seem to be conflating equal protection and due process. Equal protection jurisprudence is not concerned with rights, merely with classifications. Equal protection attaches whenever the government classifies between similarly situated persons. The nature of the classification is what governs the level of scrutiny involved.
The due process argument is the one that stems from the nature of marriage as a fundamental right. This can be confusing because many authorities treat legislation that burdens a fundamental right identically to legislation that makes suspect classifications (other than gender and nonmarital children), because both give rise to strict scrutiny. There are not identical, though.
Under the due process argument, strict scrutiny would apply. Under the equal protection argument, it probably wouldn’t, because the best comparison is gender discrimination, not race discrimination. That’s the rationale the Ninth Circuit adopted, which is why it applied elevated scrutiny and not strict scrutiny.
You already have plenty of citations in this thread (many of which you posted yourself) on the issue of whether marriage is a right.
EP asks whether there is a fundamental right involved in order to know whether to apply strict scrutiny. Trying to fight your ignorance, here. You seem married to your ignorance.
Every time a court fails to apply strict scrutiny, it admits there is no fundamental right involved.
If you have a problem with something I said, quote it and explain your difficulty.
Are the Court quotes unclear, too?
Homosexuality hs never been treated as a suspect classification. You seem to think due process represents an end run around EP.
You wanna talk about unclear, have a look at your own writing. Cite your sources for this belief, perhaps they will make it clear where you haven’t.
Please back up your claim with the actual source, a quote of the relevant part and a citation. Let’s have a look.
Well, you know, the Oregon court Marley cited said this was NOT gender discrimination. Schedule that gay judge for a five-minute hate. And since this Oregon court is under the 9th circuit, it must not be following 9th circuit precedent.
Is it your position the Oregon district court was wrong?
I have a lot of authorities that marriage defined as one man and one woman is a fundamental right.
I have zero, including any I’ve seen of the famous 14, court cases that had the question of whether SSM is a fundamental right answered YES. If you think one of those 14 does this, please enlighten me and cite.
On the other hand, I have seen at least a dozen State Supreme Court cases saying NO. I have Two Federal circuit courts of appeal saying NO. I have the United States Supreme court saying NO.
So far as I know, the rate of finding there is no fundamental right to SSM under the federal constitution is 100%.
It’s high time someone cited otherwise.
False Premise, you haven’t established the right yet.
Since when do they turn on short term snowball studies? Yet those are being used in the gay argument. Log term studies would address the same legalities your pro-gay studies offer, so where is your difficulty?
You can desire a study but I cannot?
If you can say they’re either entitled or not, how come you cannot accept it when the answer turns out looking to be “NOT?”
Or, if you choose to insert a personal interpretation into a discussion, you might refrain from making the silly claim that your interpretation is an expressed goal, then dodge behind the claim that no law has an expressed goal without recognizing that you have contradicted yourself.
I doubt that you have any such authority prior to around 1990.
You assuredly have many authorities asserting that marriage is a fundamental right.
You probably have a few authorities asserting that polygamy is not a fundamental right.
I doubt that you can show any authority that asserts that a marriage, as a fundamental right, comprises “one man and one woman.”
Prior to the middle 1980s, the concept of Same Sex Marriage was not prevalent, even in the gay community. The presumption of marriage was heterosexual, so the issue was rarely–perhaps never–addressed.
The nature and definition of marriage is currently in flux in Western society. I have angered posters on this board by noting that their desire to assert same sex marriage as a fundamental right is dependent on that change of definition. However, while it is true that their assertion requires a change of definition in common understanding, it is equally true that judicial opinions issued prior to this controversy were based on a presumption that marriage was heterosexual and the explicitly naming of “one man and one woman” in those opinions did not occur until the opposite position was raised.