The state does have occasion to discriminate. We are fine with male/female bathrooms. We are fine that kids cannot vote till they are 18 (to name two examples). There is a rationale that can be expressed for those. Can we argue if 18 is the best age to grant new rights? Sure. Do we want the state to get sued everytime someone thinks it’d be better if the age of majority were 16 or 20? No.
I get it and am fine with the above.
However, when we get to heterosexual/homosexual distinctions no one can elucidate a reason to discriminate on that basis. There is no reason, no rationale. Prop-8 supporters gave it their best shot in the recent court case and were shredded.
What I take issue with is a fundamental right can be denied a group with no rationale whatsoever. Merely because the SCOTUS can simply proclaim, “Nothing to see here, move along, move along!” That they need no reason, they need no evidence, they need nothing but their own prejudice to decide. If they declare homosexuals are not a protected class then that is it. Nevermind there is no reasoning to support it.
But that same formula can be applied to any two solutions:
The state passes a law restricting deer hunting to 1-15 November every year, changing it from the previous rule of “all of November.”
Is there a rational reason for that restriction? Is it more rational than 16-30 November, or 7-21 November?
People in other states can hunt the entire month of November. So could people in this state as recently as last year. Now a group sues the state over that law, asking merely for the same rights they had as recently as last year, and the government was presumably OK with it then.
What should the court do, in your proposed analytical framework?
OK, that’s very clear. In your proposed process, we first identify whether a “fundamental constitutional right” is implicated.
In the deer hunting case, I’d say no.
Of course, someone else might say ‘yes.’ He might point to his state constitution, which says, “The people have a right to hunt, fish, and harvest game, subject to such reasonable regulations and restrictions as the State Legislature may prescribe by general law,” and say that this proves the right to hunt is fundamental. He might point to the claim that over the whole of mankind’s history, from before recorded time, man has survived by hunting game. And that based on this strong tradition, this huge historical record, the mention of hunting in the state constitution, we should conclude that hunting is a fundamental right.
It is not a constitutional right under the US constitution.
The state constitution mentions it as a right and also circumscribes the right in the constitution itself and expressly allows the state to regulate it.
Further, a state interest can be articulated in limiting hunting season (e.g. to husband the animals properly so they are not hunted to extinction as the buffalo nearly were).
You are also not denying a particular group. If the state constitution says it is a right then fine…it is their right. The state cannot then say only heterosexual people are allowed to hunt. If they did I’d be vociferous in defense of allowing homosexuals to hunt and that despite the fact I hate hunting.
A fundamental right can’t be denied a group with no rationale whatsoever. The state needs a really good reason to abridge a fundamental right. So, if the Supreme Court were to say in this case, “Marriage is a fundamental right, and Prop. 8 denies gays that right”, then as far as legal analysis goes, we’re done. SCOTUS won’t have to ask if homosexuals are a protected class, what level of scrutiny is appropriate when it comes to discriminating against gays, and so on.
The thing is, the Supreme Court probably isn’t going to say that marriage is a fundamental right, at least not when it comes to gay marriage. They might, but they’ll probably say something like, “We ruled in Loving that marriage was a fundamental right, but the Loving decision referred to marriage between a man and a woman, and marriage between two men or two women are different because it’s never been a fundamental part of American society while straight marriage has.” or something like that.
So, if the Supremes say that, which I think they will, it then goes into the question of equal protection and levels of scrutiny. And maybe they’ll say that discrimination against gays is subject to intermediate scrutiny, and maybe they’ll say it’s not And you’re right. If they say gays aren’t a protected class, that’s that. There’s no appeal, absent a Constitutional Amendment or a change in the makeup of the court. But that’s the way things go. You need somebody to say what’s a protected class and what’s not, and that’s SCOTUS’s job…to decide what’s Constitutional and what’s not, and it has been ever since John Marshall tried to get out of a tricky political situation by declaring a law unconstitutional and saying he couldn’t hear the tricky case. The Supreme Court has made some pretty boneheaded decisions before, and I certainly don’t agree with them all. If they rule that Prop 8 is constitutional, I won’t agree with that either and think that’s pretty boneheaded. But it is the way it is, and for whatever reason, people listen to the Supreme Court’s opinions and not mine. There’s no point getting upset about it.
When “marriage” was declared a fundamental right in Loving, what did that word mean? Did it mean that a man could marry 2 women if they were all consenting? No. And it didn’t mean that two people of the same sex could marry. The courts are now tasks with determining if the right is more expansive that it was in the past. Does it include other groups not originally covered? How do we define such groups?
True. Are you saying that to be fundamental, a right must be mentioned under the US Constitution? State constitutions can’t create fundamental rights in their states?
To “reasonably” regulate it. But this, says the aggrieved hunter group, is not reasonable.
Yes, the state COULD say that. But they haven’t, yet. SO are you saying the court can imagine possible reasons to support the law, even if the state hasn’t said them?
What I’m trying to get you to do is define, specifcally, what the analytical process should be. How do we determine whether ‘X’ is a fudnamental right? How do we evaluate the state’s reasons for a law?
Forget heterosexuals. Forget homosexuals. I’m asking you about a proposed hunting law. I’m asking you to define what you believe should be the role of the court in assessng the validity of the hunting law change.
I agree when the SCOTUS rules that is it till a constitutional amendment (fat chance) or some future court overturns it.
That the court can merely proclaim stuff and do some shady moves I do not deny and in the end we are largely powerless (not completely of course but let’s face it, uphill battle would be an understatement) to do anything about it.
I disagree we should just shrug and not be upset about it. If that were the case there never would have been a civil rights movement and Plessy v. Ferguson would still be the norm in the US.
While I am sure if the court rules in support of Prop-8 and DOMA and such they will write a rationale for it. To me however the emperor has no clothes. They can say he does and everyone will have to abide by it but the emperor is still naked.
Right. If the court rules in support of Prop 8, you won’t like it. Neither will I. But absent armed revolution, we have to then do what the people pushing for black civil rights did, which is, try to get it overturned by a later court and try to work on a legislative solution. But what I’m saying is don’t confuse result with process.
If you say men can hunt but women can’t you have a problem. If you apply a law that affects all hunters then fine (could even get more granular and distinguish deer hunting from quail hunting if you want).
What does marriage as a fundamental right mean anyway when we are talking about the state?
I can live with anyone I choose (presuming the other person is ok with it). The state does not care. I can be in a committed relationship with that person. I can raise a family with that person if I want. I don’t even have to be married in the eyes of the law.
What the state does do is grant a plethora of benefits to those who get married. The state is currently saying, “You get these benefits, that other person doesn’t.” There is however no fundamental right to a tax break because you are married.
Why should the state choose between various groups? The state does not distinguish marriages on any other criteria I can think of. Not age (beyond barring it to the very young). Not religion. Not race. Why then discriminate on sexual orientation? There is no rational reason they can put forward to do so. The best they’ve got is tradition and so what? Slavery was a historical fact for most of human history. Doesn’t mean we should use that as a reason to continue it today.
Homosexuals have as much need of the benefits the state grants to the married as heterosexuals do. If the state grants a benefit then grant it to all. If the state does not want to grant the benefit then deny it to all.
Well, you’re just assuming away the entire case based on your opinion of what is rational and what is not. Rational people can—and for hundreds of years have—differed on whether homosexuals should be allowed to marry. That’s why this trial judge took such pains to create a finding of facts that appeals courts will be loath to revisit.
Yes, this was the rather frustrating position we sodomites found ourselves in after *Bowers v. Hardwick, *where the Supreme Court said that homosexual conduct was outside the penumbra of constitutionally protected privacy because, well, because it always had been. Just because. One of the most amazingly circular opinions ever.
Oh, really? What was their “rational” reason for doing so? I see no reason to think that they had any more rationality behind their opinions than present day bigots do.
It’s not a game. You have rejected the existing analytical framework, and I’m trying to determine what your proposed replacement is.
I suspect it’s going to turn out to be, “I don’t have any rules; I just know the right result.”
But let’s see. What you’ve said is pretty straightforward: the court in your ideal world should simply ask if all hunters are affected equally by the law. Since they are, the court upholds the law.
That fall, an 11 year old boy accidentally shoots a jogger while trying for a deer. That spring, the state legislature amends the hunting laws to require that a hunter must be at least 14 years old.
The next fall, a 12 year old boy is cited for hunting in violation of the age limit. He and his parents fight that charge, asking the court to declare the law void.
The court applies your rule, and notes that the new law does NOT affect all hunters equally.
I think it would be nice if they used their own stated framework. If they do I think the result is a foregone conclusion in favor of SSM.
I have spelled out the thinking in this thread at length.
Hunters do not fit any of that framework.
What you are on about is them just saying, “Nope, not a protected class. Why? Because we said so. That is why.” You seem ok with that. They need no reasoning. Just because it didn’t used to be that way (historically) is sufficient.
No, we have a balance of power by design in the US.
Yes the legislature writes laws.
It is also the appropriate place for the courts to read those laws and interpret them or deem them improper. This is the role of the courts. The legislature is not infallible (none of the branches are) but each is a curb on the other. This is as it should be. Seems it is only legislating from the bench when you do not like the results. If it is finding a right to self defense in the 2nd amendment that’s peachy and proper. If it is finding it inappropriate to treat homosexuals the same as heterosexuals then it is legislating from the bench.
As to when the federal constitution forbade the states to deny SSM I’d say July 9, 1868.