What’s missing from the Prop. 8 debate, IMHO, is an ackowledgement of the elephant in the room, viz, the religious motivation of those who voted for the law. Everything I’ve read (polls, etc.) says this was a huge part of what they were voting for. Yet, we all know it’s not okay to establish a state religion, even if it has the support of the majority. Where it gets interesting and difficult is when a majority votes for a law largely on religious grounds, without establishing a state religion as such. I wish we had a constitutional doctrine to deal with this problem, but AFAIK we don’t.
Before I get into this, I want to make it clear that I’m making a legal policy argument (that is, what the law should be) rather than a strictly legal argument.
I think it’s fair to ask, when a rational basis argument is being proffered, if the actions of the state are consistent with any of the reasons being offered. In CA, sexual orientation is a suspect class subject to strict scrutiny. But even prior to that, either because of legislation or judicial ruling, sexual orientation had been equalized in a number of areas in CA.
Furthermore, CA is a community property state, and it has equalized gender roles within straight marriages for a few decades now.
Because of all this, any possible reason you could offer up for this type of discrimination have been undercut by the state of CA’s own actions. That is, you can’t rationally relate the prohibition on same-sex marriage to a legitimate government interest, because the state has already decoupled all of the potential legitimate interest arguments from straight marriage.
Here’s an example of what I mean. In CA, for quite a long while now, sexual orientation, in and of itself, cannot be used to determine fitness for raising a child. Yes, if someone is providing a harmful environment, that can be used to deny custody. But the fact that they are homosexual alone is not sufficient to deny custody.
So, if you want to argue that the state has a legitimate interest in providing a stable environment for children, and that’s why same-sex marriage should be illegal, then I would argue that the state of CA has already decided that sexual orientation is irrelevant to providing a stable environment for children.
And if you want to argue that the state has a legitimate interest in preserving traditional roles in marriage, then I would point at the equalized gender roles that exist today and say that the state has already abandoned traditional roles in marriage.
My argument here is basically that you shouldn’t allow the left hand to do one thing and the right hand to do a contradictory thing and then claim rational basis. You have to be consistent in the legitimate state interest that you want to argue. And it’s fair to point at other actions of the state and use that the undercut the legitimate interest that’s being argued for.
Not true. I concur in the result in Heller, but I don’t endorse a "right to self defense.’ Who said I did?
You may think it’s fair to ask that… but that’s NOT, in fact, the way the actual rational basis test is conducted.
Yes, but in California, the constitution also explicitly authorizes the state to forbid same-sex marriages. You’ve built a whole argument on inferring how California actually feels about rights for gays based on thier other actions, but there’s no question that as a matter of state law, Prop 8 is valid.
You may think it’s fair to say that… but that’s NOT, in fact, the way the actual rational basis test is conducted.
I already stated very clearly that I was not making a legal argument. It’s at the beginning of my previous post.
I never denied that Prop 8 is valid under CA law (obviously it is). You were asking theoretical questions in this thread asking how a standard should be formulated. I have given you my preferred way to formulate this standard.
My bad for poor writing. I tend to flip back and forth between addressing you/your question directly and speaking in general. I should have written more clearly to note it was not addressing you in particular as regards Heller.
That said I think we all, you and me included, will cry foul and judicial overzealousness (to paraphrase broadly) of the court when it is a law we do not like.
You did. My bad. For some reason I completely took the opposite meaning out of that first sentence.
But that’s just it… I don’t.
I may cry, “I don’t like it,” but you won’t hear me cry ‘foul’ or judicial overzealousness for a decision I simply don’t like. I didn’t like Kyllo. But I recognized that it was the result of the correct analytical process, and it just reached a result I didn’t like.
I concur they Court is not likely to find a fundamental right for two adults of the same sex to marry, for reasons I have noted previously in this thread.
However, although the Court says this does not suggest they will go to an Equal Protection Claim and analysis. What you are ignoring is the anomaly of * Lawrence v. Texas*, which found a liberty interest protected by the due process clause of the 14th Amendment, although this liberty interest was not a fundamental right. The Court may take this approach and find there is a liberty interest here, protected by the due process clause of the 14th Amendment, despite the fact it is not a fundamental right. Then, they could apply rational basis “with teeth” and render Proposition 8 unconstitutional.
Do you have any newspaper articles from July 10, 1868 with quotes from various politicians celebrating the fact that from that day forward gays can marry in the United States?
If not, then maybe that amendment didn’t do what you think it does?
Can you point to the provision of the Constitution which prevents the Federal government from segregating schools in Washington DC?
FYI, that issue was decided by the Supreme Court the same day as the original Brown decision, in the case Bolling v. Sharpe, 347 U.S. 497 (1954). They rested the decision, controversially, on the Fifth Amendment’s due process clause. For more info, see Wiki.
I don’t understand the Perry decision, probably because I don’t know very much about law. Also, I’ puzzled by many of the arguments made in favor of the ruling. Supposedly some right is violated by Prop 8 but I can’t figure out what that right would be, let alone if it is protected from state infringement by the USC. It seems like if Prop 8 passes then every unmarried adult can legally marry an unmarried adult of the opposite sex to whom that adult is not closely related. That doesn’t discriminate on the basis of sexual orientation, nor on gender, nor even on sex - the same rule applies exactly same to all people.
What do people think the violated right is? It certainly can’t be the right to marry whomever you want. Is it the right to marry someone with all of those qualifications except the one about sex? How could you see that specific of a right protected by the constitution? It certainly isn’t directly written. In fact, the only way I could see “traditional” marriage protected in any circumstance is appeal to the fact that marriage is a very important traditional social institution in our culture. There’s no standard of qualifications to marriage, some cultures just have different ones. The only thing any standards (except the age one perhaps) have on any others is that some are traditional, which is why appeal to tradition does seem relevant in this case.
I don’t think that gay marriage is a bad thing (in fact I support it), I just think it’s an example of some people wanting to change a social convention. That is, I see proponents of gay marriage as doing the same type of thing as someone who wanted to legalize 3-party marriages or as someone who wanted to ban marriage between first cousins in a state where it was legal to do so. I would go one way on some of these proposals and another way on others but there doesn’t seem to be any right at stake in any of them.
That’ sort of puts one in mind of Anatole France’s comment, though, that the law is fair because it prohibits both the rich an the poor from begging and sleeping under bridges. Under Prop. 8, gays aren’t free to marry. Technically, you’re right, they’re free to marry somebody of the opposite sex, but that’s a kind of Hobson’s choice. You have the law saying that opposite sex relationships should be treated differently than same sex relationships, which means, in effect, you’re treating gay people differently than straight people.
So how about this:
Do you think that doesn’t discriminate, because both whites & non-whites have the exact same rules – they both can marry only within their own race.
That was the law in many states of the US, up until 1967 and Loving v. Virginia. But now most people look at that as a ridiculous argument.
Let him answer it. He’s such an expert on the US Constitution, I’m sure he will be able to find the particular clause that prevents this. I’m sure he will also be able to point to the clause the restricts the government from preventing a woman from becoming a lawyer or a doctor. Because he knows everything there is to know about these subjects.
Why is there a fundamental right to marry, but not a fundamental right for homosexuals to marry? Do we define rights simply by who gets to enjoy them? Is there a right to free speech, but not a right for homosexual free speech? Is there a right to the press, but not a right to homosexual press? The right to “private conduct” with a consenting adult of the opposite sex, but not a right to “private conduct” with a consenting adult of the same sex? Maybe some day we’ll move past “I don’t like THEM kinds of people” being a “rational basis” for those distinctions.
Can we explore the standing issue here? I thought about creating a new thread, but maybe this will work.
Did the Prop 8 supporters at trial have standing at the trial?
If they did, what was the basis for that standing, and why does that basis vanish on appeal?
If they did not, then wasn’t the trial itself improper, and shouldn’t the result be vacated?
I never claimed to be an expert. I do think that in several instances the Supreme Court has horribly overstepped their authority. That’s my main problem with the idea of stare decisis when there are too many rungs in the ladder. You build case law upon older case law and it comes to a point that the decisions that are being made are so out of touch with the original intent and text of the constitution as to make it absurd. Freedom of religion is the number one offender in that respect, commerce clause a close second.
First, let’s get it right out that I fully support integrated schools, interracial marriage, and equality for women.
That being said, Brown and Bolling were two of the most contrived decisions that the Court has ever reached. They used the 14th amendment as justification for banning segregated schools when the very Congress that passed the 14th amendment provided for segregated schools in Washington, D.C. To use the 5th amendment due process clause is even more contrived.
If the 14th amendment would prohibit the states from disallowing women to become doctors and lawyers, then why was the 20th necessary to give them the right to vote? Why did many states prohibit women from serving on juries until the middle of the 20th century? Why was the Equal Rights Amendment necessary?
Loving was also well-intentioned, but misguided. States had prohibited interracial marriage since the founding. The text of the constitution didn’t change and if change is to come, the people through their elected representatives must bring about that change, not nine unelected elites sitting in Washington.
It dismays me to see so many people gleefully rooting for SCOTUS to provide that the 14th amendment mandates that all states must provide for SSM. This expansive view of rights and the constitution can just as easily be turned on its head.
If you no longer look at the text of the constitution and the original meaning behind the words, you open a blank slate for any future court to restrict your rights to nil based on some fuzzy “evolving standards” doctrine. Ok, so far they seem to be granting more rights. Great, but the power to do good is also the power to do evil.
Here’s a 2003 Brigham Young law review article by Doyle Byers that looks at the requirement for intervenors to have standing and the implications for appeals.
http://www.allbusiness.com/legal/1070770-1.html
Here’s an excerpt looking at the 9th Circuit’s position. Please note, the reference to “Perry” in the excerpt obviously doesn’t refer to Perry v Schwarzenegger, but instead the 6th Circuit case Associated Builders and Contractors v Perry (although Yniguez v. Arizona does have a fact pattern similar to this Perry also):