Judicial activism is a good thing, unless you disagree! And how long have we had it?

[Huerta88]

@Homebrew

Also what’s the rationale that SSM bans don’t fail the Lemon test? It seems fairly clear that their basis is religious.

No. Being consistent with or inspired by religious beliefs does not make a law violate the Establishment Clause. That is a good thing, or we’d be without most of our criminal statutes.

My brief paraphrase of Lemon: A challenged law that appears to relate to religion (importantly, it’s far from clear that you’d get past that prima facie threshold here), to be sustained following such prima facie showing by plaintiff:

1. must have some secular, or non-religious legal purpose.

Civil marriage is distinct from religious marriage. Many atheists and agnostics avail of the benefits of civil marriage. The state has decided that there should be rules as to what categories of person should be allowed a secular or non-religious marriage. These have to do with many perceived social benefits/harms: the age and discretion of the parties, the llikelihood that recognition of the civil marriage will aid or injure society, the advancing of family interests. All of these obtain without regard to the religion of the parties being married. You may not agree with the secular policies regarding the sex of the parties who can be married, but that does not make it a non-secular policy, any more than the age-of-consent-to-marriage laws are non-secular because some religion may have similar rules on age for marriage.

Besides, what are we to make of the “Christianity isn’t really inconsistent with homosexuality argument,” or the non-churchgoing “reactionary” people who oppose “gay marriage” out of distaste for the “gay lifestyle?” Clearly, even if these policies are consistent with certain religious doctrines, they are also inconsistent with other religious doctrines, and consistent with still other non-religious doctrines. In short, the law meets this test because it is meant to serve, and does serve, purposes beyond carbon-copying the peculiar and purely-religious doctrine of one sect so as to elevate it over that of others.

2. must neither promote or inhibit the practice of religion.

No brainer here. The law doesn’t say that you have to be Christian, or that you can’t. Unless you claimed that your religion was sodomy, this law doesn’t really affect who goes to church or how they practice their religion at all.

3. must not must not foster “an excessive government entanglement with religion.”

No problem here either. The “anti SSM” policy doesn’t get the government involved with a religion at all, let alone entangled with its implementation. If the law were forbidding rabbis from performing religious “SSM” ceremonies, or requiring priests to perform them, then sure, it would probably fall afoul of this prong.

[Dewey_Cheatem_Undhow]

@ElvisL1ves

Huerta88, a little life advice for ya: When you’re full of shit, and the person you’re addressing knows it, it’s best to shut up.

And yet you continue to talk.

[Huerta88]

@ElvisL1ves

Huerta88, a little life advice for ya: When you’re full of shit, and the person you’re addressing knows it, it’s best to shut up.

It’s funny. I told you I had no more interest in talking law with you. That’s sort of like, well, “shutting up.” And your response was? Oh, that’s right.

My equally-unsolicited life lesson to you, in turn: practice what you preach, and try to resist the urge to throw out “gotchas!” declaring victory (look through your last five posts, for instance) against everyone who’s told you they’re abandoning the effort of wasting your time on arguments that you’ve shown yourself unqualified to evaluate one way or the other.

[Stratocaster]

@ElvisL1ves

Bricker, I already responded to your questions in a reply to Dewey. Scroll up. FTR, do you intend to reply to my challenge as to what case you would present against SSM in the Supreme Court? After all these failures/refusals on your part to acknowledge it, accompanied by some very unenlightening language I have to think you know there isn’t a good case - is that true? Is there one that comports with your acknowledged remarkably-flexible view of what your devotion to “strict constructionism” entails?

Are you kidding? Or did you miss his last post where he specifically responds to the problem with your equal protection “axiom”? He has made his “case” against your simple equal protection assumption quite nicely, I’d say.

Bricker, Dewey, and Huerta88–very enlightening, as usual. I for one would be very interested in an outline of how equal protection claims are assessed.

[Dewey_Cheatem_Undhow]

@Homebrew

Given Romer and the dicta of Lawrence, I’m not sure that surviving rational basis will be enough. Isn’t it plausible, maybe even likely, that a intermediate scrutiny test will be applied. It is, afterall, a sexually-based discrimination.

There is nothing in either case that suggests that result. Romer explicilty applied the rational basis test, implicitly repudiating the notion that a stricter test should apply. And the majority opinion in Lawrence – itself founded on due process, not equal protection – carefully carves out the marriage issue from its holding.

[Bricker]

@ElvisL1ves

Bricker, I already responded to your questions in a reply to Dewey. Scroll up. FTR, do you intend to reply to my challenge as to what case you would present against SSM in the Supreme Court? After all these failures/refusals on your part to acknowledge it, accompanied by some very unenlightening language I have to think you know there isn’t a good case - is that true? Is there one that comports with your acknowledged remarkably-flexible view of what your devotion to “strict constructionism” entails?

I’ll take this as a “yes” – you ARE interested in hearing the explanatin of how we analyze a claim under Equal Protection.

As earlier posts have suggested, a key element in analyzing Equal Protection cases is determining what class of persons is affected differently. As I said above, your idea that we merely have to look at whether or not all people are treated equally (The “Native Speaker of English” or “ElvisL1ves” Test) must fail.

@Tigner v. Texas

The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions. They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.

Different laws may create different classifications. These do not necessarily run afoul of the Constitution. Legislatures have broad discretion to craft legislation to accomplish thier goals. It is only when the classifications they have created are invidious that they are prohibited.

So how do we decide if a classification is prohibited?

Under normal circumstances, a test called the “Rational Basis” test is applied. This test asks, “Is there a set of facts that can be reasonably conceived that would sustain this law?” or “Is there some rational, conceivable basis for the law?”

This has been described as the test that’s impossible to fail. In general, as long as the government can articulate a permissible purpose, the law will be upheld, even if is not made with mathematical precision or because in actual effect it results in some inequality. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

There are cases in which we don’t use the Rational Basis test.

These case involve suspect classifications and fundamental liberty interests. When the government legislates in such a way that, say, clowns are discriminated against. we would review that legislation under the Rational Basis test. When the government legislates in such a way that one race is discriminated against, we apply a much higher standard called “Strict Scrutiny.” Clowns are not a suspect class. Race is. “Strict Scrutiny” starts with the presumption that the classification is invalid, and asks if there is an overarching and critical government need at issue, and if the classification in question is narrowly tailored to achieve that need.

There is also an intermediate level of review called, originally enough, “Intermediate Scrutiny.” This review requires both a showing of important governmental purposes and a close fit between the classification and the purposes in question.

So - to summarize what we have heard thus far:

[ul]
[li]Equal Protection cases use a specific standard of review[/li][li]That standard is NOT the “Native Speaker of English” or “ElvisL1ves” Test[/li][li]Under ordinary circumstances, a law is analyzed for Equal Protection compliance under the “Rational Basis” test[/li][li]If the law impacts a suspect class, it is analyzed under either an “Intermediate Scrutiny” or “Strict Scrutiny” standard[/li][/ul]

Are you with me so far?

• Rick

[Stratocaster]

Right. Wasn’t this logic part of Scalia’s distress over O’Connor’s equal protection position in the Lawrence case–i.e., the contention that the law had disproportionate impact on gays? This same (ElvisL1ves) logic could assert that anti-pedophilia laws are unconstitutional because they disproportionately impact pedophiles, singling that class of people out. “If everyone is not legally permitted to pursue the object of their sexual desire, than the laws are a de facto violation of equal protection.”

BTW, I disagree with prohibitions against gay civil unions, nor do I see gay sex as analogous to pedophilia except in the sense referenced (in the same sense heterosexual sex could be). I just don’t see how these prohibitions are unconstitutional. I don’t understand what rationale would permit SCOTUS to circumvent the laws established with the consent of the governed, even in instances where said consent leads to circumstances distasteful to the Justices involved. That ain’t their jobs, and it ain’t legitimately within their powers.

[ElvisL1ves]

@Stratocaster

This same (ElvisL1ves) logic could assert that anti-pedophilia laws are unconstitutional because they disproportionately impact pedophiles, singling that class of people out.

Absolutely, absolutely, false. Knock it off with the well-poisoning, please. I made it clear, several posts above, that EP is one of many competing rights that have to be balanced against each other. The right of children not to be victimized very obviously overrides any rights a pedophile might have. Is that crystal clear or are you still too pissed to think straight? If you wish to continue this line of “debate”, do so without misrepresentation and slander, toward anyone at all including me, please.

BTW, I disagree with prohibitions against gay civil unions, nor do I see gay sex as analogous to pedophilia except in the sense referenced (in the same sense heterosexual sex could be). I just don’t see how these prohibitions are unconstitutional.

There have been many gay marriage threads in the last year or so where that has been thoroughly discussed. You are, I trust, aware of the many legal rights and responsibilities that come along with marriage, and therefore you must also be aware that those are denied to a certain class of persons for which the “rational basis” test has not been applied. Take it from there.
Dewey, thanks for confirming that you also have no actual argument to offer other than vitriol, either. :rolleyes: Take it to the Pit or knock it off.
Bricker, I do know all that, despite your continued attempts to conflate process with content, but you’re still evading the point - there is no “rational basis” for excluding the class in question. There was no “rational basis” for your own state’s very recent antimiscegenation laws, either. Capisce, signore? I’ve asked you, perhaps too Socratically, for you to explain what your hypothetical keep-anti-SSM-law defense might be, and you have not done it because you apparently cannot do it.

Try this, then, if the topic of gay marriage simply pushes your button too hard: If you were Virginia’s AG, in the Supreme Court to defend your anti-miscegenation laws in the Loving case, how would you go about it? Would you say anything more than “It’s the law, it’s presumed constitutional, and I don’t have to say anything at all”? What might that be, and what is different in the SSM issue?

[Homebrew]

@ElvisL1ves

Try this, then, if the topic of gay marriage simply pushes your button too hard: If you were Virginia’s AG, in the Supreme Court to defend your anti-miscegenation laws in the Loving case, how would you go about it? Would you say anything more than “It’s the law, it’s presumed constitutional, and I don’t have to say anything at all”? What might that be, and what is different in the SSM issue?

He’ll reply that the 14th clearly sets up racial discrimination as a protected class and therefore must pass strict scrutiny and meet a compelling state interest rather than pass rational basis and only be a legitimate state interest. I have no idea how he argue that, though.

@Huerta88

1. must have some secular, or non-religious legal purpose.

Civil marriage is distinct from religious marriage.

This is where the SSM bans fail Lemon. There is no non-religious legitimate state interest in excluding homosexuals from secular marriage that meets even a rational basis test. Because the only goal reached by banning SSM is a religious one, the bans are an excessive engtanglement.

@Dewey

There is nothing in either case that suggests that result. Romer explicilty applied the rational basis test, implicitly repudiating the notion that a stricter test should apply. And the majority opinion in Lawrence – itself founded on due process, not equal protection – carefully carves out the marriage issue from its holding.

I think if you consider the evolution of the court’s rulings from Bowers to Romer to Lawrence, I think it suggests that the court is moving towards giving at least intermediate scrutiny protection to homosexual rights. Why do you think they shouldn’t use at least be given that protection? It is, afterall, a sexually-based discrimination.

[ElvisL1ves]

@Homebrew

He’ll reply that the 14th clearly sets up racial discrimination as a protected class and therefore must pass strict scrutiny and meet a compelling state interest rather than pass rational basis and only be a legitimate state interest. I have no idea how he argue that, though.

I know that; he’ll go into details about process while never answering the basic question that he, Dewey, and Huerta still avoid: what is that rational basis? But I’d still rather hear it from him, especially after all the irrelevant pedantry we’ve had here about process in lieu of actual arguments about substance. Thanks again for intervening, btw.

[Dewey_Cheatem_Undhow]

@ElvisL1ves

Dewey, thanks for confirming that you also have no actual argument to offer other than vitriol, either. :rolleyes: Take it to the Pit or knock it off.

Wow. You call Huerta full of shit and tell him to shut up, and somehow I’m the one offering nothing but vitriol?

@ElvisL1ves

I know that; he’ll go into details about process while never answering the basic question that he, Dewey, and Huerta still avoid: what is that rational basis?

Post #158.

Y’know, Elvis, you can’t plausibly say Bricker, Huerta and I aren’t raising arguments if you don’t bother to actually read our posts.

[Gorsnak]

Given that the rational basis test was failed in Romers, it seems odd to harp on how it’s impossible to fail. Clearly it is possible to fail, and anti-gay legislation has failed it in the recent past. If it’s so very easy to provide a rational basis for denying fundamental rights to gays, one would think that the Colorado AG could have come up with one.

BTW, aren’t higher levels of scrutiny triggered not only by suspect classes, but also by fundamental rights? Or am I thinking of something else here?

[Dewey_Cheatem_Undhow]

@Homebrew

He’ll reply that the 14th clearly sets up racial discrimination as a protected class and therefore must pass strict scrutiny and meet a compelling state interest rather than pass rational basis and only be a legitimate state interest. I have no idea how he argue that, though.

It’s a matter of framer’s intent. The 14th amendment was drafted to remedy the particular difficulties faced by blacks after the Civil War. Ergo, its equal protection clause is best understood as being a restriction on laws making racial distinctions.

@Homebrew

This is where the SSM bans fail Lemon. There is no non-religious legitimate state interest in excluding homosexuals from secular marriage that meets even a rational basis test. Because the only goal reached by banning SSM is a religious one, the bans are an excessive engtanglement.

Arguments from “traditional morality” and the like need not be religious in nature. One need not be a Jew or Christian to believe in “thou shalt not murder,” for example.

@Homebrew

I think if you consider the evolution of the court’s rulings from Bowers to Romer to Lawrence, I think it suggests that the court is moving towards giving at least intermediate scrutiny protection to homosexual rights. Why do you think they shouldn’t use at least be given that protection? It is, afterall, a sexually-based discrimination.

Well, as noted above, in a perfect jurisprudential world the 14th amendment would be limited in scope to matters of race. Expanding it to new protected classes goes well beyond the scope of what its authors were trying to accomplish.

And while anything is possible, I think there is more in Romer and Lawrence that suggests a result different from what you are envisioning that there is suggesting the opposite. I think you’re just seeing what you want to see here.

[Dewey_Cheatem_Undhow]

@Gorsnak

Given that the rational basis test was failed in Romers, it seems odd to harp on how it’s impossible to fail. Clearly it is possible to fail, and anti-gay legislation has failed it in the recent past.

Which is why I always try to preface that phrase with the word “virtually.”

Seriously, on the one hand you’ve got a mountain of cases where rational basis is satisfied with embarassingly silly arguments, and on the other hand you’ve got Romer and City of Cleberne and…not much else.

@Gorsnak

If it’s so very easy to provide a rational basis for denying fundamental rights to gays, one would think that the Colorado AG could have come up with one.

It’s one thing to come up with a rational basis for a new law that specifically cuts off local governance alternatives favoring a particular group. It’s another to come up with a rational basis for essentially leaving a millenia-old institution alone. I leave it as an exercise for the reader as to which is more difficult to come up with.

Remember, the test is “rationality.” That means you don’t have to find the argument persuasive, or that you agree with it, or even think it’s particularly strong. It only means it can’t be totally insane.

@Gorsnak

BTW, aren’t higher levels of scrutiny triggered not only by suspect classes, but also by fundamental rights? Or am I thinking of something else here?

Yes, but the cases doing so are very narrow in scope. Applying them here would be novel at the very least, especially given the fact that the state does impose restrictions on who you can marry (polygamy, incest) for reasons which are arguably neither compelling nor narrowly tailored.

[Gorsnak]

@Dewey Cheatem Undhow

It’s one thing to come up with a rational basis for a new law that specifically cuts off local governance alternatives favoring a particular group. It’s another to come up with a rational basis for essentially leaving a millenia-old institution alone. I leave it as an exercise for the reader as to which is more difficult to come up with.

Meh. The reasons given for the latter are the same ones given for the former. Colour me unimpressed.

Yes, but the cases doing so are very narrow in scope. Applying them here would be novel at the very least, especially given the fact that the state does impose restrictions on who you can marry (polygamy, incest) for reasons which are arguably neither compelling nor narrowly tailored.

I’d have to say that I think that protecting young women from being coerced into abusive marriages strikes me as being a compelling interest, but I freely give you the narrowly tailored thing.

[Blalron]

@Huerta88

Question begging. Something can’t “cease” being a right, or be discussed as such, until it “begins” being a right. Identify for me the time when the “right to ‘SSM’” came into being. If it is at the Creation Of The Universe And Time, well, good luck, you’ll need to convince your fellow citizens of that, rather than simply asserting so or telling a court it has to accept your divine assurance on this point.

The Supreme Court said it better than I do, so here’s what I think:

@Justice Kennedy

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Lawrence vs Texas

[Huerta88]

@Blalron

The Supreme Court said it better than I do, so here’s what I think:

Lawrence vs Texas

Right. And Justice Kennedy necessarily and infallibly spoke to the infallible and eternal (but ever-evolving!) meaning of the Constitution.

Unless you disagree.

As you didn’t and couldn’t single out the time when “equal protection” began to mean “pre-existing right to ‘SSM’” I will (taking a page from Elvis’s book, albeit with more justification) take it as a concession that the answer is . . . ten minutes ago, when Justice Kennedy was persuaded thusly at the Silver Springs Country Club Fall Fete.

Therein lies the rub.

[Huerta88]

@Homebrew

This is where the SSM bans fail Lemon. There is no non-religious legitimate state interest in excluding homosexuals from secular marriage that meets even a rational basis test. Because the only goal reached by banning SSM is a religious one, the bans are an excessive engtanglement.

You really don’t understand this.

First, you are wrong in asserting that there is no non-religious motivation for denying “SSM.” I have already pointed out that plenty of agnostic or atheistic people oppose either homosexuality or “homosexual marriage.” Unless you intend to deny that there can ever be a secular state interest that you deem “legitimate” for restricting “SSM” (which is back to the question begging), then you’re wrong, because the state and it’s religious as well as non-religious constituents believe there to be civil and secular reasons for defining civil secular marriage the way they have.

Second, you are wrong in invoking excessive entanglement. “Entanglement” is a concept founded in the concern originally animating the First Amendment: The problem of a state religion, a la the Anglican Church ca. 1776. “Entanglement” means that the government is getting directly involved in the affairs of the church (a la the government forbidding rabbis from “sanctifying” Hebraic “SSMs,” or inspecting the books of Methodist ministers to make sure they don’t “sanctify” “SSMs”). Or, that the church as an institution is getting directly involved in the affairs of the state (a la bishops serving as cabinet ministers to enforce Church policy). Since, fortunately, neither of these evils is occurring when the (secularly-enacted, secularly-enforced) policies on who may marry are applied, your assertion as to the second prong of Lemon is absolutely baseless. Secular authorities have denied legitimacy to sodomy and allied conduct (including, most certainly, any suppositious “gay marriage”), quite independent of the church, for centuries. If the secular authorities are operating independently of the church, and vice versa, then there is no “entanglement,” let alone “excessive entanglement.”

By the way, I don’t believe Lemon to be the best-decided law. But I’ve applied it by its letter, given that jurisprudential analysis is what we’re engaged in. It would be interesting to see those in sympathy with the judicial activism of the Court that wrote Lemon apply it as it was written, and not try to stretch it far beyond even the expansive bounds imagined by the Justices of that era. Which is another way of saying this is a silly argument to be having, and would be deemed as such by even the most left-wing law professor.

[Huerta88]

@Homebrew

This is where the SSM bans fail Lemon. There is no non-religious legitimate state interest in excluding homosexuals from secular marriage that meets even a rational basis test. Because the only goal reached by banning SSM is a religious one, the bans are an excessive engtanglement.

Do you not understand, even, the purpose of multi-pronged tests?

Surely it is not to say that “If prong 1 is met, then necessarily prong 2 is met?”

Put differently, do you not understand that “secular vs. purely religious purpose” is not determinative of the very separate issue of “excessive entanglement?”

If you do, how could you propose that satisfaction of prong 1 necessarily establishes satisfaction of prong 2? Wouldn’t that mean that there was, like, only 1 prong?

Silliness.

[Stratocaster]

@ElvisL1ves

Absolutely, absolutely, false. Knock it off with the well-poisoning, please. I made it clear, several posts above, that EP is one of many competing rights that have to be balanced against each other. The right of children not to be victimized very obviously overrides any rights a pedophile might have.

Yes, yes, I got that. The disconnect, it seems to me, is that you continue to accept as a given that gay marriage is a right that resides constitutionally upon “equal protection,” and that this right need only be evaluated against competing rights to determine if it should somehow be deemed the law of the land.

The counter to that that has repeatedly been bounced back–a compelling counter, it seems to me–is that your equal protection argument fails at the start. IOW, equal protection does not seem to mean what you think it does, and there is no obvious application of it for gay marriage.

Do you see the difference? It seems to me that you continue to come back with some variation of, “Since it’s a given that banning gay marriage is a violation of equal protection,” while ignoring the counter that tries to dispassionately show that this is NOT a given, not at all. Your point about competing rights was not missed, it’s simply not relevant unless you can make a strong equal protection argument.

Is that crystal clear or are you still too pissed to think straight? If you wish to continue this line of “debate”, do so without misrepresentation and slander, toward anyone at all including me, please.

Can we dispense with this bullshit? I’m not pissed at all. I just find the topic interesting. Everyone who disagrees with you is not a bigot, or a zealot, or close-minded, or slanderous. Get over yourself.

There have been many gay marriage threads in the last year or so where that has been thoroughly discussed. You are, I trust, aware of the many legal rights and responsibilities that come along with marriage, and therefore you must also be aware that those are denied to a certain class of persons for which the “rational basis” test has not been applied.

Can you explain why Dewey et. al. are wrong in indicating that “rational basis” is a tremendously low hurdle? Speculating before hand how this test will be applied, it seems to me, ought to reference how it has been used in the past. Isn’t that was our SDMB learned counsel has been trying to explain?