Ooops. My profound apologies; as I was writing the post I kept wondering how it was you had managed such an error. :eek:
Okay I was wrong. I can admit it. Part of the problem was my lack of research and the fact we did not cover such cases in Con Law.
I will say, however unfortunate, that Justice Kennedy’s reasoning probably does give homosexuals a viable argument to be “married” under the Due Process Clause of the Fourteenth Amendment.
*If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. *
Now I realize the denial of marriage does not “criminalize” homosexuals or lesbians. However, you can be sure some crafty lawyer will seize upon this reasoning and argue the unavailability of “marriage” to same sex couples places upon them a stigma and this “stigma” was persuasive enough for the Court in Lawrence v. Texas to decide it on Due Process grounds as opposed to Equal Protection grounds.
Clark v. Jeter, 486 U.S. 456, 461
Just FTR, “strict scrutiny for fundamental rights” generally involves convenient bootstrapping: you first have to declare a right “fundamental” – generally without support in the constitutional text, else you’d be turning to other constitutional provisions for support – and only then do you get the elevated level of scrutiny. Which is why I generally disagree with those opinions.
See, for example, the case O’Conner cited to in Clark v. Jeter – Harper v. Virginia Bd. of Elections. Pay careful attention to the dissents, particularly Harlan’s. I think he hits the nail squarely on the head.
(Jeter is an intermediate scrutiny case, FWIW – that middle tier is applied to illegitimacy as well as gender).
Lawyers. I swear.
An issue about people, their needs and loves, thier desire to be held respectable and worthy by the community at large, to have thier humanity justly recognized…
And you take off on a tangent of legalese, stark staring decisis, as though the mechanisms of Justice were the thing itself.
C’mon guys, get real. This is about people, dammit, not dry and austere arcana. You may be able to find perfectly sound law school reasons why injustice and prejudice should prevail.
But why would you want to, save as an empty and sophistic display of morally nuetral intelligence? We got machines for that.
Actually, it’s about real tax breaks and financial preference. Anyone can go down to the local Church of Our Lady of the Rainbow and marry their same sex partner. Anyone can go down to a lawyer’s office and have a legal document drawn up so you can visit your gay partner in the hospital. And if you think the anti-gay marriage crowd is going to respect gay marriages if a law is enacted, you’re out of your gourd.
We’re not really talking about a “right” here in the strictest sense of the term-- ie, somthing that doesn’t have to be provided by someone else. In that sense, no one has a “right” to be married, whether they’re gay or straight. We’re talking about access to government goodies.
Now, I think a strong case can be made that one group of people should not be denied access to these goodies just because they’re gay. But let’s at least be up front about what we’re talking about.
:: applauds ::
Whoa, hold up, there, John. If I read you correctly, you seem to be suggesting that the legal benefits of marriage are available to…unconventional persons…simply by filling out a few forms. That is, to say the least, not my understanding. If you’re right, and I’m wrong, I want to know that.
For instance, much has been made of spousal benefits from Social Security. I seem to recall that such benefits are available to those considered to be wed by “common law” statutes, that is, a hetero couple who simply lived together for a required amount of time.
Now, if such benefits are denied a homosexual couple who have lived conjugally for a given number of years, doesn’t that mean that they are denied benefits not because they lack a certified marriage, but simply because thier uncertified marriage, no different from a common law arrangement, involves homosexual persons?
And isn’t that, to use the precise legal terminology, No Fair?
i think if you take a look at the arguments presented by the lawyers here, you will note that they are on the same side we are. except that they do believe that the mechanism is important.
after reading about the history of civil rights rulings in this country, i’m beginning to agree more and more. this mechanism for justice can be, and has been, used just as often for what i (and i suspect you) would call injustice. enough examples have been given on the boards in the last few days (dred scott being the most infamous), but, in cases of law, where you are just as likely to deal with bigoted asses as you are open-minded people, i think the mechanism is about as important as the justice it bestows.
Because law exists for a reason. The PROCESS exists for a reason. In your world, we could simply have one law: DO THE RIGHT THING. (Or, perhaps, if that’/s too commanding: DON’T DO THE WRONG THING.)
This would make life easy. No need to remember fancy code sections. Anyone accused of a crime is, after all, violating Code § 1.0, having allegedly done the wrong thing. Anyone sued in tort or contract is accused of having done the wrong thing in a civil sense, or having done the wrong thing to your parties in contract. And all you have to do is go in front of a judge and explain why the accused’s thing was wrong. The accused can explain why what he did wasn’t wrong.
In essence, that’s what you’re arguing for. Words, meanings, precedent - they are all smokescreens, lawyerly bullshit. We just want a world where people do the right thing. Under your system.
So how do we go about determining “the right thing?” If we had a monarch, it would be easy: whatever the monarch says is the right thing, is the right thing. Period.
This works out great as long as your theoretical monarch is benevolent.
But since we cannot assure ourselves that our monarchs will always be wise and benevolent, we can’t live by the DO THE RIGHT THING law, Code §1.0. In this country, we elect leaders, and entrust them to develop and maintain a supreme federal law, supreme state law, and other laws made pursuant to those supreme laws. We agree to accept the results of that system, even if we would have done it differently, because each of us has no greater right than any other of us to demand that our own ideas be given preference.
In short: we use the process because we have no single, trusted authority that we can all vest with the power to make decisions in all areas.
I don’t disagree with much of that Ram, save for the last clause in the last sentence. But enough, I don’t want to face charges of conspiracy with intent to hijack. I suppose, maybe, its all to the good that the legal profession doesn’t draw its recruits from the idealistic. I suppose. Maybe.
A more inaccurate statement may never have been made on this board. There are many people who get involved in the law as attorneys because of their idealism. Indeed, quite a few branches of the law have such demands placed upon them that only an idealist puts up with being involved in such areas; the practicalists find something else to do.
As an example, I used to represent employers in workers’ compensation cases. Most of my brethren were involved in their jobs because the compensation was good. But the humble attorneys working the other side of the fence (the side of the injured worker) were almost all idealists, people who couldn’t stand to see individuals chewed up by a usually faceless bureaucracy. The weren’t paid well (usually 10% of the eventual permanent disability award, and nothing from the ongoing medical, rehabilitation and temporary disability indemnity awards they often secured). Whereas I usually had only 100 - 150 cases to deal with, they would often have 700 or more at a time. They worked at least as many hours as I did, and had to spend most of every day at the “courthouse” (in California, a quasi-judicial Board office). Trust me that none of these people was in it to drive a Jag.
Then there are those whose ideals are not what one would call “liberal.” Many such people end up being the backbone of prosecutorial offices across the nation, often in out of the way places where there aren’t fancy courts, sensational cases, and lots of media to which they can pander. They become just as important to the system as the public defender who sits across the aisle.
So take back that nonsense about a lack of idealists. Just because the “idealists” involved understand the need for a process that attempts to weed out unfairness doesn’t mean they aren’t as aware of the “human” aspect as anyone else.