I am not saying he is a bigot, I am just saying it is very easy to conclude he is one. The facts of the matter are that in the two pitting I am skipping between, reading, I pit anti-gay-marriage rhetoric! and What are you getting out of all this, Bricker? he claims not to a bigot. However, the sheer number of responses he puts forth against the current state of trying to achieve gay marriages is quite suspect. If I were to claim to be christian, (I am not) but turn out post affter post criticizing that religion, then people would be correct to suspect my claim of being a christian. I can have all the respect, and love for christianity anyone can ask for, in my private life, but if I do not articulate it online, then people are liable to label me a non-christian. Also, it does take much to claim to be in favor of gay marriage, when in fact believing no such thing. This would not be the first time someone has lied online. In addition, many people, who are quite clearly bigots, in RL use similar arguments. What sort of conclusion would you have me draw?
Aye. You can take your time; I’m not going anywhere.
Well, actually, I am going back to Williamsburg tomorrow, but I’ll have internet access there, too.
What does that have to do with the price of tea in China? It’s not a good way of insuring that only breeding pairs marry, but surely you must concede that it is better than no way.
Hell, even if the Fife and Drum Corps is unique, that does kind of blow your “All teens are immature” theory out of the water, doesn’t it? I mean, here are a group of young teenagers who, as a general rule, displayed more emotional maturity than the rather goofy adult tourists who followed us around and asked us really silly questions. You do concede that there is nothing inherently stopping teenagers from being emotionally mature, yes?
Of course, if you do, I’m going to start throwing credit card debt and other such figures at you until you either concede that emotional maturity does not necessarily correlate with safe driving habits, or admit that we need one hell of a better testing system.
Er, are you arguing my point that if you treat teens like adults, you’ll mostly get adults, and if you treat people like children, you’ll mostly get children? I mean, I’m not saying you said that. I’m saying that, because you’re saying the opposite.
Perhaps you are claiming that you didn’t say that you know that every single teenager is an immature, petulant child who shouldn’t be trusted with string, let alone a car? Well, a few posts ago, you claimed that if one wished to learn the difference between emotional maturity and lack of emotional maturity, one only needs to spend a bit of time around an arbitrary group of fourteen-year-old boys. Perhaps you were meaning to hold them up as paragons of enlightenment and restraint that would put Mr2001 to shame. If so, my apologies for the misunderstanding.
Emphasis mine, and you’ve proved my argument. I’m not arguing against same-sex marriage at all. I’m arguing against judicial imposition of same-sex marriage.
Perhaps this will convince you - here’s a practical reason:
If the courts, insteda of the legislature, impose gay marriage, the populace will feel that gay marriage is being forced upon them, and anti-gay-marriage constitutional amendments will gain traction. This is bad enough, because a constitutional amendment (which is the only vehicle to override the courts’ fiat) is very difficult to remove once cooler heads prevail… but it actually makes things much WORSE, because proponents of these amendments are also tacking on language that removes the possibility of civil unions as well, for no other reaosn than intolerance.
So pushing for judicially-created same-sex maariage is a BAD IDEA, because it will have bad consequences. Alaska and Hawaii learned that first-hand; both states had court decisions that essentially mandated same-sex marriage and both states adopted constitutional amendments prohibiting it. Many other states, alarmed by the prospect of courts ruling the same way, have pre-emptively adopted amendments that do the same. Indeed, Massachusetts has so far been spared that fate in large part because in Massachusetts, it takes three years, minimum, to amend the state constitution. But courts imposing same-sex marriage will create a backlash that will imperil a good cause, and, worse, hurt interim efforts to at least put civil unions into effect.
- Rick
No one claimed it was. Again, you are confusing “reasoning” with “rational basis”.
You are going to argue in favor of SSM based on history? Good luck…
Here are you just plain wrong, as has been explained over and over again in this thread re: the rational basis test.
Because one court gave a ruling you agree with, you ignore all the other rulings that went the other way. And let’s leave the “gay bashing” out of it. No one is “gay bashing” around here, and that is simply an appeal to emotion-- not good debating technique although proper and fitting for the Pit.
Are you totally blind to how the same arguments can be applied to any historical civil rights issue?
Well, I would point out, AGAIN, the process of analyzing Equal Protection claims.
Actually, no.
Let’s see if you have learned anything from what I’ve said. Quiz time:
In analyzing an Equal Protection claim for a law that creates a disadvantage based on race, what sort of scrutiny is used?
In analyzing an Equal Protection claim for a law that creates a disadvantage based on sexual preference, what sort of scrutiny is used?
Just so I’m sure, you agree that a law making procreative ability a requirement for marriage would be unconstitutional, correct? How does that apply to the dissents opinion that procreative ability is intricately tied to marriage? Doesn’t it kinda punch a hole in the argument marriage is about procreation if, in fact, such a limitation would violate the constitution?
As an aside:would you also agree then that the majority was correct in Goodbridge that a ban on same sex marriage violates substantive due process? Would you apply the same were you a judge?
Since we agree that the law in this arena is a mess, it’s hard to articulate. Personally, I am of the opinion that, based on Loving, Zablocki and the like, that marriage is a fundamental right, and, as such, any legislation regulating the same should be subject to, at the very least, intermediate scrutiny. Basing marriage solely on the ability to procreate would certainly violate that. However, I would go so far as to say that there is no rational basis for limiting civil marriage only to those who can procreate. As the majority in Goodridge pointed out, there has never been a requirement that a marriage be consumated, the state has long facilitated the procreation of non-married couples, and regulations on procreation itself have long been looked at with scrutiny.
And, just in case you missed it, could you answer my prior post:
First, I am skeptical about any sort of argument you might be leading me into. Second, can you elaborate what you mean by the above questions? I am not about to analyze a case for, or against the status quo, based upon your view of what is and isn’t equal protection. As has already been mentioned, your claim re: equal rights, and convicted murders, is quite silly.
You are confusing “real” with “invented”. A basis must have not only rationality but existence.
If there’s no history to support that the basis existed before the law in question was challenged, then it’s bullshit. You do know the difference between a true argument and a valid one from your study of logic, I trust? An argument can follow a valid format and still be based on false premises, and therefore fail. The premise that the purpose of marriage is procreation is an example of a false premise. The only premises the self-proclaimed protectors of Judicial Restraint here have been able to offer are false. Those “arguments” fail despite their superficially-valid formats. Get it now?
You’re now putting up the same strawman as Bricker. I am arguing in favor of equal protection under the law. It would help you immensely, when contesting a point, to try to understand what that point is.
More strawmen. I ignore nothing. What “rational bases” for discrimination have “all the other rulings” found? Or have they simply ducked the topic, just like you are?
If that’s all that’s left as a possible motivation once the rationalizations have been stripped away, what else is one to conclude? The issue, once again and slowly this time, is not “wanting same-sex marriage”. To insist otherwise, after it’s been explained to you patiently, is an “appeal to emotion” - one indistinguishable from, yes, gay-bashing.
I repeat: You’re better than this, normally. What’s happened?
Bricker, you remain guilty of exactly the same thing - refusing to recognize what the argument against you actually is. But hat’s being kind; we know you’re smarter than that, able to read simple English. But you, too, persist in mischaracterizing it in a way that leaves no remaining room for good faith. But, unlike John you’re not better than that, normally.
Scott:
There are posts in this very thread that lay out, in detail, the process of analyzing an Equal Protection claim.
I’m not asking you to accept my view as to the results. I want to know what PROCESS is used to analyze a claim that a law violates the Equal Protection clause. It’s been explained. Did you understand it? If you didn’t understand it, I’ll be happy to give it another try. But if you didn’t get it, it would have moved things along to simply say, “I’m sorry, but I don’t understand what you’re saying here.”
Again:
In analyzing an Equal Protection claim for a law that creates a disadvantage based on race, what sort of scrutiny is used?
In analyzing an Equal Protection claim for a law that creates a disadvantage based on sexual preference, what sort of scrutiny is used?
Not just the legal ones, either. Some of the statements we’ve been treated to here sound very much like “You misunderstand us totally. I have nothing at all against the Negroes as a race or as individuals. Why, some of my best friends are colored. But they shouldn’t be pushing us so hard. We’re just not ready for it, and they’re hurting themselves by forcing a backlash. They should just be a little more patient for a little longer, and maybe someday they can have the same rights as normal people.” That type of “argument” was bullshit then and it’s bullshit now and it will be bullshit always.
On the legal front, the bases for racial discrimination may not have been rational, but somehow rationalizations dressed in the clothing of history and tradition were always found, weren’t they? This is nothing different this time, nothing at all.
Not to speak for Dewey… but I think I’ve made my feelings on substantive due process pretty clear here before.
However, applying the principles of substantive due process to this question, yes, I’d say that substantive due process probably mandates same-sex marriage recognition. My problem with SDP is that it probably mandates just about any conclusion you’d care to advance. But that’s a debate for another time. But I’ll agree that applying SDP in its current incarnation would most likely lead to approval of SSM.
Even drawing an equivalnce to gender discrimination would mandate intermediate review, under which SSM restriction would fail. THAT would be more intellectually honest approach than declaring no rational basis.
Well, if you can post, you can certainly elaborate what you mean, in a few sentences. , as I requested in the post you quoted, but oh well. Now, I searched for the term " Equal Protection claim", the first time you used it, and found mostly threads where you consistently dodged the question, “Why should we err on the side of less freedom and equality?” I gave up looking, but now, I will search for the term by posts, not threads, and look up the term in wiki, rather then except it is what you claim it to be. Hmmmmm…
According to wiki, the usual ways of scrutinizing things are:
Now, all of them have holes in them to allow for the fact that the government might want to fight an issue, but still, they all sound good. What was the point of your requesting my looking this up, again? I see nothing in it that supports your claim.
Come to think of it, what the hell is your claim, anyway? I see no reason for me to post this, since you are simply rehashing reasons given before, and not posting a reasonable basis to deny rights. You have had the chance to do so, in countless discussions in past discussion. You also seem to carry with you a smug certainty. For example in… No, wait, what happened in the pit, stays in the pit, regardless of how much it resembles an actual debate. Anyway, in any given debate, it seems bricker will dance around issues he doesn’t want to answer, claim that only his reading of how a court came to decision is the right one, and never ever admit the possibility that the mass. decision could have been correct. Thus, I see no reason to answer any more of his question, until he answers those of others. No one here should expect any further answers in this thread from me, at least, until the next statement from bricker ignoring the actual question, which will likely rile me up. 
He has done that. Read the thread again.
But -
You are still making the basic mistake that John Mace pointed out.
“Rational” in this context does not mean “convincing”, or “unanswerable”, or even “valid”. It means something more like “following logically from a premise”.
You don’t have to accept “marriage is based on procreation” as a good or valid supposition. The distinction is that “therefore, gays who cannot reproduce biologically and therefore gay marriage won’t work” follows from the premise logically. That’s what they mean when they say it is “rational”. Not “right” or “correct” or “obviously true” - “rational”.
The basic issue, and the one that causes most of the contention about judicial activism, is that judges should not overturn laws or impose new ones just because the judges think it is a good idea. The only thing they should do is determine if the laws follow logically from a premise.
“Gay marriage is a good idea” is not a valid reason to overturn bans on the practice, or impose the practice on the electorate. It is a valid reason for a legislator to vote in favor of removing a ban on it or in favor of a law imposing it.
Do you see the distinction?
Regards,
Shodan
Lord knows what wiki has that I don’t have.
OK - wiki is right on the money.
They all sound good as an answer to my question?
Given the three levels of scrutiny mentioned in wiki, which one is appropriate for analyzing an Equal Protection claim for race? And which one is appropriate for analyzing an Equal Protection claim for same-sex marriage?
Finally… why is race analyzed differently than same-sex marriage?
Your example would be akin to pointing out that since black people have a higher rate of incarceration than other races, it is rational for the legislature to require all black people to register with the police. (before you start, yes I know racial classifications are subject to a higher level of scrutiny, but I submit such a law would fail even the rational basis test. “Rational basis” does not mean “whatever reason proferred”.
I would also submit that the extreme deference to the legislature advocated by Bricker and Dewey is inappropriate in this case. If you look at the Supreme Court opinions in City of Cleburne, Pyler v. Doe, and Romer v. Evans you can see that rational basis need not be as incredibly deferential as Bricker and Dewey posit it must be. With the infringement of such a fundamental right as marriage, the traditional mistreatment of homosexuals at the hands of the legislatures, and the lack of legitimate state interests in denying marriage to same sex couples, I have no problem at all finding a denial of SSM as not meeting the rational basis test.
Personally, I am more along the lines of a Stevens or a Marshall who would use a somewhat different test in equal protection cases than the formalistic ones laid out by Bricker. As Stevens stated in Cleburne: ““I am inclined to believe that what has become known as the [tiered] analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.” In my own approach to these cases, I have always asked myself whether I could find a “rational basis” for the classification at issue. The term “rational,” of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. Thus, the word “rational” – for me at least – includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign’s duty to govern impartially.”
Or, you can look at Marshall’s concurrence in Cleburne where he states: "I have long believed the level of scrutiny employed in an equal protection case should vary with “the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn.”
Now, I may actually agree with Bricker and Dewey that if the court applied the extreme deferential approach of the rational basis test found in some EP cases, pretty much any reason the legislature puts forth would be fine. Even if those reasons are, in truth, based more on hatred, disgust and prejudice than legitimate state interests,which, I think, denying SSM clearly is. You can continue to spew “procreation” and “child rearing” as reasons, but, if we’re going to be totally honest here, it’s really about prejudice against homosexuals. Putting that aside though, I think the legislation would fail the “rational basis with bite” tests outlined in Cleburne and the like. And that determination can be made without being labelled “activist”.
Oddly enough, I disagree. The judicial branch should not be a complete rubber stamp of any legislative action that follows “logically from a premise”. The judicial branch has a constitutional duty to act as a check and balance on the actions of the legislature, especially when those actions act to install the tyranny of the majority on the rights of the minority. I have absolutely no problem with the judicial branch protecting homosexuals from the irrational hatred of the majority, especially when they infringe on such a fundamental right.
I can also see the difference between “Gay marriage is a good idea” and “Denying gay marriage violates Equal Protection” (and Substantive Due Process, of course). Do you see the distinction there?
It doesn’t strike me as extreme. It strikes me in many instances that any level of deference to legislatures who decline to give some folks what they insist on so vehemently would be classed as “extreme”. YMMV.
I realize you are probably not addressing people like Bricker and Dewey here. Or myself, perhaps, although that is less important. But if you decline to engage anyone who refuses to try to establish gay marriage “by any means necessary”, it strikes me as a form of ad hominem. And, frankly, since proponents of gay marriage seem to be in the minority, I don’t know that insulting the majority is a good way to persuade them of the righteousness of your cause. Again, YMMV.
Perhaps I do, perhaps not. Perhaps we could find out.
I think in the first case, SSM proponents are saying that gay marriage is a good idea, and that it is the right of any judge to impose whatever he likes on the populace if he decides it is a good idea. I think we might even agree that this is a dangerous principle to establish for those who value the rule of law over the rule of judges.
If it is the second case that must be established, no problem. All that is necessary then is to highlight where in the text of the Constitution, or perhaps also in the published thoughts of those who wrote and those who ratified the Constitution, where it is made clear that “equal protection” and “due process” was intended to include gay marriage. Once this has been clearly established, we have made our case. “Equal protection” really means “gay marriage” (among other things), and did mean so all along. It is only now, a couple of hundred years after ratification, that the obvious has been made clear. And everything is fine.
However, of course, when it is pointed out that there is no such language anywhere in the text, and no indication that the Founding Fathers meant any such thing, we are left with the idea that we are trying, not to bring out anything from the Constitution, but to put it in. We are attempting, in other words, to establish a new right.
Which is perfectly legitimate, under the Constitution. The Ninth Amendment clearly states that this is possible. The Constitution even goes on to state clearly how new rights become established, and it is there that the proponents of gay marriage run into difficulties.
The duty and privilege of establishing new rights is reserved exclusively to the states, or the people. Not - not - to the courts. And therefore, should you wish to establish a new right to gay marriage, or a new right to anything else, you do so thru the states or the people.
So you need to get the state legislature, Congress, or a national referendum on your side. Or convene a Constitutional Convention, and add a new amendment. But if you petition the courts to do it, you are barking up the wrong tree. And, as Bricker points out, the harder you try to ram this down the throats of those who clearly don’t want it (as the nearly universal rejection of gay marriage amendments in the recent election seems to demonstrate), the more likely you are to push an over-reaction that will make it unlikely to have anything resembling gay marriage or civil unions for the next fifty years.
Process is important. More important, in most cases, than the urge to get what you want when you want it and damn the consequences.
I still retain enough charity to hope that the ones who want to overrule the Constitution never find out what it is like to have a court packed full of people who will tell you how to live your life or what to think, and in a large enough majority that you can do nothing but put up with it.
Regards,
Shodan
Higher than average claim rates, due to a lack of driving experience.
Then they can get married once they change their minds, right? No reason for them to get married this year if they aren’t going to have children for several more years… unless procreation really isn’t the basis of marriage after all.
No more so than “Do you swear to tell the truth, the whole truth, and nothing but the truth?” Or, more to the point, “Do you swear that you are not currently married to anyone else?” Even if someone lies, the point has been made that procreation is a legal requirement for marriage, and anyone whose lie is found out later can be prosecuted for fraudulently obtaining a marriage license.
Pray tell, why do you suppose there is a ban on same sex marriage? Why do you suppose there is so much current legislation working actively against same sex relations? If you believe that people are put off by same sex marriage because there is no chance of procreation, I would submit that you are daft. Get it out in the open here, SSM, sodomy laws, and amendments outlawing anti-discrimination laws against homosexuals are in place simply because a majority of Americans don’t like homosexuality and they’re willing to use the power of the government to put that hatred into law. I fear you are deluding yourself if you think that the ban on SSM is anything more than fear and dislike of homosexuality.
And a couple things about your word choice: I do not advocate gay marriage “by any means necessary.” I would be appalled if the 143rd division of the gay paratroopers invaded our country and forced everyone to accept gay marriage. However, I do not have a problem with the judicial branch exercising it’s constitutional powers. And attacking the majority for the reasons behind the ban on SSM is not the same as attacking the majority for being the majority, hence I do not beileve it is a ad-hominum. I’ve been waiting for years for “the majority” to provide a good reason to treat homosexuals differently than other people. I have yet to be convinced, but I remain open to any reason you can suggest.
I am not advocating that judges can do whatever they wish. The judicial branch, like the legislature, must act according to the Constitution.
So your position is consistent and you would disagree with the judicial protection of any right not found in the text of the Constitution or in the writings of those who ratified the Constitution? Those are the only places where rights can be defined. You are, of course, entitled to your opinion on that matter, however, I will point out that I disagree, both on constitutional and policy grounds, with your position. And, oddly enough, Courts have agreed with me more than you.
I think it is poor policy, and sloppy thinking, to demand that “equal protection” be limited only to what was considered 100+ years ago. Is it your opinion that Loving. which struck down anti-miscegenation laws, was judicial activism?
No, we’re not. We’re trying to interpret the Constitution without being strictly bound by the limited ideals of people dead over 200 years. And Goodridge was not about finding a new right in the Constitution, but rather enforcing one that was already there, and recognized by the Supreme Court, in Loving and Zamblocki.
Wrong. I am entirely unconvinced that only the legislature can determine what can be protected by the Constitution. Not only do I believe you are incorrect as a matter of law, but I think your position is very poor public policy.
No, we’re asking the courts to do their Constitutional duty to protect the rights of the minority from the irrational prejudices of the majority. Sheer numbers does not make bigotry any more paletable.
It was wrong when Bricker said it and it’s wrong when you say it.
Yeah, damn those people wanting equal rights. They should know their place and let the vocal right wing minority dsicriminate against them.
Process is important. Like allowing the judicial branch to exercise it’s Constitutional power to protect those who cannot protect themselves.
You have an incredibly annoying habit of redefining whatever is said and spinning it to fit your own perspective. If your argument cannot stand on it’s own, don’t simply label my as one that wants to “overrule the Constitution” or raising the spectre of Big Brother. It’s unfair, cheap, and, I had thought, below you.
And, as an aside, I’ll point out that you’ve being losing the argument against Substantive Due Process for about 100 years now.
I saw you palm that card!
There is no aspect of rational basis analysis that permit a greater weighting based on the proposed right in question.
This is certainly not a crazy view… but you’re quoting dicta, not law. It’s not presumptively unreasonable to propose yet another level of scrutiny, but it’s not the law.
For that matter, why not simply declare that classifications based on sexual identity or expression require intermediate, or even strict, scrutiny?
By the way – Massachusetts’ rule is that a proposed amendment must be approved by two successive sessions of the legislature and then put to a public vote. Massachusetts has already formulated an amendment that would ban gay marriage, and that amendment has passed the first legislative session. Assuming the second section of the legislature also passes it this year, the voters will speak their minds directly in 2006.
If the amendment becomes law, it won’t be nearly as disastrous for the cause as other states’ amendments are, since it will expressly permit same-sex civil unions. But it will also definitively close the door on marriage, beyond the power of even the most clever jurist to rescue.
Is that a good result?