# Predict how the Supreme Court will Decide the Same Sex Marriage Cases **URL:** \ **Category:** Great Debates\ **Created:** [March 25, 2013, 6:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936 "2013-03-25T18:12:45Z")\ **Posts on this page:** 20\ **Page:** 16
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 30, 2013, 3:31pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/301 "2013-03-30T15:31:16Z")
> [@John\_Mace](#): > > Not just Scalia. IANAL, but it is my impression that learned legal minds are split on that issue, both here on this MB and IRL. And I don’t mean that in a creationist’s “teach the controversy” sort of way. Correct me if I’m wrong on that. You’re not wrong at all. One need only search law reviews or appellate court decisions to find the “morality as rational basis” debate is still raging. Personally, I have problems with the idea that the Constitution requires no establishment of religion, but allows for sinning to be the rational basis. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 3:51pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/302 "2013-03-30T15:51:55Z")
> [@Hamlet](#): > > You’re not wrong at all. One need only search law reviews or appellate court decisions to find the “morality as rational basis” debate is still raging. Personally, I have problems with the idea that the Constitution requires no establishment of religion, but allows for sinning to be the rational basis. I think “sinning”, in general, is not an issue of the law but “sinning” and “what we deem morally acceptable and legal” are not unrelated. There are all sort of laws that relate to some sort of morality that can be tied to “sinning” (most having to do with sex or nudity or pornography). Additionally, the procreation/parenting factor plays in as well. The state has an interest in promoting stable family lives for children to be raised in and same sex couples may not be the type of family life that the state wants to encourage. I don’t ascribe to those beliefs myself, but others might, and certain legislatures clearly do. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [March 30, 2013, 4:24pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/303 "2013-03-30T16:24:22Z")
> [@magellan01](#): > > Billdo, one thing that seems to be ignored is Walker’s bias. There is evidence of it in the portions of his explanation that you cited. To make the point, I offer here what he reasonably could have said—and should have said—when restating the views of the losing side. I made just minor alterations that simply changes the he way he frames the debate: (in italics) > > Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity\* is likely to result in\* pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this \*theents a positive _social norm that opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same sex couples’ sexual activity does not_—and cannot—\*lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite sex sexual activity. I don’t believe that the quoted section, a summary of the proponents’ position shows bias, and I don’t believe that your modifications change the conclusion at all. As Judge Walker lays out in his more detailed explication of the testimony later in the opinion, the only real distinction that proponents’ witnesses pointed out (other than improper religious concerns) was that in a heterosexual marriage the couple could procreate through sexual activity. Indeed, David Blankenhorn, the proponents’ main witness, conceded that SSM was virtually identical to opposite-sex marriage in nearly all aspects other than the ability to procreate through marital sexual relations. As the [Decision](https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf) noted (pages 47-49): > [@](#): > > Blankenhorn’s concern that same-sex marriage poses a threat to the institution of marriage is further undermined by his testimony that same-sex marriage and opposite-sex marriage operate almost identically. During cross-examination, Blankenhorn was shown a report produced by his Institute in 2000 explaining the six dimensions of marriage: (1) legal contract; (2) financial partnership; (3) sacred promise; (4) sexual union; (5) personal bond; and (6) family-making bond. PX2879 (Coalition for Marriage, Family and Couples Education, et al, The Marriage Movement: A Statement of Principles (Institute for American Values 2000)). Blankenhorn agreed that same-sex marriages and opposite-sex marriages would be identical across these six dimensions. Tr 2913:8-2916:18. When referring to the sixth dimension, a family-making bond, Blankenhorn agreed that same-sex couples could “raise” children. Tr 2916:17. > > . . . > > Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents. Tr 2794:12-2795:5. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Tr 2803:6-15. Blankenhorn also testified he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same- sex marriage than we were the day before.” DIX0956 at 2; Tr 2805:6-2806:1. > > Blankenhorn stated he opposes marriage for same-sex couples because it will weaken the institution of marriage, despite his recognition that at least thirteen positive consequences would flow from state recognition of marriage for same-sex couples, including: (1) by increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more children growing up in loving adoptive and foster families; and (2) same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships. Tr 2839:16-2842:25; 2847:1-2848:3; > DIX0956 at 203-205. As a result, in his summary, Judge Walker focused on the one real distinction acknowledged by all parties, the possibility of procreation through sexual relations. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 30, 2013, 5:07pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/304 "2013-03-30T17:07:12Z")
> [@John\_Mace](#): > > I think “sinning”, in general, is not an issue of the law but “sinning” and “what we deem morally acceptable and legal” are not unrelated. There are all sort of laws that relate to some sort of morality that can be tied to “sinning” (most having to do with sex or nudity or pornography). Additionally, the procreation/parenting factor plays in as well. The state has an interest in promoting stable family lives for children to be raised in and same sex couples may not be the type of family life that the state wants to encourage. > > I don’t ascribe to those beliefs myself, but others might, and certain legislatures clearly do. John, you’re right on this one. Obama’s administration, for example, believes that this law deserves heightened scrutiny and would be unconstitutional by that standard (I agree), but acknowledges that against a rational basis standard, [DOMA stands](http://www.justice.gov/opa/pr/2011/February/11-ag-222.html): > [@](#): > > While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard. \ After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. Have they changed that position? I wish they would rename the “rational basis standard.” It implies something it should not–it is a very low threshold, extremely deferential to the legislature (which you know). Yet you see in threads like this people who are exasperated over the thought that somebody doesn’t see it as self-evident that DOMA fails that standard. Well, Obama’s administration disagrees! If this is decided on a rational basis, I would think DOMA could only be overturned on a “states’ rights” basis, that the Feds overstepped their bounds. It is really easy to advance a rational basis argument, and people need to understand that a cockeyed, partially illogical, inefficient law can still meet that very low standard. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 5:22pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/305 "2013-03-30T17:22:12Z")
We really need to get more in the business of amending the constitution. I’d like to see the constitution amended to include any new “suspect” or “protected” classes. We would then be able to answer Scalia’s question precisely: When the “x” amendment passed. Why leave it up to a handful of justices to make that determination. We, the people, through our elected legislatures should be doing that. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 30, 2013, 6:30pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/306 "2013-03-30T18:30:14Z")
I think we can already answer his questions. Standards of scrutiny were introduced by the Court in the first half of the 20th century. That’s their protocols, not anybody else’s. So, I believe a reasonable response would be: It was always unconstitutional against the strict standard of scrutiny (a standard that SCOTUS belatedly adopted), though society was not aware until science led us to understand that homosexuality is not an illness or depravity, but a trait not chosen that has resulted in a suspect class–again, against the Court’s [own standards](http://en.wikipedia.org/wiki/Suspect_classification): [quote] [ul][li]The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.[_]They possess an immutable and/or highly visible trait.[_]They are powerless to protect themselves via the political process. (The group is a “discrete” and “insular” minority.)[\*]The group’s distinguishing characteristic does not inhibit it from contributing meaningfully to society.[/ul][/li][/quote] That’s the response, I think. If these criteria apply to race, how does it not apply to homosexuality? So, again, the answer to Scalia, IMO: “You guys ought to follow your own protocols. It was always unconstitutional, though society could perhaps be excused (or we might at least understand) for its unfounded conclusions, given its ignorance in the past. Not any more. When that point of enlightenment occurred isn’t relevant, in that this was always unconstitutional whether or not we realized it.” ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 6:41pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/307 "2013-03-30T18:41:55Z")
> [@Stratocaster](#): > > I think we can already answer his questions. Standards of scrutiny were introduced by the Court in the first half of the 20th century. That’s their protocols, not anybody else’s. So, I believe a reasonable response would be: It was always unconstitutional against the strict standard of scrutiny (a standard that SCOTUS belatedly adopted), though society was not aware until science led us to understand that homosexuality is not an illness or depravity, but a trait not chosen that has resulted in a suspect class–again, against the Court’s [own standards](http://en.wikipedia.org/wiki/Suspect_classification):That’s the response, I think. If these criteria apply to race, how does it not apply to homosexuality? > > So, again, the answer to Scalia, IMO: “You guys ought to follow your own protocols. It was always unconstitutional, though society could perhaps be excused (or we might at least understand) for its unfounded conclusions, given its ignorance in the past. Not any more. When that point of enlightenment occurred isn’t relevant, in that this was always unconstitutional whether or not we realized it.” I don’t see that they are “powerless to protect themselves via the political process”. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 30, 2013, 6:53pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/308 "2013-03-30T18:53:08Z")
> [@John\_Mace](#): > > I don’t see that they are “powerless to protect themselves via the political process”. I think this threshold is not absolute, or it wouldn’t apply to race either. No one is completely powerless to influence the political process, so for the standard to be meaningful, it would have to mean “unable to effectuate the change that would eliminate the discrimination,” or something like that. Otherwise, no category meets the standard, including race. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 6:53pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/309 "2013-03-30T18:53:38Z")
> [@Stratocaster](#): > > I think we can already answer his questions. Standards of scrutiny were introduced by the Court in the first half of the 20th century. That’s their protocols, not anybody else’s. So, I believe a reasonable response would be: It was always unconstitutional against the strict standard of scrutiny (a standard that SCOTUS belatedly adopted), though society was not aware until science led us to understand that homosexuality is not an illness or depravity, but a trait not chosen that has resulted in a suspect class–again, against the Court’s [own standards](http://en.wikipedia.org/wiki/Suspect_classification):That’s the response, I think. If these criteria apply to race, how does it not apply to homosexuality? > > So, again, the answer to Scalia, IMO: “You guys ought to follow your own protocols. It was always unconstitutional, though society could perhaps be excused (or we might at least understand) for its unfounded conclusions, given its ignorance in the past. Not any more. When that point of enlightenment occurred isn’t relevant, in that this was always unconstitutional whether or not we realized it.” Sorry to double copy this, but I didn’t go to your source before. Note what your cite says just before the part you copied: > [@](#): > > The US Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect classification, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify. If that’s correct, then I don’t think it’s quite so cut and dried as applying some formula. In fact, I’m wondering if this whole idea of “suspect classes” is an anachronism that we should be getting rid of rather than expanding. ---
**Author:** ![Cyros](https://avatars.discourse-cdn.com/v4/letter/c/a698b9/32.png) [@Cyros](https://boards.straightdope.com/u/Cyros)\ **Post date:** [March 30, 2013, 6:56pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/310 "2013-03-30T18:56:43Z")
> [@John\_Mace](#): > > I don’t see that they are “powerless to protect themselves via the political process”. That depends on what those words actually mean. I’d say a logical way of looking at it would be that if every member of that class were to vote in favour of protecting themselves and every member outside that class were to vote against it they would lose. Any other standard would not be them protecting themselves but would be them relying upon others for their protection in the political process. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 30, 2013, 6:59pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/311 "2013-03-30T18:59:39Z")
> [@John\_Mace](#): > > If that’s correct, then I don’t think it’s quite so cut and dried as applying some formula. That’s true, but I still think it’s a basis for a response to Scalia. He may not believe it’s a suspect class, but for those who do, that’s the answer to his “gotcha.” As for abandoning suspect class / heightened scrutiny, I’d prefer they come out and say that’s no longer their protocol, rather than have a “squishy” protocol, subject to their saying, “And this time, we mean it, but we reserve the right to ignore these criteria in the future.” But right now, that’s their process. If it’s a suspect class (I think it is), this was always unconstitutional. That’s my answer to Scalia, should he call me about it. 😃 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 7:04pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/312 "2013-03-30T19:04:06Z")
> [@Cyros](#): > > That depends on what those words actually mean. I’d say a logical way of looking at it would be that if every member of that class were to vote in favour of protecting themselves and every member outside that class were to vote against it they would lose. > > Any other standard would not be them protecting themselves but would be them relying upon others for their protection in the political process. I would read that with more emphasis on the “powerless” part. That is, they are somehow denied equal access to the political process (ie, voting). This is equality of access, not equality of outcome. Your “logical” reading would mean that men are a protected class but women are not. It would mean that 20-year olds are a protected class but 21 - 60 year olds are not. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 7:05pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/313 "2013-03-30T19:05:54Z")
> [@Stratocaster](#): > > That’s true, but I still think it’s a basis for a response to Scalia. He may not believe it’s a suspect class, but for those who do, that’s the answer to his “gotcha.” > > As for abandoning suspect class / heightened scrutiny, I’d prefer they come out and say that’s no longer their protocol, rather than have a “squishy” protocol, subject to their saying, “And this time, we mean it, but we reserve the right to ignore these criteria in the future.” > > But right now, that’s their process. If it’s a suspect class (I think it is), this was always unconstitutional. That’s my answer to Scalia, should he call me about it. 😃 Well, at least you’re ready should the occasion present itself! 🙂 I’m still uncertain why Olsen didn’t answer it that way, though. Are they trying to dodge that issue? It is the elephant in the room, it seems to me. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 30, 2013, 7:21pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/314 "2013-03-30T19:21:16Z")
> [@John\_Mace](#): > > I’m still uncertain why Olsen didn’t answer it that way, though. Are they trying to dodge that issue? It is the elephant in the room, it seems to me. Me too. I suspect they’re fearful the court isn’t ready to entertain that argument, that it’s too soon or something–better not to bring it up. ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [March 30, 2013, 7:30pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/315 "2013-03-30T19:30:08Z")
> [@Stratocaster](#): > > But right now, that’s their process. If it’s a suspect class (I think it is), this was always unconstitutional. That’s my answer to Scalia, should he call me about it. 😃 This seems like a pretty good answer to me (probably not Scalia, though.) And if not always, then since the states abolished coverture. At that point, the gender of people involved in a civil marriage is no longer relevant. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 7:37pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/316 "2013-03-30T19:37:57Z")
Are non-SC justices allowed to create new levels of scrutiny or new suspect classes? If not, then the answer is: We’re asking you to create a new suspect class so that, going forward, it will be unconstitutional. If they aren’t willing to do that, then they aren’t going to win any sweeping judgement. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 30, 2013, 7:41pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/317 "2013-03-30T19:41:08Z")
> [@Ambrosio\_Spinola](#): > > This seems like a pretty good answer to me (probably not Scalia, though.) And if not always, then since the states abolished coverture. At that point, the gender of people involved in a civil marriage is no longer relevant. At that, sex-based discrimination gets intermediate scrutiny, right? So, not as high a bar as the strict scrutiny of race-based discrimination, and not as low a bar as the rational-basis test we’d apply if Congress passed a “people under five feet tall can’t get married” law? So, okay, you can’t marry her. _Why? Because I’m black?_ No, that has nothing to do with it. _Because of my height? Because of my age?_ Again, no. You can’t marry her because you’re a woman; you could do it if you were a man, but you’re not, so you can’t; it’s good old sex-based discrimination. Not a new suspect class; one of the classics. ---
**Author:** ![Cyros](https://avatars.discourse-cdn.com/v4/letter/c/a698b9/32.png) [@Cyros](https://boards.straightdope.com/u/Cyros)\ **Post date:** [March 30, 2013, 8:08pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/318 "2013-03-30T20:08:26Z")
> [@John\_Mace](#): > > I would read that with more emphasis on the “powerless” part. That is, they are somehow denied equal access to the political process (ie, voting). This is equality of access, not equality of outcome. > > Your “logical” reading would mean that men are a protected class but women are not. > > It would mean that 20-year olds are a protected class but 21 - 60 year olds are not. Men have not been historically discriminated against so they are not a protected class. I read the qualifications as being additive and not exclusive. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 30, 2013, 8:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/319 "2013-03-30T20:12:13Z")
> [@Cyros](#): > > Men have not been historically discriminated against so they are not a protected class. I read the qualifications as being additive and not exclusive. See post #309. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 30, 2013, 10:12pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/320 "2013-03-30T22:12:45Z")
> [@Cyros](#): > > Men have not been historically discriminated against so they are not a protected class. I read the qualifications as being additive and not exclusive. That’s not how it works. While the concept of suspect classes derives from the phrase “discrete and insular minority” in footnote 4 of U.S. v. Carolene Products, the Equal Protection Clause looks at classifications, not groups. It doesn’t matter whether as a male, you have historically been the beneficiary of discrimination, rather than a victim; _any_ classification based on gender must survive elevated scrutiny, even those which benefit women. [QUOTE=The Other Waldo Pepper] …sex-based discrimination gets intermediate scrutiny, right? [/QUOTE] Yep. [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=15) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=17)