# 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:** 19
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 2:42pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/361 "2013-04-02T14:42:19Z")
> [@Hamlet](#): > > I would be fascinated to see some citations to caselaw for your conclusions **David42**. The idea that a state proposition specifically enacted to discriminate on the basis of sexual orientation does not, in fact, discriminate on the basis of sexual orientation seems a bit tough to swallow. Sounds like circular reasoning to me, “this law discriminates on sexual orientation because it discriminates based on sexual orientation.” Perhaps I should clarify, although I already did–my reasoning is NOT that homosexuals aren’t discriminated against–but that other groups are also included and homosexuals are not singled out. What group do you want suspect classification for? Homosexuals alone? Why deny bisexuals? Do you want the group to be homosexuals plus bisexuals? Why discriminate against a heterosexual who has other reasons than sexual orientation to marry the same sex? Isn’t marriage for financial security too, and a host of other reasons that have nothing to do with sexuality? Now, you want me to cite, and I did cite a little, (Loving and Brown.) But you miss my point I guess that this is unprecedented AFAIK. That means that the Supreme Court has never before a) recognized a group that can’t be identified on an individual level b) recognized a group that includes exceptions; or c) recognized a group based on its desires. To suggest I prove this is nothing short of asking me to analyze each and every Supreme Court case to show they didn’t do any of these things. I decline; and suggest instead, if you deny that these are unprecedented, that you cite the cases wherein they did these things. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [April 2, 2013, 2:58pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/362 "2013-04-02T14:58:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Equal Protection Clause litigation is no longer concerned about “suspect classes”. It imposes a higher standard on _suspect classifications_. It no longer matters if the classification in question is discriminating against a minority or not. I don’t follow at all what **David42** was saying, but can you explain the distinction you’re drawing here? Suspect class vs. suspect classification? Actually, maybe **David42** is making the argument that it’s OK to ban gays from getting married, since straight people aren’t allowed to get same-sex married either? But I don’t think that’s a great argument. I think someone up-thread mentioned this, but it’s a bit reminiscent of “The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread”. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 3:01pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/363 "2013-04-02T15:01:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > You put it more gently than I would have. The whole thing is gibberish. I’m pretty sure I used whole complete sentences in English. Given that, I suspect you are incapable of arguing anything against what I have said. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 3:10pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/364 "2013-04-02T15:10:00Z")
> [@tim314](#): > > I don’t follow at all what **David42** was saying, but can you explain the distinction you’re drawing here? Suspect class vs. suspect classification? > > Actually, maybe **David42** is making the argument that it’s OK to ban gays from getting married, since straight people aren’t allowed to get same-sex married either? But I don’t think that’s a great argument. I think someone up-thread mentioned this, but it’s a bit reminiscent of “The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread”. I didn’t say so with the moral approval you impute, that it is “ok.” I am talking about what line the statute draws, and since it does not mention homosexuals, it seems plain that the statute also bans bisexuals and straights from same-sex marriage, does it not? So please give us your idea of what suspect classification a law that says “Marriage is between one man and one woman,” creates? Make sure and not leave anybody out. You’ll have to think more broadly than just homosexual desire. ---
**Author:** ![Penny](https://avatars.discourse-cdn.com/v4/letter/p/8baadc/32.png) [@Penny](https://boards.straightdope.com/u/Penny)\ **Post date:** [April 2, 2013, 3:20pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/365 "2013-04-02T15:20:04Z")
> [@John\_Mace](#): > > Emphasis added. But more voters in more states have “spoken” against it. Furthermore, the voters in CA, the state in question, spoke against it. > > That’s a pretty poor argument, if that was what it was intended to be. I am not quite sure how CA became the “state in question” considering I never mentioned it, but just so you know, Maine, Maryland, Washington all approved the recognition of same sex marriages by popular vote in 2012. They are amoung Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont in legally recognizing same sex marriages. Going by trend, there seems to be an emerging shift in attitude which is supported by polls. There are still two other points in my “poor argument” that you are welcome to address should you wish to really make a point. I’ll wait. 🙂 ---
**Author:** ![Penny](https://avatars.discourse-cdn.com/v4/letter/p/8baadc/32.png) [@Penny](https://boards.straightdope.com/u/Penny)\ **Post date:** [April 2, 2013, 3:27pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/366 "2013-04-02T15:27:24Z")
> [@David42](#): > > Sounds like circular reasoning to me, “this law discriminates on sexual orientation because it discriminates based on sexual orientation.” > > Perhaps I should clarify, although I already did–my reasoning is NOT that homosexuals aren’t discriminated against–but that other groups are also included and homosexuals are not singled out. > > What group do you want suspect classification for? Homosexuals alone? Why deny bisexuals? Do you want the group to be homosexuals plus bisexuals? Why discriminate against a heterosexual who has other reasons than sexual orientation to marry the same sex? Isn’t marriage for financial security too, and a host of other reasons that have nothing to do with sexuality? > > Now, you want me to cite, and I did cite a little, (Loving and Brown.) But you miss my point I guess that this is unprecedented AFAIK. That means that the Supreme Court has never before > a) recognized a group that can’t be identified on an individual level > b) recognized a group that includes exceptions; or > c) recognized a group based on its desires. > > To suggest I prove this is nothing short of asking me to analyze each and every Supreme Court case to show they didn’t do any of these things. I decline; and suggest instead, if you deny that these are unprecedented, that you cite the cases wherein they did these things. I am not quite sure the relevance of the Supreme Court recognition. Being I am bisexual, if I am in a relationship with another woman, I am engaged in a homosexual relationship. If I am with a man, I am engaged in a heterosexual relationship. If I can marry both a man or a woman, my sexuality or desires don’t really need to be directly recognized. Being inclusive in equality doesn’t require exceptions IMHO. ---
**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:** [April 2, 2013, 3:32pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/367 "2013-04-02T15:32:22Z")
> [@David42](#): > > Sounds like circular reasoning to me, “this law discriminates on sexual orientation because it discriminates based on sexual orientation.” Not even close. The very intent of Proposition 8 was to deny same sex partners the right to marriage. I’m using the clear purpose of the law (deny homosexuals the right to marry), to show the effect of the law (denying homosexuals the right to marry). It’s not circular in the least. > [@David42](#): > > Perhaps I should clarify, although I already did–my reasoning is NOT that homosexuals aren’t discriminated against–but that other groups are also included and homosexuals are not singled out. I got that. I was wondering why you think that matters in equal protection analysis. Take Loving for example. Would that survive David42’s legal analysis because it not only denied the right to marriage to African Americans, but also to Mexicans, Asians, and Native Americans? I’m asking for support for your conclusion that a law that clearly has the intent and effect of discriminating against a group is somehow OK because it discriminates against others too. > [@David42](#): > > Now, you want me to cite, and I did cite a little, (Loving and Brown.) But you miss my point I guess that this is unprecedented AFAIK. That means that the Supreme Court has never before > a) recognized a group that can’t be identified on an individual level > b) recognized a group that includes exceptions; or > c) recognized a group based on its desires. Religion is not readily identifiable, is based on desires, and, depending on the law, can include exceptions. National origin is not readily identifiable and can include exceptions. As is alienage. Illegitimacy of birth can’t readily be identified on an individual level and can include exceptions. > [@David42](#): > > To suggest I prove this is nothing short of asking me to analyze each and every Supreme Court case to show they didn’t do any of these things. I decline; and suggest instead, if you deny that these are unprecedented, that you cite the cases wherein they did these things. You make an outlandish and all but incomprehensible post, and it’s up to me to disprove it? That’s not how this works. But you could check out Pierce v. Society of Sisters and Trimble v. Gordon to start. ---
**Author:** ![stpauler](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@stpauler](https://boards.straightdope.com/u/stpauler)\ **Post date:** [April 2, 2013, 3:35pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/368 "2013-04-02T15:35:50Z")
> [@David42](#): > > Now, you want me to cite, and I did cite a little, (Loving and Brown.) But you miss my point I guess that this is unprecedented AFAIK. That means that the Supreme Court has never before > a) recognized a group that can’t be identified on an individual level > b) recognized a group that includes exceptions; or > c) recognized a group based on its desires. You can update your AFAIK here: [Source](http://en.wikipedia.org/wiki/Lawrence_v._Texas) > [@](#): > > In a petition for certiorari filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:[28] > > 1. \*\*Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws? \*\* > > 2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? > > 3. Whether Bowers v. Hardwick should be overruled? [O’Connor’s concurrence stated:](http://supreme.justia.com/cases/federal/us/539/558/case.html)(snipping involved( > [@](#): > > Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause. > > And in Romer v. Evans, we disallowed a state statute that “impos[ed] a broad and undifferentiated disability on a single named group”-specifically, homosexuals. 517 U. S., at 632. > > The statute at issue here makes sodomy a crime only if a person “engages in deviate sexual intercourse with another individual of the same sex.” Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06. > > The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct-and only that conduct-subject to criminal sanction. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [April 2, 2013, 4:32pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/369 "2013-04-02T16:32:26Z")
> [@David42](#): > > So please give us your idea of what suspect classification a law that says “Marriage is between one man and one woman,” creates? I’m no lawyer, but I think you’re misunderstanding the roll of suspect classifications. It doesn’t matter if the law _creates_ a classification. What matters (for determining the level of scrutiny applied to equal protection claims) is whether it impacts members of a suspect classification differently than others. There’s no question that a ban on same-sex marriage impacts gay people (who are predisposed to want to marry someone of the same-sex) differently than straight people (who are predisposed to want to marry someone of the opposite sex). Saying, “Well, the gays can get straight-married like everyone else” isn’t really fooling anyone. Now, in the past gays _haven’t_ been treated by the court as a suspect classification. But I think it’s pretty obvious that _if they were_ treated that way, the law would fail for equal protection reasons. I don’t think I’ve heard _anyone_ on either side claim Prop 8 or DOMA would survive strict scrutiny, if it were applied. ---
**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:** [April 2, 2013, 4:40pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/370 "2013-04-02T16:40:06Z")
> [@tim314](#): > > I don’t follow at all what **David42** was saying, but can you explain the distinction you’re drawing here? Suspect class vs. suspect classification? Originally, the varying levels of scrutiny involved in equal protection jurisprudence were applied specifically to protect “discrete and insular minorities”, such as black people - suspect classes. Beginning in the 1970s, SCOTUS reasoned that the equal protection clause applies to everyone, including members of majorities or groups that have not been historically disenfranchised or discriminated against (like whites). It is no longer relevant whether a member of a group challenging a classification is a member of a minority. It is the _classification_ (eg., a law distinguishing between people based on race) that becomes suspect, not the class (eg., members of a particular race). > [@](#): > > Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility. See University of California Regents v. Bakke, 438 U.S., at 298, 98 S.Ct., at 2752 (opinion of Powell, J.) (“[P]referential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relation to individual worth”). We thus reaffirm the view expressed by the plurality in Wygant that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification. > > City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989) A history of discrimination is still relevant in determining whether elevated scrutiny applies to a particular classification, so if the court decides to apply strict or intermediate scrutiny to orientation classifications, it will do so on the basis that homosexuals have historically been discriminated against. However, once that occurs, that protection will apply equally to straight people. The state will only be able to discriminate against them if it can prove that it is classifying to remedy the effects of past discrimination (as in affirmative action programs, for example). > [@](#): > > Actually, maybe **David42** is making the argument that it’s OK to ban gays from getting married, since straight people aren’t allowed to get same-sex married either? But I don’t think that’s a great argument. I think someone up-thread mentioned this, but it’s a bit reminiscent of “The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread”. The problem with this line of reasoning is that it’s already been rejected. In Loving, the Virginia statute at issue only prohibited whites from marrying members of other races. It didn’t prohibit, say, a Chinese person from marrying a black person. Nonetheless, Loving outlawed _all_ race-based restrictions on marriage. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [April 2, 2013, 4:45pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/371 "2013-04-02T16:45:31Z")
**Really Not All That Bright** , thanks for clarifying. I’m tempted to raise the question of how it can possibly be that sexual orientation doesn’t define even a quasi-suspect class. Surely if “a history of discrimination” is the key factor, then gays would qualify. But maybe that should be its own thread. ---
**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:** [April 2, 2013, 4:50pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/372 "2013-04-02T16:50:57Z")
A history of discrimination alone does not necessarily justify heightened scrutiny. SCOTUS has consistently refused to apply heightened scrutiny to age-based classifications, for example. > [@](#): > > We have considered claims of unconstitutional age discrimination under the Equal Protection Clause three times. See Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam). In all three cases, we held that the age classifications at issue did not violate the Equal Protection Clause. See Gregory, supra, at 473, 111 S.Ct. 2395; Bradley, supra, at 102–103, n. 20, 108–112, 99 S.Ct. 939; Murgia, supra, at 317, 96 S.Ct. 2562. Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Older persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a “ ‘history of purposeful unequal treatment.’ ” Murgia, supra, at 313, 96 S.Ct. 2562 (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it. 427 U.S., at 313–314, 96 S.Ct. 2562. Accordingly, as we recognized in Murgia, Bradley, \*\*646 and Gregory, age is not a suspect classification under the Equal Protection Clause. See, e.g., Gregory, supra, at 470, 111 S.Ct. 2395; Bradley, supra, at 97, 99 S.Ct. 939; Murgia, supra, at 313–314, 96 S.Ct. 2562. > > Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000) I don’t think it’s outside the scope of the thread, since SCOTUS may very well rule that sexual orientation classifications deserve elevated scrutiny. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [April 2, 2013, 5:11pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/373 "2013-04-02T17:11:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I don’t think it’s outside the scope of the thread, since SCOTUS may very well rule that sexual orientation classifications deserve elevated scrutiny. Alright then. Anyone care to argue for why sexual orientation classifications _shouldn’t_ deserve elevated scrutiny? Because to me, given the history of discrimination against gays, it seems almost obvious that they should. I can see how age is different. The drastically different capabilities of minors vs. adults clearly justifies treating them differently. But gay people and straight people just aren’t remotely that different. ---
**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:** [April 2, 2013, 5:23pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/374 "2013-04-02T17:23:16Z")
One of the factors generally required for elevated scrutiny is immutability. Playing devil’s advocate (I am firmly in favor of strict scrutiny for orientation), the scientific consensus on whether orientation is innate is newly settled. This wasn’t a concern with existing suspect and quasi-suspect classifications, since they were readily apparent (other than illegitimacy). ---
**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:** [April 2, 2013, 5:28pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/375 "2013-04-02T17:28:00Z")
> [@tim314](#): > > Alright then. Anyone care to argue for why sexual orientation classifications _shouldn’t_ deserve elevated scrutiny? Because to me, given the history of discrimination against gays, it seems almost obvious that they should. At its most basic, the argument is that since sexual orientation isn’t immutable (or immutable enough) and is rather a choice, and since homosexuals are not politically powerless (or politically powerless enough), then they do not meet the criteria laid out by the Supreme Court to be considered a suspect class. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [April 2, 2013, 5:55pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/376 "2013-04-02T17:55:56Z")
> [@David42](#): > > To compare other suspect classifications, such as at issue in Loving or Brown, in both instances the statute created a suspect class by specifically naming races. In Prop 8, homosexuals are not singled out by being named. Rather, the claim that they are singled out is based on a difference in desired behavior–a gay person does not want to marry the opposite sex. In Loving and Brown, the classification admitted of no exceptions. Yet in Prop8 we have a classification that does not necessarily admit of no exceptions–hence the problem of needing to use the terminology “same-sex-marriage.” Actually, the law in question in Loving v. Virginia did not specifically single out Mrs. Loving’s race. The law being challenged, called the Racial Integrity Act, specified “white” and “colored,” colored being used as a catch-all term for “not white.” The law didn’t specify individual minority ethnicities, instead broadly effecting anyone who was of the non-majority. Similarly, we don’t need to quibble over “homosexual” versus “bisexual” to recognize that the purpose of Proposition 8 is to discriminate against non-straight sexual identities. > [@](#): > > Religion as a classification does not admit of exceptions. A law that specifically targets Jews would not ever target a Muslim incidentally. A law that specifically says, “Jews can’t do X,” isn’t going to affect Muslims, but so what? A law does not have to specifically mention a group to be struck down as discriminatory against that group. A law mandating the eating of ham would be unconstitutional for (among other reasons) violating the religious freedom of both Jews and Muslims, even if neither group was mentioned by name in the law, and even if the law was an unintended burden on a wholly non-religious group, such as vegetarians. > [@](#): > > What a group wants is unprecedented as part of a test for suspect or quasi-suspect classification, with or without regard to why they might want it on the basis of nature or nurture. Utter nonsense. Freedom of religion is nothing more than allowing a particular group to do what it wants. > [@](#): > > Then there is the further problem that here we would create a classification we cannot identify on an individual level. There is no test for “gay.” And what is “gay” by solid evidence might be argued is “bi” later. A group we cannot identify which is subject to shifts on an individual level Sexual orientation may be immutable, but if it is, our ability to categorize people is still restricted to behavior at best, and that is subject to error. Additionally, there is no known test for gay. There’s no test for “Baptist,” either, and an individual who identifies as Baptist now might very well identify as Catholic at a later date. > [@](#): > > Whether someone is black is not prone to mistake. This is the most ridiculously wrong thing you’ve posted so far, and that’s a pretty high bar to clear. See, please, the long history of [“passing”](http://en.wikipedia.org/wiki/Passing_%28racial_identity%29) in this country, as well as the variety of laws defining how much colored ancestry a person could have and still be considered white. > [@](#): > > So, when did we get to recognizing suspect groups we cannot identify the individuals thereof, that necessarily contain exceptions to the suspect group within it, because of their desire being against the law? We’ve been doing that since we adopted the first amendment. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [April 2, 2013, 5:56pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/377 "2013-04-02T17:56:08Z")
Thank you for presenting the argument. Immutability feels at first to be a bit of a strange criterion. After all, we wouldn’t say that the fact that one can change their religion means that there’s no need for legal protection against religious discrimination. But then, religious freedom is viewed as a fundamental right and given particular protection in the Constitution. I suppose I see the right to love who you choose to also be a fundamental right, but unfortunately the Constitution doesn’t explicitly recognize this. I guess it’s a moot point, though, since sexual orientation is now generally understood to be an immutable trait. Or are Supreme Court justices really holding on to the idea that LGBT individuals could shield themselves from discrimination by just “choosing not to be gay”? The notion that gays are too politically powerful to need protection seems ridiculous to me. If gay marriage bans would _otherwise_ be unconstitutional discrimination, were it not for the supposed great political power of the gay rights movement, then surely the fact that numerous such bans have passed is evidence that the the power of the gay rights movement is not enough to protect them from such discrimination. In other words, I can’t see how “political power” could be the deciding argument after all others have failed. Either they had enough power to stop the discrimination, or they didn’t. ETA: This was in reply to the arguments offered by **Really Not All That Bright** and **Hamlet**. ---
**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:** [April 2, 2013, 6:16pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/378 "2013-04-02T18:16:10Z")
> [@tim314](#): > > Thank you for presenting the argument. Immutability feels at first to be a bit of a strange criterion. After all, we wouldn’t say that the fact that one can change their religion means that there’s no need for legal protection against religious discrimination. Religion is often couched as a suspect classification, but this is technically incorrect. Suspect scrutiny is required not only when a law creates a suspect classification, but also when a law burdens the exercise of a fundamental right - here, freedom of worship. ---
**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:** [April 2, 2013, 6:24pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/379 "2013-04-02T18:24:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Suspect scrutiny is required not only when a law creates a suspect classification, but also when a law burdens the exercise of a fundamental right - here, freedom of worship. “Since our past decisions make clear that the right to marry is of fundamental importance …” Zablocki v. Redhail; “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.” Loving v. Virginia; "In support of the marriage regulation, petitioners first suggest that the rule does not deprive prisoners of a constitutionally protected right. **They concede that the decision to marry is a fundamental right under Zablocki v. Redhail (1978), and Loving v. Virginia (1967),** but they imply that a different rule should obtain “in . . . a prison forum.” Turner v. Safley. I don’t believe that a fundamental right becomes less fundamental because of who is attempting to exercise it. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 2, 2013, 7:09pm UTC](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936/380 "2013-04-02T19:09:42Z")
> [@Hamlet](#): > > Not even close. The very intent of Proposition 8 was to deny same sex partners the right to marriage. I’m using the clear purpose of the law (deny homosexuals the right to marry), to show the effect of the law (denying homosexuals the right to marry). It’s not circular in the least. False premise. > [@Hamlet](#): > > I got that. I was wondering why you think that matters in equal protection analysis. Take Loving for example. Would that survive David42’s legal analysis because it not only denied the right to marriage to African Americans, but also to Mexicans, Asians, and Native Americans? I’m asking for support for your conclusion that a law that clearly has the intent and effect of discriminating against a group is somehow OK because it discriminates against others too. Race is a suspect class automatically, despite where the line may be drawn. > [@Hamlet](#): > > Religion is not readily identifiable, is based on desires, and, depending on the law, can include exceptions. National origin is not readily identifiable and can include exceptions. As is alienage. Illegitimacy of birth can’t readily be identified on an individual level and can include exceptions. I dispute that either national origin or religion ever requires inclusion of an exception. Never seen that held. Religion has come under 14th Amendment protection via the due process clause incorporating the establishment of religion clause. If you have a strict scrutiny EP suspect classification cite, break it out. > [@Hamlet](#): > > You make an outlandish and all but incomprehensible post, and it’s up to me to disprove it? That’s not how this works. But you could check out Pierce v. Society of Sisters and Trimble v. Gordon to start. If it is incomprehensible what is it you know you are arguing against? Pierce is a “liberty interest” due process case. Trimble did not make a suspect class out of the illegitimate: (Syllabus) “A classification based on illegitimacy such as that challenged here is not “suspect” so as to require that it survive “strict scrutiny,” Mathews v. Lucas, 427 U.S. 495, 506.” [Previous page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=18) [Next page](https://boards.straightdope.com/t/predict-how-the-supreme-court-will-decide-the-same-sex-marriage-cases/653936.md?page=20)