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 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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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.
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.
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).
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.
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.
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.
Utter nonsense. Freedom of religion is nothing more than allowing a particular group to do what it wants.
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.
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” in this country, as well as the variety of laws defining how much colored ancestry a person could have and still be considered white.
We’ve been doing that since we adopted the first amendment.
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.
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.
“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.
Race is a suspect class automatically, despite where the line may be drawn.
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.
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.”
