I should’ve known better. My hours of research, arguments, and counters to your idiotic positions go ignored and you just keep repeating the same unsubstantiated crap over and over. Next time I reply to you, please remind that I’m just wasting my time. Thanks.
I think this is one of the main reasons the Mass. Supreme Court spent so much time describing what a civil marriage really is. They stated, and I agree, that civil marriage is a licensing issue, but it also bestows numerous intricate, and related rights on those who enter into it. The fact that the State could just simply stop recognizing marriage does not mean the rights and benefits it represents are not fundamental. Sure the State could simply stop licensing marriage. But the rights, benefits, and even responsibilities that are currently available through marriage (inheritance, children’s law, taxes, etc.) are, in a definite sense, fundamental.
The problem is that marriage is so intricately tied to such a wide variety of laws, that it would be nigh but impossible to get rid of it without rewriting hundreds of laws that touch on it. A civil marriage is more than just getting the OK from the State. It incorporates hundreds of intertwined benefits, rights, powers, and responsibilities. Although not every one of those benefits, rights, powers and responsibilites are fundamental, civil marriage by it’s fundamental nature, incorporates so many of them to be considered fundamental.
Yeah, that breakdown makes a lot of sense since marriage isn’t just one thing-- it’s the sum of its parts (almost 2,000 parts by one count). I also thought that the MA court decision rested on a more explicit right to privacy in the MA consitution than in the federal version. The lower court in HI used that reasoning, too, but apparently other court cases had tied that right too closely to the federal right, and a higher court overturned the ruling.
I wonder how the court’s ruling would be affected by the discovery of a “gay gene”, or some other positive, definitive proof that sexual selection was determined biologically. I would think it would pretty much have to treat sexual orientation the same as race or gender, and not as some other type of category.
It’s just a ton harder to say that “the innumerable rights, benefits, powers, and responsibilities created by marriage and the laws touching on marriage” are fundamental than it is to say marriage is a fundamental right.
The infamous footnote in the Caroline Products case giving heightened scrutiny to “discrete and insular minorities” is nearly impossible to reach. There was some debate over whether disabled persons are discrete and insular minority, and they too, IIRC failed. There are rare cases (mentally challenged person in Cleburne) who may fit the definition, but even if there is a gay gene found, I doubt a court will find sexual orientation to ever be a suspect class.
The compromise option would be the intermediate scrutiny that gender enjoys. Remember, gender went through the same process that sexual orientation seems to be going through now. Originally, since gender isn’t a discrete and insular minority, it was rational basis. The court then fudged a bit and heightened the scrutiny while purporting to remain in rational basis area (rational basis with bite). Then the court went so far to almost apply the highest level of scrutiny in Frontiero. Finally, they settled on the middle ground of creating an intermediate level in Craig v. Boren.
I can see the same progress going on with sexual orientation. We’ve had quite a few rational basis tests, then a few rational basis with bite (Romer/Goodridge). Perhaps, sooner or later (and I would guess the gay gene would hasten it), it will be subject to intermediate scrutiny. Especially if there is a continued backlash against homosexuals.
Personally, while I think that the suspect class arguments are a valid way to go, I think there will be more success focusing on the fundamental rights part of Equal Protection challenges. Lawrence, for as poorly written as it was, still seemed to recognize the rights of homosexuals are the same as the rights of heterosexuals. And Loving and Zablocki are clear precedents that marriage is a fundamental right. So I actually favor the fundamental right argument over the suspect class argument. I also favor it because, to me, it matters not one whit whether being gay is a choice or biological, it’s just none of the government’s business.
Would you rule that way today if you were a SC justice? I ask this in light of the fact that we know with near absolute certainty* that that isn’t how “the people” or the Legislature want the law interpreted? I can’t see it hapening for a long, long time (at the federal level). The country isn’t near ready enough. Maybe once we have a significant number of states that have legalized SSM, but not before then.
*since the people have spoken so loudly at the ballot box, it’s hard to imagine a situation short of armed rebellioin where the justices would know better what “the people” want
The problem here, John, is that “the people” don’t always think through the consequences of their opinions. For example, the whole Loving issue that gave rise to this discussion.
Few people today would claim that an interracial marriage is in fact something a state could restrict from happening. But there were in the 1950s and 1960s substantial majorities in many Southern states willing to endorse such laws. (Which is not to superimpose a stereotype – there were many liberals and progressives who felt quite differently.)
The right was there, and guaranteed. But it didn’t have popular support in several states. I cannot help but see a parallel – the one that provoked the OP.
I don’t mean to be flip when I say “so what”, but so what? Do we not have a government of the people by the people and for the people? And keep in mind that when I say “the people” I don’t mean just any old people, but the clear and overwhelming majority of the people PLUS the Legislature(s), which do think thru the consequences of their decisions. I’m not talking about public opinion polls, but hard legislation passed over and over again in > 40 states and the Congress (DOMA). The justices aren’t trying to craft some objective form of justice, they are trying to interpret the legislation, which derives from the people and their elected representatives.
*Loving *was decide in a time when racially discriminatory laws were being ablolished left and right, and most states had erased the anti-miscegenation laws from their books. A SCOTUS decision in favor of SSM today would be made during a time of increasing legislaton against SSM virtually across the board. The parallel exists in the abstract argument about justice, but not in the concrete world of how a representative democracy works.
Our constitution also forbids discrimination on the basis of sex; I believe that this was relevant to the decision, but it’s been a long time since I’ve read the full text.
You keep repeating this; but are you sure? California’s court overturned that state’s miscegenation laws in 1948 and it was the first. Sixteen states still had such laws at the time of Loving. Are you sure the others weren’t overturned by the state courts instead of by the Legislatures?
Again, wrong. Marriage as defined by all legislators (or the states, or the people) when the laws on marriage were established, isn’t being denied to anyone. SSM is. Since no laws exist in the US that establish SSM, the equal protection clause is not being violated.
Oh, I understand quite clearly what you are trying to do. But what you are trying to do is stupid, dishonest, and in violation of the Constitution and the notion of limited government. So it isn’t a matter of me “grasping” something, as if you had put forward a real position. It is merely my refusal to accept your strawmen as a credible set of posts.
As I mentioned previously, neither vehemence nor repetition establish a position. You actually have to demonstrate it.
Repeating something enough times makes it true, doesn’t it?
There were something like 30 states that had anti-mescegenation laws on their books in the 1st half of the 20th century. I think you’re actually right in that many of them (maybe even most of them) were repealed by the state courts rather than thru the legislatures. But I doubt very seriously that those courts were far ahead of the people in those states, and surely we can agree that states like CA would have abolished those laws legislatively well before the *Loving *decsions was handed down in 1967. Note that the 1964 Civil Rights act (much more sweeping in scope than that produced by Loving) passed in the Senate by a margin of 73-27. The South fought that legislation tooth and nail, but the national tide had turned by that point and there was no going back. The state courts sped up the process of getting rid of the anti-miscegenation laws, but not by much, so I don’t belive the landscape in 1967 would have looked that different had the state courts defererd to the legislatures on that subject.
I don’t think the situation in the US in 1967 wrt race (as reflected in the legislative and judicial record) is even remotely comparable to where we are today wrt sexual orienation legislation and jurisprudence. Let me be 100% clear in saying that does not speak to the rightness of laws banning SSM-- I’m absolutely conviced they’re wrong, in a moral sense. I just can’t see the justification for a national judicial decision that flies so strongly in the face of the national legislative consensus. I don’t expect you to agree with that, but that reflects my own view of the role of the judiciary vs the role of the legislature.
Elvis, you continue to beg the question. You accept as a given that the 14th amendment supports SSM, therefore anyone who says otherwise runs afoul of the 14th amendment. Stop digging into your playbook for a standard response. Respond to what I actually posted.
Again, you beg the question. I am not arguing that the 14th amendment should be “overridden.” I am arguing that you are misinterpreting it.
Not sure I understand the distinction you’re drawing.
Isn’t the rational basis threshold an incredibly low one? For example, would “promotion of child-bearing” do the trick? BTW, I’m not suggesting I would support such a foundation.
I disagree (or miss your point). Equal protection, in the sense I’m asserting, need only offer the same specific options. It need not provide options each individual would be inclined to pursue.
Well, in my ongoing campaign of tilting at windmills, I’ll assert yet again that Loving based this conclusion on something other than the text of the Constitution. In the future, SCOTUS may rule otherwise in terms of the rights it recognizes. Thomas, for example, does not hold prior decisions sacred in the way some others do.
It probably won’t surprise you to learn that I think the Lawrence decision was a bad one. I like Thomas’s dissent. It was a silly, but Constitutional, law that was overturned with this overreaching decision.
Poly, I think you beg the question here. If there’s a right to marriage (as formulated in Loving), that does not mean that a union between two individuals of the same sex is a marriage.
Yes, I understand (and support, if it needs to be said!) the laws against pedophilia, and the basis for them. My only point was that a pedophile could not legitimately argue for the repeal of pedophilia laws on an equal protection basis, despite the fact that a similar argument could be made (“He gets to have sex with who he wants. She gets to have sex with who she wants. But I don’t. The humanity!”). If there’s no equal protection concern, the rational basis isn’t in play, right?
No, you continue to misunderstand what you’re being told.
How often do I have to say it until you get it? The 14th guarantees all persons equal protection under the laws. Unless SSM is excluded from that, either explicitly or by an overriding state interest, it’s covered. That isn’t a “given”, it’s a conclusion.
Do you really share **Shodan’**s view that the default case which must be overcome is that equal protection is *not * guaranteed, or not to all persons? Where do you see “not” in the text? That interpretation not only flouts basic English grammar but logically silly - why would Congress even bother to write the amendment if that were its intent? Yet you persist.
Shodan need not be bothered with further, since his position comes down to that any explanation he’s given that doesn’t lead to his desired conclusion must be wrong. Horse, water.
G-d damn it, Shodan and Elvis, can’t you guys trim the fat and argue the point that your posts clearly define as the sticking point between you? Here, I’ll do everyone the favor of boiling it down:
Elvis: Same-sex marriage is marriage, since Loving recognizes marriage as a fundamental right, it’s included Shodan: Same-sex marriage is a new construct, not within the established definition of marriage, so Loving does not recognize it as it does heterosexual marriage.
There. Now you guys can stop clogging bandwidth by bouncing back and forth “Show me where SSM is a right” “Loving established that marriage is a right” “It didn’t establish SSM” “It established marriage.”
I really do find myself interested in all the legal quotes and allegories that many posters, including the two of you, have offered, but that particular point, which for some reason the two of you have been avoiding saying directly to one another but which you’re clearly arguing about, is worn very very thin.
Although I am encouraged that you recognize the futility of your chosen tactic of misrepresentation and persistent ignorance, and will no longer bother.
I’ve been *quite * direct, on multiple occasions, and as clear as I can be, and so is the 14th. Your statement is incorrect.
You think that *Loving * is just another opinion, do you? No, it’s the law of the land. Marriage is a fundamental right under that law of the land. That’s fact, not opinion. You are not helping anything by equating the concepts.
Shodan: Same sex marriage has not at this point been established as a right outside Massachusetts in the U.S. So far you are correct. Now, marriage is a fundamental right, by SCOTUS decision. About half the board has suggested to you that there is a legitimate Equal Protection issue in guaranteeing opposite-sex marriages and not same-sex marriages. Would you kindly drop the Johnny-one-note routine on “the Constitution does not have language guaranteeing same-sex marriages” and address that issue? You may conceivably have a point worth making about why the Equal Protection Clause does not apply. But we cannot ascertain it if you merely reiterate that point. We know “same-sex marriage” as a phrase does not occur in the Constitution. Neither do “integration” or “withholding tax” or “recorded music copyright” but they do seem to have constitutional meaning and significance. Thank you.
Sigh. No, Shodan, as demonstrated by all the quotes you offer, you have not explicitly said to Elvis “SSM is not marriage.” You just say it indirectly by stating it’s not included in Loving, or has not been established legislatively [as separately from the existing contruct of marriage]. And Elvis, since he hasn’t come right out and said that to you, you haven’t defended the point that SSM is already within the legal definition of “marriage”, instead, you have merely been acting like that’s a given (despite the fact that that’s clearly the point of yours that Shodan disagrees with in this) and thereby spoken in terms of Loving and the 14th Amendment.
Nor, in the absence of *any * argument to the contrary, is it necessary to do so.
Now go back, *read * the thread, and actually try to *understand * the points being made before you offer any more useless opinions about anyone’s conduct here, okay? :rolleyes:
