And . . . the thread has devolved into yet another debate on gay marriage. That’s not the topic of the thread, folks.
suck it you hateful bigoted degenerate whore-mothered goat-fucking trash(gay marriage ban overturned
I think I saw that movie.
First, if too little people want it then why is it something to worry about? Second, it’s not true that it has taken until now for gay marriage to come up. It’s an ancient concept although it has been forbidden often (pretty much always for religious reasons) - quote from the wiki page:
So, why is this a bad alteration while miscegenation was not? Both result in marriage being ‘less special’, in that more people are able to enter into it.
No, by all means, I’d love to hear them. So far, I haven’t heard any good arguments from you in this thread. I’ve heard you say gay marriage will be a bad thing for society, but I haven’t heard why.
Nice woo, there.
A person can get a pharmacy license, and assuming a person hasn’t committed felony, one can get a gun license. Whether or not you have a pharmacy license is not not immutable like sexual orientation is. Whether or not you can get a gun license is dependent on your personal choices. No one is born bared from gun ownership, or pharmacy biz for life.
However gay people are born bared from marriage for life. If America was a caste society with a pharmacy caste you have to be born into, then maybe you’d have a point. However it isn’t, and if bullshit like that is what you tried in the court room no wonder you have so much free time for a message board these days.
And the government merely thinking has a legitimate interest is not enough for a law to stick. It has to prove it’s claimed interest is compelling enough under the scrutiny of the court system. Which this verdict shows it failed to do so.
Please tell me, what legitimate and compelling interest would the government have in banning gay marriage, in discriminating against law abiding people (who just want to grow old together and share what others share) solely based on an immutable personal characteristic?
In that case, marriage should be destroyed. If it can only survive by bigotry then it is an evil thing and should be condemned and eliminated from both the law and the culture.
Not that I think for one moment that allowing SSM will do anything but the opposite and strengthen the institution.
Aww come on, man! They were juuuust about climax and you had to go and interrupt it.
what does a 60 percent divorce rate tell you about wrong people getting married ?
Seconded. Give specific examples of how gay marriage will harm society. “It changes the traditional definition of marriage” is a circular argument, so don’t bother with that one.
Actual, demonstrable harm to people. The microphone is yours. Go.
I’ve never heard of a divorce rate as high as 60%. Regardless, I’m not sure if you’re trying to argue with me, but I wasn’t saying that I personally think they’re the wrong people, I was saying that that’s what the anti-gay marriage crowd thinks.
I am very much a supporter of same-sex marriage and am happy to live in a country where it’s legal. Having said that, I also don’t care if people choose to get divorced. Neither one threatens the institute of marriage as it stands.
Yeah, if we start altering marriage, one of these days wives will stop being their husbands’ chattels and then where will we be?
That must be some list of reasons same sex marriage will be bad for society, if it’s taking this long to compile.
The problem there is that an overwhelming majority of laws will fail strict scrutiny and we don’t want that. Just as a matter of mechanics, Congress would be completely hamstrung by strict scrutiny of legislation traditionally subject to rational basis review.
There are lots of areas where we really want Congress to have the benefit of the doubt, just to be able to get shit done, and that’s what rational basis does. Strict scrutiny places a burden on the government to prove the constitutionality of everything and requires the court to get all up in Congress’ business, because under strict scrutiny we presume that a law is unconstitutional; under rational basis the presumption works in the other direction and the burden is on the plaintiff to prove that the law isn’t constitutional. Hence the current system which starts at rational basis but (claims to) ramp up the level of scrutiny only when certain red flags are raised.
In practice, of course, there’s a bit of a shell game that goes on with standards of scrutiny, where a court can either manipulate the issue to create/avoid the need for strict scrutiny, or simply claim to be applying one standard and then apply another entirely. Edge cases, like what the hell do we do with sexual orientation – or really any issue where the proper result seems to be to strike a law down, but the standard of review seems to call for deference to the legislature – expose the ways that the scheme can be abused. But the idea that the majority of the time the courts should stay the hell out of the legislature’s way is a pretty critical one.
1.) So what if people are allowed to marry more than one person simultaneously? They’re already allowed to do it sequentially. I highly doubt there’s some huge population of people who’d just love to live in a multiple marriage, if only it were legal. Assuming that everyone involved in the marriage is a consenting participant (and that includes being of an age to properly consent), why shouldn’t an adult be allowed to marry as many other people as they want?
2.) I think this country would be a lot better off if we did away with legal marriages altogether. “Marriage” should be something reserved for ceremonies. All legal privileges currently reserved for married partners would be transferred to civil unions. Any people, regardless of gender, who enter into these contracts would then get those privileges. Then we can start treating all partnered couples (or more, if we lift the restriction on how many people can enter such a contract together) equally, while religious conservatives can “defend marriage” by refusing to perform the ceremonies for any partnership they don’t approve of.
Maybe next you can feign surprise that you’ve never seen any solid evidence for unicorns.
That contains approximately the same level of legal analysis as the proponents’ briefing and oral argument in this case, so I guess I shouldn’t be surprised. Can you point to the particular problems you have with the opinion as issued?
Without debating whether I believe you on this, why, with your great grasp of constitutional law, should this be an issue that requires a vote, when other basic civil rights don’t?
Another serious question (the GD thread has gone way beyond this). Why is sexual orientation an “edge case”? Seems to me that red flags are raised all over the place. Why should this follow a standard of review to defer to the legislature? Even more, the sketchiness of this resides in the fact that this was a ballot proposition as opposed to something that was properly argued by the legislative branch. On top of that, it was pushed by out-of-state religious interests. All the creepiness aside, I still can’t seem to get past the idea that sexual orientation is not a protected class. It is not at all like gender. It is like race.
OK, so you’ve just defined a level of scrutiny: “Does this law create a class of pesons from onwards?”
Congratulations. I was trying to rebut Zeriel’s “No levels of scrutiny” argument, and you’re doing a good job rebutting it too… you must have levels of scrutiny of some kind, because the law must create classes of some kind.
Giving you the benefit of the doubt here and asking one more time that you reply to the following:
Why intermdeiated scrutiny for sexual orientation? Why is sexual orientation more like gender than race? Put differently, what is the rationale behind subjecting race to strict scrutiny and gender to intermediate scrutiny, and why should the latter apply to sexual orientation? Does the rationale have something to do with the fact that sometimes it’s approppriate to discriminate between genders/sexes (no dudes in the ladies’ room; there’s a presumption that young children belong with their moms) whereas it’s hard to think of a reason it would be appropriate to discriminate on race/ethnicity/nationality (happened once, right?)? If so, when is it appropriate to discrimnate based on sexual orientation?
I’m not Bricker, but I really like the question.
The answer depends in part on whether you want a doctrinal answer or a straightforward practical one.
Legally speaking, it’s basically what you said. As a matter of law there are no fundamental differences between the races, so strict scrutiny applies. We presume that there is not a good reason to treat one race differently from the other. With gender, though, the Supreme Court has formally recognized that there are “real differences” between men and women that a court is allowed to take into account when scrutinizing a law - which means, by extension, the legislature could be justified in taking those differences into account when passing the law. That’s why intermediate scrutiny isn’t strict scrutiny.
The other answer is historical and contextual in nature. Basically, it’s hard to get a majority of the Court to find a new protected class. There was a big push from the 50s to the 70s to provide more protection against gender discrimination, but it never reached the level of support that the civil rights era eventually had on the Court (probably understandably considering what a terrible place we were coming from in terms of race politics). Ruth Bader Ginsburg wanted to use strict scrutiny in gender cases, and fought hard for it, but couldn’t get a majority. Then she switched tacks and focused instead on saying, well, fine, but not rational basis. There was enough support for that idea to set up the intermediate scrutiny scheme, and that’s what we still have.
And there you have it. That’s both the rationale and, I think, the realistic view of why we landed on intermediate scrutiny. Your other question, or really your only question, about why isn’t sexual orientation more like race, is one that nobody else is going to be able to give you a definitive answer to. It’s not like either, really, just like race isn’t like gender and gender isn’t like child illegitimacy and none of those are like old age; they all just get lumped into one pile or another. Ultimately, the deciding factor is just going to be how many members of the Supreme Court are ready to make a giant step (toward strict scrutiny), how many are willing to take baby steps (something more strict than rational basis – see Romer v. Evans) and how many aren’t willing to do shit.
Thanks for the thoughtful reply. I guess I was intrigued by the confidence displayed in Bricker’s asserton that intermediate scrutiny should apply. That seemed to come from somewhere other than " how many members of the Supreme Court are ready to make a giant step ." If, for example, he were to agree with your first paragraph, then I would love to know what he sees as the “real differences” between heterosexual people and homosexual people inasmuch as that makes sexual orientation more analgous to sex/gender than to race.