The Constitutional Argument Against SSM that the lawyers are missing.

As some of you know, I keep up on the legal happenings on constitutional issues. I can’t help but see how some of the best lawyers in the country that are defending same sex marriage bans are tripping over their own dicks on these ridiculous arguments about child rearing.

Here is my legal argument…and even if you disagree, can you comment on its soundness:

Lawrence v. Texas stated that morals laws may not go so far as to prohibit private sexual activity in a home bedroom. It specifically stated that the ruling did not extend to any relationships that people might seek to enter.

Therefore, morals laws (like those against SSM) which don’t intrude on the privacy of the bedroom, but only impact the public recognition of those relationships, are still valid.

Why has no state put forth this argument? It seems the most sensible to me and the least ridiculous instead of going on about children…

That argument is non-responsive to an attack based on equal protection principles.

I seriously doubt that the “lawyers are missing” a good argument, especially on a hot button topic like this. If they haven’t brought it up, I’m pretty sure there’s a reason.

Forbidding same-sex marriage requires that the law fail to extend the same rights to men and women. It requires that you be banned from marrying a man because you are a man and not a woman, and that you be banned from marrying a woman because you are a woman and not a man. If such a law is allowed to exist, it needs to be supported by a far higher standard of argument than “The constitution doesn’t say we can’t!”

This isn’t an argument against SSM. It’s just not an argument for SSM.

I’m not aware that the court relied on Lawrence in their decision.

All you’re saying is that Lawrence did not immediately invalidate anti-SSM laws, which is entirely true. Those laws weren’t part of the suit to begin with, and the Court did not wish to extend the decision to those laws when they did not hear arguments pertaining to them.

In other words, Lawrence was silent on the issue of SSM.

The argument by plaintiffs challenging the bans is not, “Lawrence.” If anything, it’s “Windsor.”

So far as I can tell, this thread is intended to focus on the legal issue.

So, yeah, since states have plenary regulatory authority, a challenge to a state law needs to say, “The constitution says you can’t.”

You may feel that some other argument is morally necessary, of course.

The question concerning morality was addressed in the ruling which struck down the SSM ban in Oklahoma. See the ruling here.

In a commentary on the ruling, a law professor writes in Slate

As for “the best lawyers in the country” tripping over their own dicks, he didn’t address if the best and brightest are only men, or why having a penis is a requirement for being considered good, but he did mention how difficult it is to justify the SSM bans on anything other than old fashioned morality.

Right. But the anti-SSM states are running from Lawrence as if it prohibits morality laws.

Case law is replete with holdings about how states have plenary power to enact laws protecting the public health, order and morality. Laws have been passed throughout history against activities just because we don’t like it: sodomy, bestiality, incest, adultery, fornication, obscenity, liquor on Sunday, and rooster fighting.

All Lawrence said is that in regards to sodomy (and presumably all other consensual sexual activity) a moral disapproval is not a justification to go so far as to intrude into a private bedroom.

It was silent (and thereby left intact) the power to show moral disapproval by refusing to acknowledge such relationships and give the blessing of the state.

Windsor is likewise silent on whether states must recognize SSM, and Roberts in his dissent gives a good argument for why the Court’s holding doesn’t go that far.

The equal protection and due process arguments are folded into the simple statement: this is a traditional morality law that has always been within the power of the state to enact. So long as there is no finding of heightened scrutiny for sexual orientation, a state has the power to pass morality laws.

As per Grumman, shouldn’t it be “heightened scrutiny for sex-based discrimination”?

I’ve never understood this argument. The law doesn’t target males as a class or females as a class. It’s purpose is not to elevate males or diminish females (or vice versa). All persons, regardless of gender, are forbidden from marrying someone of the same gender.

Now, you might say that the same argument was made in Loving (it treats all races equally by forbidding miscegenation) but there are two important differences:

  1. It was a classification based upon race. Those are almost always a no-no.

  2. It’s purpose was purity of the white race. It wasn’t based upon anything other than that “pure” white people should not mixed their seed with blacks. Nothing but a disgusting piece of racist claptrap.

All state laws restricting marriage to opposite sex couples do is continue the very definition of that word that has existed in English common law for 900 years. In his dissent, Judge Niemeyer illustrated this very well. For all of the talk and precedent of a “fundamental right to marry” that word was never used in the context of a same sex couple. It was used as it was always understood.

To apply that term to a same sex couple is a redefinition of the term. To be absurd, if I was to destroy my neighbor’s mailbox and claim that what I did was simply “marry” the mailbox, how far would I get in court by saying that my actions were protected by Loving? Likewise, and less extreme, one can’t equivocate on the definition of the word “marry” and apply it to past cases where such a construction of the term wasn’t even considered.

But more to the point of the thread, Lawrence did not hold that traditional morality laws were per se invalid. It simply said that in the matter of private, consensual sexual conduct, the government could not intrude in the home and prohibit it.

That is a far cry from requiring the government to give state approval to any relationship.

And this is a classification based upon sex, which is often a no-no.

Not far at all. But if you want to “marry” me, and are told that other people could do so, but you can’t because of your race – that someone else can marry me, but you can’t, because, again, you’re the wrong race – well, then cite the Loving decision, surely. And if you’re told you can’t because of your age – that you could in fact “marry” me if you were older, but you’re not, so you can’t – well, then you’re likely out of luck, since we allow age-based discrimination given a pretty good reason.

And if you’re told it’s because of your sex – well, that’s more like the former and less like the latter, isn’t it? You need a terrific reason to discriminate based on race; a good one for sex; pretty good for age; any old reason wil do for handedness; and so on.

You’re right, you really don’t understand the argument. What we are talking about is a fundamental right to not be denied any legal right on the basis of your sex. Being an inanimate object as opposed to a human being is not comparable to being a man as opposed to a woman. That should go without saying, but it seems I have to spell that out for you. Hell, even if it was, your hypothetical would still be bullshit, because that would just mean that destroying the mailbox was murder and thus still a criminal act.

The argument is extremely simple: if it is impossible to write a law without using the words “male”, “female” or equivalent language, that in itself is evidence that it is a bad law, and you’d better have a damn good explanation for why it is necessary.

That statement is simply not supported by case law.

Further, the law does not discriminate against males or females. Both genders are equally forbidden from marrying members of their own gender. There is no intent to raise one gender above another. The law simply does not demean one gender at the expense of the other.

As far as a rational basis for restricting “marriage” as we know that term, to opposite sex couples, is because that is the very definition of that word. States are free to change that definition, but nothing in our history suggests that they MUST change that definition. The gender differences are inherent in marriage at common law and nothing suggests that the 14th amendment changed that. To say that the Congressmen in 1867 meant for two men to be able to marry is absurd to say the least. Would you agree with that?

And more to my point, Lawrence doesn’t suggest that they must change that definition. Under Lawrence, states simply may not outlaw sodomy in the confines of the home. Under Windsor, the federal government may not refuse to recognize marriages legalized by a state. Nothing in recent case law has overturned the ancient proscription against morality laws when those acts come into the public sphere.

I just don’t get the need to look for reasons to prevent something harmless.

Which, again, see Loving: a black man can’t marry a white woman, but it’s cool, because we also won’t let a white man marry a black woman, so we’re cool, right? doesn’t fly.

I’d say it’s of a piece with declaring as self-evident that all men are created equal – while muttering under one’s breath except my slaves.

But that’s not the point; justifying racial discrimination requires stricter scrutiny than justifying sex-based discrimination, which requires more than the rational basis required to discriminate for other reasons: the folks in the 1860s meant to give black men the right to vote, but not to give women the right to vote, because that was just crazy talk. But eventually we got to the right place on that one too.

Right. Through a duly enacted constitutional amendment. Isn’t that an implicit admission that the 14th amendment didn’t guarantee equal voting rights? Hell, section 2 of the 14th explicitly allows unequal voting rights (with reduction of congressional representatives).

So, if the 14th didn’t even guarantee a right to vote, how do we get to a right of same sex marriage?

I would say that it didn’t then, but does now, thanks to decades of Supreme Court decisions interpreting what the law means. You’re aware, I take it, that we now insist that institutionalizing race-based discrimination is a matter for strict scrutiny; that many other forms of discrimination call for a mere rational basis; and that sex-based discrimination is on an intermediate level?

That’s not written into the Constitution. It’s not the text of any Amendment. And, before women got the right to vote, it would’ve been an argument with exactly zero precedents backing it up: nobody would’ve called for INTERMEDIATE SCRUTINY when talking of only allowing males to vote – or practice medicine, or pilot airplanes, or whatever. But if we tried to legislate any of those three today, then even upon hypothetically removing the 19th Amendment we’d scream INTERMEDIATE SCRUTINY for all we’ve got when attempting to strike down each such law.

So I’d say the 19th Amendment (a) addressed a problem we hadn’t yet realized was already solved, but (b) is probably irrelevant in the face of current jurisprudence: we now grant that, as a matter of Constitutional law, sex-based discrimination cries out for an intermediate level of scrutiny: a much lower bar than the strict scrutiny we apply to race-based discrimination, but a much higher one than the mere rational basis we usually require otherwise.

No one knew that in 1920, but we know it now.

If the right of women to vote were being examined in the judiciary today, I’m pretty sure similar 14th amendment reasoning would be invoked, and would probably be successful.

We’re all glad that the 19th amendment was passed, but it wasn’t the only way the matter might have been settled.