I was unaware that the Supreme Court explicitly said that “one man and one woman” means “two men or two women”. Or are you interpreting what they said?
That’s a pretty weak equal protection analysis, since that wasn’t the right the litigants were trying to exercise. If a woman can legally marry a man, but a man can not legally marry a man, they are being denied equal protection of the law. It is irrelevant whether there is a tangential right that they could possibly exercise.
Now, given that there was a denial of equal protection, the next question is whether it was justified by the government (because the Court has recognized that the 14th amendment can’t be read to literally deny the government the right to distinguish between people; as is often the case, judicial gloss is needed to make a poorly, or vaguely, worded statute intelligible. And when the government can articulate a good reason for the discrimination - say, greater restrictions on driving privileges by teenagers, since they are at greater risk of car accidents - the Court is generally loathe to strike down the law).
So, the burden is on the State to justify a denial of equal exercise of a right (and, despite what I regularly hear, that right need not be expressed in the constitution to exist - the 9th amendment makes that clear). Personally, I don’t think a denial of the right to marriage can even meet the lowest threshold, since there is no rational basis to deny it (i.e. it doesn’t dilute “traditional” marriages, there is no data that it prevents harm to children…in fact, the only justification is moral opprobrium).
The reason I suspect that the Court did not go down this road is because it would then have to concede that homosexuals are a discreet, insular minority with a history of discrimination, whose defining characteristic is either immutable or (like religion) so closely intertwined with the person’s identity as to be beyond change. These are the characteristics of heightened scrutiny (at the level of sex discrimination), making the government’s job even harder to justify the discrimination.
Ergo, a recognition of Homosexuals as a suspect class would have meant that it would almost certainly be unlawful to discriminate against them in other ways (such as employment discrimination)…in effect, it would offer them a panoply of legal protections heretofore not articulated. I’m guessing Justice Kennedy wasn’t willing to go that far, so he chose the more narrow issue of the right to marriage. Sadly, I expect that we will have to wait for another Supreme Court case before the court addresses the obvious issue of whether discrimination solely on the basis of sexual preference is a legitimate denial of equal protection.
What law do you mean? The one that established marriage as the union of one man and one woman?
In what way am I being denied the equal protection of a law that says I can do something because I am not allowed to do something different?
Regards,
Shodan
And what law was that? If it’s codified somewhere, can you see that it discriminates against people? (Note, I am not asking you to concede that it is improper; just that it makes a distinction between what a man can legally do and what a woman can legally do).
Huh? I never said that men were being denied equal protection under a law that allow them to marry a woman, regardless of whether they are gay. What I said was that this wasn’t the right they were trying to exercise, so it’s a red herring.
If you go to breakfast and order bacon, and they tell you that they are out of bacon, but you can have sausage, then, regardless of whether you got the sausage, you still didn’t get the bacon. The Scalias of the world would have it that a gay man can always marry a woman, so he isn’t being denied equal protection of the law, but that ignores the fact that he can’t marry a man, despite the fact about half of his fellow citizens can do so (pre Obergefell).
It establishes what marriage is, and what it is not. I’m not sure what you mean, though - I suppose you could phrase it that a law that establishes that everyone can do something discriminates against those who want to do something else, but I doubt this is a very useful definition.
The litigants argued that they were being denied the equal protection of the law. The law said that marriage is the union of one man and one woman. There was no law that said marriage was the union of two men or two women. Thus, there was no law whose protection they were being denied.
SSM advocates were claiming that they were being denied the equal protection of a law that didn’t exist. The Supreme Court obliged them by making up that law, which is illicit. The Supreme Court does not make the laws - that why we have legislatures.
If you go into a vegetarian restaurant and order tofu, you don’t then complain because they didn’t bring you pork chops. Tofu != pork. The union of one man and one woman != SSM.
If you want to argue that your right to equal protection is being denied, you need to point to a law and show how that actual law is not being used to protect you. Not a different law, not a law that doesn’t exist but you wish did - an actual law.
Actually, as of recently you don’t - just convince five liberals in black robes that the law should exist, and they will make it up on your behalf.
Regards,
Shodan
If the state passed a law that said that no person could get married, it would not be a denial of equal protection - everyone is being affected. But a law that defines marriage as between one man and one woman is discriminatory, in that it excludes from the class of people eligible for marriage those who would marry someone of the same gender. You can’t define away discrimination. Under your logic, a state could impose racial discrimination by simply defining the Public as being “white people.” Poof - a law that says that public accommodations must be held open to the public only applies to white people, and no Black person can challenge it, since, by definition, it doesn’t refer to them.
Did the litigants argue a denial of equal protection? I haven’t read the briefs. If it was part of their argument, it was ignored by the court, who didn’t reference it in their decision.
And, I guess, a law that says that only men can go to college is not a denial of equal protection for women…since they have been excluded from the law, they have no basis to claim that it denies them rights…do I have that correct?
No. Advocates were saying that a law that does exist denied them equal protection, in that it was discriminatory. Please note, as I have tried to point out, that this doesn’t necessarily make the law unconstitutional. But it is the threshold question that gets us to “what was the reason for the law”?
Where do you think the common law comes from? And are you of the opinion that a court which invalidates a law has suddenly made law (i.e. by striking down this law, we have enacted its opposite). Because that seems to be the conclusion you’ve drawn.
My analogy (admittedly weak) was plainly lost on you. A grant of one right does not negate the fact that another right (granted to others) has been denied.
And if you can point to an actual law and note that it grants rights to one class of people while denying that right to another class of people, you have an Equal Protection issue. If the government passed a law that said that “All college educated citizens are entitled to a stipend of $20,000 per annum”, are you saying that people who are not college educated can’t challenge it, because it doesn’t apply to them?
I have said before that I think the Obergefell decision was poorly decided. I don’t agree with the court’s rationale of elucidating “fundamental rights” (even if they are deeply rooted in history and tradition) because it doesn’t give the court clearly defined parameters upon which to make the decision. I wish the case had been decided on Equal Protection grounds. It was not.
No it doesn’t - nobody is eligible to marry someone of their own gender. No one is being discriminated against. Everybody is free to marry someone of the other gender. No one is being discriminated against.
The state did say that no one could enter into a SSM. Everyone is affected by this equally. Ergo, no equal protection violation.
No, you don’t have it correct. The laws that established marriage did not say that some people were forbidden to enter into a marriage (outside the permitted degrees of consanguinity) and others were allowed. Anyone could enter into a marriage - thus the law afforded equal protection to everyone.
And they were wrong, as has been pointed out. No one was discriminated against. Anyone could get married.
From legislators. Not from the judicial branch, who interpret and apply the laws as they stand, nor from the executive branch, who execute the laws. From the legislators, who make the law.
No, that is incorrect. As mentioned, the laws establishing marriage did not deny their protection to anyone, because anyone who chose to could enter into a marriage, as defined by the laws.
Great. Then all that is necessary is to point to the law that denied the right to enter into the union of one man and one woman to someone, and we will agree that we have an Equal Protection issue. But that law has actually to exist before we can agree it is an issue.
So, please show me the law, prior to the Supreme Court decision, that established SSM as the union of two men or two women, and point out where someone was denied the opportunity to enter into that kind of a union. As mentioned, the laws of marriage do not establish SSM, so that is not good enough.
No, I am saying that if the government passes a law saying that everyone gets a stipend of $20K, you aren’t being denied the equal protection of that law because you don’t get $50K.
The laws establishing marriage are not analogous to a law saying that only the college-educated get a stipend. There is no class of people who can’t get married. Thus, no equal protection problem. Likewise, there is no class of people who can enter into a SSM. Likewise, no equal protection issue.
Regards,
Shodan
Hauntingly exact replication of the argument against interracial marriage. Everyone is free to marry someone of their own race; no one is being discriminated against.
Yes, Shodan, people were being discriminated against. The plaintiffs in Obergefell were prohibited from doing what other couples, all around them, were permitted to do. Marry.
To say that this isn’t discrimination is really silly. Also, to say that there is any reason for such a prohibition is silly. Toward the end, people were seriously trying to say that it harmed them because it changed the dictionary definition of the word “marriage.” Such harm!
That would be a good argument if the common law had established marriage as the union of one man and one woman of the same race.
No, they weren’t. Anyone could marry.
Regards,
Shodan
The law did say that! Would you have been arguing that the equal protection clause doesn’t apply to interracial couples, because the law, such as it was, was being applied to everyone?
By the way, the Supreme Court found that Virginia’s law that outlawed interracial marriage did violate the equal protection clause. And in that case, the Commonwealth of Virginia argued that whites and blacks were equally protected, because both whites and blacks were prohibited from marrying people of another race.
And anyone in Virginia could get married, so by Shodan’s argument there was no class of people being denied the right to marry.
I think the analogy fails for a few reasons, but mainly because there was nothing in the common definition of marriage, at the time, that would exclude interracial marriages. And that’s whys they had to make laws against it. No one made laws against SSM because marriage, by common definition, was between opposite gendered people.
The other thing, of course, is that there is no objective way to determine race. The “one drop rule” is not realistic, since most people know little about their family tree back more than 3 or 4 generations.
Missed the edit window…
Also, the common law going back to English Common Law did not prohibit interracial marriage, nor was there ever a time when interracial marriage was banned across all the American colonies or all the US states.
SSM popped into the culture sometime around the early 2000s and really hit the stage when the MA Supreme Court ruled anti-SSM laws to be against the state constitution in 2004.
I’m going to start here, because this comment betrays a misunderstanding of our legal system. The common law is, in fact, judge made law.
Wikipedia is more concise
So you are incorrect if you believe that the only laws in this country come from the legislature.
What I take from the rest of your argument is that you believe that Equal Protection would only apply when we are examining the discriminatory application of a facially neutral law (say, a state passes a law saying that kids are entitled to subsidized school lunches if they get approval after demonstrating economic need. If the only people getting approval are the white kids, the rest of the kids - contemplated under the law - are entitled to challenge the application of the law). And I agree that this qualifies as an equal protection issue.
But you are ignoring the more obvious example of a discriminatory law which excludes some people on its face (a subsidized lunch program that is only available for white kids). Those people that are excluded from the law, I guess, have no law in which they can point to which affords them a right which they are being denied. But that misses the obvious point that a law which is crafted to exclude people does deny those people the equal protection of the law. And, at that point, the burden is on the State to justify it.
You are framing the issue (marriage to opposite gender vs. same gender) to reach your desired conclusion, while refusing to ignore the practical reality that half the country had a right that the other half did not:
Prior to the Supreme Court decision, I was able to marry Jennifer, a woman. My friend Tanya, on the other hand, was not able to marry her girlfriend, also a woman. Or, to frame it more generally, a man had a right to marry a woman, while a woman did not have that right. That is discrimination.
You keep insisting it is not, because that woman could exercise a different right (i.e. marry a man). But that just ignores the issue of whether a man and a woman had the same right to marry a woman: they did not.
[QUOTE=John Mace]
I think the analogy fails for a few reasons, but mainly because there was nothing in the common definition of marriage, at the time, that would exclude interracial marriages. And that’s whys they had to make laws against it. No one made laws against SSM because marriage, by common definition, was between opposite gendered people…
[/QUOTE]
Huh? If you are correct, then why did States pass laws banning same sex marriage?
For fear that the court would decide to mandate its legality, as they did in MA. Nowhere in the entire history of the country had any political body legalized SSM though the democratic process. That happened quite a bit for interracial marriage. And as noted, it was never illegal throughout the entire country. Never.
Do I understand your argument correctly? - The court was within its authority to ban miscegenation laws because they were not traditionally a part of marriage?
If so, I disagree. While you are correct that there wasn’t a national anti-miscegenation law (and it wasn’t uniform among the several states), many states had such laws going back before the country was even founded. Just perusing Wikipedia, Virginia passed one in 1691, South Carolina in 1717, North Carolina in 1715, Louisiana in 1724, Georgia in 1750, Delaware in 1721, Massachusetts in 1705, Pennsylvania in 1725, and Maryland in 1692 (and that’s not an exhaustive list…just the ones I saw that predated the founding of the United States).
The Loving case outlawing these laws was in 1967. If anyone wanted to claim that there was a historical tradition underpinning laws against inter-racial marriage, they could easily point to over two centuries of legal history to back their claim. In terms of Virginia, specifically, the law had been in place for 276 years!
Meanwhile, in the interest of accuracy, it appears that the first state to define marriage as between one man and one woman was Maryland in the 1970s, which was done in response to a law prohibiting sex discrimination.
So it is not true that miscegenation laws were not part of the traditional definition of marriage, and it is not true that same sex marriage only became an issue in the 2000s.
Throughout history the term marriage had a precise definition. The contours of it changed from time to time, but from the dawn of civilization until 2003, it meant the union of a man and a woman who pledged to be together for life. To ask “why can’t a man marry another man” would be akin to asking why a man can’t be a mother or a woman can’t be a father. You’ll note that no state law says that a man cannot be a mother.
So, once we decide that we knew better than all of the societies that preceded us, we have the power to change these laws. We can provide for legal recognition of same sex partnerships, or even redefine the concept of marriage to include same sex couples. That was being done in several states.
But for a court to say as a matter of constitutional law that every state MUST redefine the common law and decide that a marriage can be between two men or two women is simply absurd on its face, and a bald act of legislative power.
The equal protection arguments are likewise absurd. The law does not discriminate against male or against female. All the law does is limit a choice in a marriage partner which the individual never had under the definition of marriage that has been around for centuries. The bottom line was that all the laws did was prevent some people from doing something that they would have preferred to do. It turns out that is what every law does.
The neat trick that the left uses is to group people and say that it is “bigoted” against the group. It worked well for same sex marriage, and it could be used for almost anything else. There are laws everywhere against having sex in public. Nobody seems to argue against them. However, I could claim that such a law targets exhibitionists as a class. Exhibitionists are marginalized, discriminated against, and cannot engage in their preferred type of sexual activity, while everyone else is free to engage in their preferred sexual activity. Exhibitionists have no remedy at the ballot box because they are a disfavored minority.
Therefore, laws against public sex are simply outdated morality designed to show “animus” towards a group of politically powerless people and such laws deny them equal protection under the 14th amendment.
Except for divorce, which changed that definition. Why do you ignore that cataclysmic change to the definition?
No, don’t be absurd: state laws don’t mandate biological impossibility. (On the other hand, we do have single parents, where one person is both father and mother.)
Yes. And Hooray.
So you assert, but give no reason.
The exact same argument entails against mixed-race marriage. The discrimination is against couples, and their choices. You might just as well argue that laws banning mixed-religion marriage “don’t discriminate.” Like hades they don’t!
“All the law does is limit a choice…” Yeah, and that violates our rights and freedoms, without any possible constitutional defense.
The rest of your absurdity is not worth the time to address. If you honestly feel that same sex marriage is the same as public exhibitionism… Well, that argument is wearing no pants.
Marriage is a civil contract. If you want to make it a religious sacrament then fine but the government has no place in ensuring that marriage meets YOUR religious requirements.
So since it is a civil contract, why should you be limited to who you can make a contract with (assuming 18 or older)? If my state said that as a man I could only contract consulting work with women on never with a man - but that OK because I’m allowed to contract with women wouldn’t the people and the courts have a problem with that?