# The State of the CIVIL Union Address **URL:** \ **Category:** The BBQ Pit\ **Created:** [January 21, 2004, 1:47pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455 "2004-01-21T13:47:41Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 26, 2004, 8:31pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/221 "2004-01-26T20:31:42Z")
> [@Bricker](#): > > And this opinion arises, no doubt, from your encyclopediac knowledge of the judicial history of the rational basis and strict scruntiny tests, yes? Well, I’ve asserted the same opinion on multiple occasions, and my opinion arises from having read what I believe is every decision filed in a SSM case since such cases have been filed, and the findings of the judges in each of those cases that not only did the State in question not advance a rational (or compelling or important) reason denying equal marriage rights to same-sex couples, but the reasons the various states offered were actually arguments in favor of opening marriage to same-sex couples. So snark on that for a while. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 26, 2004, 8:39pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/222 "2004-01-26T20:39:58Z")
> [@Shodan](#): > > Gay marriage is a change in law. “Interpreting the Constitution” to find that this right existed all along is a fig leaf, proposed (I suspect) by those who realize that they have no chance of getting what they want from the majority, or in any state legislature (or Congress) and therefore need a judge to impose what they cannot achieve in any other way. Interracial marriage is a change in law. “Interpreting the Constitution” to find that this right existed all along is a fig leaf, proposed (I suspect) by those who realize that they have no chance of getting what they want from the majority, or in any state legislature (or Congress) and therefore need a judge to impose what they cannot achieve in any other way. > [@](#): > > You have to present a persuasive case that will convince the states and/or the people to change the law to give you what you want. This chosen route of arguing that whatever someone wants is mandated by the Constitution will not work, because you also need to come up with some rational basis to argue that we can exclude other forms of “marriage”, like polygamy or incest. No, sorry, it’s not incumbent upon those who argue in favor of equal protection for same-sex couples to explain why equal protection should not also apply to incestuos relationships or multiple marriage. That someone else we don’t like may also end up being protected is not sufficient to deny equal protection to same-sex couples. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 8:47pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/223 "2004-01-26T20:47:11Z")
> [@Dewey Cheatem Undhow](#): > > Which, of course, has nothing to do with the argument advanced by **nisobar** to which I was responding. **Nisobar** had claimed that if the constitution did not expressly prohibit something, then it was a protected right. Which is absurd. My public nudity example speaks directly to that argument. Even speech, which is protected by the First Amendment, can be limited for some reasons. You’ve yet to advance a rational reason, to say nothing of a compelling reason, to limit same-sex marriage. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 26, 2004, 8:52pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/224 "2004-01-26T20:52:17Z")
> [@Dewey Cheatem Undhow](#): > > Which, of course, has nothing to do with the argument advanced by **nisobar** to which I was responding. **Nisobar** had claimed that if the constitution did not expressly prohibit something, then it was a protected right. Which is absurd. My public nudity example speaks directly to that argument. \ The State has asserted any number of reasons for public nudity laws which meet its burden under the rational review test. Public health, public safety, etc. Your desire to wag your weenie in public is a trite and tired comparison and has now been addressed. It has absolutely no bearing on the denial of what has been defined by SCOTUS as a fundamental right on the basis of sex or sexual orientation. ---
**Author:** ![Hakuna\_Matata](https://avatars.discourse-cdn.com/v4/letter/h/a88e4f/32.png) [@Hakuna\_Matata](https://boards.straightdope.com/u/Hakuna_Matata)\ **Post date:** [January 26, 2004, 8:57pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/225 "2004-01-26T20:57:06Z")
Very interesting thread–but it has left me with more questions than answers I am afraid. But I am pleasantly surprised by the almost GD attitude of the posters so far–given that this is in the Pit and all. However up until this last page (even though I am on their side) I found the arguments put forward by Homebrew, Otto, etc not very persuasive as countered by the legal aspects raised by the lawyers. Fundamentally I agree 100% with the emotional position of both Otto and Homebrew–however I don’t agree with them that the ends justify the means–how we arrive at a final solution to this question is extremely important. The constitutional issues raised by DCH and Bricker are very interesting and not being a lawyer I don’t feel I have a basis to counter what they stated. On this last page both Homebrew and Otto have raised very interesting points and I would be very curious to have both DCH and Bricker address them. Particularly the section concerning ‘equal protection under the law’. How is this addressed? Is this a valid argument by them–it appears to me to be so. And if is not valid–why isn’t it? I understand the concept of a rational reason for banning or restricting marriages–but in what way is there a reason for this in the case of SSM? Given that I have yet to see a compelling reason to ban SSM, then wouldn’t this fall under that ‘equal protection under the law’ stated by Homebrew and Otto? Hakuna Matata ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 9:09pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/226 "2004-01-26T21:09:11Z")
> [@Otto](#): > > Absent a rational state interest in forbidding such marriages, you are correct. The state has advanced multiple rational state interests in banning sibling marriages. The state has advanced _no_ rational reason for banning SSM, and is actually IMHO required to advance an important state interest–something else it has failed to do. “We don’t like it” is not an important or a rational state interest, nor is “protecting the sanctity of marriage” nor “protecting the children.” You are quite incorrect. The rational basis test is an exceedingly low bar to jump. Broad concerns for traditional sexual mores or protecting the sanctity of marriage or even plain old moral disaprobbation are perfectly sufficient for that test. It is, again, a test virtually impossible to fail. Read [Romer v. Evans](http://laws.findlaw.com/us/000/u10179.html). Note that that case turned not on the justifications Colorado had for its law (which was similar to the above list), but rather on the basis that those justifications were not sufficiently related to the legislation being contested. The reasons themselves were not considered suspect. You would be correct if strict or even heightened scrutiny were applied to laws restricting marriage to heterosexuals. But that ain’t the test, at least insofar as the current state of constitutional jurisprudence has things. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 26, 2004, 9:29pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/227 "2004-01-26T21:29:34Z")
> [@Otto](#): > > The state has advanced multiple rational state interests in banning sibling marriages. For instance? And what rational interest does it have in banning polygamy? > [@Otto](#): > > The state has advanced _no_ rational reason for banning SSM, and is actually IMHO required to advance an important state interest–something else it has failed to do. “We don’t like it” is not an important or a rational state interest, nor is “protecting the sanctity of marriage” nor “protecting the children.” We are not discussing banning gay marriage. We are talking about implementing court decisions that force states to recognize it. The distinction is subtle, and important. There is no state in the Union currently responding to the will of its people by changing their definition of marriage to include gay unions. This is another major reform whose advocates want very badly to avoid and to frustrate the will of the people. Which is why they want to avoid the onerous burden of actually convincing people to agree to extend the public benefits of marriage to groups and couples to whom it does not now apply. For the same reason, abortion supporters fight like furies to avoid any hint that legislators could be allowed to decide some aspect of abortion law. They are fully aware that it is possible that if the majority gets to rule, abortion supporters will not get everything they want, and will need to attempt to convince a majority of the rightness of their cause. One of the only currently available methods for minorities to overturn the will of the majority is to get their agenda labelled as an inalienable right. Once you have convinced some judge of this, the whole power of the courts is brought to bear to force others to give you what you want. Sometimes this is unavoidable. But it is a continuation of the trend to locate the resolution of any problem in the federal court system, and to center all power in the hands of judges and lawyers. The burden of proof that must be met by advocates of changes to include gay relationships under the definition of marriage (where they do NOT currently reside) must include an explanation of why it has to be done by the courts, and cannot be done by the states, or the people. And “But I want it, and nobody is going to give it to me if they are allowed to decline” is not a good enough reason - unless you can show how the Constitution clearly establishes that you have a right to do so. And no, the Fourteenth does not establish gay marriage as a fundamental civil right. Gay marriage is different from heterosexual marriage, or we would not be arguing about it. And it does no good to try to slip it past the electorate by pretending that the definition of marriage really included gay marriage all along. As before, the advocates of change are obligated to present their case. They cannot (IMO) simply take it for granted that the Constitution says what they want it to, and insist that it be interpreted that way - in such a way as to create new law, not merely interpret existing law. > [@Otto](#): > > There seems to be some misapprehension under which you (and others) are operating. The question is not “is there a right to SSM in the Constitution?” Obviously, **the text of the Constitution is silent on the topic of marriage** , the word not appearing anywhere in it. No, the question is “does the state have the power under the Constitution to bar marriage between two people of the same sex?” The Constitution does not say that the state has that power… Yes, it does. In the Tenth Amendment. > [@Otto](#): > > Marriage discrimination is a federal issue because guaranteeing the people the right to equal protection under the law is a federal issue. And therefore the prohibitions against polygamy, incest, and anything that I want are federal issues. Providing you can show that the Tenth Amendment should not apply to the case of gay marriage, which is not addressed by the Constitution. > [@Otto](#): > > Done and done. 14th Amendment Equal Protection clause. And around we go again. You are advocating a change in our interpretation of the 14th to make it say something about gay marriage, because you can’t find anywhere else in the Constitution where it says anything about gay marriage. You would like to implement a brand new right, and you don’t care to try to do so as directed by the Tenth Amendment. Because the people and the states don’t want it, and you do. And so we need to hand over control over yet another area of our lives to the federal judiciary. :rolleyes: > [@Homebrew](#): > > Marriage has been ruled a basic civl right. That right is being denied on invidious discrimination based on sexual orientation. It is a clear violation of the 14th Amendment. Only your prejudice prevents you from admitting this. And yet, somehow or other, this obvious, clear, glaringly self-evident definition of marriage as “the union of an indeterminate number of people of indeterminate genders for varying purposes” seems to have escaped the attention of most people at most times during the history of this Republic. And clearly there can be no other explanation for resistance to another expansion of the power of the federal courts besides simple prejudice. more :rolleyes: Look, I understand the desire to short-circuit the whole process and just get a judge to order everyone to give you what you want. But this is a genie you may not be able to get back into the bottle once he has granted you your three wishes. Suppose Bush is re-elected, and his coat tails are long enough to get a large majority in the Senate. Now he begins to replace Supreme Court justices, and he can get some extreme, truly anti-gay justices through. And they begin handing down decisions that interpret the Constitution to say what _they_ want it to say. After all, the precedent has been set, and we don’t seem to have come up with a clear set of principles that can even include gay marriage without including polygamy. Are you willing to live with the consequences of that? OK - it is January 26, 2007. The Supreme Court has just ruled 5-4 that the Fourteenth Amendment means that gay sexual acts are illegal. Why? Because that is what they _want_ it to say, and if the states and the people don’t like that, they can lump it - the Constitution says so. Are you happy now that you have excluded any chance of having the states or the people decide what is a new right, and what is not? Regards, Shodan ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 9:41pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/228 "2004-01-26T21:41:21Z")
Let me quote from your own cite: [quoteThe Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271 - 272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. \_\_\_, \_\_\_ (1993) (slip op., at 6). \*\*Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. \*\* Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the [ROMER v. EVANS, \_\_\_ U.S. \_\_\_ (1996) , 10] object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New Orleans v. Dukes, 427 U.S. 297 (1976) (tourism benefits justified classification favoring pushcart vendors of certain longevity); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) (potential traffic hazards justified exemption of vehicles advertising the owner’s products from general advertising ban); Kotch v. Board of River Port Pilot Comm’rs for Port of New Orleans, 330 U.S. 552 (1947) (licensing scheme that disfavored persons unrelated to current river boat pilots justified by possible efficiency and safety benefits of a closely knit pilotage system). The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to ascertain that there existed some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (STEVENS, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”). Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law [ROMER v. EVANS, \_\_\_ U.S. \_\_\_ (1996) , 11] is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928). **It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'"** Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws is a pledge of the protection of equal laws.’” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). .** [/quote] (bolding added) You passed the bar exam and you can’t even read for comprehension? Let me requote. I’ll use large print to help youl: \*\*Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. \*\* The decision explicitly says Colorado’s Amendment 2 fail even a rational basis test. Shodan: Look up _Appeal to Consequences_. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 26, 2004, 9:41pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/229 "2004-01-26T21:41:29Z")
> [@Otto](#): > > No, sorry, it’s not incumbent upon those who argue in favor of equal protection for same-sex couples to explain why equal protection should not also apply to incestuos relationships or multiple marriage. That someone else we don’t like may also end up being protected is not sufficient to deny equal protection to same-sex couples. This sounds to me like an extremely reluctant, but nonetheless definite, admission that interpreting the Fourteenth Amendment to include gay marriage must necessarily require the revocation of any and all laws against polygamy, incest, etc. Is that correct? Again, I understand the reluctance of those who claim that a right to gay marriage exists in the Constitution to face up to the consequences of this. But don’t you think it might be better to see if we can think thru all the results before we force thru the change? Regards, Shodan ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 9:44pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/230 "2004-01-26T21:44:54Z")
> [@Otto](#): > > \ The State has asserted any number of reasons for public nudity laws which meet its burden under the rational review test. Public health, public safety, etc. Your desire to wag your weenie in public is a trite and tired comparison and has now been addressed. It has absolutely no bearing on the denial of what has been defined by SCOTUS as a fundamental right on the basis of sex or sexual orientation. > [@Homebrew](#): > > Even speech, which is protected by the First Amendment, can be limited for some reasons. You’ve yet to advance a rational reason, to say nothing of a compelling reason, to limit same-sex marriage. Look, guys, I think you’re not hearing me. My public nudity example was specifically addressed to the argument raised by **nisobar**. It was not addressed at either of you, or at any of the arguments you’ve raised. It was perfectly applicable to the theory **nisobar** was advancing. It is inapplicable to the theses you guys are advancing (at least now; IIRC, **Homebrew** was advancing a similar “if not prohibited, then a right” theory earlier in the thread). In short: _of course_ it doesn’t apply to your recent posts. It was a narrow example designed to address a particular point raised by another poster. Quit pretending otherwise. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 26, 2004, 9:49pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/231 "2004-01-26T21:49:45Z")
> [@Dewey Cheatem Undhow](#): > > You are quite incorrect. The rational basis test is an exceedingly low bar to jump. Broad concerns for traditional sexual mores or protecting the sanctity of marriage or even plain old moral disaprobbation are perfectly sufficient for that test. It is, again, a test virtually impossible to fail. > > Read [Romer v. Evans](http://laws.findlaw.com/us/000/u10179.html). Note that that case turned not on the justifications Colorado had for its law (which was similar to the above list), but rather on the basis that those justifications were not sufficiently related to the legislation being contested. The reasons themselves were not considered suspect. > > You would be correct if strict or even heightened scrutiny were applied to laws restricting marriage to heterosexuals. But that ain’t the test, at least insofar as the current state of constitutional jurisprudence has things. I love how you hold out the rational basis test as one “virtually impossible to fail” and then immediately link to a case in which it failed when applied to sexual orientation. You might add to that link [Lawrence](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&linkurl=http%3A%2F%2Fbenefitsattorney.com%2Flinks.html&graphurl=http%3A%2F%2Fbenefitsattorney.com%2Fimages%2Freturn.jpg&vol=000&invol=02-102) which also failed the rational basis test > [@](#): > > The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Since upholding “traditional sexual mores” was not a legitimate enough state interest to allow the state to prosecute people for ass-fucking, I truly doubt that a court could credibly rule that it’s sufficient to uphold a ban on a marriage which may not involve sex at all. There is after all no requirement that married couples have sex or even intend to have sex before a license will be issued. As for the sanctity of marriage, one would need to show through the evidence that the religiously-based idea of “sanctity” was permissible in light of the First Amendment. Should that hurdle be cleared, one would have to show by the weight of the evidence that allowing same-sex couples to marry would harm the “sanctity” of even a single mixed-sex marriage. Personally were I the plaintiff I’d call Britney to the stand for a discourse on the “sanctity” of her marriage of 55 hours’ duration. Since it can’t be shown that legal SSM has any detrimental effect on the sanctity of a single marriage, the lie is put to that argument as well. Since, however, denying SSM is a matter of sex discrimination, heightened or intermediate scrutiny is the proper standard. But regarldess of the applied standard the simple fact remains that there is no rational basis for denying SSM. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 26, 2004, 9:55pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/232 "2004-01-26T21:55:24Z")
> [@Homebrew](#): > > Shodan: Look up Appeal to Consequences. I did. Do you think it applies? In other words, if it is a logical fallacy to say “We cannot force this interpretation of the Fourteenth Amendment because it will have bad consequences”, then isn’t it equally a fallacy to say “We have to force this interpretation of the Fourteenth Amendment, or else it will have bad consequences”? If you are going to exclude any consideration of consequence, then you have lost the argument that claims that moral disapproval of gay sex leads to gay-bashing, and is therefore a bad thing. You probably didn’t mean Appeal to Consequences, but _reductio ad absurdum_. Look it up. Regards, Shodan ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 10:13pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/233 "2004-01-26T22:13:24Z")
> [@Homebrew](#): > > Let me quote from your own cite: > > You passed the bar exam and you can’t even read for comprehension? > > Let me requote. I’ll use large print to help youl: > [Large quote deleted] > > The decision explicitly says Colorado’s Amendment 2 fail even a rational basis test. I’m wondering about your reading comprehension skills, given that my post clearly indicated that Amendment 2 failed the rational basis test. The salient point is not that it failed that test, but rather _why_ it failed that test. If you read _Romer_, rather than just blindly cutting and pasting from the text of the decision, you’ll see that it did not fail because the rationales proffered by the government were illegitimate, but rather because the statute in question did not bear a close enough connection to those rationales. Let me explain further. Colorado offered as rationales supporting Amendment 2 “respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality [and an] interest in conserving resources to fight discrimination against other groups.” The court did not strike Amendment 2 because these were insufficient rationales for purposes of the rational basis test. Instead, the court struck Amendment 2 because it did not have a sufficient connection with those proffered rationales. Presumably, if Amendment 2 had actually enhanced the associative freedoms of landlords or employers with religious objections to homosexuality, it would have passed rational basis scrutiny. My point was simple: almost anything can constitute a valid rationale for rational basis test purposes. So long as the law in question can be said to actually work to achieve that rationale (as the law in _Romer_ did not), it will survive rational basis scrutiny. I realize this is probably a more nuanced argument than you’re capable of handling. But I hold out hope nonetheless. Read the case carefully, think about the specific reason the law was held invalid, and then return to my argument. I think you’ll see that it makes perfect sense. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 26, 2004, 10:17pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/234 "2004-01-26T22:17:11Z")
> [@Shodan](#): > > For instance? And what rational interest does it have in banning polygamy? I for one am not discussing multiple marriage, or sibling marriage, or any other form of marriage on your Parade of Horribles that you insist will come drooling down the pike should same-sex couples have their right to marry recognized. > [@](#): > > We are not discussing banning gay marriage. We are talking about implementing court decisions that force states to recognize it. No, we are talking about the inevitable federal court case which will arise and upon which at some point SCOTUS will have to rule. We are talking about using federal power to sweep aside unconstitutional anti-marriage statutes, as SCOTUS did in Loving, and Turner, and Zablocki. > [@](#): > > The distinction is subtle, and important. There is no state in the Union currently responding to the will of its people by changing their definition of marriage to include gay unions. This is another major reform whose advocates want very badly to avoid and to frustrate the will of the people. Which is why they want to avoid the onerous burden of actually convincing people to agree to extend the public benefits of marriage to groups and couples to whom it does not now apply. There are times when the will of the people needs to be thwarted. Segregation was the will of the people. Miscegenation was the will of the people. Amendment 2 and sodomy laws were the will of the people. The will of the people can and must be disregarded when it is the will of the people to enshrine discrimination into the laws and statutes of their states or the nation. > [@](#): > > For the same reason, abortion supporters I’m not discussing abortion. > [@](#): > > The burden of proof that must be met by advocates of changes to include gay relationships under the definition of marriage (where they do NOT currently reside) must include an explanation of why it has to be done by the courts, and cannot be done by the states, or the people. And “But I want it, and nobody is going to give it to me if they are allowed to decline” is not a good enough reason - unless you can show how the Constitution clearly establishes that you have a right to do so. Well, no, the burden of proof does not include “an explanation of why it has to be done by the courts,” beyond “the state has a law that conflicts with the Constitution.” > [@](#): > > And no, the Fourteenth does not establish gay marriage as a fundamental civil right. Cite? > [@](#): > > Gay marriage is different from heterosexual marriage, or we would not be arguing about it. The only differences between mixed-ses and same-sex marriage is the sex of the partners and that the latter is currently not recognized. And that’s it. > [@](#): > > And it does no good to try to slip it past the electorate by pretending that the definition of marriage really included gay marriage all along. I’m unaware that this argument is being made. I am aware of the argument that historical research has indicated that the assertion of anti-marriage forces that SSM has never been recognized appears to be a lie. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 26, 2004, 10:29pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/235 "2004-01-26T22:29:06Z")
> [@Otto](#): > > I love how you hold out the rational basis test as one “virtually impossible to fail” and then immediately link to a case in which it failed when applied to sexual orientation. Indeed, _Romer_ is a very unusual case in that it failed the rational basis test. It is noteable precisely because it is one of the very few cases to do so in well over a century of equal protection jurisprudence. The description of rational basis as virtually impossible to fail remains apt. I chose _Romer_ specifically to illustrate that even in the rare instance where a law fails rational basis, the threshhold for what constitutes a legitimate proffered reason for a law is so low as to be nonexistent. Recall per my last post to **Homebrew** that the law in _Romer_ failed not because the reasons advanced for the law were impermissible, but because the law was not sufficiently related to that accomplishment of those reasons. Clearly there is no such disconnect with the marriage laws. > [@](#): > > You might add to that link [Lawrence](http://laws.findlaw.com/us/000/02-102.html) which also failed the rational basis test. This is factually incorrect. _Lawrence_ was decided on substantive due process grounds, not on equal protection grounds (only Justice O’Conner would have decided on equal protection grounds). The rational basis test is not part of substantive due process inquiries. Ergo, the Texas law in _Lawrence_ cannot be said to have failed the rational basis test (or, indeed, any of the equal protection tests). The rest of your post continues to confuse equal protection arguments with substantive due process arguments. Straighten out which one you’d like your position to rest on, and we’ll continue. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 26, 2004, 11:05pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/236 "2004-01-26T23:05:43Z")
> [@Dewey Cheatem Undhow](#): > > Recall per my last post to **Homebrew** that the law in _Romer_ failed not because the reasons advanced for the law were impermissible, but because the law was not sufficiently related to that accomplishment of those reasons. Clearly there is no such disconnect with the marriage laws. Impermissible. Insufficient. A distinction without a difference. They were impermissible because they were insufficient. Futher, I think you misinterpret the meaning of these decision. _Romer_ failed the Rational Basis test. Period. Colorado did not then, and noone else has since, offered a reason that would pass that test. _Lawrence_ didn’t rely on Equal Protection because it couldn’t even pass the muster of Due Process (see the 14th Amendment, again). I submit that the language of the decision and O’Conner’s concurrence suggests it would have failed Equal Protection also. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 26, 2004, 11:10pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/237 "2004-01-26T23:10:25Z")
> [@Otto](#): > > I love how you hold out the rational basis test as one “virtually impossible to fail” and then immediately link to a case in which it failed when applied to sexual orientation. Geeze. **Homebrew** , did you read _Romer_? Did you understand the basis for the decision in Romer was the absence of a sufficiently close nexus between the effect of the law and the reasons advanced in favor of the law? In simpler words, the problem in _Romer_ was NOT the rational basis for the law: it was, even accpeting the rational basis as solidly grounded, the law did not closely enough address the issue. > [@](#): > > You might add to that link [Lawrence](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&linkurl=http%3A%2F%2Fbenefitsattorney.com%2Flinks.html&graphurl=http%3A%2F%2Fbenefitsattorney.com%2Fimages%2Freturn.jpg&vol=000&invol=02-102) which also failed the rational basis test ACK! Look, there’s no shame in not understanding how to read opinions. I admit it can be daunting. But if you’re going to make claims about what an opinon says, THEN I think you need to understand it. _Lawrence_ had nothing to do with equal protection. It was decided on substantive due process grounds. You offered _Bowers_ as an answer to the “most absurd” rational basis law. _Bowers_ has, of course, been overruled. But not on equal protection grounds. So either you _endorse_ the reasoning of Bowers or you failed to provide a useful answer to my question, the point of which was to determine if you understood the rational basis test. - Rick No, it did not. Since upholding “traditional sexual mores” was not a legitimate enough state interest to allow the state to prosecute people for ass-fucking, I truly doubt that a court could credibly rule that it’s sufficient to uphold a ban on a marriage which may not involve sex at all. There is after all no requirement that married couples have sex or even intend to have sex before a license will be issued. As for the sanctity of marriage, one would need to show through the evidence that the religiously-based idea of “sanctity” was permissible in light of the First Amendment. Should that hurdle be cleared, one would have to show by the weight of the evidence that allowing same-sex couples to marry would harm the “sanctity” of even a single mixed-sex marriage. Personally were I the plaintiff I’d call Britney to the stand for a discourse on the “sanctity” of her marriage of 55 hours’ duration. Since it can’t be shown that legal SSM has any detrimental effect on the sanctity of a single marriage, the lie is put to that argument as well. Since, however, denying SSM is a matter of sex discrimination, heightened or intermediate scrutiny is the proper standard. But regarldess of the applied standard the simple fact remains that there is no rational basis for denying SSM. [/QUOTE] ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 26, 2004, 11:21pm UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/238 "2004-01-26T23:21:43Z")
> [@Homebrew](#): > > Impermissible. Insufficient. A distinction without a difference. They were impermissible because they were insufficient. You could not be more worng. If the state claims a legitimate interest in ensuring that people can only display their natural hair color, and to that end passes a law forbidding the posession of inks, dyes, and coloring materials of any kind, a court may overturn that law for the reason that, although the state’s goal is OK, the law they chose isn’t closely related to the achievement of that goal. The law doesn’t forbid wigs, and it criminalizes many things that are unlikely to be related to dying hair. The law could be overturned as well with the finding that the state has no legitimate interest in forcing people to display only their natural hair color. But the two results are quite different as well as quite distinct. Get it now? - Rick ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [January 27, 2004, 12:34am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/239 "2004-01-27T00:34:48Z")
> [@Bricker](#): > > You could not be more worng. Never underestimate my ability to be wrong. However, this case is not one of those times. The distinction without a difference reference pertains only to Dewey’s faulty analysis of _Romer_. You and Dewey are flat wrong about the reasoning in the court’s decision which are clearly and repeatedly stated. Justice Kennedy’s opinion reads, **it lacks a rational relationship to legitimate state interests. … A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.** Clearly the judgement was that Amendment 2 failed on many counts including Equal Protection and the Rational Basis test. > [@](#): > > Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. **We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not.** (bolding mine) Any attempt to parse this as saying the court accepted the rational basis for _Romer_ but ruled that it was overboard is semantic gynastics worthy of **The Ryan**. How can “a law must bear a rational relationship to a legitimate governmental purpose … Amendment 2 does not,” possibly be interpreted as “the problem in _Romer_ was NOT the rational basis for the law”? It can’t honestly. As to _Bowers_ and the fact that it is on-point. You asked me “is the most absurd or irrational law upheld by the Supreme Court when applying the rational basis test?” _Bowers_ **was** upheld and it was subjected to the rational basis test. The opinion in _Bowers_ read, in part: > [@](#): > > Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis. The court at that time explicitly said it met the Rational Basis Test. The fact that _Lawrence_ overturned that decision just proves I was right. You didn’t ask why it was overturned. > [@Bricker](#): > > ACK! Look, there’s no shame in not understanding how to read opinions. I admit it can be daunting. … _Lawrence_ had nothing to do with equal protection. It was decided on substantive due process grounds. (addressed to **Otto** ) I reply, Lawyer advise yourself. From _Lawrence_: > [@](#): > > Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests > > [snip] > > The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Justice Kennedy explicitly mentions “Equal Treatment” which translates to “Equal Protection”. Also the mention that the statute futhers “no legitimate state interest” is the language used to determine whether a statute meets a “rational basis test”, the test used for Equal Protection cases. Therefore, Equal Protection is mentioned both explicitly and implicitly. Now that we’ve played your quiz for so long, how about you answer my challenge. Present one rational reason to limit same-sex marriage that would pass muster on a Rational Basis Test. I’ll go easy on you and not even require Strict Scrutiny, although I’d be interested in knowing why you don’t think homosexuals deserve the heightened protection given to other minorities. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 27, 2004, 1:47am UTC](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455/240 "2004-01-27T01:47:59Z")
> [@Otto](#): > > I for one am not discussing multiple marriage, or sibling marriage, or any other form of marriage on your Parade of Horribles that you insist will come drooling down the pike should same-sex couples have their right to marry recognized…I’m not discussing abortion. In other words, you not only decline to justify the principle under which you wish the Court to impose sweeping changes, you also decline to discuss any possible consequence of those changes. So, what you are saying is that I need to completely change my view of marriage, based on nothing at all besides the increasingly shrill insistence of a minority that they want me to do so. And they refuse to acknowledge that it might not be such a good idea to establish such a precedent. Congratulations. You have begun to change my mind on the subject. Maybe an amendment to keep you from imposing such a half-baked notion on the rest of us is not such a bad idea after all. > [@Otto](#): > > I am aware of the argument that historical research has indicated that the assertion of anti-marriage forces that SSM has never been recognized appears to be a lie. Really? Which states currently recognize same-sex marriage as a matter of law? Regards, Shodan [Previous page](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455.md?page=11) [Next page](https://boards.straightdope.com/t/the-state-of-the-civil-union-address/225455.md?page=13)