So, the State of Utah is basically saying it doesn’t have to prove or even substantiate their claim of ‘gender complementarity in parenting’ nonsense and all they have to do is basically declare “these are the core “legislative facts” that lawmakers and voters have relied on in limiting marriage to man-woman unions” and that’s just the end of it? I am not aware of this argument being posed in any of the other marriage equality cases. I find it pretty unbelievable that the state doesn’t need to prove how legislation promotes a legitimate government interest. It’s almost like they are admitting they know they have no credible evidence to support their argument so they are trying to argue they have no burden of proof.
It’s my understanding, as a layman who has had this explained by Doper lawyers in other similar threads, that to prove a rational basis for a law, the state only has to prove that there WAS a rationale, not that such rationale was factually valid. Rational basis is trumped by strict scrutiny, however, and that’s what orientation seems to be crawling towards case by case.
If I were in your position, I’d be looking forward as well. One of my friends is gay. He lives mostly in California and his Japanese partner lives in Tokyo. Because of DOMA, they were not able to get a spouse visa. With DOMA dead, they got married in his hometown and are applying so that his husband can live with him there.
That’s OK, it’s a slow process, but it starts by not allowing people to openly express their bigotry.
I’ve got a really good friend who grew up in the South. He’s almost 70 now and while he’s not openly racist, he once made a comment to me which I wouldn’t have accepted from anyone else without protesting.
Change does take a while, but as more and more same sex marriages happen and people see that the world isn’t coming to an end, I think the prejudice will fade (mostly) away.
Thanks, that makes sense. This is where I am confused: I thought strict scrutiny applies when denying a fundamental right? It is my understanding that Judge Shelby didn’t apply strict scrutiny to orientation (which I believe is what the plaintiffs asserted), but since marriage is a fundamental right - strict scrutiny applies. Ergo, doesn’t the state have some burden of proof?
Utah may not want that to be the question, but its fairly clear to most people that it is one about discrimination and civil rights and the Constitution and not one about regulating bridge clubs. I think Utah’s being purposefully deceptive in their arguments because they know they can’t win on the merits. We’ve seen a lot of this from conservative circles in the past few years. They’ll try to pass it off as a religious rights issue, or a private business issue, or a 1st Amendment issue, but its none of those things. Gay marriage is about civil rights. Everything you can say about this issue can be said about racial minority issues and we’ve pretty much settled that
I’m no law expert but didn’t the Prop 8 people try that and fail? When called out on their reasoning, the “experts” on the Pro-Prop 8 side basically admitted they have no good reason to deny marriage equality. I swear I read their explanation almost word for word like that, it stuck with me because it was such a bold admission from the people who still, after all that, tried to prevent gay marriage.
We’re looking forward to filing our taxes as well. It looks like we’ll owe more, but against the worth of the time it took my wife to do the real return + fake return thing (Oregon), it may come out even, and will certainly be easier.
Of course, the real issue is that Mormons and other conservative churches see being gay as a sin. Mormons constitute about two-thirds of Utah’s population and dominate its politics.
When the Mormons were preparing to do battle to get Prop 8 passed, they had a special broadcast to the various Mormon churches. From the transcript
The Mormon church leaders linked gay marriage as part of Satan’s plan of destroying all that is good in the world.
Then, this. Which come to the core of this issue. They, the Mormon church see homosexuality as a sin.
The Mormon church has only recently starting saying “love the sinner” which still is absolutely outrageous.
I’m sure that this can’t be entered as evidence in the case, but it’s what’s driving it for the Utah AG office and governor. Just makes me sick.
Wait, wait. I missed the part where overturning the ban was going to force Mormons to abandon their beliefs and get gay married. I’m definitely for the ban now!
Yup, I believe this is unique to Mormons who believe that they were created by Heavenly Father and Heavenly Mothers. (Mormon gods are polygamous, and the Mormon doctrine is that faithful Mormons will be polygamous in heaven. Which makes their claims that marriage is between a man and a woman only partially correct. It’s between a man and a woman and other women as well.)
One of the top leaders recently gave a talk in which he said :
They’re evil! This is from a previous talk
So, yes. They hate the gays. Lots of quotes out there.
So these poor LDS folks. Carrying out God’s work is a tough job, but someone’s got to do it. It’s not that they hate gays, you see, it’s just that someone has to do it.
And, just to let you know that they’re not kidding, homosexuality is right up there, next to murder.
You’re close. Under strict or intermediate scrutiny, the state has the burden of proof regarding the legitimacy of the state interest in question, and the close tie between the interest and whatever enactment is being challenged. Basically, where suspect classifications or the exercise of fundamental rights are concerned, the courts say the state has to show its work.
Under rational basis review, the challenger has the burden of proving that the enactment is not “rationally related to a legitimate government objective.” You correctly note that the state can put forward just about any legitimate government objective regardless of whether it was one the legislature had in mind (hence, “defending traditional marriage” versus “I hates them fags”.) Rational basis is a very low bar.*
It’s unlikely that sexual orientation will become a classification subject to strict scrutiny anytime soon, though. Given the nature of SCOTUS, and the arguments generally put forward by SSM proponents (that anti-SSM laws are gender discrimination), it will probably end up in the intermediate category. That’s where gender classifications (and nonmarital child classifications) go. It could end up in the strict scrutiny category if they accept the “marriage is a fundamental right” argument versus the gender discrimination one.
*SCOTUS has implicitly applied a modified version of rational basis in past sexual orientation cases, beginning with Romer v. Evans, called “rational basis with teeth” or “bite”. Nobody except Kennedy is quite sure how that one works.
The problem is that, although the right to marry is considered “fundamental,” the term “marry” encompasses so many things and it’s not at all clear what the scope of that right is. The claim is that there is a “fundamental” right to governent recognition and endorsement of your personal relationships. I’m not sure how compelling you find that. The argument that the government provides this recognition and is depriving certain relationships of that recognition on the basis of either gender or sexual orientation (i.e., the “equal protection” argument) makes (to me) a great deal more sense.
It is curious that you call Utah (and conservatives in general) “purposefully deceptive” in response to my criticism of the pro same-sex marriage argument that the state has no valid interest in regulating marriages because it’s just like regulating boy scouts and bridge clubs.
I assumed you misspoke because usually it is the anti same-sex marriage side using those arguments. Conservatives are the ones I generally hear crying about how the government can’t/shouldn’t regulate things whether the government actually can or not. They’re just against regulation. But they turn around and expect the government to uphold a version of morality that fits with their worldview
For the record, the state has a valid interest in all those things. Its just that sometimes, those valid interests are trumped by other, even more valid interests such as civil rights and the Constitution. Those trump any marriage regulating claims Utah has. Civil rights also trump any interest the Boy Scouts have. Not sure about private bridge clubs though
I did not mispeak. I was responding directly to this post:
As I read it (and certainly as I criticized it), this post is rejecting the notion that the state has a “valid” interest in regulating marriage. I may have read it wrong and unfairly criticized Snowboarder Bro. If that’s the case, I apologize to him. But my response was a result of the perceived claim (and I’ve heard the argument elsewhere) that the government has no business regulating who gets married. Other than from libertarians who would do away with civil marriage entirely, I’ve never heard a conservative argue that government can’t regulate civil marriage (and certainly Utah isn’t arguing that here), so, again, I don’t know who you’re accusing of being “purposefully deceptive.”
In this case, I was referring to LGBT people, who I believe should be a federally protected class. I don’t think the Boy Scouts should have the right to discriminate against a protected class as in many places they get local government support and usage of public venues
Then its probably not you, sorry.
The ones I accuse of being purposefully deceptive are those conservatives that claim that the government has no right to regulate what a private organization does, then turns around and tries to regulate private marriages.
Of course the government has no right to regulate a private marriage (although, I’m not sure what that is). The government, naturally, does have the right to regulate civil marriage (and the questions of property, custody, inheritance, etc, that come from it). That being said, very few of these things are nearly as a black and white as “public” versus “private” suggest.