I am curious how Scalia can look at the EP clause and deem it only applicable to race. It would seem to me if the writers meant it to apply in only that fashion they would have said so. While the aftermath of the Civil War may have prompted the writing of the amendment it seems absolutely reasonable to me that they did not specify “race” because they figured it ought to apply to any distinct group…indeed anyone. This is not a case of sloppy writing and they just forgot to be more restrictive in their language.
Personally I think women should have been able to get the right to vote via the EP. I have no idea if they ever tried that route or not. That they got an Amendment for it at the least makes it absolutely unambiguous that women are allowed to vote. Even so I would personally think the Constitution, as written, should have proved sufficient to allow women (indeed all Americans irrespective of race, creed, etc.) to vote. That somehow failed in this to me is an indictment of the legal system very much akin to what we are on about here. That being self-serving cherry picking and legal contortions to foil what should have been anyway (unless you seriously subscribe to the, “All men are equal, some are just more equal than others” school of thought).
FTR I am certainly not arguing with you here about how it all works. You absolutely know better than I would and I accept your instruction on this.
What I do not understand is the rationale behind any of it. It very much looks like legal contortionism to me to arrive at a preconceived outcome.
First I cannot see how marriage as procreation is the primary goal of the state. Marriage confers many benefits to the couple few of which have little to do with procreation (making medical decisions for your partner as one example). It seems much more likely that the state’s interest in marriage is to lay the framework for a stable society. Equitable distribution of assets if the couple breaks up, inheritance and so on. I will look it up if you like but IIRC there are ~1200 legal benefits marriage bestows. Most of that is every bit as applicable to a same-sex couple as a hetero couple.
I also do not understand the hand waving away of other avenues of procreation or obtaining a child to raise. So you cannot create a baby in the time honored fashion. That in no way prevents someone from becoming a parent.
Weird. To me, I cannot see how “defending marriage” could encourage such a relationship. Can anyone explain this? I don’t see the rational basis.
How? Giving money to pregnant mothers, that furthers procreation. I don’t see how this does at all.
Bricker, it was my understanding that Scalia would look to what the man-on-the-street at the time the law was passed would expect from a plain-text reading, not what the legislators intended. In a recent oral argument–one of the Fourth Amendment cases, I think Herring but I cannot remember (it hasn’t been decided yet)–he was grilling one of the lawyers, “What would Jefferson expect? Would he expect that if he were arrested that they would search his carriage?” [paraphrased from memory of course]
No no no. All I was saying is that the government is allowed to discriminate between groups. EP does not mean all groups have to be treated alike. The examples I was giving were not intended to go any further than that.
Under the present form of analysis used, with which I am not in full agreement, I see no rationale whatsoever for not treating sexual orientation as a protected class. I think the courts will soon go somewhat towards that, and use intermediate scrutiny, just as they do on sex based distinctions.
As to gay marriage bans, I think they do, unfortunately, survive a rational basis test, because a rational basis test is essentially utterly meaningless. If the government can throw any reason whatsoever together (and especially with textualists refusing to look to their statements as to the real reason for their actions) it passes muster. On the other hand, I don’t think gay marriage bans survive the rational basis with teeth analysis as put forward in Romer. Unfortunately, there are at least 5 people who disagree with me on that, and their opinion is slightly more important.
That’s what I suggested earlier. Looking to intent (when it suits them) is exactly what textualists do, but they at least dress it up as looking to the meaning of the text.
Exactly. And there’s nothing illegal about preferring your own sex. But there have been laws in the past that prosecuted homosexual sodomy. And certainly, the state can refuse to grant the same rights to a homosexual union as it grants to a heterosexual union. This is withholding a assertion of new status, not removing liberty or property as such.
Attempting to find full rights for SSM in a constitution that was not written with the intent to grant those rights is a sucker’s game.
Except there are those who are far from suckers who would argue that the Constitution was deliberately written in elastic language to adapt - that the original intent was that rights would grow. Try reading Ronald Dworkin, Taking Rights Seriously, for example.
Far from being a sucker, I would wager that Mr. Dworkin is a lot smarter than me. Possibly even smarter than you, foolsguinea.
And those laws have been struck down. Rightly so, I might add.
That is the issue, is it not. They can … but they shouldn’t be able to. There is no new status that needs to be asserted, so the issue of withholding one don’t enter into it. And no it isn’t *removing *liberty … it’s *denying *liberty. You can’t remove something that was never granted.
It is obviously ridiculous, but I guarantee this is what it will boil down to. Either these laws will be struck down, or else “It is perfectly legal for gays to get married to members of the opposite sex, just like us. Where’s the discrimination?”
Look, I get that a principle enumerated can grow past where its framers intended. “All men are created equal,” was an argument against monarchy but belief in the phrase abolished slavery in time. But the mere writing of the Declaration of Independence did not abolish slavery. The Thirteenth Amendment did not guarantee women the right to vote.
You want to change the law, you have to actually change the law, not insist it’s really been on your side all along–when those who wrote it, those who ratified it, & those who’ve enforced all this time disagree. Even if you think the principles espoused in it are on your side, you still have to do the hard work. No court case gave US women the right to vote or abolished slavery. There were difficult amendment processes to change civil law, & the activists embraced them.
You have to do the work, not just say, “The law isn’t what you think it is, or what anyone who wrote it or voted it in thought.” And considering that a majority of Americans disagree with you–(you can handwave it all you want; it’s solidly true)–you’re not going to win that fight by being a weasel. If they despise a bit of case law in your favor, they can & will rewrite the statute law to shut you down.
But you know this; that’s why you keep looking to case law to save you. You think you can’t win through a legitimate & undeniable change in the law, so you think being a weasel & lying about the historical definition of marriage & the law’s intent is all that’s available to you. Desperation makes you a fraud; but it makes weasels of the best of us.
Race is substantially a socially agreed-upon construct. A black man is still a man, etc. But sex is a biological reality. Or so is commonly believed. Unless you think Loving was decided despite black women being a different species from white men.
Not that I agree with them, but these are two reasons that have been used in the past:
Ignoring the people who think gay behavior is completely a lifestyle choice, gays can “pretend”. That is, if gays don’t want people to know they are gay, no one can find out. You can’t hide your race or national origin to the same extent. Even if you are biracial and look white, the race of your parents is on record.
Anti gay marriage laws aren’t anti gay. They don’t speak to who can or cannot get married. Only to what form the marriage is to take. Gay people can have as many opposite sex marriages as they like.
Well, a zillion courts have considered the matter of same-sex marriage subsequent to the ruling in Loving.
Loving dealt with a racial classification, which triggers strict scrutiny from a reviewing court. Same-sex marriage deals with a classification based on sexual orientation, which does not trigger strict scrutiny. That is the distinction between the two.
At the state court level, only Massachusetts has seen a state supreme court rule in favor of same-sex marriage and have the ruling survive being nullified by a state constitutional amendment. Hawaii, Alaska, and California have gotten favorable court rulings but were stopped by state constitutional amendments. Connecticut just recently got a court decision out, and I suspect it will be the target of similar constitutional amendment efforts.
At the federal level, there’s nothing better. For example, the Eighth Circuit rejected a claim that argued federal Equal Protection (and Romer, to say nothing of Loving!) They said:
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)
Do you think the fact that the CA supreme court has ruled that sexual orientation is a suspect class will have any effect on changing that at the federal level?
What is it with all this, “the law isn’t what you think it is” stuff? Why does anyone need to write in a whole new Amendment when it seems the work was already done?
Perhaps you are right but then the law is well and truly screwy.
When I read…
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
…I do not see anything that says, “only in regard to race” or “really ‘any person’ does not mean ‘those people’”.
Seems crystal clear to me.
Original intent? Well, if their original intent was to only narrowly apply the law they should have written it that way. These things are scrutinized beyond belief…I doubt it was an oversight.
Textualist? Just go with what it says and no interpretation? Well, “nor deny to any person within its jurisdiction the equal protection of the laws” seems pretty clear to me. “Any person” means “any person”. Homosexuals are people thus count I think.
Perhaps the law does in fact work differently than I suspect. Perhaps there is some code or invisible ink or secret handshake and book of secret rites that allows the legal profession to read plain English and tell me it really means something completely different. :rolleyes:
Sure, but that just reasks the question of the OP: should sexual orientation be a suspect class and trigger strict scrutiny? If you want to argue textualism, there’s nothing in the text that expressly limits Equal Protection to Black Americans, and if you wanted to argue original intent, there’s an argument that the Equal Protection clause only applies to freed slaves and thier descendents, and not, say, Asians, Whites, or women (intermediate scrutiny, I know). If you’re on the Court, what specifically distinguishes same sex marriage from Loving? Back in 1972, the Court in Baker v. Nelson said “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” I suspect that commonsense distinction may not be quite as clear now as it was when I was thirty six years ago, and I’d like to hear them elaborate on it.
You are of course correct but that sidesteps the whole OP. Yes it is this way and I am not arguing that.
But why is it this way? I showed in the OP that there was reason to believe homosexual people meet the criteria laid down for strict scrutiny to apply. I’d say they are more firmly under that umbrella than religion which is a suspect class.
I have seen no rationale yet that remotely makes sense that things should be the way they are now. I strongly suspect it is more that heterosexual people find homosexual sex icky to think about and our law is based on that.
Bottom line I see laws being passed to deny a group of people benefits the rest of society enjoys. We did that to African-Americans, we did it to women, we did it to American-Indians, we did it to Japanese-Americans in WWII and we are doing it to homosexuals.
We eventually figured out what was done to those first groups was rather bogus. I suspect the 14th Amendment was written to say “any person” and not restrict it was because they figured the Civil War really sucked, slavery really sucked and denying rights to people really sucked so wanted to say exactly what they wrote.