Arguments for US Supreme Court Ruling Prop 8 Unconstitutional?

[Father Time]

What would be the legal arguments for the US Supreme Court declaring Prop 8 unconstitutional?

I wanted to get some opinions. And I wanted to present an opinion. Let me jump this off as a response to someone who posted (on a different forum), "I really don't see why we put peoples rights up for vote on the ballot anyways. It's just not smart to let the majority decide the rights of the minority."

To which I would say -- That's an interesting looking-frame you've put this law in. But it seems to me to be a bit disfiguring frame; or full of assumptions.

Consider, as the court will to this challenge, how your statement appears to demonstrate some odd broad assumptions that are in real contrast to the actual reality, and legal facts, concerning this law.

You say this law is letting the majority decide the rights of the minority. I will hand you outright, a HUGE and important assumption, simply for the sake of my first, and most important legal argument. The great assumption I will hand you is that one can "be" a "homosexual", and that homosexuals are a legal minority. And on the other side, that heterosexuals are the majority. Let's just say that is a fact...

Consider this, in actuality, the law is not saying anyone in that minority can't do, what anyone in the majority, can do. The law says it won't do something for anyone, no matter what group they're in. Both a member of this minority, and a member of the majority, can do the same thing, which is have the state recognize their marriage to one member of the opposite sex who is of legal age. Even if I was a member of the majority, "The Heterosexuals", the state would still not recognize my marriage to the same sex -- nor to my marriage to more than one person, nor to my marriage to an animal, spirit, or pet rock, etc. This law, in factuality, treats everybody exactly the same.

This is the same bs I heard over inter racial marriage laws. Marriage laws grant rights, tax breaks etc. to couples. A homosexual couple does not get any of this.

Not preventing living married-
Further more, consider something else very important -- this law does not prevent anyone having a huge public marriage ceremony, and living the rest of their life in marital bliss, with a member of the same sex (and of legal age). One can do the same with more than one person, a pet rock, a spirit, and many other things. You can marry an animal, but if you consider the sexual act an essential part of marriage, then I believe California considers that animal abuse and is illegal. It's just that the state will not legally recognize it as a state legal marriage.

And thus will not grant the couple the same deal they grant hetero couples.

Throughout 99-100% of all state history, the state recognizes common law marriage, which is between one man and one woman, although many societies' states also included one man and many women.

This is completely irrelevant to the matter at hand.

"Homosexuals" a legal group?-
Another subject, that I would think would be relevant, is whether or not "homosexuals" could ever be considered a legal group, or minority group. I would argue one, or the courts, could not make "homosexuals" as a legal group. What scientific irrefutable test can one perform to prove an individual is a "homosexual"?

Nothing same as you can't perform any tests to prove that someone is a Christian, or a Muslim, or straight or liberal or conservative ...

How do you legally define a person as a homosexual, let alone for that distinction to afford one special rights?

How the holy hell would this be special rights? If gay marraige passed you would not have to prove that you were gay to marry someone of the same sex, so heteros will get the same right.

There is no genetic test for "homosexual" (and I can expound on why there will never be). And so there is no actual, or otherwise legal group, to be found there.

Nor is there one for Christian, Jew etc.

Thoughts?

Give us the precedent on what makes something a legal group, or show us your legal credentials.

 

[lawnerd]

Do you have an argument, or are you trolling?

I wasn't trolling. My argument is simple: same-sex marriage is a policy matter, not one of constitutional rights. Not only do I not think there's a case here on Equal Protection grounds, I would go as far as to say that mentioning Equal Protection in this case is irrelevant. Legally-recognized marriage may confer certain incentives and privileges, but not now nor in the past has legal marriage been meant to provide "protections" for people. What are people being "protected" from by being married? Nothing. And even if I were to concede legal marriage does have protections, if the point is they should be equally distributed, there's no reason why 1) people would have to procure a marriage certificate in order to receive these protections, and 2) any form of marriage would be proscribed from receiving it. If marriage is defined by sex, then there is no specific discrimination against gays and lesbians who would want to marry people of the same sex, just like there's no specific discrimination against men who would want to marry more than one woman.

DOMA isn't in breach of FF&C, either. In and of itself, it's not declarative of the issue, because the Supreme Court has never said states can't have their own marriage laws. Correct me if I'm wrong, but I don't even think the Loving v. Virginia case mentioned FF&C. A good example is that states have always had differing age of consent laws. There's never been uniformity on that basis, and the courts have never found that to be unconstitutional.

 

[Vanquish]

Here's my own wall of text for those interested: Short history of homosexual marriage law...with some opinion thrown in...


Bowers v. Hardwick
June 30, 1986

Facts
Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. [procedural crap omitted]

Question
Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

Holding
No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

Romer v. Evans
May 20, 1996

Facts
Colorado voters adopted Amendment 2 to their State Constitution banning laws which protected gays from discrimination based on their gayness.
[procedural crap omitted]

Question
Does the Colorado Amendment, forbidding the extension of official protections to people suffering discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause?

Holding
Yes. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."


Lawrence and Garner v. Texas
June 26, 2003

Facts
Responding to a completely bogus and trumped-up weapons charge in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man fucking each other. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.

Question
Do the criminal convictions of Lawrence and his lover under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?

Holding
No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After obliterating Bowers's idiotic premises, the Court reasoned that the case turned on whether gays were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents.


Compare with:

Loving v. Virginia
June 12, 1967

Facts
In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. The Lovings were found guilty and sentenced to a year in jail (the trial judge agreed to suspend the sentence if the Lovings would leave Virginia and not return for 25 years).

Question
Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment?

Holding
Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment.

**************

So are bans on same-sex marriages distinguishable from the ban on interracial marriages struck down in Loving? Before Loving was decided, most Americans were opposed to interracial marriages, and anti-miscegenation laws still existed in 16 states.

If the courts decide that same sex marriage bans violate either state or the federal constitutions, may state legislatures create "civil unions" for same-sex couples while reserving "marriage" for opposite sex couples? Vermont, as a result of state constitutional litigation on equal protection grounds, already has such a law in place, and New Jersey, Connecticut and other states have followed suit.

See it becomes an issue of scrutiny - strict, rational basis, intermediate.... Segregating same-sex unions from opposite unions cannot possibly be held rationally (that's the level of scrutiny we're talking about here) to advance or "preserve" what was stated in the Goodridge case were the Commonwealth's legitimate interests in procreation, child rearing, and the conservation of resources.

There's two ways to go about trying to advocate gay marriage: Due Process or Equal Protection. Is sexual orientation predictive of conduct that should be protected from invasion under the Due Process Clause, or a status that should be protected against discrimination under the Equal Protection Clause?

The Bowers case above said there was no substantive due process violation, but the subsequent Lawrence case overruled it. That is to say, if the same case came today or if Bowers had never happened, it might go entirely the other way. Crazy ain't it?

 

[goldcatt]

Do you have an argument, or are you trolling?

I wasn't trolling. My argument is simple: same-sex marriage is a policy matter, not one of constitutional rights. Not only do I not think there's a case here on Equal Protection grounds, I would go as far as to say that mentioning Equal Protection in this case is irrelevant. Legally-recognized marriage may confer certain incentives and privileges, but not now nor in the past has legal marriage been meant to provide "protections" for people. What are people being "protected" from by being married? Nothing. And even if I were to concede legal marriage does have protections, if the point is they should be equally distributed, there's no reason why 1) people would have to procure a marriage certificate in order to receive these protections, and 2) any form of marriage would be proscribed from receiving it. If marriage is defined by sex, then there is no specific discrimination against gays and lesbians who would want to marry people of the same sex, just like there's no specific discrimination against men who would want to marry more than one woman.

DOMA isn't in breach of FF&C, either. In and of itself, it's not declarative of the issue, because the Supreme Court has never said states can't have their own marriage laws. Correct me if I'm wrong, but I don't even think the Loving v. Virginia case mentioned FF&C. A good example is that states have always had differing age of consent laws. There's never been uniformity on that basis, and the courts have never found that to be unconstitutional.

Last point first, DOMA is not involved or implicated here. Read the filings. There are multiple links from this thread.

And I'm curious as to why you say marriage is strictly a policy matter and equal protection does not apply (as if the first, even if true, leads to the second) after the precedent set in Loving v. Virginia (among others), which specifically and emphatically stated otherwise?

 

[goldcatt]

I haven't seen a summary of Lawrence put quite that way, Vanquish.

The interesting point here will be the level of scrutiny applied post-Lawrence, IMO. Even under rational basis, I'm hard-pressed to think of a rationale that would pass muster considering the legal and financial rights attached to marriage. Bowers was the hurdle, since it is perfectly legitimate to discriminate on the basis of criminal behavior. But now that Bowers is gone what is left for the State?

I'm even wondering if they'll try to push it up a notch. After all, we're talking about a group that has been historically and categorically discriminated against (see Bowers). I don't know that they'll succeed if they try arguing for Intermediate review, but it's going to be fun to watch.

 

[Vanquish]

Exactly! I really think if you connect the dots, the time has come for gay marriage...at least based on caselaw.

 

[lawbuff]

Exactly! I really think if you connect the dots, the time has come for gay marriage...at least based on caselaw.

I see you are new to the board so you have missed our previous threads on the same sex marriage issue. The US SC has already ruled that same sex marriage prohibitions do NOT violate the federal constitution. The Prop 8 suit does NOT mention Baker v. Nelson, however it is a direct challenge to the SC's "Summary decision."

 

[Procrustes Stretched]

What would be the legal arguments for the US Supreme Court declaring Prop 8 unconstitutional?
...

Thoughts?

Two of the best lawyers in the country have just made those arguments. Now we wait for the Court's decision.

 

[Procrustes Stretched]

Exactly! I really think if you connect the dots, the time has come for gay marriage...at least based on caselaw.

Too bad the great legal minds here weren't able to argue before the court. LOL

stick around. you'll get an education on critical thinking in these law threads.

 

[goldcatt]

Exactly! I really think if you connect the dots, the time has come for gay marriage...at least based on caselaw.

I see you are new to the board so you have missed our previous threads on the same sex marriage issue. The US SC has already ruled that same sex marriage prohibitions do NOT violate the federal constitution. The Prop 8 suit does NOT mention Baker v. Nelson, however it is a direct challenge to the SC's "Summary decision."

You know where I stand on that, my friend.

First, Baker v. Nelson is a MN State Supreme Court case and not Federal.

Second it is not precedential.

And third, it was a pre-Lawrence decision (1971). Lawrence is the big game changer here.

But as you point out, we've had this out before.

 

[goldcatt]

Exactly! I really think if you connect the dots, the time has come for gay marriage...at least based on caselaw.

Too bad the great legal minds here weren't able to argue before the court. LOL

stick around. you'll get an education on critical thinking in these law threads.

Some of us try.

But he (she?) is doing just fine.

 

[Vanquish]

I'm a he. Just for the record.

 

[Procrustes Stretched]

I'm a he. Just for the record.

Uh oh! You'd better cover your ass because you're about to get spanked.

 

[goldcatt]

I'm a he. Just for the record.

Uh oh! You'd better cover your ass because you're about to get spanked.

Not by me! We agree. Watch out for those folks who've never heard of Loving though.