Californians cleared to vote on same-sex marriage ban

[Shogun]

Whether it's is found unconstitutional at the federal level depends on what judges the next president appoints... and that's the honest truth. It might be under the current configuration or if it stays a split court (which it should) but not a chance if the loonies that Parsley and Hagee would want get put on the bench.

HAHAHAHA!

yea... legislating from the bench instead of following the same track as the civil rights era.


GOOD ONE!


shit talking doesn't make you any less of a failure as a constitutional scholar, jill.

 

[Ravi]

Well...IF it is unconstitutional at the federal level. It's not clear that a ban on gay marriage would be. Homosexuality is not a suspect classification at this point (race and religion are, for example).

Also, it wouldn't actually be struck down, I don't think. It would be in place but would be unenforceable if in violation of the federal Constitution.

It's too bad I'm not on the Supreme Court, eh, since I'm the only person that seems to know what the founders intended.

 

[Tech_Esq]

says the ***** who has yet to post evidence beyond wating for her personal igor and a half assed NY lawyer to pipe in.


Like I said, Rav. I posted my evidence. where is yours?

I decided to post here. I must admit being absent from the thread while this little back and forth went on so i'm not sure who's point I'll be helping here.

Quoting from the Supremes decision in Loving v. Virginia,

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. (citing Skinner v. OklahomaTo deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The application of the 14th Amendment does not necessarily require race to be at issue (if that's what part of the argument was). Equal protection of the laws applies to all citizens (gays, of course, being citizens).

Where I think the difficulty lies is that in the Federal Law marriage has been defined as between a man and a woman. Thus, in the states where State Supreme Courts have interpreted their 14th amendment (look alikes in their state constitutions) to support gay marriage, that interpretation has not translated to provide Federal benefits like social security etc.

Further, if you look at the first sentence in the cited portion of Loving, the second part of that sentence does not apply in the gay context. Gay marriage is not fundamental to our existence and survival. Without this support, I'm not sure that the remainder of the Court's argument would be the same within the gay context.

I think because of the Federal Definition of marriage and the lack of underlying support from Loving, the court interpreting the 14th Amendment would be hard-pressed to find a "civil right" in gay marriage. It is clear they have found a civil right in hetero sexual marriage, but the underlying argument that makes it a civil right disappears when the gay issue is introduced because gays cannot reproduce which, clearly from the citation in both Skinner and Loving is very important to the court.

 

[Steerpike]

I think part of the confusion in this thread is that it is not at all certain that homosexuals would be considered a suspect classification with respect to the protections of the U.S. Constitution. They probably would not, if I had to guess.

That makes all the difference. If they are a suspect class (like race or religion) then a State is going to have a very hard time placing restrictions on them. Even then it wouldn't be impossible but it would be subject to strict scrutiny in terms of Federal Constitutional violations.

If they are not a suspect classification, then the State is going to have a much easier time placing restrictions. This is further made easier in the case of marriage because that aspect of the law is traditionally under the purview of the States and not the federal government, with federal oversight only to ensure that the State doesn't act in a way that is unconstitutional.

It is not at all clear under current law that there would be any problem under the U.S. Constitution with a State having a Constitutional amendment to ban gay marriage.

 

[Steerpike]

It's too bad I'm not on the Supreme Court, eh, since I'm the only person that seems to know what the founders intended.

The Founders intended States to decide this sort of thing and for the Feds to keep out of it Heck, at the time of the Founders the Bill of Rights didn't even apply to the States!

 

[jillian]

The founders didn't intend ANYTHING about gay marriage... or abortion... or women't rights in the workplace....

 

[Steerpike]

The founders didn't intend ANYTHING about gay marriage... or abortion... or women't rights in the workplace....

I don't think that's necessarily true. I think they knew issues they hadn't foreseen would arise. It would be impossible not to know it.

What they intended was that powers not specifically given to the federal government by the Constitution they drafts were reserved to the States or the People. Thus, that language in the Bill of Rights.

Of course, the legal landscape changed dramatically over the years so now we're not really working with the intent of the drafters for the most part.

 

[Tech_Esq]

I think part of the confusion in this thread is that it is not at all certain that homosexuals would be considered a suspect classification with respect to the protections of the U.S. Constitution. They probably would not, if I had to guess.

That makes all the difference. If they are a suspect class (like race or religion) then a State is going to have a very hard time placing restrictions on them. Even then it wouldn't be impossible but it would be subject to strict scrutiny in terms of Federal Constitutional violations.

If they are not a suspect classification, then the State is going to have a much easier time placing restrictions. This is further made easier in the case of marriage because that aspect of the law is traditionally under the purview of the States and not the federal government, with federal oversight only to ensure that the State doesn't act in a way that is unconstitutional.

It is not at all clear under current law that there would be any problem under the U.S. Constitution with a State having a Constitutional amendment to ban gay marriage.

Pardon my not looking back to verify this, but wouldn't the amendment just be a definition of marriage amendment like most of the others. So the actual vote wouldn't be to "restrict" gays from anything. The amendment would define marriage as between a man and a woman. This would bring it in line with the Federal law on the subject. So I don't think there is much risk of having that struck down.

Feel free to call me an idiot if I got it wrong.

 

[Steerpike]

Pardon my not looking back to verify this, but wouldn't the amendment just be a definition of marriage amendment like most of the others. So the actual vote wouldn't be to "restrict" gays from anything. The amendment would define marriage as between a man and a woman. This would bring it in line with the Federal law on the subject. So I don't think there is much risk of having that struck down.

I think that's more or less correct. I think if you're on the other side (pro gay-marriage) you could argue that by specifically defining it that way you are restricting the fundamental right of marriage that a gay person is entitled to, and that by the same token any federal law to that effect is also invalid. But I think that's a pretty large hill to climb...

But yeah, I think the amendment is meant to define marriage, not to used language that specifically restricts.

 

[Tech_Esq]

I think that's more or less correct. I think if you're on the other side (pro gay-marriage) you could argue that by specifically defining it that way you are restricting the fundamental right of marriage that a gay person is entitled to, and that by the same token any federal law to that effect is also invalid. But I think that's a pretty large hill to climb...

But yeah, I think the amendment is meant to define marriage, not to used language that specifically restricts.

Not that I have a particularly strong view on this topic (I object to "marriage" per se as I've eluded to early in this thread, but not the equality of the outcome), but en arguendo, you state that the law would restrict "the fundamental right of marriage that a gay person is entitled to..." How do you distinguish this part of Loving and Skinner "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival" and still arrive at a fundamental right?

 

[Steerpike]

Not that I have a particularly strong view on this topic (I object to "marriage" per se as I've eluded to early in this thread, but not the equality of the outcome), but en arguendo, you state that the law would restrict "the fundamental right of marriage that a gay person is entitled to..." How do you distinguish this part of Loving and Skinner "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival" and still arrive at a fundamental right?

Well, I think that's certainly an argument that can be made to distinguish Loving (i.e. the fundamental comes into play because of procreation and perpetuation of the species).

I think if I were arguing against that, I'd call it dicta, point out that the Court also said the freedom to marry was fundamental to the pursuit of happiness, and try to draw parallels to heterosexuals who cannot procreate and whether a State could interfere in that relationship. I'd also point out that civil marriage, as opposed to the religious aspects, have numerous consequences that are not tied to procreation.

It's an interesting subject.

 

[Shogun]

I decided to post here. I must admit being absent from the thread while this little back and forth went on so i'm not sure who's point I'll be helping here.

Quoting from the Supremes decision in Loving v. Virginia,

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. (citing Skinner v. OklahomaTo deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The application of the 14th Amendment does not necessarily require race to be at issue (if that's what part of the argument was). Equal protection of the laws applies to all citizens (gays, of course, being citizens).

Where I think the difficulty lies is that in the Federal Law marriage has been defined as between a man and a woman. Thus, in the states where State Supreme Courts have interpreted their 14th amendment (look alikes in their state constitutions) to support gay marriage, that interpretation has not translated to provide Federal benefits like social security etc.

Further, if you look at the first sentence in the cited portion of Loving, the second part of that sentence does not apply in the gay context. Gay marriage is not fundamental to our existence and survival. Without this support, I'm not sure that the remainder of the Court's argument would be the same within the gay context.

I think because of the Federal Definition of marriage and the lack of underlying support from Loving, the court interpreting the 14th Amendment would be hard-pressed to find a "civil right" in gay marriage. It is clear they have found a civil right in hetero sexual marriage, but the underlying argument that makes it a civil right disappears when the gay issue is introduced because gays cannot reproduce which, clearly from the citation in both Skinner and Loving is very important to the court.

Read my bolded portion of your post. It SPECIFICALLY STATES "a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment". The Loving decision is PEPPERED with the specific racial criteria as protected by the 14th.

I;ll ask you since Jill and Ravi avoid the answer like murder, IF Loving validates marraige to ALL Americans, despite state legislation, why the hell is Polygamy illegal still this long AFTER Loving?

 

[Shogun]

I think part of the confusion in this thread is that it is not at all certain that homosexuals would be considered a suspect classification with respect to the protections of the U.S. Constitution. They probably would not, if I had to guess.

That makes all the difference. If they are a suspect class (like race or religion) then a State is going to have a very hard time placing restrictions on them. Even then it wouldn't be impossible but it would be subject to strict scrutiny in terms of Federal Constitutional violations.

If they are not a suspect classification, then the State is going to have a much easier time placing restrictions. This is further made easier in the case of marriage because that aspect of the law is traditionally under the purview of the States and not the federal government, with federal oversight only to ensure that the State doesn't act in a way that is unconstitutional.

It is not at all clear under current law that there would be any problem under the U.S. Constitution with a State having a Constitutional amendment to ban gay marriage.

This is why I POSTED the protected statuses for my fans. But, who needs evidence?

 

[jillian]

I think that's more or less correct. I think if you're on the other side (pro gay-marriage) you could argue that by specifically defining it that way you are restricting the fundamental right of marriage that a gay person is entitled to, and that by the same token any federal law to that effect is also invalid. But I think that's a pretty large hill to climb...

But yeah, I think the amendment is meant to define marriage, not to used language that specifically restricts.

At which point the Court should, if its doing its job, decide if that burdens individual rights, regardless of what it purports to do.

 

[Steerpike]

At which point the Court should, if its doing its job, decide if that burdens individual rights, regardless of what it purports to do.

Right. Or more specifically, if it "impermissibly" burdens those rights. Since you're not dealing with a suspect classification (unless they choose to make it one), the State is going to have a certain amount of latitude to burden those rights.

 

[Shogun]

At which point the Court should, if its doing its job, decide if that burdens individual rights, regardless of what it purports to do.

Your opinion of what the courts SHOULD do is a dime a dozen. Hate to break it to ya but we don't operate according to the whims of jillian. THUS that pesky lil WE THE PEOPLE casting a vote.

 

[Tech_Esq]

Well, I think that's certainly an argument that can be made to distinguish Loving (i.e. the fundamental comes into play because of procreation and perpetuation of the species).

I think if I were arguing against that, I'd call it dicta, point out that the Court also said the freedom to marry was fundamental to the pursuit of happiness, and try to draw parallels to heterosexuals who cannot procreate and whether a State could interfere in that relationship. I'd also point out that civil marriage, as opposed to the religious aspects, have numerous consequences that are not tied to procreation.

It's an interesting subject.

I think it's dangerous to start calling parts of supreme court decisions dicta. I just have this vision of Scalia launching on me for 15 minutes. "Fundamental to the pursuit of happiness? Arguing the Declaration? Hmmm...not sure that will work. I think you get closer with the non-procreating heterosexuals. But, I think the court comes back with the amendment defines marriage as between a man and a woman and if that test is met then there is no need to look farther to determine whether or not they can or will have children. The last item also may get some traction. Go at the benefits and rights that attach to the institution and ask why one class of citizen should be bereft of the possibility of these benefits while others are not. I'm guessing the court steam rollers that argument though.

You're right interesting subject.

 

[Shogun]

hmmm... suspect classifications, jill.. WHO posted those in this thread already and made the point about the lack of protection for sexual orientation...


HMMMMMM..

 

[Tech_Esq]

At which point the Court should, if its doing its job, decide if that burdens individual rights, regardless of what it purports to do.

And what do you think the standard of review should be Jillian?

 

[Shogun]

Hey Tech esp... How does Loving apply to Mormon Fundy Polygamists?