Californians cleared to vote on same-sex marriage ban

[Steerpike]

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.

Yeah, personally I think that's the most effective argument. There are so many legal implications to marriage these days that I think you can build a pretty good case going down this path. The rest of it is fairly easily gainsaid, as you pointed out. You could go back and forth on that all day long. But when you start getting into specific legal ramifications where the law treats two people differently depending on whether they are married or not, I think you can build up some traction.

 

[Tech_Esq]

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?

First, I'm not sure we're on opposite sides of this argument.

Second, Loving would be looked to because it is the law on the 14th amendment and marriage. You've tried to completely distinguish Loving on the basis that the claimants were there fighting against a law prohibiting interracial marriage. I don't think you get to throw the entire decision out based on that. It will certainly be argued by analogy.

The question is how far does that get you. That's the point Steerpike and I have been chatting about. My contention being that I don't think it gets you far enough. I think one of the basic underpinnings of Loving is the procreation argument that gets you to fundamental right. So, gay marriage fails the test there. Do you see it differently?

 

[Tech_Esq]

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

That goes back to the question I asked Jillian. What should the standard of review be? It is not improper to burden any right even the most basic. But, you have to do it for the right reason. The standard of review determine how right that reason needs to be.

The lowest standard would be the government's burden on the right served a legitimate purpose. This is hardly ever good enough to deprive someone of a Constitutional right.

The next would be that the law serves an important state interest

Lastly, strict scrutiny would be used. Under this standard, almost nothing passes.

An example a Constitutional right being burdened by regulation and passing the standard of review would be the Oregon case where prisoners demanded the right to use peyote as prescribed in their religious ceremonies (the prisoners were Native Americans). Although the court found that the ceremonies themselves did require the use of peyote, they found that the government's interest in banning drug use for the maintenance of good order in the prison trumped the prisoner's rights to free exercise of religion.

Thus the passage of a neutral law or regulation that has the effect of impinging on a Constitutional right, may be legitimate. In the question you ask about polygamists, I think you have a similar situation. I don't know the language of the statute that bans polygamy, but I'm sure they give some neutral important government or community interest for the reason and the courts have upheld that standard.

 

[Shogun]

I dont think Loving would have been decided how it was without the 14th, which was a legislated action for the sake of the specific racial criteria. Further, I don't think that Homosexuality can be assimilated into protected classifications since the debate on it's immutable status is still largely debated. Unless, of course, its classification were LEGISLATED similar to the process that gave us the 14th Amendment. This is why I don't think Loving applies to gay marriages. It made a statement based on the specific racial element of the 14 and, without a similar distinction for gays, it fails to protect gay marraige much in the same way it fails to protect polygamists who could make the same appeal. As i've posted, Federal protections do not hinder private business from openly discriminating against gays in states and municipal jurisdictions that have not legislated otherwise. These protections are specific.

I'm a big fan of the Ninth, myself, and would vote for extending equal rights to gays. I'd vote for a Federal Amendment that protects orientation as a status. But, as with Jillians only rebuttal, appealing to a stacked court undermines the democratic will of the people. Womens suffrage and Civil rights were not products of the bench. America voted. I just hate to see our constitutional process become merely a footnote while one side uses the courts in the exact same way they cry about the other side using them. Point in case, Anti RvW justices have been injected into the supreme court. Will pro choicers accept a decision to overturn RvW even if they are quick to applaud the exact same process that disregards what every state to hold a vote tells us about the acceptance of gay marraige? I say we need an Amendment that guarantees personal privacy above and beyond the 4th. But, im not going to insist that RvW created such. Just like I am all for gay marriage but won't go so far as to insist that Loving validates it as a right.


This is why I want to know how Loving applies to polygamists.

 

[Shogun]

That goes back to the question I asked Jillian. What should the standard of review be? It is not improper to burden any right even the most basic. But, you have to do it for the right reason. The standard of review determine how right that reason needs to be.

The lowest standard would be the government's burden on the right served a legitimate purpose. This is hardly ever good enough to deprive someone of a Constitutional right.

The next would be that the law serves an important state interest

Lastly, strict scrutiny would be used. Under this standard, almost nothing passes.

An example a Constitutional right being burdened by regulation and passing the standard of review would be the Oregon case where prisoners demanded the right to use peyote as prescribed in their religious ceremonies (the prisoners were Native Americans). Although the court found that the ceremonies themselves did require the use of peyote, they found that the government's interest in banning drug use for the maintenance of good order in the prison trumped the prisoner's rights to free exercise of religion.

Thus the passage of a neutral law or regulation that has the effect of impinging on a Constitutional right, may be legitimate. In the question you ask about polygamists, I think you have a similar situation. I don't know the language of the statute that bans polygamy, but I'm sure they give some neutral important government or community interest for the reason and the courts have upheld that standard.

Thank you for your insightful answer. However, when the same arguement was made regarding the states reason for interrcial marriage, there was an amendment to consider. MUCH in the same way the court decided that animal sacrifice was protected by the 1st amendment. The argument that Marriage is a right, in and of itself, based on Loving is the logical fallacy that I keep addressing. We can argue about how much interest the state has in restricting any behaviour but without a relative legislated amendment talking shit about Scalia won't go far (not you, Jilly). Hell, the same argument was made during Ferlingetti's Obscenity trials but the Amendment won out. Id say, without that key component the court should not assume the role of the legislature.

 

[Tech_Esq]

I dont think Loving would have been decided how it was without the 14th, which was a legislated action for the sake of the specific racial criteria. Further, I don't think that Homosexuality can be assimilated into protected classifications since the debate on it's immutable status is still largely debated. Unless, of course, its classification were LEGISLATED similar to the process that gave us the 14th Amendment. This is why I don't think Loving applies to gay marriages. It made a statement based on the specific racial element of the 14 and, without a similar distinction for gays, it fails to protect gay marraige much in the same way it fails to protect polygamists who could make the same appeal. As i've posted, Federal protections do not hinder private business from openly discriminating against gays in states and municipal jurisdictions that have not legislated otherwise. These protections are specific.

I'm a big fan of the Ninth, myself, and would vote for extending equal rights to gays. I'd vote for a Federal Amendment that protects orientation as a status. But, as with Jillians only rebuttal, appealing to a stacked court undermines the democratic will of the people. Womens suffrage and Civil rights were not products of the bench. America voted. I just hate to see our constitutional process become merely a footnote while one side uses the courts in the exact same way they cry about the other side using them. Point in case, Anti RvW justices have been injected into the supreme court. Will pro choicers accept a decision to overturn RvW even if they are quick to applaud the exact same process that disregards what every state to hold a vote tells us about the acceptance of gay marraige? I say we need an Amendment that guarantees personal privacy above and beyond the 4th. But, im not going to insist that RvW created such. Just like I am all for gay marriage but won't go so far as to insist that Loving validates it as a right.


This is why I want to know how Loving applies to polygamists.

I agree completely with your sentiments in the second paragraph. I hate the way the legislative process has been subverted.

 

[Jeepers]

What you believe means squat... it is not a civil right... what next? It is a civil right to have a "civil union" with a horse? A corpse?

Again.. give the same bennies (insurance/family designations, inheritance rights, joint tax returns, etc) that extend to married couples to gays who wish to form a civil union... I am ALL for that... but it is not a marriage, nor do the liberals have any 'right' to change the definition of what marriage is

Are you equating a civil relationship between two consenting adults with a union between a horse or a corpse... I was wrong before .. you sir are the dumbest ******* poster on this site... Dave should stay ******* retired too sammy was ten times the singer anyway...

 

[Ravi]

Are you equating a civil relationship between two consenting adults with a union between a horse or a corpse... I was wrong before .. you sir are the dumbest ******* poster on this site... Dave should stay ******* retired too sammy was ten times the singer anyway...

You'd be surprised at how his reasoning keeps millions of people voting republican. There are actual people out there that believe treating gays like everyone else will result in legalized bestiality.

 

[Shogun]

its a constitituional matter, ravikins...


THis is not vientam smokey, ther are RUKLES@!@

 

[Charles_Main]

You'd be surprised at how his reasoning keeps millions of people voting republican. There are actual people out there that believe treating gays like everyone else will result in legalized bestiality.

You act like conservative have a corner on the DUMB ASS market.

Hardly lol

There are plenty of Dumb asses to go around