Marriage equality: A question of equality rather than liberty

C_Clayton_Jones

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In a diverse society like ours, constitutional principles used to invalidate state or federal laws should, as far as possible, be those that people of very different views can accept. While our diversity is indeed a strength, it is also a challenge. The structure of our government best respects this diversity when the constitutional principles used to structure our relationships are ones that people with very different views could each adopt. This traditional liberal approach animates the religion clauses of the Constitution, as well as recognition of some of our most cherished fundamental rights, like the right to free speech. Thus, the Supreme Court’s decisions holding that the Constitution protects or requires X should aim to rely on principles of this kind.

For this reason, equal protection provides a better framework, normatively and constitutionally, to approach the issue of same-sex marriage. Because a due process approach requires a court to define marriage and thus enshrine one constitutionally acceptable view of an institution that people view in significantly different ways, the court’s decision rests on principles that we cannot fairly expect people with different views to accept. By contrast, equal protection analysis deploys a thinner principle: that the state must treat everyone with equal concern and respect. While people will disagree about whether this principle is or is not violated by Proposition 8, this part of a court’s ruling is merely its interpretation of the best way to read or understand the California law, not a statement of constitutional principle. The principle on which an equal protection approach relies is one that we can ask reasonable people with very different religious, ethnic or moral values to accept: namely that the state should treat each of us with equal respect.
Full text at the link:

Marriage equality: A question of equality rather than liberty : SCOTUSblog
 

Iridescence

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There are several things that haven't come about yet for this to be logically acceptable by our current mainstream social mindset. Obviously, we have a great deal of idealists as well as a great deal of a variety of others who would willingly/openly accept it... We just aren't there yet. :dunno:
 

editec

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Of course this question is one of equality under the law.

That's been obvious all along, hasn't it?
 

Qball

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By contrast, equal protection analysis deploys a thinner principle: that the state must treat everyone with equal concern and respect.
And that's exactly wrong. Equal protection analysis should first determine what we're attempting to protect in the first place. The constitutional history of the EPC is due to the unequal application of the law, not the unequal interest certain groups have in the law. The fact is, Prop 8 and every other marriage amendment are neutral on the question of sexual preference. Nothing is stopping gay and lesbian individuals from marrying the way the state currently defines marriage. Arguing that it is would be like arguing that man who would rather have two wives instead of one is being discriminated against because the law doesn't recognize his preference.
 

Mr.Nick

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There is no such thing as equality, only standards.

We're all not equal, hence equality is a hoop dream.

Besides we all discriminate so in what universe are gays special when it comes to that?
 

Moonglow

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I've had three marriages, there is no liberty with many women when you marry them, you become a wagge slave.
Equality, women have all the pussy and half the monies. How is that equal for a man?
 

Quantum Windbag

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In a diverse society like ours, constitutional principles used to invalidate state or federal laws should, as far as possible, be those that people of very different views can accept. While our diversity is indeed a strength, it is also a challenge. The structure of our government best respects this diversity when the constitutional principles used to structure our relationships are ones that people with very different views could each adopt. This traditional liberal approach animates the religion clauses of the Constitution, as well as recognition of some of our most cherished fundamental rights, like the right to free speech. Thus, the Supreme Court’s decisions holding that the Constitution protects or requires X should aim to rely on principles of this kind.

For this reason, equal protection provides a better framework, normatively and constitutionally, to approach the issue of same-sex marriage. Because a due process approach requires a court to define marriage and thus enshrine one constitutionally acceptable view of an institution that people view in significantly different ways, the court’s decision rests on principles that we cannot fairly expect people with different views to accept. By contrast, equal protection analysis deploys a thinner principle: that the state must treat everyone with equal concern and respect. While people will disagree about whether this principle is or is not violated by Proposition 8, this part of a court’s ruling is merely its interpretation of the best way to read or understand the California law, not a statement of constitutional principle. The principle on which an equal protection approach relies is one that we can ask reasonable people with very different religious, ethnic or moral values to accept: namely that the state should treat each of us with equal respect.
Full text at the link:

Marriage equality: A question of equality rather than liberty : SCOTUSblog
What is you obsession with this issue? Do you enjoy looking like a clueless idiot?
 

bodecea

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There is no such thing as equality, only standards.

We're all not equal, hence equality is a hoop dream.

Besides we all discriminate so in what universe are gays special when it comes to that?
Gay citizens are no more special than *people like you* but we are no less either. If *people like you* have the right to civil marriage, so should gay people.
 

Qball

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No, the states that define marriage as a man and woman (and say nothing of sexual preference) also treat their citizens equally. It's not like straight people can marry people of the same sex but gays can't. So that means it's equal.
 

bodecea

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No, the states that define marriage as a man and woman (and say nothing of sexual preference) also treat their citizens equally. It's not like straight people can marry people of the same sex but gays can't. So that means it's equal.
:lol::lol::lol: How come that argument didn't work in Loving v Virginia?
 

Qball

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No, the states that define marriage as a man and woman (and say nothing of sexual preference) also treat their citizens equally. It's not like straight people can marry people of the same sex but gays can't. So that means it's equal.
:lol::lol::lol: How come that argument didn't work in Loving v Virginia?
Because Loving v. Virginia had to do with race, not sexual orientation. Try again.
 

bodecea

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No, the states that define marriage as a man and woman (and say nothing of sexual preference) also treat their citizens equally. It's not like straight people can marry people of the same sex but gays can't. So that means it's equal.
:lol::lol::lol: How come that argument didn't work in Loving v Virginia?
Because Loving v. Virginia had to do with race, not sexual orientation. Try again.
Argument is the same. Both sides being discriminated against equally does not make for equality.

Just because white people couldn't marry blacks...didn't make an equality argument for the state to make black people marrying whites illegal.

The lawyer who made that argument got laughed at by the Justices.
 

Zander

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I am pro gay marriage/civil unions. If two people love each other and want to get married I think it's great. I am pro "love" and pro "commitment". A marriage is a commitment. It means two people are serious about being together. It can break up, but you don't have to be gay to have a breakup/divorce. :lol:

From the perspective of the state, it is a legal union, nothing more. Can gay people form corporations and LLC's? Can gay people enter into legally binding contracts? Yep. Why is a "marriage" different? It is a legal structure, a contract between two people. PERIOD. By not allowing gays the opportunity to marry (or engage in civil unions that are identical to marriage) the state is discriminating against gays.

Still, some social conservatives object on the grounds that "marriage" is between one man and one woman. They say "why should we change the meaning of words?" Sounds reasonable, OK. Let's call gay marriage a "civil union". Just make them legally identical in every way except name. I don't see why pro-gay advocates wouldn't compromise. That'd be a win/win. Marriage would be between one man and one woman. Civil unions are for same sex couples. Problem solved!!

NEXT!!! :lol:
 

Qball

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:lol::lol::lol: How come that argument didn't work in Loving v Virginia?
Because Loving v. Virginia had to do with race, not sexual orientation. Try again.
Argument is the same. Both sides being discriminated against equally does not make for equality.

Just because white people couldn't marry blacks...didn't make an equality argument for the state to make black people marrying whites illegal.

The lawyer who made that argument got laughed at by the Justices.
:rolleyes:

For one thing, the argument actually isn't the same. The argument the state made on behalf of Virginia's anti-miscegenation law was that it wasn't racially discriminatory because both the white husband and black wife were punished under it. Laws that define marriage aren't criminal statutes, so there's no inherent equal protection issue, nor do they directly address orientation, so there's no obvious attempt to create a disparity of treatment.

But of course all of that is academic, since it's beside the point. Even if the argument was the same, arguments in and of themselves aren't necessarily fallacious. They just may not work in a given context. Jurisprudence based on race has always been subject to strict scrutiny, whereas jurisprudence on the basis of sexual orientation has always been subject to rational basis.

Also of note, the same Supreme Court (give or take one or two Justices) that overturned anti-miscegenation laws in 1967 under Loving dismissed a case claiming that gay marriage was a constitutional right five years later (Baker v. Nelson). I guess they'd find your argument equally laughable :lol:
 

WorldWatcher

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Because Loving v. Virginia had to do with race, not sexual orientation. Try again.
Argument is the same. Both sides being discriminated against equally does not make for equality.

Just because white people couldn't marry blacks...didn't make an equality argument for the state to make black people marrying whites illegal.

The lawyer who made that argument got laughed at by the Justices.
:rolleyes:

For one thing, the argument actually isn't the same. The argument the state made on behalf of Virginia's anti-miscegenation law was that it wasn't racially discriminatory because both the white husband and black wife were punished under it. Laws that define marriage aren't criminal statutes, so there's no inherent equal protection issue, nor do they directly address orientation, so there's no obvious attempt to create a disparity of treatment.

But of course all of that is academic, since it's beside the point. Even if the argument was the same, arguments in and of themselves aren't necessarily fallacious. They just may not work in a given context. Jurisprudence based on race has always been subject to strict scrutiny, whereas jurisprudence on the basis of sexual orientation has always been subject to rational basis.

Also of note, the same Supreme Court (give or take one or two Justices) that overturned anti-miscegenation laws in 1967 under Loving dismissed a case claiming that gay marriage was a constitutional right five years later (Baker v. Nelson). I guess they'd find your argument equally laughable :lol:

Regarding the last paragraph, maybe not - today. See the Baker case was dismissed "for want of a federal question" which was appropriate and different from the Loving case. In Loving there were direct federal questiona in that some States allowed interracial marriage other states banned it. ALL Civil Marriages under state law was also recognized under federal law. As it pertains to Same-sex Civil Marriage at the time, the fact that there was a "want of a federal question" was appropriate because there were zero states recognizing Same-sex Civil Marriage, no federal law on who could get Civilly Married and hence no federal question. Fast forward to 2011 and the federal legal landscape has changed significantly because:

(a) there are now 9 legal entities which recognize Same-sex Civil Marriages in some fashion [Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, California, Maryland, plus Washington, D.C.]. There now exists unequal treatment of citizens in similar situations (i.e. legally Civilly Married couples) based on the gender of the couple.

and

(b) DOMA because part of federal law in 1996.​


The legal landscape is not the same as it was 38 years ago.



>>>>
 
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Qball

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Argument is the same. Both sides being discriminated against equally does not make for equality.

Just because white people couldn't marry blacks...didn't make an equality argument for the state to make black people marrying whites illegal.

The lawyer who made that argument got laughed at by the Justices.
:rolleyes:

For one thing, the argument actually isn't the same. The argument the state made on behalf of Virginia's anti-miscegenation law was that it wasn't racially discriminatory because both the white husband and black wife were punished under it. Laws that define marriage aren't criminal statutes, so there's no inherent equal protection issue, nor do they directly address orientation, so there's no obvious attempt to create a disparity of treatment.

But of course all of that is academic, since it's beside the point. Even if the argument was the same, arguments in and of themselves aren't necessarily fallacious. They just may not work in a given context. Jurisprudence based on race has always been subject to strict scrutiny, whereas jurisprudence on the basis of sexual orientation has always been subject to rational basis.

Also of note, the same Supreme Court (give or take one or two Justices) that overturned anti-miscegenation laws in 1967 under Loving dismissed a case claiming that gay marriage was a constitutional right five years later (Baker v. Nelson). I guess they'd find your argument equally laughable :lol:

Regarding the last paragraph, maybe not - today. See the Baker case was dismissed "for want of a federal question" which was appropriate and different from the Loving case. In Loving there were direct federal questiona in that some States allowed interracial marriage other states banned it.
I disagree. It was a "direct federal question" because it pertained to a law that sought to curb one of our basic freedoms -- life, liberty, and property. It wasn't just about what was allowed, in a civil sense. In most states interracial marriage wasn't a crime, but in some it was. I'd still consider it a federal issue, albeit of a different matter, if we were only talking about allowances made by the state, like we are with same-sex marriage.

ALL Civil Marriages under state law was also recognized under federal law. As it pertains to Same-sex Civil Marriage at the time, the fact that there was a "want of a federal question" was appropriate because there were zero states recognizing Same-sex Civil Marriage, no federal law on who could get Civilly Married and hence no federal question.
It didn't matter that there weren't any states that legalized it at the time. One could also infer that it was dismissed "for want of a substantial federal question" because it's generally been held a states' rights issue. Meaning, states aren't compelled to recognize any form of marriage per the constitution. Of course, that doesn't mean they can criminalize any form of marriage, but they're not required to recognize them, either.

Fast forward to 2011 and the federal legal landscape has changed significantly because:

(a) there are now 9 legal entities which recognize Same-sex Civil Marriages in some fashion [Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, California, Maryland, plus Washington, D.C.]. There now exists unequal treatment of citizens in similar situations (i.e. legally Civilly Married couples) based on the gender of the couple.

and

(b) DOMA because part of federal law in 1996.​


The legal landscape is not the same as it was 38 years ago.



>>>>
It doesn't matter how many states recognize gay unions, that doesn't create a requirement that other state also recognize it. In fact, just because a handful of states recognize them doesn't mean they outweigh the rest of the country that's demonstably shown they don't. And DoMA has nothing to do with, say, Proposition 8, for obvious reasons. If the gay marriage lobby thought they could overturn DoMA because it's federal legislation, they would've already tried to do it.
 

RagZ

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And that's exactly wrong. Equal protection analysis should first determine what we're attempting to protect in the first place. The constitutional history of the EPC is due to the unequal application of the law, not the unequal interest certain groups have in the law. The fact is, Prop 8 and every other marriage amendment are neutral on the question of sexual preference.
Because Loving v. Virginia had to do with race, not sexual orientation. Try again.
But of course all of that is academic, since it's beside the point. Even if the argument was the same, arguments in and of themselves aren't necessarily fallacious. They just may not work in a given context. Jurisprudence based on race has always been subject to strict scrutiny, whereas jurisprudence on the basis of sexual orientation has always been subject to rational basis.
First, let me say its nice to see someone on the opposite side of this debate actually having some decent knowledge of the equal protection clause for once. This seems relatively rare.

Second, I agree 100% with your assertion regarding sexual orientation. To judge that our current marriage laws are unconstitutional based on the EPC in regards ot sexual orientation would require a significant shift of precedence where-in the court moves forward to establish Sexual Orientation as a higher teir of scrutiny than it has in the past. While that is not outside the realm of possability I would imagine it to be an improbability at this time.

Third, the issue where the EPC comes into play however would be in regards to Gender. While not to the level of Race which requires strict scrutiny, Gender does fall into the middle teir scrutiny that is higher than that of the rational basis which sexual orientation currently falls under. Gender is where a more legitimate case could be made.

As it stands under current law we have a situation where...

A man can marry a woman.
A woman can marry a man.
However a man can not marry a man and a woman can not marry a woman.

As such, we have a law in which a man can do something a woman is not legally allowed to do and vise versa. Or put another way, because a woman can marry a man but a man can not marry a man, there is discrimination based on gender against said man when compared to a woman.

Shift this another way to a different higher level protected class...

Religious people may marry non-religious people
Non-religious people may marry religious people.
Religious people can not marry religious people and non-religious people can not marry non-religious people.

So typically people try to obfuscate the gender discrimination by stating both can marry the "opposite-sex", and yet that would not work in almost any other form of discrimination. In the above case, one can marry someone whose "opposite their religious views" and yet it would still be discrimination. This is akin to saying that if you have two equal sides of a resturant that its okay to segregate it based on race because they're both able to still eat at the resturant just in a slightly different way. As we know, that argument doesn't hold up.

Its unquestionable and undeniable that with our current marriage laws men can do something women can't and vise versa. The question then comes down to the level of scrutiny. As I conceded earlier, Gender is not on the same level as race or religion with regards to scrutiny. However, it is still high enough to at least have the argument put out there.

The middle tier scrutiny requires the following:

"The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest."

Does discriminating against gender by allowing each sex to do something the other can't do serve an important state interest? If so, what is it? Remember, it must be an "important" state interest rather than simply a "legitimate" state interest. Additionally, if it DOES serve an important state interest, is it substantially related to serving that interest. Again, different than with sexual orientation which would only need to show a rational relationship.

My answer to this, personally, is no. There is no "important" state interest I've had presented to me as to why it is needed to discriminate in this fashion in regards to marriage. Studies regarding the fitness as parents for same sex couples are inconclusive at best with them falling on both sides, making it hard for me to buy into the notion that its important to the notion of promoting family to deny this type of marriage. Appeals to "tradition" may be a "legitimate" state interest but I don't think truly stand up to the need as an "important" state interest. IE, its not important for the state to make sure something is done one way simply because its always been done that way. In regards to actually having children, again I'm unsure this really falls into an "important" state interest. Considering we have more children born than we have homes for them every year in this country the need to have more children born doesn't seem to raise to the level of "important" state interest.

Even so, lets say any of those WERE found to be important state interests. I also don't think that discriminating on gender is substantially related to those goals. In regards to a good family, there are far more indicators that are clearly found to be warning signs for a bad family structure beyond simply same sex couplings. Drug use, criminal record, abuse as a child, etc. Yet we do not deem these things substantially related to meeting the goal. As such, I'm not sure exactly how discriminating based on gender would be substantially related. Similarly with regards to children, we do not disqualify people from marriages based on a lack of desire for kids, an inability to have kids, or even much older age in the women which produces a severe risk for children to have genetic defects. So again, I'm unsure how limiting same sex marriage is somehow substantially related.

While I understand there may be others that disagree with this point, I think its extremely reasonable to suggest that when viewed from a gender discrimination rather than a sexual oreintation issue that there is at least a worth while legal question to be had there.
 

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