Marriage equality: A question of equality rather than liberty

[midcan5]

"William Eskridge, by contrast, favors an equal protection-based ruling striking down Proposition 8, if the Supreme Court is to reach the merits at all, which he hopes it will not. His preference for avoidance or what he terms a “narrower ruling” based on Romer v. Evans is grounded in pragmatic considerations, especially worries that if the Court affirms a fundamental right to same-sex marriage, this will lead to a political backlash."

I found the quote above interesting, it touches on the argument, many give here, that society is not ready for this change. If we wait for society as a whole to be ready for any change we could wait forever. Having a gay brother and knowing many married and not, I find any right conferred on an American citizen should be available to all. All the mumbo jumbo jargon misses the simple point, unless gays have the same rights they are not treated equal. Seems simple. Will the community accept it, for many, hell no, I can think of lots today that is not accepted in our diverse society. Move on to important topics, live and let live.

Gay Marriage: The Arguments and the Motives

 

[Sky Dancer]

"William Eskridge, by contrast, favors an equal protection-based ruling striking down Proposition 8, if the Supreme Court is to reach the merits at all, which he hopes it will not. His preference for avoidance or what he terms a “narrower ruling” based on Romer v. Evans is grounded in pragmatic considerations, especially worries that if the Court affirms a fundamental right to same-sex marriage, this will lead to a political backlash."

I found the quote above interesting, it touches on the argument, many give here, that society is not ready for this change. If we wait for society as a whole to be ready for any change we could wait forever. Having a gay brother and knowing many married and not, I find any right conferred on an American citizen should be available to all. All the mumbo jumbo jargon misses the simple point, unless gays have the same rights they are not treated equal. Seems simple. Will the community accept it, for many, hell no, I can think of lots today that is not accepted in our diverse society. Move on to important topics, live and let live.

Gay Marriage: The Arguments and the Motives

My wife and I are of two different opinions on whether we see marriage equality as the law of the land in our lifetime or not. She's an optimist, she thinks it will happen in our lifetime, I do not. Nonetheless, I owe it to succeeding generations of gays and lesbians to make every effort to promote the passage of marriage equality.

 

[bodecea]

"William Eskridge, by contrast, favors an equal protection-based ruling striking down Proposition 8, if the Supreme Court is to reach the merits at all, which he hopes it will not. His preference for avoidance or what he terms a “narrower ruling” based on Romer v. Evans is grounded in pragmatic considerations, especially worries that if the Court affirms a fundamental right to same-sex marriage, this will lead to a political backlash."

I found the quote above interesting, it touches on the argument, many give here, that society is not ready for this change. If we wait for society as a whole to be ready for any change we could wait forever. Having a gay brother and knowing many married and not, I find any right conferred on an American citizen should be available to all. All the mumbo jumbo jargon misses the simple point, unless gays have the same rights they are not treated equal. Seems simple. Will the community accept it, for many, hell no, I can think of lots today that is not accepted in our diverse society. Move on to important topics, live and let live.

Gay Marriage: The Arguments and the Motives

My wife and I are of two different opinions on whether we see marriage equality as the law of the land in our lifetime or not. She's an optimist, she thinks it will happen in our lifetime, I do not. Nonetheless, I owe it to succeeding generations of gays and lesbians to make every effort to promote the passage of marriage equality.

There are times when I would agree with your wife, and times I agree with you. The first salvo for gay rights happened just about the time I came out in the 70s....Anita Bryant and that whole Florida thing...over 30 years ago. And yet, if we look at where we are compared to anything before the 70s, incredible strides. We no longer have to be in the closet to keep our jobs, keep our families, keep our freedom, keep our lives. More and more Americans know someone gay and we are no longer the Boogieman. This is what is creating change best of all....it is very difficult to vote to discriminate against someone you know. Furthermore, as more states allow gay marriage, the rest of the country sees that the dire predictions of the homophobes are NOT coming true. Hard to keep scaring people when they see that the end of the world is not happening in Massachusetts, New York, etc. Here in CA...yes Prop H8 passed....barely...after tons of money was poured in from the Religious Right. Compare that to Prop 22 only about 10 years prior. And there are 18,000 of us couples legally married anyways. If the courts don't strike down Prop H8, the next vote will either be even closer....or we win. Too many people know the lies of the Religious Right are just that.....lies.

 

[Article 15]

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.

Retarded argument is retarded.

 

[Sky Dancer]

"William Eskridge, by contrast, favors an equal protection-based ruling striking down Proposition 8, if the Supreme Court is to reach the merits at all, which he hopes it will not. His preference for avoidance or what he terms a “narrower ruling” based on Romer v. Evans is grounded in pragmatic considerations, especially worries that if the Court affirms a fundamental right to same-sex marriage, this will lead to a political backlash."

I found the quote above interesting, it touches on the argument, many give here, that society is not ready for this change. If we wait for society as a whole to be ready for any change we could wait forever. Having a gay brother and knowing many married and not, I find any right conferred on an American citizen should be available to all. All the mumbo jumbo jargon misses the simple point, unless gays have the same rights they are not treated equal. Seems simple. Will the community accept it, for many, hell no, I can think of lots today that is not accepted in our diverse society. Move on to important topics, live and let live.

Gay Marriage: The Arguments and the Motives

My wife and I are of two different opinions on whether we see marriage equality as the law of the land in our lifetime or not. She's an optimist, she thinks it will happen in our lifetime, I do not. Nonetheless, I owe it to succeeding generations of gays and lesbians to make every effort to promote the passage of marriage equality.

There are times when I would agree with your wife, and times I agree with you. The first salvo for gay rights happened just about the time I came out in the 70s....Anita Bryant and that whole Florida thing...over 30 years ago. And yet, if we look at where we are compared to anything before the 70s, incredible strides. We no longer have to be in the closet to keep our jobs, keep our families, keep our freedom, keep our lives. More and more Americans know someone gay and we are no longer the Boogieman. This is what is creating change best of all....it is very difficult to vote to discriminate against someone you know. Furthermore, as more states allow gay marriage, the rest of the country sees that the dire predictions of the homophobes are NOT coming true. Hard to keep scaring people when they see that the end of the world is not happening in Massachusetts, New York, etc. Here in CA...yes Prop H8 passed....barely...after tons of money was poured in from the Religious Right. Compare that to Prop 22 only about 10 years prior. And there are 18,000 of us couples legally married anyways. If the courts don't strike down Prop H8, the next vote will either be even closer....or we win. Too many people know the lies of the Religious Right are just that.....lies.

Brilliant post. I disagree with you that too many people know the lies of the religous right are lies. Too many believe the lies. Just my opinion.

 

[bodecea]

My wife and I are of two different opinions on whether we see marriage equality as the law of the land in our lifetime or not. She's an optimist, she thinks it will happen in our lifetime, I do not. Nonetheless, I owe it to succeeding generations of gays and lesbians to make every effort to promote the passage of marriage equality.

There are times when I would agree with your wife, and times I agree with you. The first salvo for gay rights happened just about the time I came out in the 70s....Anita Bryant and that whole Florida thing...over 30 years ago. And yet, if we look at where we are compared to anything before the 70s, incredible strides. We no longer have to be in the closet to keep our jobs, keep our families, keep our freedom, keep our lives. More and more Americans know someone gay and we are no longer the Boogieman. This is what is creating change best of all....it is very difficult to vote to discriminate against someone you know. Furthermore, as more states allow gay marriage, the rest of the country sees that the dire predictions of the homophobes are NOT coming true. Hard to keep scaring people when they see that the end of the world is not happening in Massachusetts, New York, etc. Here in CA...yes Prop H8 passed....barely...after tons of money was poured in from the Religious Right. Compare that to Prop 22 only about 10 years prior. And there are 18,000 of us couples legally married anyways. If the courts don't strike down Prop H8, the next vote will either be even closer....or we win. Too many people know the lies of the Religious Right are just that.....lies.

Brilliant post. I disagree with you that too many people know the lies of the religous right are lies. Too many believe the lies. Just my opinion.

IMO, the No on H8 forces made two mistakes during the campaign....1. NOT showcasing the Religious Right's lies enough, and 2. Taking the Minority vote for granted.

I don't think those mistakes will be made again. Do you?

 

[Sky Dancer]

There are times when I would agree with your wife, and times I agree with you. The first salvo for gay rights happened just about the time I came out in the 70s....Anita Bryant and that whole Florida thing...over 30 years ago. And yet, if we look at where we are compared to anything before the 70s, incredible strides. We no longer have to be in the closet to keep our jobs, keep our families, keep our freedom, keep our lives. More and more Americans know someone gay and we are no longer the Boogieman. This is what is creating change best of all....it is very difficult to vote to discriminate against someone you know. Furthermore, as more states allow gay marriage, the rest of the country sees that the dire predictions of the homophobes are NOT coming true. Hard to keep scaring people when they see that the end of the world is not happening in Massachusetts, New York, etc. Here in CA...yes Prop H8 passed....barely...after tons of money was poured in from the Religious Right. Compare that to Prop 22 only about 10 years prior. And there are 18,000 of us couples legally married anyways. If the courts don't strike down Prop H8, the next vote will either be even closer....or we win. Too many people know the lies of the Religious Right are just that.....lies.

Brilliant post. I disagree with you that too many people know the lies of the religous right are lies. Too many believe the lies. Just my opinion.

IMO, the No on H8 forces made two mistakes during the campaign....1. NOT showcasing the Religious Right's lies enough, and 2. Taking the Minority vote for granted.

I don't think those mistakes will be made again. Do you?

No, I don't.

 

[Two Thumbs]

Which they already do.

In some states, yes. Nationally, no.

And what we want is Federal Law to make marriage equal throughout the land.

There is no Constitutional basis for such a law, since it's not covered in it.

DOMA is an unconstitutional law that needs to be repealed.

Then let the states deside if they want to get involved.

 

[WorldWatcher]

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

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.

Actually the historical facts are that differing Civil Marriage laws have been forced on the States, Loving is the prime example. Some allowed interracial Civil Marriage, some didn't - it when the SCOTUS and the discriminatory laws were found unconstitutional.

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.

Actually DOMA will have a large part to play in it as it pertains to the legal landscape between 1973 and now. DOMA did not exist at the time of the Baker dismissal.


>>>>

 

[WorldWatcher]

In some states, yes. Nationally, no.

And what we want is Federal Law to make marriage equal throughout the land.

There is no Constitutional basis for such a law, since it's not covered in it.

DOMA is an unconstitutional law that needs to be repealed.

Then let the states deside if they want to get involved.

Just MHO of course, but if DOMA is repeal and not replaced - in the absence of Congressional guidance pertaining to public acts between the States (Article IV Section 1) - there can be a case made that one State is required to honor the public acts (which a Civil Marriage is) from one State to another. DOMA should be repealed I agree, but theoretically it could be replaced with legislation that (under Congresses AIV S1 powers) says that States are not required to recognize ANY Civil Marriage that conflicts with it's own laws. The difference being that is removes the gender based discrimination of DOMA at the Federal level.

Such a repeal and replace leaves authority with the States.


>>>>

 

[Sky Dancer]

In some states, yes. Nationally, no.

And what we want is Federal Law to make marriage equal throughout the land.

There is no Constitutional basis for such a law, since it's not covered in it.

DOMA is an unconstitutional law that needs to be repealed.

Then let the states deside if they want to get involved.

I agree that repealing DOMA was the first step and then getting the states to honor each other's marriage licenses is the next logical step.

It's certainly not fair to discriminate on a New York marriage license only the basis of same sex marriage in other states.

 

[Qball]

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.

Thank you for the compliment.

As for your argument, I think it's missing the point in two ways. First is, if you're going to make the argument that it's actually sex-based discrimination, you can't just point out that men can do something women can do and stop there. The law allows men to have a wife and women to have a husband. No, a woman can't have a wife, but a man can't have a husband, either. Given that fact, it's not specifically a matter of discrimination, or in other words an issue of one gender being treated differently than another.

Second, I think that argument is sort of...transparent. It's obviously meant to invoke a different type of class based discrimination to mandate a higher basis of scrutiny so that the gay marriage proponents can stay on the offensive and make those opposed do the heavy lifting. And more to the point, it's meant to turn this issue into one that ought to be decided by the courts and not state legislatures, since judges are largely unaffected by the electorate.

That isn't to say there is no rationale for your argument, it's just that there is a specific school of thought with proponents who think we're somehow required to recognize same-sex marriage. More or less arguing that gay marriage is required because it's a good idea, or that there is no good reason not to, doesn't square with what the constitution says. Even if gay marriage is a noble endeavor and nobody opposed has any good reasons for doing so, that still doesn't mean proponents get to get their way.

(Of course, I'm not submitting that there is no good reason not to legalize it, or that those opposed don't have good arguments, just that it's irrelevant to make the point that they don't considering they largely don't have to)

 

[Qball]

"William Eskridge, by contrast, favors an equal protection-based ruling striking down Proposition 8, if the Supreme Court is to reach the merits at all, which he hopes it will not. His preference for avoidance or what he terms a “narrower ruling” based on Romer v. Evans is grounded in pragmatic considerations, especially worries that if the Court affirms a fundamental right to same-sex marriage, this will lead to a political backlash."

I found the quote above interesting, it touches on the argument, many give here, that society is not ready for this change. If we wait for society as a whole to be ready for any change we could wait forever. Having a gay brother and knowing many married and not, I find any right conferred on an American citizen should be available to all. All the mumbo jumbo jargon misses the simple point, unless gays have the same rights they are not treated equal. Seems simple. Will the community accept it, for many, hell no, I can think of lots today that is not accepted in our diverse society. Move on to important topics, live and let live.

Gay Marriage: The Arguments and the Motives

This is one of the reasons why I don't agree with gay marriage. You can't use the legal system and then irrelevantize the process as "mumbo jumbo jargon". I mean, the "ends justify the means" approach doesn't work here, because these arguments become part of the record for future cases to be decided on. Proponents can't see past what they want, and it's dangerous for people to let that go unchecked.

Society obviously isn't ready for gay marriage, and the thing is, they don't have to be ready. Not in the next six months, not in the next two years, nor in the next twenty years. You can't "force" society to be ready for it, and if I'm being honest, you shouldn't want to.

Your argument basically boils down to "gay marriage should be legal because it's only fair", which if I'm being honest, is a little simplistic. We're not talking about gay people being denied a specific right for no tangible reason. This is an extrapolation of bigotry because we still define marriage in age-old "traditional" terms in a society that's becoming increasingly tolerant of homosexuality. But given that our understanding of marriage isn't the direct cause or by-product of discrimination towards the LGBT community, there are no "rights" being infringed upon, and "fairness" isn't stipulated in our constitution, there needs to be a better argument to justify simply changing it to appease the PC crowd.

 

[bodecea]

"William Eskridge, by contrast, favors an equal protection-based ruling striking down Proposition 8, if the Supreme Court is to reach the merits at all, which he hopes it will not. His preference for avoidance or what he terms a “narrower ruling” based on Romer v. Evans is grounded in pragmatic considerations, especially worries that if the Court affirms a fundamental right to same-sex marriage, this will lead to a political backlash."

I found the quote above interesting, it touches on the argument, many give here, that society is not ready for this change. If we wait for society as a whole to be ready for any change we could wait forever. Having a gay brother and knowing many married and not, I find any right conferred on an American citizen should be available to all. All the mumbo jumbo jargon misses the simple point, unless gays have the same rights they are not treated equal. Seems simple. Will the community accept it, for many, hell no, I can think of lots today that is not accepted in our diverse society. Move on to important topics, live and let live.

Gay Marriage: The Arguments and the Motives

This is one of the reasons why I don't agree with gay marriage. You can't use the legal system and then irrelevantize the process as "mumbo jumbo jargon". I mean, the "ends justify the means" approach doesn't work here, because these arguments become part of the record for future cases to be decided on. Proponents can't see past what they want, and it's dangerous for people to let that go unchecked.

Society obviously isn't ready for gay marriage, and the thing is, they don't have to be ready. Not in the next six months, not in the next two years, nor in the next twenty years. You can't "force" society to be ready for it, and if I'm being honest, you shouldn't want to.

Your argument basically boils down to "gay marriage should be legal because it's only fair", which if I'm being honest, is a little simplistic. We're not talking about gay people being denied a specific right for no tangible reason. This is an extrapolation of bigotry because we still define marriage in age-old "traditional" terms in a society that's becoming increasingly tolerant of homosexuality. But given that our understanding of marriage isn't the direct cause or by-product of discrimination towards the LGBT community, there are no "rights" being infringed upon, and "fairness" isn't stipulated in our constitution, there needs to be a better argument to justify simply changing it to appease the PC crowd.

I disagree at this point...

 

[Qball]

There are times when I would agree with your wife, and times I agree with you. The first salvo for gay rights happened just about the time I came out in the 70s....Anita Bryant and that whole Florida thing...over 30 years ago. And yet, if we look at where we are compared to anything before the 70s, incredible strides. We no longer have to be in the closet to keep our jobs, keep our families, keep our freedom, keep our lives. More and more Americans know someone gay and we are no longer the Boogieman. This is what is creating change best of all....it is very difficult to vote to discriminate against someone you know. Furthermore, as more states allow gay marriage, the rest of the country sees that the dire predictions of the homophobes are NOT coming true. Hard to keep scaring people when they see that the end of the world is not happening in Massachusetts, New York, etc. Here in CA...yes Prop H8 passed....barely...after tons of money was poured in from the Religious Right. Compare that to Prop 22 only about 10 years prior. And there are 18,000 of us couples legally married anyways. If the courts don't strike down Prop H8, the next vote will either be even closer....or we win. Too many people know the lies of the Religious Right are just that.....lies.

This is a bunch of blather.

I've noticed gay marriage proponents (and especially gays who are prone to victim complexes) only like to pay attention to the arguments that reaffirm their biases. Because while it's true some religious minded individuals think gay marriage would irreparably harm society if it's legalized (though even those type claims are exaggerated by proponents...it's a generational argument, they don't think it's going to cause the sky to fall six months after it's legalized), most people dislike the way gay marriage has been legalized, either through bullying and harassment, or through the courts where judges basically decide for the people.

The Prop 8 stuff sounds pat given that the primary claims they made have come to pass. CA Education Code 51933 stipulates that any school that teaches comprehensive sex ed must also teach "respect for marriage", so it wasn't a lie to argue that if gay marriage was legalized it might make its way into schools. And then, CA just passed a law that requires teaching LGBT history (for some strange reason), so...where's the lie part? They also said the gay community wanted to use it as a backdoor to attack the church. Aside from the various acts of vandalism, the LDS church has had their tax exempt status challenged because their members donated to Y/8. Of course, the N/8 out-raised and out-spent Y/8, and then turned around and tried to resort to legal bullying since they lost.

And Prop 8 passed by a narrow margin, but it had overwhelming odds against it. CA is the most liberal state in the union; it passed in an historic election year that saw a high voter turnout among Democrats/liberals (who mostly support gay marriage); constitutional amendments are more permanent than statutes, so some people might be more hesitant to amend the constitution than pass a statute; SSM was already legal. And it still passed. Black voters aren't going to forget the race-baiting nonsense that followed the Prop 8 vote, and Hispanic voters are still largely opposed it. I doubt it'll pass any time soon by the electorate.

 

[Qball]

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.



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.



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.

Actually the historical facts are that differing Civil Marriage laws have been forced on the States, Loving is the prime example. Some allowed interracial Civil Marriage, some didn't - it when the SCOTUS and the discriminatory laws were found unconstitutional.

Again, it wasn't just that interracial marriage wasn't allowed. The court didn't overturn anti-miscegenation laws because of the beautiful sacrament of interracial marriage. It said it was unconstitutional for states to throw people in jail for marrying someone of a different race. It didn't just decide what the states should recognize in a civil sense. Loving was a criminal case, so even if they determined what marriage states can allow, that was a by-product of the ruling, not the entire point of it. You can't just expect them to do that again without the criminal element, which there is none re gay marriage.

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.

Actually DOMA will have a large part to play in it as it pertains to the legal landscape between 1973 and now. DOMA did not exist at the time of the Baker dismissal.


>>>>

...and unless DoMA is the law attempting to be repealed, it still doesn't matter with regards to a state referendum. I'd also argue that "substantial federal question" doesn't exactly refer to federal legislation as much as it does the federal constitution, considering we did have a law -- the Edmunds-Tucker Act -- that was like DoMA except it banned polygamy and went much further to do so.

 

[RagZ]

Thank you for the compliment.

As for your argument, I think it's missing the point in two ways. First is, if you're going to make the argument that it's actually sex-based discrimination, you can't just point out that men can do something women can do and stop there. The law allows men to have a wife and women to have a husband. No, a woman can't have a wife, but a man can't have a husband, either. Given that fact, it's not specifically a matter of discrimination, or in other words an issue of one gender being treated differently than another.

Except it is. Both sexes can do something the others can't.

A woman can marry a man. A man can't do that.

A man can marry a woman. A woman can't do that.

Both sexes are given power, under the government, to do something that the other is prevented from doing by the government.

Simply because the government discriminates against them both doesn't make it any less discrimination. Each gender IS being treated differently in regards to what genders they're allowed to marry.

Second, I think that argument is sort of...transparent. It's obviously meant to invoke a different type of class based discrimination to mandate a higher basis of scrutiny so that the gay marriage proponents can stay on the offensive and make those opposed do the heavy lifting.

Then I suggest you get some window cleaner because you're having an issue seeing what's transparent, based on myself at least. For others, that may be the case. However, you're simply leaping to a conclussion based upon your own biases and preconcieved notions, not based on any facts. I don't have the desire to do the "heavy lifting" because I'm not honestly sure that said heavy lifting SHOULD happen (IE sexual orientation being a higher level of scrutiny). Secondly, prior to beginning to view the situation in this particular light I was actually one who believed that this should be 100% a state issue, was fine with civil unions, against the notion of changing the definition of marriage, and against a federal mandate in EITHER direction. However, upon realizing the constitutional issue that is presented my stance as a conservative mandated I reexamine the situation if I'm to honestly claim to be a staunch supporter of the Constitution.

I came to this conclussion actually for reasons other than strictly "gay marriage". It is why primarily in these debates you'll note I use the term of "same sex marriage" rather than "gay marriage". There are situations where I can see the significant benefit for two heterosexual people to enter into a binding contract allowing them the various benefits granted to them.

Frankly, my prefered preference would be to strip the term "marriage" from the law completely, leaving it as singularly a private sector word used primarily by religions. "Marraige" would become a societal definition based on the common usage by the masses and become an individual thing. The state would simply have Civil Unions, if they were in the "marriage" business at all, open to any two individuals.

However, as long as the current law is on the books I feel that there is a significant constitutional issue that deserves to be looked at in a court of law.

[qoute]And more to the point, it's meant to turn this issue into one that ought to be decided by the courts and not state legislatures, since judges are largely unaffected by the electorate. [/quote]

Well, yes. It is. That's how our government is set up. Contrary to what some conservatives like to believe, the founder shad a part in shaping the Supreme Court as well. It wasn't some super sekret edition added in by a bunch of horrible evil vile tricksy liberals. The role of the court is to legislate regarding constitutoinality. This law, to me, is something that is...at the least...questionable regarding its constitutionality. As a conservative I can not sit by and simply ignore the constitutional question simply due to the fact that it may displease my moral views or because its against the "will of the people". I don't trash my princples because some polls tell me to go a different direction. If various states began to pass laws through referendum banning their citizens from using guns I'd have no issue with that going to the Supreme court either because the views of a simple majority of the electorate does not overrule the Constitution. Same applies here.

Unlike what appears to be your view point, I do not believe issues that are in contradition with the Constitution should be held to the whim of voters rather than actually balanced in line with what the Constitution sets forth. I don't believe people should be able to vote away peoples rights to free speech, to worship as a Baptist, to own a Handgun, or to have a fair trial....or to have Equal Protection under the law.

That isn't to say there is no rationale for your argument, it's just that there is a specific school of thought with proponents who think we're somehow required to recognize same-sex marriage. More or less arguing that gay marriage is required because it's a good idea, or that there is no good reason not to, doesn't square with what the constitution says. Even if gay marriage is a noble endeavor and nobody opposed has any good reasons for doing so, that still doesn't mean proponents get to get their way.

I understand the issues with that notion. "Its a good thing" or "its not harming anyone" frankly to me isn't an argument that's going to likely win me over. Sure, its something you can pitch to voters, but its not very swaying. I can undrestand issues with that kind of argument. I even agree with you in regards to suggesting its not in line with the constitution if one can't find specific arguments as to its unconstitutionality rather than just talking about what an individual feels is the "spirit" of th constitution.

However, there is a distinct difference between an actual, factual, strict constitutional basis for a question regarding the constitutionality of a law and an appeal to the "spirit" of the constitution in relation to the issue.

By no means do I think we're "required" to recognize gay marriage; both publicly and privately. However, we ARE required to have our laws fall in line with the Constitution. To me, this is a case when the laws are not. In my eye, if it was found my view was correct, that leaves a few options...

1. Change the legal definition of marriage to allow any one person to marry any other person

2. Remove the language of marriage from the government, replacing it with civil unions, and allowing it to be any one person to form a union with any other person

3. Remove the concept of marriage from the government as a whole

We are not required, publicly, to recognize gay marriage. However, if my constitutional assertion proved correct we would be required, publicly, to recognize two gay people's marriage IF we wanted to recognize two straight people's. If we didn't want to recognize the latter we wouldn't need to recognize the former.

However, in a private setting, you are required to do no such thing. If you want to view two men's or two women's marriage as illegitimate that is your right so long as your view is not forced upon them unconstitutionally by the government.

That said, the argument could reach the court and be struck down entirely. But that doesn't change the fact that I firmly believe there is a legitimate and significant legal argument to be had regarding gender discrimination in marriage law.

The reason you don't see many of the homosexual community approaching it from that angle is that the fight, for them, is not a constitutional one or one even about marriage itself. For them, its a fight for equality and the need to have sexual orientation viewed on an even level with other classes. They have a dog in the fight. I do not. I largely am not bothered by it either way, however I do have a strong care and trust in the constitution, which is why this particular angle intrigues me so much.

Thanks for the very good conversation. As is evident by some of the other things just in this thread, its sometimes a bit difficult to have a good intellectual conversation on the issue with someone on the opposite side on forums.

 

[PLYMCO_PILGRIM]

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 about 2 individuals who love each other, live with each other, but dont want to be married?

Why is it ok to discriminate in favor of married couples over non-married couples? I want equal protection

 

[RagZ]

What about 2 individuals who love each other, live with each other, but dont want to be married?

Why is it ok to discriminate in favor of married couples over non-married couples? I want equal protection

Can't answer for the other guy, but for me personally "individuals who love each other" or "individuals who live with each other" is not a class that reaches a stricter tier of scrutiny under the EPC and would be questionable if it even reaches a decent rational basis. As such, its rational that the government wouldn't wish to bestow privledges to individuals who do not want to enter into a binding contract under the government and has a reasonable interest in not extending benefits to such people.

 

[PLYMCO_PILGRIM]

What about 2 individuals who love each other, live with each other, but dont want to be married?

Why is it ok to discriminate in favor of married couples over non-married couples? I want equal protection

Can't answer for the other guy, but for me personally "individuals who love each other" or "individuals who live with each other" is not a class that reaches a stricter tier of scrutiny under the EPC and would be questionable if it even reaches a decent rational basis. As such, its rational that the government wouldn't wish to bestow privledges to individuals who do not want to enter into a binding contract under the government and has a reasonable interest in not extending benefits to such people.

Ahhh but is it not discriminatory to give prilvledges, through the government, to one specific class of people at the exclusion of another class?