US Politics: Shotgun Wedding edition

[all swedes are racist]

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[all swedes are racist]

@ Hayyoth

Honestly, I'm not sure I'm seeing how a fundamental right for anyone to marry ties in to a CCW argument, beyond a possible "we'll you guys got this, why can't we have that?" line of reasoning. Not trying to be a dick here, I really just don't get the connection. Care to explain it to me?

[Manhole Eunuchsbane]

Great thread title. Topical and funny. It was better than Cats. I'd +1 it again.

[Hayyoth]

@ Hayyoth

Honestly, I'm not sure I'm seeing how a fundamental right for anyone to marry ties in to a CCW argument, beyond a possible "we'll you guys got this, why can't we have that?" line of reasoning. Not trying to be a dick here, I really just don't get the connection. Care to explain it to me?

Because the SCOTUS has decided that if a license is required to regulate a constitutional right then states have no choice but to issue it. You said it yourself 'well you guys got this, why can't we have that?' That pretty much sums up the equal protection clause in the US constitution.

[all swedes are racist]

Because the SCOTUS has decided that if a license is required to regulate a constitutional right then states have no choice but to issue it. You said it yourself 'well you guys got this, why can't we have that?' That pretty much sums up the equal protection clause in the US constitution.

Now I'm no lawyer or constitutional scholar, but I'd say that absolutely does not sum up the equal protection clause. Is far as I can tell, the equal protection clause states that someone cannot be denied the opportunity to exercise a right granted to someone else, within that states jurisdiction, specifically on the basis of being a member of a protected class.

Are concealed carry permits not being issued to certain persons-- based on sexual orientation, race, gender, etc-- in states where said permits are being issued to others?

[Free Northman Reborn]

Does the Constitution see the right to marriage as any more important or fundamental than the right to bear arms?

[Wethers]

Does the Constitution see the right to marriage as any more important or fundamental than the right to bear arms?

Also not a con law expert, but I'm guessing the answer is no, both are rights? And both are subject to differing regulation by states, but NOT subject to unconstitutional regulation by any state. Specifically, denial of the right to marry or the right to bear arms solely based on race, gender, sexual orientation, or membership of a specific class of people etc. would not be constitutional.

[Hayyoth]

Does the Constitution see the right to marriage as any more important or fundamental than the right to bear arms?

No but five justices in the supreme court do.

Also not a con law expert, but I'm guessing the answer is no, both are rights? And both are subject to differing regulation by states, but NOT subject to unconstitutional regulation by any state. Specifically, denial of the right to marry or the right to bear arms solely based on race, gender, sexual orientation, or membership of a specific class of people etc. would not be constitutional.

No if it was a privilege protected by the equal protection clause then states could simply refuse to grant licenses to anyone. No license no discrimination. As in the example of a cosmologist, there is no obligation to license a scientist however should you do so then you can't discriminate due to race, gender, sexuality etc. However owning guns and getting married are RIGHTS, if a license is required to regulate a right the SCOTUS has decided that the license must be issued to anyone who applies for one in all 50 states and territories. Is it OK to put restrictions on the issuance? Perhaps, but they must be issued, the state has no choice.

[ants]

Hayoth, on 01 Jul 2015

What you mean like if a state chooses not to issue a marriage license to anyone? Like Hawaii refuses to issue a CCW permit? Nope it wouldn't be compliant with the ruling, at least that's my understanding. The reason why Kennedy ruled that civil marriage was a right was precisely to stop southern and western states from refusing to issue marriage licenses to gay or straight couples.

So marriage, like owning a gun, is a constitutionally protected right. The SCOTUS has ruled that states have a legitimate reason to issue a license, to give a permission, to citizens regulating that right, just like CCW permits. The court has further ruled that under the 14th amendment ALL states MUST issue a marriage license to any couple who asks for one....at the moment unlike CCW permits. As I said if they were consistent and had a shred of honor the Justices would immediately hear a case appealing the refusal of states to issue CCW permits, but of course they won't.

Ah, no I didn't mean that. I never mentioned not granting a license. I meant what I said - states can still put whatever requirements that they want around the requirement to get married, as long as they are not discriminatory. i.e. there is still plenty of leeway in how you license marriage. You just can't discriminate.

Which seems no different to saying that each state can control how the right to bear arms is managed, by having things such as licenses, safety rules, their own views on concealed carry, and banning some weapons. Its not like each state now has to go out and make sure every single element of the requirements for a marriage license have to match across the states. They'll charge different fees, probably have different documents, etc. In the same way your original assertion that states must use the same criteria to manage CCW permits is false, since the rules around the right can be different as long as they don't discriminate.

[Wethers]

However owning guns and getting married are RIGHTS, if a license is required to regulate a right the SCOTUS has decided that the license must be issued to anyone who applies for one in all 50 states and territories. Is it OK to put restrictions on the issuance? Perhaps, but they must be issued, the state has no choice.

Again, not a con law expert, so I suppose I didn't know equal protection didn't apply to rights and only applied to privileges? Is that the case?

Aside: the US Constitution itself does not enumerate any rights, does it? Only the amendments, and even those do not purport to outline all possible rights that people have, just explicitly spell out some. (Otherwise did people have no rights in the year or two between the Constitution and the Bill of Rights?). And out of all those rights, some can be regulated, via license or other means. But I thought none could be applied differently to different classes of people based on equal protection.

So you're saying based on the right to marry, a license MUST be issued to a man trying to marry a 12-year-old girl? The state has no choice? I thought the SCOTUS could rule that the state could regulate that right to deny this license within the constitution without violating equal protection. Whereas if the state makes a rule denying the marriage solely based on sexual orientation, that is unconstitutional.

And you're saying, based on the right to bear arms, a license MUST be issued to a man trying to buy a howitzer? The state has no choice? I thought the SCOTUS could rule that the state could also regulate the right to bear arms so as to deny the howitzer license and stay within the constitution. But if they license howitzers, they better not deny the license solely because the would-be licensee is a black man or a gay dude or both.

I'm willing to learn here and am quite possibly wrong - can you point me to where equal protection cannot apply to rights? Or to where rights cannot be regulated (assuming said regulations do not violate equal protection)? Ideally something layman-friendly?

[Wethers]

Also this is where I'm getting my impression that Kennedy's decision in Obergefell v. Hodges was based on Equal Protection, from the transcript:

The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection.

So again, my overall impression was, per the decision: marriage = right. States can't just refuse to grant it in all cases. But like the right to bear arms, marriage is a right that can be reasonably regulated by the state - including via license, whatever. And under some circumstances, like the 12-year-old girl or howitzer examples, the license may not be granted, and that's a-ok. However, such regulations can be ruled unconstitutional by the SCOTUS - as when they are ruled to violate the Equal Protection Clause of the 14th Amendment. So Kennedy ruled that it is unconstitutional for any state to deny the right to marriage solely based on sexual orientation since that would be a violation of Equal Protection.

I will freely admit that I have not read all 100+ pages of the decision and dissents, so perhaps I'm misunderstanding.

[TrackerNeil]

Because the SCOTUS has decided that if a license is required to regulate a constitutional right then states have no choice but to issue it. You said it yourself 'well you guys got this, why can't we have that?' That pretty much sums up the equal protection clause in the US constitution.

I haven't read the entire opinion, but I don't think the majority said that all licenses, everywhere they are granted and for whatever reason, are a constitutional right. They were speaking of marriage licenses, and, by the way, I don't know if anything in their ruling would require a state to extend marriage rights to four-year-olds, or to dogs, or fire hydrants. So I think you're plucking on a string that will yield no sound.

As Wethers pointed out, all constitutional rights are hedged, which is why my right to freely express my views doesn't mean I can do so on your front lawn. Same with marriage rights, the right to bear arms, and any other right enshrined in the Constitution. You're insisting upon a strange consistency (a license is a license is a license!) yet you can't see the consistency of that.

[Ser Scot A Ellison]

Wethers,

Aside: the US Constitution itself does not enumerate any rights, does it? Only the amendments, and even those do not purport to outline all possible rights that people have, just explicitly spell out some. (Otherwise did people have no rights in the year or two between the Constitution and the Bill of Rights?). And out of all those rights, some can be regulated, via license or other means. But I thought none could be applied differently to different classes of people based on equal protection.

Amendments are part of the Constitution. They simply weren't originally part of the Constitution.

Hayyoth,

Your licensure argument, doesn't it suggest that a license to fish, blast, build, practice law, or medicine from one State should be valid in all?

[Frog Eater]

I dont see how the recent decision that LGBT persons could not be discriminated against in relation to marriage licenses applies to CCW permits.

Mind you, I am a CCW permit holder, and think I should be able to carry in all states.

I just dont see how the decision relates to other permits, unless those licensing agencies are discriminating against a protected class.

[The Mance]

Hayyoth:

The court has further ruled that under the 14th amendment ALL states MUST issue a marriage license to any couple who asks for one....

No, they didn't. No state is required to issue a ML to a couple of 14 years olds, or to a couple who are each already married to someone else. See? Reasonable restrictions.

[aceluby]

Hayyoth:

No, they didn't. No state is required to issue a ML to a couple of 14 years olds, or to a couple who are each already married to someone else. See? Reasonable restrictions.

Yeah, in fact, states have the option of not issuing marriage certificates at all if they so choose.

[The Fallen]

Bah. The 2nd amendment gives the right to own a gun, not carry it with you everywhere you go. "Bear arms", in the way it was intended and used in that time, most surely meant warring, being a soldier. Not the literal meaning of "I can carry my guns everywhere!"

If I recall correctly, even then the arms were regulated by local authorities and had to be stored properly and safeguarded. As they were used within a militia.

[Hayyoth]

Yeah, in fact, states have the option of not issuing marriage certificates at all if they so choose.

http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex.

So no, states must issue licenses.

No, they didn't. No state is required to issue a ML to a couple of 14 years olds, or to a couple who are each already married to someone else. See? Reasonable restrictions.

That's right but they must issue licenses. The SCOTUS has reserved to itself the ultimate power to determine what is reasonable under the due process and equal protection clauses of the 14A.

[Hayyoth]

Bah. The 2nd amendment gives the right to own a gun, not carry it with you everywhere you go. "Bear arms", in the way it was intended and used in that time, most surely meant warring, being a soldier. Not the literal meaning of "I can carry my guns everywhere!"

If I recall correctly, even then the arms were regulated by local authorities and had to be stored properly and safeguarded. As they were used within a militia.

This is nonsense. SCOTUS has already ruled on this in the Heller case. The right to bear arms is a fundamental constitutional right.

[aceluby]

http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

So no, states must issue licenses.

That's right but they must issue licenses. The SCOTUS has reserved to itself the ultimate power to determine what is reasonable under the due process and equal protection clauses of the 14A.

There is no federal requirement that states must issue marriage licenses. What you quoted just states that if states do issue them that they must do so to same sex couples as well.