Wow.. Now I can Marry Him

[Guest Raidne]

You're both wrong. Guys, did you not read what I said? It's because homosexuality is immutable, i.e. is not chosen and cannot be changed.

So, for example, it's possible that pedophiles could be a protected class, because it seems to be immutable also, but because of the harm to children, there will always be a compelling state interest in making that conduct illegal, so it passes scrutiny, and nobody would bother to bring the argument.

Galactus that argument you made has been used in employment discrimination cases here to, well, ultimately very little success. It's just too tenuous for everyone. I mean, I get it, but it feels...fishy. And it leads to consequences other than the ones you want.

For instance, there is no such thing as a protected class called "gender." Women are a protected class though. So under your reasoning, we'd let lesbians get married, but not men, because as men, they have no protected class status. See how that doesn't work?

ETA: As I'm reading the decision, I see that the Judge here messed that up also, so I won't hold it against you. ;) I doubt the argument that laws against gay marriage discriminate against men, as men, because if they were women they'd be allowed to marry a man, is going to hold up at the next level of review. I see the Judge argued a higher protected status for gays, but didn't make the ruling rest on it.

But, for my money, the opinion would be a lot stronger if he had - but he's counting on the 9th circuit to do that - there are findings of immutability in that massive list of findings at the front of the decision, even if he doesn't do much with it himself.

[Guest Raidne]

So, I'm reading the decision, and it turns out the Judge anticipated that some people would bring up FLOW's argument and threw this citation in there:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).

So, does FLOW disagree with Barnette? Or does it not apply here? Or what?

[Stalker]

You're both wrong. Guys, did you not read what I said? It's because homosexuality is immutable, i.e. is not chosen and cannot be changed.

So, for example, it's possible that pedophiles could be a protected class, because it seems to be immutable also, but because of the harm to children, there will always be a compelling state interest in making that conduct illegal, so it passes scrutiny, and nobody would bother to bring the argument.

So some sexual orientations are immutable and thus protected, while others are not. How does one even come to agreement on how to classify them? Especially with the lack of scientific support.

[Former Lord of Winterfell]

So, I'm reading the decision, and it turns out the Judge anticipated that some people would bring up FLOW's argument and threw this citation in there:

So, does FLOW disagree with Barnette? Or does it not apply here? Or what?

I think you are confusing me with someone else. I never argued that popular voting determined what rights are fundamental. I did say that I did not believe even heterosexual marriage was a constitutionally guaranteed right, so obviously, I believe the same thing about gay marriages. However, even if you were to buy into the concept of marriage being a constitutionally guaranteed right, I explained in the other thread why I don't think that would apply to gay marriages.

I also explained there why I don't think equal protection applies either.

[mormont]

So some sexual orientations are immutable and thus protected, while others are not. How does one even come to agreement on how to classify them? Especially with the lack of scientific support.

What 'lack of scientific support' would that be? There's plenty of scientific support for the immutable nature of homosexuality.

[Tempra]

Okay, I think we've established that this is the thread that is about the recent court decision, so I'm not going to uselessly start another one because you are, for whatever reason, seemingly afraid to continue posting here.

So, I'm confused about this. Bowers and Lawrence are not equal protection cases, and as far as I remember, there's no "will of the people" argument there either. So...I guess you were just suggesting that I just gain some basic familiarity with the case history? But not on equal protection, just on...the gays?

Tempra, that's not really how stare decisis works, you know? If I have a case about the illegal importing of tampons manufactured in a foreign country, I don't go to Westlaw and type in "tampons."

And thank you, I'm sure all taxpayers are happy that I at least understand basic legal tenants if I'm drafting decisions subject to immediate federal court review for a living.

I'm not using Bowers and Lawrence as examples of precedent for gay marriage. They are, however, perfect examples of where the Court looked at the prevailing landscape to determine the will of the people. In Bowers, Justice White noted that ALL 50 states had laws banning Sodomy. In Lawrence, Justice Kennedy noted that the the ban on sodomy went from 50 all the way down to 13, and of those 13, only 4 actually enforced the law. Justice Kennedy then talked about EU law (booo!) and how it is now at odds with Bowers. He came to the conclusion that that the long history in Western Civilization against sodomy has been eroded and, in my words, is no longer the will of the people.

FLoW said nothing about the will of the people. I said that I believe Kennedy will overturn the district court's ruling because, unlike in Lawrence, the will of the people is strongly against gay-marriage. If you've read the thread, you know I said that the will of the people is not definitive, and is only a factor. And the will of the people is CLEARLY considered by the court. When the court looks into whether a right is "deeply rooted in the nation's tradition and history," it is looking into the will of the people. This is not at all controversial in constitutional law circles.

ETA: For someone who yesterday claimed that I didn't have a working knowledge of constitutional law, you failed to show any mistake or error that I have made in my understanding of constitutional law.

[Tempra]

Huh? You've consistently stressed the "will of the people" argument, but I can't recall any single post prior to now where you acknowledged that it won't matter if it infringed upon the equal rights of minority groups.

Read posts 92, 98, 110, 120, 127. All of those posts state that the will of the people is ONE FACTOR that the Court will consider and it is not definitive.

Regardless, neither Loving nor Roe actually debunk my argument. The Court can give great deference to the people and still decide that the will of the people leads to unconstitutional results. I just doubt that it will happen in this case, and neither Roe nor Loving provides a close parallel to this case.

[Tempra]

Wow, guys, they have several pages devoted to the ruling in that thread. I'm going to import the part where Scott asks Tempra if prohibiting polygamy could not also be found to be unconstitutional under this ruling:

No, this is actually an easy Constitutional Law question on Equal Protection. So, we have the argument that making it illegal for gay people to get married violates equal protection. And so we want to say, gee, wouldn't this other thing violate equal protection. The very first thing you'd have to ask yourself is "what is the group being discriminated against." So what is it here? Polygamous people? Mormons? Let's take either. Is either group a protected class? Hmmm...no. Okay, next question - should they be? Let's find out. Is the characteristic that makes them members of this group immutable? Oh, guess not, huh?

I'm guessing that this "will of the people" thing comes from FLOW's argument that this ruling usurps legislative authority. I'm waiting for the post that's like, OMFG, I went and did an extensive survey and every Supreme Court SCOTUS ruling on the Equal Protection clause and it turns out every one of them violated the will of the people. How can that be??? He he.

I don't see this as an equal protection issue and neither should the supreme court because sexual orientation is not a protected characteristic. You know this, you have long supported adding sexual orientation to Title VII's list of protections. So on what basis are you claiming this is an equal protection issue? This is a RIGHTS case. The Court could frame this as a fundamental rights issue or not, depending on whether they wish to apply strict scrutiny or rational basis. ETA: How will they determine whether gay marriage is a fundamental right? They will look to whether it is deeply rooted in tradition and history. Justice Kennedy will not be able to pull a Justice White and harken back to the time of the Greeks and Romans (and ignore 100+ years of law) to determine that abortion gay-marriage is deeply rooted in history and tradition. As a matter of law, gay marriage fails under both equal protection and fundamental rights analysis. As a matter of law, gay marriage should win the day ONLY if there is no rational basis for the state to prohibit gay marriage. Judge Walker felt that prohibiting gay marriage failed to pass even rational basis review, so it is possible that gay marriage could still win.

ETA: To clarify, you can make the equal protection argument, but it is the weaker argument because the proper standard of review is rational basis.

[Former Lord of Winterfell]

I don't see this as an equal protection issue and neither should the supreme court because sexual orientation is not a protected characteristic.

I don't see it as an equal protection issue because the law doesn't single anyone out. The law doesn't treat all relationships the same, or all choices the same, but that's not what the 14th amendment requires. And I think that's the argument that will prevail on appeal regardless of the level of scrutiny that's applied.

A better example of a proper "equal protection" argument for homosexuals would be a state law that prohibited a homosexual from adopting children. A law like that singles out certain citizens for different treatment under the law, so there's at least the basis of an equal protection claim.

[Tempra]

I don't see it as an equal protection issue because the law doesn't single anyone out. The law doesn't treat all relationships the same, or all choices the same, but that's not what the 14th amendment requires. And I think that's the argument that will prevail on appeal regardless of the level of scrutiny that's applied.

A better example of a proper "equal protection" argument for homosexuals would be a state law that prohibited a homosexual from adopting children. A law like that singles out certain citizens for different treatment under the law, so there's at least the basis of an equal protection claim.

Yes, but the courts could easily ignore this distinction and quite easily say that homosexuals are being singled out. If the court does find that homosexuals are being singled out, then rational basis review is the proper standard of review because sexual orientation is not a protected characteristic.

[Former Lord of Winterfell]

Yes, but the courts could easily ignore this distinction and quite easily say that homosexuals are being singled out.

Well, they could, but I think that would be wrong. A homosexual is permitted to marry under the exact same laws as a heterosexual; that is, a homosexual may marry a person of a different gender, so the law is the same for everyone. Nobody is permitted to marry a person of the same gender, and that prohibition is applied to all citizens equally.

And while who you are attracted to may not be a "choice", whom you choose to marry is. Therefore, I see this equal protection argument as one revolving around conduct or actions, not status, and that's the basis on which I think the majority, or at least the plurality, will make its ruling.

If the court does find that homosexuals are being singled out, then rational basis review is the proper standard of review because sexual orientation is not a protected characteristic.

If the Court went that way, they could also decide that homosexuals are a protected class and provide a higher degree of scrutiny. And I'm not sure how you could disagree with that.

I hate the whole "protected class" concept to begin with because it's got no foundation in the text, and relies on nothing more than whatever reasoning a particular judge wants to conjure up to determine which "classes" are more persecuted than others. I dislike the whole concept of the "rational basis" test period. It shouldn't be up to the Courts to determine if a law makes sense. The people are entitled to enact stupid laws. The restriction is that the law can't violate the Constitution, and I don't think you need different levels of scrutiny to make that determination.

[Tempra]

Well, they could, but I think that would be wrong. A homosexual is permitted to marry under the exact same laws as a heterosexual; that is, a homosexual may marry a person of a different gender, so the law is the same for both. And while who you are attracted to may not be a "choice", who you choose to marry is. Therefore, I see this equal protection argument as one revolving around choices, not status, and that's the basis on which I think the majority, or at least the plurality, will make its ruling.

I think this is a legitimate way to side step the equal protection issue.

If the Court went that way, they could also decide that homosexuals are a protected class and provide a higher degree of scrutiny. And I'm not sure how you could disagree with that.

I hate the whole "protected class" concept to begin with because it's got no foundation in the text, and relies on nothing more than whatever reasoning a particular judge wants to conjure up to determine which "classes" are more persecuted than others. I dislike the whole concept of the "rational basis" test period. It shouldn't be up to the Courts to determine if a law makes sense. The people are entitled to enact stupid laws. The restriction is that the law can't violate the Constitution, and I don't think you need different levels of scrutiny to make that determination.

They could change the standard of review, but they would be overruling prior precedent to change the standard of review from rational basis to either mid-tier or strict scrutiny review. I agree that the people are entitled to enact stupid laws, but it is really hard for the state to lose under rational basis review. A lot of stupid laws have passed constitutional muster under rational basis review.

[Guest Raidne]

ETA: For someone who yesterday claimed that I didn't have a working knowledge of constitutional law, you failed to show any mistake or error that I have made in my understanding of constitutional law.

See my argument vis a vis tampons. I'm pretty sure a failure to apply the proper area of jurisprudence is a pretty large failing.

And then please make that case over again in an equal protection and/or due process/liberty context, and ideally both, since the Court laid out both arguments.

I don't see this as an equal protection issue and neither should the supreme court because sexual orientation is not a protected characteristic. You know this, you have long supported adding sexual orientation to Title VII's list of protections. So on what basis are you claiming this is an equal protection issue? This is a RIGHTS case. The Court could frame this as a fundamental rights issue or not, depending on whether they wish to apply strict scrutiny or rational basis. ETA: How will they determine whether gay marriage is a fundamental right? They will look to whether it is deeply rooted in tradition and history. Justice Kennedy will not be able to pull a Justice White and harken back to the time of the Greeks and Romans (and ignore 100+ years of law) to determine that abortion gay-marriage is deeply rooted in history and tradition. As a matter of law, gay marriage fails under both equal protection and fundamental rights analysis. As a matter of law, gay marriage should win the day ONLY if there is no rational basis for the state to prohibit gay marriage. Judge Walker felt that prohibiting gay marriage failed to pass even rational basis review, so it is possible that gay marriage could still win.

ETA: To clarify, you can make the equal protection argument, but it is the weaker argument because the proper standard of review is rational basis.

You may consider reading the decision as the Judge found that the prohibition against gay marriage failed equal protection standards using rational basis review.

Also, you appear to not be aware that Equal Protection is not the same as Title VII anti-discrimination law. For instance, children of illegal aliens do not enjoy protection under Title VII antidiscrimination law either, and religious persuasion doesn't enjoy protection under Equal Protection. That a pretty big error, there, too. Legally, you know. I'll start making this explicit.

[Tempra]

See my argument vis a vis tampons. I'm pretty sure a failure to apply the proper area of jurisprudence is a pretty large failing.

And then please make that case over again in an equal protection and/or due process/liberty context, and ideally both, since the Court laid out both arguments.

Did you just completely ignore post 69? I'm not "failing" or even trying to apply any area of jurisprudence to gay marriage. I used Bowers and Lawrence as examples of the court looking at the will of the people. This is not trying to apply precedent from a different area of law, it is looking at what the court relies on when making decisions. And when it comes to fundamental rights, the court absolutely looks at the will of the people.

You may consider reading the decision as the Judge found that the prohibition against gay marriage failed equal protection standards using rational basis review.

Do you even read what I write? I said: "Judge Walker felt that prohibiting gay marriage failed to pass even rational basis review, so it is possible that gay marriage could still win."

Also, you appear to not be aware that Equal Protection is not the same as Title VII anti-discrimination law. For instance, children of illegal aliens do not enjoy protection under Title VII antidiscrimination law either, and religious persuasion doesn't enjoy protection under Equal Protection. That a pretty big error, there, too. Legally, you know. I'll start making this explicit.

Fully aware. Homosexuals do not have protected status in any area of the law that i know of. I pointed this out because you made an equal protection argument for gay marriage, which is the weaker argument. The strongest argument in favor of gay marriage is framing the issue as a fundamental right, and not an equal protection issue.

[Former Lord of Winterfell]

Did you just completely ignore post 69? I'm not "failing" or even trying to apply any area of jurisprudence to gay marriage. I used Bowers and Lawrence as examples of the court looking at the will of the people. This is not trying to apply precedent from a different area of law, it is looking at what the court relies on when making decisions. And when it comes to fundamental rights, the court absolutely looks at the will of the people.

Do you even read what I write? I said: "Judge Walker felt that prohibiting gay marriage failed to pass even rational basis review, so it is possible that gay marriage could still win."

Fully aware. Homosexuals do not have protected status in any area of the law. I pointed this out because you made an equal protection argument for gay marriage, which is the weaker argument. The strongest argument in favor of gay marriage is framing the issue as a fundamental right, and not an equal protection issue.

On a somewhat unrelated note, I don't think this decision is going to help the cause of gay marriage. The decision will get a lot of attention as it winds its way through the courts until it is eventually (I suspect) overturned. That decision likely will have some influence on state supreme courts that have to consider the issue under their own constitutions. And in the meantime, I think this decision will suck some of the wind out of referendums or legislation to otherwise legalize gay marriage because the issue is now in the courts.

[mormont]

Well, they could, but I think that would be wrong. A homosexual is permitted to marry under the exact same laws as a heterosexual; that is, a homosexual may marry a person of a different gender, so the law is the same for everyone. Nobody is permitted to marry a person of the same gender, and that prohibition is applied to all citizens equally.

A rather tired argument, and a rather spurious view of 'equality'. I'm sure you would not, in any other context, argue in favour of enforced technical equality of outcome against genuine equal opportunity: and yet that's what this argument amounts to.

You might be right that some members of the Court will be tempted to deploy this argument, but that's not, as Tempra says, a 'legitimate way to sidestep the issue', nor is it 'originalism'. It's a rather intellectually dishonest way to deliberately duck the issue in order to reach a profoundly political conclusion.

[The_BlauerDragon]

I have to agree with Mormont here. That would be very lazy. I'd compare it to saying "There is nothing racist about forcing blacks to the back of the bus, because they are still being allowed to ride the same bus as everyone else." Though this seems to go a step further towards the absurd than that. Saying that you aren't discriminating against someone because they are still free to marry someone that they do not want to marry just reeks of idiocy. As I've said before, I don't support gay marriage, but even I can see that it should be perfectly legal. I really don't get any of the arguments. If you don't want to call it "marriage", fine. Call it a spousal union, or a spousal contract. In fact, why not make the term "Spousal Contract" or "Spousal Union" standard for all legal purposes for everyone... and leave the term "Marriage" up to the (non legally binding) churches? Likewise, I don't see why polygamy is not allowed. I could see the argument if one or more of the spouses did not know about the others, but if everyone is in it together and they are happy, then I say "More power to 'em!"

[Andriy Czarchenko]

Is there a possibility that this isn´t going any further as California isn´t gonna appeal?

[Former Lord of Winterfell]

A rather tired argument, and a rather spurious view of 'equality'.

The 14th amendment doesn't mandate "equality".

I'm sure you would not, in any other context, argue in favour of enforced technical equality of outcome against genuine equal opportunity: and yet that's what this argument amounts to.

You're making a policy argument -- I'm talking about the law. And I don't see anything in the 14th amendment that mandates equal opportunity or equal outcomes, or that the law have the same impact on everyone or every group. People always come before the law with different backgrounds, personal situations, and desires, and the law isn't required to equalize those things. It is simply required to treat the person to whom it is applied the same.

You might be right that some members of the Court will be tempted to deploy this argument, but that's not, as Tempra says, a 'legitimate way to sidestep the issue', nor is it 'originalism'. It's a rather intellectually dishonest way to deliberately duck the issue in order to reach a profoundly political conclusion.

A difficult argument to refute given that you just stated conclusions rather than actually make an argument.

I don't think it's sidestepping the issue at all. I think it is addressing the equal protection issue head-on at the most fundamental level. Does the law single people out, or not? This law doesn't -- it singles out one specific type of conduct it supports, and doesn't provide that same support for other types of conduct. The impact on gays is obviously greater, but I don't think that's what the 14th Amendment is about. If you think that's such a strange view, then why did O'Connors concurrence in Lawrence, which found for Lawrence on equal protection grounds rather than fundamental rights grounds, get only one vote?

And if you want to talk originalism, are you seriously arguing that the original intent of the 14th amendment is consistent with mandating gay marriages? The easiest "out" for me if I argued pure originalism would be to point out how obviously that is not the case.

[Former Lord of Winterfell]

I have to agree with Mormont here. That would be very lazy. I'd compare it to saying "There is nothing racist about forcing blacks to the back of the bus, because they are still being allowed to ride the same bus as everyone else."

Really? Back of the bus laws singled out blacks on their face. This law doesn't do that.

Saying that you aren't discriminating against someone because they are still free to marry someone that they do not want to marry just reeks of idiocy.

The law clearly discriminates between relationships it will recognize, and relationships it will not recognize. But that's not unconstitutional.

As I've said before, I don't support gay marriage, but even I can see that it should be perfectly legal.

Whether it should be legal is an entirely different question from whether it is required by the Constitution.