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Thread: Court: CA gay-marriage ban is unconstitutional

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by CriticalThought View Post
    I just finished reading Smith's dissenting opinion. This section pretty much sums it up...

    In other words he argues the people of California made the assumptions that allowing same sex marriage would somehow result in fewer opposite sex couples marrying and having children and even if these assumptions are clearly and factually wrong, the fact that they can be conceived is enough to uphold Prop 8.

    Of course there is no telling whether SCOTUS will agree with Smith that "rational basis review" is the appropriate level of scrutiny or that a state interest needs to only be "conceivable" or "arguable" even if it is untrue. It doesn't make for a very strong case saying, "Yo, I recognize these people made some stupid assumptions to pass this law, but the fact that they could come up with assumptions is all that is needed for it stay on the books even if it results in inequality."
    Marriage has been a fundmental right at least since Loving v Virginia. Laws involving fundamental rights are reviewed on the basis of strict scrutiny. Writing restrictive laws that apply only to gays has been out since Lawrence v Texas. Judge Smith's words are the sound of the last bubbles emerging from a sunken ship.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Hicup View Post
    Well, I am somewhat surprised that 2 of the judges agreed with Walker, since he was clearly wrong on the rational basis test. Smith got it right on that question at least.

    To the SCOTUS we go.


    Tim-
    Given that you never went to law school and you probably learned about the tiers of scrutiny from right wing bloggers, I'm less than inclined to agree.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Cardinal Fang View Post
    Marriage has been a fundmental right at least since Loving v Virginia. Laws involving fundamental rights are reviewed on the basis of strict scrutiny. Writing restrictive laws that apply only to gays has been out since Lawrence v Texas. Judge Smith's words are the sound of the last bubbles emerging from a sunken ship.
    Unless of course you play the Hicup game of equivocation. Then you believe that marriage is only a fundamental right when it deals with race, not with sex.
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    Re: Court: CA gay-marriage ban is unconstitutional

    For the SCOTUS to review the case on appeal, they will need to agree that the party making the appeal has the legal right to do so, as that was an issue on the fed court appeal, and I wonder if the SCOTUS isn't bound by the lower fed court's acquiescence on that matter. So it is possible that the SCOTUS may decline to accept the case.

    Regardless, it appears that the definition of marriage is being decided by the courts. Interesting ...

    Historically, society decides such things, with "marriage" long defined as "between a man and a woman as husband and wife", which is, essentially, what the CA popular vote upheld, the societal vote in CA.

    For there to be discrimination in the matter, the participants would still have to confrom to the definition, like if a Black man and White woman wanted to marry and were being told they couldn't, that would be discrimination.

    But as societally pre-defined, two men or two women or three-plus of anyone or one person trying to marry him/her self .. prohibition against that would not qualify as discrimination by definition.

    The question here was "what is the definition of marriage?" and the CA society of voters upheld the traditional definition of "between a man and a woman as husband and wife", though not by a wide margin.

    The Governator and AG Brown, who initially said when campaigning that he'd support whatever the people decided, flip-flopped when the vote didn't go their way, and, essentially, refused to do his job of appealing the law when a federal judge initially struck it down as unconstitutional. So the sponsors of Prop 8 took it upon themselves to appeal to the 9th Circuit, an appeal they almost didn't get to make because according to protocol the AG's office was the right appealer in the matter.

    The issue set forth a foundation, that though gays couldn't marry, they were still able to form civil unions.

    The social argument was akin to telling pet owners that, okay, you want to enter your cat (gays) in a pet show for cats and call it a "dog show" (a marriage), or, also appropriate, you want to enter your cat in a dog show where it's supposed to be only about dogs. The dog show people were simply saying that cats don't belong in a dog show, that cat owners can have their own show if they want, with just cats, but they should call it a "cat show" (civil union), and under no circumstances could they call it a "dog show" as that steals the meaning from dog shows, devaluing them.

    The argument was reasonable .. but only in so far as a basic majority is considered sufficient by society for deciding such matters.

    Traditionally it wasn't an issue, as the overwelming vast majority supported the definition of marriage as being "between a man and a woman as husband and wife".

    But today, as the CA vote illustrated, the societal opinion on the matter may be within a mere four to 10 percent on the matter, depending on location.

    To me, the question isn't about discrimination, it's about how does one decide in such social matters.

    Is the CA vote sufficient?

    Is a slim majority enough?

    Is a 66% majority or more required?

    These, to me are the issues here, as the matter is not discrimination if a sufficient method has occured of socially deciding in America that marriage is societally defined "between a man and a woman as husband and wife".

    What I hope doesn't end up being the correct conclusion here is that a handful of judges decide the definition.

    Better is that the judges decide and declare the appropriate method for allowing society to so define marriage.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by CriticalThought View Post
    Given that you never went to law school and you probably learned about the tiers of scrutiny from right wing bloggers, I'm less than inclined to agree.
    Dude, why must I have needed to go to law school? Have you? Nope.. At least i have represented myself in many legal battles (mostly family court) and won, and I also took on the Attorney General of Canada, and the Queen of England and beat them as well, so i know a thing or two about the law there sunshine. I understand all the standards for review in every legal action I have ever been involved in. For instance I am currently representing myself (tomorrow in fact) facing contempt charges from my evil ex wife concerning civil contempt. The attorney for my wife is a moron but she keeps using him, even though I have soundly thrashed him on more than a few occassions.. In this latest escapade he made a major error in his contempt pleading and on that alone I will win..

    In any regard sexual orientation is what Walker was trying to get around with his rationale on gender based discrimination. His decision and ruling was on gender NOT sexual orientation, and he used a rational basis test as the standard of review, which by the way was the correct review. problem is that in order for his ruling to prevail he needed to show that gender was in fact being discriminated against, and it is not, and was not. The plaintiffs in prop 8 needed to show that gender was the basis of discrimination, and in order for that to survive 14th scruitiny they needed to show that both men and women were being discriminated against. However, they failed to do that, men and women are equally restricted from marrying someone of the same sex. Now if men could marry men, and also women, and women could only marry men, then THIS would be cause for strict scrutiny and a proper 14th challenge. Another way of looking at it is to say that both men and women are being discriminted against, but the law doesn't work that way.


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    Re: Court: CA gay-marriage ban is unconstitutional

    If SCOTUS upholds this ruling does that mean that all state bans on SSM will be overturned?
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by danarhea View Post
    This will most likely head to the Supreme Court now.

    And, somewhere in the state of California, there is a man saying "Fabulous".

    Article is here.

    EDIT: Oops, wrong forum. Mods - Please move this to breaking news. DanaRhea does it again. Duh!!
    Oh, boy... I can already hear fox news talking head revving up the hate.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Rhapsody1447 View Post
    If SCOTUS upholds this ruling does that mean that all state bans on SSM will be overturned?
    State constitutions / laws that prohibit same-sex couples from getting a marriage license.

    The traditional definition of marriage will not change.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by CriticalThought View Post
    I just finished reading Smith's dissenting opinion. This section pretty much sums it up...



    In other words he argues the people of California made the assumptions that allowing same sex marriage would somehow result in fewer opposite sex couples marrying and having children and even if these assumptions are clearly and factually wrong, the fact that they can be conceived is enough to uphold Prop 8.

    Of course there is no telling whether SCOTUS will agree with Smith that "rational basis review" is the appropriate level of scrutiny or that a state interest needs to only be "conceivable" or "arguable" even if it is untrue.

    It doesn't make for a very strong case saying, "Yo, I recognize these people made some stupid assumptions to pass this law, but the fact that they could come up with assumptions is all that is needed for it stay on the books even if it results in inequality."
    Plain and simply...Wrong. Equal protection analysis requires that there be a RATIONAL basis....not just any basis.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Rhapsody1447 View Post
    If SCOTUS upholds this ruling does that mean that all state bans on SSM will be overturned?
    Most likely.
    <font size=5><b>Its been several weeks since the Vegas shooting.  Its it still "Too Early" or can we start having the conversation about finally doing something about these mass shootings???​</b></font>

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