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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 Ontologuy View Post
    Regardless, it appears that the definition of marriage is being decided by the courts. Interesting ...
    Re: Definition. Churches can still define traditional marriage as they see fit.

    City hall just can't deny a marriage license to a same sex couple.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Hicup View Post
    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.


    Tim-
    WOW....either you have a serious reading comprehension problem or you are just flat out mischaracterizing the lower court holding....either way, you couldn't be more wrong.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by CriticalThought View Post
    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.
    Even evading strict scrutiny in this manner, you cannot escape intermediate scrutiny. Same-sex marriage bans are discrimination on the basis of gender, clearly, and therefore meet the standard for intermediate scrutiny.

    I've yet to see someone successfully demonstrate an "important state interest" served by such a ban. Yes, they talk about all that "destroying families" business and "someone PLEASE think of the CHILDREN," but actual study universally proves them to be wrong.

    Quote Originally Posted by hazlnut View Post
    State constitutions / laws that prohibit same-sex couples from getting a marriage license.

    The traditional definition of marriage will not change.
    Which traditional definition? The one where women are literal property?
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by hazlnut View Post
    Re: Definition. Churches can still define traditional marriage as they see fit.

    City hall just can't deny a marriage license to a same sex couple.
    The matter of the definition of marriage has long resided outside the church and instead within society at large, where many simply did not attend/recognize church in the matter.

    It is inappropriate to create such a dichotomy here, especially in a country with separation of church and state.

    City hall must conform in a democracy to the will of the people in societal matters. There was no litmus test in CA that said you couldn't vote for the traditional definition unless you were a member of a church.

    Church and religion are to be excluded from the matter decided in a state vote of all citizens legally allowed to vote in CA, which is indeed what happened, as thus any reference to church/religion in the matter is inappropriate.

    The question remains what is the correct method of deciding the definition of marriage for Americans (Californians, in this specific issue)? Is it a democratic popular vote? Is a simple majority sufficient? Does it require two thirds majority to re-establish? Is a national vote required? Do judges decide these matters? What?
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by CriticalThought View Post
    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.
    Thanks for reading the opinion and posting a very interesting point.

    I would ask, then what is the state's interest in protecting something that is factually wrong or from some wrong that doesn't really exist? (e.g. banning the killing of unicorns)

    Appeal to belief and Appeal to Popularity? -- if law is based on logic and reason, don't we need an actual threat to protect against--harm to property or person?

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Hicup View Post
    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.


    Tim-
    You have no understanding of the difference between "equal application" and "equal protection". I could make a law that argues that people are only allowed to marry their own race. That law would be considered "equal application" since only whites could marry whites and blacks could marry blacks. However, that law would not be equal protection since the government is arbitrarily using race to apply restrictions to civil rights. Same sex marriage bans are equal application but are not equal protection since the government is arbitrarily using sex to apply restrictions to civil rights.

    Nice try though. Pretending that "equal application of the law" is the same as "equal protection of the law" is the same strategy that was used by segregationists for decades. You have certainly fallen quite a bit if that is the playbook you have decided to borrow from in this debate.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by disneydude View Post
    WOW....either you have a serious reading comprehension problem or you are just flat out mischaracterizing the lower court holding....either way, you couldn't be more wrong.
    Blah blah..


    Tim-
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Deuce View Post
    Even evading strict scrutiny in this manner, you cannot escape intermediate scrutiny. Same-sex marriage bans are discrimination on the basis of gender, clearly, and therefore meet the standard for intermediate scrutiny.

    I've yet to see someone successfully demonstrate an "important state interest" served by such a ban. Yes, they talk about all that "destroying families" business and "someone PLEASE think of the CHILDREN," but actual study universally proves them to be wrong.



    Which traditional definition? The one where women are literal property?
    No, the actual studies are categorically flawed. Nowhere has a study been done that pits SS couples against married in tact well established heteroseuxal marriages. Despite the methodologies, the sample size for Male SS parents is strikingly low. Most SS couples raising children in these "studies" are well off lesbians, not prototypical of society in general. We already know what kids are like without a Father, and these studies you cite are fundamentally lacking that control.. Period!

    We've been down this street a thousand times already..

    Tim-
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by CriticalThought View Post
    You have no understanding of the difference between "equal application" and "equal protection". I could make a law that argues that people are only allowed to marry their own race. That law would be considered "equal application" since only whites could marry whites and blacks could marry blacks. However, that law would not be equal protection since the government is arbitrarily using race to apply restrictions to civil rights. Same sex marriage bans are equal application but are not equal protection since the government is arbitrarily using sex to apply restrictions to civil rights.

    Nice try though. Pretending that "equal application of the law" is the same as "equal protection of the law" is the same strategy that was used by segregationists for decades. You have certainly fallen quite a bit if that is the playbook you have decided to borrow from in this debate.
    No, not at all as I have stated earlier when you brought it up. race, gender are immutable characteristics, sexual orientation is most definitely not immutable. It's all in the brief there CT.

    Tim-
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by CriticalThought View Post
    You have no understanding of the difference between "equal application" and "equal protection". I could make a law that argues that people are only allowed to marry their own race. That law would be considered "equal application" since only whites could marry whites and blacks could marry blacks. However, that law would not be equal protection since the government is arbitrarily using race to apply restrictions to civil rights. Same sex marriage bans are equal application but are not equal protection since the government is arbitrarily using sex to apply restrictions to civil rights.

    Nice try though. Pretending that "equal application of the law" is the same as "equal protection of the law" is the same strategy that was used by segregationists for decades. You have certainly fallen quite a bit if that is the playbook you have decided to borrow from in this debate.
    Your perspective holds true only so far as it conforms to definition.

    If marriage was long and traditionally established to be defined as "between people of the same race only" then it would not be discrimination to prevent a White and Black person from marrying by appeal to definition.

    This entire issue broaches the question of how do we decide such definitions in society today. We can't simply arbitrarily imagine a definition is other than what it is -- such an application of fantasy does not respect reality, and reality really must be served.

    The larger issue here is "how do we decided?"

    The body politic is affected by social matters and when contentions arise we must accurately appeal to how and what things truly are in order to establish a point of calibration, and from there we employ an agreed upon method to decide if it is time for change.

    The voters in CA were of the opinion that the popular vote was the correct method to decide societal matters.

    Now they're finding out it wasn't.

    We really all should be asking the question: "what is the correct method for deciding these matters?"
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