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Thread: Court: CA gay-marriage ban is unconstitutional

  1. #31
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Redress View Post
    This will fail on rational basis alone, even though strict scrutiny is very possible instead. Just because people can believe things with zero evidence to back it up is not a rational basis and I cannot think of any court cases.
    If I understand you correctly, you are saying that the state has a burden to prove the value of traditional marriage. And if Smith is correct, it does not.

    ln equal protection analysis, rational basis review "is not a license for courts to judge the Wisdom, fairness, or logic oflegislative choices." Heller, 509 U.S. at 319 (internal quotation marks omitted). . . Additionally, the government "has no obligation to provide evidence to sustain the rationality of a statutory classification." Id. The measure at issue "is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Id. (internal quotation marks omitted). "[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis Which might support it Id. (internal ll

    Quote Originally Posted by Redress View Post
    The arguments Smith offered are not rational and in fact have no evidence to back them, hence the comments that CT quoted.
    Smith takes exception to the majority's reliance on Romer, and his arguments are quite rational. He delineates the differences between Colorado's Amendment 2 (Romer) and Prop 8 very clearly, and concludes

    The above differences between Amendment 2 and Proposition 8 indicate that Romer does not directly control here. ln Romer, the Supreme Court found that animus alone was the purpose behind Amendment 2. Here, the majority backs into its inference of animus, first determining that all other bases for Proposition 8 are constitutionally invalid. Assuming animus or moral disapproval were one of the purposes of Proposition 8, the measure would still survive rational basis review if there were also a valid rational basis behind Proposition 8. Only if there were no other basis would Proposition 8 fail rational basis review. Thus, our task is to determine whether Proposition 8 rationally relates to any independent legitimate governmental interest.
    Regarding CA law respecting child rearing and the optimal parenting rationale

    The parties argue about whether this analysis subjects Proposition 8 to heightened scrutiny rather than rational basis review. ln my view, while Plaintiffs may give a correct accounting of California law, it does not necessarily follow that the optimal parenting rationale is an illegitimate governmental interest, because it contradicts existing laws on parenting and the family. For example, a posited reason offered by one lawmaking body after being rejected by another lawmaking body can "provide[] a conceivable basis" for a measure. FCC v. Beach Comm 'ns, Inc., 508 U.S. 307, 3l8 (1993). ln Beach Communications, the Supreme Court accepted a posited reason for a federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory scheme.5 Ia'. Thus, even if California's legislature previously rejected the optimal parenting rationale in its parenting laws (and Proposition 8 is inconsistent with its statutory scheme), that does not prevent the people of California from adopting Proposition 8 under that rationale.
    Regarding the appropriate level of scrutiny

    ln Lawrence v. Texas, 539 U.S. 558, Justice O'Connor relied on the Fourteenth Amendment's Equal Protection Clause to invalidate a state law criminalizing homosexual sodomy. ln her concurring opinion, she stated: That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
    Then this in closing

    Applying rational basis review in these circumstances also requires such restraint. As the Eighth Circuit said, in Citizens for Equal Protection, 455 F.3d at 870: "ln the nearly one hundred and fifty years since the FourteenthAmendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. lndeed, in Baker v. Nelson when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." There is good reason for this restraint
    Last edited by LuckyDan; 02-07-12 at 06:36 PM.

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    Re: Court: CA gay-marriage ban is unconstitutional

    The only question is whether or not there would be enough states to pass a Constitutional Amendment after the Supreme Court rules (either way).

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Boo Radley View Post
    Either way, good for the courts. I would love to see this reach the SC.
    So would I, since it's unconstitutional as hell. Unfortunately, the current SCOTUS leans right and I'm very much afraid they will not use the constitution as their basis for determination.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by 1Perry View Post
    The only question is whether or not there would be enough states to pass a Constitutional Amendment after the Supreme Court rules (either way).
    A Constitutional Amendment that states constitutional protections don't apply to homosexuals?

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by DiAnna View Post
    So would I, since it's unconstitutional as hell. Unfortunately, the current SCOTUS leans right and I'm very much afraid they will not use the constitution as their basis for determination.
    Specifically, what is it, constitutionally, that makes Prop 8 unconstitutional? I'm not saying that it isn't unconstitutional, I just want to know what the specific part of the Constitution is that makes it unconstitutional.

    I would think that those who brought Prop 8 to the voters would have to have their heads examined for bringing an obviously unconstitutional initiative before the people.

    So I'm wondering if it ain't so obvious.
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    Re: Court: CA gay-marriage ban is unconstitutional

    States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.
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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by Ontologuy View Post

    It is inappropriate to create such a dichotomy here, especially in a country with separation of church and state.
    That statement is a contradiction. Church and State are mutually exclusive (ideally). Hence, a dichotomy.

    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.
    I tried to articulate a response, but Walker summed it up better. I agree, however...

    An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the votersí determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

    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.
    Yes and No.

    Church and religion are not enough. Tradition is not enough of a legal basis for discrimination--by that I mean keeping same-sex unions separate but almost equal to opposite-sex marriages.

    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?
    Walker sited two supreme court cases - "the right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", citing Loving v. Virginia and Griswold v. Connecticut. He goes on to say that "[r]ace and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage".

    Re: who decides and National Vote - no majority can trample the rights of the minority. The CA ballot measure was a legal process. But the outcome has to be tested against both the state and U.S. constitution. Keep in mind that 18,000 California same-sex couples remained legally married. What becomes of this status? And how do we justify denying a marriage license to the next same-sex couple. To define them is less-than would be wrong.

    Also, a state's interest and therefore its laws have to be based on logic and reason - not just emotion or tradition: Appeal to tradition is a fallacy in which a thesis is deemed correct on the basis that it correlates with some past or present tradition. e.g. "this is right because we've always done it this way."

    Again, I'll point out to the traditionalist, that marriage in the bible refers to an underage girl being traded by her father for land or livestock. The definition of marriage has been changing for a long time. Prior to 1967, states didn't allow blacks and whites to wed.

    Loving v. Virginia

    Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. - SCOTUS, and they get the final word.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by digsbe View Post
    States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.
    Well, it used to be a white man and white woman or a black man and black women - prior to 1967.

    We infringed on that definition.

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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by digsbe View Post
    States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.
    I know. As noted above it's terrible how we've infringed in the past. Who are people to think they know what marriage means to them. They need a major to tell them as they cna't be trusted to decide for themselves.


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    Re: Court: CA gay-marriage ban is unconstitutional

    Quote Originally Posted by digsbe View Post
    States have the right to ban gay marriage. This should be preserved and not infringed upon especially after it was presented to voters who chose to define marriage between a man and woman.
    So....by that reasoning......states should have the right to ban inter-racial marriage as well....if the voters "Chose" to define marriage that way.....correct?


    What if a state's voters decided that marriage should be defined as only "a white man and a white woman"....would that be ok?

    What if a state's voters decided that marriage should be defined as only between "Christians"......would that be ok.....afterall....the voters voted for it.
    Last edited by disneydude; 02-07-12 at 06:53 PM.
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