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Thread: Awaiting the Supreme Court's gay marriage decisions [W:641]

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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by Verax View Post
    Why not just say you don't want gays to marry.....
    Because I want gays to marry. We're just arguing a finer legal point here, not the broader topic. This one particular argument fails. That doesn't mean I oppose SSM, it just means that one particular argument fails. Gay members of this forum agree, the equality argument is a losing argument.

    The winning argument is the family and stable relationships argument.

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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by Aderleth View Post
    What? The quote you cited makes the same point I just made:

    "Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose."

    They're saying that the argument you're trying to make doesn't remove the law from their purview. They're explicitly rejecting the argument you're making.
    The quote you cited makes the same point I just made:

    "Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose."

    Equal application, by itself, doesn't work. SCOTUS agreed that equal application was occurring, which was my only point to you, but that equal application alone isn't enough. The state has to also have compelling reasons, which Virginia did not have, nor do any such reasons exist against SSM. Equal application exists today that allone it's not enough to prevent SSM.

    Rather you're supporting or opposing SSM, you have to have a lot more than "equality" if you want to win. You need a buffet of very good reasons why your way should be law. Equality is not not enough. Equality will not win SSM. You have to show how SSM is good for children, for stable relationships, and for society in general. This is easy to do.
    Last edited by Jerry; 06-17-13 at 12:54 AM.

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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Jerry's right. Using equality as a support for SSM ALONE, fails. I've been debating this issue for years and I realized early on that the equality argument cannot carry the day; there are too many ways to effectively counter-argue most of the points. Demonstrating how SSM benefits children, relationships, people, and society is the winning argument. I've been debating this for YEARS, and I never go the equality route by itself, and usually, equality is a very minor part of my argument. I'm not saying that morally, equality is an issue, but legally, it really doesn't apply.
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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by Jerry View Post
    The quote you cited makes the same point I just made:


    "Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose."

    Apparently you literally aren't understanding what you're reading. They're saying they reject the argument you are currently making. They're talking about what level of 14th amendment scrutiny that case deserves. 14th amendment cases are generally divided into strict scrutiny, intermediate scrutiny, and rational basis analysis (if you don't know what those terms mean, ask me, or look them up on google). What the court is saying, in the quoted paragraph, is that they reject the notion put forth by the defendant in Loving (i.e. the state of Virginia) that this is a rational basis case. They're saying that despite that argument (which they've dismissed as a bad argument) the case deserves strict scrutiny (the most rigorous SCOTUS analysis). So the long and the short of it is that a) they rejected the argument you're making, and b) consequently this case deserves strict scrutiny, rather than rational basis analysis.

    If you want context for the quote, here it is:

    "[T]he state argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race.
    We reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discrimination."

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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by CaptainCourtesy View Post
    Jerry's right. Using equality as a support for SSM ALONE, fails. I've been debating this issue for years and I realized early on that the equality argument cannot carry the day; there are too many ways to effectively counter-argue most of the points. Demonstrating how SSM benefits children, relationships, people, and society is the winning argument. I've been debating this for YEARS, and I never go the equality route by itself, and usually, equality is a very minor part of my argument. I'm not saying that morally, equality is an issue, but legally, it really doesn't apply.

    He's not, and no there aren't, if you're talking about the relevant legal issues (if you're not talking about the law, then you're probably right). Jerry's point about Loving is wildly inaccurate, and the equality argument (and here I'm assuming you mean the 14th amendment equal protection argument) has been vitally important in a couple of seminal cases on this issue already. Iowa is the best example.

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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by wbcoleman View Post
    OK, but my question is WHEN did the previously well-understood definition of marriage transmorgify itself into unconstitutional discrimination.
    That's actually an interesting question. When did laws banning interracial marriage becoming unconstitutional? When did the previously well-understood definition of marriage that a man assumed control and legal power over a woman become unconstitutional discrimination? Was it only in 1967 and 1971, respectively? Was it with the passage of the 14th amendment? Was it always unconstitutional? The constitution is a living document. It is designed to be able to change. The intention of true equality under the law was part of the Declaration of Independence, and the protection against infringements of liberty without due process is enshrined in the 5th amendment. What due process is there in arbitrarily denying rights to a certain group, without any benefit gained from that discrimination? It's an interesting thought about how the constitution evolves not just from the amendment process, but from court decisions (not just the supreme court, but lower courts as well), interactions between the federal and state governments, and public consensus. The impetus for a changing position on SSM comes from all four of those sources.

    Quote Originally Posted by AlabamaPaul View Post
    Everyone plays by the same rules...
    So? Everyone played by the same rules under interracial marriage bans. Clearly "playing by the same rules" is not really the standard we need to achieve.

    Quote Originally Posted by wbcoleman View Post
    I see no way for SCOTUS to honestly distinguish between gay marriage and polygamy.
    That might actually be true. But there's also no way to honestly distinguish between gay marriage and interracial marriage.

    Quote Originally Posted by tech30528 View Post
    Then call your relationship a marriage. Just don't expect me to recognize it as such. Because THAT is not your right.
    No one cares what you recognize. You're not that important. What is at issue is what the law recognizes.

    Quote Originally Posted by AlabamaPaul View Post
    I would have married her whether or not there was a benefit. This is what most don't understand. Why do you think the government has any business bestowing benefits for acting in any manner?
    That is an entirely different argument. But it has been fascinating that bigots have suddenly decided that marriage doesn't need to be a legal status now that they might have to share it with gays.

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    Quote Originally Posted by Redress View Post
    So to recap: most likely DOMA is gone, but this is far from a sure thing. Prop 8 has so many possible outcomes, who the **** knows how that will turn out.
    I can't think of any way to distinguish the reasoning in Loving from applying to SSM, as well. I can't see how Prop 8 will survive. The only way that this could not be settled is if they just deny standing and kick it down the road. In which case, Walker's decision stands, as you said. But there's no cause for legal limbo. No more appeals will be available. The only real result of not simply striking down Prop 8 is to avoid making a ruling on the level of scrutiny that SSM will enjoy. Walker's ruling doesn't afford it strict scrutiny, but rather says that an SSM ban fails to meet rational basis. Which means that enforcing SSM protections in other states will be more difficult. California will be pro SSM no matter what they rule, unless they declare that SSM has no constitutional protections at all and uphold Prop 8. This is astoundingly unlikely, though. Marriage in general and SS conduct were both previously protected by the supreme court. The real question is how much of a roadblock will exist towards legal protections in the rest of the country. Though full faith and credit will mean that a SSM performed in any state is binding in every state. Generally, unless the court goes full bigot, SSM is here to stay.

    Quote Originally Posted by Kanstantine View Post
    Since the Declaration of Independence is part of our Organic Law, and recognizes the right of all men to life, liberty, and the pursuit of happiness, the Supreme Court must rule in support of same sex marriage.
    It's not. Not at all. But the court does have to rule that way. Just not because of the Declaration of Independence. Which has no legal authority.
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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by Paschendale View Post

    I can't think of any way to distinguish the reasoning in Loving from applying to SSM, as well. I can't see how Prop 8 will survive. The only way that this could not be settled is if they just deny standing and kick it down the road. In which case, Walker's decision stands, as you said. But there's no cause for legal limbo. No more appeals will be available. The only real result of not simply striking down Prop 8 is to avoid making a ruling on the level of scrutiny that SSM will enjoy. Walker's ruling doesn't afford it strict scrutiny, but rather says that an SSM ban fails to meet rational basis. Which means that enforcing SSM protections in other states will be more difficult. California will be pro SSM no matter what they rule, unless they declare that SSM has no constitutional protections at all and uphold Prop 8. This is astoundingly unlikely, though. Marriage in general and SS conduct were both previously protected by the supreme court. The real question is how much of a roadblock will exist towards legal protections in the rest of the country. Though full faith and credit will mean that a SSM performed in any state is binding in every state. Generally, unless the court goes full bigot, SSM is here to stay.
    Race is looked at under strict scrutiny. It could very easily be ruled that strict scrutiny is not applicable for SSM, that intermediate or rational basis is correct. Under both intermediate and rational basis, it is possible the court could rule for Prop 8. Unlikely, but possible.

    If the court rules that the petitoners lack standing, that would dump it back to Judge Walker's decision, and the stay on that decision would be in place while petitioners with standing where looked for.

    If the court DIGs it(rules that it should not have accepted to hear the case), then it goes back to the appeal court, and again the stay would be in effect while more matters are ironed out(I do not entirely understand exactly the details here, the legalese went over my head).

    There are a number of routes with less than ideal outcomes for those of us who support SSM. Scalia in the oral arguments for the Windsor case questioned the research into the effects of SSM, and while unlikely, his arguments along those lines in Perry could sway Kennedy and a conservative coalition gives exactly the ruling we do not want. More than likely however the court will punt the case with either a lack of standing or a DIG. Neither is ideal for SSM supporters.

    And in the interest of fairness and honesty, various places are reporting as you claim about lack of standing. I am basing how it would turn out on articles from SCOTUSblog, which I think is the most reliable source. The reality is that there is some question how it would play out.

    Even in Windsor, the court could rule that the house does not have standing to defend the law, which would result in Windsor getting her money, but DOMA still being the law. There are lots of possible negative outcomes. Remember, based on oral arguments, almost every expert assumed that ACA would be overturned by the supreme court, when in fact it was upheld, and Roberts voting in favor of it. Predicting SCOTUS is not a safe thing to do.
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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by Aderleth View Post
    He's not, and no there aren't, if you're talking about the relevant legal issues (if you're not talking about the law, then you're probably right).
    Yeah he is and yeah there are and I'm talking about both.

    Jerry's point about Loving is wildly inaccurate, and the equality argument (and here I'm assuming you mean the 14th amendment equal protection argument) has been vitally important in a couple of seminal cases on this issue already. Iowa is the best example.
    I'm not saying that the EPC is not important to the case. It is. But by itself I doubt it would win. There are too many unequal comparisons when using Loving and though it's applicable, one must prove "equality" in ways other than just legal/rights based ways. That's why child rearing, health, and societal benefits are necessary in order to win on this issue.
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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by CaptainCourtesy View Post
    Jerry's right. Using equality as a support for SSM ALONE, fails. I've been debating this issue for years and I realized early on that the equality argument cannot carry the day; there are too many ways to effectively counter-argue most of the points. Demonstrating how SSM benefits children, relationships, people, and society is the winning argument. I've been debating this for YEARS, and I never go the equality route by itself, and usually, equality is a very minor part of my argument. I'm not saying that morally, equality is an issue, but legally, it really doesn't apply.
    While some may disagree with me, I always thought the route SSM should go is the gender discrimination route. I think it would have had an easier time to pass with that one than EPC personally.

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    re: Awaiting the Supreme Court's gay marriage decisions [W:641]

    Quote Originally Posted by CaptainCourtesy View Post
    Yeah he is and yeah there are and I'm talking about both.



    I'm not saying that the EPC is not important to the case. It is. But by itself I doubt it would win. There are too many unequal comparisons when using Loving and though it's applicable, one must prove "equality" in ways other than just legal/rights based ways. That's why child rearing, health, and societal benefits are necessary in order to win on this issue.
    I don't need a "winning argument," though. The government is making a gender-based classification regarding a contract between private inviduals. They must demonstrate an important state interest in doing so, and that would be.......
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