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Thread: Gay marriage wins in Indiana and Utah

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    Re: Gay marriage wins in Indiana and Utah

    Quote Originally Posted by johndylan1 View Post
    nope it's just not there. 9th deals with enumerated rights, 14 equal protection.
    Equal protection of the laws. It doesn't specifically enumerate marriage because it doesn't have to. It applies to all laws. The test, for a distinction of gender, is that the measure in question must be "substantially related" to furthering an "important state interest." If you can't provide that interest, the law will be overturned. That's why judges are knocking down same-sex marriage bans left and right. They don't hold up.

    edit: In some cases the courts are only applying rational basis scrutiny, meaning the measure must only be rationally related to a legitimate state interest. The bans don't pass that test either. Barring gays from marrying doesn't make more babies, nor does it prevent any harm to heterosexual marriage.
    Last edited by Deuce; 07-05-14 at 10:46 PM.
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    Re: Gay marriage wins in Indiana and Utah

    Quote Originally Posted by johndylan1 View Post
    nope it's just not there. 9th deals with enumerated rights, 14 equal protection.
    9th specifically deals with unenumerated rights, that's its entire point is to say that just because something isn't mentioned as a right in the Constitution, does not mean that it isn't actually a right held by the people. And this is an equal protection issue because the laws dealing with the legal marriage contract are treating people unequally according to their sex. A man cannot marry a man. Why? Because of his sex/gender. A woman cannot marry a woman. Why? Because of her sex/gender. That is unequal treatment of a law, which requires the state to be able to show that a state interest is furthered by this unequal treatment (at least a legitimate state interest, but with gender/sex, it would technically have to be an important state interest).
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    Re: Gay marriage wins in Indiana and Utah

    Quote Originally Posted by Deuce View Post
    Woo! Mandatory fornication!
    sadfully no apparently one of the fingers is designed for marriage according to some creationists and if you like it you have to put a ring on it

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    Re: Gay marriage wins in Indiana and Utah

    Quote Originally Posted by Deuce View Post
    Equal protection of the laws. It doesn't specifically enumerate marriage because it doesn't have to. It applies to all laws. The test, for a distinction of gender, is that the measure in question must be "substantially related" to furthering an "important state interest." If you can't provide that interest, the law will be overturned. That's why judges are knocking down same-sex marriage bans left and right. They don't hold up.

    edit: In some cases the courts are only applying rational basis scrutiny, meaning the measure must only be rationally related to a legitimate state interest. The bans don't pass that test either. Barring gays from marrying doesn't make more babies, nor does it prevent any harm to heterosexual marriage.
    Bingo. There is also an argument to be made that strict scrutiny should be applied. The court applies strict scrutiny in cases of race and in cases where a fundamental right is involved. In Loving v. Virginia, SCOTUS declared that marriage is a fundamental right. Therefore, cases involving denying marriage rights should really be judged under the strictest form of judicial review. As you say, gender falls under intermediate scrutiny, and sadly as far as precedent is concerned sexual orientation remains at rational basis (unjustifiably I would argue). There is an argument to be made for all three forms of judicial review surrounding this issue, making it that much more interesting.

    Regardless, as you mentioned, courts have been ruling left and right that same-sex marriage bans fail even the most basic rational basis test. If SCOTUS applies higher scrutiny, which I believe it should, then it seems next to impossible that they could reasonably uphold same-sex marriage bans.
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    Re: Gay marriage wins in Indiana and Utah

    Quote Originally Posted by Lakryte View Post
    Bingo. There is also an argument to be made that strict scrutiny should be applied. The court applies strict scrutiny in cases of race and in cases where a fundamental right is involved. In Loving v. Virginia, SCOTUS declared that marriage is a fundamental right. Therefore, cases involving denying marriage rights should really be judged under the strictest form of judicial review. As you say, gender falls under intermediate scrutiny, and sadly as far as precedent is concerned sexual orientation remains at rational basis (unjustifiably I would argue). There is an argument to be made for all three forms of judicial review surrounding this issue, making it that much more interesting.

    Regardless, as you mentioned, courts have been ruling left and right that same-sex marriage bans fail even the most basic rational basis test. If SCOTUS applies higher scrutiny, which I believe it should, then it seems next to impossible that they could reasonably uphold same-sex marriage bans.
    Although this is true (that they ruled marriage is a right), they also ruled in Zablocki v Redhail that it was wrong for the lower court to rule at a higher level of scrutiny in that case and that rational scrutiny needed to be applied there, but that the law still did not pass a rational basis test there either.
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    Re: Gay marriage wins in Indiana and Utah

    Quote Originally Posted by roguenuke View Post
    Although this is true (that they ruled marriage is a right), they also ruled in Zablocki v Redhail that it was wrong for the lower court to rule at a higher level of scrutiny in that case and that rational scrutiny needed to be applied there, but that the law still did not pass a rational basis test there either.
    Thanks for letting me know about that case, I have actually never heard of it. I did a quick read of some analyses about it, and it looks like the court applied a strange mix between intermediate and strict scrutiny. So it wasn't strict scrutiny, but it wasn't rational basis either. From the decision:

    The law had to be "supported by sufficiently important state interests and is closely tailored to effectuate only those interests". So an important state interest like intermediate scrutiny (rather than compelling), and closely tailored (which is like narrowly tailored) like strict scrutiny. Very bizarre.
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