Thread: California gay marriage ban overturned: report

Originally Posted by Zyphlin

You need to reexamine the facts surrounding the 14th amendment and the legal precedents on how it is enforced and determined Dana.

The government can pick and choose who the law protects and absolutely call allow laws to be unequal.

However, to do so it must reach a specific level of proof showing a specific level of necessity based on the particular protected status in question.

For example, race/religion/ethnicity requires a very high burden of proof showing an unquestionably high level of necessity. Gender requires a slightly lower burden of proof and level of necessity, but still relatively tough. Most others require the lowest standard which is simple a rational explanation of why its necessary.

IF those standards can be met, discrimination is absolutely allowed on the part of the government under the 14th. Such is present every day in our society. The very nature of a "minor" status is age discrimination, but there was sufficient evidence to show the needed necessity in regards to state interest in having it. One could look at the laws and policies regarding women on the front lines in the military as well. Or look at the ability to strip felons from their rights.

So, because the government CAN legally discriminate if it meets certain requirements, and because it bestows certain benefits to those that are married, it DOES have a legitimate and constitutionally authorized stake in saying who and who can't be married.

The issue however is that Polygamists, as a grouping, at BEST could be considered under the lowest tier, "Rational Scrutiny", level as there's no proof what so ever of the inherent nature of such a group nor is it directly protected constitutionally (as is the only unquestionably self-chosen designation granted a high standing, religion). Even then its questionable as the discrimination taking part against polygamists is not actually against polygamists, but against "number of people". Namely, the claim that its discriminatory to say that you can marry one person but that you can't marry two or three people. "Number of people" in no way shape or form can be considered a "protected class" of people.

So even if you assume it can reach the highest point it could realistically reach, which is Rational Scrutiny...and even that is highly suspect...then the government doesn't really need a lot to deny it by claiming a rational state interest.

The severity in law changes needed for polygamy dwarfs that of same sex marriages. The impact on the court systems due to the issues with multiple marriages and the benefits of "control" (best way to explain the general power of attorney and other type benefits of marriage) would likely be significant and cumbersome due to the inherent issues with having multiple people supposedly being the ones with the legal "Final say of" or "rights to" a person or their property. Add onto the exceptionally large tax hole it creates by allowing multiple people to cling on together creating various tax breaks, bonuses, and benefits in ways that exponentially outweigh that of a simple two person binding and you suddenly have such benefits shifting from a positive for the government to a significant drain and negative. All of this contributes to a far more rational argument of tangible things, rather than intangible "cultural" things which is the primary arguments against gay marriage as a government interest (and could equally be applied here anyways), than does gay marriage.

So in summation...

Yes, the government CAN discriminate, as long as they reach a certain burden of proof showing a certain level of necessity based on whether or not the group is a protected one and how protected they are. Gender is unquestionably more protected then polygamists or "number of people", and a far stronger argument for sexual orientation being considered higher up on the list can be made then can be made for polygamists or "number of people" at this time.

That was an extremely lucid argument, but I still have to disagree with you. If polygamy is more unprotected than sexual orientation, then we have to look for the underlying reason why either would be more unprotected than traditional marriage. That both gay and polygamous marriage would be more unprotected than traditional marriage comes from the same source, namely religion. Therefore, I would assert that 1) The equal protection clause is being violated in both cases and 2) The government is respecting an establishment of religion here. IMHO, this makes discrimination against either gay or polygamous marriages unconstitutional.

Originally Posted by danarhea

That was an extremely lucid argument, but I still have to disagree with you. If polygamy is more unprotected than sexual orientation, then we have to look for the underlying reason why either would be more unprotected than traditional marriage. That both gay and polygamous marriage would be more unprotected than traditional marriage comes from the same source, namely religion. Therefore, I would assert that 1) The equal protection clause is being violated in both cases and 2) The government is respecting an establishment of religion here. IMHO, this makes discrimination against either gay or polygamous marriages unconstitutional.

You might want to add the assertion that, the 14th doesn't just protect a class of people, but also the individual. I beleive, if I read Zyphlin correctly, that he is ascribing the 14th applying to a class of people, when it does no such thing. The simple act of marriage does not place a qualifier on marriage as something reserved for a class of people, and thusly, and logically it follows that marriage in and of itself, is a right of the individual, and the individual alone. In this sense, Dana, you're correct. Protecting the establishment of marriage as a right, reserved for a special class of people (At the moment just straight people) is unconstitutional, if taken in the literall sense. Therefore denying the equal protection of the individual to take part in marriage, for whatever reason, is a violation, UNLESS, marriage is more strictly defined as having no designation as a fundamental right. If this happens, then the states are free to legislate whom may partake in marriage, without the burden of having to pass the 14th Amendment challenge.


Tim-

Originally Posted by danarhea

That was an extremely lucid argument, but I still have to disagree with you. If polygamy is more unprotected than sexual orientation, then we have to look for the underlying reason why either would be more unprotected than traditional marriage.

Lets just assume here, for the sake of your argument, that "polygamy" is an actual grouping of people.

Nothing has to show that "traditional marriage" has more or less protection than polygamy or sexual orientation because "traditional marriage" is not a grouping of people covered under the EPC.

Indeed, under the law, there is no such thing as "traditional marraige" and "untraditional marriage". There is just Marriage. And the law must be applied equally to various classifications of people unless the states meets the requirements associated with discriminating against such a classification.

Gender is unquestionably already assigned as a mid-tier status. Orientation is not currently assigned a higher tier, so is on the bottom tier. However, a decently strong case can be made for at least mid-tier on it due to its potential inherent nature. There's almost no way I've seen presented to suggest Polygamists would be anywhere higher than the lowest teir.

Additionally, the issues and reasons why there's state interest in preventing multi-person marriages is different than those in preventing same sex marriages, and as such each can be weighed on their own merit rather or not it reaches the necssary level to qualify under the EPC.

That both gay and polygamous marriage would be more unprotected than traditional marriage comes from the same source, namely religion.

I disagree, did you not see where I specifically noted non-moral, legitimate governmental, issues that would come about in regards to multi-person marriages rather than same sex marriages. Specifically things such as the drag on the court system, the extensive nature of the legal rewrites, and the potential dangers it poses to the tax system, all three of which are either not present or of a smaller level when compared to same sex marriage.

None of that has anything to do with religion.

Because polygamists would at best be a lower tier status you would need to show why they are not at least rational arguments showing that the discrimination helps some sort of state interest. Arguing that "its really not about that, its about religion, and thus a violation" doesn't really stand because you're essentially dismissing their argument, inserting your own, and then debating your own.

Originally Posted by Hicup

You might want to add the assertion that, the 14th doesn't just protect a class of people, but also the individual.

Yes, it can theoritically work on an individual basis. However, there's not a law that I can think of that discriminates against "Joe Smith in Tulsa, Arizona, social security number ###-###-####"

The simple act of marriage does not place a qualifier on marriage as something reserved for a class of people, and thusly, and logically it follows that marriage in and of itself, is a right of the individual, and the individual alone.

Correct, just like free speech is the right of the individual but can be tried under EPC if a law was made barring black people from saying something.

In this sense, Dana, you're correct.

Incorrect, as I'll go on to show.

Protecting the establishment of marriage as a right, reserved for a special class of people (At the moment just straight people) is unconstitutional, if taken in the literall sense.

Almost.

Its unconstitutional unless it meets the necessary level of proof of the necessary level of necessity by the government to discriminate against said group or if you prefer said person.

Therefore denying the equal protection of the individual to take part in marriage, for whatever reason, is a violation, UNLESS, marriage is more strictly defined as having no designation as a fundamental right.

Incorrect again, by stating "for whatever reason".

Examine the legality surrounding the EPC and the precedence set by the court. The government CAN deny equal protection against a group or people if the state meets a certian level of proof showing a certain level of necessity based on what tier said group, or person, falls under.

If this happens, then the states are free to legislate whom may partake in marriage, without the burden of having to pass the 14th Amendment challenge.

Which would be wonderful for you and your grasping argument at this. However, as it stands, currently today Marriage is a constitutional right deemed as such by the Supreme Court and until that gets over turned its what the law of the land is in regards to its constitutionality.

Similarly, just because you feel that constitutional or "fundamental" right should be completely unable to be infringed upon by the government doesn't mean that is correct, legal, nor constitutional as it stands today because constitutionally and legally the government absolutely CAN restrict ones rights...even rights found within the bill of rights...if they meet certain requirements.

Zyphlin -

Its unconstitutional unless it meets the necessary level of proof of the necessary level of necessity by the government to discriminate against said group or if you prefer said person.

What criteria would the court use to discriminate against polygamists? Numbers?, Serving no state interests? Or, perhaps placing an undue burden on the state? All whimsical, IMO, if marriage is a fundamental right of the people. I understand fundamental rights can be infringed upon, and restricted to special classes, but if this is the case, just how fundamental are they to begin with? That's the point.

Presently, right now, and for this issue, and the understanding of the 14th Amendment, you are entirely correct. I hope I'm not coming across like I think you're wrong, only that I highlight that there is a kink in the armor with regard to marriage rights, and whether it applies to the 14th, or should even apply at all.

Tim-

Something interesting I just read..

Sexual liberty proponents believe that Lawrence explicitly analogized same-sex sodomy and mixed-sex sodomy, and that Lawrence severed the link between constitutional protection of sexual conduct and whether the activity is procreative or takes place within the marital relationship or is traditionally protected by society, the logic of Lawrence casts considerable doubt on laws restricting marriage to opposite-sex couples, notwithstanding the not-so-subtle suggestions in both the majority opinion and in Justice O'Connor's concurrence that the court is not willing to listen to this argument, and that some of the justices (Kennedy and O'Connor specifically) would switch sides to vote with the dissenters in this case if the issue of gay marriage came before them. Lawrence v. Texas, 539 U.S. 558 (2003) (O'Connor, J. concurring).[citation needed]

Wiki - Link


Tim-

No citation, which I'm trying to find, but if true, the GM proponents might be in for a battle. since Kennedy would switch, and find for the plaintiffs.

Originally Posted by Zyphlin

Pretty simple.

"Marriage" is what was found to be constitutional.

Right there you are assuming a broader definition than was given. This is the exact point where your argument falls off the tracks. The right to marriage was based on RACE between a man and a woman. You are generalizing the ruling when no such ruling was made.

BASED on the fact that marriage was found a constitutional right,

Again based on race between man and woman ONLY.

the equal protection clause stated that you can't discriminate without meeting the threshold allowing it. The threshold to descriminate on race wasn't reached, so discrimination of marriage laws against race was struck down.

And this is where your argument breaks down. You are assuming a broader definition to the right to marriage than was ever discussed by the courts. Until you stop generalizing a specific ruling you aren't going to be able to move forward.

However, the constitutional right that was determined wasn't "The right for blacks to marry people other than blacks". It was "The right to marriage", which then could have the EPC applied to it.

Exactly but it was NEVER EVER generalized to include sexual orientation or sexual orientation based on gender. That was never in the ruling. Denying marriage based on race was the ruling. That was the right to marriage. Again, you are generalizing a specific ruling to fit your wants when it was never generalized that way.

The Equal Protection Clause protects against more groups than just race.
Therefore just because its only, so far, been used in regards to marriage about race does not mean it can't be used in regards to marriage concerning other discrimination of protected groupings either.

And they are specific in what groups those are. They NEVER included sexual orientation or sexual orientation based off gender. You are injecting that when it doesn't exist in the law.

"Marriage" is the broadly defined constitutional right, and as a constitutional right it must be equally protected under the law, a process that covers gender discrimination.

So the fact that its only been used so far in regards to race when it comes to marriage is irrelevant, because what matters is that the EPC applies to marriage as shown by the court cases challenging it based on race.

It is NOT irrelevant. You are being completely dishonest about the ruling and the case presented. Race was the focus, NOT sexual orientation or sexual orientation based off gender.

It was not broadly defined. It was specific to race ONLY. Please stop generalizing a ruling that was specific to the case of race.

I can provide your definitive and unquestionable proof that the Equal Protection Clause applies to marriage, by showing you those court cases that use said clause to strike down discrimination in marriage based on race. Can you provide me with evidence that the Equal Protection Clause DOESN'T apply to marriage or is somehow limited to which of its groups it'll actually protect?

Yes based on what you just said. The ruling was based on RACE ONLY. NOT sexual orientation or sexual orientation based off gender. If you want to continue this trend you need to present from the ruling that they stated the right to marriage includes all aspects of relationships including sexual orientation or sexual orientation based off gender which was never stated.

No, I'm relating rifles from the age of the founders vs fully automatic SMG's to opposite sex vs same sex marriage. They did not have semi-automatic pistols and rifles in the time the constitution was created.
I'm equating them as different forms of the same thing. Specifically, situations where for some time court cases didn't involve one particular type, but that did not mean that later on it couldn't. Essentially, just because the court cases thus far have looked at opposite sex marriage doesn't mean it can't look at same sex marriage with both being under the auspice of the same deemed constitutional right of "marriage". Equally even, just because that constitutional right has only had court cases arguing against it on account of discrimination on race doesn't mean it can not be argued against on discrimination in other ways either.

They are still guns. Firing bullets faster is not changing the gun itself. That is the problem with your comparison. Just because its faster doesn’t mean its different

That's funny.

I thought the constitution is the one that specifically says the courts are there to uphold the constitution.

Uphold/Interpretation is not create new law. There is nothing funny about that.

I thought the constitution is the one that dictates that a judges ruilng regarding to constitution is essentially constitutional law.

I thought the constitution is the one that had the surpemecy clause in it.

I thought the constitution is the one with the equal protection clause in it.

I thought then that until such a time that a case manages to occur that causes marriage to be rejected as a constitutional right, that the surpemacy clause says equal protection must apply to state laws as well and basing this simply off my argument, that when you apply the EPC to marriage with regards to gender discrimination you find that it is an unconstitutional discriminatory practice.

Everything I just said is founded singularly and solely on the constitution. I am not reaching out to foreign law, I am not inventing any new rights or privledges that aren't stated in the constitution or aren't considered at this point constitutional law.

I'll say it again. You are not interpreting current law. What you want is the creation of new law based on nothing in the Constitution. Nowhere is sexual orientation or sexual orientation based off gender even mentioned. You are falsely expanding rulings on race and that is the definition of judicial activism.

Marriage is a constitutional right

How many times must I remind you the only decision was based on RACE not sexual orientation or sexual orientation based off gender?

The 14th amendment garauntees equal protection under the law.

And it is very specific on what areas they are referencing and sexual orientation or sexual orientation based off gender is NOT in there. Once again you are falsely expanding a law to incorporate something that was never EVER included

The Supremecy Clause garauntees constitutional protection against state laws as well.
Court cases have certified without question that gender discrimination falls under the EPC.
Court cases have also showed clearly that the right of marriage is subject to the EPC.
Due to the high level of standard needed to discriminate based on Gender, I do not see the arguments for keeping the discriminatory practices happening as legitimate important state interest as being substantial enough.
As such I believe that such discrimination based on gender is unconstitutional.
Every single thing I said there was based off the system the constitution has set in place.
If you dislike it, actually address it, and clearly show me where and why its not.

Thats why this should be handled in an Amendment.

And if you call this gender discrimination you can't stop any sexual orientation or number of people wanting to claim the same thing based on that incredibly general interpretation

Jesus Christ, how many times do I need to say I personally am not arguing about sexual orientation.

And actually, court rulings have been about the EQUAL PROTECTION CLAUSE with specificity towards race. However the EPC does not cover ONLY race.

You want to play that game fine. It was never ruled on the subject of sexual orientation based off gender either.

We'll get to this one in another post because you did the same thing again this time.

Address it anywhere you like. Proclaiming "read my posts" is not an argument. Its cheap talk without backing.

Marriage is not based on gender alone. Where did I say that? I stated that its currently discriminates against gender, that the EPC garauntees that such discrimination can't happen unless a certain burden is met, and that I don't believe that said burden is met.

My God its your argument! What have you been saying this entire time? That your argument is based on gender for allowing homosexual marriage! Why are you denying this?

The burden required for age to be discriminated against has been shown through cases to be lower than that which is required for gender.

Bull****. Provide those cases if you really are going to peddle that.

Furthermore, the status of minors has been challenged in court a number of times and held up as meeting the necessary level of state interest to have such a status. Said status and their inability to enter into contracts invalidates them from the marriage discussion entirely. Now if you want to actually address my point, that I've now stated twice, instead of just repeating "No no no, it should work with age too!" without giving any reasons why in relation to my argument then we can talk. If not, I'm not going to answer you a third time with you continually not responding.

I've already explained to you at least 5 times why age is important. Its because in your argument based on gender it isn't a factor in excluding marriage. You can't claim your argument is based on gender and want to abandon laws on the books that ban gay marriage and turn around and say its also based on age.

Sure you can, gender is more protected than age, and minor status has already been upheld as having the needed level of necessity.

Again, bull****. You have yet to prove that statement in any way shape or form. Age has plenty of protections from crimes to driving and drinking.

I have never claimed gender alone validates marriage, no more than race alone validates it. Currently, constitutional law says MARRIAGE...just that MARRIAGE...is a constitutional right. That means the EPC applies to it. That means the EPC applies to it for all the various protected groups under it.

That makes no sense whatsoever. You have claimed over and over and over again your basis for allowing gay marriage has been gender discrimination. That has been your argument so you can't claim now you aren't basing it off that unless you are going to provide a new premise. And STOP for the love of GOD STOP claiming marriage is a constitutional right without giving the CONTEXT in which that decision was made. ie RACE AND RACE ALONE.

For now, for the purpose of this, I'll conceed the whole natural/nurture thing though I disagree and everything I've seen counters what you're saying. However, since its not pertinent to my particular argument in the least I'm not going to waste time with it nor allow it to be used for a distraction.

agreed

Again, my focus will be solely on my own personal argument...which is that its GENDER discrimination.

Please make up your mind. You just said

I have never claimed gender alone validates marriage

Please let me know when your final decision is made as to which direction you wish to go.

True or False, Marriage has been deemed a constitutional right under the courts.

On RACE alone yes

True or False, the challenge to marriage regarding race was challenged based on the Equal Protection Clause.

True

True or False, the equal protection clause has been used in gender discrimination and found to be a protected group?

True but never sexual orientation and that is the result of your argument. You can't base your push for a sexual orientation marriage based on gender. Sexual orientation IS the key factor in gay marriage not gender. Con’t

Guess what, all that together means that its perfectly reasonable to argue the constitutionality of discrimination of a protected group with regards to marriage under the EPC.

If you throw out the rulings behind the right to marriage and the specific target of RACE that was considered.

Yes, you can.

Read my damn posts.

Stop that nonsense. Either provide the evidence or dont but stop the "Read my posts" That isn't an argument.

Age discrimination is at a lower tier than gender is in regards to the EPC. Rather than needing substantial proof of an important state interest one must only show a rational proof of any state interest. There is not substantial court evidence to suggest age discrimination is on par with gender discrimination with regards to constitutional protections.

And you have provided no evidence that age is less important than gender in the eyes of the law.

"Number of people" is not a protected group, its not a group, at all. You could possibly argue simply of "polygamists", but even they wouldn't raise beyond the lowest tier of the EPC. And as was shown in a later point, they can not show specific discrimination towards polygamists, only towards the number of spouses one can have, which is not a group, its a number.

Of course its a group. Polygamists have been in the law FAR longer than homosexuality and there is actual law based on discriminating against that group.

My argument does not mean you have to allow EVERYONE to marry. It means you have to allow protected groups under the EPC who the government can not show the required level of proof regarding the required level of necessity needed to discriminate against them.

You may not think your intention is to allow everyone to marry but based on your own argument of gender being the single factor in allowing gay marriage you could not discriminate against anyone else demanding the same rights based on the same argument you are making for any sexual orientation or number.

My contention, as its been clearly laid out, is that due to Gender being at a higher level...behind only race, religion, and ethnicity..that the state does not have the necessary proof of the necessary importance to discriminate based on it. I have no seen an argument concerning any of the other groups you speak of stating why the same is true for them. Perhaps if you actually make one other than "Well, um, its the same" then we could debate it.

You first have to support your claim that gender IS at a higher level under the law than other sexual orientations, age or number of people wanting to marry and you have failed to provide any evidence to support that theory.
I'm still waiting for you to define how under your argument you could discriminate against other sexual orientations when your argument is based on gender. Simply claiming "its at a higher level" is a garbage argument without any evidence behind it.

Nothing.

Now you're getting it.

Please demonstrate how they're being discriminated against based on gender. I have done so with regards to my argument, let us see yours.

Quite easily. Two women want to marry one man. You are discriminating against 2 women marrying one man based on gender by not allowing them to marry. Its the exact same argument you are making for gay marriage.

He's allowed to want to marry them based off their gender, however he can't do so because the law states that a child is a juvenile and thus not able to enter into such contracts.

BINGO!! But you want to nullify laws stopping gay marriage so how is your law nullification justified and the juvenile law staying in place justified if the argument is based on gender. A female can be a child and still be female so your gender claim would be valid for that argument.

You're correct. However the constitution has stated that laws which are unconstitutional are meant to be struck down by the court, and interpritation of the constitution with regards to laws falls to the courts.

But it MUST have some backing within the law to claim it is unconstitutional and it doesn't which is why its judicial activism.

No where am I advocating the creation of a new law, I am advocating for the abolishment of a law OR the adherence to it to the constitution, both through the proper venue for unconstitutional laws. What I am not arguing for is to maintain an unconstitutional law.

Based on nothing in the Constitution to nullify it. Sexual orientation which IS what you are fighting for is never mentioned nor have gender laws incorporated sexual orientation as part of their "rights" so you are arguing against the will of the people based on no existing law that has ever ruled or discussed gender and sexual orientation being on the same level.

Again, I laid out clearly, plainly, and specifically how I come to my conclussion based off the constitution and the system it has laid in place.

You have done nothing but give accusations.

Why don't you actually make an arguments with some specifics this time.

That is a clearly false claim. I have not allowed you to claim the law says something it doesn't. That is hardly giving accusations. It is not allowing you to take specific rulings and generalize them for your argument when the subject was never taken up on your issue.

Why Judge Walker Struck Down Anti-Gay-Marriage Prop 8 - TIME

Originally Posted by Hicup

Something interesting I just read..

Wiki - Link


Tim-

No citation, which I'm trying to find, but if true, the GM proponents might be in for a battle. since Kennedy would switch, and find for the plaintiffs.

Uh...no. It might be to your benefit to actually read Walker's ruling. The question of sexual conduct has no basis in it. Walker argues that the state has no interest in mandating gender roles in marriage.