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Thread: Court won't force state to defend Prop. 8

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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Harshaw View Post
    Actually, he tied it specifically to homosexuality, but even if he had said exactly that . . .

    It's still not an equal protection issue, because the law still applies to everyone equally.

    Now, you can make a dandy free association argument based on this, but an equal protection argument fails.
    It isn't equal legally if the law purposefully excludes men from marry men, and women, from marrying women. It is the "exclusion" that is the discrimination legally, and for the state to exclude a class or group of people from a priviledge, or fundamental right, it must provide a rationale for doing so.


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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Singularity View Post
    No. The part in bold prevents a state from doing just that. As a matter of fact, it can't get any plainer. The state cannot make or enforce any law which abridges the privileges or immunities of any citizen of the US without due process of law.
    This is no way means that a state - or the federal government - cannot repeal or reduce a privilege that it issued. There are any number of examples of where they have done so, none of whch have ran afoul of the 14th.

    Further, there are any number of examples of states not having to recognize a privilege offered by another state if the state in question does not offer the same privilege - for instance, Illinois does not have to recognize my OH CCW permit - a privilege granted to me by the state of OH. Further, under your argument, OH (and every other state that has one) could never repeal the law that grants me that privilege, meaning that OH (and every other state that has one) will always have its current CCW permit system.

    Your argument is not sound. A state can repeal its marriage laws, eliminating the legal instititon of marrage, and no court can stop it. Thus, marriage is unquestionably a privilege.

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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Hicup View Post
    It isn't equal legally if the law purposefully excludes men from marry men, and women, from marrying women. It is the "exclusion" that is the discrimination legally, and for the state to exclude a class or group of people from a priviledge, or fundamental right, it must provide a rationale for doing so.
    The point is that the same-sex marriage ban applies to everyone, and as such, there is no discrimination.
    Without discrimination, there can be no equal protection argument, as the law is applied equally to all.

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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Hicup View Post
    It isn't equal legally if the law purposefully excludes men from marry men, and women, from marrying women. It is the "exclusion" that is the discrimination legally, and for the state to exclude a class or group of people from a priviledge, or fundamental right, it must provide a rationale for doing so.
    But that doesn't make it an equal protection issue. It's only an equal protection issue if it applies to one group of people but not another.

    No men have the right to do something that other men don't.

    No women have the right to do something that other women don't.

    The argument that men should be allowed to marry men and women should be allowed to marry men is one of association, not protection.

    Now, if there were a law which said that only homosexual men could marry other men, then THAT would be an equal-protection issue.
    “Offing those rich pigs with their own forks and knives, and then eating a meal in the same room, far out! The Weathermen dig Charles Manson.”-- Bernadine Dohrn

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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Harshaw View Post
    But that doesn't make it an equal protection issue. It's only an equal protection issue if it applies to one group of people but not another.

    No men have the right to do something that other men don't.

    No women have the right to do something that other women don't.

    The argument that men should be allowed to marry men and women should be allowed to marry men is one of association, not protection.

    Now, if there were a law which said that only homosexual men could marry other men, then THAT would be an equal-protection issue.
    It's a gender issue, so it most certainly falls under the equal protection clause. Men are allowed to do something that women cannot do. And women are allowed to do something that men cannot do. So the issue certainly does apply to one group and not the other. The groups being men and women.

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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by rivrrat View Post
    It's a gender issue, so it most certainly falls under the equal protection clause. Men are allowed to do something that women cannot do. And women are allowed to do something that men cannot do. So the issue certainly does apply to one group and not the other. The groups being men and women.
    No one makes the argument that it's discrimination based on gender rather than sexuality.

    But even so, men and women have access to marriage on an equal basis. The definition of marriage would, again, be a free association issue, but the law still applies to everyone equally.
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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Harshaw View Post
    No one makes the argument that it's discrimination based on gender rather than sexuality.
    Incorrect. Quite a few people do. I have been for quite some time here. As have others. As did the judge in Cali.

    But even so, men and women have access to marriage on an equal basis. The definition of marriage would, again, be a free association issue, but the law still applies to everyone equally.
    No, it does not. A man can marry a woman. And I, as a woman, cannot. It is not equal by any means.

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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Harshaw View Post
    But that doesn't make it an equal protection issue. It's only an equal protection issue if it applies to one group of people but not another.

    No men have the right to do something that other men don't.

    No women have the right to do something that other women don't.

    The argument that men should be allowed to marry men and women should be allowed to marry men is one of association, not protection.

    Now, if there were a law which said that only homosexual men could marry other men, then THAT would be an equal-protection issue.
    Doesn't matter, the state has the burden of providing a rationale for excluding ANY group from the equal protection of the laws. Gawd I really hate taking the side of the lib's here, but Walker laid out the framework in his ruling, and he is technically correct. In order for it to be overturned, the state must show why it excludes men/men, and women/women marriages. There has to be a recognized rational vested interest for the state to do so. I believe there is a rational vested intersest and I argued as much here, but that doesn't take away from the fact that the burden rest with the state, not the ones seeking inclusion.


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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by rivrrat View Post
    Incorrect. Quite a few people do. I have been for quite some time here. As have others. As did the judge in Cali.
    His argument wasn't based on gender. It was specicially couched in the difference between heterosexual couples and homosexual couples.

    If you can find decisions based on gender discrimination and not discrimination against homosexuality, please do.


    No, it does not. A man can marry a woman. And I, as a woman, cannot. It is not equal by any means.
    Sure it is. Both men and women have the exact same access to marriage as "marriage" is defined, which is, in the places where it is so, a "union between a man and woman." Again, you can raise other issues, but not equal protection.
    “Offing those rich pigs with their own forks and knives, and then eating a meal in the same room, far out! The Weathermen dig Charles Manson.”-- Bernadine Dohrn

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    Re: Court won't force state to defend Prop. 8

    Quote Originally Posted by Hicup View Post
    Doesn't matter, the state has the burden of providing a rationale for excluding ANY group from the equal protection of the laws.
    His point is that no group is excluded; all groups are treated equally.

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