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Thread: States and the power to discriminate based on sexual orientation

  1. #11
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Crovax View Post
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
    The tenth amendment was the one I built my answer around !
    The question is more important than the answer!

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    Re: States and the power to discriminate based on sexual orientation

    Hatuey, that is an interesting question and one I can't answer.
    For a while now, I have read and listened to arguments from both sides, and I can't honestly admit that both sides make some great arguments.
    What's more, SCOTUS seems to be of somewhat different opinion when it comes to SSM, and I venture to say that they are just as divided on state power.
    So who am I to say if the constitution give states the power to discriminate based on sexual orientation? I just don't know it well enough, and I am no legal scholar.
    To me, it seems that anything is open to interpretation and both sides can argue in their favor and find loopholes to substantiate their argument.
    SSM is and will be an issue of trend and opinions rather than a legal one.

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by RabidAlpaca View Post
    If that same state used its "free exercise of given power to regulate society" to ban YOU from getting married, would that be fine? Can they ban Christians from marrying or owning property? Marriage is a right of the citizens, not the state, and they do not have the power to deny it to minority groups they find icky. (See Supreme Court decision)
    You are confusing the sacrament of marriage with a blanket assumption about civil unions.
    The question is more important than the answer!

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Hatuey View Post
    I think it's Fed10 that actually advocates against exactly what you're proposing. I don't question that states have a large degree of autonomy. However, it seems kind of contradictory to create a document which would be focused on protecting the rights and privileges of an individual, while allowing a majority the possibility to take them away based on whatever cultural, social or religious whim the majority might endorse at that point in history. Do you agree?
    The constitution didnt do that until 1925 based on an amendment ratified in 1868. So the founders didnt exactly create that document. The founders didnt like a centralized tyrannical power but they were certainly ok with a local tyrannical one. You have "separation of church and state" Jefferson authoring a religions based state law that castrates gay people. What does that tel you about how the founders thought the bill of rights applied? Federalist 10 advocates against the danger of the tyranny of the majority but the solution wasnt individual rights but a representative govt.

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Crovax View Post
    Sure it was, not specifically of course, but the founders certainly knew that was covered under it. Just take a look at how weak the bill of rights was until the supreme court decided that the 14th amendment incorporated them. The 10th amendment was intended to give the states a large amount of autonomy, something that has been almost completely eradicated now to the point where people can't even fathom that it ever existed like that. The states had a large power to deny a lot of rights and privileges and many did so, its pretty clear looking at old state laws and SCOTUS decisions about them.
    To answer that question, we should ask ourselves if our founding fathers could possibly have had the foresight to anticipate the U.S. of today. That is a sticking point for me.
    Those were wise men, I give you that. But we have to look at the constitution from their immediate pov, don't we?

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Lovebug View Post
    Hatuey, that is an interesting question and one I can't answer.
    For a while now, I have read and listened to arguments from both sides, and I can't honestly admit that both sides make some great arguments.
    What's more, SCOTUS seems to be of somewhat different opinion when it comes to SSM, and I venture to say that they are just as divided on state power.
    So who am I to say if the constitution give states the power to discriminate based on sexual orientation? I just don't know it well enough, and I am no legal scholar.
    To me, it seems that anything is open to interpretation and both sides can argue in their favor and find loopholes to substantiate their argument.
    SSM is and will be an issue of trend and opinions rather than a legal one.
    That's where I figured a lot of people would be and I don't fault you for it. It's not the easiest issue to create a conclusion around. That said, I'm simply not swayed by the argument that the 10th amendment gives the majority of people the right to vote on the privileges/benefits/rights of a minority. That seems completely opposed to the reason for creating a system of governance where a number of court cases would involve just that. More importantly, it seems like an argument justifying mob rule.
    I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality. - MLK

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Crovax View Post
    The constitution didnt do that until 1925 based on an amendment ratified in 1868. So the founders didnt exactly create that document. The founders didnt like a centralized tyrannical power but they were certainly ok with a local tyrannical one.
    The constitution did that from the beginning. There is/was no difference between the government infringing on an individual's right to free speech, own guns etc or that of a group of people even at that point. As such, the rights of the individual were included within the words "the right of the people", don't you think?

    You have "separation of church and state" Jefferson authoring a religions based state law that castrates gay people. What does that tel you about how the founders thought the bill of rights applied?
    That they weren't exactly consistent fellows? I mean, even without mentioning homosexuality, the founders were composed of a wide number of people who preached about freedom while owning slaves. That's not exactly a great example to go by in order to determine the powers which the states have. Don't you think?

    Federalist 10 advocates against the danger of the tyranny of the majority but the solution wasnt individual rights but a representative govt.
    So if I'm getting you right, tyranny of the majority would be acceptable to the founders as long as it's done by majority vote. Yes?
    I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality. - MLK

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Hatuey View Post
    It should be obvious that the bans on gay marriage, whether enacted by voting or legislation, singled out homosexuals. Though supporters of these bans have claimed that gays should have settled for "civil union", the reality is that some of these amendments also banned civil unions with gays in them. That said, people have claimed that the recent Obergefell ruling was unconstitutional. Which leads me to present this question:

    Does the constitution give states the power to discriminate based on sexual orientation?

    I have provided two answers to this:

    A) Yes.
    B) No.

    The reason for this is clear. If you believe that these bans were constitutional, then states do have the power to discriminate based on sexual orientation. If you don't believe they were, then it's clear that states don't. There are no maybe's and others in most of my polls. They assume you understand the topic enough to make a decision based on what you know.
    The way you pose the question is misleading. Do the states have he right to discriminate against polygamy?

    Do the states have the right to require 2A license fees (constitutional rights rental contracts?) or to discriminate against handguns (or "high capacity" magazines) specifically?

    When one state allows/disallows something that another state does not that is not the same thing as discriminating. Many states have different ages for defining when one is an adult (e.g. 16 to drive, 18 to vote and 21 to drink alcohol) - is that age discrimination or a matter best left to the states?
    “The reasonable man adapts himself to the world: the unreasonable one persists to adapt the world to himself.
    Therefore all progress depends on the unreasonable man.” ― George Bernard Shaw, Man and Superman

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by ttwtt78640 View Post
    The way you pose the question is misleading. Do the states have he right to discriminate against polygamy? Do the states have the right to require 2A license fees (constitutional rights rental contracts?) or to discriminate against handguns (or "high capacity" magazines) specifically?
    This would be no different than an abolitionist asking whether the constitution gives the states the power to maintain slavery as an institution. There is nothing misleading about the question and it is one which has been asked quite frequently in various forms throughout the history of the US and in various contexts.

    When one state allows/disallows something that another state does not that is not the same thing as discriminating. Many states have different ages for defining when one is an adult (e.g. 16 to drive, 18 to vote and 21 to drink alcohol) - is that age discrimination or a matter best left to the states?
    I think of age restrictions as being comparable to laws on crimes. They don't necessarily discriminate against any specific group of people based on any choice, or for that matter a trait that they can't get rid of (eventually, people get to that age). In contrast, there is ample scientific evidence that gays are proverbially 'born that way'. However, even if they weren't, it would be more like the state deciding to discriminate based on an arbitrary choice. Don't you think?
    I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality. - MLK

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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Hatuey View Post
    This would be no different than an abolitionist asking whether the constitution gives the states the power to maintain slavery as an institution. There is nothing misleading about the question and it is one which has been asked quite frequently in various forms throughout the history of the US and in various contexts.



    I think of age restrictions as being comparable to laws on crimes. They don't necessarily discriminate against any specific group of people based on any choice, or for that matter a trait that they can't get rid of (eventually, people get to that age). In contrast, there is ample scientific evidence that gays are proverbially 'born that way'. However, even if they weren't, it would be more like the state deciding to discriminate based on an arbitrary choice. Don't you think?
    The slavery "issue" is specifically addressed in the US constitution while SSM (marriage or polygamy) is not. The 2A specifically gives the people the right to keep and bear arms - how can a state make it a crime to keep/carry a gun legally purchased (including passing a NCIS BG check) from a FFL?

    It seems that our "activist" SCOTUS has decided that SSM is close enough to "traditional" marriage to gain constitutional protection yet polygamy is (so far) not a viable form of partnership.

    If the states can vary in their handling of the 2A right (even to the extent of making it a criminal offense to own/carry a specific type of gun) then surely they can vary in their handling of marriage licenses - without any US constitutional amendment stating otherwise.

    It took constitutional action to ban/restore the recreational use of alcohol yet no such action to ban many other recreational drugs. Are "dry" counties/cities constitutional or discriminatory?
    “The reasonable man adapts himself to the world: the unreasonable one persists to adapt the world to himself.
    Therefore all progress depends on the unreasonable man.” ― George Bernard Shaw, Man and Superman

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