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

  1. #21
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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.
    Marriage is a LEGAL contract by law. So anybody willing to participate in the legalities should be able to be married by a JP or any Judge and bound by those legalities. Religion, on the other hand, view marriage as a moral issue, ergo the legalities do not apply. If gay marriage fits existing religious mores, then they can marry them. If it conflicts with the religious mores of a religion, that religion simply states that those individuals that don't qualify by the religion's mores should find a legal representative to do the legalities and that would apply to gay marriage or marriage to any other existing legal entity/entities.

  2. #22
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by ttwtt78640 View Post
    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?
    You're right. However, SSM wouldn't be the first issue where something not specifically addressed in the constitution would be discussed in direct relation to the constitutionality of banning it. See: interracial marriage. More importantly, your statement still doesn't show how it is misleading in any way. I asked whether the constitution grants states the power to discriminate based on sexual orientation. If it does, then please provide evidence for it. I'm not really swayed by the 10th amendment argument. It seems like excusing tyranny of the majority based on whatever localized whim it is espousing.

    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?
    States being able to handle the minutia within the 2A does not give them a right to simply bar people from owning them based on traits that they're either born with or some harmless choice. The 21st itself explicitly left the matter up to the states. Do you believe the constitution does the same for gay marriage and the power to ban it?
    Last edited by Hatuey; 07-11-15 at 08:50 AM.
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  3. #23
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Hatuey View Post
    You're right. However, SSM wouldn't be the first issue where something not specifically addressed in the constitution would be discussed in direct relation to the constitutionality of banning it. See: interracial marriage. More importantly, your statement still doesn't show how it is misleading in any way. I asked whether the constitution grants states the power to discriminate based on sexual orientation. If it does, then please provide evidence for it. I'm not really swayed by the 10th amendment argument. It seems like excusing tyranny of the majority based on whatever localized whim it is espousing.



    States being able to handle the minutia within the 2A does not give them a right to simply bar people from owning them based on traits that they're either born with or some harmless choice. The 21st itself explicitly left the matter up to the states. Do you believe the constitution does the same for gay marriage and the power to ban it?
    If a state can declare a 15-round magazine or open carry of a handgun illegal then that is a clear violation (infringement?) of the 2A. The argument that the existence of different (more restrictive) standards in one state than another should not let the SCOTUS make the call that the least restrictive must be adopted by all states unless that violates a specific constitutional right. Equal protection never meant that if one state allows polygamy then all states must do so or that since some states allow concealed carry that all must do so. To allow that logic would make sanctuary cities, nude beaches or the legalization/decriminalization of marijuana the "law of the land" simply because a state (or a few states) chose to adopt that policy.
    “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

  4. #24
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by ttwtt78640 View Post
    If a state can declare a 15-round magazine or open carry of a handgun illegal then that is a clear violation (infringement?) of the 2A.
    The argument that the existence of different (more restrictive) standards in one state than another should not let the SCOTUS make the call that the least restrictive must be adopted by all states unless that violates a specific constitutional right. Equal protection never meant that if one state allows polygamy then all states must do so or that since some states allow concealed carry that all must do so. To allow that logic would make sanctuary cities, nude beaches or the legalization/decriminalization of marijuana the "law of the land" simply because a state (or a few states) chose to adopt that policy.
    Wouldn't this be like a state providing 'free speech zones' though? Where rights can be regulated without it necessarily being considered an infringement on the right to exercise them? En tout cas, I think you're making the wrong argument. The court made a clear comparisons to previous bans that also singled out a specific group of couples. It even referred to previous bans Loving v. Virginia and Turner v. Safley, where specific classes of people were denied that right. However, maybe I'm not getting what you're saying right. As far as I understand your posts, they essentially say that:

    - Loving v. Virginia
    - Turner v. Safley
    - Obergefell v. Hodges

    Were all unconstitutional because they denied the state from picking and choosing who has a right to marry. Or do you find that the other two rulings had stronger legal footing than the most recent one?
    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

  5. #25
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Hatuey View Post
    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.
    A response to your question revolves around the belief in whether sexual orientation is a personal choice, or something a person is born with like the color of their skin.

    Those who believe it is a choice will argue that the Constitution does not prohibit states from legislating to limit it, while those who believe it is not a choice will argue that the Constitution does protect individuals from discriminatory state laws.

    I believe that sexual orientation is a naturally occurring characteristic protected by the Constitution from discriminatory state laws. This because both scientific and historical evidence tends to support the fact sexual orientation is NOT a choice. Therefore, I find no support in the Constitution for such discrimination.

    Now some people will point to the Constitution's slavery text, while others will try to stretch out the First Amendment religion clauses to cover "marriage sanctity." However, the slavery text was considered by the founders to be merely an economic compromise forced on them in order to retain the slave states in the Union (even slave-holding founding fathers were conflicted about slavery).

    The Religion Clauses were put in to protect religious groups from government persecution while preventing any one religion from becoming a "State" religion. They did not authorize discrimination on the basis of religious viewpoints.

    So I voted NO!
    Last edited by Captain Adverse; 07-11-15 at 09:44 AM.
    If I stop responding it doesn't mean I've conceded the point or agree with you. It only means I've made my point and I don't mind you having the last word. Please wait a few minutes before "quoting" me. I often correct errors for a minute or two after I post before the final product is ready.

  6. #26
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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. 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.
    I'd opine the Founders couldn't get the States, who until the creation of the present Constitution saw themselves as separate but equal rather than subordinate to a Central power, to sign on to a strong central government the dangerous world requires. One only needs to look at how poorly the State Militias did on the Bladensburg Plain to see how a strong central government was needed.

    Now as the nation matured and faced more complex social,economic and international problems the relationship between central vs state power has been altered. The much quoted Founders abhorred a standing professional Military as the tool of a tyrant (some right wing loonies see today's domestic military maneuvers as just that) but now more rational CONs see a large and well equipped (expensive) standing army as a lynchpin in the defense of freedom.

    So the old argument of what would our Founders think of a contemporary issue is rather specious. They were mostly very privileged anglo-saxon brahmin and slavery was indeed alive and well. Women were second class citizens. Voting rights highly restricted. State militias were the backbone of our national defense.

    These days such arguments are apples to oranges.

    Our nation is going from an exclusive society were rights were highly restricted to an inclusive society where rights are broadened as widely as possible.

  7. #27
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Disputatious71 View Post
    You are confusing the sacrament of marriage with a blanket assumption about civil unions.
    And you are confusing your outdated opinions on marriage with the actual law.
    "If I take death into my life, acknowledge it, and face it squarely, I will free myself from the anxiety of death and the pettiness of life - and only then will I be free to become myself." ~ Martin Heidegger

  8. #28
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Hatuey View Post
    Wouldn't this be like a state providing 'free speech zones' though? Where rights can be regulated without it necessarily being considered an infringement on the right to exercise them? En tout cas, I think you're making the wrong argument. The court made a clear comparisons to previous bans that also singled out a specific group of couples. It even referred to previous bans Loving v. Virginia and Turner v. Safley, where specific classes of people were denied that right. However, maybe I'm not getting what you're saying right. As far as I understand your posts, they essentially say that:

    - Loving v. Virginia
    - Turner v. Safley
    - Obergefell v. Hodges

    Were all unconstitutional because they denied the state from picking and choosing who has a right to marry. Or do you find that the other two rulings had stronger legal footing than the most recent one?
    The Loving ruling was based on race and did nothing to alter the marriage definition from one man and one woman. A black woman is still a woman just as a gay woman is still a woman. If gender difference is not "required" (or even constitutional) then what (other than tradition) makes the marriage partnership, unlike a business partnership, limited to only two partners?

    EDIT: On a similar note - what makes the definition of arms different among the several states? The 2A makes no distinction between a pistol, rifle or shotgun yet states are free to treat them differently as well as to consider the "and bear" part of the 2A as a state issued privilege.
    Last edited by ttwtt78640; 07-11-15 at 11:04 AM.
    “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

  9. #29
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    States and the power to discriminate based on sexual orientation

    Quote Originally Posted by RabidAlpaca View Post
    And you are confusing your outdated opinions on marriage with the actual law.
    Not outdated and not an opinion! Your opinion and my facts are what is being confused.
    The question is more important than the answer!

  10. #30
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    Re: States and the power to discriminate based on sexual orientation

    Quote Originally Posted by Disputatious71 View Post
    Not outdated and not an opinion! Your opinion and my facts are what is being confused.
    Ok, post the facts then. Please show where in the constitution YOUR definition of marriage is enshrined. Your religious beliefs do not trump the rights of others.
    "If I take death into my life, acknowledge it, and face it squarely, I will free myself from the anxiety of death and the pettiness of life - and only then will I be free to become myself." ~ Martin Heidegger

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