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Court: Heart of gay marriage law unconstitutional

Hicup said:
I wonder if the Justices would accept that argument? :)


Tim-
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I'm pretty sure they will, there is already precedent for such a thing. Like Red brought up the arguments for Loving v Virginia apply to SSM cases as well.
 
Your Star said:
I'm pretty sure they will, there is already precedent for such a thing. Like Red brought up the arguments for Loving v Virginia apply to SSM cases as well.
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Some do, but it is not a clean sweep. The questions is going to be, at least in part, what level of scrutiny this discimination should be subject to. It is not race based so that comparison is out.
 
Your Star said:
No, Shirley Temples for the guys, and shots of Jack for the ladies ;)
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See? What we always suspected, you're trying to make girls out of us. ;)
 
ttwtt78640 said:
How do you square that logic with ANY preference in law based on age, gender, race, ethnic group or difference in income level? To assert that I MAY change my income level, does not deny that it is what it is today. The same applies to age, which seems to be X for law/right A, Y for law/right B and Z for law/right C. How can "separate but equal" laws apply to gender, yet not for race as both are immutable. In many cases we must accept that equivalent (similar) is as close to equal (same) as we may choose to get.
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Your post is not clearly thought out. On one hand, you bring race into the mix, but the Constitution, as well as the Declaration of Independence, clearly state that we ALL are born with INALIENABLE rights. The Government has no right whatsoever to pick and choose who gets them and who does not.
 
Redress said:
Some do, but it is not a clean sweep. The questions is going to be, at least in part, what level of scrutiny this discimination should be subject to. It is not race based so that comparison is out.
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I would assume gender, since it applies.
 
Redress said:
Some do, but it is not a clean sweep. The questions is going to be, at least in part, what level of scrutiny this discimination should be subject to. It is not race based so that comparison is out.
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Correct, which is why I've said throughout this thread that arguing on the basis of discriminating against homosexuality is the weaker way to go, because unlike race or sex, homosexuality is NOT a suspect class, and strict scrutiny does not apply.

It also shoots the applicability of Loving in the foot. This is the ruling from Loving:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival . . .To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
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The "supportability" test as outlined here is on far more solid ground if it's about sex-based discrimination; not so much about discrimination against homosexuality, because you have to, as I said earlier, make the argument that sexuality and romantic love are part and parcel of marriage. Among other things.
 
Redress said:
A black person could not marry a white person, just as a white person could not marry a black. No difference, yet the ruling was based on the 14th amenement. Do you even read about what you comment on?
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LOL Dude, really? What you said was exactly the same thing. A person that cannot marry another person based on the color of their skin is the same thing. If a black person marries a white person, it is the same thing as a white person marrying a black person. In other words, one of the two would be white and the other black. :)

Women and men of any color can still marry anyone of the opposite sex and of any color, however neither party can marry anyone of the same gender, regardless of their color. See the distinction, Redress? Again I ask you to point out the distinguishing characteristics that lead you to believe that there is gender discrimination going on here? However, you're not allowed to reference sexuality as sexuality is NOT a suspect class.

Begin..


Tim-0
 
Hicup said:
LOL Dude, really? What you said was exactly the same thing. A person that cannot marry another person based on the color of their skin is the same thing. If a black person marries a white person, it is the same thing as a white person marrying a black person. In other words, one of the two would be white and the other black. :)

Women and men of any color can still marry anyone of the opposite sex and of any color, however neither party can marry anyone of the same gender, regardless of their color. See the distinction, Redress? Again I ask you to point out the distinguishing characteristics that lead you to believe that there is gender discrimination going on here? However, you're not allowed to reference sexuality as sexuality is NOT a suspect class.

Begin..


Tim-0
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Reading comprehension is your friend, I suggest becoming better acquainted.
 
Harshaw said:
Correct, which is why I've said throughout this thread that arguing on the basis of discriminating against homosexuality is the weaker way to go, because unlike race or sex, homosexuality is NOT a suspect class, and strict scrutiny does not apply.
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Once again this has nothing to do with the DOMA ruling. Whether strict scrutiny applies is open to debate, but the rulings so far agree that it fails even under rational basis review.

It also shoots the applicability of Loving in the foot. This is the ruling from Loving:



The "supportability" test as outlined here is on far more solid ground if it's about sex-based discrimination; not so much about discrimination against homosexuality, because you have to, as I said earlier, make the argument that sexuality and romantic love are part and parcel of marriage. Among other things.
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That is not the part of Loving that will be referenced.
 
Redress said:
Once again this has nothing to do with the DOMA ruling.
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YourStar was talking about SSM rulings, not just DOMA, and you replied to her. I was also talking about SSM rulings and not just DOMA.


That is not the part of Loving that will be referenced.
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Which part will be "referenced"? That's the ruling.
 
Hicup said:
Um, no it works exactly that way. If two people, one black, and the other white, were not allowed to jaywalk, that is constitutional, however, if the black guy was and the white guy not, then that would be unconstitutional based on the 14th and due process. If two people, one a woman, and one a man, were allowed to marry one person of the opposite sex that would be constitutional, however, if only a man could marry a man, and a woman, and the woman only allowed to marry a man, then that would have distinguishable characteristics and manifestly unfair, and would violate the 14th Amendment.Tim-
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The language in the Perry v. Schwarzenegger case addressed restrictions on one's marriage partner. Judge Walker pointed out that in the past one could not choose a marriage partner of another race in many states. He suggested that one's being denied the chance to choose a marriage partner of the wrong [in this case same] gender is equally incompatible with the principle of due process. Whether one is dealing with race restrictions on one's marriage partner or gender restrictions, the restrictions are a violation of the due process clause. I believe that was his point and I suspect that it is Redress's point, too, when referencing gender discrimination. Of course, if I misunderstand her point, Redress can correct me.
 
Harshaw said:
Which part will be "referenced"? That's the ruling.
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That marriage is a fundamental right.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State
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Further, the references to the 14th amendment mean that it is applicable. No one is claiming that the cases are identical, but every case so far has referenced Loving v Virginia for a reason.
 
donsutherland1 said:
The language in the Perry v. Schwarzenegger case addressed restrictions on one's marriage partner. Judge Walker pointed out that in the past one could not choose a marriage partner of another race in many states. He suggested that one's being denied the chance to choose a marriage partner of the wrong [in this case same] gender is equally incompatible with the principle of due process. Whether one is dealing with race restrictions on one's marriage partner or gender restrictions, the restrictions are a violation of the due process clause. I believe that was his point and I suspect that it is Redress's point, too, when referencing gender discrimination. Of course, if I misunderstand her point, Redress can correct me.
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Yeah. Walker stated that California had eliminated all gender roles from marriage. Both partners are obligated exactly the same under California law. Therefore restricting the gender one can marry serves no purpose.
 
ttwtt78640 said:
So do title 9 (separte but equal?), different age limits for taxation, voting, drinking & 2nd amemdment rights and affirmative action (race based preference?) laws. A lot of unequal treatment exists in law yet has been held constituional.
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Jeezus @#@#$@# christ...for the upteenth time, folks: affirmative action is not "race" preference. It encompasses voluntary, systematic efforts to recruit, retain, and promote QUALIFIED candidates who are women, people of color, or both...and under no circumstance does AA mandate specifically hiring X # of women or people of color to a given position or with a particular employer. The only time such a requirement is imposed by law is AFTER a plaintiff or plaintiffs successfully carry an anti discrimination lawsuit against an employer (meaning the employer in question has been shown, in a court of law, to have engaged in racist or sexist discrimination in hiring and promotion of employees).

Affirmative action policies (here in the U.S.) are aimed disproportionately at alleviating discrimination against women and people of color because (on their respective axes of treatment), they are the ones actually subjected to sexist and racist discrimination. In a dramatically different political context, the already-existent affirmative action policies in place would apply just as well to "white" people and to men, if (by some profound shift) people in either group found themselves the routine targets of discrimination.

Facts matter.

As usual, practically all opposition to AA boils down to one or more of the following:

  • willful ignorance: holding on to a grossly incorrect (mis)understanding of AA despite ready access to corrective information (this is, by far, the most common basis of opposition);
  • opposition to substantive equality: what the antiracist scholar Eduardo Bonilla-Silva identifies as "abstract liberalism," in which rhetorical support for equal rights and equal treatment under the law is voiced, but any attempts to actually implement policies based upon achieving equal rights and treatment is opposed;
  • plain opposition to political and legal equality: a relative handful of people both accurately understand AA and yet still oppose it, because they oppose political and legal equality generally.
 
Harshaw said:
How is it not obvious?

There are some who insist the rulings have not been based on discrimination against homosexuality, but on sex-based discrimination against those who wish to marry the same gender.

I'm pointing out that they're wrong.

Do you disagree?
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Why cant it be discrimination on both sex and homosexuality?
 
Redress said:
That marriage is a fundamental right.
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No one argues it isn't. It pretty much doesn't even matter; it's that race-based discrimination was found to be a "unsupportable" restriction of that right.

Which, of course, implies that there are or could be supportable restrictions. And of course, there ARE. Number and consanguinity to name two.

In other words, it's not enough just to say "marriage is a fundamental right." If that's all you need, then indeed, bans based on number and incest are just as invalid.

And when it comes to marriage, it's perfectly possible to look at gender as being a supportable restriction. It is not the same thing as a ban based on race, considering the subject matter.

These are all factors in the argument.


Further, the references to the 14th amendment mean that it is applicable. No one is claiming that the cases are identical, but every case so far has referenced Loving v Virginia for a reason.
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It doesn't mean they will ultimately prevail on their reasoning -- and they are, as I have said several times now, taking the weaker track.
 
donsutherland1 said:
The language in the Perry v. Schwarzenegger case addressed restrictions on one's marriage partner. Judge Walker pointed out that in the past one could not choose a marriage partner of another race in many states. He suggested that one's being denied the chance to choose a marriage partner of the wrong [in this case same] gender is equally incompatible with the principle of due process. Whether one is dealing with race restrictions on one's marriage partner or gender restrictions, the restrictions are a violation of the due process clause. I believe that was his point and I suspect that it is Redress's point, too, when referencing gender discrimination. Of course, if I misunderstand her point, Redress can correct me.
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I understood her point, however race notwithstanding, there are no distinguishing characteristics between men and women both being barred from marriage between either's same sex. In other words, both black men and white men, and black women, and white women are equally barred from marrying anyone of the same sex. In short, Walker took a perceived gender disrimination as tantamount to race discrimination. It is not the same because all races are barred from entering into same sex marriages. Black men, and white women can still procreate naturally, sharing both's biological identities with their offspring, and we can argue ad infinitum about the advantages of that course for society, however, the point I was essentially trying to make is that, people as a designation of their role in society have a right to direct said society if the state (the people) has no vested interest in denying the designation, UNLESS, there is a manifest inequity present.

I suppose the SCOTUS will ultimately decide, but the Supremes have already decided this point in 2006 as denying to hear the appeal based on "These claims simply did not present hard questions"..Recognizing that there is no inequity in law.


Tim-
 
Omgitsme said:
Why cant it be discrimination on both sex and homosexuality?
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"Why" doesn't matter; it's simply not what the rulings have been based on. They've been based on discrimination against homosexuality, not sex.

You can argue what they should be based on. You can argue what they could have been based on. But it doesn't change what they actually were based on.
 
Harshaw said:
No one argues it isn't. It pretty much doesn't even matter; it's that race-based discrimination was found to be a "unsupportable" restriction of that right.

Which, of course, implies that there are or could be supportable restrictions. And of course, there ARE. Number and consanguinity to name two.

In other words, it's not enough just to say "marriage is a fundamental right." If that's all you need, then indeed, bans based on number and incest are just as invalid.

And when it comes to marriage, it's perfectly possible to look at gender as being a supportable restriction. It is not the same thing as a ban based on race, considering the subject matter.

These are all factors in the argument.
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That is wrong in almost every way. Loving is about race based restrictions, so of course that is what is referenced. However, the 14th, which the ruled to be aplicable, covers more ground.

We have already covererd level of scrutiny. No one is claiming that just because it is a fundamental right it must be protected in every case.

The courts disagree with you that gender is a supportable restriction.

It doesn't mean they will ultimately prevail on their reasoning -- and they are, as I have said several times now, taking the weaker track.
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It is one track, and not neccessarily weaker. Those who have actual knowledge of the legal cases disgree with you. However, it is one of several areas that are part of the overal rulings.
 
Redress said:
That is wrong in almost every way. Loving is about race based restrictions, so of course that is what is referenced. However, the 14th, which the ruled to be aplicable, covers more ground.

We have already covererd level of scrutiny. No one is claiming that just because it is a fundamental right it must be protected in every case.
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It is wrong in no way. You certainly don't show how it's wrong here, and in fact, in the bolded part, you agree with me.


The courts disagree with you that gender is a supportable restriction.
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For most things, yes, but considering the very unique nature of marriage, which is unlike any other fundamental right, it very well could be. And I'll point out again -- no "ban" on SSM has been struck down on the basis of gender discrimination, and in fact, Perry v. Schwarz specifically declines to.


It is one track, and not neccessarily weaker.
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It is absolutely weaker, and I've already explained why.


Those who have actual knowledge of the legal cases disgree with you.
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Nice disguised insult, but I do have actual knowledge of the cases, and certainly, as I showed, better than yours.


However, it is one of several areas that are part of the overal rulings.
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It's not just "one area," it is the primary basis for the rulings.
 
danarhea said:
Your post is not clearly thought out. On one hand, you bring race into the mix, but the Constitution, as well as the Declaration of Independence, clearly state that we ALL are born with INALIENABLE rights. The Government has no right whatsoever to pick and choose who gets them and who does not.
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We are born with SOME rights others depend on attaining a certain age, income level, deciding to marry (or not), being of a specific race or gender. Is taxing a citizen under the voting age equal protection if they may not yet vote (or is it taxation wthout representation)? Is taxing my income at 25%, but another's at 10% equal? Is gving one free food benefits yet not another equal? Is taxing the married at a different rate than the single equal? Is giving gov't contract preference to a business based on the owner's race equal? Is having different physical standards based on gender/age equal? Is requiring equal sports positions made available based on gender legal, when no such racial quotas exist? Is allowing IN to require state issued photot IDs to vote, yet denying that in TX equal? Is setting different minimum pay scales for gov't contract work in each county equal?
 
cmakaioz said:
Jeezus @#@#$@# christ...for the upteenth time, folks: affirmative action is not "race" preference. It encompasses voluntary, systematic efforts to recruit, retain, and promote QUALIFIED candidates who are women, people of color, or both...and under no circumstance does AA mandate specifically hiring X # of women or people of color to a given position or with a particular employer. The only time such a requirement is imposed by law is AFTER a plaintiff or plaintiffs successfully carry an anti discrimination lawsuit against an employer (meaning the employer in question has been shown, in a court of law, to have engaged in racist or sexist discrimination in hiring and promotion of employees).

Affirmative action policies (here in the U.S.) are aimed disproportionately at alleviating discrimination against women and people of color because (on their respective axes of treatment), they are the ones actually subjected to sexist and racist discrimination. In a dramatically different political context, the already-existent affirmative action policies in place would apply just as well to "white" people and to men, if (by some profound shift) people in either group found themselves the routine targets of discrimination.

Facts matter.

As usual, practically all opposition to AA boils down to one or more of the following:

  • willful ignorance: holding on to a grossly incorrect (mis)understanding of AA despite ready access to corrective information (this is, by far, the most common basis of opposition);
  • opposition to substantive equality: what the antiracist scholar Eduardo Bonilla-Silva identifies as "abstract liberalism," in which rhetorical support for equal rights and equal treatment under the law is voiced, but any attempts to actually implement policies based upon achieving equal rights and treatment is opposed;
  • plain opposition to political and legal equality: a relative handful of people both accurately understand AA and yet still oppose it, because they oppose political and legal equality generally.
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Quite a load there. Whether noble or voluntary, if a state college allocates admission based not only on merit but uses a racial/ethnic preference then it CREARLY results in greater or equally qualified studends NOT getting accepted based on only being of the majority racial or ethnic group, that is NOT EQUAL PROTECTION. Just beacuse something is voluntary or seems right does not make it so UNLESS, as you said, there is a court order to do so. To assert that voluntary reverse discrimination is a price that morally (not by court order) "must be paid" ignores reality by attempting to fix 150 years of difference in 15, and using your argument to show 'qualified' has also caused the 'qualifications' to be drastically altered (usually simply reduced, but called "fair") to assure that a predetermined outcome (proportional representaion by race) will, in fact, occur.

You obviously don't care about the rest of the 'unequal' examples I gave, as they are also seen as "fair", just as having "separate but unequal" (fair?) physical standards for the EXACT same military position and pay for males and females. Sometimes we are now told the we must accept "fair" as being (morally equivalent to) "equal", even when truely not the case.
 
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