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Court won't force state to defend Prop. 8

CriticalThought said:
Oooook. I don't think you really understand how our Constitutional Republic works. In our system, the courts interpret the Constitution to determine what does and does not constitute a right that is protected by that Constitution. In the case of marriage, the Supreme Court determined it was a right because of the Due Process clause of the Constitution. In other words, the Supreme Court, as part of the state, recognized that marriage is a right protected by the Constitution.
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I'm sorry that you do not understand the fundamental difference between a right and a privilege granted by the state - but your lack of critical thought is on you, not me, and your appeal to authority does nothing to reduce my position.

The state can eliminate marriage as a legal institution simply my repealing the laws that created it. That, alone, proves that marriage is a privilege, not a right.
 
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danarhea said:
While many Constitutions are volumes in length, the US Constitution is short, and concise. This is because it takes a reverse approach to law, specifying what government is NOT allowed to do, instead of what it can do.
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Have you read Articles I-V, as well as Amendments 13-16, 18-19, 21, 23-24, and 26?
 
Goobieman said:
I'm sorry that you do not understand the fundamental difference between a right and a privilege granted by the state - but your lack of critical thought is on you, not me, and your appeal to authority does nothing to reduce my position.

The state can eliminate marriage as a legal institution simply my repealing the laws that created it. That, alone, proves that marriage is a privilege, not a right.
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Its irrelevant whether it is a "PRIVILEGE" or a "RIGHT". Equal Protection applies to both.
 
disneydude said:
Its irrelevant whether it is a "PRIVILEGE" or a "RIGHT". Equal Protection applies to both.
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It -is- relevant when someone asks you the question as to if it is a privilege or a right.

And, as we all know, not every person is entitlted to every privilege offered by a state.
 
Aside from the fact that no one's ever successfully articulated the specific thing that's being "unequally protected" about all this.
 
Singularity said:
If I were against gay marriage, I would do everything in my power to keep this from going to the Supreme Court, because it's pretty much a guarantee that Prop 8 would be struck down given the nature of this case. Literally, the 14th Amendment states:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".

There is no way to twist the meaning of that section. No state can enforce any law which abridges the privileges of U.S citizens, and since most gay marriage opponents believe marriage to be a privilege and not a right, then there you have it.

Seems pretty open and shut to me.
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There is more gray area in the equal protection clause and 14th Amendment than you think. If you would listen to opponents of Prop 8 you would think that all they have to do is want something and equal protection means they get it. One important issue is equivalency. Is being gay equivalent to being black? Do two women who want to get married have to prove they are actually gay? What is the test that proves it? Sexuality is a much more fluent trait than race. It is not equivalent to being male or female. Somebody has to rule on that point.
 
Singularity said:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".

There is no way to twist the meaning of that section. No state can enforce any law which abridges the privileges of U.S citizens...
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If this prohibition is absolute, as you suggest, explain why 15-yr olds cannot drive.
 
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Goobieman said:
Singularity said:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".

There is no way to twist the meaning of that section. No state can enforce any law which abridges the privileges of U.S citizens...
[/quotw]
If this prohibition is absolute, as you suggest, explain why 15-yr olds cannot drive.
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Because they are under 18 and can not vote.

26th Amendment.
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winston53660 said:
Because they are under 18 and can not vote.
26th Amendment.
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You clearly are not paying attention - never mind the fact that the 26th doesnt mean that 15 yr-olds cannot vote, nor explain why not letting them vote doesnt violate the 14th.
 
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Harshaw said:
Have you read Articles I-V, as well as Amendments 13-16, 18-19, 21, 23-24, and 26?
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Oops, I don't think you read what I posted.

You see, that's the beauty of the Constitution. While other Constitutions specify what government can do, the Bill of Rights specify what government CANNOT do.
<snip>
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As you can see, I was not talking about articles, or other amendments, but the Bill of Rights. Easy mistake for you to make though. I might have made the same mistake myself. No big deal. Actually, later in the post, I did mention the Constitution as a whole, so that's my bad, and not what I meant. Maybe I need to type slower, and think a little more, while posting. I am an old fart, too. Yea, that's the ticket. That's my excuse. :mrgreen:
 
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danarhea said:
Oops, I don't think you read what I posted.



As you can see, I was not talking about articles, or other amendments, but the Bill of Rights. Easy mistake for you to make though. I might have made the same mistake myself. No big deal. Actually, later in the post, I did mention the Constitution as a whole, so that's my bad, and not what I meant. Maybe I need to type slower, and think a little more, while posting. I am an old fart, too. Yea, that's the ticket. That's my excuse. :mrgreen:
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I did read it, but thank you for acknowleding the error instead of stonewalling on it. :peace
 
Goobieman said:
It -is- relevant when someone asks you the question as to if it is a privilege or a right.

And, as we all know, not every person is entitlted to every privilege offered by a state.
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But when a state extends rights/privileges, it must do so in a non-discriminatory practice or else the government must show either a legitimate/important/compelling state interest to justify the differential treatment.
 
disneydude said:
But when a state extends rights/privileges, it must do so in a non-discriminatory practice or else the government must show either a legitimate/important/compelling state interest to justify the differential treatment.
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And this reduces what I said... how?
 
Well, that is good news. Focusing on banning gay marriage in the first place was quite a waste of time, and it shows the immature mentality of a good deal of people in California when there are for more pressing issues to deal with. Allowing these cultural crusades that have no serious basis are circus side shows. The "ban advocates" really have nothing better to do with their time.
 
disneydude said:
Its irrelevant whether it is a "PRIVILEGE" or a "RIGHT". Equal Protection applies to both.
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Hehe. I thought you were a lawyer? Of course it matters.

CT - I did provide a pretty decent argument as to why I thought legally, that, the 14th Amendment challenge did not apply to Prop 8. It was very detailed I am NOT going to right it all out again. However, and the reason I made my comment earlier in this thread, is that the proponents of Prop 8 should have argued that marriage isn't a fundamental right, and if it were a "fundamental-right", it would only ever be a right of people within the state that have a presumptive, and intrinsic ability to procreate. If the state has no vested interest in procreation, then it has no business at all in marriage. Since it is in the marriage business, then it is incumbent on the state to protect this construct; in fact, even restrict it to those who possess the intrinsic ability to realize the benefits that their bonding would impart on the state.

Furthermore, the state contradicts itself with the right to contract in marriage when, and if the state ignores all portions of the contract should the happy couple divorce. If the state ignores the contract in its totality, then the contract isn't fundamental to the marriage.

And finally, Due Process was followed by the state of California. It did not violate the due process clause.

So to recap:

1. If marriage isn't a fundamental right, then there is no valid 14th challenge, and the states are free to regulate marriage as they see fit.
2. If it is a fundamental right, then the court should take the opportunity to properly, and once and for all articulate that marriage should only ever be fundamental to those that posses the intrinsic ability to procreate. A child has a right to know both of his or her parents. They have a right to both a mother, and a Father. Not a partner and another partner.
3. The marriage contract is a contract in every legal definition, yet the state in no fault divorce ignores the contract, therefore the right to contract in marriage is not fundamental to it.
4. Due process was followed.
5. Gender discrimination is akin to any legal definition of individual identity. They are the same in legal terms. It opens up the state to a whole host of marriages.


Tim-
 
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jambalaya said:
There is more gray area in the equal protection clause and 14th Amendment than you think. If you would listen to opponents of Prop 8 you would think that all they have to do is want something and equal protection means they get it. One important issue is equivalency. Is being gay equivalent to being black? Do two women who want to get married have to prove they are actually gay? What is the test that proves it? Sexuality is a much more fluent trait than race. It is not equivalent to being male or female. Somebody has to rule on that point.
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I've listened to the opponents of Prop 8, and I think both sides have some pretty strong feelings on the matter; however, we both would agree that whether you are for or against same sex marriage, mere opinion are not valid testimony in a court of law. You gotta back these kinda things up with research, expert witnesses, and all that jazz. Given the nature of this case, when the 14th Amendment is applied, equivalency is not limited to the homosexual/African American comparison, but includes everyone. Is being homosexual equivalent to being, say, Jewish, or Asian, or Kurdish, or any other ethnicity and race? According to the 14th Amendment, it is. Not because it mentions any of these specifically, but because it doesn't. The Amendment simply states that citizens may not have their immunities and privileges taken away without due process - not what type of citizen, but all of them.

But let's say that there is more 'grey area' in the 14th Amendment. Wouldn't that mean there is more grey area in other Amendments as well, say, for instance, the 2nd Amendment? Like the 14th, the wording is pretty specific and it would be hard to twist the meaning, but if we can do it to the 14th, who is to say that the 2nd wouldn't be next in line?

I think the most accurate interpretation of both would be to apply them literally here, and that's what this case was all about.
 
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Goobieman said:
If this prohibition is absolute, as you suggest, explain why 15-yr olds cannot drive.
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Well for one, anyone under the age of 18 is considered to be a minor (although this varies), and does not reach adulthood until that age from a legal standpoint. As a result, a minor gains privileges through emancipation, not because he is simply a citizen. Of course, if your argument is that the 14th Amendment should be applied to minors as well and legal emancipation done away with, then you must also agree that the adults in charge of said minor therefore have no further control over his/her actions.
 
Singularity said:
I've listened to the opponents of Prop 8, and I think both sides have some pretty strong feelings on the matter; however, we both would agree that whether you are for or against same sex marriage, mere opinion are not valid testimony in a court of law. You gotta back these kinda things up with research, expert witnesses, and all that jazz. Given the nature of this case, when the 14th Amendment is applied, equivalency is not limited to the homosexual/African American comparison, but includes everyone. Is being homosexual equivalent to being, say, Jewish, or Asian, or Kurdish, or any other ethnicity and race? According to the 14th Amendment, it is. Not because it mentions any of these specifically, but because it doesn't. The Amendment simply states that citizens may not have their immunities and privileges taken away - not what type of citizen, but all of them.

But let's say that there is more 'grey area' in the 14th Amendment. Wouldn't that mean there is more grey area in other Amendments as well, say, for instance, the 2nd Amendment? Like the 14th, the wording is pretty specific and it would be hard to twist the meaning, but if we can do it to the 14th, who is to say that the 2nd wouldn't be next in line?

I think the most accurate interpretation of both would be to apply them literally here, and that's what this case was all about.
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If you're going to try to be lawyerly and parse the issue thusly . . .

What, specifically, is the equal-protection argument here? As in, what is being denied one group that a another group has? Specifically?

'Coz while I think there are other compelling arguments in favor of same-sex marriage, "equal protection" arguments have always failed to impress me.
 
Hicup said:
Hehe. I thought you were a lawyer? Of course it matters.

CT - I did provide a pretty decent argument as to why I thought legally, that, the 14th Amendment challenge did not apply to Prop 8. It was very detailed I am NOT going to right it all out again. However, and the reason I made my comment earlier in this thread, is that the proponents of Prop 8 should have argued that marriage isn't a fundamental right, and if it were a "fundamental-right", it would only ever be a right of people within the state that have a presumptive, and intrinsic ability to procreate. If the state has no vested interest in procreation, then it has no business at all in marriage. Since it is in the marriage business, then it is incumbent on the state to protect this construct; in fact, even restrict it to those who possess the intrinsic ability to realize the benefits that their bonding would impart on the state.

Furthermore, the state contradicts itself with the right to contract in marriage when, and if the state ignores all portions of the contract should the happy couple divorce. If the state ignores the contract in its totality, then the contract isn't fundamental to the marriage.

And finally, Due Process was followed by the state of California. It did not violate the due process clause.

So to recap:

1. If marriage isn't a fundamental right, then there is no valid 14th challenge, and the states are free to regulate marriage as they see fit.
2. If it is a fundamental right, then the court should take the opportunity to properly, and once and for all articulate that marriage should only ever be fundamental to those that posses the intrinsic ability to procreate. A child has a right to know both of his or her parents. They have a right to both a mother, and a Father. Not a partner and another partner.
3. The marriage contract is a contract in every legal definition, yet the state in no fault divorce ignores the contract, therefore the right to contract in marriage is not fundamental to it.
4. Due process was followed.
5. Gender discrimination is akin to any legal definition of individual identity. They are the same in legal terms. It opens up the state to a whole host of marriages.


Tim-
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First off, they would need to overturn about 70 years of Supreme Court precedent which holds that marriage is a fundamental right.

Next, they would need to prove that the state has an interest in denying same sex couples the right to marriage on grounds of procreation but also has an interest in providing opposite sex couples who are infertile, too elderly to conceive, too ill to have children, or who simply choose not to have children the right to marry on those grounds.

Also, they need to demonstrate that interest is greater than the 80 findings of fact that Walker laid down that same sex marriage would be beneficial to the state of California.

Finally, they would need to demonstrate that California did pass the appropriate tier of scrutiny necessary for restricting a right along the lines of sex in order to demonstrate that they did not violate Due Process. You might want to look up the tiers of scrutiny if you don't understand the concept, which appears you might not since you are simply stationg that they did not violate Due Process, without actually providing any reasoning as to how they didn't.

I wish both you and them luck in that quest.
 
Harshaw said:
If you're going to try to be lawyerly and parse the issue thusly . . .

What, specifically, is the equal-protection argument here? As in, what is being denied one group that a another group has? Specifically?

'Coz while I think there are other compelling arguments in favor of same-sex marriage, "equal protection" arguments have always failed to impress me.
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Those arguments failed to impress me, too; that is, until I read this particular argument against prop 8. And you know what's being denied here - marriage. Of course, we can always go back to the argument that homosexuals can get married to someone of the opposite gender, which ignores the fact that homosexual couples don't want to break up their entirely normal relationships simply to include themselves in the so-called traditional definition of marriage, which is why they are seeking inclusion to begin with.
 
Singularity said:
Those arguments failed to impress me, too; that is, until I read this particular argument against prop 8. And you know what's being denied here - marriage. Of course, we can always go back to the argument that homosexuals can get married to someone of the opposite gender, which ignores the fact that homosexual couples don't want to break up their entirely normal relationships simply to include themselves in the so-called traditional definition of marriage, which is why they are seeking inclusion to begin with.
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It has to be more than the mere denial of marriage -- it has be based on some illegitimate factor, wherein one group can do something that another group can't. You're right -- straight men can no more marry other men than gay men can.

So, what exactly is being denied? Remember, we're talking about parsing this legally, not emotionally.
 
Harshaw said:
It has to be more than the mere denial of marriage -- it has be based on some illegitimate factor, wherein one group can do something that another group can't. You're right -- straight men can no more marry other men than gay men can.

So, what exactly is being denied? Remember, we're talking about parsing this legally, not emotionally.
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One group can do what another group cannot, yes? Legally, heterosexual couples can get married, whereas homosexual couples cannot. I'm not sure what, exactly, you are looking for when you mention parsing this legally not emotionally, because i'm not parsing any sentence, nor any clause, nor any Amendment to the Constitution emotionally.
 
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Hicup said:
1. If marriage isn't a fundamental right, then there is no valid 14th challenge, and the states are free to regulate marriage as they see fit.
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WRONG. You are completely wrong from the beginning of your analysis. Constitutional protections such as Equal protection apply to more than just fundamental rights.
There is a higher level of scrutiny applied by the Court when the right involved is a fundamental right. However, Constitutional guarantees apply to all rights/privileges extended by the state.
 
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