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Court won't force state to defend Prop. 8

No, you're simply pulling this out of thin air. The equal protection argument is very much about discrimination against homosexuality. Look, if we can't even agree on that, then it's pointless to continue. What you say doesn't even make any sense.

And again, you're saying I'm arguing that homosexual couples "can't be included," which isn't the argument and not at all what I was talking about.

If I am not grasping your point, it's because you are being rather nebulous here. You maintain that sexual attraction and sexuality are not requirements for marriage, yet I never said anything about what requirements are necessary for marriage. The issue is not about the requirements, anyway - this is something that you brought up, presumably to show why you are against gay marriage.

And I do need to point out that you claim here "The equal protection argument is very much about discrimination against homosexuality" as if i'm not getting it, when I specifically said "Actually, the argument is that they are discriminated against because of they are of the same gender". You'll notice that I address the issue of discrimination directly.


Dude. Get it through your head. I am not arguing that homosexuals should be excluded from marriage. Nothing I said equates to that, at all.

I'm explaining why the equal protection argument fails, which is only one argument, and I prefaced this by saying I found other arguments compelling. But you don't actually want to argue "equal protection" at all; you're arguing the whole gamut of gay marriage.

And the whole point, dude, is not that homosexual attraction doesn't matter to marriage, it's that sexual attraction of any kind -- homo, hetero, or bi -- isn't a necessary component to marriage at all. So, seriously, if you want to argue this, keep it together.

First of all, I never said anything about sexual attraction being a necessary component to marriage. So why are you even bringing that up? This is a discussion about gay marriage, and what legal basis exists as to why homosexual couples cannot be included.

The argument against prop 8 is that it violates the 14th Amendment, a strategy that the legal team used in federal court (and won). And they are pretty much dead on, as the wording is very specific. No citizen shall have their immunities or privileges abriged by the state without due process. If you wish to continue, THIS is what you need to argue. I would stop bringing up sexual attraction or sexuality as an uneccessary component of marriage as if it is some sort of defense that nullifies the 14th Amendment protection, because that makes zero sense, and certainly wouldn't hold up in a court of law. In addition, I already addressed your sexual attraction concern. If heterosexuals can get married without that component present, then it stands to reason that homosexuals can, too.
 
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If I am not grasping your point, it's because you are being rather nebulous here. You maintain that sexual attraction and sexuality are not requirements for marriage, yet I never said anything about what requirements are necessary for marriage. The issue is not about the requirements, anyway - this is something that you brought up, presumably to show why you are against gay marriage.

:roll: No. It's an anlysis of the equal protection argument. Not why I'm against -- or for -- anything. In order for there to BE an equal protection argument, there has be a class of individuals who are denied something on the basis of something about that class of individuals. In this case, the argument is that people are being discriminated against on the basis of sexuality.

And I do need to point out that you claim here "The equal protection argument is very much about discrimination against homosexuality" as if i'm not getting it, when I specifically said "Actually, the argument is that they are discriminated against because of they are of the same gender". You'll notice that I address the issue of discrimination directly.

What you're not getting is that you're wrong about what the argument is. The argument is, as I said, about discrimination against homosexuality.

But if you want to insist that it's NOT about homosexuality at all, and only about the basis of it being against the same gender, then you fully concede that there IS NO equal protection argument, because the law then applies to EVERYONE exactly the same. NO ONE can marry the same gender, regardless of ANYTHING. The law is fully equally-applied.


First of all, I never said anything about sexual attraction being a necessary component to marriage. So why are you even bringing that up?

Because in order to argue that something is being denied to someone, you have to define exactly what it is which is being denied, as well as the basis on which it's being denied. The only chance the equal protection argument has to succeed is if that which is being denied is based on something intrinsic about the individuals it's being denied to. In this case, the argument is that it's their sexuality.

But if sexuality isn't a necessary part of marriage, and it is not, then the equal protection argument fails.


This is a discussion about gay marriage, and what legal basis exists as to why homosexual couples cannot be included.

:roll: No. The conversation I'm having with YOU, very specifically, was an analysis of the equal protection argument. We're not discussing anything other than that.


The argument against prop 8 is that it violates the 14th Amendment, a strategy that the legal team used in federal court (and won). And they are pretty much dead on, as the wording is very specific. No citizen shall have their immunities or privileges abriged by the state without due process. If you wish to continue, THIS is what you need to argue.

:roll: This is what I have been arguing. I assumed you actually understood how an analysis of equal protection works.

I would stop bringing up sexual attraction or sexuality as an uneccessary component of marriage

In order for marriage laws to discriminate against homosexuality, which is what the argument says, then sexuality MUST be a necessary component of marriage in order for there to be an equal protection violation. Look, it's as simple as that. You cannot argue that homosexuals are discriminated against if homosexuality isn't a necessary component of the law. If I were you, I'd learn more about how to argue equal protection.


because that makes zero sense

It may make zero sense to you, but that certainly doesn't mean it makes zero sense.

and certainly wouldn't hold up in a court of law.

Except that it has.

In addition, I already addressed your sexual attraction concern. If heterosexuals can get married without that component present, then it stands to reason that homosexuals can, too.

You think you addressed it, but you're only making things worse for yourself by this.

You insisted above that the discrimination isn't about homosexuality, yet here you say it is.

The problem is, there must be a sexuality requirement for a valid marriage in order for this argument you just made to work. Otherwise, there's no basis on which to say homosexuality is discriminated against, because sexuality doesn't enter into it.

So, you're going to have to decide what you're actually arguing here. It can't be not about homosexuality and about homosexuality at the same time.
 
Harshaw, I understand you perfectly.

1. Walker ruled based on gender, and that law discriminates because men can't marry men, and woman can't marry women.
2. You say that no one can marry anyone of the same sex so equal protection is not in violation.
3. Sexuality is not a component of marriage legally, and that ones sexuality is not listed, nor is there any precedence stating sexuality as a necessary component of marriage.
4. Therefore ones homosexual/heterosexual orientation is not fundamental to marriage.

Your conclusion is to ask the question; So how are homosexuals being discriminated against?

Prop 8 changed the California constitution to amend the following words.

"marriage as between a man and a woman"

Walkers ruling states that this violates the Due process clause, and ultimately the 14th amendment which requires equal protection. He bases this on the fact that only a man and a woman can marry, and not a man, and a man, or a woman and a woman, and as a result excludes marriage to males that want to amrry males, and females that want to marry females.

Walker is technically correct, and this is where the discrimination comes in, according to Walker.


Tim-
 
Irrelevant, as minors are an example of legal emancipation.
Irrelevant - my statement that not every person is guaranteed every privilege offered by a state is sound.
 
Walkers ruling states that this violates the Due process clause, and ultimately the 14th amendment which requires equal protection. He bases this on the fact that only a man and a woman can marry, and not a man, and a man, or a woman and a woman, and as a result excludes marriage to males that want to amrry males, and females that want to marry females.

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.
 
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.


Tim-
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.


Tim-
 
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.
 
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.
 
Doesn't matter, the state has the burden of providing a rationale for excluding ANY group from the equal protection of the laws.

What "group" is "excluded" from equal protection of the law, and on what basis?
 
What "group" is "excluded" from equal protection of the law, and on what basis?
No one can marry a member of the same sex; everyone can marry a member of the opposite sex.
Thus, everyone is treated the same; no one is excluded.
 
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.
It was based on gender. Read his ruling. He uses the word quite a bit. ;) Particularly look at pages 113 - 114. The entire same SEX marriage issue is hinged on the sex of the people getting married. That is ALL that it is hinged on. People's sexual preferences, sexual orientation, etc are not even remotely of interest to the state. Only their sex. The decision that marriage currently discriminates against homosexual couples is based ENTIRELY on the sex of the people in the relationship. As was the judge's decision that it was discrimination and a violation of equal protection to keep said backwards bans in place.


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.
You can marry a woman. I can't. That is discrimination based on gender just as it was discrimination based on race when blacks could only marry blacks. Equal protection was violated then, and it's violated now. Just because blacks could marry blacks just as whites could marry whites didn't make the ban on interracial marriage any less of a violation of equal protection.
 
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No one can marry a member of the same sex; everyone can marry a member of the opposite sex.
Thus, everyone is treated the same; no one is excluded.

Except the Men/Men, and Women/Women marriages of course? They are currently excluded forms of marriage, which is a fundamental right. The fact that no one can marry anyone they want is immaterial to the equal protection clause. Men and woman can marry, men and men cannot, and that is legally discriminatory, and as such, the state needs to provide a compelling state interest in the exclusion.

Tim-
 
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Except the Men/Men, and Women/Women marriages of course?
All men and women are treated equally - there's no discrimination.

They are currently excluded forms of marriage, which is a fundamental right
Marriage is a privilige.
All exclusions and restrictions are equally applied to all people - and thus, equal protection is met.
 
No one can marry a member of the same sex; everyone can marry a member of the opposite sex.
Thus, everyone is treated the same; no one is excluded.

Your interpretation precludes the importance of preference in fairness.

For example, that Hitler enacted a genocidal campaign against the gypsies and homosexuals in addition to the Jews does not make his genocidal programs fairer because the groups involved would have preferred not to be recipients of the policy.

They are currently excluded forms of marriage, which is a fundamental right
Marriage is a privilige.
All exclusions and restrictions are equally applied to all people - and thus, equal protection is met.

Marriage is recognized as a right by the courts.

Entitlements pertaining to marriage aren't rights.
 
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All men and women are treated equally - there's no discrimination.


Marriage is a privilige.
All exclusions and restrictions are equally applied to all people - and thus, equal protection is met.

You appear to be completely oblivious to the argument, or even the concept of this particular claim to discrimination? I don't know of a more crystal clear way of articulating this ruling by Walker into anything clearer than what has been previously stated. If you can't see any discrimination (I suppose you really are not seeing it) here, then your argument would hold true. Your argument seems to hinge on the notion that there is no discrimination at all going on? I'm not sure why you're holding to this position? Clearly there is.


Tim-
 
It was based on gender. Read his ruling. He uses the word quite a bit. ;) Particularly look at pages 113 - 114. The entire same SEX marriage issue is hinged on the sex of the people getting married. That is ALL that it is hinged on. People's sexual preferences, sexual orientation, etc are not even remotely of interest to the state. Only their sex. The decision that marriage currently discriminates against homosexual couples is based ENTIRELY on the sex of the people in the relationship. As was the judge's decision that it was discrimination and a violation of equal protection to keep said backwards bans in place.

He mentioned an "era" of "gender inequality," but he didn't base his decision on it. He based it on discrimination against homosexuality, while calling that discrimination equivalent to discrimination based on sex. Not THE SAME AS, but "equivalent," from a legal perspective. And yes, to this point, it's a distinction which matters.

Having considered the evidence, the
relationship between sex and sexual orientation and the fact that
Proposition 8 eliminates a right only a gay man or a lesbian would
exercise, the court determines that plaintiffs’ equal protection
claim is based on sexual orientation
, but this claim is equivalent
to a claim of discrimination based on sex.



You can marry a woman. I can't.

I can't marry someone of the same sex, either. :shrug: At least not in my jurisdiction.


That is discrimination based on gender just as it was discrimination based on race when blacks could only marry blacks. Equal protection was violated then, and it's violated now. Just because blacks could marry blacks just as whites could marry whites didn't make the ban on interracial marriage any less of a violation of equal protection.

Because race was irrelevant to the defintion of marriage. Gender isn't, not as it's defined.

I find myself on the converse to Hicup, in that I actually agree that anyone should be able to form whatever social constructs and commitments they wish. But agreeing with that doesn't mean I have to buy every single argument for it, when an argument just doesn't hold water.

Nor does my view that a particular argument doesn't hold water mean that I don't think others do, nor does it mean that I think it disposes of the matter entirely. It doesn't. It's just one argument that doesn't hold water.
 
You appear to be completely oblivious to the argument, or even the concept of this particular claim to discrimination?
Yours is a silly assertion.

Everyone can marry the opposite sex. "Everyone" is an all-inclusive term.
No one can marry the same sex. "No one" is an all-inclusove term.
In both cases, everyone is treated equally, so there is no discrimination.

Can all women marry the opposite sex? Yes.
Can all men marry the opposite sex? Yes.
Thus, everyone is treated equally; there is no disctimination

Can any man marry the same sex? No.
Cany any woman marry the same sex? No.
Thus, everyone is treated equally; there is no discrimination.

If everyone is treated equally, as they are, then there is no discrimination, and there is no equal protection issue.
 
Because race was irrelevant to the defintion of marriage. Gender isn't, not as it's defined.

I find myself on the converse to Hicup, in that I actually agree that anyone should be able to form whatever social constructs and commitments they wish. But agreeing with that doesn't mean I have to buy every single argument for it, when an argument just doesn't hold water.

Nor does my view that a particular argument doesn't hold water mean that I don't think others do, nor does it mean that I think it disposes of the matter entirely. It doesn't. It's just one argument that doesn't hold water.

Definitions themselves can discriminate. European definitions of personhood in the 18th century could exclude non-Caucasians, for example. If a definition of marriage excludes non-heterosexuals, then it discriminates.

Not that I have an issue with that in the private sector. But to the extent that marriage is a mechanism of the state, the state cannot articiulate a discriminating definition.

Yours is a silly assertion.

Everyone can marry the opposite sex. "Everyone" is an all-inclusive term.
No one can marry the same sex. "No one" is an all-inclusove term.
In both cases, everyone is treated equally, so there is no discrimination.

Can all women marry the opposite sex? Yes.
Can all men marry the opposite sex? Yes.
Thus, everyone is treated equally; there is no disctimination

Can any man marry the same sex? No.
Cany any woman marry the same sex? No.
Thus, everyone is treated equally; there is no discrimination.

If everyone is treated equally, as they are, then there is no discrimination, and there is no equal protection issue.

What's silly is ignoring the function of preference in fairness, or that the courts decided marriage was a right. Your examples are at cross-purposes with the objection against your argument.
 
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