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States and the power to discriminate based on sexual orientation

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Hatuey

Rule of Two
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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.
 
States and the people have the power to define marriage as a civil union between a man and a woman. Your question is biased because that is not discrimination, it is the free exercise of a state's given power to regulate society and the people's voice through the polls to define marriage. Now if a state actively prevents and refuses to recognize a civil union between same sex couples then yes that state discriminates.
 
States and the people have the power to define marriage as a civil union between a man and a woman.

#1. My question didn't ask whether states have the power to define marriage.
#2. My question asked whether the constitution gave them the power to discriminate based on sexual orientation.

Your question is biased because that is not discrimination, it is the free exercise of a state's given power to regulate society and the people's voice through the polls to define marriage.

Explicitly excluding a group out of certain benefits/rights/privileges through "free exercise of a states given powers to regulate society and the voice through the polls" and discrimination are not mutually exclusive terms. There is no bias.
 
The answer is yes, that is not an opinion but a fact. In fact under the constitution the states have to power to discriminate against any group. However there are several federal laws that create protected classes.

The question shouldnt be are states able to under the constitution because of course they are otherwise we wouldnt need all those protected class laws all the time. The poll question should have been, should sexual orientation be a protected class?
 
The answer is yes, that is not an opinion but a fact. In fact under the constitution the states have to power to discriminate against any group.

This is quite the interesting argument. Which specific amendment/article is it based on?

The question shouldnt be are states able to under the constitution because of course they are otherwise we wouldnt need all those protected class laws all the time. The poll question should have been, should sexual orientation be a protected class?

The question wasn't are states able to under the constitution, the question asks whether the constitution grants them the power to discriminate based on sexual orientation. There is a very big difference between what you stated and what I asked. Being able to under the constitution would implies that the constitution allows them to do so even if the wording isn't necessarily there. My question asks for a specific part of the constitution which gives states the power to discriminate based on sexual orientation.
 
This is quite the interesting argument. Which specific amendment/article is it based on?



The question wasn't are states able to under the constitution, the question asks whether the constitution grants them the power to discriminate based on sexual orientation. There is a very big difference between what you stated and what I asked. Being able to under the constitution would implies that the constitution allows them to do so even if the wording isn't necessarily there. My question asks for a specific part of the constitution which gives states the power to discriminate based on sexual orientation.

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 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.

I don't think that amendment was meant to provide a carte blanche for a majority to simply deny a minority a right/privilege/benefit through a vote.
 
I don't think that amendment was meant to provide a carte blanche for a majority to simply deny a minority a right/privilege/benefit through a vote.

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.
 
States and the people have the power to define marriage as a civil union between a man and a woman. Your question is biased because that is not discrimination, it is the free exercise of a state's given power to regulate society and the people's voice through the polls to define marriage. Now if a state actively prevents and refuses to recognize a civil union between same sex couples then yes that state discriminates.

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)
 
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.

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 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 !
 
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.
 
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.
 
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.
 
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?
 
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.
 
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?
 
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 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?
 
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?
 
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.
 
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?
 
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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.
 
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?
 
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!
 
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