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11 States Ban Gay Marriage

this is a discussion within the NOLA Community Forum; 3. \"Wedge issue that was so tangential that it shouldn\'t even be seriously considered.\" No question it\'s a wedge issue, but that does not make it irrelevant. Pragmatically, yes, there may be more important (immediate) concerns. However, I\'m not sure ...

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Old 11-04-2004, 12:55 AM   #11
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11 States Ban Gay Marriage

3. \"Wedge issue that was so tangential that it shouldn\'t even be seriously considered.\" No question it\'s a wedge issue, but that does not make it irrelevant. Pragmatically, yes, there may be more important (immediate) concerns. However, I\'m not sure there is a more fundamental current public issue that so strongly stands in contrast to the spirit of democracy.

Most importantly, no one has even come close to hinting at a good reason as to why any of the bans are a) a good idea, or b) legal. That\'s the most telling thing in this thread.
Who, it sounds like you\'re making a constitutional argument in favor of granting marital status to gay folks. If you\'re doing that, then we are talking about the federal system. If we\'re doing constitutional analysis, we are talking about equal protection. If you\'re going the equal protection route, then you\'re asking the courts to provide the solution.

My basic argument would be a separation of powers sort of thing.

1. Marriage is a state thing. The feds have never dealt with defining marriage. Yesterday, clear majorities of citizens voted to define marriage for heteros only. Seems to me that if a state wants to define marriage like that, they are well within their authority to do so.

2. It seems to me that the legislative solution is the way to go here. Give folks a chance to vote and then it\'s done.

3. But even if you sued on the basis that the amendments violate equal protection, I\'m not sure you win. I would bet heavily that the current court would either not hear such a case or rule that equal protection doesn\'t apply.
Equal protection has traditionally been applied to classifications based on race/national origin which are almost always ruled to be a violation of equal protection. However, the court has heard some cases on gender as a class, but the burden of proof is higher for the party claiming discrimination. Sexual orientation has never been ruled to be a class on its own.
I think the states could make an argument that they have a legitimate interest in defining marriage (for a variety of reason including administration, probate, divorce rules, keeping court dockets clear, uniformity, simplicity and even custom [a personal favorite of Scalia\'s]). States like Arkansas might have a problem because their amendment doesn\'t just define marriage as being between a man and a woman, but also as a stick to beat gay people with.
So if the court bought the idea that sexual orientation was it\'s own class, then they might strike down the parts of the amendment that encourage the discriminatory behavior.

4. But if the court struck down the discriminatory add-ons to the amendments, I doubt the court would re-write the amendments under some federal definition of marriage. Seperation of powers would preclude the court from laying out a federal rule for determining what marriage is. Another court might see it differently, but I\'m 70% sure that O\'Connor won\'t and she\'s the deciding vote even if the other 8 justices deadlocked (and I really don\'t think they would, I think you\'re more likely to get a 7-2 sort of ruling).

The bottom line is that states can amend their constitutions if they want to. People are entitled to vote on it however they want. The majority seems to be ruling and the minority had a chance to be heard. It may not be particularly enlightened, tolerant or generous, but it doesn\'t seem to be illegal.

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Old 11-04-2004, 09:55 AM   #12
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11 States Ban Gay Marriage

BMG - that\'s a great argument - ultimately wrong, but well put.

First, you are correct in saying that marriage has never been a federal issue, and that states should be allowed to determine the elements for a legal marriage within their borders. Of course, if those laws become arbitrary or discriminatory, a constitutional claim will arise. Like you said it becomes an equal protection case.

Now, you are incorrect in suggesting that Federal courts haven\'t heard cases that run the gamut on discrimination. No doubt, race and gender have been the largest categories, with age probably being third. Regardless, the overwhelming opinion is that \"conditions of birth\" absolutely cannot be used as a factor in determining legal right, employment, school acceptance, etc. Likewise, many other \"arbitrary\" measures are being recognized by the courts. We certainly know right now that you could not fire an employee of your company based on the fact that he was gay.

These bans are vulnerable for a variety of reasons. First, if gay rights activists can work to define homosexuality as a \"condition of birth\" that does not include a person choosing to be gay, then these laws can easily be seen as expressly discriminatory. In regard to gays as a class, there is no question that courts haved adopted them as such.

Secondly, there is the issue of consistency - something courts and legislatures strive to create. Even though these laws are affirmative (marriage between a man and a woman rather than gays cannot be marriaged) the effect of the statutes are clearly identical. So what happens when a court says that you cannot be afforded equal protection under law in one instance (marriage), and an employer fires a gay b/c he is gay? Obviously the court will be put in a position where it can either accept the right of the employer to make arbitrary and discriminatory personnel decisions, or create an inconsistent application of the law.

In both cases, the right in question is a right of entitlement. Most states do not conform to the \"right to work\" doctrine, but effectively recognize the same thing. You are an at-will employee who generally can be fired for any reason not related to arbitrary and meritless means. Sexuality is one of those. If you accept this as true, then it stands to reason that a state can\'t reasonably suggest that they will protect a gay\'s entitlement right to be protected from discriminatory conduct based on sexuality in employment law, but not in other areas.

Your final paragraph tells it all. This is why I believe that this issue is more important that a \"wedge issue\" in a political campaign, even though I recognize it as such. The brilliance of American democracy, the thing that our founding fathers did that was so revolutionary, was to add two little words that make all the difference in the world. You said that the majority has spoken, and within a state, they should have the right to define what is morally acceptible. True, the minority rules... but the beauty of our system is that the minority has rights. It\'s hard to argue that the minority\'s rights aren\'t being limited here.

There\'s no doubt that such reductions in legal rights has been allowed previously in our country\'s history on many occassions. Of course, that tends to be the case only when an overwhelming effect on the \"public good\" can be shown, and even then rights tend not to be totally eliminated. For example, your right to \"bear arms\" is probably limited right now. You may not be able to carry a concealed weapon or own an automatic assault riffle. The argument is easy - allowing these situations carries an undeniable risk to the public that is not counter-balanced by any positive uses of automatic weapons, for example. What is the risk to the public being alleviated by banning gay marriage? Dissolution of the family unit? Please. In that case we should all ban divorce, especially in cases where children are involved. Or why not suggest that marriages dissolve b/c people enter into them prematurely? Why not set an age limit or \"courting period\" which people would have to fulfill before getting married?

The bottom line is undeniable. Religion is being allowed to determine civil liberties. Regardless of the scale or general acceptance, that stands in stark contrast to the one thing that makes our system of government the greatest in the world.



BnB - I\'m glad to see you have \"liberal\" views. I wasn\'t really calling you out personally, but if you\'re so liberal then it stands to reason that your neighbors are hicks! LOL

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Old 11-04-2004, 03:19 PM   #13
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11 States Ban Gay Marriage

Oh, I\'m very liberal, but I still voted for Bush. What does that tell you?
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Old 11-04-2004, 04:52 PM   #14
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Now, you are incorrect in suggesting that Federal courts haven\'t heard cases that run the gamut on discrimination. Regardless, the overwhelming opinion is that \"conditions of birth\" absolutely cannot be used as a factor in determining legal right, employment, school acceptance, etc. We certainly know right now that you could not fire an employee of your company based on the fact that he was gay.
Actually, I\'m not.
Judicial review comes in 3 varieties for discriminatory actions by the state.
Strict Scrutiny requires a compelling government interest that is narrowly tailored to achieve that government interest. The state has to prove that discrimination is essential and almost always fails this level of review. Historically this level of review has only applied to racial discrimination.

Intermediate Scrutiny requires a legitimate government interest that is still narrowly tailored to achieve the government\'s goal. This level requires less from the state in order to uphold the law. The court has latitude to decide whether the discrimination is acceptable. This level was developed to deal with gender discrimination.

Rational Basis Review only requires the government to show that the law is a reasonable use of the government\'s police power. This is a really low hurdle for the government to have to meet and laws reviewed under rational basis are typically upheld.

Gay folks haven\'t ever been identified as a protected class that merits a higher standard of review. Not being able to fire someone for cause simply because they are gay is much different than suggesting that the state is seriously wrong in voting to decide that marriage is only between a man and a woman.

Your reasoning would also create a protected class out of Mormons. One might think that polygamy is also permitted under the constitution as a religious practice that the government cannot regulate. But the government does in fact discriminate against Mormons and polygamy is totally illegal as a matter of public policy under the government\'s police power. But the fact is that Mormons aren\'t a protected class that merits strict scrutiny review. Likewise, people born blind are often discriminated against, but they are not a protected class like race is. Or even better yet, there are tons of discriminatory actions on people who are color blind, but they aren\'t a protected class either. All the state has to show is a rational basis for the discriminating law.

True, the minority rules... but the beauty of our system is that the minority has rights. It\'s hard to argue that the minority\'s rights aren\'t being limited here.
The minority has a right to be heard, not limitless rights against rules as determined by the majority. Gay people have the rights to assembly, speech, press, lobbying and voting. If gay folks can get enough support for it, amend the state constitution again. State constitutions are usually really easy to amend. What you seem to be asking for is a judicial solution when a legislative solution is what is needed. Under historic equal protection law, the gay marriage thing doesn\'t have a leg to stand on.

The bottom line is undeniable. Religion is being allowed to determine civil liberties. Regardless of the scale or general acceptance, that stands in stark contrast to the one thing that makes our system of government the greatest in the world.
I would deny this.

I would agree with you that the Bush administration is heavily populated by theocrats and I would agree that the gay marriage thing was a political tool used to stir up fundamentalist Christians. I would even agree that the Christian crowd was behind the authoring and support of these amendments.

What I disagree with is your suggestion that it is illegal. It may be mean spirited, narrow minded, hateful, intolerant, bigoted, shallow, fearful or any number of other things, but it is perfectly legal.

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Old 11-05-2004, 09:50 AM   #15
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Another good argument - it\'s nice to have educated debate.

You are correct in how the courts \"weigh\" discrimination in terms of its permissibility. As you said, discrimination based on race is the most highly scrutinized (or may have the most narrow construction). An understanding of why that is the case illustrates why the marriage acts will probably fail under judicial review.

When considering any law or policy that uses a \"condition of birth\" as a factor, the courts weigh a number of factors, right? The discriminatory policy must be, as you said, narrowly constructed such that it only affects the single interest in question. The risk being protected against, or policy being propogated, must be overwhelmingly relevant for the public good. The costs to the minority \"class\" must be as minimal as possible, and the discriminatory element must be absolutely necessary for the policy. This might not be a perfect recitation of the balancing test used by the courts, but can we agree that it is close? If so, it is not hard to see why a State can limit a minor\'s or elderly person\'s rights, or make certain, though few, determinations based on gender. However, I cannot think of a single public policy law that has been allowed by basing rights on race. The reason is easy to see. Differences in age translate directly into physical and mental ability. Gender is also clear. However race is almost impossible to use as grounds for differences, b/c the reasons simply don\'t exist. In what context can you say a hispanic person is different that an asian BECAUSE of the difference in ethnicity?

Now, the same could be said for sexual orientation, could it not? There is no question that sexual orientation has been identified as an arbitrary factor and gays defined as a class. Even legal dictionarys now include it. My Blacks dictionary does, as does law.com -

discrimination
n. unequal treatment of persons, for a reason which has nothing to do with legal rights or ability. Federal and state laws prohibit discrimination in employment, availability of housing, rates of pay, right to promotion, educational opportunity, civil rights, and use of facilities based on race, nationality, creed, color, age, sex or sexual orientation. The rights to protest discrimination or enforce one\'s rights to equal treatment are provided in various federal and state laws, which allow for private lawsuits with the right to damages. There are also federal and state commissions to investigate and enforce equal rights.
See also: civilrights

If you have access to West or Lexis I\'m sure you can find a few thousand cases that define gays as a \"class.\"

So, using the types of balancing test that we agree the courts use, and the level of scrutiny that is likely to be attributed, I have a hard time believing these laws will be upheld. What overwhelming public interest is being served? Do the benefits of these laws to society so outweigh the loss of civil liberties (something the courts view as so valuable that even a nominal violation can result in punitive damages) that the court would be compelled to uphold? I think probably not, especially if you\'re gay (which is the perspective the court must take).

The argument that States have always been able to make their own marriage laws is not compelling. The courts weigh more than history and precedent in civil rights cases. \"Separate but equal\" was entirely legal, though the Supreme Court rightly found that in practice, separate is inherently unequal. That the law is affirmative, or that it conforms with other similar laws made in the past, is not relevant where the law invades any person\'s civil rights, no matter how small the class to which he belongs. When a gay person challenges one of these laws, there will be no question as to whether the distinction between those with rights and those without them will simply be a question of sexual orientation. Once that is established, the question will be easy: is this distinction necessary to support an important public policy goal that could not be avoided without the discriminatory element? Can you make an argument for that? I certainly can\'t.

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Old 11-05-2004, 02:51 PM   #16
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11 States Ban Gay Marriage

When considering any law or policy that uses a \"condition of birth\" as a factor, the courts weigh a number of factors, right?
This is really key to your argument, but there is no firm consensus that being gay is a condition of birth.

By treating it as a condition of birth, the court has to make BOTH a legal and scientific determination. It again seems to me that the best solution here is legislative. Legislatures can hold hearings, consult experts, introduce studies and other evidence. The supreme court may only consider the record of the trial down below. When talking about a scientific determination, the record is at best limited and at worst makes the question for the court, \"well what do we personally believe about homosexuality? Are people born gay or are they not?\"

If I were on the court, I wouldn\'t want to rule on such a complex subject simply based on the record from below. The justices aren\'t biologists, psychologists or scientists, they are lawyers and I wouldn\'t like the idea of lawyers making such a pivotal determination. The court will have to assume what the fact is and then make law based on that presumed fact.

Now you\'ve referenced Brown v Board of Education as an example of what the court can do. Brown is the good one, the example that should have happened. Now while everyone (at least publicly) will say that Brown was the right thing to do, other examples such as Roe v Wade, Dred Scott, or Bush v Gore look like arbitrary decisions forced on the country with no recourse or appeal. I still think that legislation is the best way to address it, then there is at least the hope of consensus.

In terms of Realpolitik, there is no way this happens in this country in the foreseeable future, so judicial fiat is the only way gay folks have to try and get \"married\". So I understand it, but I don\'t think the majority will like it. And if nothing else, the court is highly concerned with its reputation and prestige. The prospect of being hammered by Rush Limbaugh and his odious ilk 3 hours a day every day can\'t help the court do it\'s job.

So, using the types of balancing test that we agree the courts use, and the level of scrutiny that is likely to be attributed, I have a hard time believing these laws will be upheld. What overwhelming public interest is being served? Do the benefits of these laws to society so outweigh the loss of civil liberties (something the courts view as so valuable that even a nominal violation can result in punitive damages) that the court would be compelled to uphold? I think probably not, especially if you\'re gay (which is the perspective the court must take).
I\'m not sure that permitting gays to marry is a civil liberty. It doesn\'t seem to be a federal one. It wasn\'t long ago that sodomy was a still a crime (albeit mostly unprosecuted). There just isn\'t must cultural, social or historical support for permitting the marriage to 2 folks of the same sex. Again this requires the court to rule on what our culture should be like and not what our law is.

When a gay person challenges one of these laws, there will be no question as to whether the distinction between those with rights and those without them will simply be a question of sexual orientation. Once that is established, the question will be easy: is this distinction necessary to support an important public policy goal that could not be avoided without the discriminatory element? Can you make an argument for that? I certainly can\'t.
I\'m not convinced that marriage is a federal civil right. Maybe the public policy is that states should be able to determine how legal marriage should work? A lot of states already have rules about how related you can be in order to marry. Is there an equal protection violation for 1st cousins in Mississippi to be prohibited from marriage? Is there a civil rights violation for those states requiring a blood test before granting a marriage liscense? Banning the number of spouses you can have at once seems to be OK constitutionally. Defining marriage seems to be a regular part of the government\'s police power and a reasonable thing for the state to do. I\'m not sure that in and of itself, regulating marriage is oppressing the civil rights of people.

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Old 11-05-2004, 03:42 PM   #17
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11 States Ban Gay Marriage

Man, if only our football discussions were this good.

You bring up some excellent points, though I interpret the precedents somewhat differently. Neither of us can know who will utlimately be right until these actions come to bear. Unfortunately, it appears that G. W. will likely make the challenge a more difficult one with his judicial appointments.

I agree that sexual orientation being defined as a \"condition of birth\" is an important determinent, though not decisive. A finder of fact can show this, which makes the argument fundamentally more persuasive, but it isn\'t essential. I disagree that the court will have to rule as to how it feels about sexual orientation as a \"biological\" or \"psychologcal\" condition. That will be left most probably to a jury somewhere, as experts will most likely testify which obviously makes it a question of fact.

You are correct in suggesting that marriage is not a federally protected right, nor is it defined necessarily as a civil liberty. However, marriage does not have to be a civil liberty for a question of civil rights violations to exist. The Court found in Goldberg v. Kelley and solidified the concept in Matthews v. Eldridge that an entitlement right essentially amounts to property. While both of these cases were really concerned more primarily with questions of due process, both set an important precedent that has been extended and upheld. Generally, the idea is that denial of a right that a person had or otherwise should have equates to the denial of a property right. Entitlement is thus awarded some economic value.

It is valid to suggest that marriage is not a basic civil liberty. It is a contract right, and a state may extend those in a variety of ways. However, it may not deprive a person of property (entitlement right) based on discriminatory factors unless the balancing tests we discussed previously are fulfilled. We\'ve already discussed that banning a person from entering into certain contracts, i.e. employment, based on sexual orientation is deemed discrimination. Likewise, the courts already define sexual orientation as a factor upon which discriminatory decisions are often (groundlessly) based.

Thus all of the elements for an overturning are present in law, fact, and public policy. I agree that this should be decided via the legislature, but as you said, it will not be. I doubt that the US Supreme Court minds much of what Rush Limbaugh thinks of its decisions. I must concede that there are a variety of laws limiting the right to marry, many of which you have mentioned. I question whether those would be upheld if challenged today as well. Maybe, maybe not. I haven\'t really thought about it. I view those as hold-overs from an even more religiously fervent time that simply are accepted by society and go unchallenged. Maybe they are relevant and maybe they aren\'t. Either way, this discussion has been fun.

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Old 11-05-2004, 05:18 PM   #18
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The discussion has been fun.

I think, like most of the \"issues\" of the campaign, the gay marriage thing was just a wedge. It seems to me that mammoth budget and trade deficits have the capacity to destroy this nation without firing a shot far sooner than later.
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Old 11-06-2004, 02:43 PM   #19
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I think the thing you guys are forgetting about is the kids. I think the primary reason for the marriage amendment is to prevent gay couples from adopting children.
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Old 11-06-2004, 05:59 PM   #20
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You may be correct, many people may have voted to amend their State constitutions because they believe that it will stop gays from adopting children, or because that is what they want to happen.

Unfortunately for people who might hope to effectuate such a policy are going about it the wrong way. Those rules have nothing to do with the marriage laws. In may states gays are already barred from adopting either explicitly or pragmatically. In other states it is allowed.

The \"family protection\" argument, IMO, is a terrible one. There is absolutely nothing to show that gays are less capable of parenting or that children are negatively impacted. All due respect, and this isn\'t aimed at anyone, but the family argument is a pretty ignorant one not really founded on anything other than misconceptions and half-truths (if there is any truth beyond uninformed asumption).

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