Gay marriage and the law

In the Huckabee thread, Nemesis Juggernaut and Rrhain have been going back and forth on the implications of the Constitution and DOMA on gay marriage. Because a full discussion of this topic goes beyond the scope of the Huckabee thread, I thought I'd start this one.The purpose of this thread is to discuss the legal issues around gay marriage, not moral or religious, except as those things impact the legal questions. I don't mind if some discussion of the stance of various current candidates creeps in, but let's not make that the focus, okay kiddies?The Equal Protection Clause of the 14th Amendment provides in part, "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." In essence, this means that laws must apply equally to all persons. This language has been interpreted many times by the Supreme Court in many different contexts. To briefly summarize, the Court has developed three different tests depending on the type of classification a challenged law contains.The Court will use what is called strict scrutiny if a law is based on a suspect classification, such as race or national origin, or if it impinges on a fundamental Constitutional right. Under strict scrutiny, a law must be narrowly tailored to meet a compelling state interest before it will be upheld. In addition, it must be the least restrictive means to achieve the end.The Court will use what is called intermediate scrutiny when examining a law that classifies on the basis of gender. Where a law relies on a gender classification, it must be substantially related to an important state interest.The lowest level of scrutiny under the Equal Protection Clause is called rational basis. Under this test, the law must be reasonably related to a legitimate state interest. The rational basis test is used for any classification in law that does not fall under strict scrutiny or intermediate scrutiny.Any state action that treats one group of people differently from another is potentially subject to review by the courts to make sure that it does not run afoul of the Equal Protection Clause.The question then becomes whether laws prohibiting homosexuals from marrying are a violation of the Equal Protection Clause.The first question is what level of scrutiny should a court apply in analyzing these laws. There is an argument that strict scrutiny must apply, because the laws impinge on a fundamental Constitutional right, the right to marry.That marriage is a fundamental right was established by the Court at least 40 years ago in the case of Loving v. Virginia, 388 U.S. 1 (1967), wherein Mr. Chief Justice Warren, writing for a unanimous court, said

quote:

---

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

​

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

---

388 U.S. at 12.Since marriage is a fundamental right under the Constitution, any law that infringes upon it must be narrowly tailored to serve a compelling state interest, and it must be the least restrictive means to achieve the compelling interest.Here is where my analysis begins to break down, because those who advocate bans on gay marriage are seldom particularly clear about what state interest the ban is intended to serve. There is frequently talk about "protecting traditional marriage." I suspect that a court would have no trouble finding that protecting marriage is a compelling state interest. But I have yet to hear anyone describe in what way allowing gays to marry will harm or even change in any way anyone else's marriage. Absent a showing that gay marriage presents a threat to marriage, I can't imagine how it could be described as narrowly tailored to serve that end, or be the least restrictive means to achieve it.When pressed, some people will frankly admit that gay marriage is against god's law. I hope it doesn't take much discussion to make it plain that enforcing a particular vision of god's law on the rest of the populace is not a compelling state interest.If anyone else cares to advance what they think is a compelling state interest that is served in banning gay marriage, I'd be delighted to discuss it. In fact, I'd be overjoyed. In all the years I've been discussing this, and in all the places, I've yet to come across anyone who advanced any kind of legitimate reason for banning gay marriage.Arguably, one could distinguish the holding that marriage is a fundamental right based on the language talking about the importance of marriage being "fundamental to our very existence and survival." (Please note carefully, I don't agree with this distinction, but I recognize that the argument is there. What follows is an alternate analysis.) If the case is not decided under strict scrutiny, the next level of analysis is intermediate basis. The argument to apply this level of scrutiny is that laws banning gay marriage are not gender neutral. It makes the question of whether two people can marry one another turn on their gender. (The objection to this reasoning is that gay marriage bans are gender neutral, they apply equally to men and women. A version of this argument, based instead on race, was considered and rejected by the Court in Loving.)Under intermediate scrutiny, the question becomes whether the ban is substantially related to an important governmental interest. Once again, the analysis at this point depends on the governmental interest advocated. Again assuming that the interest is protecting marriage, that would likely be considered an important interest. But we still run into the problem of articulating exactly how a gay marriage ban serves that interest in any way.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

Quite so. And I anticipated that argument and responded to it with this bit from the OP: Emphasis mine.Not that I'm trying to come to the defense of Alabama, but that's not correct, at least according to the article.

quote:

---

A statute banning interracial marriage in the state was struck down only four years ago by 59% to 41%, with a majority of whites voting against the change.

---

That seems to be the same link twice. I'll look later when I have the time. Yes, well, even assuming that there's a compelling governmental interest there, prohibiting all gays from marrying is hardly the least restrictive means to achieving it.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

In a nutshell, your whole position is based on the idea that society and societal "institutions" need to be protected from choices that individuals may make that might be harmful to society. My position is that the individual is much more in need of protection from society than the other way around. Society can take care of itself. The mob has always presented more dangers to the individual than has the individual to the mob. And, at bottom, that what society is, a mob. It tries to impose its will against the individual without regard for the wishes or well-being of the individual. Slavery, racism, sexism, religious persecution, fascism, communism; each of these societal institutions is based on the idea that what's best for society is best instead of what's best for the individual. Denying homosexuals the right to marry is simply more of the same.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

For those of you here who began posting without reading the OP, let me quote this little excerpt: The purpose of this thread is to discuss the legal issues around gay marriage, not moral or religious, except as those things impact the legal questions.Now, with that little reminder in mind.... Whether they should be "the defining principle to look up to" isn't the question. The question is what should the law say. The law shouldn't be about what I think is good for everyone else, or what you think is good for everyone else, or what anyone else thinks is good for everyone else. It should be about everyone making their own decision about what's good for themselves.The purpose of the law shouldn't be to mold free individuals into your (or anyone else's) icon of what a good person should be. It should be to protect people and their property from harm by others. This means that others will make personal choices for themselves that you disagree with. Tough shit, bucko. That's the price you pay to live in a free country. If you don't like it, get the fuck out, and take all your blue-nosed, tight-assed, anal retentive, brain-damaged friends with you. I understand that there are some really nice places in the Middle East where they think it's a good idea to write morality into the law.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

You're going to have to provide some reasoning to support that argument, because it certainly isn't self-apparent to me. What's more, it's inconsistent with Supreme Court caselaw that's the basis for Fourteenth Amendment jurisprudence.In 1937, the Court wrote an opinion in a case called United States v. Carolene Products Company, 304 U.S. 144 (1938). That case contains what is probably the most famous footnote in law. The case concerned a federal law regulating milk. The defendant challenged the law under both the Commerce Clause and due process.In deciding against the defendant, the Court used what amounted to the rational basis test and concluded that the regulation served a legitimate governmental purpose and was rationally related to that purpose.During the discussion, Mr. Justice Harlan described situations where a heightened level of scrutiny might be appropriate. In footnote 4, the Court said

quote:

---

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. ...

​

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, ... on restraints upon the dissemination of information, ... on interferences with political organizations, ... as to prohibition of peaceable assembly, ....

​

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, ... or national, ... or racial minorities, ...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.....

---

Emphasis mine, citations omitted.Now, you of course may declare for your own purposes that "'Gay' is not a label that defines a group of people like the races do." However, I think you'd be hard pressed to make a convincing argument that gays are not a "discrete and insular minorit[y]" that suffers from a reduced access to the political process as a result of prejudice. As such, it would be more than appropriate for the Court to use some heightened level of scrutiny when examining laws that treat them differently from everyone else. And it buggers the imagination to say that gays are treated equally when heterosexual couples who fall in love can get married but homosexual couples can't.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

Well, inasmuch as such a move would treat all persons the same, I can't imagine that there would be any kind of Equal Protection problem with that at all.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

"We need to keep men from marrying men to protect the traditional marriage."
"We need to keep blacks from marrying whites to protect the traditional marriage.""It's against god's law for men to marry men. He created the sexes different for a reason"
"It's against god's law for blacks to marry whites. He created the races different for a reason.""No civilization in history has allowed men to marry men."
"No civilization in history has allowed black to marry whites.""Marriage is an institution for raising children, and gays can't do that."
"Children born of mixed race couples are inferior.""It's immoral."
"It dilutes the purity of the race."The list goes on and on....

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

Right, you "pointed that out." Then I quoted the actual language of the U.S. Code, which didn't say anything of the sort. DOMA didn't "prohibit" gay marriage. It says that the U.S. government won't recognize it for purposes of federal law and that one state doesn't have to recognize another state's gay marriage. It never prohibits any state from recognizing it. Furthermore, it doesn't prevent the Supreme Court from engaging in the kind of Fourteenth Amendment analysis that I did at the top of this thread. In fact, Congress can't prohibit the Court from doing that. The Constitution says so. You oughta read it some time. It's really neat. You are a blithering idiot!I got news for you, sweetheart, for the most part gays couldn't care less what you think about them. All they are asking for is the right to marry. They aren't trying to impose anything on you. They're just asking for the same rights as you. Now you are either a blithering idiot or a liar!Cite any law in the U.S. that calls homosexuality an abomination. And it must be a law in the U.S., since U.S. law is the topic of this thread.As long as I'm bitch-slapping you, I'll take up a few points you mention in another post. Well, lookie here, a smattering of honesty from the mighty christian. At last, you've told us what you're really trying to prevent. Let's see how that fits in with the Fourteenth Amendment analysis that is the focus of this thread.Hmmmm, I'm at least 100% certain that no court in this country would find that preventing a "perversion of the natural order of god's law" is even a legitimate state interest, much less compelling. Nobody is asking you to exonerate anything, mate. This thread is about what the law should allow. Despite your gargantuan ego, I guarantee that your opinion on the matter is irrelevant. It's a legal question, not a moral one, that we're debating on this thread. Whoa, look at that! Why, it's something relevant to this thread, despite your best efforts to remain off topic. It's actually quite plausible that a court might find promoting stable families as either a compelling or an important state interest. So, let's see whether banning gay marriage would advance that interest in any way.Well, we know that the American Academy of Pediatrics thinks it's actually bad for kids if gay marriage isn't legalized. They said so right here. You got any actual facts to support your filthy prejudice? Wow, something else you said that's accidentally on topic. In this quote, you're recognizing that gays are in fact exactly the kind of discrete and insular minority that the Court was talking about in the Carolene Products footnote that I quoted upthread, thus demonstrating the appropriateness of heightened judicial scrutiny of laws that discriminate against them.It's rather funny, actually. Every time you open your mouth, you make the case for legal recognition of gay marriage under the Fourteenth Amendment stronger and stronger. You might be the best friend that a gay marriage advocate ever had!

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

Here's an idea. Address the topic of this thread, in particular, the Fourteenth Amendment. The mere fact that the law says something doesn't mean the law is right. My analysis says it's wrong. So far, you've managed to ignore that in every single post in this thread.Give it a go. It won't hurt, I promise.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

The only effect it will have on other laws is that gay couples will be included. That's not really very hard to cope with.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

Because I'm a lawyer and I've looked into it.What makes you think otherwise?

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

When was homosexuality ever illegal?

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

quote:

---

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

​

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." Title 28: Chapter 115 1738C of the United States Code

---

Well, Binky, you did get one thing right, it is plain English, which makes it all the more baffling that you can't read and understand it. Here, let me focus on one little bit.

quote:

---

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect

---

Reading comprehension much?It doesn't say no state shall recognize gay marriage. It says no state shall be required to recognize another state's gay marriage.If you still don't understand, return to 3rd grade because you can't read. Probably, but fooling you is no great accomplishment. You fool yourself without even knowing it. Well, gotta give you credit for at least admitting once that you lied. Now either tell me when homosexuality has been illegal or admit you lied there, too. You think I'm getting the Fourteenth Amendment wrong? Fine. Prove it. Provide an analysis, supported by relevant precedent. It doesn't mean anything I want it to. This is what the Supreme Court says it means.As far as explaining why it fits, that's what I've been doing this entire thread. If you can't get it, don't blame me. Sue the schools that didn't teach you how to read and understand.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

This has been answered so many times that I'm quite sure I'm wasting my time by doing so again, but what the hell. One is consensual, the others are not.But there's another issue as well with your repetition ad nauseum of your list of irrelvencies. The question isn't whether homosexuality is a fundamental right. The question is whether marriage is. Fine. Think that. Who cares? Take it up with your fairy tale grandfatherly god. Is has nothing, I repeat, NOTHING to do with the laws of the U.S., which to remind you for the umpteenth time is the topic here. And in the post I'm replying to here, you ignore it yet again, other than to show that your understanding of it is so completely out of step with reality that you think one can "pass a whale through a net, or to smuggle an elephant in a suitcase" under it. Apparently I'm entitled to an opinion without fear of any kind of intelligent, meaningful, substantive response as well.Just to make it clear, yet again. In this thread, your personal opinions and your religious bigotry and your rants about other "sexual sins" are off topic. Talk about the law.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat

Cite one.

---

Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin FranklinWe see monsters where science shows us windmills. -- Phat