10% of states now allow gay marriage

[SeattleUte]

Originally Posted by MikeWaters

Marriage is not a right, when defined as a licensed relationship from the state, with certain attached conditions and incentives.

Two consenting individuals vowing fidelity and partnership together, as long as they do not curtail the rights of others--in my book that's a right (Scalia might not agree).

Actually I would increase the number to more than two. I think if people want to get together and have polyamory, as long as they are adults and able to consent, that's their business.

About laws on interracial marriage--the argument here concerns the 14th amendment and "equal protection of the laws." People capable of being married, that is of age and consent, ought to have equal protection. And what is marriage? It's the union between a man and a woman--it's been that way for a long time. A gay "marriage" is actually a reframing and changing of definitions. Hence, an argument here that a ban on interracial marriage is a violation of the 14th amendment, whereas limiting marriage to man and woman is not a violation of the 14th amendment, as Tex has pointed out many times, every gay man has the opportunity to marry a woman should he wish.

So the question, as I see it, is whether the definition of marriage should be changed. And that is a legislative question, with the premise being what is good for the state, as that is what I see as the current reason for having marriage.

Now, what would be REALLY fun is having strict common-law marriage laws. Wouldn't it be hilarious if many gay couples found themselves "conscripted" by the state into marriage. "You've been together as a couple for 7 years, sorry folks, you're now married." That is going to be a bonanza for the lawyers.

The question isn't whether "marriage is a right." The question is whether being gay is the kind of attribute that would place gays in an automatically suspect classification subjecting laws that require or permit the public sector to discriminate against them to strict scrutiny. If the Supreme Court were ever to decide the answer to this question is yes, the odds are high that it would decide discrimiation against them in terms of freedom to marry is unconstitutional based at least on the Equal Protection Clause. Immutability is probably the primary factor determining suspect classification, but not always conclusive. For example, gender lies somewhere between suspect classification and rational basis test, the test applied to government's discriminatory treatment of non-suspect classifications. Even if being gay is like gender, it's still hard to imagine a ratinale for the court concluding denying freedom to marry was not unconstitutional.

[Tex]

Originally Posted by SeattleUte

The question isn't whether "marriage is a right." The question is whether being gay is the kind of attribute that would place gays in an automatically suspect classification subjecting laws that require or permit the public sector to discriminate against them to strict scrutiny. If the Supreme Court were ever to decide the answer to this question is yes, the odds are high that it would decide discrimiation against them in terms of freedom to marry is unconstitutional based at least on the Equal Protection Clause. Immutability is probably the primary factor determining suspect classification, but not always conclusive. For example, gender lies somewhere between suspect classification and rational basis test, the test applied to government's discriminatory treatment of non-suspect classifications. Even if being gay is like gender, it's still hard to imagine a ratinale for the court concluding denying freedom to marry was not unconstitutional.

It's certainly being framed as a right, by both sides.

Personally I think this "suspect classification" is legalese-style nonsense. No gay person is barred from voting, from eating at a McDonald's, from owning a home, or hundreds of other things that Americans do every day. America has been guilty of real institutional discrimination against legitimate minorities in its past. It doesn't even come close to the so-called discrimination that gay people say they experience today.

[SeattleUte]

Originally Posted by Tex

It's certainly being framed as a right, by both sides.

Personally I think this "suspect classification" is legalese-style nonsense. No gay person is barred from voting, from eating at a McDonald's, from owning a home, or hundreds of other things that Americans do every day. America has been guilty of real institutional discrimination against legitimate minorities in its past. It doesn't even come close to the so-called discrimination that gay people say they experience today.

You don't know what you're talking about. Being barred or not from eating at McDonald's doesn't implicate the Constitution.

[SeattleUte]

Maybe Prop. 8 could be struck down on a rational basis analysis. Is there even a rational basis for it?

[Tex]

Originally Posted by SeattleUte

You don't know what you're talking about. Being barred or not from eating at McDonald's doesn't implicate the Constitution.

No? Keeping in mind that it was only a random example, educate me.

If McDonald's chose to bar blacks or women from its restaurants, I'm fairly confident it would be illegal. I'm not sure that it matters to me whether it's merely against a state or federal statute, or against the Constitution itself.

[SeattleUte]

Originally Posted by Tex

No? Keeping in mind that it was only a random example, educate me.

If McDonald's chose to bar blacks or women from its restaurants, I'm fairly confident it would be illegal. I'm not sure that it matters to me whether it's merely against a state or federal statute, or against the Constitution itself.

The Civil Rights Act doesn't extend to gays. There's no question about that. But the reason we need a Civil Rights Act is that the Bill of Rights doesn't address private conduct.

We're talking here about marriage that constitutes government action so clearly the Constitution is implicated. The specific and narrow question Waters raised--prompted by the recent Cal. Supreme Court decision--was whether gays are being deprived a Constitutional right by being treated differently from heterosexuals in terms of freedom to marry.

Now, you may call the analytical framwork I set forth legaleze. But it does represent how the Supreme Court goes about addressing questions such as Waters raised. The effort is to be systematic and principled. People can sit around all day and assert "marriage is a right" or not, but that doesn't get us anywhere, does it. (I think it's funny how many Mormons I've seen--Mormons of all people!--assert "marriage is not a right." All the sophistry employed to avoid just saying "gay sex is a sin! an abomination! that's why I don't want gay marriage" is amusing. Cowardly hypocrites. Mormons are once again on the horns of their desire to be accepted into the mainstream including perported belief in reason, and their enjoyment of atavistic peculiarity.)

[Tex]

Originally Posted by SeattleUte

The Civil Rights Act doesn't extend to gays. There's no question about that. But the reason we need a Civil Rights Act is that the Bill of Rights doesn't address private conduct.

We're talking here about marriage that constitutes government action so clearly the Constitution is implicated. The specific and narrow question Waters raised--prompted by the recent Cal. Supreme Court decision--was whether gays are being deprived a Constitutional right by being treated differently from heterosexuals in terms of freedom to marry.

My point was that so-called discrimination against gays doesn't compare in any way to discrimination against women, blacks, etc. As I said, I'm not sure it matters to me whether this is a constitutional claim or not, the comparison is still inapt.

And your answer seems ambiguous to me. The debate about gay marriage is not solely about gov't action. It's also about using the gov't as a tool to enforce their views on private behavior too.

Originally Posted by SeattleUte

Now, you may call the analytical framwork I set forth legaleze. But it does represent how the Supreme Court goes about addressing questions such as Waters raised. The effort is to be systematic and principled. People can sit around all day and assert "marriage is a right" or not, but that doesn't get us anywhere, does it. (I think it's funny how many Mormons I've seen--Mormons of all people!--assert "marriage is not a right." All the sophistry employed to avoid just saying "gay sex is a sin! an abomination! that's why I don't want gay marriage" is amusing. Cowardly hypocrites. Mormons are once again on the horns of their desire to be accepted into the mainstream including perported belief in reason, and their enjoyment of atavistic peclularity.)

I don't usually pick on spelling, but if you're going to get all didactic on me with words like "sophistry" and "atavistic," the least you can do is spell "purported" and "peculiarity" correctly.

[Cali Coug]

Originally Posted by Tex

No? Keeping in mind that it was only a random example, educate me.

If McDonald's chose to bar blacks or women from its restaurants, I'm fairly confident it would be illegal. I'm not sure that it matters to me whether it's merely against a state or federal statute, or against the Constitution itself.

Civil Rights Act legislation would make it illegal (upheld in Heart of Atlanta Motel).

http://www.infoplease.com/us/supreme...ases/ar14.html

[SeattleUte]

Originally Posted by Tex

And your answer seems ambiguous to me. The debate about gay marriage is not solely about gov't action. It's also about using the gov't as a tool to enforce their views on private behavior too.

No, the debate is only about whether gays should be free to marry. It's not about making you do anything.

[Tex]

Originally Posted by SeattleUte

No, the debate is only about whether gays should be free to marry. It's not about making you do anything.

Ha.