Gay Marriage Discussion

[quote]TrollSimmons wrote:

[quote]twojarslave wrote:
You are presenting a logical fallacy of a false dilemma. There is plenty of room in Maine for both gays and heterosexuals. Allowing gays to marry has not, to my knowledge, prevented a single heterosexual couple from starting a family.
[/quote]

Yes it has. I was going to start a family with my wife (who happens to be a woman), but then this supreme court decision came down. I was like “honey, we cannot bring children into this world.” Since gays got the right the marry I have had to completely change my life plans. I will now never have children. I even quit my job.[/quote]

Why stop there? You should go full Rick Scarborough and set yourself on fire.

Varqanir: could not agree with you more . … …

[quote]jjackkrash wrote:

[quote]DBCooper wrote:
You see, when it comes to EPC issues, the strict scrutiny standard is only applied if the law in question potentially violates a fundamental right of a suspect class. Otherwise, the rational basis standard is applied, which places a far less substantial burden on the state to justify such a law.[/quote]

There is also intermediate scrutiny between strict and rational basis, which I think would be an appropriate test here. In any event, I don’t believe that the States have actually articulated any reasons that pass rational basis that are not independently grounded in a violation of the Establishment Clause. JMO. [/quote]

If the states had never provided an argument that was capable of passing the rational basis test then they never would have had a case in front of the Supreme Court in the first place. If they can’t pass the rational basis test, then the case would have been thrown out long ago on the basis of failing such a test. The Supreme Court would have noted as much and concurred.

OR they would have looked at the inferior court’s decision and decided it was wrongly applied, which means that Justice Kennedy’s decision would have been filled with legal rationales as to why the states have or have not passed the rational basis test. But Kennedy did no such thing because this simply isn’t a rational basis-type of case to begin with. The rational basis test simply does not apply here in any way, shape, or form.

But the intermediate scrutiny test DOES apply here, given that previous case precedent has established that this is the test to use when the case deals with sexual orientation. But again, this would still not be the proper avenue from a strictly legal standpoint either. For any judge in any decision on any matter, the decision should be grounded in the strongest legal rationale possible. This makes the decision harder to overturn on appeal, and in the case of SCOTUS, it solidifies the decision in terms of precedent.

So if Kennedy wanted to arrive at the strongest possible rationale, then he should have used the strict scrutiny test. Strict scrutiny applies to a constitutionally-defined right (which would preclude gay marriage from being tested this way since there is zero in the constitution about it.) OR he would have to establish that gays are a suspect class. Like I said earlier, that would have been an extremely easy case to make. SexMachine’s posting history alone makes it apparent that opposition to gay marriage is firmly rooted (for many people) in opposition to homosexuality in general.

But this is all besides the point. Gay marriage was already happening EXACTLY THE WAY IT IS SUPPOSED TO HAPPEN.

James Madison pointed out that the Bill of Rights was unnecessary and superfluous, since the entire scope of the federal govt’s power was contained within Articles 1-6. Since no power to violate the rights listed in Amendments 1-8 was ever enumerated, the obvious implication is that the gov’t does not have the power to do so. To Madison, it was pointless to list all of the things that the federal gov’t CANNOT do when the Constitution essentially lists all of the things it CAN do.

Furthermore, Madison pointed out that even listing all of the rights that the federal gov’t could not violate would be a never-ending task. So the rights that ALL states at the time could agree upon were listed, as a compromise to satisfy the increasingly annoying (to Madison) anti-Federalists.

And that is why we have the 9th and 10th Amendments. If there is a right that is up for debate because it is not specifically listed in #1-8, then such debate is settled by the state legislatures, which is exactly what something like 38 out of 50 states had done already regarding gay marriage. If a law is created which bars the right that is up for debate, the Supreme Court can eventually weigh in. But this can only happen with issues regarding the Constitution itself. They are the final arbiters of the Constitution, not the efficacy of state laws. Since there is nothing in the Constitution that expressly forbids or promotes gay marriage, (or any other type of marriage) by virtue of the 9th and 10th Amendments that issue is left to the states.

edit: And don’t forget, the Constitution doesn’t “grant” rights. It protects rights that have existed by virtue of man’s nature or have traditionally been protected. There is no legal tradition whereby gay marriage has been protected. But there is a legal tradition in which marriage is regulated by the state to further a compelling interest. The Julian Laws during the reign of Augustus come to mind.

[quote]jbpick86 wrote:

[quote]DBCooper wrote:

[quote]jjackkrash wrote:

[quote]Dr. Pangloss wrote:

[quote]jjackkrash wrote:
[/quote]

Let me ask you a question…

In this quote from Roberts’s dissent, "Understand well what this dissent is about: it is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer. "

Why would Roberts abdicate responsibility for making an ultimate decision when it would seem that, at the very least, it is fully proper for the SC to rule on whether or not state recognition of gay marriage is in accordance with the FF&C clause?

Isn’t this the proper role of the SC, making decisions when no agreement exists between the States? If he were writing from the bench of a lower court, I could see his rationale but he’s being asked to decide something that is certainly in his purview as a SC judge.

Edit: I’m struggling to make sense of the Conservative judge’s dissents and the majority opinion reads like a Hallmark card.

“Love, flowers, unicorns, rainbows…
It is so ordered”

[/quote]

I’ll come back to this, but I don’t have time right this second. I laid out all the equal protection arguments if not in this thread, then in a related one, however, going back and forth with Sex Machine and a few others.

That said, I would have been perfectly fine if the Court decided to not take this case and let the local process run its course some more. I am also a fan of deference and restraint from the high court. I think Roe was decided way too soon as well. I personally thought it was too early for them to accept cert. in this case. Way too soon. But if they take on the issue squarely, then they have to get it right and decide one way or the other what the constitution requires. And I don’t see a very compelling case for the other side.

[/quote]

You keep citing the Equal Protection Clause as if Justice Kennedy continually referred to it in his decision. The thing is, this isn’t an EPC issue to Kennedy. If it is, he certainly took a roundabout path to get there. He essentially married the EPC to the Due Process Clause (pun intended) to produce the desired result. If that isn’t legislating from the bench, I don’t know what is.

We make like the immediate result, but the fact is that these cases usually end up having just as many ramifications years from now as they do today. Justice Kennedy completely fucking mangles his rationale to the point where I can see this ruling vacated by a future SCOTUS decision at some point.

As I stated earlier, the EPC would have been the better route for Justice Kennedy, but he did not take that route. Certainly not in a way that relies upon anything even approaching case precedent. I’d love to see how the doctrine of stare decisis is applied in light of this decision.

The EPC guarantees equal protection under the law and is applied to fundamental rights. Is marriage a fundamental right, and if so, why? Kennedy has not satisfactorily addressed this, which even supporters of gay marriage would readily admit. Furthermore, IF marriage to a consenting adult is a fundamental right, then strict scrutiny must first be applied by the Court. This is because decades of previous case precedent have established that even when it comes to a fundamental right, the state still has the power to limit such things IF it can show that there is a compelling state interest to do so.

The EPC is typically cited in cases involving discrimination. However, this necessitates that Justice Kennedy first establish that gays are what is called a “suspect” class. A suspect class in this sense refers to any group of people that have long been the target of persecution based on what differentiates them from the rest of society. As of now, I think that gender, race, and age are enough to put someone in a suspect class (women, racial minorities, old people). If one is a member of a suspect class, then laws cannot be created to deny that person a right based on what makes them different. Once it can be shown that someone is a member of a suspect class and that a law denies them a right that others have on the basis of what makes that person “different”, the EPC can be applied. But again, that is only AFTER strict scrutiny has been applied. Strict scrutiny entails three distinct phases/tests, the first of which is the compelling interest test.

Justice Kennedy never established that gays are a “suspect class”, he never applied strict scrutiny, he certainly never investigated the compelling interest aspect. But the big problem is that he never established that gays are part of a suspect class, and quite frankly, I could have argued that fucking point in front of SCOTUS.

You see, when it comes to EPC issues, the strict scrutiny standard is only applied if the law in question potentially violates a fundamental right of a suspect class. Otherwise, the rational basis standard is applied, which places a far less substantial burden on the state to justify such a law.[/quote]

I could be wrong, as I am not a lawyer, however I think Justice Kennedy was careful to not use the EPC as his justification to not make the use of Bob Jones as easy of a leap. The down hill slide to the use of Bob Jones to infringe upon 1st amendment rights being the biggest driving factor behind most Christians vehement fight to prevent gay marriage in the first place. I don’t think it will work however and in 10 years or so you will see churches and Christian universities not allowed to stand behind positions forbidding gay marriage without facing government sanction.

Summary of the decision:

[quote]
The Court found that the IRS was correct in its decision to revoke the tax- exempt status of Bob Jones University and the Goldsboro Christian School. These institutions did not meet the requirement by providing “beneficial and stabilizing influences in community life” to be supported by taxpayers with a special tax status. The schools could not meet this requirement due to their discriminatory policies. The Court declared that racial discrimination in education violated a “fundamental national public policy.” The government may justify a limitation on religious liberties by showing it is necessary to accomplish an “overriding governmental interest.” Prohibiting racial discrimination was such a governmental interest. Hence, the Court found that “not all burdens on religion are unconstitutional.”[/quote]

I understand your concern, but you’re far off-base here. If anything, Justice Kennedy’s decision is a complete fucking disaster that has essentially made it even easier, not harder, for religious views to be challenged in future cases.

And it isn’t going to take 10 fucking years to happen, it’ll start happening the first time a gay couple go down to the local Catholic church to get married.

What Kennedy has done is argued that marriage is a fundamental right. He took about the worst possible fucking route to get there, but he did get there. If precedent is followed, and it generally is, then marriage is now a fundamental right until a later Court decides otherwise.

What will now happen is that cases such as mentioned above will make their way to the Court. Someone will argue that a church is violating their fundamental right to marriage on the basis of their sexuality. Because of the nature of Kennedy’s decision I really have no fucking clue whether it will be a due process or equal protection case.

Regardless, what will ultimately happen is that the Court will find itself trying to balance marriage freedom against religious freedom. That will be a lose-lose situation no matter how the decision goes.

The bottom line is that Justice Kennedy really fucked this one up. As a supporter of both gay marriage and religious freedom, I was really happy with the way things were going already. Churches weren’t forced to marry gays and gays could get married and enjoy all the same benefits as a result. People weren’t universally happy on either side of the issue, but no one was being FORCED to do something, and it was THE people deciding the issue, not FIVE people.

[quote]Aragorn wrote:
Very nice posts last page DB. Well thought out indeed.[/quote]

Thank you, although all I’m really doing is pointing out what many others have already mentioned.

This decision just absolutely appalls me. I firmly believe in the power of people to effect change and spread messages of hope and freedom and all that lovey-dovey shit about which Kennedy was pontificating. I firmly believe that gay marriage is the right thing to do and I have been very vocal about my support for it.

These sorts of issues are EXACTLY what the 1st Amendment is all about. We cannot hope to effect positive, lasting social reform in this country without the right to express our feelings about these things. I also firmly believe that if the message is a positive one and if it is one that spreads and expands people’s freedoms, then the message will take hold and more and more people will embrace it.

But this decision takes that away. It essentially says that there is no need to fight for social reform on our own because the gov’t will just take care of it for us. Those who support this decision are either too ill-informed about the construction of the Constitution to warrant any attention, are too caught up in the immediate positive impact this will have on their own lives to think beyond the end of their own nose, or are simply lemmings.

The third category is especially insidious, because it essentially is telling us that when things don’t go right, just turn to the gov’t to fix things. This has obviously been going on for quite a long time in this country.

But we are actually at a point in time where we should be moving away from the attitude that the gov’t is the best way to enact social reform. WE are the best tools to do this, not the gov’t. And with the explosion in popularity and possibilities when it comes to social media today, we are as well-equipped to engender social reforms on our own as any society ever has been in the history of this planet.

But what do us Americans like to do with our iPhones? We take a bunch of dick pics.

[quote]pushharder wrote:

[quote]DBCooper wrote:

[quote]jjackkrash wrote:

[quote]DBCooper wrote:
You see, when it comes to EPC issues, the strict scrutiny standard is only applied if the law in question potentially violates a fundamental right of a suspect class. Otherwise, the rational basis standard is applied, which places a far less substantial burden on the state to justify such a law.[/quote]

There is also intermediate scrutiny between strict and rational basis, which I think would be an appropriate test here. In any event, I don’t believe that the States have actually articulated any reasons that pass rational basis that are not independently grounded in a violation of the Establishment Clause. JMO. [/quote]

If the states had never provided an argument that was capable of passing the rational basis test then they never would have had a case in front of the Supreme Court in the first place. If they can’t pass the rational basis test, then the case would have been thrown out long ago on the basis of failing such a test. The Supreme Court would have noted as much and concurred.

OR they would have looked at the inferior court’s decision and decided it was wrongly applied, which means that Justice Kennedy’s decision would have been filled with legal rationales as to why the states have or have not passed the rational basis test. But Kennedy did no such thing because this simply isn’t a rational basis-type of case to begin with. The rational basis test simply does not apply here in any way, shape, or form.

But the intermediate scrutiny test DOES apply here, given that previous case precedent has established that this is the test to use when the case deals with sexual orientation. But again, this would still not be the proper avenue from a strictly legal standpoint either. For any judge in any decision on any matter, the decision should be grounded in the strongest legal rationale possible. This makes the decision harder to overturn on appeal, and in the case of SCOTUS, it solidifies the decision in terms of precedent.

So if Kennedy wanted to arrive at the strongest possible rationale, then he should have used the strict scrutiny test. Strict scrutiny applies to a constitutionally-defined right (which would preclude gay marriage from being tested this way since there is zero in the constitution about it.) OR he would have to establish that gays are a suspect class. Like I said earlier, that would have been an extremely easy case to make. SexMachine’s posting history alone makes it apparent that opposition to gay marriage is firmly rooted (for many people) in opposition to homosexuality in general.

But this is all besides the point. Gay marriage was already happening EXACTLY THE WAY IT IS SUPPOSED TO HAPPEN.

James Madison pointed out that the Bill of Rights was unnecessary and superfluous, since the entire scope of the federal govt’s power was contained within Articles 1-6. Since no power to violate the rights listed in Amendments 1-8 was ever enumerated, the obvious implication is that the gov’t does not have the power to do so. To Madison, it was pointless to list all of the things that the federal gov’t CANNOT do when the Constitution essentially lists all of the things it CAN do.

Furthermore, Madison pointed out that even listing all of the rights that the federal gov’t could not violate would be a never-ending task. So the rights that ALL states at the time could agree upon were listed, as a compromise to satisfy the increasingly annoying (to Madison) anti-Federalists.

And that is why we have the 9th and 10th Amendments. If there is a right that is up for debate because it is not specifically listed in #1-8, then such debate is settled by the state legislatures, which is exactly what something like 38 out of 50 states had done already regarding gay marriage. If a law is created which bars the right that is up for debate, the Supreme Court can eventually weigh in. But this can only happen with issues regarding the Constitution itself. They are the final arbiters of the Constitution, not the efficacy of state laws. Since there is nothing in the Constitution that expressly forbids or promotes gay marriage, (or any other type of marriage) by virtue of the 9th and 10th Amendments that issue is left to the states.

[/quote]

Exactly yep.

This is why Scalia’s “oligarchy of five” rings true.
[/quote]

I know you don’t personally subscribe to gay marriage but I think that you, as someone who certainly understands the power of the 9th/10th Amendments, can certainly appreciate watching it in action in 38 states thus far.

It’s just really disappointing to see the limited federal gov’t/states’ rights thing working and then see this happen.

I’ve skimmed Kennedy’s opinion and it does look like a bit of a fluff piece. I would not have based my opinion primarily on substantive due process or on marriage as a fundamental right.

My position is and has been as follows:

States don’t have to be in the marriage business but they are. And with the state-recognized system of marriage comes with it a bundled set of property and other important economic rights. The system itself confers a bundle of rights, benefits, and obligations. Once the government confers a benefit on one class of persons, the equal protection clause (at least the way equal protection has been interpreted) says you can’t deny that benefit to a class or suspect class of persons for impermissible reasons. The states have always been in the business of regulating and deciding property rights, and once you tie those rights into a system and call it marriage, then they state can’t deny entrance into that system for suspect, irrational, or religious reasons.

Its just like a business license, a person does not necessarily have a “right” to a business license, but the state can’t deny a person one for impermissible or arbitrary reasons if it grants that license to others. Almost every state’s family code ties property and custody rights to something called “marriage.” Once this something called marriage is tied to a system of property rights, equal protection requires granting gay couples access to the system unless the state can provide a good and compelling reason for excluding them. The alternative is de-coupling property rights to a system called “marriage.” Thus, the state should either recognize marriage for gay couples or it should not recognize marriage for straight couples and recognize only “civil unions” for all and decouple the concept of marriage from property rights.

I agree with DB that I would assign the test for state action to deny entrance into the system under intermediate scrutiny. I disagree that the states would easily pass the rational basis test in a way that doesn’t independently violate the establishment clause of the first amendment. At least, IMO, it would not be a lock for the states.

[quote]pushharder wrote:

[quote]2busy wrote:

[quote]pushharder wrote:

[quote]MaximusB wrote:
Shit is only getting started.

It’s Time to Legalize Polygamy
Why group marriage is next on the horizon of social liberalism

http://www.politico.com/magazine/story/2015/06/gay-marriage-decision-polygamy-119469_full.html#.VY3-ylLO8Yo[/quote]

Tolt ya so. Years ago, I tolt ya’ll so.
[/quote]

Yes, you did.

I give it 10 years.[/quote]

I even bet some sorry sap it’d happen in less than 10 years. Who was it, you remember?
[/quote]

No :frowning:

I’ll try to dig it up.

[quote]pushharder wrote:
[/quote]

Exactly yep.

This is why Scalia’s “oligarchy of five” rings true.
[/quote]

The Court’s job is to overrule the majority when the Constitution requires it. It seems like Scalia believes strongly in the democratic process when that process gets him the result he wants. But when that process leads to a bad result, he thinks its his job to step in and save us all from that process.

For example, here are Scalia’s comments from the bench in the last voting-rights act case that he thought needed to be struck down precisely because the voting for it in Congress was unanimous in favor of it.


JUSTICE SCALIA: Well, maybe it was making that judgment, Mr. Verrilli. But thatâ??s â?? thatâ??s a problem that I have. This Court doesnâ??t like to get involved in â?? in racial questions such as this one. Itâ??s something that can be left â?? left to Congress.

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a â?? in a time when the need for it was so much more abundantly clear was â?? in the Senate, there â?? it was double-digits against it. And that was only a 5-year term.

Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I donâ??t think thatâ??s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. Itâ??s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

I donâ??t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless â?? unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that thereâ??s a good reason for it.

Thatâ??s the â?? thatâ??s the concern that those of us who â?? who have some questions about this statute have. Itâ??s â?? itâ??s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose â?? they are going to lose votes if they do not reenact the Voting Rights Act.

Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?


Note how Scalia thinks you need good reasons to treat one state differently from another, or the legislation that treats them differently doesn’t pass constitutional muster. (Hint: Sound familiar?)

He thinks this so even if the voting for the bill is unanimous in favor of it–including the elected representatives of the state challenging the law.

[quote]DBCooper wrote:

Thank you, although all I’m really doing is pointing out what many others have already mentioned.

This decision just absolutely appalls me. I firmly believe in the power of people to effect change and spread messages of hope and freedom and all that lovey-dovey shit about which Kennedy was pontificating. I firmly believe that gay marriage is the right thing to do and I have been very vocal about my support for it.

These sorts of issues are EXACTLY what the 1st Amendment is all about. We cannot hope to effect positive, lasting social reform in this country without the right to express our feelings about these things. I also firmly believe that if the message is a positive one and if it is one that spreads and expands people’s freedoms, then the message will take hold and more and more people will embrace it.

But this decision takes that away. It essentially says that there is no need to fight for social reform on our own because the gov’t will just take care of it for us. Those who support this decision are either too ill-informed about the construction of the Constitution to warrant any attention, are too caught up in the immediate positive impact this will have on their own lives to think beyond the end of their own nose, or are simply lemmings.

The third category is especially insidious, because it essentially is telling us that when things don’t go right, just turn to the gov’t to fix things. This has obviously been going on for quite a long time in this country.

But we are actually at a point in time where we should be moving away from the attitude that the gov’t is the best way to enact social reform. WE are the best tools to do this, not the gov’t. And with the explosion in popularity and possibilities when it comes to social media today, we are as well-equipped to engender social reforms on our own as any society ever has been in the history of this planet.

But what do us Americans like to do with our iPhones? We take a bunch of dick pics.

[/quote]

Couldn’t one argue that this has been going on since Brown vs. Board of Education and before, when the NAACP and civil-rights people specifically used the courts to advance their agenda?

[quote]pushharder wrote:
Hey Jack, tried contacting you on the other thread (told you to email me at address on my hub) the other day.

Traveling to and from SEA last week (and Tues - Wed) and was going to make you buy me a beer somewhere in Emerald City.[/quote]

Shit, didn’t see it. I was traveling east of the hill anyway for work last week.

[quote]DBCooper wrote:

edit: And don’t forget, the Constitution doesn’t “grant” rights. [/quote]

Good luck convincing not only the average American of this, but a shocking number of educated, and intelligent Americans as well.

So how long until “Love Wins” turns into “Froth Mouthed Vengeance”?

I’ve already seen plenty of signs of it. It isn’t enough to enjoy beautiful freedom, no, people need now to destroy the institutions they see as the “enemy”.

This is going to get ugly, and the 1st is going to get shredded…

[quote]DBCooper wrote:

[quote]Aragorn wrote:
Very nice posts last page DB. Well thought out indeed.[/quote]

Thank you, although all I’m really doing is pointing out what many others have already mentioned.

This decision just absolutely appalls me. I firmly believe in the power of people to effect change and spread messages of hope and freedom and all that lovey-dovey shit about which Kennedy was pontificating. I firmly believe that gay marriage is the right thing to do and I have been very vocal about my support for it.

These sorts of issues are EXACTLY what the 1st Amendment is all about. We cannot hope to effect positive, lasting social reform in this country without the right to express our feelings about these things. I also firmly believe that if the message is a positive one and if it is one that spreads and expands people’s freedoms, then the message will take hold and more and more people will embrace it.

But this decision takes that away. It essentially says that there is no need to fight for social reform on our own because the gov’t will just take care of it for us. Those who support this decision are either too ill-informed about the construction of the Constitution to warrant any attention, are too caught up in the immediate positive impact this will have on their own lives to think beyond the end of their own nose, or are simply lemmings.

The third category is especially insidious, because it essentially is telling us that when things don’t go right, just turn to the gov’t to fix things. This has obviously been going on for quite a long time in this country.

But we are actually at a point in time where we should be moving away from the attitude that the gov’t is the best way to enact social reform. WE are the best tools to do this, not the gov’t. And with the explosion in popularity and possibilities when it comes to social media today, we are as well-equipped to engender social reforms on our own as any society ever has been in the history of this planet.

But what do us Americans like to do with our iPhones? We take a bunch of dick pics.

[/quote]

Hey, you know what, you are essentially putting a much nicer and more articulated shine on all the things I’ve been thinking so I’m all for it! hahaha.

On a serious note however, I have been thinking this over and over. Unfortunately I have no real outlet for this because facebook is a bunch of rainbow profile pictures for people who don’t have any fucking brains and like to scream “bigot” at anybody who doesn’t share every last shred of “feels” they have as an excuse for a decision making process. Irony is beyond them clearly…

In any case, this is about the only outlet I have for the judicial process that won’t break down into a feces throwing shitfest.