Gay Marriage: The Latest Salvo

Off Topic Politics & World Issues
101

[quote]
BostonBarrister wrote:
As far as the U.S. Constitution is concerned, there are only two categories that merit special scrutiny when it comes to discrimination: race and sex (that’s according to USSC jurisprudence). And by sex I mean what’s between your legs, not what you consider yourself to be, nor what you prefer to find between someone else’s legs when you hit the sack.

Moriarty wrote:
Exactly. And denying marriage benefits to gays is a discriminatory based on sex, and by that I mean what’s between your legs.

If two men produced sworn affidavits that they considered themselves heterosexual, and that they prefered sleeping with women, they still would not be allowed to get married. Why? Because of what’s in between their legs, or their sex.[/quote]

Nope – sex means the traditional understanding of gender, and basically means discrimination against women.

And your formulation is also wrong, because each of those men would be allowed to marry a woman.

102

[quote]Moriarty wrote:
rainjack wrote:
No Morty. You are confusing choice with sex. They are choosing a lifestyle. And there’s a big difference between sexual preference and sexual discrimination under the constitution.

I honestly don’t understand your argument at all. Are you saying that gay marriage isn’t denied because of the sex of the participants, but because of the choice of lifestyle they’ve made? I’m not being sarcastic, I really don’t follow.

Here’s a thought experiment:

BB has already pointed out that sex (what’s in between your legs) and race are special cases that through legal precendence we have established as criteria that cannot be used in a discriminatory way.

So since banning gay marriage isn’t (according to your argument) a denial of recognition of a contract based soley on sex (what’s in between your legs), let’s remove sex (what’s in between your legs) completely from the marriage license application.

Now, let’s say that you’re a gov’t official that’s received an application for a marriage license that has sex (and race) removed, what are your grounds for denying an application from a gay couple?

I’m looking at a state marriage license application right now and there is no place to specify what kind of lifestyle you will pursue, what kinds of sex you prefer, or your ability to procreate. What is your basis for denying this contract, given that sex and race are protected against your discrimination?[/quote]

No, it’s not. Someone with a penis can marry someone with a vagina, and it doesn’t matter what either of them personally prefers.

There is not discrimination just because the type of contract they would prefer to enter is not offered. Discrimination for a heterosexual contract, or against a homosexual contract, does not fall under the category of gender discrimination. It is entirely a different idea from the idea of barring women from being members of “public” societies or schools (which is where the gender discrimination caselaw comes from, generally).

103

Boston,

I see your point, but I think it is quite arguable.

A woman walks up, says I want to marry a man, bingo, done.

A man walks up, says I want to marry a man, bzzzt, denied.

While the sexual preference of the individual may be different, perhaps it would be a sexless marriage of convenience, the actual sex is different, and is the reason for denial even if the preference isn’t.

The way to show this would be for two men that are not gay to attempt marriage.

The preference is not the issue in that case, but the marriage is denied. It can be argued, perhaps well, that same sex marriages are denied based on sex alone. Whether or not it descriminates against a man or against a women, however, is immaterial.

How does the state verify the preference of the individuals wishing to enter into the contract of marriage in order to discriminate based on preference, instead of sex? Does it sneak into the bedroom to make sure?

A proper test is for two straight men, with appropriate preference, to take one for their gay friends and attempt marriage. Taking it all the way to the supreme court with proof of their preference for women and a rational reason for wanting the marriage contract.

104

[quote]rainjack wrote:
Moriarty wrote:
Exactly. And denying marriage benefits to gays is a discriminatory based on sex, and by that I mean what’s between your legs.

If two men produced sworn affidavits that they considered themselves heterosexual, and that they prefered sleeping with women, they still would not be allowed to get married. Why? Because of what’s in between their legs, or their sex.

No Morty. You are confusing choice with sex. They are choosing a lifestyle. And there’s a big difference between sexual preference and sexual discrimination under the constitution.

You can’t extrapolate like you just did and expect folks to just believe it - much less a logical judiciary. But as BB has shown - parts of the judiciary are far from logical. [/quote]

I have already informed him of this many posts back BB, but he clings to it anyway…

105

A few things, some of which may have already been stated…

As for Equal Protection: there is no Equal Protection violation. In order to show that you are being denied equal protection, you must first define the institution - then you must decide whether you are being denied access to it. But you can’t do the second without the first. And the first part is where gay marriage as an Equal Protection claim falls apart.

Ask a pro-gay marriage advocate to define marriage and you will typically get something like this: “Union of two people who have decided to commit to one another…”. But that is not the definition of marriage. The definition of marriage is the Union of a man and a woman for various and sundry reasons. It is not merely the binary relationship of any old two people, just as it is also not a union of more parties than two.

In order to claim that Equal Protection has been violated, gays must show that they have been denied access to marriage as it is defined - but they haven’t. Any gay person is eligible to engage in marriage with a member of the opposite sex, per the definition of the institution. Are gays being denied their preference - that is, being able to marry whomever they want? Yes - but in order to create gay marriage, a new institution would have to be created out of whole cloth and recognized by law. The same would be true of bigamy, polygamy, or polyandry, all of which are not recognized under our definition of marriage.

So gays aren’t being denied anything - and they are perfectly legitimate in trying to get the institution created via the democratic process. I’d make a comparison to women’s suffrage: having never been an institution in America prior, what was required was that the Constitution be amended. We think a woman’s right to vote as elemental - nope, it had to be recognized after women’s rights advocates made their case in the democratic process.

There is no institution of gay marriage - and the courts have no business breating one. It’s a job for the legislature.

If the courts suddenly seem to think every law everywhere must be applied exactly the same to every person everywhere, I can’t wait to be the person who brings suit claiming that progressive taxation violates my Equal Protection rights, since no one should have to be able to pay a different tax rate than someone else. Also, welfare benefits should accrue to wealthy people, assuming that every law everywhere applies to everyone.

This, of course, is sarcasm - laws ‘discriminate’ all the time. Tax rates vary according to income or activity, so do subsidies. Laws against bigamy, polygamy, bestiality - all distinguish citizens, and not all are treated the same. Same goes for public nudity and prostitution.

Gay marriage advocates have every right to convince people that the institution should be created - go door to door, have town hall meetings, get advocacy going on university campuses, get referenda on local ballots, elect representatives that see the world their way, etc. But griping that they are being denied something that doesn’t exist is folly.

106

[quote]BostonBarrister wrote:
There is not discrimination just because the type of contract they would prefer to enter is not offered. Discrimination for a heterosexual contract, or against a homosexual contract, does not fall under the category of gender discrimination. It is entirely a different idea from the idea of barring women from being members of “public” societies or schools (which is where the gender discrimination caselaw comes from, generally).

vroom wrote:
Boston,

I see your point, but I think it is quite arguable.

A woman walks up, says I want to marry a man, bingo, done.

A man walks up, says I want to marry a man, bzzzt, denied.

While the sexual preference of the individual may be different, perhaps it would be a sexless marriage of convenience, the actual sex is different, and is the reason for denial even if the preference isn’t.

The way to show this would be for two men that are not gay to attempt marriage.

The preference is not the issue in that case, but the marriage is denied. It can be argued, perhaps well, that same sex marriages are denied based on sex alone. Whether or not it descriminates against a man or against a women, however, is immaterial.

How does the state verify the preference of the individuals wishing to enter into the contract of marriage in order to discriminate based on preference, instead of sex? Does it sneak into the bedroom to make sure?

A proper test is for two straight men, with appropriate preference, to take one for their gay friends and attempt marriage. Taking it all the way to the supreme court with proof of their preference for women and a rational reason for wanting the marriage contract.[/quote]

vroom,

I see what you’re trying to set up, but it fails in terms of a Constitutional analysis for one simple point: Your whole analysis is predicated on an individual right to marriage, which isn’t there.

The state is NOT prohibiting gays from entering into a series of contracts that would approximate the duties and benefits of marriage (minus any tax benefits). Thus, they are not infringing upon any implications of freedom of association. They aren’t even treading on an expansive reading of the right to privacy, because no one is required to report what they do with whom, or with whom they live, or whatever – and those facts are not the basis of the definition.

All the state has done is define a particular package of contractual rights and benefits, added some tax incentives, and made that available only on the basis of the behavior it wishes to incentivize: heterosexual unions.

It doesn’t matter one bit if the individuals have a rational reason for wanting the benefits of marriage, but don’t want to conform to the required standards. I have a rational basis for wanting a deduction on interest paid on my taxes, but I don’t wish to buy a house – that doesn’t mean I have a right to the deduction that was violated because the definition didn’t meet what I wanted. What matters is whether the state has a rational basis for its standards – and that is an extremely low standard of review. Any and every rational basis theoretically satisfies that standard of review.

107

vroom,

I want to add something to my previous post – I think I’ve said it before, but maybe I can say it a different way to get the point home.

In your example of two straight men going to be married and being denied, they aren’t being discriminated against because of their sex. They are being denied because each chose not to conform to the definition of marriage as set up by the legislature. Either of them could go right back (after whatever the prescribed waiting period is in the particular jurisdiction) with a woman and get married.

So neither of them is denied access to marriage, based on race, gender, or even on sexual preference – each is simply denied the partner of his choice, because he chose a partner that made the contract outside the definition of marriage.

108

vroom,

Bush lied, the rainbow died!

109

[quote]BostonBarrister wrote:
vroom,

I want to add something to my previous post – I think I’ve said it before, but maybe I can say it a different way to get the point home.

In your example of two straight men going to be married and being denied, they aren’t being discriminated against because of their sex. They are being denied because each chose not to conform to the definition of marriage as set up by the legislature. Either of them could go right back (after whatever the prescribed waiting period is in the particular jurisdiction) with a woman and get married.

So neither of them is denied access to marriage, based on race, gender, or even on sexual preference – each is simply denied the partner of his choice, because he chose a partner that made the contract outside the definition of marriage. [/quote]

I completely see where you’re coming from. Correct me if I’m wrong but based on your argument:

  1. Banning African-Americans from getting married would be unconstituational because it unfairly discriminates based on race.

  2. A law that banned bi-racial marriage is fair game, because all races have a fair opportunity to marry. Should such a law pass bi-racial couples have full opportunity to recieve marriage benefits should they choose other partners, but as is they do not conform to the mandatory criteria to recieve the benefits of the contractual agreement.

Is that assessment of your argument correct?

110

Is someone having trouble following along with the conversation?

–

Boston,

More good stuff. Again, while I’m not 100% convinced, your arguments certainly do seem plausible.

I would guess there is going to be some concern around the “rational” concept that you keep identifying if things follow the course you propose.

There is no proof of any problem with this activity, so the only basis for such action is religion, fear or prejudice. These are hardly rational reasons – given that the state is not allowed to embrace religion.

111

I’m just glad that our elected officials are busy handling the pressing issues in American society, like preventing two men or two women from getting married.

Who really cares about poverty, unemployment, social security etc.

I don’t understand what the big f’in deal is with this issue.

112

[quote]Moriarty wrote:
BostonBarrister wrote:
vroom,

I want to add something to my previous post – I think I’ve said it before, but maybe I can say it a different way to get the point home.

In your example of two straight men going to be married and being denied, they aren’t being discriminated against because of their sex. They are being denied because each chose not to conform to the definition of marriage as set up by the legislature. Either of them could go right back (after whatever the prescribed waiting period is in the particular jurisdiction) with a woman and get married.

So neither of them is denied access to marriage, based on race, gender, or even on sexual preference – each is simply denied the partner of his choice, because he chose a partner that made the contract outside the definition of marriage.

I completely see where you’re coming from. Correct me if I’m wrong but based on your argument:

  1. Banning African-Americans from getting married would be unconstituational because it unfairly discriminates based on race.

  2. A law that banned bi-racial marriage is fair game, because all races have a fair opportunity to marry. Should such a law pass bi-racial couples have full opportunity to recieve marriage benefits should they choose other partners, but as is they do not conform to the mandatory criteria to recieve the benefits of the contractual agreement.

Is that assessment of your argument correct?[/quote]

Moriarty –

That would be much more akin to the logical argument, though it’s not a perfect fit.

ADDENDUM: What would be better, however, is this example: if the legislature decided it wanted to promote racial harmony by offering incentives for inter-racial marriages, and such incentives weren’t made available to those who wanted to marry someone of his or her own race.

Constitutionally, because race discrimination is “suspect class” discrimination, it has to pass a much higher hurdle of Constitutional scrutiny (for all intents and purposes, nothing passes “strict scrutiny” review) which requires that the program be narrowly tailored so as to minimally restrict individual rights, and that the state interest that the program is serving must be a “compelling interest.”

113

vroom:

“There is no proof of any problem with this activity, so the only basis for such action is religion, fear or prejudice.”

I’ll give you one chance to amend this!

114

[quote]winchell_j wrote:
I’m just glad that our elected officials are busy handling the pressing issues in American society, like preventing two men or two women from getting married.

Who really cares about poverty, unemployment, social security etc.

I don’t understand what the big f’in deal is with this issue.[/quote]

Marriage is part of the “fabirc” of our society. Hence, anything related to this institution is a big deal!

115

LOL, slow down Zeb.

Howabout I state that I am not aware of any proof concerning the detrimental effect on society that gays are suspected to have?

Without such proof, I’m not sure that there is a “rational” reason for prohibiting such behavior. Feel free to educate me and point them out.

I’m not pro gay marriage, I just don’t see the reason for the fuss.

116

[quote]vroom wrote:

Boston,

More good stuff. Again, while I’m not 100% convinced, your arguments certainly do seem plausible.

I would guess there is going to be some concern around the “rational” concept that you keep identifying if things follow the course you propose.

There is no proof of any problem with this activity, so the only basis for such action is religion, fear or prejudice. These are hardly rational reasons – given that the state is not allowed to embrace religion.[/quote]

vroom,

You’re misunderstanding the application of the “rational basis” test. Which isn’t problematic, given that you’re Canadian and would have no reason to be familiar with it other than general interest.

Rational-basis scrutiny, as it has been applied in the courts, will credit any and all rational bases for a law – whether or not the judges think they are correct or incorrect, provided there is a chance they are correct.

So, in this case, if the legislature found that heterosexual unions were better for child-rearing, and wanted to incentivize heterosexual unions to encourage heterosexual unions, that would pass “rational basis” scrutiny, with no further factual inquiry by the court. If the government wanted to promote house purchases, and found that heterosexual couples would tend to purchase more houses, and thus wanted to encourage heterosexual marriage to promote home purchases, same result.

ADDENDUM: Just wanted to add this. A big key w/r/t Constitutional analysis, and particularly w/r/t 14th Amendment equal-protection analysis, is what kind of scrutiny the court will apply to the law in question. To vastly (but usefully) oversimplify Equal-Protection Doctrine: Strict scrutiny generally means the law in question won’t pass muster (the exception being affirmative-action programs); intermediate scrutiny means you’re not sure, though it is more likely than not that the court would overturn the law – but very few things get intermediate scrutiny (gender-discrimination is one); rational-basis scrutiny generally means the particular law or regulation is deemed Constitutional.

Laws that conflict with specifically enumerated (or specifically invented) Constitutional rights are generally subject to strict scrutiny, and sometimes to intermediate scrutiny. Other laws generally get rational-basis scrutiny.

117

[quote]ZEB wrote:
vroom:

“There is no proof of any problem with this activity, so the only basis for such action is religion, fear or prejudice.”

I’ll give you one chance to amend this![/quote]

Now remember ZEB

vroom has no opinion on this matter. He is asking all these questions so he can form one. Although each and every question has been directed at those who disapprove of this arrangement.

Then, of course, it took him half a page of typical pontification to answer my question wrt this issue.

It appears he once again holds no opinion, he just wants to be sure each of us ‘guys’ understands all the possible issues and effects of our opinions and decisions. After all, our opinions are based purely on fear and prejudice. Now these are your words vroom, so I don’t want to hear any nonsense about how poor vroom is misunderstood.

118

[quote]Now remember ZEB

vroom has no opinion on this matter. He is asking all these questions so he can form one. Although each and every question has been directed at those who disapprove of this arrangement.

Then, of course, it took him half a page of typical pontification to answer my question wrt this issue.

It appears he once again holds no opinion, he just wants to be sure each of us ‘guys’ understands all the possible issues and effects of our opinions and decisions. After all, our opinions are based purely on fear and prejudice. Now these are your words vroom, so I don’t want to hear any nonsense about how poor vroom is misunderstood. [/quote]

Aren’t you done crying yet? Wipe your eyes, blow your nose and get on with your life.

Zeb and I may disagree, but at least he comports himself like a man.

119

Is comport your word of the day today?

I shed no tears vroom, I just wish you’d take a stand and mean it, not just ask these ridiculous questions about if 2 straight men want to get married to try and sound so smarty farty.

Lets see, what if…

120

Sasquatch, those questions were directed at somebody other than you. Whether or not you “like” them is really not salient to the discussion.

Boston is doing a good job of educating me with respect to probable legal interpretation of those issues. If you already knew that in advance, good for you. I certainly didn’t.

Keep it up, I’ll buy stock in Scott Tissues.