[quote]SexMachine wrote:
[quote]jjackkrash wrote:
Circling back to the original post that started this exchange, I stated that:
“as a matter of policy I don’t see that the state has any legitimate, non-religuous based interest in declaring that homosexuality is ‘abhorrent and unnatural,’” and you asked what this has to do the the First Amendment. I then pointed out that, without a secular purpose, the state declaring that homosexuality is “abhorrent and unnatural” would run afoul of the Establishment Clause.
Regarding the Defense of Marriage Act, assuming without conceding that it has non-religious purposes, even so, it has Equal Protection problems. At least one panel of the Second Circuit Court of Appeals agrees with me on this and ultimately this issue will need to be decided by the Supreme Court.
[/quote]
Again, you are relying upon radical activist justices. Rely on the Constitution and its original intent. Gay men have equal protection under the law. As Kamui pointed out and as I have previously pointed out, they have the exact same right as “straight” men: to marry a woman or not to marry a woman.[/quote]
I’m not relying on any “radical activist judges,” I’m relying on my understanding of the requirements of the Equal Protection Clause and the way that clause has been interpreted by the Supreme Court of the United States over course of history using their Constitutionally authorized and mandated Article III powers. Even the most conservative Article III judges today agree that equal protection under the law means that any classifications the law makes are made without respect to particular persons, that like cases are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference.
In analyzing an Equal Protection Clause claim, courts first ask whether the challenged state action intentionally discriminates between groups of persons. Second, and after an act of intentional discrimination against a particular group is identified either by presumption or evidence and inference, courts ask whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose. Unless a legislative classification or distinction burdens a fundamental right or targets a suspect class, courts will uphold it if it is rationally related to a legitimate end. If an action targets a suspect class, the action receives stricter scrutiny.
The eventual outcome of the gay-marriage issue and the Equal Protection Clause will largely depend on how the issue gets framed, the actual law that gets before the Supreme Court, and the level of scrutiny the Court uses: rational, intermediate, or strict. I personally think that because homosexuality is an immutable characteristic at least for some individuals the issue should be analyzed under at least intermediate scrutiny, but I personally don’t think that banning gay marriage is anything other than arbitrary and capricious state action that is motivated by purely religious reasons and should not even pass the rational-basis test.