[quote]pushharder wrote:
[quote]DBCooper wrote:
[quote]pushharder wrote:
[quote]DBCooper wrote:
[quote]SexMachine wrote:
[quote]DBCooper wrote:
Your argument holds no merit. If gays are a suspect class, they can get married to one another.
[/quote]
No. How can a man marry a man? That is not what marriage is.
But they DO have the same rights in relation to marriage as straight people. They can marry ANY woman of age that consents. So your argument doesn’t hold any water. Both straight men and gay men are being treated EXACTLY the same and have all the same rights…actually, gays have considerably more rights with all the anti-discrimination legislation; appropriately Orwellian name.
Your analogy is flawed too. A better analogy would be someone who demands to have their child David recognised as their daughter. After all what is gender? And what is a ‘mother?’ I demand maternity leave to look after my daughter David. After all, I’m the MOTHER you see.[/quote]
Look, if marriage is a fundamental right, then the definition of it as far as the govt goes has to be changed to being between two consenting adults. I don’t know how much clearer I can make this. To say, well, you can marry anyone you want except for the person you love is ridiculous and entirely discriminatory if other people CAN turn around and marry the one they love.
After all, what is marriage? It’s a union between two consenting adults who love each other. If it is also a fundamental right yet can only be between a man and a woman, gays are effectively banned from enjoying the same right that you or I can enjoy. If it isn’t a fundamental right then this whole argument is moot.
The Court, when deciding whether marriage is a fundamental right or not, will look at traditions and history to determine whether marriage is an integral part of western society. They’ll use English common law, previous case precedent in this country and so forth. I think that they will find that marriage is an integral part of society and has been for a long time. But they aren’t going to sit there and say, gee, nowhere have gays been allowed to marry before so it goes against tradition. Their job in this respect isn’t to determine whether discrimination has longstanding roots in this country and so forth. If the Court did look at things this way then blacks would still be segregated. Their aim will simply be to decide whether the ability to marry the person one loves is so deeply rooted in society that it must be a fundamental right. They aren’t looking to determine whether discrimination is the longstanding tradition but rather if the “right” being denied is a fundamental one.[/quote]
“Model 2” in full bloom.[/quote]
There’s nothing inherently wrong with the Model 2 approach. It’s that approach that led to Brown v. Board of Education and it’s also that approach that protects gun rights. After all, a purely Model One approach would say that while we have the right to bear arms, we don’t specifically have the right enumerated to us to bear ANY arms. The Model Two approach was employed in Bush v. Gore, and they got it right.
The funny thing about that ruling was that the Model One Justices (Scalia, Rehnquist, Thomas, Kennedy and to a lesser extent O’Connor) invoked the Equal Protection Clause and the case precedent that expanded it in the biggest Model Two Court ever (the Warren Court) in coming to their conclusion. The Model Two Justices (Souter, Breyer partially dissented, Ginsburg and Stevens fully dissented) went against the application of the EPC in this instance. So both sides went against literally all of their previous opinions in EPC cases to arrive at their conclusions.[/quote]
I think I understand what you mean here but Model Two is flippin’ disaster. At its core it’s nothing more than an end run around the amendment process.[/quote]
I fully agree that the Model Two approach hasn’t always led to the best decisions, Roe v. Wade being the most egregious. But of course, the big knock on the Model One approach is that it is an end run around the Equal Protection Clause and the Due Process Clause.
I think most Justices understand that neither approach is inherently right all the time. I think that’s part of the reason there are these tests that the Court uses with the Model Two approach, in order to avoid legislating from the bench (strict scrutiny, rational basis test and heightened/intermediate scrutiny to name the major ones).