I love lamp as well
[quote]jsbrook wrote:
[quote]jsbrook wrote:
Strict scrutiny schmutiny. If a law distinguishes between groups or individuals, and it it not rationally related to any legitimate government interest, it violates the equal protection clause and is unconstitutiuonal.
Why are we arguing over whether sexual orientation is a federally protected class for the purposes of an equal protection analysis? It clearly isn’t. Not really relevant to this opinion. If it was, prohibitions on gay marriage would most assuredly fail very easily. Strict in theory, fatal in fact as they say. [/quote]
I mean that sexual orientation clearly isn’t a protected class under existing federal jurisprudence. Not that it necessarily shouldn’t be.[/quote]
That’s what I’m saying. Why do we need to qualify the validity of protecting sexual orientation based on whether it already is or isn’t federally protected? i.e., “If it’s not currently protected, we shouldn’t have to protect it.”
Why isn’t anyone answering that question?
It can serve as something to discriminate a person on. Because it comprises a large part of identity (at least, mostly for gay & lesbian), it should be granted federal protection.
I’m not sure how it’s fair for an employer, for instance, to deny a gay man the same job for which a heterosexual applied to, the only difference between them being their sexual orientation, meaning differential in skill set and job history are too minor to be used as arguments for selection.
[quote]thunderbolt23 wrote:
[quote]jsbrook wrote:
Strict scrutiny schmutiny. If a law distinguishes between groups or individuals, and it it not rationally related to any legitimate government interest, it violates the equal protection clause and is unconstitutiuonal. [/quote]
Correct, but in cases of race, because of strict scrutiny, the law is presumed unconstitutional, rather than the other way around, and burdens of proof shift. So, no one should be making comparisons between sexual orientation laws and race-related laws - unfit comparisons.
Correct - and this somehow remains an issue for posters who continue to insist and use analogies that conflate sexual orientation and race.
And, technically it is relevant to this opinion - or it will be on appeal, more specifically - since the judge said that strict scrutiny is the appropriate standard of review (butwent to say Prop 8 didn’t even survive rational basis, an odd attempt to set precedent to cover both bases in order to get a result he liked) - but not relevant to the point being attempted by uninformed bozos like Ponce-de-Leon who think that Prop 8 “must fall” for the same reasons Jim Crow, etc. did.
EDIT: changed the underlined from “marriage” to make sense.[/quote]
I’ve skimmed the full opinion now. I wouldn’t call it an odd attempt. The plaintiffs argued that heightened scrutiny was required because gays and lesbians are a suspect class, and in the alternative, argued that the law had no rational basis. This is very common. Also quite common for a court to address both arguments. The issue of strict scrutiny for the due process argument might come into play. It might not. An appellate court would not need to agree that it is right standard to uphold the opinion.
It could agree that the law fails the rational basis test and leave it at that and say something along the lines of “The Court need no determine whether strict scrutiny is the appropriate standard of review to apply to legislativeclassifications based on sexual orientation. Here, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.” Very likely. Appellate courts often don’t make judgments on multiple grounds if they decide a case on one. On the other hand, despite your professed view, in my opinon the court put forth reasonable but brief arguments (pages 121-22) as to why sexual orientation should be subject to strict scrutiny. An appellate court could decide to address it.
The judge was certainly thorough and worked hard to make the opinon bulletproof. But that is not odd. Courts do it all the time.
[quote]thunderbolt23 wrote:
[quote]jsbrook wrote:
Strict scrutiny schmutiny. If a law distinguishes between groups or individuals, and it it not rationally related to any legitimate government interest, it violates the equal protection clause and is unconstitutiuonal. [/quote]
Correct, but in cases of race, because of strict scrutiny, the law is presumed unconstitutional, rather than the other way around, and burdens of proof shift. So, no one should be making comparisons between sexual orientation laws and race-related laws - unfit comparisons.
Correct - and this somehow remains an issue for posters who continue to insist and use analogies that conflate sexual orientation and race.
And, technically it is relevant to this opinion - or it will be on appeal, more specifically - since the judge said that strict scrutiny is the appropriate standard of review (butwent to say Prop 8 didn’t even survive rational basis, an odd attempt to set precedent to cover both bases in order to get a result he liked) - but not relevant to the point being attempted by uninformed bozos like Ponce-de-Leon who think that Prop 8 “must fall” for the same reasons Jim Crow, etc. did.
EDIT: changed the underlined from “marriage” to make sense.[/quote]
I’ve skimmed the full opinion now. I wouldn’t call it an odd attempt. The plaintiffs argued that heightened scrutiny was required because gays and lesbians are a suspect class, and in the alternative, argued that the law had no rational basis. This is very common. Also quite common for a court to address both arguments. The issue of strict scrutiny for the due process argument might come into play. It might not. An appellate court would not need to agree that it is right standard to uphold the opinion.
It could agree that the law fails the rational basis test and leave it at that and say something along the lines of “The Court need no determine whether strict scrutiny is the appropriate standard of review to apply to legislativeclassifications based on sexual orientation. Here, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.” Very likely. Appellate courts often don’t make judgments on multiple grounds if they decide a case on one. On the other hand, despite your professed view, in my opinon the court put forth reasonable but brief arguments (pages 121-22) as to why sexual orientation should be subject to strict scrutiny. An appellate court could decide to address it.
The judge was certainly thorough and worked hard to make the opinon bulletproof. But that is not odd. Courts do it all the time.
[quote]PonceDeLeon wrote:
[quote]jsbrook wrote:
[quote]jsbrook wrote:
Strict scrutiny schmutiny. If a law distinguishes between groups or individuals, and it it not rationally related to any legitimate government interest, it violates the equal protection clause and is unconstitutiuonal.
Why are we arguing over whether sexual orientation is a federally protected class for the purposes of an equal protection analysis? It clearly isn’t. Not really relevant to this opinion. If it was, prohibitions on gay marriage would most assuredly fail very easily. Strict in theory, fatal in fact as they say. [/quote]
I mean that sexual orientation clearly isn’t a protected class under existing federal jurisprudence. Not that it necessarily shouldn’t be.[/quote]
That’s what I’m saying. Why do we need to qualify the validity of protecting sexual orientation based on whether it already is or isn’t federally protected? i.e., “If it’s not currently protected, we shouldn’t have to protect it.”
Why isn’t anyone answering that question?
It can serve as something to discriminate a person on. Because it comprises a large part of identity (at least, mostly for gay & lesbian), it should be granted federal protection.
I’m not sure how it’s fair for an employer, for instance, to deny a gay man the same job for which a heterosexual applied to, the only difference between them being their sexual orientation, meaning differential in skill set and job history are too minor to be used as arguments for selection.[/quote]
I’m not saying that it shouldn’t be. I’m saying that despite (what I’d consider decent) arguments from this court that sexual orientation is the type of characteristic that WARRANTS strict scrutiny, there is actual case law saying otherwise in a more concrete manner.
Particularly relevant here, the Ninth Circuit held that the Supreme Court applied INTERMEDIATE scrutiny to sexual orientation in Lawrence v. Texas. See Witt v. Department of the Air Force, No. 06-35644 (9th Cir. 2008). Suggests that if it decided the issue it would say this Judge got that particular part wrong.
Thunderbolt has shown how gays can’t claim constitutional protection for their schemes. Let’s hope the Court sees things the same way and we remain a nation of laws.
I don’t know why my edit to my last post didn’t go through. Thinking about this, sexual orientation really IS a protected class under federal jurisprudence. Just not one warranting strict scrutiny. Even though laws discriminating on the basis of sexual orientation need not further a “compelling” government interest in the least restrictive means possible, under intermediate scrutiny, they still must further an “important” government interest in a way that is substantially related to that interest. That’s a significantly higher burden that rational basis.
[quote]jsbrook wrote:
[quote]OctoberGirl wrote:
[quote]dmaddox wrote:
Lets put up a list of Protected classes.
Race, Color, Religion, National Origin, Age, and Sex.
Only one is not determined by genes or place of birth and that is Religion. Religion though is spelled out in the Constitution, so that is why that one is in the list. Sexual Orientation is not spelled out in the Constitution.[/quote]
But when the Constitution was written there were slaves which were not free, they were not considered when drafting the Constitution.
Not everything protected in the Constitution should only refer to its inception. Times change. Constitution amended. No more slaves.
Because it was not included then does not mean that it should not be now.
[/quote]
So, if you feel a constitutional amendment is necessary, you don’t buy this decision on the merits? Or you just feel that sexual orientation should be a protected class for OTHER reasons, such as employment discrimination?
[/quote]
What I posted didn’t say that I felt an amendment was necessary.
What I posted was a reminder that the Constitution did not cover every person in the US equally at the time it was drafted. That inequality and non-consideration should be taken in to account when some people keep repeating that if something isn’t in the Constitution it should not ever be in the Constitution. If that were true we would still have slaves and I couldn’t vote.
Thankfully our Constitution can be amended if a circumstance presents itself as necessary.
But folks should really quit saying that just because something wasn’t in the original draft means that it shouldn’t be an amendment now or in the future.
[quote]OctoberGirl wrote:
[quote]jsbrook wrote:
[quote]OctoberGirl wrote:
[quote]dmaddox wrote:
Lets put up a list of Protected classes.
Race, Color, Religion, National Origin, Age, and Sex.
Only one is not determined by genes or place of birth and that is Religion. Religion though is spelled out in the Constitution, so that is why that one is in the list. Sexual Orientation is not spelled out in the Constitution.[/quote]
But when the Constitution was written there were slaves which were not free, they were not considered when drafting the Constitution.
Not everything protected in the Constitution should only refer to its inception. Times change. Constitution amended. No more slaves.
Because it was not included then does not mean that it should not be now.
[/quote]
So, if you feel a constitutional amendment is necessary, you don’t buy this decision on the merits? Or you just feel that sexual orientation should be a protected class for OTHER reasons, such as employment discrimination?
[/quote]
What I posted didn’t say that I felt an amendment was necessary.
What I posted was a reminder that the Constitution did not cover every person in the US equally at the time it was drafted. That inequality and non-consideration should be taken in to account when some people keep repeating that if something isn’t in the Constitution it should not ever be in the Constitution. If that were true we would still have slaves and I couldn’t vote.
Thankfully our Constitution can be amended if a circumstance presents itself as necessary.
But folks should really quit saying that just because something wasn’t in the original draft means that it shouldn’t be an amendment now or in the future.
[/quote]
I actually agree it’s like the “new bible” for people.
[quote]jsbrook wrote:
I’ve skimmed the full opinion now. I wouldn’t call it an odd attempt. The plaintiffs argued that heightened scrutiny was required because gays and lesbians are a suspect class, and in the alternative, argued that the law had no rational basis. This is very common. Also quite common for a court to address both arguments. The issue of strict scrutiny for the due process argument might come into play. It might not. An appellate court would not need to agree that it is right standard to uphold the opinion. [/quote]
It’s odd because the judge set himself for an extended rebuke by “declaring” that sexual orientation deserved strict scrutiny with little basis. Gender doesn’t even get that kind of protection, and the judge never mentioned, addressed or distinguished controlling Supreme Court authority that contradicts the judge’s opinion (see Baker v. Nelson).
Its an ambitious opinion throughout, but the judge’s decision to “throw it all in there” is an offer up of his chin. Even if an appellate court rules on a different issue, he has invited some aggressive dicta that could haunt his obvious goal of mandating gay marriage from the bench.
Yeah, it could, but what do you think the chances are that a court wants to be the first to uphold the standard of strict scrutiny for sexual orientation even when discrimination on the basis of gender doesn’t get that kind of protection?
Feminist groups would file compaints tomorrow if a judge ruled that sexual orientation deserved stict scrutiny.
Yeah, I’m kinda familiar with the process. The point is, a district level judge gave so many oportunities for an appellate court to reverse. Strict scrutiny? An appellate court could say “incorrect standard, remand and apply the right standard”. Just because the judge said “yeah, and by the way, it doesn’t pass rational basis either” doesn’t mean he has “bulletproofed” his opinion from his announcement that strict scrutiny applies.
On appeal, if Prop 8 proponents argue that “he applied the wrong standard” with his big announcement that, yes, strict scrutiny applied, his “cover” of saying the law doesn’t even pass rational basis is in danger.
Of course, all of this could have been taken care of had the judge actually been willing to - as he should have been - rule on these issues as a matter of law prior to the trial. But he didn’t want to and risk an unfavorable interlocutory appeal instructing him to use a standard at trial that he didn’t want to use in his full decision - so he insisted on a full, fact presentation trial so he could collect “facts” that “substantiated” a brand new “standard” he concocted.
This judge had his agenda, and by gum, nothing was going to stand in his way.
[quote]thunderbolt23 wrote:
[quote]jsbrook wrote:
I’ve skimmed the full opinion now. I wouldn’t call it an odd attempt. The plaintiffs argued that heightened scrutiny was required because gays and lesbians are a suspect class, and in the alternative, argued that the law had no rational basis. This is very common. Also quite common for a court to address both arguments. The issue of strict scrutiny for the due process argument might come into play. It might not. An appellate court would not need to agree that it is right standard to uphold the opinion. [/quote]
It’s odd because the judge set himself for an extended rebuke by “declaring” that sexual orientation deserved strict scrutiny with little basis. Gender doesn’t even get that kind of protection, and the judge never mentioned, addressed or distinguished controlling Supreme Court authority that contradicts the judge’s opinion (see Baker v. Nelson).
Its an ambitious opinion throughout, but the judge’s decision to “throw it all in there” is an offer up of his chin. Even if an appellate court rules on a different issue, he has invited some aggressive dicta that could haunt his obvious goal of mandating gay marriage from the bench.
Yeah, it could, but what do you think the chances are that a court wants to be the first to uphold the standard of strict scrutiny for sexual orientation even when discrimination on the basis of gender doesn’t get that kind of protection?
Feminist groups would file compaints tomorrow if a judge ruled that sexual orientation deserved stict scrutiny.
Yeah, I’m kinda familiar with the process. The point is, a district level judge gave so many oportunities for an appellate court to reverse. Strict scrutiny? An appellate court could say “incorrect standard, remand and apply the right standard”. Just because the judge said “yeah, and by the way, it doesn’t pass rational basis either” doesn’t mean he has “bulletproofed” his opinion from his announcement that strict scrutiny applies.
On appeal, if Prop 8 proponents argue that “he applied the wrong standard” with his big announcement that, yes, strict scrutiny applied, his “cover” of saying the law doesn’t even pass rational basis is in danger.
Of course, all of this could have been taken care of had the judge actually been willing to - as he should have been - rule on these issues as a matter of law prior to the trial. But he didn’t want to and risk an unfavorable interlocutory appeal instructing him to use a standard at trial that he didn’t want to use in his full decision - so he insisted on a full, fact presentation trial so he could collect “facts” that “substantiated” a brand new “standard” he concocted.
This judge had his agenda, and by gum, nothing was going to stand in his way.[/quote]
I don’t think an appelate court will uphold a standard of strict scrutiny because I think the 9th Circuit can most fairly be read as having endorsed a standard of intermediate scrutiny. The proponents of Prop 8 will have a dilemma with respect to reminding the Court of this fact though in arguing against strict scrutiny, having probably argued that rational basis is the appropriate standard (though I have not read and have no time to read their briefs to the lower court). As far as the liberal 9th Circuit being at all swayed against making a decision on the proper level of scrutiny out of concern from protests from feminist groups, I don’t think they give a shit. They may well not touch the issue, but I don’t think that’d be the reason.
I didn’t mean that the judge “bullet-proofed” his opinion in the sense that it can’t be be reversed. Sure, there are a lot of opportunities to reverse. But that, in my opinon, cuts much more strongly the other way. My point was that he addressed a lot of grounds, giving the higher court the opportunity to uphold on any number of grounds without addressing issues they prefer to avoid. Or, altenatively, rejecting some of the legal and factual determinations of the trial court but still upholding the opinion. As far as the specifics of his ‘cover’ of using rational basis being in danger, I don’t think so at all. The judge had extensive findings of fact and devoted pages as to how no legitimate government interest existed.
I’ll be interested in following this and will have to actually sit down and read the full opinon if I ever have time.
Actually, skimming back through Witt, the 9th Circuit ruled that “Don’t Ask Don’t Tell” requires intermediate scrutiny under substantive due process but declined to address the issue under equal protection. So, I guess there is no definitive statement from a higher court. I was wondering how this court could have avoided discussing Witt. Makes more sense now.
Update: 9th Circuit stayed the district court’s order that gay marriages are to be issued immediately. Opponents of Prop 8 are said not to appealing the decision. Oral arguments scheduled for December 6, 2010.
Ninth Cicruit stayed the ruling and ordered an expedited briefing schedule:
[quote]thunderbolt23 wrote:
Update: 9th Circuit stayed the district court’s order that gay marriages are to be issued immediately. Opponents of Prop 8 are said not to appealing the decision. Oral arguments scheduled for December 6, 2010.[/quote]
Beat me to it.