PDA

View Full Version : U.S. Issues Should the legality of gay marriage be left to the states?


mlyonsd
04-03-2009, 04:25 PM
I personally think marriage should be limited to a woman and a man but don't care enough about the issue if the voters in my state decide it should be allowed.

So, should gay marriage be decided at the state level or is it a fundamental right no matter what?

Public poll to follow.

petegz28
04-03-2009, 04:30 PM
I really wanted to side with the State's Rights issue. But it is not legit. We cannot dictate to others what lifestyle they must choose when the one they want does not infringe upon the Rights or safety of others.

Therefore, as long as the Fed Gov aknowledges and provides certain standing for married couples, we cannot leave it at the State level.

mlyonsd
04-03-2009, 04:32 PM
In retrospect I probably should have had an option for no, no matter what but I'm sure there aren't any hard core bigots on the planet that would think that.

mlyonsd
04-03-2009, 04:36 PM
I really wanted to side with the State's Rights issue. But it is not legit. We cannot dictate to others what lifestyle they must choose when the one they want does not infringe upon the Rights or safety of others.

Therefore, as long as the Fed Gov aknowledges and provides certain standing for married couples, we cannot leave it at the State level.

If marriage was specifically mentioned in the constitution I'd agree. But since it isn't I believe the founding fathers either never thought of it or consider something like this be left to the states.

petegz28
04-03-2009, 04:38 PM
If marriage was specifically mentioned in the constitution I'd agree. But since it isn't I believe the founding fathers either never thought of it or consider something like this be left to the states.

The fact it is not spelled out in the Constitution is exactly why it becomes a form of discrimination. Gay people pay taxes the same as straight people. Therefore they are entitled to go to the courthouse and get hitched.

mlyonsd
04-03-2009, 04:48 PM
The fact it is not spelled out in the Constitution is exactly why it becomes a form of discrimination. Gay people pay taxes the same as straight people. Therefore they are entitled to go to the courthouse and get hitched.

The tax code can be re-written to accomplish the same thing.

petegz28
04-03-2009, 04:50 PM
The tax code can be re-written to accomplish the same thing.

Until that happens the gay marriage-crowd have a legit argument. Among other reasons.

This is why the Gov doesn't need to poke their nose into marriage.

Mr. Kotter
04-03-2009, 04:55 PM
Because of Full Faith and Credit, Constitutionally speaking....it cannot be left to the states utlimately.


http://legal-dictionary.thefreedictionary.com/Full+Faith+and+Credit+Clause

Article IV, Section 1:

...states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

Adept Havelock
04-03-2009, 05:18 PM
No. I don't think an individual state should be able to bar people from entering into what is (legally speaking) merely a civil contract between them, based solely on gender.

Mr. Flopnuts
04-03-2009, 05:18 PM
This has become such a hot topic over the last few years that it's time for the people to decide. I do think firmly though that according to our constitution all people are equal and therefore gays are entitled to equal rights and benefits of marriage.

Basically, if the people vote down gay marriage, civil unions immediately are entitled to all of the rights and privileges of marriage. They just don't get to call it that.

alnorth
04-03-2009, 06:02 PM
No. I am a pretty big believer in state's rights and the concept of local political experimentation helping us all by figuring out what works, etc. This steps across the line. I see no difference whatsoever between banning gay marriage or banning interracial dating. As the very thoughtful Iowa opinion clearly laid out, the ban does not further any important governmental objective. Religions can do whatever the hell they want, but a civil marriage contract MUST be secular, and when you strip out the religious noise in this debate, this is a clear violation of basic civil rights.

An important part of the constitution and the judiciary is to protect a disfavored minority from the arbitrary tyranny of the majority. This should not be up for debate.

mcan
04-03-2009, 06:18 PM
I voted option #3, because it's the right thing to do. However, it really doesn't matter much in the long run. Eventually, gays will be able to marry anywhere they want, and the states that take their sweet time catching up to the modern world will have to look back at their past with the shame brought upon all bigots.

This will only take time.

SBK
04-03-2009, 09:10 PM
As someone who lives in the south, and has gained a new exposure to the civil rights struggles and things--it's such an insult to compare what rights black folks were denied and what "rights" people who are living homosexual lifestyles are "denied."

It's so offensive it's unbelievable.

alnorth
04-03-2009, 09:35 PM
As someone who lives in the south, and has gained a new exposure to the civil rights struggles and things--it's such an insult to compare what rights black folks were denied and what "rights" people who are living homosexual lifestyles are "denied."

It's so offensive it's unbelievable.

So, does this mean we need to start hanging gay people from trees for a while until we feel sorry for them enough to treat them equally? Some sort of frat hazing process they need to go through?

SBK
04-03-2009, 09:40 PM
So, does this mean we need to start hanging gay people from trees for a while until we feel sorry for them enough to treat them equally? Some sort of frat hazing process they need to go through?

This is my point. Black people were owned property. Their mistreatment was an abomination. The worst thing this country has EVER, and will ever, do. To compare the 2 is absurd.

CaptainMorgan
04-03-2009, 10:10 PM
This is my point. Black people were owned property. Their mistreatment was an abomination. The worst thing this country has EVER, and will ever, do. To compare the 2 is absurd.

This is spot on...to compare the two is flat out insulting.

alnorth
04-03-2009, 10:23 PM
This is spot on...to compare the two is flat out insulting.

I strongly disagree. I didnt see anyone here daring to say that gay people have gone through the same struggle as blacks. However, when you look at it legally, which is the only way I was looking at it, there is no difference. Legally, this is a pure, clear, and obvious civil rights issue that is no different than a ban on interracial dating.

CaptainMorgan
04-03-2009, 10:36 PM
What I think people have a problem with (myself included) is the attempt to analogize the fight for gay rights with the blacks' fight for equality.

Mr. Kotter
04-03-2009, 10:55 PM
As someone who lives in the south, and has gained a new exposure to the civil rights struggles and things--it's such an insult to compare what rights black folks were denied and what "rights" people who are living homosexual lifestyles are "denied."

It's so offensive it's unbelievable.

Nailed it, man. :thumb:

Mr. Kotter
04-03-2009, 10:59 PM
I strongly disagree. I didnt see anyone here daring to say that gay people have gone through the same struggle as blacks. However, when you look at it legally, which is the only way I was looking at it, there is no difference. Legally, this is a pure, clear, and obvious civil rights issue that is no different than a ban on interracial dating.

Obviously, you skipped a lot of school/or you went to a really, really crappy school.....because you missed the Biology classes "Genetics," our Psychology/Sociology lesson on Abnormal Psych and Deviancy, and you Government class on Civil Rights law including the discussion of full-faith-and-credit. Remedial education lessons for you, Buster.

SBK
04-03-2009, 11:25 PM
I strongly disagree. I didnt see anyone here daring to say that gay people have gone through the same struggle as blacks. However, when you look at it legally, which is the only way I was looking at it, there is no difference. Legally, this is a pure, clear, and obvious civil rights issue that is no different than a ban on interracial dating.

I'm from Iowa, trust me, you need to form your opinion on this after spending some time down south.

alnorth
04-04-2009, 01:00 AM
Well, damn. I disagree with you, but cant think of a good logical reason why you are wrong. Secretly I realize my side's arguments are probably pretty weak, so instead I'll respond with a personal insult by suggesting you are uneducated

Yeah, thanks for that

alnorth
04-04-2009, 01:02 AM
What I think people have a problem with (myself included) is the attempt to analogize the fight for gay rights with the blacks' fight for equality.

Your mistake is incorrectly adding in the emotional aspect of the horrific history of the black struggle instead of just accepting the perfectly valid (and correct) legal analogy. I didn't make that black suffering = gay suffering argument, so that's not really my problem, its yours.

SBK
04-04-2009, 01:08 AM
Your mistake is incorrectly adding in the emotional aspect of the horrific history of the black struggle instead of just accepting the perfectly valid (and correct) legal analogy. I didn't make that black suffering = gay suffering argument, so that's not really my problem, its yours.

It's not the same (and correct) legal analogy, nor is it valid. It's insulting.

alnorth
04-04-2009, 01:12 AM
It's not the same (and correct) legal analogy, nor is it valid. It's insulting.

fine, be insulted if you want.

The legal analogy is valid because a class of people who were historically subjected to discrimination (though that part isnt really relevant to me) was arbitrarily denied access to a very important basic right without a defensible public interest.

As far as I can tell, the real reasons for all of this is either 1) "my God told me to", and/or 2) "I think gay people are gross."

SBK
04-04-2009, 01:14 AM
fine, be insulted if you want.

The legal analogy is valid because a class of people who were historically subjected to discrimination (though that part isnt really relevant to me) was arbitrarily denied access to a very important basic right without a defensible public interest.

:LOL:

I'm glad I'm not you.

CaptainMorgan
04-04-2009, 08:09 AM
Your mistake is incorrectly adding in the emotional aspect of the horrific history of the black struggle instead of just accepting the perfectly valid (and correct) legal analogy. I didn't make that black suffering = gay suffering argument, so that's not really my problem, its yours.


From a legal perspective, the type, extent and context of rights denial experienced by blacks is much different and far worse

Mr. Kotter
04-04-2009, 08:14 AM
Your mistake is incorrectly adding in the emotional aspect of the horrific history of the black struggle instead of just accepting the perfectly valid (and correct) legal analogy. I didn't make that black suffering = gay suffering argument, so that's not really my problem, its yours.

In it simplest form, black people are genetically black. The same cannot (not yet, perhaps never) be said for homosexuals.

It's an important legal distinction despite your attempt to ignore it.

From a legal perspective, the type, extent and context of rights denial experienced by blacks is much different and far worse

Another very important distinction the gay rights folks refuse to acknowledge/accept.

BucEyedPea
04-04-2009, 09:44 AM
I don't see gay marriage as a fundamental alienable right. I also don't see general marriage as a right either since we all have to get a liscense which is seeking permission for something one need not do if it's truly a right. There are other restrictions on marriage too.

I think it belongs to the states however they want to do it. I'd favor referendum here. So that's what I chose.

I am fine on it, provided the state wasn't involved in any marriage ( save age and blood), there was no liscensing and I didn't have to pay any taxpayer money to them for the consequences of their lifestyle. Afterall, we do live in a welfare state. But I am wary of protecting this as a civil right as it sets them up to sue private companies, like insurance, which restricts the rights of those groups. This is where I feel arguing it as a civil right leads. Hence, why I don't see it as fundamental or inalienable.

KC native
04-04-2009, 10:28 AM
From a legal perspective, the type, extent and context of rights denial experienced by blacks is much different and far worse

That still doesn't justify taking rights that heteros have from gay couples.

irishjayhawk
04-04-2009, 10:33 AM
I voted option #3, because it's the right thing to do. However, it really doesn't matter much in the long run. Eventually, gays will be able to marry anywhere they want, and the states that take their sweet time catching up to the modern world will have to look back at their past with the shame brought upon all bigots.

This will only take time.

This.

patteeu
04-04-2009, 10:35 AM
The fact it is not spelled out in the Constitution is exactly why it becomes a form of discrimination. Gay people pay taxes the same as straight people. Therefore they are entitled to go to the courthouse and get hitched.

I pay taxes just like an an impoverished person (well, I pay taxes even if, in some cases, they don't) so should I be able to call FNS and get on the distribution list for food stamps?

Gay people can already get hitched just like straight people. Some of them, in fact, do (http://www.msnbc.msn.com/id/24470645/).

KC native
04-04-2009, 10:41 AM
I pay taxes just like an an impoverished person (well, I pay taxes even if, in some cases, they don't) so should I be able to call FNS and get on the distribution list for food stamps?

Gay people can already get hitched just like straight people. Some of them, in fact, do (http://www.msnbc.msn.com/id/24470645/).

But if the state that they live in doesn't recognize it then they have none of the spousal rights associated with marriage including (but not limited to):

life or death decisions (life support for the dummies)
direct transfer of property to the surviving spouse in the event one dies
not being covered by a spouse's health insurance

patteeu
04-04-2009, 10:45 AM
I strongly disagree. I didnt see anyone here daring to say that gay people have gone through the same struggle as blacks. However, when you look at it legally, which is the only way I was looking at it, there is no difference. Legally, this is a pure, clear, and obvious civil rights issue that is no different than a ban on interracial dating.

When you look at it "legally", you ought to have some respect for the constitution instead of letting your personal sympathy drive your opinion.

And the truth is that there IS a difference between people who are black, can't choose not to be black, and can't hide the fact that they are black even if they wanted to, and homosexuals who have choices even if those choices are unpalatable to most.

patteeu
04-04-2009, 10:46 AM
But if the state that they live in doesn't recognize it then they have none of the spousal rights associated with marriage including (but not limited to):

life or death decisions (life support for the dummies)
direct transfer of property to the surviving spouse in the event one dies
not being covered by a spouse's health insurance

You clearly didn't bother to click on the link and read even the headline.

KC native
04-04-2009, 10:50 AM
You clearly didn't bother to click on the link and read even the headline.

Now I did and it's irrelevant to the thread. I knew I shouldn't have expected anything relevant from you.

patteeu
04-04-2009, 10:51 AM
fine, be insulted if you want.

The legal analogy is valid because a class of people who were historically subjected to discrimination (though that part isnt really relevant to me) was arbitrarily denied access to a very important basic right without a defensible public interest.

As far as I can tell, the real reasons for all of this is either 1) "my God told me to", and/or 2) "I think gay people are gross."

It's not that the public interest is indefensible, it's that you don't personally agree with it. Encouraging the growth of families with intact parents is a legitimate public policy goal and doing so by encouraging marriage between men and women is a defendable approach toward that goal even if you don't agree that it's the best approach or even if you don't agree with the goal to begin with. That's a matter that should be debated and decided by the legislature, not a judge.

patteeu
04-04-2009, 10:52 AM
Now I did and it's irrelevant to the thread. I knew I shouldn't have expected anything relevant from you.

It's proof that gay people aren't denied equal protection under the law.

KC native
04-04-2009, 10:54 AM
It's proof that gay people aren't denied equal protection under the law.

:spock:Really? You're going to try and make that argument? The guy was married to a woman and then decided he was gay. How does that have any relevance to two men/women wanting to get married to eachother and enjoy the same rights as hetero marriages?

KC native
04-04-2009, 10:55 AM
It's proof that gay people aren't denied equal protection under the law.

Nice quick edit and it does no such thing.

Edit: Ah you took out the sentence I was trying to quote. Quick fingers there patty

petegz28
04-04-2009, 10:56 AM
It's not that the public interest is indefensible, it's that you don't personally agree with it. Encouraging the growth of families with intact parents is a legitimate public policy goal and doing so by encouraging marriage between men and women is a defendable approach toward that goal even if you don't agree that it's the best approach or even if you don't agree with the goal to begin with. That's a matter that should be debated and decided by the legislature, not a judge.

:huh:

patteeu
04-04-2009, 11:12 AM
Nice quick edit and it does no such thing.

Edit: Ah you took out the sentence I was trying to quote. Quick fingers there patty

Jeez, it was only in there for 5 or 10 seconds before I decided to tone done the antagonism a bit. But since you saw it, I'll let anyone else who is interested know that I had a second sentence that pointed out that the article shows that your statement in post 30 is false. No rights afforded to heterosexuals (in the area of marriage) have been taken away from gays. If Governor McGreevey had been forbidden from getting married in the first place simply because he was gay, it would be an example of the kind of thing you claim is going on.

patteeu
04-04-2009, 11:18 AM
:spock:Really? You're going to try and make that argument? The guy was married to a woman and then decided he was gay. How does that have any relevance to two men/women wanting to get married to eachother and enjoy the same rights as hetero marriages?

Again, he exercised the same right as any male, hetero or homo. He married.

A lot of people, probably most people, have to "settle" to some extent when they decide on a mate. (Of course, if my wife is checking up on me I'd like to make it clear that I'm in the minority here and didn't have to settle at all, even if she is the Mother Theresa of settlers). Just because you have desire for one thing doesn't mean you are entitled to it.

BTW, are you trying to tell me that Governor McGreevey didn't know he was gay when he married that woman? I find that highly doubtful. I'm sure he was conflicted, but in the end there was a reason why he married that woman. Maybe he wanted to have kids or maybe he thought it would help him advance his political career. Gay marriage wouldn't have necessarily helped him in either of those areas. In the end, he, like most of us, would have had to "settle" one way or the other whether gay marriage was an option or not.

BucEyedPea
04-04-2009, 12:05 PM
The fact it is not spelled out in the Constitution is exactly why it becomes a form of discrimination. Gay people pay taxes the same as straight people. Therefore they are entitled to go to the courthouse and get hitched.
Except that the national congress hasn't passed any laws against them marrying. States have. It's none of the Federal govt's business that's why the Constitution doesn't address it.

Simplex3
04-04-2009, 12:39 PM
A bunch of you whiners reminded me of a quote from the movie PCU:

Afrocentrist: I'm a black man. There's no justice for me in America - I should be at the front of the line.

Gay Leader: Yeah, well, I'm gay and subject to ridicule and discrimination wherever I go!

Womynist Leader: Women are oppressed throughout the world, give it a rest!

Everybody jockeying to be at the head of the "I'm so put upon" line. Spare me.

alnorth
04-04-2009, 03:04 PM
In it simplest form, black people are genetically black. The same cannot (not yet, perhaps never) be said for homosexuals.

It's an important legal distinction despite your attempt to ignore it.

Irrelevant.

Even if we (LOL) granted your opinion that gays are gay because they want to be, that does not justify discrimination here. The state needs to have a compelling interest to outlaw same-sex marriage. Saying "they dont have to be gay" doesnt cut it.

alnorth
04-04-2009, 03:06 PM
I pay taxes just like an an impoverished person (well, I pay taxes even if, in some cases, they don't) so should I be able to call FNS and get on the distribution list for food stamps?

Gay people can already get hitched just like straight people. Some of them, in fact, do (http://www.msnbc.msn.com/id/24470645/).

The state has an easily-defensible compelling interest to conserve resources by giving food stamps to poor people and not to middle-class. A better analogy would be giving food stamps to poor people who live in white houses, but not to poor people who live in yellow houses. That is arbitrary and would violate equal protection for yellow-house people.

The problem here is there is NO defensible public interest to outlaw same-sex marriage WHATSOEVER. If there is a very good reason to discriminate, then its allowed. In this case though, after the weak arguments for it are knocked down, gay marriages are basically being banned "just because", which runs into equal protection.

alnorth
04-04-2009, 03:09 PM
And the truth is that there IS a difference between people who are black, can't choose not to be black, and can't hide the fact that they are black even if they wanted to, and homosexuals who have choices even if those choices are unpalatable to most.

Irrelevant.

Even if being gay was a choice, there is no compelling state interest to ban gay marriage.

alnorth
04-04-2009, 03:16 PM
It's not that the public interest is indefensible, it's that you don't personally agree with it. Encouraging the growth of families with intact parents is a legitimate public policy goal and doing so by encouraging marriage between men and women is a defendable approach toward that goal even if you don't agree that it's the best approach or even if you don't agree with the goal to begin with. That's a matter that should be debated and decided by the legislature, not a judge.

It is true that those could be defensible public interests. I did not say there was no possible public interests that we could sit around a table and theoretically dream up with or without any proof, the state actually came up with five. The problem was they could not defend those 5 public interests.

Also another important fact is since we are talking about a historically disfavored group, the interest had to pass a heightened level of scrutiny so the "rational basis" would not be good enough. (eg for normal laws that dont target a disfavored group, the court has some deference and allows it if a rational argument could be made even if you have little proof. For the heightened scrutiny, you actually need to PROVE that what your doing is advancing the compelling public interest)

First, the state failed to show that banning gay marriage does anything to "encourage the growth of families". The state actually tried to argue that banning gay marriage would encourage more people to have children. That seems laughable on its face to me, but the court went ahead and took it seriously enough to say there is no evidence of this. The court also pointed out that gay people were adopting and having children without marriage.

The state also tried to argue that banning gay marriage would encourage more heterosexual marriages. This is also laughable on its face, implying that you would somehow convince a significant number of gays to not be gay anymore. There was no convincing evidence that this is true.

Bob Dole
04-04-2009, 03:46 PM
I personally think marriage should be limited to a woman and a man but don't care enough about the issue if the voters in my state decide it should be allowed.

So, should gay marriage be decided at the state level or is it a fundamental right no matter what?

Public poll to follow.

There are a whole host of things that should be left to the state (or even county/municipal) level.

alnorth
04-04-2009, 03:49 PM
To follow-up, here are the 5 reasons the state gave for banning gay marriage. (The court gets very wordy, so I'll summarize.)

1) Preservation of the tradition of marriage

Court's response:

a) This was basically dismissed pretty quickly. Preserving a tradition that discriminates against a historically disfavored group of people can not be justified just on the basis of tradition. If it could, then you have a circular argument that racial and gender discrimination could be justified because of tradition. (Why do we discriminate? Tradition. Can we change tradition to not discriminate? No, we have a compelling interest to preserve tradition. Why is this a compelling interest? It just is, its tradition.)

2) We need to promote the optimal environment to raise children

Court's response:

a) child abusers, sexual predators, parents who dont provide child support, and violent felons are likely to be worse parents than a gay couple, but aren't all prohibited from having children or from marrying. The gay marriage ban is therefore under-inclusive and unfairly targets gays without including these people

b) not all gay couples choose to have children. The ban is therefore unfairly over-inclusive of childless gay couples.

c) Same-sex couples can and do raise children without marriage, so this ban does little to advance this state interest.

d) There is convincing evidence that children are better off raised by 2 people, but no compelling evidence that children are worse off with a gay couple vs a hetero couple, so there is no proof that the state interest is advanced by the ban.

3) We need to promote procreation

Court's response:

a) heterosexual marriage does promote procreation, but the state failed to show that not allowing gay marriage would promote more procreation.

b) There is no compelling evidence that a gay marriage ban would cause a significant number of gays to "become" heterosexual.

c) even if gays could somehow become heterosexual, the gay marriage ban is under-inclusive because it doesnt also ban marriage for heterosexual couples who do not procreate due to age, disability, or choice.

4) We need to promote stability in opposite-sex relationships

Court's response:

a) heterosexual marriage does encourage stability in opposite-sex relationships, but the state did not even offer a reason why banning gay marriage would improve stability in opposite-sex relationships.

5) Marriage includes tax benefits that cost the state money, and the state needs to conserve resources

Court's response:

a) a gay marriage ban could conserve state resources, but excluding any group from marriage, blacks, aliens, even red-haired people could also conserve resources in an equally "rational" way. These other classifications would be so offensive that the courts have not hesitated to add protections against those inequalities.

b) excluding all same-sex marriages is an extremely blunt instrument for conserving state resources, and is over-inclusive because it unfairly targets those same-sex couples who would not have consumed more state resources if allowed to marry. (many straight couples dont file jointly, arent on welfare, etc)

c) If the goal is truely to conserve state resources, this ban is arbitrary because there are very few gay couples relative to the population. There are many other similarly-small groups the state could have chosen to bar from marriage to conserve resources.

From there, the court went on to say that the real unspoken reason for the ban was religion. The court observed that the state likely didn't bring up a religious argument because they knew it would fail. The court also said that religious groups would still be free to not marry who they choose, but a civil marriage can not be restricted due to religion.

KC native
04-04-2009, 04:08 PM
Jeez, it was only in there for 5 or 10 seconds before I decided to tone done the antagonism a bit. But since you saw it, I'll let anyone else who is interested know that I had a second sentence that pointed out that the article shows that your statement in post 30 is false. No rights afforded to heterosexuals (in the area of marriage) have been taken away from gays. If Governor McGreevey had been forbidden from getting married in the first place simply because he was gay, it would be an example of the kind of thing you claim is going on.

Semantics. They may not have been taken but they sure as hell haven't been given. Doesn't change the fact that they aren't getting the same rights that heteros get.

whoman69
04-04-2009, 09:53 PM
Let's make a list of all the things that a gay couple cannot do if they cannot at least have civil unions that are legally equal to a heterosexual marriage.

1) Hospital visitation of an ill partner
2) Making concerned decisions for an ill partner unable to make those decisions
3) Upon a split having child visitation or custody rights
4) Inheritance rights
5) The most basic right of making a public statement that they are joined together

I'm sure there are a list of others left off the list. To say that only heterosexual couples should be afforded these rights is descriminatory and thus should be illegal.

patteeu
04-05-2009, 06:32 AM
Semantics. They may not have been taken but they sure as hell haven't been given. Doesn't change the fact that they aren't getting the same rights that heteros get.

You're confusing privileges with rights. Nontheless, gay people have the same access to the privileges of marriage as straight people do. What they don't have is an additional set of privileges that might be more to the liking of a majority of gays.

Traditional car purchasers have the same privileges as hybrid car purchasers too, in that both could get the tax benefit for buying hybrid if they chose to go down that path. What they don't have is an additional set of parallel privileges that gets them the tax benefit for buying the non-hybrid that they prefer.

patteeu
04-05-2009, 06:39 AM
The state has an easily-defensible compelling interest to conserve resources by giving food stamps to poor people and not to middle-class. A better analogy would be giving food stamps to poor people who live in white houses, but not to poor people who live in yellow houses. That is arbitrary and would violate equal protection for yellow-house people.

The problem here is there is NO defensible public interest to outlaw same-sex marriage WHATSOEVER. If there is a very good reason to discriminate, then its allowed. In this case though, after the weak arguments for it are knocked down, gay marriages are basically being banned "just because", which runs into equal protection.

AFAIC, you're wrong. Just because you don't agree with the public interests being pursued or with the idea that traditional marriage laws are a legitimate way to pursue them doesn't mean they're indefensible. I don't agree with the laws either, but at least I can admit that they are arguably supportive of a legitimate public interest and that reasonable people can disagree on the subject. As long as that's the case, the legislature is where these disputes should be resolved.

It is a legitimate public interest to promote child bearing and child rearing in stable families. Encouraging men and women to form lifelong partnerships together by granting special privileges to these unions is a part of an approach toward serving that interest that reasonable people can support.

patteeu
04-05-2009, 07:04 AM
It is true that those could be defensible public interests. I did not say there was no possible public interests that we could sit around a table and theoretically dream up with or without any proof, the state actually came up with five. The problem was they could not defend those 5 public interests.

Also another important fact is since we are talking about a historically disfavored group, the interest had to pass a heightened level of scrutiny so the "rational basis" would not be good enough. (eg for normal laws that dont target a disfavored group, the court has some deference and allows it if a rational argument could be made even if you have little proof. For the heightened scrutiny, you actually need to PROVE that what your doing is advancing the compelling public interest)

You and I have different views of the constitution. You accept the modern view that allows for creative interpretation of the document and disregards the original intent of those who ratified it. I don't. Your view tends to prevail so bully for you, but it also destroys the value of having a constitution as the foundation for our legal system over time.

But I'm not sure we're there yet. It's been a while since I've reviewed the state of equal protection jurisprudence, but the last time I looked, there was no such thing as a generic "historically disfavored group" that earned any kind of heightened scrutiny. Instead, there were specific groups that earned such heightened scrutiny and it's not clear to me that sexual preference bought you much more than the "rational basis" test. In any event, if this has changed in the past few years, it's another example of our Constitution's erosion of meaning.

First, the state failed to show that banning gay marriage does anything to "encourage the growth of families". The state actually tried to argue that banning gay marriage would encourage more people to have children. That seems laughable on its face to me, but the court went ahead and took it seriously enough to say there is no evidence of this. The court also pointed out that gay people were adopting and having children without marriage.

The state also tried to argue that banning gay marriage would encourage more heterosexual marriages. This is also laughable on its face, implying that you would somehow convince a significant number of gays to not be gay anymore. There was no convincing evidence that this is true.

How is a state supposed to prove such things? Must they try every permutation of a policy in order to generate empirical data before they can begin to make decisions? How can they try all permutations if they have to prove that a permutation is empirically correct before they can try it? This whole idea that the state must prove it's theories before it can follow them is ludicrous.

patteeu
04-05-2009, 07:15 AM
To follow-up, here are the 5 reasons the state gave for banning gay marriage. (The court gets very wordy, so I'll summarize.)

1) Preservation of the tradition of marriage

Court's response:

a) This was basically dismissed pretty quickly. Preserving a tradition that discriminates against a historically disfavored group of people can not be justified just on the basis of tradition. If it could, then you have a circular argument that racial and gender discrimination could be justified because of tradition. (Why do we discriminate? Tradition. Can we change tradition to not discriminate? No, we have a compelling interest to preserve tradition. Why is this a compelling interest? It just is, its tradition.)

2) We need to promote the optimal environment to raise children

Court's response:

a) child abusers, sexual predators, parents who dont provide child support, and violent felons are likely to be worse parents than a gay couple, but aren't all prohibited from having children or from marrying. The gay marriage ban is therefore under-inclusive and unfairly targets gays without including these people

b) not all gay couples choose to have children. The ban is therefore unfairly over-inclusive of childless gay couples.

c) Same-sex couples can and do raise children without marriage, so this ban does little to advance this state interest.

d) There is convincing evidence that children are better off raised by 2 people, but no compelling evidence that children are worse off with a gay couple vs a hetero couple, so there is no proof that the state interest is advanced by the ban.

3) We need to promote procreation

Court's response:

a) heterosexual marriage does promote procreation, but the state failed to show that not allowing gay marriage would promote more procreation.

b) There is no compelling evidence that a gay marriage ban would cause a significant number of gays to "become" heterosexual.

c) even if gays could somehow become heterosexual, the gay marriage ban is under-inclusive because it doesnt also ban marriage for heterosexual couples who do not procreate due to age, disability, or choice.

4) We need to promote stability in opposite-sex relationships

Court's response:

a) heterosexual marriage does encourage stability in opposite-sex relationships, but the state did not even offer a reason why banning gay marriage would improve stability in opposite-sex relationships.

5) Marriage includes tax benefits that cost the state money, and the state needs to conserve resources

Court's response:

a) a gay marriage ban could conserve state resources, but excluding any group from marriage, blacks, aliens, even red-haired people could also conserve resources in an equally "rational" way. These other classifications would be so offensive that the courts have not hesitated to add protections against those inequalities.

b) excluding all same-sex marriages is an extremely blunt instrument for conserving state resources, and is over-inclusive because it unfairly targets those same-sex couples who would not have consumed more state resources if allowed to marry. (many straight couples dont file jointly, arent on welfare, etc)

c) If the goal is truely to conserve state resources, this ban is arbitrary because there are very few gay couples relative to the population. There are many other similarly-small groups the state could have chosen to bar from marriage to conserve resources.

From there, the court went on to say that the real unspoken reason for the ban was religion. The court observed that the state likely didn't bring up a religious argument because they knew it would fail. The court also said that religious groups would still be free to not marry who they choose, but a civil marriage can not be restricted due to religion.

If you can't look at this list of rationalizations and see that the court is doing exactly what a legislature is supposed to do, then I don't know what to tell you. Take #2 for example. The court recognizes that the policy's broad brush approach doesn't perfectly match the goals of the stated policy. But what they don't do is recognize that this happens in all kinds of policies but that those policies are often implemented anyway because they are easy to administer approximations. It's common to see bright line rules where a hard-to-administer fuzzy line would better fit reality. We establish an age of consent despite the fact that some people who fall under the bright line age are more mature than some people who fall above the age. Indeed, different state legislatures have established different ages of consent. Why should a judge be making these decisions?

patteeu
04-05-2009, 07:22 AM
Let's make a list of all the things that a gay couple cannot do if they cannot at least have civil unions that are legally equal to a heterosexual marriage.

1) Hospital visitation of an ill partner
2) Making concerned decisions for an ill partner unable to make those decisions
3) Upon a split having child visitation or custody rights
4) Inheritance rights
5) The most basic right of making a public statement that they are joined together

I'm sure there are a list of others left off the list. To say that only heterosexual couples should be afforded these rights is descriminatory and thus should be illegal.

Just to be clear, there are legal accommodations available for most of these things. Durable powers of attorney, wills, contracts, etc. There are a few things for which such legal workarounds are not available like the marriage benefit of the tax code (aka marriage penalty) and social security survivors benefits.

But wrt #5, there is nothing preventing gay people from making a public statement that they are joined together. They can marry in some churches and they can certainly live life as a committed, monogamous, married couple if they so choose. The special privileges offered by the state and the blessing of some of the more traditional religions are what they miss out on.

Simplex3
04-05-2009, 08:10 AM
Let's make a list of all the things that a gay couple cannot do if they cannot at least have civil unions that are legally equal to a heterosexual marriage.

1) Hospital visitation of an ill partner
2) Making concerned decisions for an ill partner unable to make those decisions
3) Upon a split having child visitation or custody rights
4) Inheritance rights
5) The most basic right of making a public statement that they are joined together

I'm sure there are a list of others left off the list. To say that only heterosexual couples should be afforded these rights is descriminatory and thus should be illegal.

I'm all for gay marriage, but any of the above 'problems' can be overcome by standard contracts and power of attorney.

BucEyedPea
04-05-2009, 10:03 AM
I'm all for gay marriage, but any of the above 'problems' can be overcome by standard contracts and power of attorney.

A lot of them but not all of them. I don't believe next of kin issues on healthcare and death they can.

And point 5 is not a violated right.

KC native
04-05-2009, 01:15 PM
Just to be clear, there are legal accommodations available for most of these things. Durable powers of attorney, wills, contracts, etc. There are a few things for which such legal workarounds are not available like the marriage benefit of the tax code (aka marriage penalty) and social security survivors benefits.

But wrt #5, there is nothing preventing gay people from making a public statement that they are joined together. They can marry in some churches and they can certainly live life as a committed, monogamous, married couple if they so choose. The special privileges offered by the state and the blessing of some of the more traditional religions are what they miss out on.

So, why should gay couples have to endure thousands of dollars of additional legal costs to be afforded the same benefits of marriages as straight couples? To me that smacks of separate but not equal. Hetero marriages don't have to spend thousands of dollars in lawyer fees to enjoy these benefit. So what's the justification in making a gay couple do that?

That last sentence in your first paragraph shows that even in your warped views that the benefits, rights, priviledges (whatever you want to call them) aren't equal.

patteeu
04-05-2009, 02:55 PM
A lot of them but not all of them. I don't believe next of kin issues on healthcare and death they can.

And point 5 is not a violated right.

All of the ones in that list can be. There are others that can't be though.

patteeu
04-05-2009, 03:05 PM
So, why should gay couples have to endure thousands of dollars of additional legal costs to be afforded the same benefits of marriages as straight couples? To me that smacks of separate but not equal.

It "smacks of separate but equal" to you because you don't understand separate but equal.

Hetero marriages don't have to spend thousands of dollars in lawyer fees to enjoy these benefit. So what's the justification in making a gay couple do that?

That last sentence in your first paragraph shows that even in your warped views that the benefits, rights, priviledges (whatever you want to call them) aren't equal.

What's the justification for preventing best friends or siblings or parent/child or landowner/gardener or any other possible partnership from having legal shortcuts for these things? For someone who advocates for the traditional policy, the justification is that these special privileges make male/female partnerships comparatively more attractive than other arrangements and the idea is to encourage male/female partnerships.

The equality comes from the fact that everyone, gay and straight alike, can already get married as long as they want to marry someone who is above the age of consent, not a close blood relative, and a member of the opposite sex. Haven't we been over this already?

alnorth
04-05-2009, 03:20 PM
If you can't look at this list of rationalizations and see that the court is doing exactly what a legislature is supposed to do, then I don't know what to tell you. Take #2 for example. The court recognizes that the policy's broad brush approach doesn't perfectly match the goals of the stated policy. But what they don't do is recognize that this happens in all kinds of policies but that those policies are often implemented anyway because they are easy to administer approximations. It's common to see bright line rules where a hard-to-administer fuzzy line would better fit reality. We establish an age of consent despite the fact that some people who fall under the bright line age are more mature than some people who fall above the age. Indeed, different state legislatures have established different ages of consent. Why should a judge be making these decisions?

The difference is scrutiny. All of your examples pass because either there is a very good reason for it, or if there's debate then it passes the rational argument scrutiny.

In this case, #2 failed heightened scrutiny. You earlier argued that there should be no such thing at all as heightened or strict scrutiny, and I'll just have to disagree. If this was the case, we would not have had other equal-protection decisions ending discrimination based on race or gender until the people lazily got around to finally passing laws themselves.

The court also spent time explaining the roles of government in this case. The legislature is in charge of passing laws and making public policy decisions, which they did by banning gay marriage. The executive enforced the law by denying gay marriage applications. Gay couples who believed the law violated the equal protection guaranteed by the Iowa constitution asked the courts to examine the law to ensure it did not violate the supreme law of the land in Iowa. The courts did this, recognized that gay people deserve heightened scrutiny (though not necessarily strict scrutiny), and found that the ban did not substantially advance any important state objective. Therefore, it is unconstitutional. You may disagree with their decision, but they did their job. If they reach the conclusion that they reached, then it is their solemn duty to strike this ban down.

KC native
04-05-2009, 03:22 PM
It "smacks of separate but equal" to you because you don't understand separate but equal.



What's the justification for preventing best friends or siblings or parent/child or landowner/gardener or any other possible partnership from having legal shortcuts for these things? For someone who advocates for the traditional policy, the justification is that these special privileges make male/female partnerships comparatively more attractive than other arrangements and the idea is to encourage male/female partnerships.

The equality comes from the fact that everyone, gay and straight alike, can already get married as long as they want to marry someone who is above the age of consent, not a close blood relative, and a member of the opposite sex. Haven't we been over this already?

So you're advocating sham marriages just to receive these benefits? Sounds like a good idea to me [/sarc off]

alnorth
04-05-2009, 03:30 PM
but the last time I looked, there was no such thing as a generic "historically disfavored group" that earned any kind of heightened scrutiny. Instead, there were specific groups that earned such heightened scrutiny and it's not clear to me that sexual preference bought you much more than the "rational basis" test. In any event, if this has changed in the past few years, it's another example of our Constitution's erosion of meaning.

Correct, there is no generic disfavored group, I didnt say there was. Racial groups fall under strict scrutiny (anything involving race is automatically presumed unconstitutional unless proven to be absolutely necessary). Gender falls under "heightened" scrutiny (laws which give men rights that women do not have are fine only if there is a compelling state interest, and it is proven that the law does advance this interest.) The SCOTUS has not yet examined where sexual orientation falls, but the Iowa court decided that sexual orientation deserves at least heightened scrutiny to ensure that laws do not have a discriminatory motive.

How is a state supposed to prove such things? Must they try every permutation of a policy in order to generate empirical data before they can begin to make decisions? How can they try all permutations if they have to prove that a permutation is empirically correct before they can try it? This whole idea that the state must prove it's theories before it can follow them is ludicrous.

When a law OBVIOUSLY targets a disfavored group, then thats the state's problem. (The state actually tried to argue that gay people could marry people of the opposite sex, which the court dismissed pretty quickly. That gay people were targetted is plainly obvious)

Under this logic, the state could argue that black people are more likely to abuse children, and deny marriage and adoption on that basis. They may cite a few criminal statistics (which could be argued as related to income rather than race) but this obviously wouldnt fly because the link likely can't be proven. (Still wouldnt fly under strict scrutiny, but I couldnt easily come up with a female-discrimination law in a few seconds).

This might be fine for some groups of people (clinically insane) who dont have heightened or strict scrutiny, but it doesnt work for some of these groups that receive higher scrutiny. You cant just arbitrarily take away rights from blacks, women, or gays with a plausible reason that makes sense, you have to PROVE IT. If its impossible to prove, thats just tough!

alnorth
04-05-2009, 03:34 PM
Just to be clear, there are legal accommodations available for most of these things. Durable powers of attorney, wills, contracts, etc. There are a few things for which such legal workarounds are not available like the marriage benefit of the tax code (aka marriage penalty) and social security survivors benefits.

But wrt #5, there is nothing preventing gay people from making a public statement that they are joined together. They can marry in some churches and they can certainly live life as a committed, monogamous, married couple if they so choose. The special privileges offered by the state and the blessing of some of the more traditional religions are what they miss out on.

All of these alternatives either cost more money, take more effort, or dont address the non-quantifyable benefits of marriage like public recognition, esteem, etc.

This is sort of like the whites-only restaurant in the middle of town and the "colored people" restaurant near the edge. They may be equal in quality, price, etc, you just have to travel a little further to this alternative.

Ultra Peanut
04-05-2009, 03:36 PM
What does it matter if rates of violence against LGBT people are ridiculously high and it's still legal in a lot of states to discriminate against them? SBK's been to the gat-damn SOUTH!

BISMARCK — House members on Friday argued that outlawing discrimination against gays and lesbian North Dakotans would protect behavior that can be changed and which God abhors, then soundly voted down Senate Bill 2278.

The bill would have added sexual orientation and transgendered persons to the list of classes protected by the state’s Human Rights Act from discrimination in housing, employment and public accommodations.

The vote was 54-34 to kill the bill.

“There’s a big difference between a behavior and a lifestyle and something you don’t have a choice in,” said Rep. Robin Weisz, R-Hurdsfield.

Weisz is chairman of the House Human Services Committee that heard the bill and recommended its defeat.But what do I know? I've only lived in the south my whole life, with one of the biggest motivating factors for keeping people from knowing the real me being that I don't want to get stabbed to death in a parking lot by some Bubba who thinks my very existence threatens his masculinity.

keg in kc
04-05-2009, 03:43 PM
I've never understood the issue. It's pretty simple: if you don't like homosexuality, then don't be gay. If you think being gay will damn somebody for eternity, then let them be damned. It's their soul, not yours. And what possible concern is a couple of any gender's marriage to anybody outside of that couple. A homosexual marriage isn't any kind of a reflection on a heterosexual one any more than a heterosexual marriage is a reflection on a homosexual one. Bringing "biology" into it is a great idea, too. While we're at it, let's outlaw marriage for couples where one of the pair is sterile, or let's ban marriage for the elderly. Personally, I think people need to spend more time living their own lives, and stop worrying so much about how everyone else lives theirs.

patteeu
04-05-2009, 03:43 PM
The difference is scrutiny. All of your examples pass because either there is a very good reason for it, or if there's debate then it passes the rational argument scrutiny.

In this case, #2 failed heightened scrutiny. You earlier argued that there should be no such thing at all as heightened or strict scrutiny, and I'll just have to disagree. If this was the case, we would not have had other equal-protection decisions ending discrimination based on race or gender until the people lazily got around to finally passing laws themselves.

The court also spent time explaining the roles of government in this case. The legislature is in charge of passing laws and making public policy decisions, which they did by banning gay marriage. The executive enforced the law by denying gay marriage applications. Gay couples who believed the law violated the equal protection guaranteed by the Iowa constitution asked the courts to examine the law to ensure it did not violate the supreme law of the land in Iowa. The courts did this, recognized that gay people deserve heightened scrutiny (though not necessarily strict scrutiny), and found that the ban did not substantially advance any important state objective. Therefore, it is unconstitutional. You may disagree with their decision, but they did their job. If they reach the conclusion that they reached, then it is their solemn duty to strike this ban down.

There is a reason for scrutinizing racial discrimination because the 14th amendment was clearly intended to address matters of race.

We will certainly have to disagree on any sort of heightened scrutiny on the basis of sexual preference.

The reason for the bright line age of consent laws is no better than the reason for bright line support for man+woman lifetime partnerships. We'll have to agree to disagree on that one too, I guess.

BucEyedPea
04-05-2009, 03:52 PM
What does it matter if rates of violence against LGBT people are ridiculously high and it's still legal in a lot of states to discriminate against them? SBK's been to the gat-damn SOUTH!
Is there any statistics on that?

I'd think that if there's any violence to LGBT, it would be punishable by sheer fact that you have rights as a person alone.

On the other hand, when people feel forced to accept something they don't agree with then violence escalates toward those groups.

BucEyedPea
04-05-2009, 03:54 PM
All of these alternatives either cost more money, take more effort, or dont address the non-quantifyable benefits of marriage like public recognition, esteem, etc.


You won't get those things either by passing a law.


This is sort of like the whites-only restaurant in the middle of town and the "colored people" restaurant near the edge. They may be equal in quality, price, etc, you just have to travel a little further to this alternative.
Well, those places are private property that serve the public. They are not public institutions.


How 'bout just doing marriage the old fashioned way with people just up and marrying with no state involvement?

patteeu
04-05-2009, 03:55 PM
Correct, there is no generic disfavored group, I didnt say there was. Racial groups fall under strict scrutiny (anything involving race is automatically presumed unconstitutional unless proven to be absolutely necessary). Gender falls under "heightened" scrutiny (laws which give men rights that women do not have are fine only if there is a compelling state interest, and it is proven that the law does advance this interest.) The SCOTUS has not yet examined where sexual orientation falls, but the Iowa court decided that sexual orientation deserves at least heightened scrutiny to ensure that laws do not have a discriminatory motive.

And that is one half of my objection. There is no basis for believing that the people who ratified the 14th amendment intended to protect groups of people on the basis of sexual orientation at all. I don't need the SCOTUS to make that determination for me. It's been 140 years since that amendment was ratified. Times have changed a great deal, but the document hasn't. That's why I call what these state court justices did activism.

When a law OBVIOUSLY targets a disfavored group, then thats the state's problem. (The state actually tried to argue that gay people could marry people of the opposite sex, which the court dismissed pretty quickly. That gay people were targetted is plainly obvious)

Under this logic, the state could argue that black people are more likely to abuse children, and deny marriage and adoption on that basis. They may cite a few criminal statistics (which could be argued as related to income rather than race) but this obviously wouldnt fly because the link likely can't be proven. (Still wouldnt fly under strict scrutiny, but I couldnt easily come up with a female-discrimination law in a few seconds).

This might be fine for some groups of people (clinically insane) who dont have heightened or strict scrutiny, but it doesnt work for some of these groups that receive higher scrutiny. You cant just arbitrarily take away rights from blacks, women, or gays with a plausible reason that makes sense, you have to PROVE IT. If its impossible to prove, thats just tough!

I reject your "black people are more likely to abuse children" strawman. It's a fact of nature that children are created by a process that involves a man and a woman. There is no such readily identifiable fact of nature that makes a black person more prone to abuse a child. Besides, as I've already noted, the 14th amendment clearly raises the bar for situations involving racial discrimination.

You keep going back to "heightened scrutiny" as if it's a given that sexual orientation ought to be subject to it. That's a huge part of the debate here and it can't be simply assumed away.

patteeu
04-05-2009, 03:59 PM
All of these alternatives either cost more money, take more effort, or dont address the non-quantifyable benefits of marriage like public recognition, esteem, etc.

This is sort of like the whites-only restaurant in the middle of town and the "colored people" restaurant near the edge. They may be equal in quality, price, etc, you just have to travel a little further to this alternative.

It's more like a free fast food voucher program that is only good at the McDonalds in the middle of town even though a subset of those who could use vouchers if they wanted to, don't because they prefer finger-lickin' chicken at the KFC on the edge of town. Afterall, they were born with a preference for chicken. They can't help who they are and they can't be as happy if they eat hamburgers in order to take advantage of the free meal opportunity.

SBK
04-05-2009, 04:16 PM
What does it matter if rates of violence against LGBT people are ridiculously high and it's still legal in a lot of states to discriminate against them? SBK's been to the gat-damn SOUTH!

But what do I know? I've only lived in the south my whole life, with one of the biggest motivating factors for keeping people from knowing the real me being that I don't want to get stabbed to death in a parking lot by some Bubba who thinks my very existence threatens his masculinity.

Have you been to Atlanta? If it's not the gayest city in America, it's close. The gay population here is freaking huge. There's lots of Bubba's too, surprisingly the news isn't dominated by stories of Bubba curb stomping gay dudes or anything.

My post was in reference to my upbringing in Iowa, and how when I got into Atlanta my views of the civil rights movement changed. Things were far worse down here than I was ever told, or taught. Much of the civil rights struggle has been swept under the rug of history.

My point still stands though, if someone went to the older generation of blacks down here and compared the homosexual plights of today with what these folks lived through (and these folks were not even slaves, so it wasn't nearly as bad for them) they'd either laugh in their face or slap them. There is no comparison, no matter how hard the gay movement tries to paint it as such.

patteeu
04-05-2009, 04:31 PM
What does it matter if rates of violence against LGBT people are ridiculously high and it's still legal in a lot of states to discriminate against them? SBK's been to the gat-damn SOUTH!

But what do I know? I've only lived in the south my whole life, with one of the biggest motivating factors for keeping people from knowing the real me being that I don't want to get stabbed to death in a parking lot by some Bubba who thinks my very existence threatens his masculinity.

I think you should try to break free from that fear. I know that it's easier said than done, but there are a lot of people who will accept you and you don't need the ones who won't. You do have to be willing to conform in some ways to get along in the workplace and in general, but that's true of all of us.

And, IMO, the best way to bring about gay marriage is for gay people to come out of the closet, be responsible citizens and behave themselves so that people who haven't had much exposure to gays outside of hollywood depictions and schoolyard rumors can see that there really isn't anything to get uptight about. Government endorsed gay marriage will happen eventually. Until then, live your life and, if it's your thing, try to find a life partner despite the state of the law.

Good luck.

SBK
04-05-2009, 04:32 PM
I think you should try to break free from that fear. I know that it's easier said than done, but there are a lot of people who will accept you and you don't need the ones who won't. You do have to be willing to conform in some ways to get along in the workplace and in general, but that's true of all of us.

And, IMO, the best way to bring about gay marriage is for gay people to come out of the closet, be responsible citizens and behave themselves so that people who haven't had much exposure to gays outside of hollywood depictions and schoolyard rumors can see that there really isn't anything to get uptight about. Government endorsed gay marriage will happen eventually. Until then, live your life and, if it's your thing, try to find a life partner despite the state of the law.

Good luck.

For what it's worth UP, I totally agree with this post as well.

mlyonsd
04-05-2009, 04:41 PM
I think you should try to break free from that fear. I know that it's easier said than done, but there are a lot of people who will accept you and you don't need the ones who won't. You do have to be willing to conform in some ways to get along in the workplace and in general, but that's true of all of us.

And, IMO, the best way to bring about gay marriage is for gay people to come out of the closet, be responsible citizens and behave themselves so that people who haven't had much exposure to gays outside of hollywood depictions and schoolyard rumors can see that there really isn't anything to get uptight about. Government endorsed gay marriage will happen eventually. Until then, live your life and, if it's your thing, try to find a life partner despite the state of the law.

Good luck.

Once again, you knocked it out of the park.

Excellent posts in this thread. Kudos to everyone.

Simplex3
04-05-2009, 05:09 PM
Personally, I think people need to spend more time living their own lives, and stop worrying so much about how everyone else lives theirs.

:clap:

alnorth
04-05-2009, 07:40 PM
And that is one half of my objection. There is no basis for believing that the people who ratified the 14th amendment intended to protect groups of people on the basis of sexual orientation at all. I don't need the SCOTUS to make that determination for me. It's been 140 years since that amendment was ratified. Times have changed a great deal, but the document hasn't. That's why I call what these state court justices did activism.

You keep going back to "heightened scrutiny" as if it's a given that sexual orientation ought to be subject to it. That's a huge part of the debate here and it can't be simply assumed away.

First, one thing that may be important to remember is this Iowa decision primarily refers to the Iowa constitution, which apparently has some equal protection language which is arguably much stronger than our US constitution. Its apparently easier to make an equal protection argument here than elsewhere. Some people say its still basically the same as the equal protection concepts in the US constitution and the argument behind the Iowa decision could be used federally too, but you be the judge:

The foundational principle of equal protection is expressed in article I, section 6 of the Iowa Constitution, which provides: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

Anyway, the 14th amendment is not what gives race strict scrutiny for equal protection The only thing the 14th amendment did in regards to race was clarify that all persons born in the US are citizens, which was in response to the Dred Scott decision which said blacks were not citizens. Nothing in the 14th amendment specifices which groups deserve what level of scrutiny, or even defined different levels of scrutiny. These were concepts which were used by later courts in an attempt to define and apply this new equal protection right in the 14th amendment. The amendment reaffirmed the principle of equal protection of the law, but left it up to the courts to interpret what this means.

The Iowa court did not go out and willy-nilly invent new legal concepts out of thin air. They thoroughly reviewed and referenced numerous decisions and opinions from various SCOTUS cases and other state supreme court cases. The supreme court has basically said that other groups may come about someday that may require higher levels of scrutiny for equal protection.

The constitutional guarantee of equal protection, however, demands certain types of statutory classifications must be subjected to closer scrutiny by courts. See, e.g., Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786, 799 (1982) (“[W]e would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification.”).

The SCOTUS never said "these are the groups, and only these groups which deserve higher scrutiny for equal protection forever and ever until the end of time without a new amendment", that would be rediculous. Instead, the SCOTUS gave a roadmap saying "If you want to analyze whether a group deserves higher scrutiny for equal protection, then this is what you do".

Although neither we nor the United States Supreme Court has decided which level of scrutiny applies to legislative classifications based on sexual orientation, numerous Supreme Court equal protection cases provide a general framework to guide our analysis under the Iowa Constitution. To say a general framework exists is not to say the Supreme Court has provided a precise formula for determining when legislative action is subject to a heightened form of scrutiny. See Cleburne Living Ctr., 473 U.S. at 472 n.24, 105 S. Ct. at 3272 n.24, 87 L. Ed. 2d at 341 n.24 (Marshall, J., concurring in part and dissenting in part) (“No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.”); Conaway, 932 A.2d at 606 (“There is no brightline diagnostic, annunciated by . . . the U.S. Supreme Court, by which a suspect or quasi-suspect class may be readily recognized.”). Instead, the Supreme Court has expressed a number of general principles to assist in identifying the appropriate level of scrutiny.

Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more demanding constitutional analysis, the Supreme Court has looked to four factors. (discussing factors examined by Supreme Court in considering use of heightened scrutiny). The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristic is “immutable” or beyond the class members’ control; and (4) the political power of the subject class. In considering whether sexual orientation is a suspect class, a number of our sister jurisdictions have referenced similar factors.

From there, it gets pretty long so I'll summarize. First, the court said there are no mathematical equations, those 4 factors above are just guidelines to help answer whether a group needs higher scrutiny (in other words, 3 yes and 1 no doesnt disqualify you). Even so, gay people seem to fit all 4 factors, which is why they get heightened scrutiny in Iowa.

1) Was dealt with quickly. The court bluntly said that the state did not try to deny that gays suffered a lot of discrimination in the past, nor could they deny it in good faith.

2) Was not in dispute. The state agreed that being gay has no impact on whether you contribute to society.

3) and 4) is what was under dispute, and why the state argued that gays should fall under the rational argument basis rather than heightened scrutiny. First, under 3, the state argued that being gay was not immutable, you could choose to not be gay. The court doubted this was the case, but punted by saying that other decisions showed that immutability does not mean something that is impossible to change, so the court did not need to resolve that whole "nature vs nurture" scientific debate on being gay. Instead, the court focused on the relative permenance of being gay and the ease of change. They referenced several decisions by other courts talking about how being gay is a significant part of a person's identity, and the state admitted that attempting to convince someone not to be gay was very difficult. There were also other experts who said attempting to change someone's sexual orientation would likely result in psychological harm. So, that was basically good enough for the Iowa supreme court to call being gay immutable (extremely difficult to change).

4) In this one, the state argued that gays were not politically powerless. The court pointed out that neither are blacks and women. The court also pointed out that there is no precise math formula to evaluate political strength. Although it is true that gays have achieved some political power, enough to get some protection from workplace discrimination, etc, they have been unable to secure equal rights legislatively. Past decisions indicated that you dont have to be completely politically powerless for this to apply.

So, based on those 4 guidelines set by the courts, gay people qualify for heightened scrutiny in Iowa. This analysis doesnt seem completely crazy to me.

Mr. Kotter
04-05-2009, 09:26 PM
The one thing the gay rights folks KEEP ignoring in this....is....

...the US Supreme Court has (and it IS a federal matter due to 'full faith and credit' clause of the Constitution,) thus far REFUSED to grant homosexuality as a "protected class" status within the purvey of the strict scrutiny test, as it relates to 'discrimination' and 'permissible distinctions' in the context of the equal protection argument.

Until that changes....they will be pissin' in the wind. :hmmm:

That's the real beginning and end of this discussion. :)

alnorth
04-05-2009, 10:41 PM
The one thing the gay rights folks KEEP ignoring in this....is....

...the US Supreme Court has (and it IS a federal matter due to 'full faith and credit' clause of the Constitution,) thus far REFUSED to grant homosexuality as a "protected class" status within the purvey of the strict scrutiny test, as it relates to 'discrimination' and 'permissible distinctions' in the context of the equal protection argument.

Until that changes....they will be pissin' in the wind. :hmmm:

That's the real beginning and end of this discussion. :)

Unless you are fairly old, you are going to live to see that overturned. Every day another kid turns 18, and another old traditionalist dies. Every few years, another supreme court justice also dies or retires.

patteeu
04-06-2009, 07:03 AM
First, one thing that may be important to remember is this Iowa decision primarily refers to the Iowa constitution, which apparently has some equal protection language which is arguably much stronger than our US constitution. Its apparently easier to make an equal protection argument here than elsewhere. Some people say its still basically the same as the equal protection concepts in the US constitution and the argument behind the Iowa decision could be used federally too, but you be the judge:



Anyway, the 14th amendment is not what gives race strict scrutiny for equal protection The only thing the 14th amendment did in regards to race was clarify that all persons born in the US are citizens, which was in response to the Dred Scott decision which said blacks were not citizens. Nothing in the 14th amendment specifices which groups deserve what level of scrutiny, or even defined different levels of scrutiny. These were concepts which were used by later courts in an attempt to define and apply this new equal protection right in the 14th amendment. The amendment reaffirmed the principle of equal protection of the law, but left it up to the courts to interpret what this means.

The Iowa court did not go out and willy-nilly invent new legal concepts out of thin air. They thoroughly reviewed and referenced numerous decisions and opinions from various SCOTUS cases and other state supreme court cases. The supreme court has basically said that other groups may come about someday that may require higher levels of scrutiny for equal protection.



The SCOTUS never said "these are the groups, and only these groups which deserve higher scrutiny for equal protection forever and ever until the end of time without a new amendment", that would be rediculous. Instead, the SCOTUS gave a roadmap saying "If you want to analyze whether a group deserves higher scrutiny for equal protection, then this is what you do".





From there, it gets pretty long so I'll summarize. First, the court said there are no mathematical equations, those 4 factors above are just guidelines to help answer whether a group needs higher scrutiny (in other words, 3 yes and 1 no doesnt disqualify you). Even so, gay people seem to fit all 4 factors, which is why they get heightened scrutiny in Iowa.

1) Was dealt with quickly. The court bluntly said that the state did not try to deny that gays suffered a lot of discrimination in the past, nor could they deny it in good faith.

2) Was not in dispute. The state agreed that being gay has no impact on whether you contribute to society.

3) and 4) is what was under dispute, and why the state argued that gays should fall under the rational argument basis rather than heightened scrutiny. First, under 3, the state argued that being gay was not immutable, you could choose to not be gay. The court doubted this was the case, but punted by saying that other decisions showed that immutability does not mean something that is impossible to change, so the court did not need to resolve that whole "nature vs nurture" scientific debate on being gay. Instead, the court focused on the relative permenance of being gay and the ease of change. They referenced several decisions by other courts talking about how being gay is a significant part of a person's identity, and the state admitted that attempting to convince someone not to be gay was very difficult. There were also other experts who said attempting to change someone's sexual orientation would likely result in psychological harm. So, that was basically good enough for the Iowa supreme court to call being gay immutable (extremely difficult to change).

4) In this one, the state argued that gays were not politically powerless. The court pointed out that neither are blacks and women. The court also pointed out that there is no precise math formula to evaluate political strength. Although it is true that gays have achieved some political power, enough to get some protection from workplace discrimination, etc, they have been unable to secure equal rights legislatively. Past decisions indicated that you dont have to be completely politically powerless for this to apply.

So, based on those 4 guidelines set by the courts, gay people qualify for heightened scrutiny in Iowa. This analysis doesnt seem completely crazy to me.

The 14th amendment was passed during the same period when the 13th and 15th amendments and race was clearly a driving concern for all three even if the 14th didn't specify race as a protected class or explicitly establish strict scrutiny as the test when discrimination involved a protected class. As I said before, your view of the constitution as a living document and my view of it as a document with fixed meaning will prevent us from reaching agreement on this.

The bolded statement can be said about nearly all instances of judicial activism. It is quite rare for a court to abruptly create new law out of thin air. Instead, it's a creeping process built upon slight expansion after slight expansion, much like the proverbial frog in the gradually warming water.