The Road to the US Supreme Court for Gay Marriage

[dbackjon]

So the SCOTUS should stay out of cases regarding discrimination?

In the end, I think gay marriage is almost inevitable in every state. It is just that the process may be slow, and in some states even slower. The Supreme Court's intervention on the side of gay marriage will hasten the process but it will also cause civil unrest and further fracture the nation on social grounds.

You really think that allowing gay marriage would cause civil unrest? Should the Court avoid something that might fracture the nation on social grounds? Under that reasoning, we would still have Jim Crow laws, etc.

The nation will fracture temporarily over this, either way. The only long-term way to heal is too allow equality. IN a few generations, they will wonder what the fuss is about, and why were people so stupid and bigoted to deny it in the first place.

[Ivytalk]

In the end, I think gay marriage is almost inevitable in every state. It is just that the process may be slow, and in some states even slower. The Supreme Court's intervention on the side of gay marriage will hasten the process but it will also cause civil unrest and further fracture the nation on social grounds.

You really think that allowing gay marriage would cause civil unrest? Should the Court avoid something that might fracture the nation on social grounds? Under that reasoning, we would still have Jim Crow laws, etc.

The nation will fracture temporarily over this, either way. The only long-term way to heal is too allow equality. IN a few generations, they will wonder what the fuss is about, and why were people so stupid and bigoted to deny it in the first place.

It will probably come out 5-4 either way, depending on what Justice "The Big Fulcrum" Kennedy has for breakfast that morning. That's what concerns me: ONE guy in a robe makes a policy decision for all 50 states.

[JoltinJoe]

In the end, I think gay marriage is almost inevitable in every state. It is just that the process may be slow, and in some states even slower. The Supreme Court's intervention on the side of gay marriage will hasten the process but it will also cause civil unrest and further fracture the nation on social grounds.

You really think that allowing gay marriage would cause civil unrest? Should the Court avoid something that might fracture the nation on social grounds? Under that reasoning, we would still have Jim Crow laws, etc.

The nation will fracture temporarily over this, either way. The only long-term way to heal is too allow equality. IN a few generations, they will wonder what the fuss is about, and why were people so stupid and bigoted to deny it in the first place.

Jim Crow laws were plainly unconstitutional so the court had constitutional grounds and a duty to act.

I don't think you can say that marriage laws discriminate in a way which violates the constitution. In fact, from the perspective of gender, the laws are not discriminatory. No man can marry a man; no woman can marry woman. Where is the unequal treatment? All men are treated equally. All women are treated equally.

It is only when viewed from the perspective of preference that the laws discriminate against gays. But there is no right, as I see it, to marry in accordance with your preference. If there were, bigamists, for example, would have a right to marry in accordance with their preference. This is why I believe that the solution is legislative, because legislatures can draw laws which re-define marriage to eliminate the discriminatory impact on gays, while retaining other discriminations which we all believe are beneficial and justified.

If the court were to hold that there is a fundamental right to marry in accordance with your preference, laws against bigamy and which outlaw the marriage of first cousins would appear to be on shaky grounds.

The only other way for the Supreme Court to act would be for the Court to hold that laws which do not allow for gay marriage have no "rational" basis, meaning that the state has no rational grounds at all to make the distinction that they do. Since the demonstration any rational ground should sustain the law, it would appear that such a determination is not really possible and would represent an act of overreaching by the court. That doesn't mean, of course, that the court is not capable of saying something like that, but it wol\uld engaging in a pretty transparent act of intellectual dishonesty to get the result it wanted.

[Wedgebuster]

I feel so threatened, I don't want to lose my marital sanctity, whatever it is, or whatever it does.

I'm so afraid.

Where's Jerry Falwell when I need him most??

[andy7171]

Wow, reading this thread reminds me of a weekend radio show here in Baltimore called Law Talk.

[GSUAlumniEagle]

I don't think you can say that marriage laws discriminate in a way which violates the constitution. In fact, from the perspective of gender, the laws are not discriminatory. No man can marry a man; no woman can marry woman. Where is the unequal treatment? All men are treated equally. All women are treated equally.

And now we're back to Loving again. The same argument was used in Virginia's defense -- that since whites and blacks were BOTH prohibited from entering into same sex marriages, there was no discrimination and the races were treated equally. Obviously, the Court disagreed with that sentiment.

[dbackjon]

I don't think you can say that marriage laws discriminate in a way which violates the constitution. In fact, from the perspective of gender, the laws are not discriminatory. No man can marry a man; no woman can marry woman. Where is the unequal treatment? All men are treated equally. All women are treated equally.

And now we're back to Loving again. The same argument was used in Virginia's defense -- that since whites and blacks were BOTH prohibited from entering into same sex marriages, there was no discrimination and the races were treated equally. Obviously, the Court disagreed with that sentiment.

[bobbythekidd]

Wow, reading this thread makes feel funny where I pee. I get the same feeling when I read about ODU.

FIFY

[JoltinJoe]

I don't think you can say that marriage laws discriminate in a way which violates the constitution. In fact, from the perspective of gender, the laws are not discriminatory. No man can marry a man; no woman can marry woman. Where is the unequal treatment? All men are treated equally. All women are treated equally.

And now we're back to Loving again. The same argument was used in Virginia's defense -- that since whites and blacks were BOTH prohibited from entering into same sex marriages, there was no discrimination and the races were treated equally. Obviously, the Court disagreed with that sentiment.

But the key difference was that blacks were recognized as discrete and insular minorities, the law had a discriminatory impact on them, and thus could not survive under a strict scrutiny analysis. In that case, the state, by choice, had made a marriage right available to all citizens, but then discriminated against a protected group in a way outlawed by the constitution.

In order to place the gay marriage right on the same footing, the Supreme Court would have to hold that there is a constitutionally protected right to marry in accordance with your preference. Where does that fundamental right come from?

And if reach that holding, how about the case of the first cousins who want to marry in accordance with their preference? And what about the bigamists whose preference is to have multiple spouses?

The solution is legislative, not from the courts.

[Ivytalk]

And now we're back to Loving again. The same argument was used in Virginia's defense -- that since whites and blacks were BOTH prohibited from entering into same sex marriages, there was no discrimination and the races were treated equally. Obviously, the Court disagreed with that sentiment.

But the key difference was that blacks were recognized as discrete and insular minorities, the law had a discriminatory impact on them, and thus could not survive under a strict scrutiny analysis. In that case, the state, by choice, had made a marriage right available to all citizens, but then discriminated against a protected group in a way outlawed by the constitution.

In order to place the gay marriage right on the same footing, the Supreme Court would have to hold that there is a constitutionally protected right to marry in accordance with your preference. Where does that fundamental right come from?

And if reach that holding, how about the case of the first cousins who want to marry in accordance with their preference? And what about the bigamists whose preference is to have multiple spouses?

The solution is legislative, not from the courts.

Hear, hear! And if gays can persuade three-fourths of the states to approve a federal constitutional amendment allowing gay marriage, they will achieve a valid political victory that binds all 50 and eliminates messy issues like full-faith-and-credit under DOMA.

[danefan]

But even under a rational basis analysis what is the Government's legitimate interest here?

I'm certainly not the constitutional scholar that JJ and Ivy are but I'm pretty sure the Ratioonal Basis Test requires government action to be a reasonable means to a legitimate end.

What legitimate end is the ban on gay marriage a means to?

[dbackjon]

Meanwhile, you have rights I don't.

Joe - some of your arguments are based on the assumption that being gay is a choice, when it isn't. It is no different than being black, female, etc - it was the way you are born.

Multiple marriage is a whole nother can of worms - that would require a TOTAL rewrite of our laws, not just a simple change like gay marriage does.

[bobbythekidd]

No Jon. You have the same rights. You can marry any woman you want. Just like me.

[OSBF]

Gays are denied soooooo many rights that hetro's take for granted, many of which ARE the business of the feds because of the tax implications. By being denied the tax benefits associated with having a legally state/federal recoginized "marriage" gay couples are being un-fairly taxed at a higher rate than comparable hetro couples. That is discrimination. The constitution allows the federal govt to levy taxes. therefore it by proxy becomes a constitutional issue, as we expect this to be done in a fair, non-biased, non-discriminatory manner.

For the longest time I was in the camp that this is no business of the feds. But, was it any business of the feds to tell a private business owner in Atlanta who he had to allow into his store? Was it the business of the feds to tell plantation owners what specific types of livestock they could not own/buy/sell/trade/barter in their privately owned farming operations? Time and history have proven to us that these matters must be taken on by the feds, and not left to each individual state.

If nothing else, for the purpose of equitable taxation, there needs to be a universal federal defination of "marriage" and all states and territories forced by constitutional law to recoginize that defination whatever it is.

[Chizzang]

Meanwhile, you have rights I don't.

Not true Jon,
You can marry a woman if you chose - and neither of us can marry a man - we have the same rights

[JoltinJoe]

But even under a rational basis analysis what is the Government's legitimate interest here?

I'm certainly not the constitutional scholar that JJ and Ivy are but I'm pretty sure the Ratioonal Basis Test requires government action to be a reasonable means to a legitimate end.

What legitimate end is the ban on gay marriage a means to?

Heterosexual couples procreate and raise families, naturally, and the state has rationally accommodated heterosexual unions as a result. That is plainly a rational basis; whether it personally satisfies all is not the issue.

[danefan]

But even under a rational basis analysis what is the Government's legitimate interest here?

I'm certainly not the constitutional scholar that JJ and Ivy are but I'm pretty sure the Ratioonal Basis Test requires government action to be a reasonable means to a legitimate end.

What legitimate end is the ban on gay marriage a means to?

Heterosexual couples procreate and raise families, naturally, and the state has rationally accommodated heterosexual unions as a result. That is plainly a rational basis; whether it personally satisfies all is not the issue.

Understood, but then the question is - how is banning gay marriage a reasonable means to accomodate the interests of heterosexual unions?

That's where I am reaching a wall. I understand the legitimate interest the state has in heterosexual unions. What I don't understand is how banning gay marriage is a reasonable means to any end relating to heterosexual marriage.

Does what I am saying making any sense?

[JoltinJoe]

Meanwhile, you have rights I don't.

Joe - some of your arguments are based on the assumption that being gay is a choice, when it isn't. It is no different than being black, female, etc - it was the way you are born.

Multiple marriage is a whole nother can of worms - that would require a TOTAL rewrite of our laws, not just a simple change like gay marriage does.

I don't think it has anything to do with whether being gay is a choice. It is simply that gays have not been defined as a discrete and insular minority nor would they, under the prevailing means of determining that status, seem to qualify. The court would have to expand the understanding of that concept in order to include discriminations based on preference. I see a lot of unintended downside to doing that, but the court may well decide to do that.

These laws discriminate against your preference; but your complaint, in the end, is that this discrimination is archaic and does not advance more reasonable goals and public policy than law you desire. That's a legislative complaint, not a constitutional one.

[JoltinJoe]

Heterosexual couples procreate and raise families, naturally, and the state has rationally accommodated heterosexual unions as a result. That is plainly a rational basis; whether it personally satisfies all is not the issue.

Understood, but then the question is - how is banning gay marriage a reasonable means to accomodate the interests of heterosexual unions?

That's where I am reaching a wall. I understand the legitimate interest the state has in heterosexual unions. What I don't understand is how banning gay marriage is a reasonable means to any end relating to heterosexual marriage.

Does what I am saying making any sense?

It makes perfect sense -- from a legislative perspective.

However, from a constitutional perspective, once the state proposes a rational basis for making a discrimination, that's it. That you can argue that not making the distinction does not affect the government's objective does not mean that the government's discrimination is unconstitutional.

This is why I see the issue as a legislative one.

[danefan]

Understood, but then the question is - how is banning gay marriage a reasonable means to accomodate the interests of heterosexual unions?

That's where I am reaching a wall. I understand the legitimate interest the state has in heterosexual unions. What I don't understand is how banning gay marriage is a reasonable means to any end relating to heterosexual marriage.

Does what I am saying making any sense?

It makes perfect sense -- from a legislative perspective.

However, from a constitutional perspective, once the state proposes a rational basis for making a discrimination, that's it. That you can argue that not making the distinction does not affect the government's objective does not mean that the government's discrimination is unconstitutional.

This is why I see the issue as a legislative one.

The next few cases will be interesting to say the least.

[GSUAlumniEagle]

In order to place the gay marriage right on the same footing, the Supreme Court would have to hold that there is a constitutionally protected right to marry in accordance with your preference. Where does that fundamental right come from?

Hell, where does the fundamental right for anyone to marry anyone come from? It's not proscribed in the Constitution, nor am I aware of any court rulings mandating that marriage is constitutional.

By no means am I attempting to argue that heterosexual marriage is unconstitutional (though whether government should be involved in marriage at all is a discussion I thoroughly enjoy). My point is that there seems to me that there has never been a fundamental right to marry anyone. I would argue that just because our government leaders defined marriage as a union between a man and woman due to their religious beliefs does not make heterosexual marriage a "fundamental right".

The solution is legislative, not from the courts.

You could argue that, I suppose, if it wasn't for that damned Article III .

"...the business of the courts is to clarify and fill in constitutional gaps, especially on matters where the Constitution is silent or ambiguous. We don’t need the Supreme Court to clarify whether one needs to be 35 years old to be elected president, but we do need it to decide whether torture is constitutional. The sad consequence of the decades-long campaign to systematically denigrate “liberal activist” judges—even though there are “conservative activists” aplenty on the federal bench—has been to delegitimize the court system and judges generally, as if they are impostors who have visited themselves upon our democracy by force and without invitation. So, even if the original or amended Constitution did, in fact, prescribe or proscribe a whole list of policies, that still doesn’t mean federal courts can’t insert themselves. Last time I checked, the federal court system was provided for by the Constitution's Article III; ignoring the courts is ignoring the Constitution." -- Tom Schaller

There's a very real argument to make that homosexuals are being discriminated against. It's a very real constitutional question. When constitutional questions arise, our Constitution prescribes a very specific route -- the federal court system.

While I certainly can understand and grasp your reasoning of discounting the Loving decision due to the "discrete and insular" argument, I would imagine that Olsen & company have a few more tricks up their sleeve and arguments to make on their behalf.

[JoltinJoe]

In order to place the gay marriage right on the same footing, the Supreme Court would have to hold that there is a constitutionally protected right to marry in accordance with your preference. Where does that fundamental right come from?

Hell, where does the fundamental right for anyone to marry anyone come from? It's not proscribed in the Constitution, nor am I aware of any court rulings mandating that marriage is constitutional.

By no means am I attempting to argue that heterosexual marriage is unconstitutional (though whether government should be involved in marriage at all is a discussion I thoroughly enjoy). My point is that there seems to me that there has never been a fundamental right to marry anyone. I would argue that just because our government leaders defined marriage as a union between a man and woman due to their religious beliefs does not make heterosexual marriage a "fundamental right".

The solution is legislative, not from the courts.

You could argue that, I suppose, if it wasn't for that damned Article III .

"...the business of the courts is to clarify and fill in constitutional gaps, especially on matters where the Constitution is silent or ambiguous. We don’t need the Supreme Court to clarify whether one needs to be 35 years old to be elected president, but we do need it to decide whether torture is constitutional. The sad consequence of the decades-long campaign to systematically denigrate “liberal activist” judges—even though there are “conservative activists” aplenty on the federal bench—has been to delegitimize the court system and judges generally, as if they are impostors who have visited themselves upon our democracy by force and without invitation. So, even if the original or amended Constitution did, in fact, prescribe or proscribe a whole list of policies, that still doesn’t mean federal courts can’t insert themselves. Last time I checked, the federal court system was provided for by the Constitution's Article III; ignoring the courts is ignoring the Constitution." -- Tom Schaller

There's a very real argument to make that homosexuals are being discriminated against. It's a very real constitutional question. When constitutional questions arise, our Constitution prescribes a very specific route -- the federal court system.

While I certainly can understand and grasp your reasoning of discounting the Loving decision due to the "discrete and insular" argument, I would imagine that Olsen & company have a few more tricks up their sleeve and arguments to make on their behalf.

Who said anyone had a "fundamental" right protected by the Constitution to marry? I never did. To the extent that such a "right" exists, it is a right traditionally recognized and protected by the common law, and now the statutes of every state. But that does not mean it is a right protected by the federal constitution.

Tom Schaller? One man's opinion. Article III of the constitution does not say what Schaller claims it says. My opinion is just as valid as Schaller's. In fact, it is more valid because my opinion is right. Does Schaller even have a law degree? I don't think so.

[JoltinJoe]

It makes perfect sense -- from a legislative perspective.

However, from a constitutional perspective, once the state proposes a rational basis for making a discrimination, that's it. That you can argue that not making the distinction does not affect the government's objective does not mean that the government's discrimination is unconstitutional.

This is why I see the issue as a legislative one.

The next few cases will be interesting to say the least.

If I were Boies and Olsen, I would argue that although there is no history of state governments passing specific laws restricting the rights of gays to vote; or seek employment; or housing; gays have nonetheless been historically subjected to prejudice and bias by private persons in housing, employment, etc. Therefore, they are implicitly a "discrete and insular" minority subjected historically to such restrictions, but imposed by other private citizens rather than government. Moreover, that this type of bias, systematically imposed by private citizens is every bit as real and oppresive than as if authorized by formal law.

I suspect you would find at least five justices who would buy that and expand the understanding of a discrete and insular minority.

[GSUAlumniEagle]

Tom Schaller? One man's opinion. Article III of the constitution does not say what Schaller claims it says. My opinion is just as valid as Schaller's. In fact, it is more valid because my opinion is right. Does Schaller even have a law degree? I don't think so.

Wow. If that's not some elitism I don't know what is -- and that's coming from someone who has been called an elitist more than a few times.

I never said Article III said anything (nor did my citation of Schaller). Your arguments about the discrete and insular minority facets of this situation have been nothing but enlightening to me and, hopefully, to a member of posters on this forum. I wouldn't try to argue Constitutional Law with you, because I know I'd lose and lose badly.

What I was arguing is your point that the solution to this process is only through legislative means. There are plenty of people, with and without law degrees, that agree with me that the courts are intended for just these types of situations. Otherwise, what would be the point of Article III?

[danefan]

Recap from Day 1
http://www.nytimes.com/2010/01/12/us/12prop8.html