Gay Marriage

[Moontanman]

I do not understand: Where is the religious objection? The prinicpal objection is that two people of same sex can not create a child. If there ever was a scientific objection, that is one.

 

I have to say that I have never, ever, in any way shape or form read or heard that argument from anyone but you. I have how ever been harangued to nausea hundreds of times that homosexuals are an affront to God and that allowing them marry would in some way shape or form anger god. This has always been the main and only argument given by everyone who thinks that Gay marriage should be banned... You argument that is is detrimental in some way to the continuation of the welfare of the state is not only unique is is also wrong....

 

Gay people can have children, either by adoption or by artificial insemination and so can be parents. In fact it could be argued that adoption by gay parents is a good thing for the state because it would move children out of the state system and into the homes they need. By your way of thinking anyone who is sterile should be denied the right to marry and if they are married their marriage should be terminated.

[InfiniteNow]

I do not understand: Where is the religious objection? The prinicpal objection is that two people of same sex can not create a child. If there ever was a scientific objection, that is one.

 

And yet, infertile couples, the elderly, and people with zero plans to have children are ALL allowed to marry. This amply demonstrates that child rearing ability or desire is in no way relevant to the state recognition of a marriage. You are not consistently applying your own criteria, for, if you were, you quickly realize that your point is fallacious.

 

 

 

 

[lawcat]

You can hear religious arguments on forums like this, or in the news, where people attempt to sensationalize the issue.

In the courts, however, that argument carries no weight.

The legislature can not enact a law because Jesus says so. That is irrational.

 

The fact that it is scientifically possible for gay people to adopt does not mean that it is legal for a gay couple to adopt. For example, in Virginia it is not.

The question is not whether it is possible for a gay couple to end up parenting a child. The question is whether the State should incentivize that. Or, whether it is irrational for the State not incentivize gay families.

[lawcat]

You argument that is is detrimental in some way to the continuation of the welfare of the state is not only unique is is also wrong....

.

 

See this:

 

Reading one of Lawcat's link's, I found a Florida court's answer to that:

 

The burden in on the Plaintiffs to negate “every conceivable basis which might support [the legislation], whether or not the basis has a foundation in the record.” Id. at 818, (quoting Heller 50 U.S. at 320-21). The United States has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. (quoting Heller, 50 U.S. at 320). “A statutory classification fails rational-basis review only when it ‘rests on grounds wholly irrelevant to the achievement of the State’s objective.’” Heller, 50 U.S. at 324 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978)). The United States asserts that DOMA is rationally related to two legitimate governmental interests. First, the government argues that DOMA fosters the development of

 

relationships that are optimal for procreation, thereby encouraging the “stable generational continuity of the United States.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). DOMA allegedly furthers this interest by permitting the states to deny recognition to same-sex marriages performed elsewhere and by adopting the traditional definition of marriage for purposes of federal statutes. Second, DOMA “encourage

the creation of stable relationships that facilitate the rearing of children by both of their biological parents.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). The government argues that these stable relationships encourage the creation of stable families that are well suited to nurturing and raising children.

 

Plaintiffs offer little to rebut the government’s argument that DOMA is rationally related to the government’s proffered legitimate interests. Rather, Plaintiffs repeatedly urge the Court to apply the more rigid strict scrutiny analysis.

 

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION (page 15-16)

 

~modest

[modest]

...but religion is not a suspect class under the equal protection of the 5th and 14 Amendments.

 

Can you find me a source saying that "religion is not a suspect class under the equal protection of the 5th and 14 Amendments"?

 

...yes, courts apply 14th Amend to religion but only to reel in the First Amendment....

 

You neither provided a source for your claim nor answered the charge. The fact is you are wrong. Religion is a suspect classification under the equal protection of the 5th and 14th amendments.

Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis

 

STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.):

1. Suspect Classifications:
   
   
   1. Race
      
      
   2. National Origin
      
      
   3. Religion (either under EP or Establishment Clause analysis)
      
      
   4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).
      
      

 

UMKC.edu -- Levels of Scrutiny Under the Equal Protection Clause

I have no appetite for obfuscation.

 

The government's argument would not withstand the court's review under strict scrutiny. The only reason these laws stand is because the court is inappropriately applying its suspect classification standards. I'll restate them:

1. a "discrete" or "insular" minority who
   
2. possess an immutable trait (race or alienage),
   
3. share a history of discrimination, and
   
4. are powerless to protect themselves via the political process.
   

I don't see how a reasonable person can conclude that these do not apply to homosexuality. It makes no sense to me.

 

~modest

[lawcat]

Modest,

 

Freedom of religion is a fundamental right, not a suspect class--religion is in the Bill of Rights. It is no obfuscation as I have no reason to obfuscate this, but simply to explain how it is if you are willing to learn. Religion is not a suspect class, in spite of what you may find on some websites. Some of the reasons for misconception stem from the misreading of judicial opinions, and some may be politically motivated. I do not care; it is a wrong interpretation.

 

When a person brings an action against a State alleging religious infraction, the 14th amendment's equal protection does not apply in the sense of protecting suspect classifications. Judicial opinions may cite 14th amendment but for a different purpose.

 

One is that a State's act may be challenged, and the only way for the federal government to restrain the State is through the force of the 14th Amendment, because it is the constitutional provision that applies to the States. This is merely a procedural provision through which First, Second, Fourth, Fifth etc. amendments are incorporated to apply to the States. Before the incorporation of those amendments in the 50s and 60s, the Bill of rights did not apply to State laws; it applied only to federal infractions.

So when one alleges religious infractions, a court sometimes cites 14th amendment merely as a reminder to procedurally invoke the First Amendment.

 

Second reson for the misconception is that once the First Amendment is invoked, the First Amendment itself requires the government to be neutral between different religious sects--to treat them equally. But this is different than the 14th amendment's suspect classification, even though courts sometimes use "neutral," and "treat equally," language to explain the First Amendment.

 

First Amendment has separate jurisprudence, set of rules, and decisional law from the 14th amendment, and it already embodies principles of equal protection between different sects, but for reasons unrelated to suspect classification. That reason is free exercise of a fundamental right. Suspect classification would be either redundant or contrary to the First amendment, and it does not apply.

 

Example

 

Here is a typical opinion that may be misconstrued http://altlaw.org/v1/cases/399254. The court invokes First Amendment through Fourteenth, and then proceeds with equal protection analysis but under First Amendment. No where does a court mention equal protection or suspect class:

 

There a public park, open to all religious groups, was denied Jehovah's Witnesses because of the dislike which the local officials had of these people and their views. That was a discrimination which we held to be barred by the First and Fourteenth Amendments.

 

Appellant's sect has conventions that are different from the practices of other religious groups. Its religious service is less ritualistic, more unorthodox, less formal than some. But apart from narrow exceptions not relevant here ( Reynolds v. United States, 98 U.S. 145;Davis v. [*70] Beason, 133 U.S. 333)HN2it is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment. Nor is it in the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings. Sermons are as much a part of a religious service as prayers. They cover a wide range and have as great a diversity as the Bible or other Holy Book from which they commonly take their texts. To call the words which one minister speaks to his congregation a sermon, immune from regulation, and the words of another minister an address, subject to regulation, is merely an indirect way of preferring one religion over another. That would be precisely the effect here if we affirmed this conviction in the face of the concession made during oral argument. Baptist, Methodist, Presbyterian, or Episcopal ministers, Catholic priests, Moslem mullahs, Buddhist monks could all preach to their congregations in Pawtucket's parks with impunity. But the hand of the law would be laid on the shoulder of a minister of this unpopular group for performing the same function.

 

Example 2

 

In, Bray v. Alexandria, http://www.law.cornell.edu/supct/html/90-985.ZD.html, Justice Stevens likened relgion to sex in the context of Equal Protection under the 14th amendment, and stated:

 

a classification based on pregnancy is a sex-based classification, just as, to use the Court's example, a classification based on the wearing of yarmulkes is a religion-based classification.

 

But if you look at the case that decided the "yarmulke" you would see that the case was decided solely on First Amendment grounds. See Goldman v. Weinberger http://www.law.cornell.edu/supct/html/historics/USSC_CR_0475_0503_ZO.html:

Petitioner S. Simcha Goldman contends that the Free Exercise Clause of the First Amendment to the United States Constitution permits him to wear a yarmulke while in uniform, notwithstanding an Air Force regulation mandating uniform dress for Air Force personnel. . . . . The First Amendment therefore does not prohibit them from being applied to petitioner, even though their effect is to restrict the wearing of the headgear required by his religious beliefs.

[lawcat]

Next,

 

A reasonable judge could conclude that classificaitons based on homosexuality are not automatically suspect.

 

First, let's look at your rule, which is merely a guideline and not a rule for suspicion.

One, Homosexuality is neither sufficiently discrete nor insular. It is not sufficiently discrete because, like heterosexuality, it is conduct related, and we do not know who engages in what conduct on what particular day. Therefore, homosexuality is not sufficiently discrete but rather dispersed. Two, Homosexuality is also not insular; whoever the homosexuals may be they are not insulated from the political process.

Three, whether homosexuality is immutible like race and gender is not clear cut. Certainly, if my genetic mom or dad are gay, I may not turn out to be gay. As a matter of likelihood, am much more likely than not to turn out heterosexual, based on statistics. Four, all homosexuals do not share a history of discrimination like women, or aliens or blacks or mexicans, who could not hold property, hold offices, work for pay, sit on juries, etc.) Homosexuality suffered from conduct prohibition against sodomy, and laws prohibiting such conduct were applicable to all, not just homosexuals.

 

But, you should not get stuck with a definition from the websites and apply it as a rule. The rule you cite is merely a guideline, and maybe persuasive in some instances, but it is in no way determinative of finding suspect classification. Suspect classification is based on legislative classifications that make you go: WHAT! That classification is wholly irrelevant. What does skin color have to do with pay grade? Government! Do you have a compelling reason, and is your act narrowly tailored for that reason to justify this irrational thing?

 

AS the court states in http://www.ca11.uscourts.gov/opinions/ops/200116723.pdf

 

We exercise great caution when asked to take sides in an ongoing public

policy debate, such as the current one over the compatibility of homosexual

conduct with the duties of adoptive parenthood. See Reno, 507 U.S. at 315, 113 S.

Ct. at 1454; Schall v. Martin, 467 U.S. 253, 281, 104 5. Ct. 2403, 2419 (1984).

The State of Florida has made the determination that it is not in the best interests of

its displaced children to be adopted by individuals who “engage in current,

voluntary homosexual activity,” Cox, 627 So. 2d at 1215, and we have found

nothing in the Constitution that forbids this policy judgment. Thus, any argument

that the Florida legislature was misguided in its decision is one of legislative

policy, not constitutional law. The legislature is the proper forum for this debate,

and we do not sit as a superlegislature “to award by judicial decree what was not

achievable by political consensus.” Thomasson v. Perry, 80 F.3d 915, 923 (4th

Cir. 1996).

[dannieyankee]

It appears to me that Lawcat's entire argument is based on current laws and the fact that two homosexuals can not have sex with each other and produce a child.

 

Now, I must address this: By talking about gay marriage, we are also implying the idea that laws will be changed to allow gays to do things such as adopt, marry, ect. that are currently illegal now. That's the whole idea.

 

Second: The need to procreate is not necessary for marriage. Yes, it is the biological ideal, but society is not based off biological ideals, now, is it? Society is based on moral ideals, which may differ slightly from the procreation route. And we are not talking about 'BIOLOGICALLY SPEAKING', we are talking about 'FAIRLY SPEAKING'. Biology is not fair. No one says society has to be the same way.

[dannieyankee]

It appears to me that Lawcat's entire argument is based on current laws and the fact that two homosexuals can not have sex with each other and produce a child.

 

Now, I must address this: By talking about gay marriage, we are also implying the idea that laws will be changed to allow gays to do things such as adopt, marry, ect. that are currently illegal now. That's the whole idea.

 

Second: The need to procreate is not necessary for marriage. Yes, it is the biological ideal, but society is not based off biological ideals, now, is it? Society is based on moral ideals, which may differ slightly from the procreation route. And we are not talking about 'BIOLOGICALLY SPEAKING', we are talking about 'FAIRLY SPEAKING'. Biology is not fair. No one says society has to be the same way.

 

'engage in current,

voluntary homosexual activity'

 

As a homosexual, I find this immensely insulting. As we have stated billions of times before, homosexuality is NOT a choice - sure, some teenage girls with say they are bisexual for the attention, but in general, homosexuals are homosexual naturally. So, homosexuality is not voluntary. And saying that 'homosexual activity is voluntary' is like saying they are not allowed to have sex because they are homosexual. So, if that were the case, WHY would we allow straight parents to have sex? Oh LORD, they have kids, how dare they! And people will claim that if the child saw their gay parents having sex, they'd be traumatized - let me tell you something, that child will be traumatized by straight sex, too. Boom.

[modest]

Ok Lawcat. We are clearly not going to agree on whether religion or homosexuality constitutes (or should constitute) a suspect class. I'm not too interested in debating it. Let me ask you a hypothetical.

 

Do you think the argument I quoted from your link would be sufficient to support these statutes if reviewed under strict scrutiny?

 

~modest

[Zythryn]

Lawcat,

If the basic logic behind not allowing homosexuals to marry is that they can't have biological children, why are infertile people allowed to marry?

[lawcat]

Do you think the argument I quoted from your link would be sufficient to support these statutes if reviewed under strict scrutiny?

~modest

 

Under the Fed Constitution, strict scrutiny will never be applied. The issue has been debated and rejected for two reasons.

First, under the fundamental rights/due process analysis, freedom of choice to marry same sex person, or multiple persons, or a sister or brother or mother, is not a fundamental right, and therefore, under the due proces/fundamental right analysis sctrict scrutiny will never apply to sweepingly allow those rights.

Second, gays are not a suspect classification because gays have never experienced level of discrimination that suspect classification requires. Therefore, strict scrutiny will never apply.

Therefore, it is pointless to argue strict scrutiny. The highest scrutiny that will apply is intermediate, and under intermediate scrutiny, ban on gay marriage will stand because State's have an important interest in civilization, and the ban is substantially related to that important interest.

 

Lawcat,

If the basic logic behind not allowing homosexuals to marry is that they can't have biological children, why are infertile people allowed to marry?

 

Because, societaly, those couples are indistinguishable from those who are already allowed to marry--societal structure is inline with history and tradition. There have been some states that have required fertility tests for marriage license in the past. But, beacuse there is a likelihood than any hetero couple can conceive, those laws have been struck down as a sort of unreasonable prior restraint.

[Zythryn]

Because, societaly, those couples are indistinguishable from those who are already allowed to marry--societal structure is inline with history and tradition. There have been some states that have required fertility tests for marriage license in the past. But, beacuse there is a likelihood than any hetero couple can conceive, those laws have been struck down as a sort of unreasonable prior restraint.

 

So laws requiring fertility tests have been struck down?

Isn't that a pretty good indication that your position that fertility is required is in error?

In this case, your one 'reason' for not allowing homosexuals to marry is invalid.

So again, rationally, what is the purpose behind laws banning gay marraige?

[modest]

Let me ask you a hypothetical.

 

I'm sorry you were unable to answer, Lawcat.

 

Under the Fed Constitution, strict scrutiny will never be applied... because gays have never experienced level of discrimination that suspect classification requires. Therefore, strict scrutiny will never apply.

 

Yeah, that will never happen :) It already happened in California:

we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and

religion —a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

 

-

California Supreme Court

But, we can say with absolute confidence that it could never happen in the supreme court. :)

 

~modest

[Moontanman]

what is the purpose behind laws banning gay marraige?

 

 

The laws and the interpretation of existing laws to ban gay marriage are nothing but straw men used to hide the moral agenda of religion that dictates the enforcement of the antiquated religious morals behind those laws.

[modest]

So laws requiring fertility tests have been struck down?

Isn't that a pretty good indication that your position that fertility is required is in error?

In this case, your one 'reason' for not allowing homosexuals to marry is invalid.

So again, rationally, what is the purpose behind laws banning gay marraige?

 

The purpose of the law is public opinion and politics. When public opinion swings toward tolerance of homosexuality then the laws can be changed as they have been without consequence in other countries.

 

It would be difficult to imagine this taking more than one generation given the trend moving in that direction:

Majority of Americans Continue to Oppose Gay Marriage

That is one hell of a trend toward tolerance and equality!

 

~modest

[lawcat]

So laws requiring fertility tests have been struck down?

Isn't that a pretty good indication that your position that fertility is required is in error?

In this case, your one 'reason' for not allowing homosexuals to marry is invalid.

So again, rationally, what is the purpose behind laws banning gay marraige?

 

Two people of same-sex = 0% chance of fertility

Two people of opposite sex = very very high chance.

 

Yeah, that will never happen :) It already happened in California:

But, we can say with absolute confidence that it could never happen in the supreme court. :)

 

~modest

 

Yes because I expressly stated under Federal Law. And federal courts have expressly stated that it is a State issue. Federal law provides minimum criteria, and here the federal minimum is met. States can do whatever they want above the minimum--they can grant higher rights than the Federal law.

 

The laws and the interpretation of existing laws to ban gay marriage are nothing but straw men used to hide the moral agenda of religion that dictates the enforcement of the antiquated religious morals behind those laws.

 

No. The nature does not enable a same-sex couple, or community to create a civilization, to procreate. The constitution is not there to remedy what the nature does not provide. If there was no State, no society, gays could not procreate in the wild and create their civilization except by recruiting from, or being parasites on the hetero culture. The Bill of Rights is not there to remedy nature, but to remedy man-created fundamental wrongs.

 

It is a strawman's argument to you, because you assign no weight to procreation, civilizational contituity, or importance of children being raised in a home with mom and dad, or such ordered structure of society--this carries zero weight to you. You assign all weight to the choice of who we want to live with , and being in love. Government places little or no weight on either, because marriage is a civilization necessity; not a choice of marrying two, or five people, or a sister, or brother, or a father.

 

For centuries and in many cultures, even hetero marriage was not a choice, but a matter of arrangement. But because in the wild, in absence of social constructs people are free, in our society, we have decided that, forcing heteros into arranged marriage violates that freedom of privacy and choice of family and child rearing. But not because freedom of choice is fundamental in abstract, but because forcing the choice is a man made construct that violates the fundamental decisional freedom of individuals to child rearing and family, considerig the civilizational necessity of marriage to individuals and society.

 

Gay marriage is neither fundamental, nor suspect, nor rational to civilization. By policy, in each state, we can decide to allow gay marriage, but not because it is a legal imperative; rather, because we feel like it. Not because it makes sense logically, but because we simply feel like toying with civilization.