Gay Marriage

[lawcat]

And... religion is a suspect class! :hihi: How could some religious cult meet the qualifications above more than homosexuality? I'm pretty sure that makes no sense at all.

 

Modest, you must keep separate the (1) the test for review of a case, and (2) the classification of the group. There are two options for classification: suspect class or not-suspect class. There are three test: strict, intermediate, and rational-basis scrutiny.

 

Strict scrutiny test applies to freedom of religion under the First Amendment, but religion is not a suspect class under the equal protection of the 5th and 14 Amendments. Suspect class concept is only relevant to analysis of governmental classifications, and classifications are only relevant to equal protection challenges of the 5th and 14th Amendment.

 

 

 

No, it seems the only reason gay people are not finding protection from discrimination under the 14th amendment is because the courts have arbitrarily decided that only racial minorities and religious groups warrant the highest protection against discrimination. The court's very method of choosing who is discriminated against is discriminatory.

 

I guess—I don't know much about this issue, and I'm not very well educated in the legal system, but this issue of "suspect class" seems very suspect to me.

 

~modest

 

The primary idea behind the concept of Suspect Class is to put the government on notice that it must legislate carefully; not to appraise the individuals of their status. In essence, it is not that a group is suspect, but that legislations are often suspect; they are suspect classifications. It is not that black people or women are suspect for some bizarre reason; it is that the legislative classification is suspect--hence suspect class.

 

The legislative classifications are suspect under 14th Amend. because, for example, legislative classifications based on race and gender more often than not bear no relationship to the purpose of the classification--the classification is wholly irrelevant to the purpose of the legislation. Color of man's skin bears no relationship to ability to procreate, have family, work, hold property etc.

 

The Strict scrutiny, and intermediate scrutiny, informs the government that they can make such suspect classification, but if and only if the government carves a very narrow means to achieve a compelling State's purpose. For example, one's gender rarely bears any relationship to whether a person can work, serve on a jury etc. But, the government can give all pregnant women a maternity leave and not give the same to men.

[lawcat]

A simple quote would have sufficed.

Now, to my question for you.

Should marraige between a man and woman that are unable, or unwilling to have children also be banned on the same basis?

 

All i can say is 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)).

 

[modest]

Good find Modest!

Dang, though, I suppose they will be coming after my marraige next since my wife and i will never have children.

 

I hate to say it, but that does indeed appear to be grounds on which to prohibit your marriage. Apparently if a state passes a statute saying "marriage is between one man and one woman who are capable of reproduction", it seems that would be constitutional by the government's reasoning. That's how I read it, anyway... I hope I'm wrong :hihi:

 

Thank you Modest. I've been saying the same thing here for 5 pages.

 

No problem. Is it a position you advocate? You think DOMA serves governmental interests for the two reasons given there?

 

Modest, do you know scientifically that homosexuality is an "immutable trait"? It certainly is not an immutable trait like race is.

 

It would be fairly trivial to show legally that they are both (homosexuality and race) immutable by the time someone is of the age to marry. Race is clearly determined before a person is born via genetics. I don't think there is scientific consensus (or understanding) regarding the role of genetics in homosexuality. But, even if it is a learned behavior and even if it is a result of choices made during development, it is nevertheless hardwired by the age of maturity. I'd argue one of the most hardwired behaviors and thoughts is sex.

 

And, don't forget, the supreme court ruled that religion satisfies the condition of suspect classification. I'd hate to be in the position of arguing that it's easier to convert a gay person away from homosexuality than to convert a Christian away from Christianity :hihi:

 

~modest

[lawcat]

No problem. Is it a position you advocate? You think DOMA serves governmental interests for the two reasons given there?

 

Does DOMA serve government's interest? No doubt. That is plain to see. When legislators vote and there is a rational nexus between the reasons posited and the DOMA, then the law serves government's interest.

 

Is it a position I advocate? No. I can advocate for both, but personally would prefer to see the DOMA give benefits based on States' laws instead of drawing classification on the federal level. But, that would be close to impossible to disentangle. For example, gays could go to Vermont toget Married and come back to Nebraska. They would be entitled to Fed benefits under Vermont marriage license, but not under the home-state Nebraska law. So which is it? Is Nebraska forced to give full faith and credit to Vermont's marriage license? What does that do to the status of gay marriage nationwide, when the consensus of 40+ states is against gay marriage?

 

All I tried to do here is to shed some light on the law, and to attempt to channel people into rational discussion, because emotional and disingenuous arguments will lead nowhere in court's or legislative halls. No one listens to emotional screams--it's noise. For example, people will often posit "love" as the reason for marriage, which has nothing to do with legislation. The government could not care less about love. Or, as Zethryn asks: How about heteros who can not have kids? Those are exceptions but the gov't makes laws based on principal objectives.

 

Let's not be disingenuous about this issue. Gay people are not similarly situated to heterosexual couples; namely, gays can not have children--it's impossible. Also, stating that the history and tradition informs us that marriage includes gay marriages is delusional.

 

Hopefully now people can think of why is it irrational or unreasonable to deny marriage to gays considering that the purpose is to keep familial order of the society, structured development of civilization, and nurturing of children in such environment. Why those laws bear no relationship to that purpose?

[modest]

Modest, you must keep separate the (1) the test for review of a case, and (2) the classification of the group.

 

Yeah, you should tell the courts to keep them separate. As it stands, the classification determines the strength of the review.

 

Strict scrutiny test applies to freedom of religion under the First Amendment, 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"? Because everything I'm reading says something different. It says that religion IS a suspect class under the 5th and 14th amendments. Do you have a link? A quote? A reference?

 

The rest of your post seems a little obfuscating. The fact is that religion, ethnicity, race, and other groups which claim discrimination garner the court's "strict scrutiny" in matters of equal protection while homosexuals do not. It is, then, easier to make laws which disenfranchise homosexuals than it would be for other groups and harder to rectify the situation through judicial review.

 

~modest

[Moontanman]

Originally Posted by lawcat

Let's not be disingenuous about this issue. Gay people are not similarly situated to heterosexual couples; namely, gays can not have children--it's impossible. Also, stating that the history and tradition informs us that marriage includes gay marriages is delusional.

 

Lawcat, it is not impossible for gays to have children. Homosexual women can conceive through artificial insemination, homosexual men can adopt children. You basic premise is totally false. a great many heterosexual couples can only have children through adoption or artificial insemination. Should we deny these couples marriage? I think your entire premise is based on nothing but the sad old religious objection to homosexuality...

[lawcat]

Modest,

 

I suppose you are reading this: "The Supreme Court, for example, has declared race and religion suspect. Therefore, government discrimination against racial minorities or religious groups is unlikely to be upheld." Suspect Classification: West's Encyclopedia of American Law (Full Article) from Answers.com, linked from Suspect classification - Wikipedia, the free encyclopedia.

 

The key language there is not "suspect." The suspect is merely an inquiry mechanism, and I will explain this. But, the key language is there is "government discrimination." Discrimination is not a nasty word, but merely another way of saying classification. For example, if you give benefits to men, but not to women, you are classifying; or if you want to be a bit more poised in your language, you are discriminating. Thus, the question is one of (1) governmental (2) classification--not merely private classificaiton.

 

Why is religious classification suspect to courts? The following exceprts from Everson v. Board of Education are informative: Everson v. Board of Education of the Township of Ewing

 

some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. [n17] In recent years, so far as the provision against the establishment of a religion is concerned, the question has most frequently arisen in connection with proposed state aid to church schools and efforts to carry on religious teachings .

 

Second. The New Jersey statute is challenged as a "law respecting an establishment of religion." The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105, commands that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."

 

. . .

Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states. [n15]

 

. . .

The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.

 

. . .

The [First] Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.

 

 

Now, as far as scrutiny: scrutiny is merely a level of inquiry. If you allege that legislators have drawn a classification between you and your wife, or your beliefs and other people's beliefs, to your disadvantage, you can request strict scrutiny under: (1) First Amendment, if your religious beliefs are involved, or (2) under Equal Protection if all else is invloved. But if your State has acted against you, instead of the Feds, on a religious basis, then you will invoke the First Amendment, but only because it applies to the States through the force of the Fourteenth Amendment. This is where the confusion stems from; yes, courts apply 14th Amend to religion but only to reel in the First Amendment. See incorporation of the Bill of Rights http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights).

 

The reason for this is not that religion is suspect and therefore 14th Amendment's equal protection applies. The reason is that 14th Amendment mandates that the States provide equal protections of the laws, and since the citizens of the federal government have constitutional protection of the First Amendment, the same protection of the First Amendment applies to the citizens of several States.

[Moontanman]

Lawcat you have established that the state can deny the right to marry to homosexual people. You have yet to establish why the state would want to deny the right of marriage from homosexuals. The state can do lots of things, they can deny me the right to live, strap me down into a chair and inject me with lethal compounds. i would like to think they would have to have a damn good reason to do that. So far I see no reason what so ever to deny homosexuals the right to marriage and all the rights associated with marraige.....

[lawcat]

Lawcat, it is not impossible for gays to have children. Homosexual women can conceive through artificial insemination, homosexual men can adopt children. You basic premise is totally false. a great many heterosexual couples can only have children through adoption or artificial insemination. Should we deny these couples marriage? I think your entire premise is based on nothing but the sad old religious objection to homosexuality...

 

Again, this confusion stems from misunderstanding of the nature of legislation and law.

Unlike in science, rationality in law is a minimal inquiry. In science, something is rational if it is more likely than not to be true. in otherwords, in science, if something is not more likely than not to be true, then it is not rational. In science, the test is the scientific probabilistic truth.

Law is different. Something is rational if it merely vibrates the needle on the relevance meter.

[lawcat]

]The state can do lots of things' date=' they can deny me the right to live, strap me down into a chair and inject me with lethal compounds. i would like to think they would have to have a damn good reason to do that.[/quote']

 

No they can not, without due process.

[Moontanman]

No they can not, without due process.

 

Well that would be what I mean by a damn good reason.... so far you have not shown any reason what so ever why gays should be denied the right to marry other than "the state can"

[lawcat]

Well that would be what I mean by a damn good reason.... so far you have not shown any reason what so ever why gays should be denied the right to marry other than "the state can"

 

The argument flies over your head for whatever reason. I do not know why.

 

The purpose of the legislation is to protect 1) order and (2) welfare of the society.

 

To protect order of the society, the legislators have deemed that marriage is conducive to structured familial life as established by the history and tradition of human race. (mom, dad, children, grandparents etc., the basic fundamental unit of social life)

 

To protect welfare of society, the legislators have determined that only male-female bonds can produce offspring necessary for the continuation of the civilization. Further, the legislator have determined that living in a family unit with mom and dad is the best environment for the child.

 

Both are rationally related to legitimate legislative purpose. Rationality is merely a vibration of the needle, and it is not a more likely than not test.

[Moontanman]

I know what you are saying lawcat, you do not see what I am saying. I say you and or the law is wrong, gay marriage is just as conductive to raising children and the continuation of the state as heterosexual marriage is. Your ideas that state that homosexuals are not conductive the continuation of the state is based in religion, not reality. The bias against gays is purely religious and should there for be struck down....

[InfiniteNow]

Lawcat - In order to suggest that the differential conferment of state benefits and privileges to same and opposite sex couples is allowed because it "is to protect 1) order and (2) welfare of the society," you must first establish that same sex marriage results in "disorder" or negatively impacts the "welfare of society."

 

Thus far, you have failed to establish that this is the case, hence your point is vacuous.

 

 

Your only argument thus far is that "homosexuals cannot have children," and this is why they cannot be allowed to marry. However, this argument has been flatly refuted since heterosexual couples are not disallowed from marrying when they cannot or choose not to have children. You are working with double standards.... suggesting that it's okay that opposite sex couples not capable/willing to have children ARE allowed to marry, but that opposite sex couples ARE NOT allowed to marry since they cannot have children.

 

The fallacious nature of your point is blindingly obvious to apparently everyone but you.

[lawcat]

you must first establish that same sex marriage results in "disorder" or negatively impacts the "welfare of society."

 

Thus far, you have failed to establish that this is the case, hence your point is vacuous.

 

How many times I need to repeat this: The State does not have to establish anything. The proponents of gay marriage must estalbish that the reasons given by the State are irrational--completely and wholly unrelated to the order and welfare of the society. And that is a tall road.

 

You can win that argument on emotion on forums like this, but not in a court of law or even legislative halls.

[Moontanman]

How many times I need to repeat this: The State does not have to establish anything. The proponents of gay marriage must estalbish that the reasons given by the State are irrational--completely and wholly unrelated to the order and welfare of the society. And that is a tall road.

 

You can win that argument on emotion on forums like this, but not in a court of law or even legislative halls.

 

How is that a tall order lawcat? You cannot show how marriage between same sex couples in any way (other than religious objections) affects the order and welfare of society, in fact I think it readily apparent to anyone not blinded by the bigotry and hatred spawned by religion that gay marriage would contribute in exactly the same way and amount to society as straight marriage.

[lawcat]

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.