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  • #31
    I'm going to be blunt.

    Nobody's brilliant legal reasoning and stunning rhetoric about the equal protection clause is likely going to persuade Justice Scalia to shift toward a pro same-sex marriage stance, is it?

    Well-reseached and clever legal tap-dancing aside, let's not pretend this issue boils down to anything but religious vs. secular ideology, the age-old clash perhaps amplified more so by same-sex marriage than any issue before. At the moment a judge/justice/elected official/individual votes on a same-sex marriage issue, due to the personal stakes involved for people who may truly believe gay people are religiously prohibited, that's what they're still thinking about at this moment in history. No case law, or beautiful-sounding constitutional rhetoric is going to outweigh deeply held religious convictions for staunch religious conservatives. As a proponent of gay marriage, this reality is what is frightening about this potentially going to the Supreme Court right now in such a polarizing political climate existing alongside the aforementioned religious v. secular culture war.

    To have any theoretical, legal debate about same-sex marriage without including this cultural context-this reality-is a fun brain exercise, and little more.
    Last edited by Present sense impression; July 18th, 2011, 02:31 PM.
    Aut viam inveniam aut faciam

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    • #32
      Originally posted by mock2011 View Post
      I could see the argument that race and sexual orientation are fundamentally different. One could argue that sexual orientation is more fluid than race. Therefore the cases should be treated differently.
      You make a fair point here, as far as I can tell from limited personal experience living in New England at a university where lesbian/gay/transgender activists often pontificate about the fluidity of sexuality. In this specific point, their own ideology could work against their cause, but I think only to an extent, as conservatives would latch onto any argument beneficial to them and gay marriage supporters would likewise violently reject the conclusion that fluidity should equal different treatment. We're right back to where we started. This, ultimately, is a religious vs. secular issue amplified by the white hot political climate, permeated by passions little reason otherwise will tame until the culture is ready for it.
      Last edited by Present sense impression; July 18th, 2011, 02:32 PM.
      Aut viam inveniam aut faciam

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      • #33
        Originally posted by RuHurt View Post
        UMCane, I think you're taking this discussion a little too personally. Not a single person on this thread so far has said anything even remotely intended to be offensive to homosexuals, but your tone is one of indignation and disgust at the idea there's even a discussion on this issue.

        You countered my argument by replacing the word "homosexual" with "black," and "heterosexual" with "white." That does not, to my mind, discredit my argument. If the law defines marriage as between one man and one woman, then so long as any man and any woman have an equal opportunity to marry each other, I see no equality issues. If the law forbids certain men and certain women from marrying each other (with the exception of incestuous relationships, as those raise issues of serious genetic problems for the children), then I could see an equality problem, as there was with laws forbidding black people from marrying white people.

        Again, and it's frustrating that I have to keep re-emphasizing this, I'm not expressing any opinion on the morality or appropriateness of laws forbidding homosexuals from marrying each other; personally, I have no problem with gay marriage, and neither support nor oppose it. But the legal question at hand is, I believe, distinct from the question Justice Warren addressed, and not effectively resolved by pointing at his words and saying "See? We win, and your disagreement is offensive."

        As for The Gelf and mocksluzer's responses to my "circularity" argument, I'll have to think more on your responses, but it sounds like you might be right, and I'll have to admit that I mischaracterized the argument.


        I haven't posted on Perjuries in forever...but couldn't resist jumping in on this thread, hah.

        So far, most of the back-and-forth on this issue has been from an equal protection perspective. I think Gelf and others have done a pretty good job in addressing why the equal protection argument isn't circular once you examine the true argument as opposed to a mis-characterized or straw-man argument. With regards to sexual orientation being a suspect class, I agree that there are some valid objections regarding the political power factor (see, e.g., Gelf's point) and some not-so-valid [trying to be polite, heh] objections (see, e.g., Lambda Legal, which Don dismantled fairly well, IMHO). However, no one factor is dispositive, and not all factors are necessarily given equal weight. Personally, I think New York takes a more common-sense approach in identifying suspect classes based on whether the classification at issue is immutable. Ultimately, I think it would be tough to deny that LGBTs have faced a history of discrimination and that homosexuality is an immutable characteristic. (That being said, I think it's bullshit that gender is classified as quasi-suspect rather than suspect).

        For those who have not yet read the Perry v. Schwarzenegger decision, I strongly suggest reading the decision (http://documents.nytimes.com/us-dist...schwarzenegger) particularly from page 111 onwards [p. 109 on the actual document, p.111 in the browser]. Interestingly, Judge Walker notes that it's possible to characterize the equal protection issue as an equal protection violation on the basis of sex. John Doe's marriage to Jack Doe is prohibited because John is a man; if John were a woman, he would be able to marry Jack. Following this logic, under current federal law, this sex discrimination would receive intermediate scrutiny. Of course, Judge Walker goes on to note that the above example also qualifies as discrimination on the basis of sexual orientation, which, according to Judge Walker's analysis, is a suspect classification deserving of strict scrutiny. But Walker lays how, even if you apply the rational basis test, Prop 8 fails to pass constitutional muster.

        The point no one has made yet (at least based on my quick perusal of the thread) is that aside from being an equal protection violation, anti-gay-marriage laws also violate substantive due process. Again, I refer back to Judge Walker's decision (starting at the bottom of p.112 [p.110 on the actual document, 112 on the browser]). The right to marry, according to him, is fundamental. The Supreme Court has laid to rest that issue. So the question becomes, when a same-sex couple seeks to get married, are they attempting to exercise a fundamental right or some new right? Walker determines that the same-sex couple is attempting to exercise the same fundamental right to marry that a heterosexual couple might exercise, and thus, a due process analysis for the same-sex marriage issue would require strict scrutiny. Again, Walker goes on to point out that Prop 8 fails to meet both the strict scrutiny and the rational basis test.

        Of course, we have yet to see whether his decision will stand...but whether it stands or not, his reasoning is, IMHO, very logical and impressive.
        "You can't steal second with a foot on first."

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        • #34
          Present sense impression, I've said it for a long time, this legal/political debate is really nothing more than a referendum on homosexuality. To be honest though, I think you even overstated the true nature of the debate. I don't even think it's a religious vs. Secular debate, The whole thing is just pretext for a large chunk of society to try and suppress what they find to be abnormal. If many were being truly honest when asked why they hold a certain view, they would answer "I'm not really sure, it just feels weird."

          And anant, great post as always.
          It's all about the U.

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          • #35
            Originally posted by UMCane*GWB View Post
            Present sense impression, I've said it for a long time, this legal/political debate is really nothing more than a referendum on homosexuality. To be honest though, I think you even overstated the true nature of the debate. I don't even think it's a religious vs. Secular debate, The whole thing is just pretext for a large chunk of society to try and suppress what they find to be abnormal. If many were being truly honest when asked why they hold a certain view, they would answer "I'm not really sure, it just feels weird."

            And anant, great post as always.
            This whole thing is just a giant conspiracy to bring socialized medicine to this country. First, legalize same-sex marriage. Then legalize polygamy. Therefore, everybody can marry everybody else and get on their healthcare plan.

            5evoovi5
            Mock Trial with J. Reinhold! Mock Trial! Mock Trial with J. Reinhold!

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            • #36
              Looking at this thread and the way that UMCane and RuHurtwent at each other, I think that it is slightly reflective upon our society andhow we view gay marriage. Every person who is against gay marriage defines itas a man and a woman without quoting the source of the specification-The Bible.This is a trend that has occurred more recently, not coincidentally in my eyes,with the rise of the Fundamentalist Right. When I look at people looking toattack gay marriage, they don't bring up court cases, they don't look toconstitutional law as our friend UMCane has, they simply go back to"marriage is defined to a man and a woman" and sadly, that seems asthough the only thing that they need to fall back on. Why? Because that is whois in power right now. If proponents of gay marriage were in charge we couldfall back on:
              Originally posted by UMCane*GWB View Post
              I say "the constitution says equal protection and due process." if our two statements can't coexist, mine wins. .
              But we don't because we cannot. If the underlying cause of this debate is the fact that people who are religiously against this will always oppose it then our law system has failed. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" I believe is how it goes. The point is that all the due process and protected class rhetoric can be thrown around all we want. But religion is playing a big role in this that nobody is willing to address.

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              • #37
                I don't think it's fair to say that opposition to same sex marriage began with the rise of the Christian Right or that opponents of same sex marriage attempt to avoid constitutional arguments. Efforts to legalize same sex marriage date back to the early 1970's. The first case I know of to address the matter was the Minnesota Supreme Court in Baker v. Nelson in 1971, which upheld the constitutionality of limiting marriage to opposite-sex couples (the appeal of that decision to the U.S. Supreme Court was dismissed "for want of a substantial federal question" -- a procedural device that no longer exists, and courts remain divided about Baker's precedential value, especially in light of later USSC decisions). Since that time, the overwhelming majority of state and federal courts to address the issue have upheld the constitutionality of limiting marriage to opposite sex couples. So while one may not find their arguments persuasive, saying that opponents of same same sex marriage avoid the use of constitutional law is simply not correct. And if you believe that opponents of same sex marriage are not citing court cases to support their position, then, respectfully, you clearly have not done any serious reading on the issue.

                So far, I have seen misstatements regarding the arguments presented by BOTH sides of this issue on this thread alone. As I stated earlier, I highly recommend that people read at least some of the many cases which thoughtfully and thoroughly parse the arguments that are available for free on the internet and can be found with a 30-second search on Google: Baker v. Nelson, the Goodridge case in Massachusetts, Hernandez v. Robles in New York, the Varner case from Iowa, Perry v. Schwarzenegger and In re Marriage Cases from California, Lewis v. Harris from New Jersey, Morrison v. Sadler from Indiana and many others. Most appellate cases contain passionate opinions from the majority and the dissenters which will really give you a nice and deep understanding of the legal positions taken by each side.
                Mock Trial with J. Reinhold! Mock Trial! Mock Trial with J. Reinhold!

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                • #38
                  Originally posted by Lancer View Post
                  My biggest struggle for finding them suspect is the 2nd of these requirements. With the amount of money spent by Lambda Legal and the ACLU as well as the amount of people that are "politically elite" that are for same-sex marriage, or equality even, makes that just simply untrue.
                  I have to say, aren't there a lot of people who are "politically elite" who are not for gay marriage? As well as many groups who are pro-family or anti-gay marriage? It's not as though the other side is underrepresented or railroaded. In fact, those who support gay marriage are politically underrepresented -- the youth who are in many ways overlooked by politicians and not included in the political process. How many 30 year-olds (or younger) do we see in Congress?
                  Last edited by The_Fisher_Queen; August 22nd, 2011, 04:43 PM.

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                  • #39
                    I guess it comes down to what you consider to be underrepresented and more so what the court thinks. Is underrepresented right around 50%? Gallup has the split very close now for those that are for and those that are against gay marriage. As an advocate for Gay Marriage something inside me makes me feel bad every time a court makes the decision to overturn legislation. It's probably rooted in my belief that Plato was so wrong about allowing so few people to make such a big decision affecting so many. Yes I know that democracy has traditionally had the ability to be tyrannic as well, I guess I just trust that success will come easier if the majority of the people agree. Like you said that's already happening. Lets face it, older generations are dying off and as that continues the percentage will most likely rise in favor of gay marriage.

                    Is it flawed reasoning because of what happened with the other civil rights movements? Probably. Since I'm not sure that african-americans would have won their rights without the courts help. But if you want some decent arguments for why legislation is/isn't a better idea I'd suggest seeing Rosenberg on the backlash theory and the responses from Scott Cummings (you can find others on his side in the footnotes of a Cummings article).
                    Josh Peterson
                    Hamline University Alum

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                    • #40
                      Originally posted by Lancer View Post
                      I guess it comes down to what you consider to be underrepresented and more so what the court thinks. Is underrepresented right around 50%? Gallup has the split very close now for those that are for and those that are against gay marriage. As an advocate for Gay Marriage something inside me makes me feel bad every time a court makes the decision to overturn legislation. It's probably rooted in my belief that Plato was so wrong about allowing so few people to make such a big decision affecting so many. Yes I know that democracy has traditionally had the ability to be tyrannic as well, I guess I just trust that success will come easier if the majority of the people agree. Like you said that's already happening. Lets face it, older generations are dying off and as that continues the percentage will most likely rise in favor of gay marriage.

                      Is it flawed reasoning because of what happened with the other civil rights movements? Probably. Since I'm not sure that african-americans would have won their rights without the courts help. But if you want some decent arguments for why legislation is/isn't a better idea I'd suggest seeing Rosenberg on the backlash theory and the responses from Scott Cummings (you can find others on his side in the footnotes of a Cummings article).
                      There are other protected classes that have way more political power (as well as a much larger percentage of the populace) than LGBT people. Examples: Women, African Americans, Hispanics, etc.

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                      • #41
                        Originally posted by Nur Rauch View Post
                        There are other protected classes that have way more political power (as well as a much larger percentage of the populace) than LGBT people. Examples: Women, African Americans, Hispanics, etc.
                        The more fundamental problem with the "plitically powerless" factor is that if a classififcation is subject to heightened scrutiny, EVERYBODY (regardless of political power) is protected from discrimination based on that characteristic. For example, if a law discriminates against white people in favor of blacks or Hispanics, that law is subject to heightened scrutiny under the 14th Amendment. This is true even though nobody would argue that white people are politically powerless.
                        Mock Trial with J. Reinhold! Mock Trial! Mock Trial with J. Reinhold!

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