Politics: Onward from New Hampshire

[leagleaze]

Originally posted by Tyrone_Slothrop
That's a nice theory but I don't think it works like that. I believe I've seen leagl post about this; maybe she can help me out. I have heard other examples, but can't find them now.

Ah, I see the little birdy who told me the politics board was calling was correct.

You will forgive me, Tyrone, if I decline your kind invitation to enter this discussion. I admit, I am very bored and stuck home ill, but neither of these things is enough to induce me to enter into what is an academic discussion to most of you, but a serious and personal issue to me.

Carry on.

[Not Me]

Originally posted by leagleaze
neither of these things is enough to induce me to enter into what is an academic discussion to most of you, but a serious and personal issue to me.

Leagle - can you please answer these questions:

1) Are there any arguments that you can advance that would support gay marriage that could not also be used to support polygamy; and

2) What rights or obligations can you not get with a civil union or even by private contract with your partner that you can get if gay unions are deemed marriages instead of civil unions.

FYI - I genuinely fear that if gay marriage is allowed, the polygamists are the next in line to ask for legal recognition of their unions. Maybe not in the next 10 years, but I see this as a very real possibility down the road.

I also strongly suspect that this is more about getting government benefits and employer sponsored benefits than anything else. Many employers now give the benefits to gay partners and more and more are being added to those roles every day. So it seems to be the government benefits that are the most likely reason to want gay marriage as opposed to a civil union or private contracts between partners.

TIA.

[Not Me]

Originally posted by Tyrone_Slothrop
Maybe if I haven't had too much to drink, I will add to this latter, but suffice to say that you are trying define away the equal protection argument that Burger and I keep making

Ty, first, what precisely is your EP argument under Loving that would allow gay marriage. Then second, how could that same argument not be used to require polygamy be allowed, too.

In Loving, the USSC characterized the VA law at issue as:

The statutes proscribe generally accepted conduct if engaged in by members of different races.

Do you not see a difference between proscribing marriage (meaning punishing by jail time in this context) and simply not providing for it? I see a difference.

The Loving court also was very focused on the fact that criminal penalties attached to interracial marriage and that was a very important issue in their decision.

At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny" . . . Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." (emphasis added)

There is no criminal penalty against gays when marriage is defined as between one man and one woman and only a marriage between one man and one woman is recognized.

Loving is just too factually different to apply to the situation of forcing legislatures to allow gay marriage. Loving is a case about preventing legislatures from criminally punishing people for legally marrying in another state and then moving back to a state that criminalized interracial marriage.

I see you don't litigate because if you did, you would understand how important distinguishing and analogizing the facts are. You don't just extract abstract legal concepts out of opinions. You have to also look at the facts to determine if the legal principles would apply in a different factual context.

Originally posted by Tyrone_Slothrop
We say, A. You say, you must say B instead, and B is wrong. Well, we're saying A, and until you come up with something better (or just responsive), it's a little pointless to invest more in it.

That is not an accurate charaterization of what I said. I said that the facts of Loving are too different from the gay marriage scenario for you to just pluck abstract legal principles out of Loving and apply them to forcing legislatures to allow gay marriage.

Loving was a criminal statute that on its face discriminated on the basis of race. That is nothing at all like forcing a state legislature to allow gay marriage because the statute on the books defines marriage as between one man and one woman.

[leagleaze]

Originally posted by Not Me
Leagle - can you please answer these questions:

If you and I were sitting across from each other drinking a cup of coffee, I would be happy to have a discussion with you and see if we couldn't find a satisfactory answer. However, as I have already stated, I will not get in a debate on this subject on this board. So with sincere apologies, I must again decline the invitation to become involved in this discussion.

[Not Me]

Originally posted by leagleaze
If you and I were sitting across from each other drinking a cup of coffee, I would be happy to have a discussion with you and see if we couldn't find a satisfactory answer.

Don't get all emotional on me. I am being serious. I see differences between polygamy and gay marriage, however, neither I nor any one else I have ever discussed this topic with has ever been able to articulate a reason that could be used to support gay marriage that cannot also be used to support polygamy.

And while you are here, why is it that gay men harbor so much animosity toward gay women? That just confirms in my mind that the only reason hetero men like me is because they think they have a chance at having sex with me.

[Tyrone Slothrop]

Originally posted by Not Me
Loving ... is a criminal case and a fundamental rights case by and large.... I brought up the reasoning behind the USSC finding the criminal statute at issue in Loving was unconstitutional. It has to do with why marriage is a fundamental right under the US constitution.

You misread Loving. Here is the first paragraph of Warren's decision:

• This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

Section I concludes:

• The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.
  
  There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "distinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense."
  
  There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

[Not Me]

Originally posted by Tyrone_Slothrop
You misread Loving.

No, I didn't, but you seem to think you can pluck legal concepts out of an opinion and apply them to different factual situations without taking into consideration how analogous the two factual situations are.

For a more detailed explanation, see my post here:

http://www.lawtalkers.com/forums/sho...8718#post68718

[Tyrone Slothrop]

Originally posted by Not Me
Ty, first, what precisely is your EP argument under Loving that would allow gay marriage. Then second, how could that same argument not be used to require polygamy be allowed, too.

Please read what Burger and I have posted instead of just responding to it.

In Loving, the USSC characterized the VA law at issue as:

Do you not see a difference between proscribing marriage (meaning punishing by jail time in this context) and simply not providing for it? I see a difference.

There is a distinction, but it is what we litigators call a distinction without a difference. If marriage is a civil institution -- and it is -- then the difference between forbidding it and failing to provide for it is meaningless.

Loving is just too factually different to apply to the situation of forcing legislatures to allow gay marriage. Loving is a case about preventing legislatures from criminally punishing people for legally marrying in another state and then moving back to a state that criminalized interracial marriage.

Much of the analysis involved in constitutional law involves extracting larger principles from the facts of specific cases. Your argument is a little like saying that abortion could be banned here in California because Roe v. Wade involved a Connecticut statute.

I see you don't litigate because if you did, you would understand how important distinguishing and analogizing the facts are. You don't just extract abstract legal concepts out of opinions. You have to also look at the facts to determine if the legal principles would apply in a different factual context.

Heh.

[Tyrone Slothrop]

Originally posted by Not Me
No, I didn't, but you seem to think you can pluck legal concepts out of an opinion and apply them to different factual situations without taking into consideration how analogous the two factual situations are.

For a more detailed explanation, see my post here:

http://www.lawtalkers.com/forums/sho...8718#post68718

I really don't understand why you think the fact that Loving involved a criminal statute was so important. You can pluck out of the decision language that refers to the criminal aspects of it, but subsequent courts and commentators have not understood it as limited in that fashion. The equal protection principle is not limited to the criminal context.

[Not Me]

Originally posted by Tyrone_Slothrop
Please read what Burger and I have posted instead of just responding to it.

I have read it and you are just extracting abstract legal concepts out of dicta in the opinions and not taking into the account the factual distinctions.

It is a loser argument.

And even it if wasn't a loser argument (which it is) the same arguments can be made to support polygamy.

Originally posted by Tyrone_Slothrop
There is a distinction, but it is what we litigators call a distinction without a difference. If marriage is a civil institution -- and it is -- then the difference between forbidding it and failing to provide for it is meaningless.

Now I am certain you are drunk.

Originally posted by Tyrone_Slothrop
Much of the analysis involved in constitutional law involves extracting larger principles from the facts of specific cases.

But the facts still matter. And con law isn't different from any other type of law in this respect. You apply legal principles from one case to the next if and only if there is a sufficient basis to do so and whether there is a sufficient basis to do so depends on the facts.

Not allowing the state of VA to criminalize interracial marriage isn't the same as forcing a state legislature to enact a law allowing gays to marry each other.

But forcing a state legislature to enact a law to allow gays to marry each other is alot like forcing a state legislature to enact a law to allow polygamists to marry more than one person.

Originally posted by Tyrone_Slothrop
Your argument is a little like saying that abortion could be banned here in California because Roe v. Wade involved a Connecticut statute.

Now I am really, really certain you are drunk. Better stop posting before I become really, really, really certain you are drunk.

[Tyrone Slothrop]

You seem to have only two points now:

(1) Even under the EP argument, gay marriage and polygamy are still the same.

The answer to this is that under the Equal Protection Clause (which you, as an apparent patent litigator, don't seem to be very familiar with) a classification based on gender gets intermediate scrutiny or more, while a classification based on number of marriages gets only rational basis review.

(2) Loving was a criminal case.

The answer to this is, so what? Everyone know understands that anti-miscegenation statutes are unconstitutional, for the reasons stated in Loving. States may no longer provide civil marriage only to those of the same race.

[Not Me]

Originally posted by Tyrone_Slothrop
I really don't understand why you think the fact that Loving involved a criminal statute was so important.

Because I think if the statute were not criminal, the only basis for striking it down would have been fundamental rights/due process. I think that the court alluded to that in what the court wrote in the EP part of the opinion.

If there had been a VA law that simply said, marriage is allowed only between members of the same race (but no criminal penalties involved), I think the Warren court would have reached the same result, but just under a substantive due process argument.

Originally posted by Tyrone_Slothrop
You can pluck out of the decision language that refers to the criminal aspects of it

true.

Originally posted by Tyrone_Slothrop
but subsequent courts and commentators have not understood it as limited in that fashion.

cite please.

[Tyrone Slothrop]

Originally posted by Not Me
Because I think if the statute were not criminal, the only basis for striking it down would have been fundamental rights/due process. I think that the court alluded to that in what the court wrote in the EP part of the opinion.

That's because you are simply ignoring Section I of Warren's decision for the majority. I posted it above to try to reduce the effort involved for you, but, truly, you can lead a horse to water but you cannot make it drink. Nothing in the discussion of the EP Clause says, "We apply the Equal Protection Clause here only because it's a criminal statute; if this were a civil case, Virginia would be free to discriminate on the basis of race."

cite please.

Look at
this, or
this or
this or
this or
any of a bunch of other things you can find with a simple Google search. After three minutes I got bored.

If the Equal Protection Clause invalidates criminal punishment of blacks and whites who marry, why would it permit a state law that permits civil marriage between those of the same races, but no one else? If Virginia had such a law today, do you doubt for a second that it would survive a lawsuit? Of course not.

[Not Me]

.

[Not Me]

Originally posted by Tyrone_Slothrop
You seem to have only two points now:

(1) Even under the EP argument, gay marriage and polygamy are still the same.

Correct.

Originally posted by Tyrone_Slothrop
a classification based on gender

Gender and sexual orientation are two different things. If a law allows opposite sex marriage for both sexes, it is not a classification based on gender. Both men and women can marry people of the opposite sex. Traditional marriage laws allow both males and females to marry members of the opposite sex. That is gender neutral. in the sense that both sexes are restricted to marrying members of the opposite sex.

Originally posted by Tyrone_Slothrop
(2) Loving was a criminal case.

True.

Originally posted by Tyrone_Slothrop
The answer to this is, so what?

Because throwing people in jail for doing something is very different from forcing a state legislature to legally sanction something that people want to do. The former takes away the right to liberty, which automatically invokes due process concerns, and the latter does not invoke due process concerns unless it is a fundamental right.

Originally posted by Tyrone_Slothrop
Everyone know understands that anti-miscegenation statutes are unconstitutional, for the reasons stated in Loving.

Loving held that a state statute that criminalized interracial marriage was unconstitutional. That is the issue that was before the court - is a statute that criminalizes interracial marriage between a black person and a white person unconstitutional. The answer is yes. The rest is dicta.