Politics: Onward from New Hampshire

[Atticus Grinch]

Originally posted by Hank Chinaski
one cannot legally distinguish between who can get married based upon the two genitals the couple may have. Such a distinction would violate equal protection.
How then can one distinguish between who can get married based upon the present marital status of the two.

EP requires protected class status. We don't extend EP arguments to "this law is unfair to me, because I am a rapist, and rapists are treated unequally to others under the anti-rape laws."* I don't think marital status, while partially protected, is treated the same way as race or gender or rapistism. When this case hits the S.Ct., it will be sui generis, even though both sides will be addressing Lawrence in their briefs. Just a timely reminder: Lawrence wasn't decided on EP grounds, so it's hard to say the S.Ct. has yet extended EP arguments to same gender couples at all. The people saying EP justifies same-sex marriage aren't yet on the U.S. S.Ct.

The only people thinking that the Lawrence rationale will necessarily and eventually extend to polygamy and incest are (1) overly rational lawyers who incorrectly assume that the court's privacy jurisprudence is based on internal inconsistency, rather than "the state of _____ crossed a line here," or (2) closeted or outed religious zealots who think same-sex contact is tantamount to incest. A study of the S.Ct.'s privacy jurisprudence shows that it considers such consistency to be the hobgoblin of small minds.

*Just an example. In your state, MMV.

[Tyrone Slothrop]

Loving v. Virginia. If marriage is defined as a relationship between two people of the same race, then blacks are just as free to marry other blacks as whites are to marry other whites.

[Hank Chinaski]

Originally posted by Tyrone_Slothrop
One can articulate any number of rationales relating to polygamy that would satisfy rational-basis review, even if they are likely founded in anti-LDS animus.

again, no dog in this one, but you submit that a distinction based upon bad sentiments towards the LDSs would be subject to rational basis? distinctions based upon religions aren't subject to strict scrutiny?

[Not Me]

Originally posted by sgtclub
I submit that the answer to all of this is to eliminate marriage entirely as an institution. That should satisfy the equal protection clause and demolish any standing myths regarding the sanctity of marriage.

I don't think the equal protection arguments that are being advanced are framing the issue properly.

My understanding of EP law is that the LAW has to discriminate, either facially or by disparate impact, on the basis of the characteristic of the group. Gays are allowed to marry members of the opposite sex.

If the law said that one heterosexual woman can marry one heterosexual man, then the EP clause would apply because gays would not be allowed to marry a member of the opposite sex but a heterosexual would be allowed to marry a member of the opposite sex. That isn't what the laws say, though.

Anyone regardless of sexual orientation can marry a member of the opposite sex under the current laws. Whether they want to enter into a marriage with a member of the opposite sex is not something that matters under EP law.

[Mmmm, Burger (C.J.)]

Originally posted by Not Me

But you are starting from a flawed premise. Your premis is that gays are being treated differently and then you invoke the Equal Protection clause. That is wrong. Gays are not being treated differently if marriage is defined as between one man and one woman. opposite sex.

. . .
Your analysis presupposes a law that bans gay marriage. That is differnt from defining a marriage as between one man and one woman and allowing one man and one woman to marry. That doesn't discriminate against gays because gays can if they choose get married to a member of the opposite sex.

You are framing the issue wrong for an Equal Protection analysis.

The MA state supreme court did not invoke the US constitution to support its ruling for good reason. The MA state constitution was used, not the US constitution.

Last things first:

"Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (Mass. Const. Pt. 1, Art. 1). And, sure, it's not the fed'l EPC, because if it were, we all know the USSct would reverse, and the four votes for in Mass. weren't that stupid. But just because the S.ct. would reverse doesn't mean they'd be right, any more than we now believe it to have been in Plessy.

Next. I'm framing it the same way it was framed in Loving. No state has successfully made the argument that anti-miscegenation laws are constitutional (that is, not an equal protection violation) because marriage is open to blacks and to whites, so long as blacks marry blacks and whites marry whites. Under your reasoning, that argument would be a winner. Perhaps the Mississippi AG has a job for you.

[Tyrone Slothrop]

Originally posted by Hank Chinaski
again, no dog in this one, but you submit that a distinction based upon bad sentiments towards the LDSs would be subject to rational basis? distinctions based upon religions aren't subject to strict scrutiny?

Courts are reluctant to attribute legislative action to animus, and do it rarely. They don't want to base a decision on legislative intent unless it's clear from the enactment. But see Cleburne and Romer. I'm not saying it couldn't work, I'm saying it's unlikely to.

[Not Me]

Originally posted by Tyrone_Slothrop
Loving v. Virginia. If marriage is defined as a relationship between two people of the same race, then blacks are just as free to marry other blacks as whites are to marry other whites.

You are conveniently leaving out the one man and one woman thing again.

Marriage isn't defined as two people. It is defined as between one man and one woman. No discrimination against sexual orientation either facially or by disparate impact.

Nothing in the current laws that define marriage as between one man and onewoman dicriminates against homosexuals. They can enter into marriages with members of the opposite sex, too. They just may not want to.

[Tyrone Slothrop]

Originally posted by Not Me
My understanding of EP law is that the LAW has to discriminate, either facially or by disparate impact, on the basis of the characteristic of the group.

When the characteristic has to appear explicitly in the law, as per your understanding, that's a good indication that it's a limitation, and thus discriminatory.

Originally posted by Not Me
Marriage isn't defined as two people. It is defined as between one man and one woman.

So what if the Commonwealth of Virginia had said, marriage isn't defined as two one man and one woman, it's defined as a man and a woman of the same race?


Please advise as to polygamous civil unions, gay or otherwise.

[Mmmm, Burger (C.J.)]

Originally posted by Not Me
You are conveniently leaving out the one man and one woman thing again.

You're conveniently assuming that marriage is inherently defined as being between a man and a woman, and cannot admit of another definition. Evidently those states that have clarified that "marriage shall be between one man and one woman" don't make the same assumption. Of course you're right if you do that. It's just as easy as saying a fetus is a child and therefore cannot be aborted.

Would you say women can't be firemen, because, hey, it's a fireman were talking about?

[Not Me]

For all the reasons I have so eloquently stated, you cannot use the EP clause to argue for gay marriage because a law that defines a marriage as between one man and one woman does not discriminate on its face against gays nor is there disparate impact. Gays can marry members of the opposite sex under that law just like heteros can.

What you need to argue is that there is a fundamental right to marry whomever you choose regardless of gender. But to do that, you are going down the slippery slope that leads to polygamy being legal because if there is a fundamental right to marry whomever you choose, isn't there a fundamental right to marry as many people as you choose, too? And if not, why not. What is the basis for allowing one and not the other (which was my point at the beginning of all of this).

Fundamental rights and equal protection analyses are very different.

[Not Me]

Originally posted by Mmmm, Burger (C.J.)
You're conveniently assuming that marriage is inherently defined as being between a man and a woman

No I am not defining anything. The laws are defined that way. You don't apply the EP clause to analyze imaginary laws. You apply it to analyze the laws that actually exist.

Name me one state law that does not specify that marriage is between a man and a woman. Please.

[Mmmm, Burger (C.J.)]

Originally posted by Not Me
For all the reasons I have so eloquently stated, you cannot use the EP clause to argue for gay marriage because a law that defines a marriage as between one man and one woman does not discriminate on its face against gays nor is there disparate impact.

Please go read Loving again and explain how that reasoning was not squarely rejected. It's really even less fruitful than usual arguing this point until you have done at least that.

[Mmmm, Burger (C.J.)]

Originally posted by Not Me


Name me one state law that does not specify that marriage is between a man and a woman. Please.

No, and you make Ty's and my point with your challenge.

[Not Me]

Originally posted by Mmmm, Burger (C.J.)
Last things first:

"Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (Mass. Const. Pt. 1, Art. 1).

The operative word being "law." There has to be a law that you are applying the Equal protection clause to.

The words of the statute are the starting point for your analysis. The first thing you do in an EP analysis is look to see if the law is facially neutral in regards to the group in question. If it is not, you proceed from there. If it is facially neutral, then you go to disparate impact.

Originally posted by Mmmm, Burger (C.J.)
Next. I'm framing it the same way it was framed in Loving.

No you aren't. In Loving, the law was not facially neutral AND IT WAS A CRIMINAL LAW TO BOOT!!! They were charged with a crime and jailed.

Here is the law in Loving:

Virginia Racial Integrity Act:

If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not lass than one nor more than five years.

That law not only was not facially neutral, it made it a crime to marry a person of the opposite sex. See in Loving, the two didn't ask the state of VA to marry them. They went to DC to get married. And they were in fact married there. Then they came home to VA and got arrested for being married legally in DC.

What the law actually says makes a difference in what parts of the Constitution can be used to analyze it.

Furthermore, the USSC invoked due process fundamental rights in that case, too. That was the strongest argument to strike down that law. That is the way you have to argue gay marriage but if you do, you go down the slippery slope that leads to polygamy.

[Not Me]

This is the fundamental right due process argument that struck down the VA law in Loving:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. (Skinner v. Oklahoma) ...To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

You cannot argue violation of EP to get gay marriage. You have to argue fundamental rights and if you do, you cannot come up with an argument to support gay marriage that would not also support polygamy. Which was my whole point at the beginning of this.