Politics: Onward from New Hampshire

[sgtclub]

[Treasury says classified docs used in "O'neill" book]

http://www.foxnews.com/story/0,2933,110708,00.html

[Tyrone Slothrop]

Originally posted by Not Me
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.

I will take one more stab at this, since you may not have seen the amended content of my post above.

You say, marriage is defined as a man and a woman. What if the Virginia legislature had said, marriage is defined as a man and a woman of the same race? That's not discriminatory (sez them). Anyone is free to marry someone of the same race. Exactly our situation here.

The fact that marriage laws refer to men and women shows that they have limiting classifications in them. That language wouldn't be necessary unless you wanted to treat men and women differently.

[Watchtower]

I believe the Mass. decision was under the "no rational basis" test rather than the strict scrutiny test. So even though it was under both EP and DP, it was not asserting that gays constitute a protected class.

So, I believe this means that in Massachusetts a law baring, for example, any one tall person and any one short person from marrying, or any old person and any young person, would also have no rational basis. Essentially, the state can't prevent any two categories of people from getting married, and gays just happened to be the category in front of them.

Setting aside the fact that this was applied to gays, can anyone think of other categories that may be effected? Would anyone argue that one can enact laws prohibiting marriage between certain categories?

I can think of one set of categories that there are laws relating to (family members), but I think it has a separate and rational basis.

[Tyrone Slothrop]

Originally posted by sgtclub
[Treasury says classified docs used in "O'neill" book]

http://www.foxnews.com/story/0,2933,110708,00.html

Just so we're all clear, the book explains that after he left office O'Neill asked for all the documents he'd seen, and Treasury sent them to him. O'Neill has done nothing wrong, but some people at Treasury may now be regretting that they turned over so much stuff.

[Mmmm, Burger (C.J.)]

Originally posted by Not Me

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.

Putting aside whether there's a difference, for purposes of constitutional analysis between a criminal statute and the extension of certain benefits, which I think there is not, your recitation of this law comes without any explanation of how there's a distinction.

First, let's turn the current law into a civil statute. It would read something like:

Marriage:

Any man who wishes to marry any woman and any woman who wished to marry a man shall make application at a designated place [and pay a fee, take blood tests, etc.]. No man shall be permitted to marry a woman. And no woman shall be permitted to marry a man.

Now, take that statute, and instead substitute racial terms.

Any black person who wishes to marry another black person and any white person who wishes to marry another white person shall make application at a designated place [and pay a fee, take blood tests, etc.]. No black person shall be permitted to marry a white person. And no white person shall be permitted to marry a black person.

Tell me how the race-based statute can be defended under Loving, or, more generally, current EPC jurisprudence. If it cannot, tell me why the first statute (re men/women) survives.

[Gattigap]

Originally posted by Tyrone_Slothrop
Just so we're all clear, the book explains that after he left office O'Neill asked for all the documents he'd seen, and Treasury sent them to him. O'Neill has done nothing wrong, but some people at Treasury may now be regretting that they turned over so much stuff.

Certainly it appears that someone in Treasury fucked up.

I'd imagine that O'Neill is fine, unless there's some sort of argument that the documents (or some subset of them ) were confidential and so marked, or that there was some other reasonable expectation that O'Neill was to keep portions of it private.

[Not Me]

Originally posted by Mmmm, Burger (C.J.)
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.

Please read Loving again and then explain why it wasn't a fundamental rights due process case.

And remember, that was a criminal statute that was struck down as unconstitutional.

When you argue for gay marriage, you are not asking a court to strike down current laws as unconstutional.

[Gattigap]

Originally posted by Not Me
When you argue for gay marriage, you are not asking a court to strike down current laws as unconstutional.

No Con Law scholar am I, but how is this possibly true? Wouldn't one arguing for gay marriage be asking the court to strike down the Defense of Marriage Act?

[Hank Chinaski]

Originally posted by Tyrone_Slothrop
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.

sometimes you just say alot of big words to me, cuz you know I won't check, doncha?

[Not Me]

Originally posted by Mmmm, Burger (C.J.)
Marriage:

Any man who wishes to marry any woman and any woman who wished to marry a man shall make application at a designated place [and pay a fee, take blood tests, etc.]. No man shall be permitted to marry a woman. And no woman shall be permitted to marry a man.

Find yourself a state that has a law like that and find yourself a gay couple and challenge it using Loving.

Loving's best argument for striking down that VA law was the fundamental rights/due process argument.

You cannot put aside that it was a criminal statute, either. There is a factual distinction between your gay marriage rights scenario and throwing someone in jail. You cannot put aside that not allowing two people to legally marry is different than throwing in jail two people who are legally married in another state. That is a whopper of a distinction between the facts in Loving and your scenario where two gay people challenge a law because they want to be married to each other and not because they are in jail for being married already.

The law in Loving didn't say only people of the same race can marry each other. It said that if two people of different races marry each other, they are going to jail.

[Atticus Grinch]

Originally posted by Not Me
The law in Loving didn't say only people of the same race can marry each other. It said that if two people of different races marry each other, they are going to jail.

This is why we occasionally allow people who are Not Lawyers to write the laws. Sometimes it's more trouble than it's worth, but usually it results in clearer thinking than the lawyers are providing.

[Not Me]

Originally posted by Gattigap
No Con Law scholar am I, but how is this possibly true? Wouldn't one arguing for gay marriage be asking the court to strike down the Defense of Marriage Act?

Last I checked, the federal government doesn't issue marriage licenses. States issue marriage licenses.

Nothing in the DOMA bars a state from recognizing gay marriage within its borders.

The DOMA provides that no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." Second, it defines the words "marriage" and "spouse" for purposes of Federal law.

What is the issue we are talking about here? I thought we were talking about two people of the same sex being allowed to enter into a legally recognized marriage. The DOMA doesn't prevent that. A state can have gay marriage under DOMA. It is just that the federal government isn't bound by it and neither are other states. I am not sure if that is constitutional at least with respect to the other states or if it violates the full faith and credit clause. That issue hasn't been tried, yet.

[Tyrone Slothrop]

Originally posted by Hank Chinaski
sometimes you just say alot of big words to me, cuz you know I won't check, doncha?

Courts do not want to say, you are bad. Or, you were mean. They want to say, you did what you did in good faith. You meant well, but you may not do that because the law says so. The old, old law, not the law you just wrote. There are some times when they will say, you are bad, or, you are mean, but those times are rare. The courts do not want to climb in the head of the folks who write the laws, as it is a mess in there.

[Tyrone Slothrop]

Originally posted by Not Me
Find yourself a state that has a law like that and find yourself a gay couple and challenge it using Loving.

It worked recently in Hawaii, but failed before that in Washington state. (Or was it Alaska?)

[Not Me]

Originally posted by Tyrone_Slothrop
It worked recently in Hawaii, but failed before that in Washington state. (Or was it Alaska?)

Loving interprets the US constitution. Hawaii's right to gay marriage is derived from their state constitution. Loving does not interpret Hawaiis state constitution.

I have never said a peep about a state constitution. We are talking about if the US constitution can be used to give gays the right to marry each other.

I think if you want to use the US constitution, you will need to make a due process/fundamental rights argument. However, when you do, you cannot come up with an argument that cannot also be used to support polygamy.