A Quick Review of Equal Protection Clause and It's Application to Gay Rights.

[bluedawg12]

The Equal Protection Clause(EPC)

I am not a legal beagle but discussion of the EPC has come up so often that I thought it would be good to review some of the meanings of various terms and concepts surrounding EPC and gay civil rights.

This topic also goes directly to the heart of some the sneaky right wing ideas and language that they have been pushing. When we hear the following terms alarms should go off. They are rw code for turning back the clock away from human rights movements:

Activist judges
Term limits for Judges
States Rights
Gay is a choice or a life style, not a biological entity.
Strict constructionist judges and fundamental interpretation of the Constitution.

We have heard discussions about how the Courts will review Proposition 8 in terms of the The Equal Protection Clause, how gays constitute a minority, are a “suspect classification,” and are entitled to either strict scrutiny or intermediate scrutiny under law.

BTW, gays being a "suspect" classification does not mean that gays are a suspicious group, it means that when laws are passed singaling out a minority the,"law that categorizes on that basis (is) suspect, and therefore deserving of greater judicial scrutiny."

Groups that are entitled to strict scrutiny, the Court has suggested, are

“discrete and insular minorities” who have historically faced extensive unjustifiable discrimination,

who are unable to remove themselves from the category,

and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.

One of the chief reasons that anti-gay rights advocates continue to bang and bloviate on the issue of whether being gay is a “choice or lifestyle” is that they know damned well that if they win that argument, they would remove gay rights from strict or intermediate scrutiny, which requires that such a group is “unable to remove themselves from the category,” but, if as they maintain, we could simply change our life style, then, “Bingo!” we are not a protected group and in fact we are not a “suspect group” nor would we be, “discrete and insular minorities.”

This also ties into the often heard right wing comments lamenting “activist judges,” or we hear the other notion, of being able to fire Supreme Court Justices or limiting their terms. We also hear terms like “strict constructionist judges,” the rw fantasy of the fundamental interpretation of the Constitution, as is their penchant for interpreting other tomes in a “fundamental” fashion, plus, they like things that are “strict.” eeew.

Of course if the Justices were to repeal Roe v Wade or other rw causes, they would naturally sing a different tune, as they are well known for their lame situational ethics.

What they want is to return to some long past status quo and to their fading power hierarchy, where blacks, gays and women all just shut up and quietly sat down way in the back of the bus, or in Plessey vs Ferguson, it would be train.

The EPC is meant to ensure that States cannot pass laws that ignore Federal Constitutional rights, hence the other right wing cry: “It’s about States rights!” as they try State by State to enact laws that abridge the rights of gays, as minorities. Which is why it will have to be fought State by State, over time, with regards to the EPC.

http://en.wikipedia.org/wiki/Equal_Protection_Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws".

The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states.

More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state leaders, and governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.

The Supreme Court has seemed unwilling to extend full "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class.

In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne.

Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation.

The Court's decision in Romer v. Evans (1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.

While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.

The Supreme Court has defined these levels of scrutiny in the following way:

Strict scrutiny (if the law categorizes on the basis of race or national origin): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.

Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest. (In past decisions "sex" generally has meant the male/female distinction, not sexual intercourse).

Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

http://www.answers.com/topic/equal-protection-clause

Equal Protection Clause
Clause set out in the Fourteenth Amendment of the Constitution that dictates that state governments cannot pass or enforce any laws based solely on a specific classification of person by race, gender, religion, ethnicity, or age.

US Supreme Court: Equal Protection
The Equal Protection Clause of the Fourteenth Amendment, adopted in 1868, expressed the commitment of victorious Republican forces after the Civil War to include in the Constitution some protection for the equal rights of newly emancipated slaves.

The focus of the concern for equality was on the rights of African-Americans, but the framers of the Equal Protection Clause deliberately drafted it to provide protection for the equal rights of all persons.

By its terms, the Equal Protection Clause covers action only by state governments.

The Court has, in general, applied the same standards of equal treatment to action by Congress as it has to action by state legislatures.

Ideas of equality prevalent in the 1860s distinguished between civil, political, and social rights.

Equality with respect to civil rights meant equal status in the legal relations of the private economy, coupled with the right to enforce that equal status.

Equality with respect to political rights was more controversial at the outset, with many supporters of equal civil rights opposed to equal voting rights for African-Americans.

Social rights were those arising from the personal, noneconomic interactions among people, and there was general agreement in 1868 that the federal government ought not attempt to guarantee equality in that domain.

When the Court upheld a statute requiring railroads to segregate their passengers by race (Plessy v. Ferguson, 1896), it effectively abandoned the effort to assure civil equality for African-Americans through the Constitution.

The Court suggested that it would apply the Constitution with special care in cases involving disabilities imposed on “discrete and insular minorities” (Footnote Four, United States v. Carolene Products, 1938).

Strict Scrutiny

And in the course of upholding the internment of Japanese Americans during the war, it stated that classifications affecting racial minorities had to survive “strict scrutiny” (Korematsu v. United States, 1944), which the Japanese relocation measures did, the only instance in modern times when a race-discriminating government action has.

The final element of the revival of the Equal Protection Clause occurred when the Court invalidated a statute requiring the sterilization of violent recidivists, but not recidivists in white-collar crime, on the ground that classifications affecting fundamental interests had to be strictly scrutinized (Skinner v. Oklahoma, 1942).

During the 1960s the Supreme Court overturned numerous statutes requiring segregated public facilities and began to explore the broader implications of the doctrine it had begun to develop in the prior decade.

The Court under Chief Justice Warren Burger pulled back from the broader suggestions in these cases and ultimately held that strict scrutiny was appropriate only in cases involving traditional racial minorities and fundamental interests that were themselves spelled out in the Constitution (*San Antonio School District v. Rodriguez, 1973).

Formally, the problem of equal treatment arises when the government treats one group differently from another in the pursuit of some social goal.

Ordinarily, not all members of the disadvantaged group will contribute to the evil that the government is trying to avert and some members of the favored group will contribute to that evil. Classifications are therefore typically both “overinclusive” and “underinclusive.”

The problem for equal protection law is to specify what degree of lack of correspondence between the social goal and the classification used is permissible under what circumstances.

Equal protection law can be described in two ways.

“suspect” classifications

First, the Court distinguishes between statutes that themselves utilize racial or other “suspect” classifications and statutes that, though stated in nonracial terms, nonetheless have a “disparate impact” on racial minorities.

If the statutes use racial terms, they must survive strict scrutiny, which means that the legislature must be attempting to promote extremely important social goals, and the use of the racial category must be almost essential if those goals are to be served. The fit between the social goal and the classification must be extremely close.

In contrast, if the statutes are “facially neutral” in not using racial terms, the fact that they have a disparate impact in practice does not automatically lead to strict scrutiny. Only if the unfair impact on minorities is deliberately intended by the legislature will the Court demand strict scrutiny; otherwise, the legislation must simply be using a classification that is a rational method of accomplishing social goals that the legislature believes important.

The second description of equal protection law treats the distinction between “strict scrutiny” and “rational relationship” differently. On this view the Court has identified several types of classifications.

Some, such as racial classifications, call for strict scrutiny, where the fit between social goal and classification must be extremely close, whereas others, such as those basing government action on the ability of people to pay for services or on their participation in certain aspects of the private economy, are social and economic legislation where the legislature must merely be rational in using the classification to serve its goals.

In the latter cases, the fit between social goal and classification can be quite loose; the legislature can regulate many people who do not contribute to the evil it is trying to avert, and it can fail to regulate a great many people who do contribute to that evil.

Groups that are entitled to strict scrutiny, the Court has suggested, are

“discrete and insular minorities” who have historically faced extensive unjustifiable discrimination,

who are unable to remove themselves from the category,

and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.


“Intermediate” scrutiny.

There is, however, a third group of classifications that calls for “intermediate” scrutiny.

The doctrinal formulations of intermediate scrutiny have varied, as have the groups that elicit it.

The prototypical case involves a classification based on gender,

Intermediate scrutiny typically means that the Court will look somewhat skeptically on the claim that using a gender or similar classification is necessary to serve important social goals, but it will not demand the extraordinarily high levels of justification that it seeks in cases involving strict scrutiny.

Using intermediate scrutiny, the Court invalidated gender segregation in nursing schools (Mississippi University for Women v. Hogan, 1982) and Virginia's operation of a military college to train only men with a distinctive curriculum (United States v. Virginia, 1996). It upheld a requirement that only men register for the draft, at least when women are not eligible by statute for combat duty (Rostker v. Goldberg, 1981).

Analysts have had difficulty reconciling the Court's results with the doctrinal formulations it uses.

For example, the Court explicitly refrained from requiring either strict or intermediate scrutiny in a case involving discrimination against the mentally retarded, but it nonetheless found unconstitutional a city's attempt to bar a residential group home for the mentally retarded (City of Cleburne v. Cleburne Living Center, 1985).

Justice Thurgood Marshall criticized the Court for pretending that its equal protection analysis uses rigid categories, in which only a few “suspect” classifications or fundamental rights spelled out elsewhere in the Constitution receive special protection.

Rather, he argued, it has adjusted the degree of justification it demands according to a sensitive calculus that takes into account questions of degree.

These questions include how important the interest affected is, whether or not that interest is specifically protected by the Constitution, and how similar the affected group is to groups that have historically been the subjects of unjustifiable discrimination.

Justice John Paul Stevens suggested a similar approach, based on his view that “there is only one Equal Protection Clause” (Craig v. Boren, 1976), not several with different standards of review.

Commentators generally agree that Marshall's analysis and Stevens's make more sense of the Court's actual behavior, and that a more flexible approach than the Court's is appropriate to deal with the varied problems of classification that the Court confronts.

Some decisions suggest a relaxation of the Court's dedication to the “tier” approach. Romer v. Evans (1996) invalidated a Colorado initiative that denied homosexuals and lesbians the ability to secure “protected status” under state antidiscrimination rules, invoking rational-basis review and refraining from holding that sexual orientation was a suspect classification. *

Despite these decisions and academic criticisms, the Court seems committed to using the verbal formulations expressed in the “tier” approach.

Bibliography

Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, Harvard Law Review 86 (1972): 1–48.
Kenneth W. Simons, Overinclusion and Underinclusion: A New Model, UCLA Law Review 36 (1989): 447–528

[Stargleamer]

1. Marriage inequality is also sex discrimination. . .

besides being discrimination against a group (lesbians and gays) that haven't fully been given the protection of deserving equal protection yet. By denying a person the right to marry another based on what that second person's genitals happens to be constitutes sex discrimination. And gender does constitute "intermediate" scrutiny as you noted above.

[bluedawg12]

2. If a gay person can legally marry the opposite sex but not the same sex

then the intended same sex partner is facing sexual legal discrimination.

I’m not sure of the legal definition of sex, if it is externals such as genitals, or genotype, but here is something from WHO about the biology of sex determination and a note about gender.

http://www.who.int/genomics/gender/en/index1.html#Turner%20syndrome

Genetic Components of Sex and Gender

Humans are born with 46 chromosomes in 23 pairs. The X and Y chromosomes determine a person’s sex. Most women are 46XX and most men are 46XY. Research suggests, however, that in a few births per thousand some individuals will be born with a single sex chromosome (45X or 45Y) (sex monosomies) and some with three or more sex chromosomes (47XXX, 47XYY or 47XXY, etc.) (sex polysomies). In addition, some males are born 46XX due to the translocation of a tiny section of the sex determining region of the Y chromosome. Similarly some females are also born 46XY due to mutations in the Y chromosome. Clearly, there are not only females who are XX and males who are XY, but rather, there is a range of chromosome complements, hormone balances, and phenotypic variations that determine sex.

The biological differences between men and women result from two processes: sex determination and differentiation.(3) The biological process of sex determination controls whether the male or female sexual differentiation pathway will be followed.

The process of biological sex differentiation (development of a given sex) involves many genetically regulated, hierarchical developmental steps.

More than 95% of the Y chromosome is male-specific (4) and a single copy of the Y chromosome is able to induce testicular differentiation of the embryonic gonad. The Y chromosome acts as a dominant inducer of male phenotype and individuals having four X chromosomes and one Y chromosome (49XXXXY) are phenotypically male. (5) When a Y chromosome is present, early embryonic testes develop around the 10th week of pregnancy. In the absence of both a Y chromosome and the influence of a testis-determining factor (TDF), ovaries develop.

Gender, typically described in terms of masculinity and femininity, is a social construction that varies across different cultures and over time. (6) There are a number of cultures, for example, in which greater gender diversity exists and sex and gender are not always neatly divided along binary lines such as male and female or homosexual and heterosexual.
......

This is an interesting web site from a transgender attorney and has some good resources:

http://transgenderlegal.com/

TRANSGENDER LEGAL was created to accelerate the legal freedom of transgenders!

Transgenders include, but are not limited to, part-time crossdressers and full-time transsexuals. This site is dedicated to assist them and any other person who expresses any type of actual or perceived gender presentation which is at variance with bipolar, socially assigned, gender presentations or gender identifications.

TRANSGENDER LEGAL is the official web site for Phyllis Randolph Frye, Esq., of Houston, Texas, USA. This site includes most of the two-plus decades of her writings and other items that she has produced in her quest for individual freedom and for freedom of her people.


........

[DarkTirade]

8. The point is that right now men and women have two 'seperate but equal' marriage rights.

Men can marry women. Women can marry men. However in 49 of the 50 states right now men cannot have the same marriage rights as women and vice versa.

[keepCAblue]

3. Makes no sense...

Quote:

Groups that are entitled to strict scrutiny, the Court has suggested, are

---“discrete and insular minorities” who have historically faced extensive unjustifiable discrimination,

---who are unable to remove themselves from the category,

---and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.

Being GLBT meets all of the above criteria. Yet the SCOTUS has been unwilling to extend full "suspect class" status to any groups OTHER THAN racial and religious groups. WTF? One CHOOSES their religion and can change it, unlike being GLBT. So tell me how this can be justified? Talk about hypocrisy.

Quote:

The Supreme Court has seemed unwilling to extend full "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than racial minorities and religious groups.

[bluedawg12]

4. here are some of the usual arguments about why gays are not a minority.

We have all heard them and heard them too often, my emphasis here is the legal ramification of such an argument denying gays a minority status. It's not only annoying as hell and untrue, but, it is a stealth weapon against our legal standing.

Here are some common arguements from the right:

1.)There is no genetic marker for being gay, so there is no such thing as being gay. It is merely a "life style choice." No different than being a runner or a vegan. Hence not a suspect group.

2.)Even if being gay is a genetically predisposed condition, it is an "attraction" that can be fought or over come by will power and denial of that attraction.

3.) It is a an"attraction" that can be fought or over come by will power and/or prayer and by volitional denial of that attraction and proof of that is the success of "de-programming gays."

4.) Even if being gay is not a choice, the choice to act on gay feelings is ours due to free will.

That's why these constant refrains and rw talking points are so pernicious and dangerous, they go right to the heart of our civil rights claim. Not being an attorney myself, from a lay person's perspective, the biggest single legal victory for our rights is when Courts acknowledge that we are a minority and hence, laws regarding us are suspect and due legal considerations as either on of the following:

Strict scrutiny

Intermediate scrutiny

Rational-basis test

...
Notice how O’Conner side stepped strict and intermediate scrutiny and went for the rational basis argument.

Also, a recent thread here, about a USAF Major who was (honorably) discharged 2 years short of her full 20 years ( her right to retirement benefits) because someone dropped a dime on her as a lesbian, is being fought by the ACLU on the Rational-basis test as her being gay was as not "reasonably related" to a "legitimate" government interest.”

I hope some legal beagles can explain better than I can, how the Courts have determined that we are a real minority and therefore subject to the suspect idea of scrutiny in the laws regarding our rights.

So far, the way I am working through these arguments in my own mind, in order to have some coherence of thought:

1.)There is no genetic marker for being gay, so there is no such thing as being gay. It is merely a "life style choice." No different than being a runner or a vegan. Hence not a suspect group.

Answer: From a genetic stand point, there is a growing body of evidence that there is indeed a genetic basis for same sex attraction, although, because behavior is complicated, it will likely be found to be mediated through multiple genetic pathways that have to do with hormonal regulation, etc. Plus, it may be different mechanisms for males versus females.

The research continues, simply because we don’t have an answer today doesn’t not mean there is not an answer forthcoming.

All of that could be a thread in itself.

This may sound kind of dumb to even discuss, but, I have read comments such as why even do such research? And “isn’t it a shame” that we even have to debate this with anti-gay forces? Yeah, it’s a shame, but there it is, they would love to have gays excluded from consideration as a minority and then get our cases thrown out of Court.

The reason it is worthwhile having a strong response every single time it comes up, is not because of life style debates, it has to do with our minority status under law.

2.)Even if being gay is a genetically predisposed condition, it is an "attraction" that can be fought or over come by will power and denial of that attraction.

Answer: If being gay is a genetically determined status, not just a choice, then, it becomes a question of legal fairness to deny rights to a minority group, especially such basic rights as marriage with all of it’s rights and duties.

Also, they aren’t jsut stopping with marriage rights for gays, If left alone and unchallenged, they would go to work discrimination, they would have a list of jobs forbidden to GLBTQ’s, housing discrimination, and so on.

3.) It is a an"attraction" that can be fought or over come by will power and/or prayer and by volitional denial of that attraction and proof of that is the success of "de-programming gays."

Answer: This is one of their red herring arguments and is not a legal argument as much as it is a moral argument and seems to require a moral answer. Since when is it moral for the majority to demand that a minority deny themselves the most basic ofhuman urges, love and sexual expression?

4.) Even if being gay is not a choice, the choice to act on gay feelings is ours due to free will.

Answer: See #3 above.

[bluedawg12]

5. Here is some more info. about how the CSC viewed gay minority status before Hate8

Here is what CSC said before PHate8

http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,1,4027698.story

>>In a 4-3 decision, the justices rule that people have a fundamental 'right to marry' the person of their choice and that gender restrictions violate the state Constitution's equal protection guarantee<<

By Maura Dolan, Los Angeles Times Staff Writer
May 16, 2008

>>The 4-3 ruling declared that the state Constitution protects a fundamental "right to marry" that extends equally to same-sex couples. It tossed a highly emotional issue into the election year while opening the way for tens of thousands of gay people to wed in California, starting as early as mid-June.


The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state's high court the first in the nation to adopt such a stringent standard.

The decision was a bold surprise from a moderately conservative, Republican-dominated court that legal scholars have long dubbed "cautious," and experts said it was likely to influence other courts around the country.

But the scope of the court's decision could be thrown into question by an initiative already heading toward the November ballot. The initiative would amend the state Constitution to prohibit same-sex unions.<<
.........

http://writ.news.findlaw.com/amar/20080522.html

By: Vikram David Amar
Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun.

>>But viewed from a different angle, the people's power to undo last week's ruling via statewide simple-majority popular vote seems more troubling. After all, one of the rationales relied on by the California Supreme court in invalidating California's statutory ban on same-sex marriage was the notion that government discrimination on the basis of sexual orientation should be viewed skeptically, because gays and lesbians are groups that have been historically victimized by invidious and prejudicial treatment that bears no relationship to their ability to perform in or contribute to society. This history of irrational prejudice, the court said, was "the most important factor in deciding whether" laws that treat gays and lesbians differently from straight persons should be constitutionally suspect.

But if the very reason why discrimination against gays and lesbians is constitutionally wrong is that the political majority has tended in the past to treat them unfairly, isn't it odd that the same political majority can, with a simple initiative vote in November, impose its will on them yet again?

<snip>

The California Supreme Court Based Its Ruling Only on the California Constitution, Yet the U.S. Constitution Will Come Back Into Play if CMPA Passes in November

State constitutions operate not just in the larger context of morality and justice, but also in the larger context of the U.S. Constitution. And that fact raises some interesting questions about the interplay between California and federal law. In particular, what effect does the federal Constitution have on last week's ruling, or November's initiative outcome?

As to last week's ruling, the federal Constitution is beside the point. As noted earlier, the California justices ruled under state law only, and there is certainly nothing in the federal Constitution that prevents state law from recognizing same-sex marriage. Although the U.S. Supreme Court has not indicated it is yet ready to recognize a federal constitutional right to gay marriage (a point to which I shall return later in the column), states are free to do what they want in this area by way of affirmatively equalizing marriage rights.

<snip>

( think this part is about “settled law” or stare decisis)
Under the due process clause of the U.S. Constitution's Fourteenth Amendment, states are limited in their ability to upset settled expectations about important property and liberty interests. And for the California constitution to tell same-sex couples that they are free to marry (as it currently does), and then tell them (after the constitution is altered in November) that their decision to marry is no longer honored by the State may unfairly disturb their reliance interest, and upset their reasonable expectations.

At the very least, the possibility of a violation of the Fourteenth Amendment should leave California courts (which will interpret the CMPA) inclined to read it narrowly and to deny it any retroactive effect.

<snip>

What Are the Chances that a Federal Constitutional Right to Same-Sex Marriage Will Be Found?

Finally, what, if anything, does last week's ruling tell us about a federal constitutional right to same-sex marriage? Many commentators will say, "Nothing at all," because the meaning of the federal Constitution is distinct from the meaning of state constitutions. It is true that federal law and state law have separate lives. But it is also true that they often influence each other.

Another area, at least for many Supreme Court Justices, is substantive due process. What counts as a federally-protected "fundamental right" depends on what states have done, and what they are continuing to do. While Massachusetts and California are still the outliers in the national gay-marriage picture, those two States do comprise almost one seventh of the American people. And it won't take many more (populous) states following their lead to create a trend that might count in the eyes of Justice Anthony Kennedy and the other key Justices whose views on the meaning of fundamental federal rights dictate outcomes in the Supreme Court.

<<

[AntiFascist]

6. Excellent!

Thanks for providing the definitions, this is much needed info.

This is precisely why Asian Americans were largely so supportive of No on 8, because they have suffered discrimination in California in the recent past in the form of internment camps during World War II and also an amendment to the state constitution preventing Japanese immigrants from owning land. This amendment is often cited in the legal arguments against Prop. 8 for precisely why the "tyranny of the majority" needs to be regulated by the judiciary. This is also precisely why such changes to the Constitution need to go through the legislature first (as constitutional revisions), where thoughtful debate is engaged so that the ramifications of the changes are fully understood.

There is no reason why Latinos would not also be more supportive of No on 8 efforts if they understood the slippery slope that Prop 8 could allow toward discrimination against illegal or other immigrants.

[bluedawg12]

7. Thank you for the kind words. I see Courage California offers something positive to do

I'm glad I noticed it. We will donate.

https://secure.couragecampaign.org/page/contribute/powertherepeal
"Power the Repeal of Prop 8
Help us launch a people-powered campaign to restore marriage equality, neighbor-to-neighbor, door-to-door, across California"

[sui generis]

9. I'm damn nearly libertarian on this topic

it's my body, my choice. Unless I am "owned" by the government, they get no say in my "choices", biology be damned.

Here's what NOBODY understands:

If you can't "prove" gayness independent of assertion or admission, then "gay" has no place in legal language, any more than "catholic" does.

[bluedawg12]

10. The legal standard for determining gays as a minority is not the same as scientific standard.

You make some interesting points.I wish someone who was a an attorney here could help me out on this.

However, the way I understand the liberatrian perspective would be:
I agree, the government has no say in our “choices."

However, the government does have an interest and a voice in governmental functions such as issuing a marriage “license.”

Once we ask States to issue a marriage license, then the State is involved and it becomes open to societal discussions based ( as I understand it) upon the State’s compelling interest in what is good for society.

>> If you can't "prove" gayness independent of assertion or admission, then "gay" has no place in legal language, any more than "catholic" does.

I disagree.

As far as the burden of proof in civil law, my understanding is that the legal definition of something is not the same as the scientific definition of something. The burden of proof between law and science are very different.

If for example medical experts opined that peer reviewed medical literature supprted to a reasonable degree of medical certainty that being gay is not a choice, then, it might be meeting the legal definition of gays as a protected minority.

The key is “reasonable degree of medical certainty,” which would mean that given that medicine and science are constantly changing, that new information is always forthcoming, that legal standard is based upon the information available today and experts looking at the same data would reasonably conclude that same sex attraction is biologically determined. That's the lega standard.

In criminal law, things have to be proven beyond a shadow of a doubt, a higher standard, than civil law.

In civil law the standard of proof is something that can be proven as probable
(i.e. greater than 50% chance of being true or likely) and that most experts would reasonably conclude that it is probable, after a review of the majority of data available today that being gay is biologically determined and not a life style choice. The law does not ask science to prove something to a metaphysical level of certainty, only a probable and reasonable standard.

The law would even allow for majority and minority opinions in science, as the Courts are fully aware that many issues in medicine and science are unresolved or controversial.

[sui generis]

11. I hear you but

"the State’s compelling interest in what is good for society" have not always aligned with human rights, and there is no compelling standard to apply that won't eventually intrude on the rights of individuals. A non-sentient noncorporal entity should never have compelling interests that outweigh the rights and compelling interests of a corporal entity (at least until we have something approaching a sentient non-corporal entity). The state exists because we allow it to, not the other way around.

It used to be that the idea of a black American marrying a white American was anathema because of some nebulous definition of what "good for society" entailed.

MY compelling interest is preservation of assets and preservation of my declared family unit. If the state's compelling interest in my biology ever exceeds my own for the purpose of simple animal husbandry, we don't need to wrap it up in the flag or the bible, and I'll be happy to make a donation to my local sperm bank. Heck, I'll be happy to raise the rug rat. But I choose who I am going to live with and if the state doesn't like that then I will work for the downfall of that ideal in our state, or else the downfall of the state itself.

The law does not exist for the sake of law itself, and all the careful definitions are not by their very existence, necessarily virtuous.

Why do we think it is justifiable to administer right and privilege based on an idea and yet agree that the scientific definition has less value than the legal definition in proving an abstract? The idea of skin color, the idea of catholicism, the idea of using your left hand instead of your right hand, the idea of what you elect to do with your pink parts, or whether you elect to do anything at all with your pink parts - those ideas should not be the province of loose definition, but rather a tighter definition of "idea", including the temporality of ideas.

I look at law as a buffet. If law removes my rights, then law is meaningless to me as an individual, except as I choose to use it against itself. That's not a good place to be, ethically, but morally I am absolutely certain of that sentiment.

[bluedawg12]

12. ...

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