Prop. 8 gay marriage ban goes to Supreme Court

[Pangloss]

He's just saying the same thing I was saying. You want the problem tackled "head on", and we want it done over the long term through education. If you want to agree to disagree, then let's move on.

[iNow]

I'm not quite clear on why you two are suggesting I'm against education on this topic, as that's not the case at all. Education is hugely important, and I think my posts demonstrate a sincere desire for learning and sharing knowledge.

 

The issue is whether or not the state level amendment is constitutional at the federal level. I posit that it's not. I have laid out evidence in support of this position, and I have yet to see a relevant counter argument offered by anyone.

[Pangloss]

So... you're not willing to just agree to disagree on this, then? You actually want me to respond on the issue of whether my argument is relevant?

[ParanoiA]

It seems we're doomed to repeat the previous thread on this topic. I know Skeptic is holding his tongue...or his wrist I suppose.

[Mr Skeptic]

It seems we're doomed to repeat the previous thread on this topic. I know Skeptic is holding his tongue...or his wrist I suppose.

 

My guess is that the court will reach a decision before we do

[iNow]

It seems we're doomed to repeat the previous thread on this topic. I know Skeptic is holding his tongue...or his wrist I suppose.

 

I must concede that I truly don't understand the responses to this thread.

 

I have openly stipulated that I am biased on this issue, but that I would like to hear quality arguments which demonstrate constitutional relevance.

I have focussed all of my arguments at the level of the federal constitution, and described how these state level constitutional changes are inconsistent and irreconciliable with the articles and clauses of the federal constitution.

I have openly stated how a change to the federal constitution is a possibility which would allow the banning of two people of the same gender to be legally recognized by the states.

I have described why I think "waiting another 50 years while hearts and minds are won" is an approach counter to our presently existing legal structure and constitutional arrangement, as well as the setup of our "dual sovereignty with federal level supremancy" governance.

Mr Skeptic has accused my focus on the federal and state constitutions in this thread as "ramming my superior ideas down their ignorant throats," and yet he's been awarded the description of "biting his tongue."

 

Again, I truly don't understand the responses to this thread, neither why nor how I'm somehow supposed to be the "bad guy" here.

 

I honestly await a relevant constitutionally based counter argument to any of the points I've made, or an explanation of why/how the supreme court could find in favor of allowing Prop 8 without a federal level constitutional amendment. I am looking for help to understand any reason why such a ban at the state level should be allowed given our legal and constitutional setup.

Edited November 22, 2008 by iNow

[ParanoiA]

Because when someone makes a valid, clinical argument on the specifics of the laws and how they are negotiated or to be interpreted, you reply back as if they are a bigot and support suppressing homosexual unions. That's what happened to Skeptic. He was trying to argue the details of the laws and rights and how they may or may not be applied in various forms - but he was interpreted as making arguments against homosexual unions.

 

And further, most others in that thread made the same mistake in judgement, even Pangloss. Just my opinion of course.

 

It seems a better argument for the courts. They, most certainly, will be acclimated to the nature of law and how rights are specifically applied and restricted and not as susceptible to infering value judgements from clinical arguments.

[iNow]

I'm asking specifically about this thread, though. I changed my tack, as you're right, it the other thread I focussed too much on emotive charges and labels of bigotry.

 

I'm asking specifically about this thread, though.

[jackson33]

Ah, yes and no. As I mentioned before, the federal constitution takes precendance over a state constitution as outlined by the Supremecy Clause in Article VI:

 

I think you will notice that I've been arguing primarily from a federal level on these points. This means that any amendments to the state constitution can still be overturned by SCOTUS. That would be the "no" part of my response to your point.

 

TBH, I'm not at all swayed by this "legislating from the bench" nonsense. It's the same stupid argument that the whackos who think a clump of undifferentiated cells deserve the same rights as a fully developed and grown human being, or folks who want to see creationism taught in the classrooms alongside evolution (do they want to teach the stork theory of childbirth, too?). It's a farse and a smoke screen to hide the fact that they don't have a meritorious argument in support of their position.

 

The purpose of the supreme court is to rule on the intent of the law and uphold the constitution. That's what is going on here, and trying to cast the justices in the dim and derogatory shadow of "activism" is weak, wrong, and completely hypocritical considering your repeated reminders about the need to win "hearts and minds."

 

Having been unable to show reason, how a State can achieve law through the populace, where the Federal has no such means (referendum) and the process for governing States and the Federal are not only different, but have completely different purposes, your opening comment in post 56 is understandable. Both side on this thread are addressing State laws, which by no other way, are interpretations of the Federal Constitution and/or law.

 

Congress, however remains the last step to what law can become. Even if the SC rules pro/con any issue, Congress can simply re-establish some intent and through the process change the original intent. Federal laws today, say nothing about gay marriages, only that for recognition any union must be by one man and one woman. Pro-issue advocates, and some Judges have interpreted the 14th A, to include 'sexual orientation' which is found nowhere in Federal Law, including the Code (law) for recognition.

 

The SC, then IMO, could not make a judgment either direction on prop 8, but for lack of jurisdiction. That is that Court has no authority over what any State constitutes as a Union/Marriage, with out the mention of specific rights or what rights are being denied, which would be under recognition. A State can give rights, financial to legal, so long as other Federal Laws are not compromised, such as WAS sodomy, long ago ruled on. If Prop 8, had mentioned, even implied, or the California SC or their legislatures had included (none did) the rights of individuals would include Federal Rights or that other States would be forced into recognizing their law, the SC would have heard this case in 2000 or before.

 

States, have the authority to maintain rights in there State, short of Federal Law, which no other State is obliged to grant or honor. Your trying to imply Federal Law, which any law is subject to all States (In Constitution) as being equal to State Law being accepted/honored by all States in the same manner.

There is nothing uniform today between any State, including a good many rights given in one State or another. The uniformity mentioned in the Constitutions pertains to States trying to circumvent Federal Law or even another State and of course any Federal Law.

[ParanoiA]

I'm asking specifically about this thread, though. I changed my tack, as you're right, it the other thread I focussed too much on emotive charges and labels of bigotry.

 

I'm asking specifically about this thread, though.

 

Well, in that case, I can only speak for myself. You've done a terrific job on this, quoting Articles and Clauses to support your arguments and they're well made. I don't think I'm equal to your challenge, and I have my own reservations and thoughts I'm still working out as well.

 

My remark though about Skeptic biting his tongue had to do with his arguments about the law being applied equally to everyone. Certainly not cut and dry, but entirely fascinating. The equal protection clause, as I understand it anyway, has to do with applying a law to one person, but then not applying it to another. That's different than a law that effects one person's choice, but doesn't effect another person's choice.

 

In the latter statement the law is still being applied, it just effectively doesn't matter since that person's choice doesn't violate the law. In other words, if I want to marry a woman, the gay marriage ban doesn't effect me, but it still applies to me.

 

There are plenty of laws on the books that apply to everyone, but don't effect everyone. Like requiring a license to pilot an aircraft. It doesn't effect me since I don't care about piloting in the first place.

 

But, to be clear, I'm not strong enough on the particulars of Equal Protection to be confident in all that, it's still preliminary for me.

[Pangloss]

The point I've been trying to make here, iNow, is that what you're saying amounts to bludgeoning the social conservatives into submission, which is anathema to good democratic governance. That would be the effect, no matter how constitutionally valid the argument. What you're proposing is that we set the laws in the right first, before the majority comes around, and then we throw education at 'em. I think that's backwards -- we need to do it the other way around. See your way you don't care if the education works or not, and they know it. If they come around great, but it won't really matter to you because the law is in the right place.

 

You know what happens if you do that? You wake up one day and find that you've lost the ability to make reproductive choices. Because instead of learning how to work with these people's concerns and appreciate their input, you just shut them down, and they reacted by going around you while you were sleeping and found a constitutional argument on their side. And just as suddenly the social conservatives are back in power, appointing Supreme Court justices that stick around for generations. So you won a very small victory, and then lost a very large war.

 

So you see it's not just about bringing people together, it's also about winning real long-term progress for your own causes.

[iNow]

The point I've been trying to make here, iNow, is that what you're saying amounts to bludgeoning the social conservatives into submission, which is anathema to good democratic governance.

I've said many things in this thread. Please quote precisely where you feel I was "bludgeoning the social conservatives into submission."

 

Mr Skeptic was never able to quote a spot in this thread where I was "ramming my superior ideas down their ignorant throats," and I dare say you won't be able to quote a spot where I was doing any bludgeoning.

 

Prove me wrong with a specific quote or two from this thread. Please.

[Pangloss]

Well now I'm confused. Aren't you asking for the California or US Supreme Courts to reject Prop 8 on constitutional grounds? That's what I'm talking about.

[Mr Skeptic]

I've said many things in this thread. Please quote precisely where you feel I was "bludgeoning the social conservatives into submission."

 

Mr Skeptic was never able to quote a spot in this thread where I was "ramming my superior ideas down their ignorant throats," and I dare say you won't be able to quote a spot where I was doing any bludgeoning.

 

Prove me wrong with a specific quote or two from this thread. Please.

 

 

[...]There is no legitimate nor relevant secular reason to have such a law since homosexual union does not harm anyone, and therefore it appears to be an invocation of religiously motivated morality, hence clearly against the Establishment Clause of the First Amendment[...]

 

That is one of your statements that makes you appear ignorant and biased. In a previous thread I gave some secular arguments. Not good ones, and depending on your assumptions about what marriage means and whether gay people already had a right to gay marriage, they would be worthless. Without those assumptions, your argument looks silly.

 

But IMO those assumptions are equivalent to begging the question -- if you define marriage to include gay marriage, and insist that people have a right to gay marriage, then of course it would be unconstitutional to deny them their rights. But that argument won't be at all convincing to people who disagree with those assumptions, no matter how much you insult them or call them ignorant bigots (however indirectly). To change their mind on these assumptions, requires gentle education, whereas forceful arguments, including legal arguments, will be viewed with hostility.

 

Let me put this another way. If this was such a clear-cut issue as you say, how did it make it so far and why didn't the court strike it down immediately or at least allow gay weddings to resume in the meantime?

 

How do you think the Supreme Courts will rule? Do you think they'll cave in for fear of being recalled and/or voted out by an angry religious mob[...]

 

Because there is no way that the court could legitimately agree that the ban is constitutional, right?

[iNow]

Well now I'm confused. Aren't you asking for the California or US Supreme Courts to reject Prop 8 on constitutional grounds? That's what I'm talking about.

 

Yeah. I didn't think you'd be able to find a quote where I was "bludgeoning" anyone. Thanks for the confirmation.

 

 

 

That is one of your statements that makes you appear ignorant and biased.

 

<...>

 

But that argument won't be at all convincing to people who disagree with those assumptions, no matter how much you insult them or call them ignorant bigots (however indirectly). To change their mind on these assumptions, requires gentle education, whereas forceful arguments, including legal arguments, will be viewed with hostility.

 

So, you've called my argument ignorant, you've repeated my own concession about bias, you've said that I've called them ignorant bigots, and that I've been hostile, and I can't see anywhere in this thread where I've done that.

 

Further, you've not shared where in this thread I've been "ignorant." You quoted this particular text and said it was ignorant:

 

 

There is no legitimate nor relevant secular reason to have such a law since homosexual union does not harm anyone, and therefore it appears to be an invocation of religiously motivated morality, hence clearly against the Establishment Clause of the First Amendment

 

Yeah, I should be ashamed of myself for stating such a thing.

 

 

Really, am I the only one who's baffled right now by Skeptic's post?

 

 

I'll restate my question since you are both trying to displace the topic of conversation on to me instead of answering it. I am looking for help to understand any reason why such a ban at the state level should be allowed given our current legal and constitutional setup at the federal level.

Edited November 23, 2008 by iNow
multiple post merged

[Pangloss]

Oh I see, you thought I was putting words in your mouth. Understandable, but that's not what I was trying to do at all. If you say you don't mean to "bludgeon" anyone, fine, but that's how that action would be perceived by the social conservatives. They feel that the left is imposing its will upon them, and the result is that they're going to react politically to that handling. As I said above, you'd wake up tomorrow and find them right back in power again, dumping abortion, putting forced prayer back in public schools, etc etc etc.

 

Put another way, when we don't address people's concerns and just pass laws by judicial fiat, we don't produce real change, we just swing the pendulum back and forth.

[iNow]

Oh I see, you thought I was putting words in your mouth. Understandable, but that's not what I was trying to do at all. If you say you don't mean to "bludgeon" anyone, fine, but that's how that action would be perceived by the social conservatives. They feel that the left is imposing its will upon them, and the result is that they're going to react politically to that handling.

I am arguing on constitutionality, and asking for explanations how Prop 8 could possibly be accepted as legal at the federal level... consistent and reconcilable with the constitution of the United States and its amendments. How you go from that to:

 

 

The point I've been trying to make here, iNow, is that what you're saying amounts to bludgeoning the social conservatives into submission

...is ABSOLUTELY beyond me.

 

 

 

Put another way, when we don't address people's concerns and just pass laws by judicial fiat, we don't produce real change, we just swing the pendulum back and forth.

Funny. I don't remember arguing that we needed to pass new laws. Can you offer a quote for that one? (Probably not, as you seem to have a penchant for accusing me of saying or doing things I never said or did... you failed to produce a quote the last time I asked as well... you're oh for two).

 

Also, if I'm not mistaken, my entire approach to this thread has been in terms of existing constitutional amendments and provisions, that all of this is ALREADY covered. Is it not supporters of Prop 8 relying on judicial fiat in all of this? </rhetorical question to which I already know the answer>

 

 

I'm not arguing hearts and minds, Pangloss, no matter how much you wish it so. I'm arguing purely on legality and constitionality, so please stop trying to "bludgeon" me into an approach I have long ago accepted as futile.

[DJBruce]

The Supreme Court has already ruled on the issue of gay marriage. In Baker v. Nelson the Minnesota Supreme Court ruled that the state's laws prohibiting gay marriage did not violate any part of the United States Constitution, not the 1st amendment, 14th amendment, or article IV section II. The court also ruled that Love v. Virginia was not applicable to this case. On appeal to the United States Supreme Court the court dismissed the case "for want of a substantial federal question." This meant that the court felt that the Minnesota Supreme Courts ruling did not raise and constitutional question. This also set the precedent for all lower courts that laws banning gay marriage did not interfere with any part of the constitution and since many lower courts have used it in their rulings including Lockyer v. San Francisco. So essence the Supreme Court has already ruled on the issue of gay marriage and in order for them to rule that Prop 8 is unconstitutional they would have to overturn years of precedent.

 

Baker v. Nelson Wiki

Baker v. Nelson

[Pangloss]

Put another way' date=' when we don't address people's concerns and just pass laws by judicial fiat, we don't produce real change, we just swing the pendulum back and forth. [/quote'']Funny. I don't remember arguing that we needed to pass new laws.

 

I didn't say you, I said we, as in society. I'm focusing on a larger issue here.

 

So, you've called my argument ignorant, you've repeated my own concession about bias, you've said that I've called them ignorant bigots, and that I've been hostile, and I can't see anywhere in this thread where I've done that.

 

Well he might have been thinking of this quote from the previous page:

 

TBH, I'm not at all swayed by this "legislating from the bench" nonsense. It's the same stupid argument that the whackos who think a clump of undifferentiated cells deserve the same rights as a fully developed and grown human being, or folks who want to see creationism taught in the classrooms alongside evolution (do they want to teach the stork theory of childbirth, too?). It's a farse and a smoke screen to hide the fact that they don't have a meritorious argument in support of their position.

 

I really would prefer to focus on the larger issues, but if the shoe fits and you just INSIST on putting it on, well, I guess there's not much I can do about that.

 

You really should have stopped at "I guess we will just have to agree to disagree". At least we had some common ground there. I think you DO have a valid point about constitutionality (and frankly I wouldn't have allowed this to go on for so long if I didn't), but whenever I point out that there's a logical counterpoint to that argument you label the argument incomprehensible and demand a better one. Well I'm sorry if you're having trouble understanding it, but that doesn't make the argument invalid.

 

 

That is one of your statements that makes you appear ignorant and biased. In a previous thread I gave some secular arguments. Not good ones, and depending on your assumptions about what marriage means and whether gay people already had a right to gay marriage, they would be worthless. Without those assumptions, your argument looks silly.

 

It appears I'm guilty of one of my own complaints about others here, in not watching closely the posts from those whom I happen to agree with at the moment. Oh well.

 

KNOCK IT OFF!

 

'Nuff said.

[Mr Skeptic]

There is no legitimate nor relevant secular reason to have such a law since homosexual union does not harm anyone, and therefore it appears to be an invocation of religiously motivated morality, hence clearly against the Establishment Clause of the First Amendment

 

I'll do as I should have done in the first place. You made a statement, it is your responsibility to prove it. As to my other comments, consider what that statement would imply about opponents of gay marriage, and how people who do have some legitimate reasons would view you and your statement.

[iNow]

The Supreme Court has already ruled on the issue of gay marriage. In Baker v. Nelson the Minnesota Supreme Court ruled that the state's laws prohibiting gay marriage did not violate any part of the United States Constitution, not the 1st amendment, 14th amendment, or article IV section II. The court also ruled that Love v. Virginia was not applicable to this case. On appeal to the United States Supreme Court the court dismissed the case "for want of a substantial federal question." This meant that the court felt that the Minnesota Supreme Courts ruling did not raise and constitutional question. This also set the precedent for all lower courts that laws banning gay marriage did not interfere with any part of the constitution and since many lower courts have used it in their rulings including Lockyer v. San Francisco. So essence the Supreme Court has already ruled on the issue of gay marriage and in order for them to rule that Prop 8 is unconstitutional they would have to overturn years of precedent.

 

Baker v. Nelson Wiki

Baker v. Nelson

 

Thank you, DJBruce, for addressing the question I put forward. I need to sort through this a little while longer to explore what it means and how it might be overcome.

 

 

This part struck me as staggering, that 37 years ago SCOTUS dismissed the case:

 

...for want of a substantial federal question.

 

 

This precendent has served for future rulings at the state level since 1972. The SCOTUS didn't even bother parsing out the constitutionality, but instead just dismissed it out of hand, agreeing when:

 

The Minnesota Supreme Court acknowledged the Fourteenth Amendment prohibits some state restrictions upon the right to marry, but that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex".

 

I need to explore the constitutional definition of "common sense" a bit more closely, it appears, and also how the commonsense decision in Minnesota back in 1972 still caries such weight in 2008.

 

Either way, thank you for responding to the question I put forward. You've given me a new puzzle to solve, and I appreciate that.

 

 

 

 

 

 

Mr Skeptic - What secular purpose does preventing homosexual unions from being recognized by the state serve? What harm to others does it cause, if not simply an affront to personal and religiously based morality?

 

Further, I am only responsible for the words I use in my posts, not how others may interpret them. Please consider this and how it relates to the arguments you are attempting to make against me in this thread.

[jackson33]

The Supreme Court has already ruled on the issue of gay marriage. In Baker v. Nelson the Minnesota Supreme Court ruled that the state's laws prohibiting gay marriage did not violate any part of the United States Constitution, not the 1st amendment, 14th amendment, or article IV section II. The court also ruled that Love v. Virginia was not applicable to this case. On appeal to the United States Supreme Court the court dismissed the case "for want of a substantial federal question." This meant that the court felt that the Minnesota Supreme Courts ruling did not raise and constitutional question. This also set the precedent for all lower courts that laws banning gay marriage did not interfere with any part of the constitution and since many lower courts have used it in their rulings including Lockyer v. San Francisco. So essence the Supreme Court has already ruled on the issue of gay marriage and in order for them to rule that Prop 8 is unconstitutional they would have to overturn years of precedent.

 

Baker v. Nelson Wiki

Baker v. Nelson

 

In short; The US SC, REVIEWED & GAVE AN OPINION, on the Minnesota Stature, clarifying status for recognition for access to benefits. I agree, that opinion can be used for precedence, but only when parties try to gain benefits under the Marriage Contract.

 

If it had established law (it did not), Prop 8 would in fact have been unconstitutional, as would have been the California Supreme Courts rulings.

Prop 8, allowing a popular vote on an illegal action, so to speak.

 

Factually, any State can make anything not covered in some manner with US Law or the Constitution, legal or illegal with in there State. At this point, there is no such US law covering marriages (unions) covered under these laws, to prevent a State from granting anything they wish to whomever they please. I feel sure I could find some disgruntled clerk in some courthouse, giving me a license to marry my pet Monkey and some ship Captain to perform some kind of ceremony and I could live out my life or the monkeys in blissful harmony, so long as no other local laws were broken.

 

Trying not to expand the issue, precedent had been established on many issues, long since decided as unconstitutional. US SC decisions (Abortion) or where law is established (not precedent) or and my argument here, when Congress establishes law or an amendment (suffrage/rights and many issues)to the Constitution, can the issue be rested. US District Courts cannot get involved (no authority), Appeal Courts can hear only those cases involving US interest from the States SC, same for US SC, the Congress is the only viable place where the issue can be resolved. Added most amendments, include the right of Congress to clarify or alter wording without the complex procedure for new ones....IMO.

[iNow]

I feel sure I could find some disgruntled clerk in some courthouse, giving me a license to marry my pet Monkey and some ship Captain to perform some kind of ceremony and I could live out my life or the monkeys in blissful harmony, so long as no other local laws were broken.

Doesn't matter what you "feel," Jackson, that's not how it works.

 

 

http://en.wikipedia.org/wiki/Marriage_License

UNITED STATES

Every state in the United States has a

requirement

for marriage licenses to be obtained.

A marriage is not valid if the marriage ceremony is performed without a marriage license being previously obtained

.....

 

.....

The requirement for marriage licenses in the U.S. has been justified on the basis that the state has an overriding right, on behalf of all citizens and in the interests of the larger social welfare, to protect them from disease or improper/illegal marriages

; to keep accurate state records; or even to ensure that marriage partners have had adequate time to think carefully before marrying.....

 

......In the early part of the twentieth century, the requirement for a marriage license was used as a mechanism to prohibit whites from marrying blacks, mulattos, Japanese, Chinese, Native Americans, Mongolians, Malays or Filipinos.[3] By the 1920s 38 states used the mechanism.

These laws have since been declared invalid by the Courts.

 

CONTROVERSY

Black's Law Dictionary defines "license" as, "The permission by competent authority to do an act which without such permission [...] would be illegal."

The authority to license implies the power to prohibit

. A license by definition "

confers a privilege

" to do something. By allowing the state to exercise control over marriage, it is implied that we do not have a right to marry;

marriage is a privilege

. Those born in the US receive a birth certificate, not a birth license. Most would object to a birth license as it would imply that people must gain permission to be born. Following that same logic, many refuse to accept a marriage license and exercise their right to marry without obtaining permission from the state.

[jackson33]

Doesn't matter what you "feel," Jackson, that's not how it works]

 

Thats the point....

[iNow]

So essence the Supreme Court has already ruled on the issue of gay marriage and in order for them to rule that Prop 8 is unconstitutional they would have to overturn years of precedent.

 

Baker v. Nelson Wiki

 

 

This part struck me as staggering, that 37 years ago SCOTUS dismissed the case:

 

...for want of a substantial federal question.

 

 

This precendent has served for future rulings at the state level since 1972. The SCOTUS didn't even bother parsing out the constitutionality, but instead just dismissed it out of hand, agreeing when:

 

The Minnesota Supreme Court acknowledged the Fourteenth Amendment prohibits some state restrictions upon the right to marry, but that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex".

 

I need to explore the constitutional definition of "common sense" a bit more closely, it appears, and also how the commonsense decision in Minnesota back in 1972 still caries such weight in 2008.

 

They dismissed the case "on the merits." This is:

 

http://law.jrank.org/pages/6005/Decision-on-Merits.html

An ultimate determination rendered by a court in an action that concludes the status of legal rights contested in a controversy and precludes a later lawsuit on the same CAUSE OF ACTION by the parties to the original lawsuit.

 

A decision on the merits is made by the application of SUBSTANTIVE LAW to the essential facts of the case, not solely upon technical or procedural grounds.

 

I'm struggling a bit, as it very much appears to me that they had their minds made up before the case was even tried. Like, "of course two people of the same gender cannot marry, that's what the rules say." That is, of course, my interpretation of the "substantive law" statement.

 

I'll need to keep chewing on this, but I think it's time to work on overturning Baker v. Nelson, as it was decided without trial 37 years ago, and should be revisited.

 

 

Overturning Baker v. Nelson is not out of the realm of possibility, as that is exactly what happened in similar cases such as Lawrence v. Texas when they overturned Bowers v. Hardwick, also in Loving v. Virginia when they overturned Pace v. Alabama, and Brown v. Board of Education when they overturned Plessy v. Ferguson.

 

 

What I am struggling most with, I suppose, is how they seem to see some clear difference between race and sexuality, and how the 14th amendment applies to one, but not the other. I'm searching for the secular reason this is so.

 

 

It has been suggested that the state has an interest in marriage between heterosexual couples due to procreation and health, but unhealthy and infertile people are not required to prove viability of offspring in order to obtain a license. I'll keep searching. My gut tells me this is wrong, now I just need to find a way to prove it using the tools available to me in our constitution.

 

 

http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html

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. [n1]

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.

 

In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [p3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages.

We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964).

 

The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race.

The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated "Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court." McLaughlin v. Florida, supra, at 188. As we there demonstrated, 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 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. [n11] We

have consistently denied [p12] 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

.

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

 

Marriage is one of the "basic civil rights of man

," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888).

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

.

 

These convictions must be reversed.

 

It is so ordered.

 

It appears that all justices agree that the spirit of the 14th amendment is that all citizens should be granted rights equally, not denied rights based on genetic traits, and that laws should not be made which are discriminatory in nature, or which prefer one group of people over another... Unless, of course, you're a gay citizen. If you're gay, none of the equality which is guarenteed in the 14th applies to you.

 

Just replace the word "racial" with "sexual" in the text from Loving v. Virginia above and it seems so clear that the law preventing people of the same gender from marrying is about discrimination and nothing more, and so should be overturned.

Edited November 24, 2008 by iNow