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 AceOfSpace
Joined: 5/28/2007
Msg: 833
Prop 8 PassedPage 14 of 52    (12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52)

No, I don't think it is that simple. If the fact we're human is enough to make one right fundamental, why shouldn't the law recognize all our rights as fundamental?


I'm actually shocked to hear you say that. The law should. And in many cases it does. Take for instance, free speech. You can say anything you want to, anywhere, with as much force as you can put behind it, so long as you don't infringe upon the rights of another person by doing so.

However, when a law fails to recognize a right, which should yield? A particular law or the right? You didn't mean to imply the latter, did you?

Unlike rights, laws were not handed down by God, as you know. They develop as our collective understanding develops. In our legal system, as you well know, the legitimacy of the law is in its function, not its provenance. And that legitimacy derives from its role in protecting individual rights from undue infringement by: A) the government, and B) other people. So, when we eventually figure out that a law has failed to function properly in protecting a fundamental right, we must recognize that the law is simply in error. And it is up to us to correct that error, however uncomfortable or inconvenient the remedy might be.

What part of that last paragraph do you disagree with?

When a law is recognized as infringing on a right, the burden of proof to show how and why that law fulfills a compelling state interest either by A or B above. My assertion is the same assertion that the California Supreme Court made, if I understand it correctly. And that is that equal protection applies. If person X and person Y choose to marry each other but aren't able to procreate for any reason, the law allows it. So, if person Q and person P choose to marry each other, how can the law legitimately exclude them just because they cannot procreate?

You do not mean to tell me that tradition trumps our equal protection rights, do you? Because near as I can tell, all of you fancy dancing boils down to that argument.

But maybe I'm misunderstanding you. If that isn't your argument, what is your argument--boiled down to a simple declarative statement that an ordinary person can understand?

Mine is that equal protection applies because there is no operational difference between one infertile couple who can legally marry and another who cannot.
 AceOfSpace
Joined: 5/28/2007
Msg: 834
Prop 8 Passed
Posted: 11/12/2008 3:15:08 PM
Hey PH,

Apparently, there is a bid afoot to have the Mormon Church's tax-exempt status revoked over their participation in the Prop 8 campaign.

Apparently, the separation of church and state goes both ways as far as the tax laws are concerned.

So, I stand corrected. However, since churches aren't above the law, I'm OK with it. As I recall, Conservatives have gone after Liberal churches for far less egregious electioneering.

Good for the gander, good for the goose.
 TheLimey
Joined: 2/24/2008
Msg: 837
view profile
History
Prop 8 Passed
Posted: 11/12/2008 7:32:33 PM
The one REALLY good thing about getting this overturned is that it will open the floodgates to challenge Ca's rediculous gun laws
 OldFolkie
Joined: 6/8/2008
Msg: 838
view profile
History
Prop 8 Passed
Posted: 11/12/2008 7:55:37 PM
California has gun laws? Pro-gun or anti-gun?

Just curious, since the leading cause of death in California homicides across all ethnic, age, and gender groups is lead poisoning, often the result 9mm lead slugs which leave lead residue in all of those 9mm holes in the torso or heads of the recently deceased.
Of course if we ban guns, only the criminals will have guns. Why does this seem like a specious argument to me?

Oh...I know...I'm one of those radical tree-hugging liberals that thinks murdering our fellow citizens isn't really such a good thing.

It's SO much easier to kill with a firearm...none of that messy close-range knifing or beating stuff which leaves all that icky blood and stuff (not to mention incriminating DNA) all over the average perpetrator. Although...probably just having a senior moment or something, but how does electoral discrimination against any class of citizen equate to "red"iculous gun laws?
 matchlessm
Joined: 11/11/2007
Msg: 839
Prop 8 Passed
Posted: 11/12/2008 9:10:11 PM
Ace,

I'll just write this, and then I'll have to break away. I'm not arguing for anything as much as offering my impressions. I said I didn't think the court explained the reasons for its decision very well. And I think most of the posters on this thread take "equal protection" too literally.

If you believe the law should recognize all rights as fundamental, be shocked at the Supreme Court of the U.S., not me. Forget the 1st Amendment for now--the Court's fundamental rights doctrine concerns the Equal Protection Clause in the 14th. I don't know what tradition could "trump" equal protection. But whenever the Court hears an equal protection case, it has to consider the 14th Amendment's history and meaning.

The only rights the Court has recognized as "fundamental" are as follows. Because of space, I'm just listing the general area of rights and a few major cases and the topics they covered. But within each area, there are more topics and cases.

A. Access to the courts (Griffin 1956, Douglas 1963, indigence)

B. Voting (Reynolds 1964, apportionment; Harper, 1966, poll taxes; Hill, 1975, property qualifications; Illinois Board, 1979, access to the ballot)

C. Interstate travel (Shapiro, 1969, welfare eligibility/residence; Sosna, 1975, divorce eligibility/residence; Zobel, 1982, eligibility for Alaska dividend/residence)

D. Privacy (Skinner, 1942, sexual autonomy/forced sterilization; Griswold, 1965, married couples' use of contraceptives; Loving, 1967, interracial marriage; Roe, 1973, Akron, 1983, Rust, 1991, Casey, 1992, abortion; Michael H., 1989, paternmity/visitation right)

Several Justices have a pretty interesting debate about fundamental rights and equal protection in Michael H. v. Gerald D., 491 U.S. 110 (1989).
 AceOfSpace
Joined: 5/28/2007
Msg: 840
Prop 8 Passed
Posted: 11/12/2008 9:19:22 PM
Thank you for clarifying. Several people have made the argument that gay marriage parallels interracial marriage. In the case of California, where it is unconstitutional (by the state constitution) to discriminate on the basis of sexual orientation, the right to marry a partner of one's choice cannot be denied on the basis of the sexual orientation.

It is not overreaching to apply the logic from one protected distinciton to another. That is what precedent is _for._ So, if the federal courts recognize marriage as a fundamental right (as you cite above when referring to interracial marriage), and it is unconstitutional to discriminate on the basis of sexual orientation in state law, then the state court held rightly.

In what way did they overreach?
 TheLimey
Joined: 2/24/2008
Msg: 841
view profile
History
Prop 8 Passed
Posted: 11/12/2008 10:42:18 PM

California has gun laws? Pro-gun or anti-gun?

Anti of course, who the hell would want to overturn pro gun laws???

Does California even have any of those??

Looked over some Sigs this afternoon :)
 matchlessm
Joined: 11/11/2007
Msg: 842
Prop 8 Passed
Posted: 11/13/2008 11:07:56 AM
Ace,

I searched the Calif. constittution I pulled up on FindLaw and couldn't find anything about sexual orientation. But the text contains the new section 7.5 that the passage of Prop. 8 added, so it seems to be current. Also, sexual orientation's conspicuously absent from the equal protection categories for employment listed right after that section: "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin." (Art. I sec. 8)

Courts have extended the 14th Am. equal protection guarantee by analogy from one group to another (e.g., from blacks to women as to job discrimination, etc.) The analogies usually aren't exact--women, for example, are not a minority like blacks--but if they're close enough to make sense to most people, the court that made them isn't likely to be accused of overreaching. That doesn't mean a court can't stretch the process so far its reasoning is unconvincing. If you want a good example, study Justice Scalia's critique of the majority's reasoning in Boumedienne. I have, point by point, and the Court cites almost no grounds for its very unconvincing decision.
 amusinglisa
Joined: 5/4/2008
Msg: 843
Prop 8 Passed
Posted: 11/13/2008 12:45:24 PM
OK, so, Matchless, you are saying that Californians can only expect equal protection under the law based on their sex, race, creed, color or national or ethnic origin and that any other ways of identifying and removing rights from a group of people should be legal?

If someone comes up with a way to classify everyone based on DNA sequencing, will that mean that anyone can expect to have some or all of their rights taken away on the basis of a set of genetic markers (see post 1144) because that would not be based on their sex, race, creed, color or national or ethnic origin?

<-- shakes head
 AceOfSpace
Joined: 5/28/2007
Msg: 844
Prop 8 Passed
Posted: 11/13/2008 6:39:42 PM
Well Matchless,

You finally caught me out! Well done!

The Unruh act says: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

Does the Act apply to the County Clerk?
 matchlessm
Joined: 11/11/2007
Msg: 845
Prop 8 Passed
Posted: 11/13/2008 10:05:55 PM
Ace,

I'm not familiar with the Unruh Act or how courts have interpreted it. I know in the '60's there was a lot of talk about blacks going on vacations and, in some parts of the country, having trouble finding rooms, restaurants, etc. I'm sure HIV-infected people, ethnic minorities, etc. have had similar problems at times.

Amusinglisa,

I don't remember saying anything like that. Sounds like you're taking an awfully literal view of equal protection. As I've said, and given lots of examples of, almost any state law imaginable doesn't treat every person completely equally. Single people and renters don't qualify for tax breaks that married people and homeowners get, for example. Why do singles and renters rate that second-class treatment?

The Supreme Court of the U.S. reviews a state law under its "strict scrutiny" standard if it does either of two things: First, if it makes a "suspect classification;" and second, if it violates a "fundamental" right.

A state law makes a "suspect classification" if it treats people differently on the basis of their: race; ethnic origin; illegitimacy; or foreign nationality. All these characteristics are unchangeable, and in the U.S., these groups tend historically to be small and socially isolated from the majority ("discrete and insular minorities" in Court-ese.) In its two sexual orientation decisions, the Court hasn't made that a basis for strict scrutiny.

Many rights (although not all) involving these subjects are "fundamental": access to courts; voting; interstate travel; and personal/bodily privacy.

A law survives strict scrutiny review (most do not) only if the state can prove it's "necessary" to achieve a "compelling" government purpose, and that no less burdensome alternative would work.

The Court uses an "intermediate" standard called "heightened scrutiny"for equal protection cases involving discrimination on the basis of sex. A law survives heightened scrutiny review if it's "substantially related" to the achievement of "important" government objectives.

Other characteristics like age, mental retardation, and wealth get the standard "rational basis" review used for laws (e.g. tax laws) that give people unequal economic benefits. All these laws don't present any equal protection problem as long as the Court finds there's some rational basis for them--i.e. that they're not just arbitrary.
 AceOfSpace
Joined: 5/28/2007
Msg: 846
Prop 8 Passed
Posted: 11/14/2008 12:43:42 AM
Well M,

Unless I'm mistaken, the court can base a finding not only on the arguments that were provided by the advocates, but by the arguments they _should_ have provided. It says right there in black and white that all persons are entitled to full accommodation in any business or agency regardless of sexual orientation. Seems to me like between this and the U.S. Supreme Court's finding that marriage is a fundamental right, it's a slam dunk.

Of course, someone could try to come up with a rational basis for discriminating against gay marriage, but as long as we allow heterosexual couples who are known to be infertile to marry, there is no operational distinction between such couples and homosexual couples with respect to meeting the purposes of legal marriage.

How many more ways must this be argued?

Fundamental right. Entitled to equal accommodation by well-established statute. No rational basis for exclusion. No infringement on any potentially competing right. No evidence of harm that anyone has shown.

What else do you need?
 Kristal_Rose
Joined: 11/8/2008
Msg: 847
Prop 8 Passed
Posted: 11/14/2008 6:54:26 AM
Some of the No on 8 goals could be met by coming at this from the opposite direction, making it illegal for government or businesses to discriminate based on marital status or marital association. In other words, if they wont let us marry, make marriage legally insignificant. No one can stop a church from declaring anyone married anymore than they can deny the baptism of pets or consecrating your hair into the 32nd order of the Eagle nebula. - Sure, it's not the same type of recognition gays are hoping for, but hey, no one on this is planet is guaranteed recognition, nor should need it, so long as discrimination isn't an unjust obstacle for them.

We live in a tyranny of the majority system, and the only less oppressive system I could even imagine involves seggregation into separate cultures, grass-roots anarchy being the most extreme example.

Gays, and apparently even gay sympathisers appear not to currently be the political majority. As unjust as it might be, I figure you have to at least respect the views of people, even if they are the majority, and ban people with tattoos from using sidewalks. You can hate their position, disregard their laws, and please do try to sway them into compassionate sense, but keep in mind they came from a life of indoctrination and experiences which validate their views in their own eyes. Battle them and they will fight back, armoring their collective identity. polarizing positions. Live freely and spread your values where they find welcome, and eventually their strongholds will dissolve into history.

It's always going to be something. A century from now it will be about philosphies allowed in group-mind virtual realms. (hmm, come to think of that's already happening in internet forums).
 matchlessm
Joined: 11/11/2007
Msg: 848
Prop 8 Passed
Posted: 11/14/2008 9:41:12 AM
Ace,

Well, I'm not sure how firm a foundation the Unruh Act would make, but who knows? California was the 30th state to ban same-sex marriage, and they've had at least one reason in common. They don't want to be forced to recognize these marriages if they're performed in some other state, and the partners then change residence.

The same concern came up with divorce laws a long time ago. In one case, a woman in a North Carolina town had an affair with her husband's employee. They went to Nevada, where she got a divorce and then married the employee. When they came back, the husband sued. The N.C. supreme court refused to recognize the Nevada laws involved--questionable in view of the "full faith and credit" clause of the U.S. Constitution. Even then, most states DID recognize divorces and marriages their residents had performed in Nevada, Mexico, etc.

I think states are also concerned about polygamy. I don't know if any polygamists have tried yet to get married in a state that authorizes same-sex marriages. If they'd met residency requirements, what ground would the state have--without being arbitrary--for refusing them? All laws need to have some reasonable basis, and "just because we say so" doesn't cut it.
 Kristal_Rose
Joined: 11/8/2008
Msg: 849
Prop 8 Passed
Posted: 11/14/2008 10:09:22 AM
mm: Fascinating prospect, and one I'd find favorable, but just because marriage isn't restricted by genders, doesn't preclude laws against polygamy where marriage is still likely defined as being between 'two' people of whatever gender.

You're really right on though, it's not much of a leap to polygamy. While I'm probably not so keen on it's current popular cult indoctrinated male-dominant harem forms, I'm certainly all for three people marrying. More than that though, and I have difficulty seeing that as really more than just separate concurrent marriages. On the other hand, who am I to complain about that either, if that's what people want for themselves. This seems worthy of it's own thread, if it hasn't already been done.
 AceOfSpace
Joined: 5/28/2007
Msg: 850
Prop 8 Passed
Posted: 11/14/2008 4:29:46 PM
think states are also concerned about polygamy. I don't know if any polygamists have tried yet to get married in a state that authorizes same-sex marriages. If they'd met residency requirements, what ground would the state have--without being arbitrary--for refusing them? All laws need to have some reasonable basis, and "just because we say so" doesn't cut it.


We're repeating ourselves here. Nevertheless, there is a difference between what seems disgusting to the majority and what constitutes a compelling state interest. The rational basis test is what it is--so opponents of polygamy can either come up with one or eventually lose their cases.

Isn't that how it's supposed to work? You can't rule in favor of a particular result without a legal basis--at least not forever--tradition notwithstanding.

Personally, I don't care who marries whom as long as they don't clog up the courts with a lot of weird probate complications. But I do take seriuously the freedom of association promised us in the Bill of Rights, and I am apalled that others don't seem to understand what that means.

BTW, there was a big hint buried in that last paragraph for opponents of polygamy.
 Buffalonian
Joined: 3/8/2008
Msg: 852
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/16/2008 11:38:39 PM
Rev. Dr. Martin Luther King Jr. emphasized: "Injustice anywhere is a threat to justice everywhere." The label of Proposition 8 as "bigoted" is quite fitting, for it can (and is intended to) set a precedent of denying rights to one targeted group (i.e., gays) and thus lay the legal and social framework for acceptability of denial of rights to others as well.

Yesterday morning, I joined 20,000 others (predominantly, but not all, youth) at Los Angeles City Hall (and unknown numbers in cities across the country) in protesting Proposition 8. In 1994, a proposition (Proposition 187) passed (by a far greater margin than Prop. 8) which would have denied rights, benefits and education to those without officially permitted immigration status. That time, however, there was a massive mobilization BEFORE the election and that bigoted ballot measure's margin of approval / passage quickly declined by 10%. Almost all of provisions in that measure were overturned by a judicial ruling, which although it may have been based on the legalese contained in what the judge wrote, was really based on the system's / government's reaction to a protest of 70,000+ at Los Angeles City Hall and the prospect of further protests if that measure were to have been upheld in the courts. Massive protests are needed against Proposition 8; one such protest will take place on Saturday (November 22) at California's Capitol.
-- Barry (a.k.a. Buffalonian)


Date: Friday, November 14, 2008, 5:38 PM
Minority Groups Ask To Annul Gay Marriage Ban

SAN FRANCISCO (AP)
"Five civil rights groups are seeking to have alifornia's new same-sex marriage ban annulled on the grounds that Proposition 8 threatens the legal standing of all minority groups, not just gays.

"The NAACP Legal Defense and Educational Fund, Mexican-American Legal Defense
Fund, Asian Pacific American Legal Center and two other groups asked the state
Supreme Court on Friday to issue a stay preventing the ballot initiative
approved by voters last week from taking effect.

"he petition is the fourth seeking to have the measure invalidated. But it's the
first to argue that the court should step in because the gay marriage ban sets a
constitutional precedent that could be used to undermine the rights of racial
minorities."
 matchlessm
Joined: 11/11/2007
Msg: 853
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 1:13:34 AM
Buffalonian,

Why should the list of groups who should receive special treatment under the equal protection clause stop with gays? Seems like sort of an arbitrary cutoff point. Why are their problems more important than those a lot of other groups of people have to face every day? People who are very fat, extremely small, physically or mentally disabled, or mentally ill all face unkind treatment and discrimination. And their condition is something they either can't help at all, or have very little control over. Why shouldn't courts also give people in these groups more protection against discrimination?
 AceOfSpace
Joined: 5/28/2007
Msg: 854
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 1:27:07 AM
Why shouldn't courts also give people in these groups more protection against discrimination?


The courts should. All people from those groups need to do is to bring their cases. The rational basis test will either hold or it won't. If, for example, someone cannot perform the responsibilities involved in being married--such as providing competent decision-making regarding medical care for an unconscious spouse--then that person might not be qualified to marry.

Why should discrimination against the people you mention continue when there is no rational basis for it? You aren't really arguing that it should, are you? You don't mean to say that you want a separate act of the legislature for each and every specific condition that is unduly discriminated against. Do you?
 AceOfSpace
Joined: 5/28/2007
Msg: 856
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 8:01:14 AM
Hey Bob,

I understand what you're trying to say here. You're trying to say that the negative targeting of gays was intentional and specific. But to say that it is "non-arbitrary" would mean that there is some legitimate basis for it. I'm sure that's not what you meant. If there is no legitimate basis for it, then it is arbitrary as well as intentional.
 matchlessm
Joined: 11/11/2007
Msg: 857
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 9:51:02 AM
Ace,

I was trying to make a point to someone--I didn't mean that as a serious argument. Rational basis review isn't really the issue. Every law on the books that differentiates between groups of people, on whatever grounds, should be able to pass that test if challenged. And it isn't hard to pass. Homeowners--but not renters--can deduct mortgage interest payments from their taxable incomes. Non-residents are charged more to enroll in state colleges than residents. The income of unmarried people is taxed at a higher rate than that of married people.

Any measure that differentiated between groups of people on the basis of membership in the groups I used in that other post, if challenged on equal protection grounds, would just receive rational basis review. (In Cleburne, the Supreme Court struck down a city's denial of a special use permit for a home for the mentally retarded. The Court said it was applying r.b.r., but most reviewers believe it actually applied a somewhat more demanding standard.)

What I was trying to point out was that the coverage of 14th Amendment equal protection can only be extended so far from the "original understanding" that it applied to states' treatment of blacks. Beyond that limit, there's no reasonable basis for the Court to use strict scrutiny, or even heightened scrutiny, when reviewing a law that discriminates against some group or infringes some right.
You can make a reasonable argument that the EFFECT of the amendment in Prop.8 is invidious discrimination against gay people, or that a majority vote on an initiative wasn't a legitimate way to add Art. I sect. 7.5 to the state constitution. We'll see. But as I mentioned in another post, the justices are subject to a referendum. So, the proponents of Prop. 8 have a powerful weapon still available to them.

Equal protection decisions grounded in state constitutions are complicated by the fact those constitutions only contain equal protection provisions because there's a 14th Amendment. I'm not convinced that state courts can completely ignore the Supreme Court's equal protection doctrine--even if the state court makes clear it's interpreting only the state constitution, and even if its decision has the "independent and adequate" basis in state law the Court requires. (Michigan v. Long) A similar issue came up in Bush v. Gore, where the Court did not defer to the Florida court's interpretation of Florida election law as it ordinarily would, because the state court's holding unavoidably involved election to a federal office.
 matchlessm
Joined: 11/11/2007
Msg: 858
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 11:00:15 AM
Ace and Bob,

You might want to take a look sometime at Romer v. Evans, a Supreme Court case on something very similar to this that happened in Colorado. A popular vote of something like a 70% majority amended the state constitution. The amendment prohibited municipal governments from adopting ordinances that gave any group of people more protection than state laws already gave Coloradans generally.

What prompted the amendment was that Aspen, Golden, and some other cities had adopted ordinances that gave gays special protection from discrimination. (I'm sure this had something to do with the Coors brewery, which as I remember didn't extend the same benefits to partners of its gay employees that it did to spouses of its married employees.) Many people felt the special laws were unfair, and that concern led to the ballot measure.

The Supreme Court struck down the amendment to the Colorado constitution. What's significant is that it used only rational basis review, apparently unwilling to declare sexual orientation an official basis for using higher than usual scrutiny. But as it did with mentally retarded people in Cleburne, the Court found a way to make rational basis review more demanding than usual.

The one thing that will cause even laws that have a rational basis to violate the equal protection guarantee is a finding that they were motivated by "animus"--i.e., animosity toward the group the law treats differently. The Court--in the opinion of most reviewers, disingenuously-- found that a statement someone made in one of the hearings on the proposed amendment showed animus toward gays. And because of that, the Colorado amendment violated the 14th Amendment's equal protection guarantee.

You might also want to look at Lawrence v. Kansas, which is the Court's most recent case involving laws about sex. It's Justice Kennedy on his continuing bender, apparently imagining he's the reincarnation of his boyhood hero and author of the school desegregation case, Earl Warren. Damn the facts! Forget the law! I KNOW what's right for society, so full speed ahead! And he actually got four other Justices to go along with him. To find such an unprincipled decision, you have to go back . . . well, all the way back to . . . the last decision Kennedy wrote.

Justice Scalia, in his dissenting opinion, says the decision not only paves the way for legalizing same-sex marriages, but also for legalizing just about every sexual practice imaginable. That old alarmist!
 AceOfSpace
Joined: 5/28/2007
Msg: 859
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 3:26:08 PM

Justice Scalia, in his dissenting opinion, says the decision not only paves the way for legalizing same-sex marriages, but also for legalizing just about every sexual practice imaginable. That old alarmist!


LOL!! Among consenting adults where no harm is done, why should anyone care?

Hey, thanks for bringing up the animus caveat. Very interesting!
 amusinglisa
Joined: 5/4/2008
Msg: 860
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 3:46:21 PM
Matchless,

I don't understand how you see a comparison between one group being specifically excluded from rights afforded to married couples and renters not being able to write off mortgage interest. Can you explain how you see these as similar? Renters don't have mortgage obligations and they do not have mortgage interest to write off. Is that descrimination or is that more like not charging luxury tax to people who don't own Jaguars? Or is that discrimination, too?

You introduce the Colorado case. I am not sure what you mean by that and by your statements about it. It *seems* that you are saying that if the majority of a population makes it's wishes known, that should simply be the law of the land. It seems that you are saying the justices are "overstepping" anytime their opinion of justice contradicts "the will of the people".


Would it be better to state that Prop 8 is advocating *prejudicial* discrimination? Are you simply highlighting semantics?

What if you take "gay" out of the equation and make prop 8 read:

"Only marriage between people over 5'11" is valid or recognized in California."

Since height is not specifically protected in the 14th amendment, would the courts be overstepping to rule that unconstitutional, since all citizens are supposed to be treated equally?

 matchlessm
Joined: 11/11/2007
Msg: 861
Prop 8 Passed (Minority Groups Ask To Annul Gay Marriage Ban)
Posted: 11/17/2008 7:04:03 PM
amusinglisa,

It's not quite accurate that all citizens are to be treated equally. I've given all sorts of examples of laws that treat people unequally yet don't violate the 14th Amendment. That's the rule and not the exception. So throw out my renter/homeowner example if you want, and use something else. How about the Prop. 13 property tax cap, which allows owners of the same sort of house in the same neighborhood to pay much different amounts of tax? The Court upheld an equal protection challenge to it in Nordlinger. Anyone who takes equal protection literally would do well to read that decision. And yes, luxury taxes are a form of discrimination--but that doesn't make them unconstitutional.

No characteristic is specifically protected in the 14th Amendment. For equal protection purposes, the Supreme Court has defined "suspect categories" and "fundamental" rights. Unless a law differentiates on the basis of membership in a suspect category, or infringes a fundamental right, the Court will apply the rational basis standard in reviewing an equal protection challenge to it.

Putting aside the question of how the California court might review the law in your example under the state constitution, there are two ways to analyze it under federal equal protection doctrine. Here's the first. Height isn't a suspect category, so rational basis review would apply. But any such law wouldn't even survive that. There's no rational basis for a height restriction, nor would it achieve any legitimate government purpose. So, a height restriction on marriage would violate the 14th Amendment's equal protection guarantee.

The second way to analyze your law is as an infringement of the right to marry, which the Court described as "fundamental" in Griswold. Strict scrutiny would apply, and I can't imagine how the government could prove the height restriction was "necessary" to achieve a "compelling" government interest--or what that interest would be. It would also have to show that no less burdensome alternative was available. So, the law would violate equal protection under this analysis also.

I only mentioned Romer v. Evans because of its similarity to this situation. Aren't laws usually determined by a simple majority vote? If the will of the majority didn't decide most questions, we wouldn't need a vote. When three-fourths of the state legislatures have ratified an amendment to the U.S. Constitution, it is law. I'm sure you wouldn't go so far as to claim it's not legitimate because some states didn't ratify it.

In any event, the amendment at issue in Romer said nothing about any particular group--it applied to everyone subject to Colorado law. And of course courts are not overreaching every time they frustrate the will of the people. But when they do, they should support their decisions with convincing reasons. Fine-sounding declarations about societal good and justice (especially when very little law is cited to support them) make anyone used to reading cases suspect that a decision mainly reflects the personal views of the judges involved.
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