Arkansas Judge strikes down gay marriage ban.

OllieFranz said:

Personally, I'm glad for the concession that gender discrimination is a valid argument.

I do wonder about your comment that you didn't include paedophilia because of the lack of consent, since it implies that you believe that dogs and farm animals, and even toasters can consent,

And while the statement in Loving about marriage being a fundamental right may or may not be considered a dict rather than a precedent when read in isolation, subsequent decisions have cited it in portions relevant to the principles on which those cases were decided.

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The problem is we're dealing with sex here, not gender. Sex is a biological reality, whereas gender is a social construct. Some of those constructs may have roots in the biological reality of sex, but many others don't. Sex discrimination and sex segregation have been treated very differently by the courts than their racial equivalents. We still have separate bathrooms and locker rooms. Schools that are only for males or females still exist and are treated far differently than would be the case if you tried to have a school that was exclusive to a racial group. We have sexual segregation in all kinds of publicly funded sports programs, and so on. Basically, the courts have consistently held that there are obvious biological differences between the sexes and that creates valid legal grounds for treating them differently, whereas that has not been the case with race.

In the case of marriage one of the principal goals of a marriage has always been to produce natural heirs to an estate. Property transmission through generations has always been a much easier affair when dealing with natural heirs as opposed to artificially created heirs. As there is no chance for homosexuals to produce natural heirs to their estates there does exist clear legal grounds to continue with sex discrimination.

My husband and I have no children.

My cousin and her wife have two children.

Those old concepts of who does & does not constitute a "natural" heir are obsolete.

revanneosl said:

My husband and I have no children.

My cousin and her wife have two children.

Those old concepts of who does & does not constitute a "natural" heir are obsolete.

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Sorry, but one of those two women has children and the other does not. People aren't any different now then they were 1,000 years ago and the way we reproduce has not changed one iota. A natural heir is one that shares your genetic material. Artificially created heirs, while not always invalid heirs, present a host of potential legal problems for any estate.

Ugh. Is it really so hard to wrap quote tags around my comments and then respond outside those tags?

JohnLocke said:

1. Irrelevant. The issue is whether a constitutional or legislative action banning same sex marriage treats a suspect class differently.

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And some states have already identified sexual orientation as a suspect or quasi-suspect class.

2. Pedophilia is readily distinguished by the lack of consent.

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So is inappropriate behavior with animals and and whatever the identifying term for sex with inanimate objects is.

3. The issue is not whether homosexuals have been discriminated against "for centuries" but whether or not it is a suspect class. Ugly people have been discriminated against for centuries but they are not considered a suspect class. This is law not ethics or morality.

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Why is the issue whether homosexuals are a suspect class? You don't have to be a suspect class to be unlawfully discriminated against.

4. Under the current 14th Amendment jurisprudence they are not a suspect class.

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Then how are laws banning discrimination based on sexual orientation Constitutional?

5. Loving v. Virginia was a case about racial discrimination. Race is a suspect class under the existing case law, sexual orientation is not.

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See above,

6. You are confused. A State needs a compelling basis for discrimination against a suspect class, which is a much higher standard than a mere rational basis.

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If sexual orientation is NOT a suspect class, then any laws discriminating against people because of their sexual orientation fall under the rational basis review test. Since discrimination against homosexuals who wish to marry does not even pass the rational review test, it is irrelevant whether homosexuals are a suspect class according to the federal government.

Your secular comment is misapplied since the Supreme Court has no ecclesiastical jurisdiction.

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No, I'm simply saying that the laws of our country cannot be based on religious beliefs unless there is a secular reason to do so.

7. Does permitting same sex marriage decrease population?

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No. It may not increase population but unless married same-sex couples are out there murdering people, then same-sex marriage does decrease the population.

You may recall a certain Episcopal bishop, Gene Robinson, who "came out" after he had married a woman and had children with her. If same sex marriage were then legal, His Grace may have decided against marrying his wife and having children with her.

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Probably, but in that situation the population would not have increased by however many children he had. A failure to increase is not a decrease, it is stasis.

I've never really understood this argument. It's not like heterosexual couples are going to stop having children if same-sex marriage is legalized.

Would permitting same sex marriage result in more people avoiding legal marriage?

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I don't see how. There is no logical reason why allowing SSM would result in a decrease in overall marriage numbers. In fact, logically it seems the opposite would be true.

The State has a vested interest in seeing people married for a variety of reasons, not the least of which is to put an additional person to be responsible for another's welfare.

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I don't see how SSM would decrease that. Not to mention that I fail to see how that is a legitimate state interest that would be protected by disallowing SSM.

8. Who said anything about trusting the public? All I am concerned with is the legal issues at bar.

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You did, when you said

JohnLocke said:

Then again, there are many people who are against it, as demonstrated by the referendum, and refusing to listen to the public's demands always has costs.

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I prefer the gender discrimination argument as it is more consistent with the existing jurisprudence. I am wary of extending the definition of suspect classes, because it is rather burdensome.

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As I pointed out, there is no reason for homosexuals to be designated as a suspect class for them to be protected from discrimination.

AztecSDSU said:

A natural heir is one that shares your genetic material.

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So, like, nieces or nephews?

AztecSDSU said:

Sorry, but one of those two women has children and the other does not. People aren't any different now then they were 1,000 years ago and the way we reproduce has not changed one iota. A natural heir is one that shares your genetic material. Artificially created heirs, while not always invalid heirs, present a host of potential legal problems for any estate.

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Then we better put a stop to all those adoptions going on.

AztecSDSU said:

The problem is we're dealing with sex here, not gender. Sex is a biological reality, whereas gender is a social construct. Some of those constructs may have roots in the biological reality of sex, but many others don't. Sex discrimination and sex segregation have been treated very differently by the courts than their racial equivalents. We still have separate bathrooms and locker rooms. Schools that are only for males or females still exist and are treated far differently than would be the case if you tried to have a school that was exclusive to a racial group. We have sexual segregation in all kinds of publicly funded sports programs, and so on. Basically, the courts have consistently held that there are obvious biological differences between the sexes and that creates valid legal grounds for treating them differently, whereas that has not been the case with race.

In the case of marriage one of the principal goals of a marriage has always been to produce natural heirs to an estate. Property transmission through generations has always been a much easier affair when dealing with natural heirs as opposed to artificially created heirs. As there is no chance for homosexuals to produce natural heirs to their estates there does exist clear legal grounds to continue with sex discrimination.

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This argument doesn't work legally, as there is no requirement in marriage to have "natural heirs" -- and that is ignoring the questionable history you are using, particularly in respect to US laws. Worse for your argument, there is no requirement to be married to have an estate and heirs -- in fact, many people today who are single have natural heirs. Worse, some are married but have heirs that were either born out of wedlock or are from a previous marriage.

AztecSDSU said:

Sorry, but one of those two women has children and the other does not. People aren't any different now then they were 1,000 years ago and the way we reproduce has not changed one iota. A natural heir is one that shares your genetic material. Artificially created heirs, while not always invalid heirs, present a host of potential legal problems for any estate.

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They each gave birth to a child. What on earth are you talking about?

I concede that bans on same sex marriage are probably unconstitutional.

I will not accede to the idea that the laws of other States has any binding effect on Arkansas as that would be a violation of Federalism. A constitutional amendment to the state constitution is binding on the courts of that State. Laws banning discrimination on the basis of sexual orientation are currently State laws. The several States posses broad general police powers under the 9th Amendment. The exact effect of these laws is as yet unknown. For example, if a homosexual person were to bring a law suit for discrimination based on sexual orientation against a church whose doctrines include a prohibition on homosexual activity the ban would likely be held to be overbroad as it violates a fundamental right in the free exercise of religion (as in why the Catholic Church is still allowed to discriminate against women) unless the Court determined that sexual orientation is a strict scrutiny class like race, in which case the outcome is uncertain.

If the case is affirmed on appeal, I'm not sure whether I would prefer the Court to uphold it on the basis of marriage as a fundamental right or Equal Protection. If marriage is a fundamental right then what compelling interest does the State have is prohibiting plural marriage? I can't think of one, can you? If the Court upholds the decision on the basis of Equal Protection, then what level of scrutiny will be applied to discrimination based on sexual orientation?

I'm in favor of strict scrutiny being the standard in cases of sexual-orientation discrimination.

I also don't have a problem with plural marriage, provided all parties are of age and freely consent.

revanneosl said:

I'm in favor of strict scrutiny being the standard in cases of sexual-orientation discrimination.

I also don't have a problem with plural marriage, provided all parties are of age and freely consent.

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So are you in favor of compelling various church's that have long standing traditions prohibiting homosexual activity to allow homosexuals into the priesthood of said church?

JohnLocke said:

So are you in favor of compelling various church's that have long standing traditions prohibiting homosexual activity to allow homosexuals into the priesthood of said church?

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No. Don't be silly. The secular courts have never been willing to enter into that degree of entanglement with the churches. They've never even gone so far as to try to make white-supremacists churches perform interracial marriages, or even to make LDS churches allow insufficiently faithful Mormons the right to attend their more-faithful children's weddings.

You've been fairly reasonable on this thread so far. Why are you horribilizing now?

JohnLocke said:

So are you in favor of compelling various church's that have long standing traditions prohibiting homosexual activity to allow homosexuals into the priesthood of said church?

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That would be a violation of church and state separation.

JohnLocke said:

So are you in favor of compelling various church's that have long standing traditions prohibiting homosexual activity to allow homosexuals into the priesthood of said church?

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That's the kind of lie that the people funding the Prop 8 campaign spread , confusing people into believing that if they didn't vote for Prop 8, the government would destroy their churches.

That is beneath you. You are better than that. Or at least you were, earlier in the week.

TLK Valentine said:

Desperation, of course.

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No desperation here. I have conceded the point 3 or 4 times now. I'll do so again if it will make you feel better. I concede that bans on same sex marriage are probably unconstitutional.

Establishment Clause jurisprudence was in a state of uncertainty the last time I looked into it, admittedly a long while ago. The idea of "separation of Church and State" isn't as strong as it used to be. Several cases, then, spoke instead of the State becoming "entangled" with the Church instead.

Regardless of how I predict the outcome of the clash between various 1st Amendment rights and discrimination subject to strict scrutiny, I have no idea what Revanneosl thinks. Some of my compatriots in law school passionately argued that Equal Protection required that the makeup of the Supreme Court, House of Representatives, and Senate should match the demographic makeup of the country according to the most recent Census. So, at the time, 53% of all the seats in both houses of Congress and the Supreme Court must be held by women, somewhere around and probably north of 20% must be held by African-Americans, etc. Others believed passionately that the Catholic Church should be compelled by law to permit women into the priesthood.

While I think compelling demographic matching is unworkable as it unconstitutionally interferes with the right to vote, I'm not sure allowing Equal Opportunity cases against the Catholic Church is as "silly" as some may think. Discrimination facing strict scrutiny would be even less silly.

The fact of the matter is that in the modern era when free association rights clash with discrimination subject to heightened or strict scrutiny, free association rights lose.

There was a time, for example 1950 when Loving v. Virginia was decided, that the concept of marriage as including same sex couples was practically unthinkable. There was a time when females in fraternal organizations was practically unthinkable, now in many instances it is a legal requirement. "Separation of Church and State" has been progressively weakened. I remember way back when a woman by the name of Sinead O'Connor caused an uproar by being ordained in the Catholic Church.

JohnLocke said:

I remember way back when a woman by the name of Sinead O'Connor caused an uproar by being ordained in the Catholic Church.

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No, she was ordained by the Irish Orthodox Catholic and Apostolic Church, which, despite having "Catholic" in the name, is not part of the Catholic Church.

JohnLocke said:

I will not accede to the idea that the laws of other States has any binding effect on Arkansas as that would be a violation of Federalism.

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And if Arkansas CHOOSES to be bound by other state's laws, such as say recognizing heterosexual marriages legally performed in Maryland. What rational basis does Arkansas have for not recognizing a same-sex couple legally married in Maryland?

Queller said:

And if Arkansas CHOOSES to be bound by other state's laws, such as say recognizing heterosexual marriages legally performed in Maryland. What rational basis does Arkansas have for not recognizing a same-sex couple legally married in Maryland?

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Arkansas is bound by the Full Faith and Credit Clause of the U.S. Constitution to recognize marriages performed in other States, except to the extent that the marriage conducted in the other State is essentially unconscionable in Arkansas. The last case I read on that issue involved a State's refusal to recognize the marriage of 20 or 30 year old male to a 12 year old girl. Given the result in the D.O.M.A. case, Zablocki v. Redhal, and other cases, I believe that Arkansas' refusal to recognize an otherwise lawful marriage concluded in another State would probably be found to violate the Full Faith and Credit Clause of the U.S. Constitution.

Other than full faith and credit for the judgments of another State, in order for Arkansas to "CHOOSE" to be bound by the laws of another State, the Arkansas legislature would have to enact such law or Arkansas courts would have to create common law that mirrors that of the other State. Otherwise it would violate the individual's right to Due Process of Law.