A worthwhile political comic (Prop 8)

[Billnew]

Some of the worst radical judges were placed by Republicans.
Hard to argue with that.

 

[BoltNut]

a fair assessment, and a noble one considering your disappointment. i give you a great deal of credit, even though i don't share your disappointment.

It's one of those things that disappoint in one sense, but are understandable in another. I don't want to deny people their rights. I don't want to see anyone hurt or unfairly discriminated against. I also don't want to lose what I see as something almost sacred. I, personally, have not lost it. Society seems to be willing to sacrifice it on the altar of legal jurisprudence.

 

[Gawron]

Marriage is not a right. The effort is being made to equate marriage with certain inalienable rights, but you will have a hard time justifying that constitutionally.

Marriage is a contract. If it were a right, then I could block my wife from filing for divorce because it infringed upon my right to be married. If marriage were a right, then everyone would have the "right" to get married, or sue over someone impeding their "right" to get married.

There is no legal basis for marriage being a "right" in the sense that anyone can marry anyone they want. In many states the JOP can refuse to marry two people if he so desires. If marriage were a right in the sense you claim, then no one could ever deny it.

Loving v. Virginia dealt with banning marriage based solely on racial considerations. From the brief:

“Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. 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.”

Source: http://www.law.umkc.edu/faculty/proj...aw/loving.html

Prop 8 was based on the definition of marriage, not any racial considerations of those who wished to marry. It is also worthy to note that currently, “basic civil rights” are defined to include “race, color, sex, religion, national origin, or disability”. The current ruling appears to include the agenda of including sexual orientation in that definition.

Source: Civil Rights (Stanford Encyclopedia of Philosophy)

Zablocki v. Redhail was about child support. From the brief:

“At issue in this case is the constitutionality of a Wisconsin statute which provides that members of a certain class of Wisconsin residents may not marry, within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any "Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment." The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, demonstrates that the children covered by the support order "are not then and are not likely thereafter to become public charges."

Source: http://www.law.umkc.edu/faculty/proj.../zablocki.html

Prop 8 was based on the definition of marriage, and not on the concerns of existing minor children of those who wished to marry.

As for the ruling, the Federal Government does not recognize Gay Marriage although a few States do. In order for the 14th amendment to apply, a group must first be extended protection in Constitutional terms. Which is apparently where this is going. Gay Marriage, in relation to its level of scrutiny required for Constitutional consideration is limited to the lowest level of Rational Scrutiny, governed by the Lindsley Test, which offers very little of any solid basis of scrutiny that would help the cause of Gay Marriage in Constitutional terms.

Equal Protection vs. Legitimate Classification

Quote:

(the) 14th Amendment guarantees equal protection but still allows government to make certain legitimate distinctions among different classes of people.

All classifications must pass "Lindsley test", meaning they are reasonable and not arbitrary.

Classifications of "suspect classes"—people historically subject to greater discrimination—require "strict scrutiny".

The courts have consistently held that laws may treat people differently. Even though the Fourteenth Amendment guarantees to all people the "equal protection of the laws," state and federal lawmakers may constitutionally build classifications into the laws that they pass. For instance, nine-year olds may be denied drivers' licenses, and doctors may be subjected to more rigorous licensing requirements than street vendors. To draw the line between equal protection and legitimate classification, the courts have developed a set of tests to evaluate the constitutionality of laws that differentiate between people.

But the courts have also held that certain classifications are inherently suspect, and that laws employing these classifications must be subjected to more "strict scrutiny." All laws that differentiate between people on the basis of race, for example, have been designated by the courts as inherently suspicious

End Quote. Source: http://www.shmoop.com/equal-protecti...ification.html

Gay Marriage has not yet reached the middle ground of Suspect Scrutiny of which race, age and gender would be classified.

Quote:

“What this means in practice is that when persons complain that some state laws treats them unfairly, the courts apply different tests in considering their case. For starters, the courts begin with the understanding that states can legitimately draw distinctions between people when making laws. Equal protection does not mean that everyone must be treated exactly the same. A twelve-year old need not be provided the same right to drink alcohol granted to an adult; a sixty-year old does not have the same right to a public education possessed by a child. The basic question asked by the courts in evaluating state actions like these is whether the different treatment imposed by the law is reasonable. Known as the Lindsley test, the question asked is whether the classifications drawn are reasonable and not arbitrary.”

End Quote. Link: http://www.shmoop.com/equal-protecti...d-classes.html

The issue of Gay Marriage has yet to approach the highest level of Strict Scrutiny which requires the highest level of vigilance in consideration of Constitutionality. Perhaps it will, but until Gay Marriage is recognized as protected in Constitutional terms, finding Prop 8 to be un-Constitutional does not extend to Gay Marriage a Constitutional protection under the 14th amendment until such time as sexual orientation is deemed to fall within the same classification as racial or aged based considerations.

This may be the end result of this current process, and if so, then fine. When it comes to someone’s sexual orientation, I really don’t care. What I care about is judges legislating from the bench against the expressed will of the people as voiced in a legitimate voting process.

 

[reverend B]

It's one of those things that disappoint in one sense, but are understandable in another. I don't want to deny people their rights. I don't want to see anyone hurt or unfairly discriminated against. I also don't want to lose what I see as something almost sacred. I, personally, have not lost it. Society seems to be willing to sacrifice it on the altar of legal jurisprudence.

in america, law and government are prohibited from being in the business of the sacred. according to the first amendment, it is not a legally definable concept. what happens in man's law should never impact what you honor as sacred in your life.

 

[SOAD]

It's one of those things that disappoint in one sense, but are understandable in another. I don't want to deny people their rights. I don't want to see anyone hurt or unfairly discriminated against. I also don't want to lose what I see as something almost sacred. I, personally, have not lost it. Society seems to be willing to sacrifice it on the altar of legal jurisprudence.

Allowing gays to have a legally binding document which gives them "marriage" rights does not make heterosexual couples lose anything. Heterosexual marriage is already a 50/50 crap shoot where almost half of marriages end in divorce. Heterosexuals should spend more time nurturing their own marriages instead of telling other people what they can and cannot do with their relationships.

 

[BoltNut]

This may be the end result of this current process, and if so, then fine. When it comes to someone’s sexual orientation, I really don’t care. What I care about is judges legislating from the bench against the expressed will of the people as voiced in a legitimate voting process.

I would tend to agree with you. The problem is that we are a Republic and ruled by law. The voice of the majority of people is one thing, how that voice (or proposition in this case) affects others is a Constitutional matter. If that law somehow violates the rights of another, it is deemed unconstitutional and stricken down. When I read the transcript, it became apparent that the proponents of Prop 8 were lacking in legal expertise. If they insist in presenting a similar case to the Supreme Court, they will get slaughtered.

 

[BoltNut]

in america, law and government are prohibited from being in the business of the sacred. according to the first amendment, it is not a legally definable concept. what happens in man's law should never impact what you honor as sacred in your life.

Very true.

 

[reverend B]

Marriage is not a right. The effort is being made to equate marriage with certain inalienable rights, but you will have a hard time justifying that constitutionally.

Marriage is a contract. If it were a right, then I could block my wife from filing for divorce because it infringed upon my right to be married. If marriage were a right, then everyone would have the "right" to get married, or sue over someone impeding their "right" to get married.

There is no legal basis for marriage being a "right" in the sense that anyone can marry anyone they want. In many states the JOP can refuse to marry two people if he so desires. If marriage were a right in the sense you claim, then no one could ever deny it.

Loving v. Virginia dealt with banning marriage based solely on racial considerations. From the brief:

“Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. 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.”

Source: http://www.law.umkc.edu/faculty/proj...aw/loving.html

Prop 8 was based on the definition of marriage, not any racial considerations of those who wished to marry. It is also worthy to note that currently, “basic civil rights” are defined to include “race, color, sex, religion, national origin, or disability”. The current ruling appears to include the agenda of including sexual orientation in that definition.

Source: Civil Rights (Stanford Encyclopedia of Philosophy)

Zablocki v. Redhail was about child support. From the brief:

“At issue in this case is the constitutionality of a Wisconsin statute which provides that members of a certain class of Wisconsin residents may not marry, within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any "Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment." The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, demonstrates that the children covered by the support order "are not then and are not likely thereafter to become public charges."

Source: http://www.law.umkc.edu/faculty/proj.../zablocki.html

Prop 8 was based on the definition of marriage, and not on the concerns of existing minor children of those who wished to marry.

As for the ruling, the Federal Government does not recognize Gay Marriage although a few States do. In order for the 14th amendment to apply, a group must first be extended protection in Constitutional terms. Which is apparently where this is going. Gay Marriage, in relation to its level of scrutiny required for Constitutional consideration is limited to the lowest level of Rational Scrutiny, governed by the Lindsley Test, which offers very little of any solid basis of scrutiny that would help the cause of Gay Marriage in Constitutional terms.

Equal Protection vs. Legitimate Classification

Quote:

(the) 14th Amendment guarantees equal protection but still allows government to make certain legitimate distinctions among different classes of people.

All classifications must pass "Lindsley test", meaning they are reasonable and not arbitrary.

Classifications of "suspect classes"—people historically subject to greater discrimination—require "strict scrutiny".

The courts have consistently held that laws may treat people differently. Even though the Fourteenth Amendment guarantees to all people the "equal protection of the laws," state and federal lawmakers may constitutionally build classifications into the laws that they pass. For instance, nine-year olds may be denied drivers' licenses, and doctors may be subjected to more rigorous licensing requirements than street vendors. To draw the line between equal protection and legitimate classification, the courts have developed a set of tests to evaluate the constitutionality of laws that differentiate between people.

But the courts have also held that certain classifications are inherently suspect, and that laws employing these classifications must be subjected to more "strict scrutiny." All laws that differentiate between people on the basis of race, for example, have been designated by the courts as inherently suspicious

End Quote. Source: http://www.shmoop.com/equal-protecti...ification.html

Gay Marriage has not yet reached the middle ground of Suspect Scrutiny of which race, age and gender would be classified.

Quote:

“What this means in practice is that when persons complain that some state laws treats them unfairly, the courts apply different tests in considering their case. For starters, the courts begin with the understanding that states can legitimately draw distinctions between people when making laws. Equal protection does not mean that everyone must be treated exactly the same. A twelve-year old need not be provided the same right to drink alcohol granted to an adult; a sixty-year old does not have the same right to a public education possessed by a child. The basic question asked by the courts in evaluating state actions like these is whether the different treatment imposed by the law is reasonable. Known as the Lindsley test, the question asked is whether the classifications drawn are reasonable and not arbitrary.”

End Quote. Link: http://www.shmoop.com/equal-protecti...d-classes.html

The issue of Gay Marriage has yet to approach the highest level of Strict Scrutiny which requires the highest level of vigilance in consideration of Constitutionality. Perhaps it will, but until Gay Marriage is recognized as protected in Constitutional terms, finding Prop 8 to be un-Constitutional does not extend to Gay Marriage a Constitutional protection under the 14th amendment until such time as sexual orientation is deemed to fall within the same classification as racial or aged based considerations.

This may be the end result of this current process, and if so, then fine. When it comes to someone’s sexual orientation, I really don’t care. What I care about is judges legislating from the bench against the expressed will of the people as voiced in a legitimate voting process.

the judge did his job vis a vis the lindsley test, finding the arguments to be invalid and based on prejudice and that the testimony offered was no more than opinion from individuals with no legitimate expertise in the topic. his decision was legally quite specific and detailed, and based squarely on legal argument.

 

[BoltNut]

Allowing gays to have a legally binding document which gives them "marriage" rights does not make heterosexual couples lose anything. Heterosexual marriage is already a 50/50 crap shoot where almost half of marriages end in divorce. Heterosexuals should spend more time nurturing their own marriages instead of telling other people what they can and cannot do with their relationships.

You are right. Much of what you are talking about here is in the court transcript. I'm not saying heterosexual couples lose anything either. Marriage is a "50-50" gamble these days and everyone should spend time taking care of their own relationships.

My concern is more society at large. Divorce is too easy. Marriage is entered into without real consideration to commitment. Besides, people can just get a quick divorce and move on. All of this is just so temporary. Maybe that is more the problem I have with it all. Marriage has been cheapened to where it has lost it's meaning anyway.

 

[AirPo]

Marriage is not a right. ...

From the brief:

“Marriage is one of the "basic civil rights of man,"
...

 

[lemmings]

A worthy 10,000th post if there ever was one.

Much better at least than my 2,439th post.

 

[Wolseley]

Definitely proof that both politicians and judges are totally out of touch with the viewpoints of the vast majority of the people, that's for sure.

 

[KarateCowboy]

The good news is that as more and more research comes in there will be a better way to treat these people who deal with SSA, and this will become a non-issue.

 

[Ringo84]

Allowing gays to have a legally binding document which gives them "marriage" rights does not make heterosexual couples lose anything.

And why does it have to be a zero-sum game in the first place? Why can't both heterosexuals and homosexuals enjoy the same rights?
Ringo

 

[Gawron]

AirPo, I addressed that issue in my post, which you ignored, which doesn't surprise me.

 

[reverend B]

Definitely proof that both politicians and judges are totally out of touch with the viewpoints of the vast majority of the people, that's for sure.

which is ok, because that's not their job. they aren't pollsters. they are there to determine the legalities, not the popularities. thank goodness he had the integrity not to be swayed by the numbers, don't you agree?

or do you want gallup to be the next supreme court judge?

 

[reverend B]

The good news is that as more and more research comes in there will be a better way to treat these people who deal with SSA, and this will become a non-issue.

care to cite any credible research?

 

[KIYX]

No, it is not.

Why would you use a different argument to defend anti-miscegenation laws?

 

[TheNewWorldMan]

Yes, the tyrannical judge.

Who you would be cheering had he made a ruling that enriched the corporate bottom line.

 

[GarrettC]

The issue I have with the judge's ruling is the fact that the judge is openly gay. Stephen Colbert put it this way -

A case that affects gay people being decided by a gay guy? Why don't we just let cases about endangered species be decided by a manatee?

Basically, an openly gay man is going to be for gay marriage. He has everything to gain by deciding that Prop 8 is unconstitutional. Whereas, a straight or bisexual man would have almost nothing to gain by declaring it unconstitutional.
Does anyone get where I'm going with this? I'm not extremely good at expressing my ideas coherently.