Constitutional rights and equal protection (gay marriage related)

[HappyHealthyHolyRoller]

Gay marriage not an issue of equality
​

Folks seeking to nix a law on equal protection grounds who belong to non-suspect classifications can still succeed if they can prove that there is no rational basis for the government's position. Gays will be unable to do that.
Why not?

Inequivalence between marriage and race
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When a law purportedly discriminates based on a non-protected class (such as were blacks before the Civil Rights movement), anyone trying to challenge government action on equal protection grounds has the burden of demonstrating that the law is discriminatory, and that there is no rational basis for the law's discriminatory purpose or effect. In other words, the gay community has the burden to prove they are being discriminated against. Contrast that with suspect classifications: if someone challenges a government action on the ground that it discriminates on the basis of a suspect classification, the government has the burden of demonstrating that the law has some compelling justification. The government had no justification in segregating blacks from whites, because the burden couldn’t be produced; blacks, by there very nature, do not differ one iota from whites, with exception to darker skin (Blacks are offended that they have been compared to gays against their will and without their approval). For this reason, the government may freely discriminate until a gay person can explain how the government is wrong in doing so.

Marriage as a public display
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Marriage is more than the solemnization of private relationship: it is the public recognition of the relationship. Thus, gay marriage cannot be thought of as a private issue, covered under privacy laws (such as Roe v. Wade, for example).

Efforts needed to protect marriage
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You are not allowed to marry: a relative, the family dog, someone who is already married, someone who is underage, a member of the same gender. The gov't is far less interested in the goings-on behind the scenes, and far more interested protecting the institution of marriage from assault by bigamists, homosexuals, and the family dog.

There are only so many rights that are considered fundamental. These rights deserve very strict protection. Other "rights" do not deserve any Constitutional protection, and therefore laws may be written that undermine those rights if there is a rational basis for doing so.
Gay marriage can’t be compared to segregation of the blacks because gender-orientation is not a suspect classification. Race is a suspect classification.

 

[Beanieboy]

Virginia Law:
http://www.law.virginia.edu/html/news/2004_fall/forde.htm

Like the arguments against gay marriage, “much of the opposition to interracial relationships was grounded in religious beliefs.” In Loving, Virginia’s Supreme Court justified a ban on interracial marriages by citing religious beliefs. Others argued against it on the grounds that it violated natural order and would lead to unhealthy children—perhaps mentally retarded or a mongrel breed. Sex between people of the same sex is also called unnatural, or regarded as bestial by some today. The American Psychiatric Association considered homosexuality a psychological disorder until 1973. Forde-Mazrui acknowledged that the relation to procreation is different in gay relationships; now the concern is more the lack of procreation because many consider marriage to be based on having children.

 

[wanderingone]

I'm bored OP-- can't you come up with some new argument - yours have been presented before... over and over and over again.

 

[Beanieboy]

I understand why blacks may be offended by the gay movement claiming to be the same. Blacks were enslaved, lost their families and culture (you know, back when this was a Christian nation), and had to fight for basic Civil Rights (back in the good old days when people were moral.)

However, there are similarities. Blacks were lynched, gays are beat up and often beaten brutally to death. In one case, the killer pleaded the Gay Panic Defense, and actually got away with murder. Blacks have about 10 slurs you can call them, Whites have only 1 or 2. Gays have about 10 slurs you can call them, and Straights have only breeder. Blacks had trouble being hired because of racism. Gays were once fired, not because of their job, but because they were gay, and they had no legal recourse. Blacks led marches of peaceful protest. After Stonewall, gays began to come out of the closet and have peaceful protests, Gay Pride.

I was at a conference on Seeing Whiteness. At one point, a black person started saying that they had a much more difficult time fighting for their rights that the Indian women who said she could relate. He argued that her people weren't taken from their native land, culture, language, and family. She argued that the first settlers didn't come to Africa and kill of most of the natives, like her race experienced.

One can play the "who's more oppressed" game, but the truth is, injustice is injustice.

 

[Beanieboy]

deja vu - dp

 

[Beanieboy]

Gay marriage isn't a threat to marriage. Divorce is. Get a prop going to outlaw divorce.

 

[QuakerOats]

Other "rights" do not deserve any Constitutional protection, and therefore laws may be written that undermine those rights if there is a rational basis for doing so.

I haven't yet heard one, and we've already been through the whole nine yards, so what's the problem? Legalize same-sex marriage already, America!

One can play the "who's more oppressed" game, but the truth is, injustice is injustice.

 

[Washington]

In other words, the gay community has the burden to prove they are being discriminated against.

And they have.

Thus, gay marriage cannot be thought of as a private issue,

And its not.

You are not allowed to marry: a relative, the family dog, someone who is already married, someone who is underage, a member of the same gender

*sigh* Not true in all states.

 

[Beanieboy]

You are not allowed to marry: a relative, the family dog, someone who is already married, someone who is underage, a member of the same gender.

Why does "marrying the family dog" always come into these ridiculous debates? No one is asking to marry their sister, a person already married, not ANOTHER SPECIES. They are simply asking that if they are a gay couple, that they are able to be married, and have the rights that go with marriage.

In Canada, "the family dog" isn't even used here. Gays can marry, people living together (gay and straight) can register as common law partners to share insurance and other coverage granted to married people.

And yet, there aren't a lot of brothers wanting to marry their sister, nor men lining up to marry Lassie.

I can speak for most gay people that they don't lump the love they feel, and the commitment that they want to share, the same as a love between master and dog. I'm sorry that that is the category that you see gay relationships and marriages. It shows your lack of understanding in the depth of love in these couples, but denying its existence does not make it disappear. I commend people that are gay that marry, when heterosexuals end up divorcing 50% of the time, and they have the approval of society, and no one threatening their marriage with a vote that would nullify it.

 

[Sycophant]

The "what next? Marrying dogs?" argument always strikes me as especially demeaning and insulting.

 

[TeddyKGB]

Inequivalence between marriage and race
​

When a law purportedly discriminates based on a non-protected class (such as were blacks before the Civil Rights movement), anyone trying to challenge government action on equal protection grounds has the burden of demonstrating that the law is discriminatory, and that there is no rational basis for the law's discriminatory purpose or effect. In other words, the gay community has the burden to prove they are being discriminated against. Contrast that with suspect classifications: if someone challenges a government action on the ground that it discriminates on the basis of a suspect classification, the government has the burden of demonstrating that the law has some compelling justification. The government had no justification in segregating blacks from whites, because the burden couldn’t be produced; blacks, by there very nature, do not differ one iota from whites, with exception to darker skin (Blacks are offended that they have been compared to gays against their will and without their approval).

A Supreme Court denying gay marriage protection would have to explain why due process and equal protection do not apply as they did in Loving. I suspect that is a primary reason why they are in no hurry to hear such a case.

Appeals courts have issued some downright comical decisions. In Hernandez v. Robles (NY CoA):

Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.
​

Translation: "Constitution, schmonstitution. We can't very well tell people their personal beliefs are wrong, can we?"

For this reason, the government may freely discriminate until a gay person can explain how the government is wrong in doing so.

Discriminate how? Can the government bar gay people from voting?

 

[Robbie_James_Francis]

Interesting where you place the burden of proof in the OP...I would say that everything should be permitted unless it can be demonstrated by the Legislature that it infringes on others' rights.

But then I believe in silly things like freedom and democracy, and apparently you don't.

 

[SiderealExalt]

In the spirit in which Proposition 8 works in, I propose a Constitutional amendment banning Christian marriage?

I mean, that's fair right

 

[OphidiaPhile]

In the spirit in which Proposition 8 works in, I propose a Constitutional amendment banning Christian marriage?

I mean, that's fair right

I would vote for that is a an instant.

 

[Washington]

In the spirit in which Proposition 8 works in, I propose a Constitutional amendment banning Christian marriage?

I mean, that's fair right

I agree.

Considering that more Christians are snubbing their noses at their marriage vows by getting divorces than those of any other belief, they obviously have little regard for the institution, and therefore don't deserve its endorsement.

 

[SiderealExalt]

When I left work yesterday and headed over to CVS I saw a black pick up with No on 8 stuff on it's windows. I wanted to wait around and shake the person's hand whose truck it was but I didn't get the chance. I am honestly waiting to bump into someone who is yes for 8 and go yeah sure I'll support you...just as soon as you support my Proposition I'd like to submit, and tell them about it

 

[OphidiaPhile]

When I left work yesterday and headed over to CVS I saw a black pick up with No on 8 stuff on it's windows. I wanted to wait around and shake the person's hand whose truck it was but I didn't get the chance. I am honestly waiting to bump into someone who is yes for 8 and go yeah sure I'll support you...just as soon as you support my Proposition I'd like to submit, and tell them about it

And you know that Christians would like to keep atheists from getting married but they just don't admit it to us.

 

[SiderealExalt]

I dunno about that. Course, I will admit, every time I get optimistic about attitudes about atheists, I test it and it usually fails.

 

[OphidiaPhile]

I dunno about that. Course, I will admit, every time I get optimistic about attitudes about atheists, I test it and it usually fails.

Atheists are the other minority group that it is still ok to discriminate against.

 

[gwenmead]

Heh. Yeah. Try being an atheist polyamorous childless feminist. Even out here on the Left Coast, plenty of people still think I eat babies for Sunday dinner...

I wonder if there are any arguments against gay marriage which don't involve religion somehow, directly or indirectly. If there are, I'd love to see them.