Court Declares California's Gay Marriage Ban Illegal

Gay marriage gets a win: A federal appeals court ruled today that California's ban on gay marriage, known as Proposition 8, is illegal. Via The Los Angeles Times:

The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.

The ruling was narrow and likely to be limited to California.

"Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California," the court said.

Read Jacob Sullum on the weakness of the defense of Prop. 8 here. Reason on gay marriage here. Check out the full decision below.

Perry v Brown

Comments

[darius404]

Woohoo! That's right guys, take it all the way to the Supreme Court. Bwahahahaha!

Of course, I might be just too optimistic of higher courts (let alone the Supreme Court) ruling against it as well.

[Tonio]

The supremes do not have to take this. And since this was a narrow ruling on the constitutionality of the referendum, not on gay marriage, per se, they might choose to let the Ninth's opinion stand. IANAL, etc.

[So...]

Gay marriage

Two straight men (or women) may get married in CA? Or do they have to be gay? What would be the proof of their gayness? A public display of some sort?

[Tonio]

SSM, of course. Your nit-picking does nothing to move the discussion forward.

[So...]

move the discussion forward

In a chat room?
How will this discussion influence legislation in any meaningful way?

[lily]

looking for the bilover?---datebi*cO'm--- is a site for bisexual and bicurious singles and friends.Here you can find hundreds of thousands of open-minded singles & couples looking to explore their bisexuality.sign up for free.
"

[Anacreon]

Timely.

[o3]

ive yet to hear any argument as to exactly how TEH GAY marrage HARMS straight marrage such that remedy is required

[protefeed]

I think the argument is that married gays make people like Gingrich look bad -- or something.

The closest thing to a valid argument I've heard is that gay marriages allow the state to compel non-consenting third parties to do stuff they don't want to do, which only holds water if the person making the argument says government needs to get out of the business of deciding who is married entirely, and quit handing out tax-financed goodies to married couples -- which I doubt is where SCOTUS will go.

[wareagle]

you are missing the point. Say the vote had gone in favor of same sex marriage. Would that still be unconstitutional? What about every other Prop that CA has voted on?

I could care less about the issue; the bigger question is how the courts view the referendum process. No one called Prop 187 unconstitutional, and one doubts the court would have ruled as it did had the outcome on Prop 8 been the other way around.

[Tonio]

My understanding is that it's not the legality of referendum process as a whole that's being questioned, but the legality of using said process to single out a group of people for unequal treatment. Presumably, a referendum disallowing Native Americans to possess and consume alcohol would also fail the same test.

[Thom]

I feel like the proper way to fight these stupid propositions is through mockery. If every ballot asking somebody to vote on banning gay marriage also had a question asking people to vote on banning interracial marriage, people would feel a lot more conspicuous in their choice, even in the privacy of the ballot box. Motivated citizen's groups can, and should, make this happen.

[Old Mexican]

Re: O3,

ive yet to hear any argument as to exactly how TEH GAY marrage HARMS straight marrage such that remedy is required

That's because there isn't one. The ONLY issue *I* see with turning marriage into a right is that gay couples could sue churches if these are reluctant to marry them, e.g. the Catholic Church and the Mormon Church. Marriage (the ceremony) is NOT a right, but you do have a right to draft a marriage contract and say that you're married.

[wareagle]

wouldn't suing specific churches run headlong into the separation issue? If the Catholics don't want to marry Steve and Bob, there are other houses that will. I don't want the state dictating church doctrine any more than I want the reverse to occur.

[tortoise]

I don't see that as an issue. As far as I know a Jewish/non-Jewish couple could sue an Orthodox rabbi for not marrying them.

[tortoise]

CORRECTION: ...a Jewish/non-Jewish couple currently CAN'T sue an Orthodox Rabbi for not marrying them.

[Abdul]

From Paul clement's rief defending DOMA:

"Indeed, most sexually-active opposite-sex relationships have an inherent ability to produce children whether or not the spouses are seeking to do so at any given time. And the fact that opposite-sex relationships produce unplanned and unintended pregnancies is at the heart of society's traditional interest in promoting the institution of marriage and providing incentives for these unplanned offspring to be raised in the context of a traditional family unit. Whatever else is true of the procreative potential of same-sex couples, the phenomena of unplanned and unintended pregnancies is limited to opposite-sex couples. Congress rationally could have concluded that a special legal category was necessary to recognize the special concerns that face a couple who must take account of this inherent possibility of their relationship, and to support and incentivize such relationships despite the increased responsibility they place upon the spouses."

[wylie]

the procreative potential of same-sex couples

I know I didn't pay much attention in health class, but....what?

[SugarFree]

Which might hold a little water if DOMA prevented sterile people from marrying.

[Abdul]

The brief addresses that issue. Basically, laws don't need to be narrowly tailiored to achieve their objectives, they only need to be rationally aimed at achieving those objectives.

Most heterosexual pairings can achieve procreation. There's no easy test to determine which of those won't.

No homosexual pairing will ever achieve procreation.

Thus, same sex marriage would not rationally incentivize unplanned procreation.

[SugarFree]

But backwards rationalizing is pretty easy. Congress didn't draft DOMA on rational principles other than "Damn faggots want special rights now!"

[Abdul]

You may be right, but it's not like heterosexual marriage was created as a way to stick it to the gays.

While heterosexual marriage has had different rationales in different cultures and times, it's always been connected to the idea that procreation requires males and females.

[SugarFree]

Liberty has always been an uphill battle. Just because, say, women couldn't own land at one point, means that it was moral for them to not be able to own land at the time, but rather that human reasoning had to catch up to self-ownership/natural rights.

If the government wants to continue to control and grant marriage, I see no rational way it gets out from under its own equal protection rule.

[MJ]

"...I see no rational way it gets out from under its own equal protection rule."

Equal protection does not apply to to situations that are unequivalent. A same sex couple is not equivalent to an opposite sex couple for the reasons above. Differences in sex trump claims of equla protection where differences in sex matter. There is no convincing argument that marriage is not a circumstance where sexual differences do not matter.

[timb]

I'm pretty sure "heterosexual marriage" was never "created." Pair bonding is a natural act for people and the government codifies it. The only true rational interest the government has is preventing public health problems (incest) and mucking up property rights (bigamy and divorce).

Mr. Clement is a fine attorney, but he presented an argument which is neither persuasive nor compelling. The only person nodding at that argument were already on his side

[o3]

except in adopting unwanted children

[Abdul]

Gay couples can, and do, adopt now in every state without being married.

[o3]

"Thus, same sex marriage would not rationally incentivize unplanned procreation."
_

my comment addressed that quote.

[Pip]

No homosexual pairing will ever achieve procreation.

Bullshit. I recently read that they were able to produce a fertilized egg using the genetic material of two women.

http://en.wikipedia.org/wiki/Pregnancy_over_age_50

[Pip]

Correct Link

http://www.bionews.org.uk/page_51154.asp

[Gojira]

...support and incentivize such relationships...

It's an insult to everyone in a straight relationship where one of the partners is unable to conceive.

[Tonio]

It's pretty much an insult to everyone not in a "traditional" marriage with at least one child.

[wareagle]

if "support and incentivize" can be used re: marriage, how many other avenues of mischief are now open to govt? Think of all the wonderful things you could be incentivized to do because some elected official or appointee considers them worthwhile.

[Tonio]

Myriad, PeaceChicken, myriad. My copy of the constitution specifically enumerates the rights of the federal government, and the state governments, and reserves all other rights to the people. This part seems to have been erased in every copy of the document in the possession of the executive branch of the US govt.

[nicole]

Actually it just seems insulting to anyone who thinks you should fucking plan your pregnancies. I mean, "society's traditional interest in...providing incentives for these unplanned offspring to be raised in the context of a traditional family unit"?how about "society's"* interest in getting adults to act like adults and not just get accidentally knocked up left and right (and, you know, we have other ways of fixing that problem).

I mean I'm basically being told that it's only important for me to be married in case I magically find myself unintendedly pregnant. Which...is probably not why the vast majority of opposite-sex couples get married.

*No, there is no we; all standard ancap disclaimers apply

[nicole]

I guess you could also take it as almost pro-gay: straight people have this special variety of retardation that gay people physically cannot have, so we need to protect straights from that via marriage. Awesomez.

[real shrike]

Put these guys on Newt's Gitmo list.

[Fist of Etiquette]

"A federal appeals court ruled today that California's ban on state recognition of gay marriage..."

More couples getting entitlement goodies I don't. WHO MOURNS FOR FIST OF ETIQUETTE?

[September]

Now who's gonna cry for you?

[SugarFree]

WHO MOURNS FOR FIST OF ETIQUETTE?

You live in the same state as Tulpa, right? You don't have to be alone.

[Episiarch]

Come on, man. Even I wouldn't wish that on FoE, even though, in a different reality, I still couldn't have called him friend.

[Fist of Etiquette]

Spock's old man was a Romulan. I knew it!

[Episiarch]

Yup. The secret's out!

[Pro Libertate]

That's only in the reboot. Turns out that Spock's father was a Romulan Sith Lord.

[Fist of Etiquette]

Just wait until the reboot casts this actor to play Khan.

[Pro Libertate]

I just read that Bryan Fuller and Bryan Singer are working on a non-reboot Star Trek TV series. Singer has done a few decent things, so maybe it wouldn't suck.

[o3]

YOU LIE!

he was an alcoholic who secretly coveted human females.

[Pro Libertate]

They don't call it Romulan ale for nothing.

[MJ]

He married two human females. I think that was not all that secret.

[Dagny T.]

FoE, depending on you and your partner's income it will likely cost you in federal income taxes to get married. If both spouses are earning decent salaries, two Single returns is often > one MFJ. I try to spread the word about this as much as possible. If you have a rugrat, 1 Single + 1 HOH claiming said kiddo is miles better than 1 MFJ. Livin' in sin for the win.

[Fist of Etiquette]

Wait a minute, I thought you were Canadian. Aren't you Canadian? The day I take tax planning advice from a Canadian...

[SugarFree]

She is mostly American at this point. And we should be damn proud to have her.

[Pip]

Wait, you've had her? Because I haven't had her yet. And yes I would be damn proud to do so.

So where's the line?

[SugarFree]

Don't be crude, Pip. Leave that to me.

[Tonio]

I've always mourned for the single people who get screwed at tax time, etc. That doesn't lessen my joy that marriage equality has come to the most populous state in the US.

[Audrey the Liberal]

Good

[db]

OT:

RIP Roger Boisjoly

[db]

http://www.latimes.com/news/ob.....8999.story

[Pip]

Then on the eve of the Jan. 28, 1986, launch, Boisjoly and four other space shuttle engineers argued late into the night against the launch.

In cold temperatures, o-rings in the joints might not seal, they said, and could allow flames to reach the rocket's metal casing. Their pleas and technical theories were rejected by senior managers at the company and NASA, who told them they had failed to prove their case and that the shuttle would be launched in freezing temperatures the next morning. It was among the great engineering miscalculations in history.

A little more than a minute after launch, flames shot out of the booster joint, melted through the nearby hydrogen fuel tank and ignited a fireball that was watched by the astronauts' families and much of the nation on television. Boisjoly could not watch the launch, so certain was he that the shuttle would blow up. In the months and years that followed, the disaster changed his career and permanently poisoned his view that NASA could be trusted to make the right decisions when matters came to life and death.

[wareagle]

if voters had approved Prop 8, would it still be unconstitutional? Or is it a case of the court believing citizens are too stupid to decide things for themselves?

I don't care who marries whom; not my business. BUT, public referenda are held all the time at the state and local levels, usually dealing with issues of taxes/funding. Are they, too, unconstitutional? Is it the referendum process that this court finds objectionable or the outcome of this one vote?

[SugarFree]

Considering that they are basing the ruling on the 14th Amendment Equal Protection clause, it's not a ruling against referenda in general.

[wareagle]

so turn the vote on its head: CA votes to sanction same-sex marriage. Still unconstitutional?

I think NY had the right idea - let the state leg. decide and voters could either support or replace legislators accordingly. I have never liked govt by referendum, regardless of the issue.

[Applederry]

You'd have to come up with a reason for why sanctioning gay marriage is a violation of the constitution first.

Voter referendum vs. state legislature has nothing to do with this.

[John]

I am thinking polygamists could come up with a reason why that violated equal protection.

[Applederry]

How does sanctioning gay marriage make polygamist marriage illegal?

[John]

it is illegal. You are allowing gays and straights to marry but not polygamists. You you have a constitutional right to marry whom you choose, why don't polygamists have that same right? And polygamists have an even stronger argument than gays, since may times they are doing out of religious conviction and have the right of free exercise.

If gay marriage is a right, I don't see anyway that polygamy isn't as well.

[Tonio]

Polygamy is a right. No, religion doesn't convey special rights.

[Applederry]

Okay, so your objection isn't to gay marriage being recognized, but that polygamist marriage isn't also being recognized? I agree, but this case only dealt with the issue of gay marriage. Although, with this precedent, polygamists may have a stronger case for themselves now.

[John]

No. My objection is to the people losing the right to determine what is and is not marriage.

Sorry, but I don't share the Libertarian love of rule by robed overlord.

[Applederry]

I'm not sure which libertarians you hang out with, but most of the ones I know have little love for the courts and their usual interpretations of the constitution.

Regardless, the people haven't lost their right to determine what marriage is or is not. The government has simply lost the power to discriminate those who seek the state sanctioned version of marriage. Many other versions still exist out there and will continue to exist.

[John]

They have totally lost the right. They had an election to determine it, and the court just overturned it. Marriage now means gay marriage, the State of California be damned.

[Applederry]

Really? Hetero couples can no longer get married in California. Enough with the histrionics.

As long as the state does recognize and grant marriage licenses, it must do so in a non-discriminatory manner, due to the equal protections clause of the constitution. The state defining marriage as only apply to heterosexual couples was found to be discriminatory without cause and thus in violation of the constitution.

[Fluffy]

I think the ruling is methodological and has no specific reference to gay marriage at all.

The appeals court appears to be saying that if a state supreme court finds something to be a right, and you want to amend the state constitution to take that right away and "fix" the decision of your own state court, you need a "rational basis" to overcome the presumption that your action violates the 14th Amendment.

It sure sounds like that would apply to the action of a state legislature, too, and not just a referendum.

[o3]

who gives a rip about polygamist marrage provided everyone involved makes an informed decision & is 18 or over.

[wareagle]

what aspect of the constitution support it? If it's equal protection, then why shouldn't polygamists be covered or someone who wants to marry a cousin?

The Constitution does not seem to care who marries whom or anyone marries at all.

[Applederry]

Polygamists and incest SHOULD be covered under the equal protection clause, but this case dealt only with gay marriage. I don't know why you people are advocating the judges ruling on something that wasn't at issue in the case here, that would be true judicial activism.

[wareagle]

because it IS judicial activism. People on both sides followed the legal steps required in pulling together a referendum and a vote was cast. No one ever complained about the process because 30 other states have done the same thing.

The judges got involved because they did not like the outcome. The CA ruling thus potentially calls into question the referenda held by other state that put this question to its voters.

[SugarFree]

The Constitution does not seem to care who marries whom or anyone marries at all.

It should? Really?

[John]

The Constitution never gave the federal courts the power to override state control over marriage.

I love how libertarians are such strict constitutionalists except when it comes to getting their pony.

[Tonio]

The Constitution never gave the federal courts the (explicit) power to override state control over guns. However, the courts have incorporated the second against the states in much the same way that the Ninth Circuit seems to have incorporated the Fourteenth against the states.

[John]

"The Constitution never gave the federal courts the (explicit) power to override state control over guns."

Oh yes it did. The second amendment. There is no comparable right to gay marriage. You guys are buying into every bullshit liberal argument because you like the result.

[Tonio]

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Nope, nothing about the states there.

[Applederry]

More histrionics!

We buy into this decision because it is the correct one. I repeat, for the fiftieth time, as long as the state decides it has the authority to recognize and grant special benefits to the institution of marriage, it must do so in a non-discriminatory fashion. California's ban on gay marriage is discriminatory, therefore it got slapped down.

There's nothing hypocritical about this. The rights of people can not be voted away, either by legislature or public referendum. This includes the right to not be discriminated against without just cause by the government. California decided marriage is a right, therefore gay marriage must also be a right. If you want to argue a separation of marriage and state, by all means, I will join you.

[Bee Tagger]

California's ban on gay marriage is discriminatory, therefore it got slapped down.

Was it a ban on gay marriage? Or was it a handing out of government benefits using a specific set of criteria? Do I get the benefits of the Americans With Disabilities Act for wearing glasses? (not that I would ever do that!) Are my rights being violated if I don't?

[SugarFree]

Was it a ban on gay marriage?

Yes, because...

Or was it a handing out of government benefits using a specific set of criteria?

They are already doing that through civil unions. So it was all about gay marriage.

[.]

I love how libertarians are such strict constitutionalists except when it comes to getting their pony.

A libertarian would recognize the question of gay marriage as being entirely extraneous to libertarianism, one way or the other. Libertarianism merely states that government shouldn't interfere with private unharmful behavior, it doesn't require government sanction of it.

Cosmotarianism, on the other hand, is merely your typical SWPL asshole politics restated in a libertarian vocabulary. And that's exactly the kind of argument a SWPL asshole would make.

[SugarFree]

so turn the vote on its head: CA votes to sanction same-sex marriage. Still unconstitutional?

I've already answered that. Using an equal protection argument, who is not being equally protected if gays are allowed to marry?

And if you same oppo-sex couples, what do they need to be protected from? Keeping in mind, I can't ban your speech just because I think it somehow interferes with mine...

[John]

who is not being equally protected if gays are allowed to marry?

Polygamists and people who want to marry their relatives.

[SugarFree]

That's only an argument to let polys and cousins marry, not a reason to keep gays from marrying.

[wareagle]

but the argument is just as valid as the one favoring same sex. If a state decides that a marriage is defined solely by those taking part in it, great, let the state do that. But not expecting further challenges is like believing the crackdown on tobacco years ago would not spread to other products govt deems harmful.

[Pip]

We aren't free until three gay siblings can marry each other!

[o3]

+5 eyeballs pip!...or well-done cousin it !

[Audrey the Liberal]

I think polygamy should be legal.

[Pro Libertate]

I think the government could come up with an argument for anti-consanguinity laws, at least for close relatives. After that, the sky is the limit.

[Joshua]

Sanctioning same-sexers would not violate equal protection by any stretch of the imagination.

[MJ]

The constitutional amendment to CA's constitution overturned a court ruling. The progressives in the judiciary are determined by hook or by crook to get homosexual marriage established as a right and they were offended that the electorate overturned them. They would not put aside constitutional amendment that came to the correct conclusion.

[Applederry]

I haven't attempted to slog through the 133 page opinion, but I'm pretty sure that their decision wasn't based on the fact that it was a referendum, rather than the legislature. Rather, it seems based on the equal protections clause of the constitution.

[AlmightyJB]

OT: Free Willy

http://www.sacbee.com/2012/02/.....uture.html

[rather]

I hope the case proceeds; I can't wait for the amicus curiae from the Feds

[Res Publica Americana]

Dumb shit is everywhere nowadays

[cynical]

Awesome, now black people can hate PETA as much as Jewish people.

[Black People]

We still hate Jewish people more.

[Jews]

We're number one!
We're number one!

[Pip]

This is funny because I just read a comment somewhere this morning that said black folk were brought to this country as farm animals.

[wylie]

The architects of Prop. 8 have vowed to appeal.

heh.

[Rev. Blue Moon]

This is an issue that should be left to the states.

[Abdul]

Unless the state puts the issue up to a popular vote, and 2 of 3 federal judges find that the voters had improper motives.

[Fluffy]

Actually, I think 14th amendment protections should be even stronger than that.

The "rational basis" exclusion is an attempt to give states a workaround that lets them evade their equal protection responsibilities.

This appeals court is saying, "Even with the gigantic workaround we gave you dumbasses to help you evade the 14th amendment, you still fucked this case up."

[Tonio]

Uh, no Abby, just no. Your side lost. Suck it up.

[wareagle]

tonio,
actually, your side lost just as it has every time such a public vote has been held. Most of us hear could care less if gay people marry, but we like to believe that the process of decision-making is binding and not subject to the whims of which side happens to have a court majority at the time.

Some state legs have approved same sex marriage. Frankly, that is the way ALL should go, in part because running for office means being willing to make tough decisions rather than farming them out to the public.

[Tonio]

Again, no. See my 1:43 above.

[Tonio]

And the rights of hated minorities have always done poorly in referenda. Rights are not negotiable or subject to the whim of the people.

[wareagle]

you are blinded by bullshit like "hated minorities" to see that, once again, the ball rolls down the slope. Besides, there is no 'right' to marriage; this is a privilege being extended in some jurisdictions.

Your 1:43 makes an assumption that the court may not be implying. 30 states have had similar votes; no doubt, one will eventually have a vote that turns out the other way. This ruling makes all of them, regardless of outcome, questionable.

[Tonio]

No, it's not bullshit that gays are a hated minority. Your entitled to your reality-free belief system, but I have no interest in debating a lunatic.

[Abdul]

That's where you're wrong. Federal judges are people.

[Abdul]

That last on was for Toino, BTW, not wareagle.

[Tonio]

The "forcing churches to marry" argument is such bullshit. Get back to me when this actually happens. Actually. Happens.

The government will marry anyone legally entitled to do so.

[Seer]

So I read the first couple pages of the decision, and it says that all prop 8 did was forbid gays from using the designation of "marriage" while still allowing California statutory law to grant them all the same privileges. Isn't that close to the libertarian view of marriage? Let the people call it what they want and to hell with government designation of marriage?

[robc]

This libertarian is opposed to any government designation at all. Marriage, civil union, whatever, all are verboten.

[R C Dean]

"Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California," the court said.

And polygamists! Don't forget the polygamists!

If the anti-gay-marriage people were smart, they'd be filing court challenges to bigamy and other anti-polygamy laws.

I want to see a court say that denying marriage to two gay guys who want to marry each other is unconstitutional, but denyong marriage to three gay guys who want to marry each other is perfectly fine.

[wareagle]

bingo....we've categorized marriage as resting on three principles: two people of opposite sex who are unrelated. If one of the three is null and void, how about the other two?

[Thom]

Only weirdos care about who is marrying who. If more than two people want to get married and that makes them happy, then who cares? Same goes for cousins, etc. People need to learn to mind their own business and just let other people get on with their lives.

[wareagle]

and plenty of folks here are raising those very questions. Hard to mind your own business when govt keeps wanting to dictate what you can and cannot do. And by your definition, weirdos would encompass damn near everyone on both sides of SSM.

[Thom]

Not at all. Pro gay marriage people aren't getting their undies in a bunch about the private lives of straight people, whereas the homophobic crowd tends to get overly obsessed with the details.

[John]

Yup. That is exactly the problem. And how long before Obama tells churches that they have to provide insurance to same sex partners and must marry gay couples?

This thing has nothing to do with marriage. It is about making it illegal to object to homosexuality.

[Gojira]

That's ridiculous. It's like arguing against equal rights for blacks because you think they secretly just want affirmative action, so better to keep them discriminated against so as not to open that can of worms.

If anyone tries to force churches or opposed groups to marry gays or provide them insurance or whatever, I'll oppose that when it actually happens and isn't just a fear that conservatives have. That does not preclude advocating for the equal treatment of any kind of marriage, including polygamous, where all the parties are willing participants.

[John]

Jim,

It is already happening with birth control. And when it does happen it will be too late then. Thank for your opposition, but I am afraid your piss in the wind will be a little too little and too late.

And there is a way to give people gay marriage. It is called winning an election. When that happens, you do it in such a way that you preserve the electorate's right to define marriage and avoid all of this.

We are witnessing the end of religious freedom in this country.

[Gojira]

And I'll whine bitch and moan about it online like I do everything else, and harrass my elected representatives accordingly. Of course the Catholics shouldn't have to provide birth control if they don't want to.

But the answer isn't to ban all birth control because you're afraid that Catholics might be forced to provide it, which is essentially what you're talking about doing with gay marriage.

[John]

No. The answer is to take the power of defining marriage out of the hands of the court, so it is never an issue.

This is a total overreach of federal power. But you guys love it and will suck that federal cock because they are giving you what you want. And that is very short sighted.

[Audrey the Liberal]

But the answer isn't to ban all birth control because you're afraid that Catholics might be forced to provide it, which is essentially what you're talking about doing with gay marriage.

This is John we're talking about. How do you know he doesn't want to ban birth control?

[Gojira]

When that happens, you do it in such a way that you preserve the electorate's right to define marriage...

And, btw, I completely disagree that the electorate has any right to define any marriage that they are not a direct party to whatsoever. I'm curious why you believe that a tyranny of the majority is acceptable in this situation.

[John]

You can get married however you want. But if you want to expect the law and the courts to recognize your union, then you have to play by its rules.

You can go marry a fucking water buffalo for all I care. But if you expect me to pay taxes to run courts to settle your dispute when the water buffalo leaves you, then I am going to, via the elective government, going to have a say in things.

Nothing prevents anyone from getting married, whatever that means. This is about getting the protections of the state.

[Gojira]

Real limited gov't there, John. Using a shitty situation as it exists (tax-funded courts) to justify your right to tell other people what they may or may not do with themselves.

You're no different than a nanny-stater using the excuse of medicare to claim they have a right to force you to eat healthy.

Your taxes fund the courts, true...but that still doesn't give you the moral right to determine freedoms for other people.

[Fluffy]

You dope, you could say that about anyone who signs any contract whatsoever.

That means I could pass a law denying Jews access to civil court and then just shrug my shoulders and say, "I'm not denying you the right to sign a contract, but if you want me to pay for a court system to enforce your contracts, sorry, I get a voice in how that's going to be run, and right now my voice is saying no Jews."

[Gojira]

^^ excellent point Fluffy

[John]

Not really Jim. I think Tarran put lie to the entire thing.

[Gojira]

No he doesn't, he essentially agrees with the point Fluffy made, only he limited it to marriage, whereas Fluffy was saying, why can't your logic be extended to include any group you don't happen to like?

[John]

They couldn't extend it to the classes that were protected by the amendment. The amendment was designed to protect people by race and religion not sexual orientation.

That doesn't mean states have reject gay marriage. It just means they can do as they choose. If you want a right to gay marriage, change the constitution.

[tarran]

He's not being a dope. Speaking descriptively and not normatively, that is precisely what has been happening with immigration law (It's actually one of Tulpa's favorite arguments).

I don't think it should be this way, but the way the system is set up, states have wide latitude in deciding what constitutes a marriage and what doesn't.

The people arguing that "it's unconstitutional" are substituting wishful thinking for legal theory.

Yes, states should not be making this decisisions (putting on the normative hat). But if one believes the legal framework which claims that state governments are legitimate enforcers of the public will and thus possess manifold powers to regulate institutions like marriage, then one has to accept that the states have the power to pass laws that ban particular genders from getting married (and yes, that means Loving was wrongly decided even if it was an awesome outcome from a libertarian stand-point)

[John]

Thank you Tarran. That is a great post.

[Gus]

WOMAN MARRIES BUILDING

http://weeklyworldnews.com/hea.....-building/

[Audrey the Liberal]

I'm curious why you believe that a tyranny of the majority is acceptable in this situation.

Because teh ghey is icky.

[robc]

How is this any different than catholic organizations being required to provide health insurance that covers birth control?

Its the same principle.

[wareagle]

goj,
they are ALREADY being forced to do things that run counter to church doctrine. Funny how liberals trot out the "separation" argument when someone says a prayer before graduation, but has no issue with it on far larger issues.

Plenty of public institutions and a good many private ones have been forced or coerced into providing benefits for partners. That should be up to the company...if I have quality workers, damn right I will give them incentive to stay but the decision should be mine, not imposed from above.

Keep in mind this is the same POTUS who believes that jesus would favor using the power of hte state to take money from folks who happen to earn more.

[Gojira]

And I'm totally against that.

But the issue is, "will churches be forced to marry gay people", and I don't think they will, any more than any church right now is forced to marry a straight couple. Churches refuse to marry people all the fucking time if they don't go through that church's mandatory counseling, or what have you. So I fail to see how this is any different.

And again, you can't use the fear of what might happen in the future to justify denying freedom now. By that logic, if you want to reductio it, we should all just be slaves for fear that if we're given freedom we might also demand gov't benes.

[wareagle]

if churches can be forced to provide services that run counter to their dogma - as with the catholics and birth control - it is not illogical to see them being forced to sanction SSMs.

If it was all about freedom, marriage would be treated like a true contract, complete with a clause for either renewal or termination and attendant protections for both parties. Once the state gets involved in something, the one undeniable truth is that it will seek to expand that power.

[Tonio]

must marry gay couples

Get back to me when that actually happens, John. And do try to keep from hyperventilating in the meantime.

[John]

Why wouldn't it happen? They are forcing the Catholic Church to pay for birth control aren't they? I bet if you would have told me the same thing about that as little as a year ago. And yet here we are.

And when it does happen, I doubt Libertarians will do much about it.

[robc]

I bet if you would have told me the same thing about that as little as a year ago.

Eh, not really. Over a decade ago a friend of mine started working for a catholic charity and whined because her insurance didnt cover the pill.

So for it to expand from individual whining to government action didnt surprise me in the least.

But Im a cynic.

[Eduard van Haalen]

+ chi rho

[Zeb]

Are churches forced to marry any straight couple that comes to them now?

In any case, the fact that people want to make some stupid laws to go along with a good one doesn't detract from the goodness of the good one.

[robc]

No, but the state forbids the church from being a partner in the marriage contract.

The church has no say in whether or not the state grants a divorce.

[nicole]

No, but the state forbids the church from being a partner in the marriage contract.

Do you think this is really the case, or that the key is there are two contracts? The Catholic Church can't prevent the state from granting you a divorce (from the state's version of the contract), but they can refuse to recognize that divorce (because, from the perspective of the Church's version of the contract, it hasn't happened). And this is why you have to have your marriage annulled if you are Catholic and want to re-marry in the Church...

[Tonio]

Are churches forced to marry any straight couple that comes to them now?

No.

The only marriage-services provider that can't turn people away is the government. And legally, you're married when the license is issued by the govt; the church service is not legally binding.

[Tonio]

As I said, John, get back to me when this actually happens. Actually. Happens.

[John]

I will do that. And since libertarians are totally willing to sell out any of their previous views of constitutional interpretation so they can have their gay marriage pony, I am sure they will have lots of credibility objecting to it.

Fuck it, I guess religious freedom isn't that important of a right.

[Tonio]

It is, John, because FoR is ultimately freedom of belief.

But that doesn't mean that the religious have special rights, or can deny rights to others because the exercise of those rights cause the religious to feel othered.

[John]

If you can't object to homosexuality, you cannot be a Christian or a Muslim or a Jew, period, end of story. If you think that effectively banning the practice of those religions is consistent with religious freedom, you have a curious view of religious freedom.

[Tonio]

Uh, no, John. Too much crazy. Take your meds.

[John]

There is nothing crazy about it all Tonio. You just don't like it. Too fucking bad. The fact is freedom means the freedom of other people to do shit that you may not like. Sorry you are not okay with that and want to use state power to prevent it.

[Gojira]

Sorry you are not okay with that and want to use state power to prevent it.

The irony...it burns!

[John]

That is not the way it works and you know it Jim. Once homosexuals are married, churches will have to treat homosexual partners just like they do other married couples. If they have a couples retreat, they will have to let gays come. If they don't they will be liable to suit.

If we lived in libertarian land, it wouldn't be a problem. But we don't and you know it. And the people who are pushing gay marriage want to do just that.

[John]

That is not the way it works and you know it Jim. Once homosexuals are married, churches will have to treat homosexual partners just like they do other married couples. If they have a couples retreat, they will have to let gays come. If they don't they will be liable to suit.

If we lived in libertarian land, it wouldn't be a problem. But we don't and you know it. And the people who are pushing gay marriage want to do just that.

[Gojira]

Object to it all you want. Preach against it, refuse to practice it, etc.

Your freedom to exercise your religion does not give you the right to deny equality under law to others.

If your religion requires you to treat certain groups as legally inferior to others, and that the law shouldn't prevent you from doing so because it would be "interfering with your religion", then gratz, you're making the argument for Muslim sharia law.

[Gus]

I look forward to the law that says Muslims have to ordain gay imams.

Or the one that demands that an Islamic charity can't fire it's CEO once they learn he is gay.

[Pip]

Anger in Holland over 'apartheid' Islamic hospital

Plans for a Muslim-only hospital in Holland have sparked a heated debate over its separate all-male and all-female wings, halal food and roster of duty imams.

A populist Right-wing party described the plan for the clinic in south Rotterdam as "a step backwards to the Middle Ages".

There will be segregation between the sexes, with male patients treated by an exclusively male nursing and medical staff and similar arrangements for females.

http://www.telegraph.co.uk/new.....pital.html

[wareagle]

jesus tonio,
the state believes it can regulate sugar and salt; did you ever think THAT day would come? Please.

[Tonio]

Thanks for sharing.

[Fluffy]

Maybe not, but the fact will remain that it will be the law that forces churches to marry gay couples that is at fault, and not a law allowing gay couples to marry.

Nothing can change that fact and it doesn't really marry what the consequences are.

If you told me that if we enforced the 14th amendment, space aliens who hate equal protection would come down and exterminate us all, I would tell you to get ready to fucking die.

[John]

But why do you think the 144th Amendment means the right to marry whomever you want? The people who wrote it didn't mean it that way? They didn't think they were legalizing polygamy and gay marriage.

That is the thing fluffy. You think it is okay to invent this right that doesn't exist in the Constitution because you are down with gay marriage. It is a good right and not a bad right. Well that is great, but if you can invent gay marriage as a right, then other people can do the same thing. And you have absolutely no standing to object.

A lot liberals will tell you that equal protection means equal access, as in equal access to housing and education and so forth. If you think it means the right to gay marriage, something that is not in the document and never intended to be there, then who are you to say they are wrong?

You can believe that if you want. But never get on here again and claim that you are in anyway for a limited Constitution because you clearly are not.

[Pro Libertate]

The 144th Amendment? That explains a lot, because my copy of the Constitution makes no sense these days.

[Pro Libertate]

When this whole business first started, there were a lot of people laughing at the idea of a slippery slope, mostly because they didn't want that argument to affect the move towards recognized gay marriages. But it's going to be extremely hard to deny polygamy its legal due after these decisions have come down.

[tarran]

But it's going to be extremely hard to deny polygamy its legal due after these decisions have come down.

And that's a good thing. Legalize polyandry, polygyny, monogamy, line marriages, etc. Whatever makes people find happiness!

[John]

I don't see how not. And when the public goes into revolt over that, it will be the end of state sanctioned marriage.

Some would say that is a good. And maybe it is. But the people who are saying court mandated gay marriage doesn't mean court mandated polygamy are not being honest.

[Gojira]

Why shouldn't it be? I always thought the "oh we just want gay rights, not polyamorous rights" was a bad line of reasoning. Anyone should be free to marry whoever, or how many ever, other people who willing agree to the arrangement.

[Pro Libertate]

I'm not necessarily objecting to what's going to happen, just pointing out that it's going to happen.

Marriage, of course, should be a private agreement between (or among, I guess) consenting adults. Government recognition is one thing, but government regulation should be right out.

[robc]

Government recognition is one thing, but government regulation should be right out.

Recognition shouldnt be any larger than any other recognition of contracts.

[robc]

20 years ago, I realized the solution. No one listened to me in the early 90s, or late 90s or early 00s or late 00s.

At least in the early 10s some people seem to agree to me that separation of marriage and state is a good idea.

[Gojira]

No, you're absolutely correct. As much as I support equal rights for all voluntary marriages, by far the best solution, and the most practical, is to get the state out of it entirely.

[robc]

I think marriage licensing of heterosexuals is a violation of the first amendment.

"civil unions" wouldnt be, but thats a case of just because its constitutional doesnt make it a good idea.

[robc]

Also, no-default divorce is a violation of about 30000 different rights, including the right to contract.

[Pro Libertate]

Bitch breached my contract. Bitch must pay.

[SugarFree]

Also, no-default divorce is a violation of about 30000 different rights, including the right to contract.

If people were truly free to sign whatever marriage contract they wanted, I'd agree with you. But you sign the marriage contract the state allows you to have. "Sign this or we don't consider you married," is not freedom to contract and more that "Join the union or it won't let you work here" is the right to work.

[robc]

If people were truly free to sign whatever marriage contract they wanted, I'd agree with you.

That is my point. They dont allow you to sign whatever you want.

But you sign the marriage contract the state allows you to have.

Hence (one of) my objection to state marriage in general.

[SugarFree]

Hence (one of) my objection to state marriage in general.

But, in the context that we currently have, how is a state offering you a no-fault divorce marriage contract any worse than them offering any other type of fault divorce contract?

[robc]

Well, option A would be the state not being involved at all.

Baring that, the next best would be the state allowing multi marriage contracts, some no-fault, some fault.

If the option is no-fault vs single-state-defined-fault, its a tossup, they both suck.

Even just two options fault and no-fault would be better than now.

[Pip]

There is no such thing as no-fault divorce. It's your fault that you were dumb enough to marry the bitch.

[robc]

Also, Im not arguing from current context.

Im taking a step back and starting from scratch. If I have my way, lots of laws would have to be changed (anything related to marriage anywhere on the books), but Im okay with that.

Hail Eris!

[SugarFree]

Im taking a step back and starting from scratch.

I know that. But you still made an argument about no-fault divorces. What is your problem with them as they currently exist?

[robc]

That they are a violation of the right to contract.

If I want to enter into a fault-based divorce contract, I should be allowed.

Not only that, if I choose to get married in a church, said religous organization may wish to require certain terms in the contract (like their approval for a divorce). The state rejects that via no-fault laws.

[robc]

Also, as ProLib put it: Bitch must pay.

[SugarFree]

Not only that, if I choose to get married in a church, said religous organization may wish to require certain terms in the contract (like their approval for a divorce). The state rejects that via no-fault laws.

I fully agree you should be able to sign whatever you want. But religions didn't really kick and scream against state recognition of marriage, they seem to suckle the government teat just fine until the milk went sour.

Getting rid of government marriage is the solution to to it all, of course. Return it to religion, and have civil contracts for inheritance and custody of minor children.

[robc]

But religions didn't really kick and scream against state recognition of marriage, they seem to suckle the government teat just fine until the milk went sour.

That doesnt matter, as true as it may be. So fucking what?

[SugarFree]

So fucking what?

Just conversating. Geez.

[Gojira]

Again, completely agreed.

[Gojira]

With robc, that is. Sorry, those other two inconsiderate assholes hadn't posted yet the last time I had refreshed.

I lloooovvee sugar and am going to go eat some now, because I'm not a cripple gimp with a disorder.

[robc]

If reason would give us reasonable indention levels this wouldnt happen.

For example, on edsbs.com you have to go about 20 or 30 indent levels deep before it stops indenting.

[anon]

but... but... TEH GAYZ!

[Zeb]

I agree. But as long as there is state sanctioned marriage, it should follow what people are doing, not what other people think people should be doing. IOW, I think that state recognition of marriage, if it is to exist, should exist because people get married, not because the state thinks that people should get married.

[SugarFree]

^this^

The state rationalizing the power that it shouldn't have is not a convincing argument.

[Thom]

Not necessarily. Being gay, being black, etc, these are things that are just part of how you are, beyond your control, that have been used to discriminate against people who want to marry in the past. Is being polygamous just part of a person's makeup? Are you born that way? I think most people would say no.

[Girl Scouts USA]

"Many people think marriage is just about vaginal or anal intercourse. But there are lots of different ways to have marriage and lots of different types of marriage. Marriage can include kissing, touching, licking, tickling, sucking and cuddling. Some people like to have aggressive Marriage , while others like to have soft marriaged and slow marriage with their partners. There is no right or wrong way to have marriage. Just have fun, explore and be yourself!"

[kinnath]

If we follow this path far enough, then corporations will be allowed to marry corporations! Oh my word!

[anon]

Tony would die of a stroke.

I'm ok with this.

[Kroneborge]

This is bad law whether or not you believe in the right for gay marriage. The writers of the 14th amednment (or any other part of the constituion) would definitely not have believed that it authorized a right to gay marriage.

Gay marriage has already been approved in a number of states without twisting the US consitution even further.

[Heroic Mulatto]

The writers of the 14th amednment (or any other part of the constituion) would definitely not have believed that it authorized a right to gay marriage.

Oh, really? 😉

[Abdul]

More like "Gaybraham" Lincoln, amirite?

[Pip]

This just reinforces the age old belief gays have that everyone is gay.

[Tonio]

The writers of the 14th amednment (or any other part of the constituion) would definitely not have believed that it authorized a right to gay marriage.

Ok, Crony, you got any actual linkage to anything any of the authors of the 14th said about homosexuality?

[wareagle]

tonio,
seems the question can be flipped and asked of you - do you have linkage to show where they would have supported your position? No; neither side does because teh Constitution is silent on the question of marriage.

[Tonio]

It can be, but you're the one who made the positive assertion. I asked for proof. You then attempted to change the subject.

[wareagle]

I didn't change anything...just asked that you subscribe to the same standard you demand of others. Just as crony is unlikely to find proof to back his statement, you are equally unlikely to find backing for yours.

[Tonio]

Don't have anything, then, eh?

[Tonio]

And I didn't expect to find any backing for mine, but I was pretty sure Crony wouldn't find any for his. And he was the one who made a positive assertion.

[John]

SEE?!!! SLIPPERY SLOAP!!!!11

[Thom]

It's not even relevant what they might said or believed. The writer's of the 1st Amendment didn't believe that it applied to slaves or Indians, and yet now we extend it to those people anyway.

[Tonio]

^This.

[thomas mc]

Anyone with a brain could see it was unconstitutional. And then you have the Conservatives, who have been on the wrong side of every equal rights movement in history.

[John]

Anyone with a brain could see it was unconstitutional.

So the entire judicial history of the United States which never conceived of this being a right was without a brain?

[tarran]

John, I think you and I should go on a quest to find that bit in the U.S. constitution that prohibits state regulation of marriage. Apparently we both somehow missed it. 😉

[robc]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

combined with

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[R C OWS]

The argument seems to depend on whether denying gay marriage (or polygamy) is an abridgement of the privileges and immunities of citizens of the United States.

Here's what wiki says about the federal law prohibiting polygamy:

In 1862, Congress issued the Morrill Anti-Bigamy Act which clarified that the practice of polygamy was illegal in all US territories. The LDS Church believed that their religiously-based practice of plural marriage was protected by the United States Constitution,[60] however, the unanimous 1878 Supreme Court decision Reynolds v. United States declared that polygamy was not protected by the Constitution, based on the longstanding legal principle that "laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."[61]

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

I haven't read the case, but it would be passing strange to argue that polygamy with a claim to 1A protection, may be outlawed, but gay marriage may not.

[R C Dean]

And . . . Joke Handle Syndrome strikes again!

[robc]

My argument has nothing to do with gay marriage at all.

Im claiming all state licensing of HETEROSEXUAL marriage is a violation of the 1st amendment (via the 14th).

From that point, it follows that the state cannot license gay marriage or polygamous marriage or any other kind either.

[tarran]

Unless you argue that those to ammendments + the 13th ammendment invalidate all state laws governing probate (NTTAWT for this libertarian extremist) you are going to have to come up with something more persuasive than that.

Don't get me wrong, I would love your argument to be adopted. But that argument requires Dredd Scott levels of rationalization to work.

The fact is that states have long had rules as to what consisted a valid marriage for probate purposes. Nothing in the above clauses effects that. Anyone can get married to a member of the opposite sex in accordance with state law - it's not a violation of due process or equal protection.

[John]

Libertarians are strict originalists except when it comes to getting their pony.

[Gojira]

Not necessarily. I'm not an originalist at all. I support the constitution when it promotes liberty, and I oppose it when it limits liberty. I attach no sacred meaning to the document itself.

[Cracker]

If they guys behind the 14th wanted to limit it to forcing god-fearing people to cope with having darkies next door, they could have done that.

But instead, they wrote a rule that says no state can deny any person within its jurisdiction the equal protection of the laws. It should have been apparent to everyone capable of 3rd grade readin 'n' writin that this would result in wide spread impact across all facets of public life.

[wef]

Untl gay polyandry is recognized by the state, this country will continue to be a hell hole of oppresion.

[John]

Very true.

[anon]

Yay! Gays can "enjoy" marriage!

Why is this still an issue?

[anon]

I fail to see how this state law is unconstitutional though. I don't remember anything in the constitution mentioning marriage.

[wareagle]

it's unconstitutional because a couple of judges who disagreed with the outcome of a public vote said so.

[Jim Crow]

Damn Right!

[Almanian]

Whatever

[Hitler Farts]

One day Hitler farted and dead babies fell out of his ass. He was like, wtf, where did these dead babies come from, and then Paris Hilton vagina. Also sodomy.

[Applederry]

Suddenly, concern trolls, concern trolls everywhere!

[Res Publica Americana]

http://www.youtube.com/watch?v.....ature=fvst

[Zeb]

While I like the result, this ruling seems like a stretch. And exactly what the "Oh no, activist judges" crowd needs to keep them going.

The only federal case I want to see regarding gay marriage is to overturn DOMA, which is much more plainly unconstitutional.

[John]

I would love to have one of the Paulites on here explain to me where in the Constitution it says that the federal courts, not the states, control the definition of what constitutes a marriage?

The same people who argue that Social Security is unconstitutional sit here with a straight face and think it is just great for the federal courts to govern something that has always been a state power.

And yeah, DOMA is unconstitutional. This is a state issue. The feds and the federal courts have no power over it.

[robc]

Im a Paulite and I think my position is clear all over this thread.

Did any of those answer your question? Personally, I dont understand the question.

[John]

You are reading something that just isn't there. There was no such thing as gay marriage when the 14th Amendment was written. How could it have possibly created a right to gay marriage? And if it didn't, then where does a federal court get off telling California what constitutes marriage? That is a straight up federalism limited federal power issue. DOMA is unconstitutional too. The feds should totally stay out of it.

You guys are all for originalism until it comes to getting your pony.

[robc]

???

Have you read my fucking posts?

[Res Publica Americana]

I like the guy, but he fucks up on the Constitution every other post, and he has a small group of a big-state Republican pet issues he completely fucks his own anti-authoritarian principles over.

[Eduard van Haalen]

What's wrong with DOMA? It reaffirms, for federal law, the traditional definition of marriage. It prescribed the "effect" in the states of SSMs recognized in one state - namely, no effect. It leaves states free to do all the SSM they want, but they can't export their SSM laws to other states, any more than non-SSM states can make other states ban SSM.

[John]

You site the P&I clause which last I looked was in the 14th Amendment. Again, what does that have to do with California's right to determine what marriage is? This case isn't about recognizing marriages from other states.

[Almanian]

John - "no true Scotsman...."

[robc]

1st amendment.

And state recognizing any marriage is a violation of the 1st amendment (states via the 14th) freedom of religion clause.

A state license (which allows the state to reject applicants) is a violation of Matthew 19:6.

So they are no longer two, but one. Therefore what God has joined together, let man not separate.

Licensing is a violation of my religous freedom rights.

[John]

That is batshit insane. No court in the history of the country and no drafter of the Constitution or any of its Amendments thought such a thing. That is just making shit up because you want the document to say that.

[robc]

It isnt remotely insane.

Matthew 19:6 is fucking clear to me.

And, in fact, for most of history, the state stayed out of the marriage business because they realized it was the church's business and not theirs.

[Brett L]

"And, in fact, for most of history, the state stayed out of the marriage business because they realized it was the church's business and not theirs."

I think you steal a base on this one. While true for the entire history of the USA, marriage wasn't a sacriment in the Christian church until the Renaissance, although it was an Italian tradition to have the signing of marriage contracts done on the steps of the Church to display the seriousness with which both families took the contract. Now, once the marriage sacriment was introduced, I agree, there is no way for to square the 1st Amendment, incorporated by the 14th, with failing to recognize any marriage which a clergyman of any religion nominally affiliated with Christianity (or any other religion that recognizes marriage as a part of their religion) performs.

[robc]

That is just making shit up because you want the document to say that.

Bullshit.

Let me walk you thru it:

1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

2. That only applied to the Feds until the 14th, but the 1st amendment has been incorporated to the states.

3. My free exercise of religion requires me to follow Matthew 19:6 -- which makes it clear that God and not man detemines who is married.

4. A marriage license is, be defintion, man determining who can be married.

QED bitches.

[Tonio]

So, you're asserting that because YOUR religious beliefs require you to abstain from something, that nobody can engage in that without violating your rights?

[robc]

So, you're asserting that because YOUR religious beliefs require you to abstain from something, that nobody can engage in that without violating your rights?

That isnt even remotely what I said.

Im saying the state has no power to license a religious act.

Anyone can still get married, just not by the state. No one is prevented from engaging in it.

[Cracker]

What is it about this topic that makes you so fucking crazy John?

The 14th exists now. So it can prevent states from passing laws now that deny a group of persons within their jurisidiction equal protection of the laws now.

[John]

But for the entire history of the amendment people couldn't marry the same sex and no one ever considered it a violation of equal protection. And the people who wrote the amendment never intended it to be.

You want gay marriage, amend the constitution and instead of inventing something that is not there.

[Fluffy]

There's no way anyone could have thought in advance of every possible application of the equal protection clause.

Every single novel case brought under it would be something that was unlitigated "for the entire history of the amendment".

The words say what they say.

[John]

Yeah, fluffy, tell me more about these new rights. Why aren't the liberals right when they claim the document gives rights they like?

[Gojira]

It doesn't matter what they intended, what matters is what it says.

[John]

Okay Jim. I know a lot of liberals who think it says a few things. Who are you to say they are wrong now? Since intent and history mean nothing?

[Gojira]

That's why we have judges. Since they weren't gods, I'm sure there's a lot of things they didn't forsee. That doesn't mean the words don't apply.

[John]

Yeah Top men there Jim. Lets just put our freedom in the hands of top men as judges and hope they won't abuse it.

[kinnath]

As an engineer, I could put together a relatively straightforward computer-based decision tool that would determine if a law was or was not consititutional. I suspect that the tool would reject a great number of Supreme Court rulings on a wide variety of topics (commerce clause anyone?).

The 14th ammendment was extremely far reaching, and the Supremes almost immediately started gutting it of much of its real power.

It does not surprise me that it took a 150 years for the political environment to change enough for some rational people to look at the 14th and say, "well yeah, the 14th says states can't discriminate in their laws on who get the priviledges and benefits of the marriage contract".

So in effect, the 14th made gay marriage legal, and plural marriage legal, and sibling marriage legal, and so forth the moment it was ratified. It just takes laywers a little bit longer than computers to calculate the correct answer.

[Tonio]

It's the "gay" part. John is a bitter old man.

[John]

Fuckoff Tonio. I may be gay for all you know. Make an argument and stop assuming everyone's bad intentions.

[Tonio]

I've made any number of actual arguments John. When you descended into irrational blather which can't be argued is when I quit.

[John]

You haven't made any arguments other than to say that because I think it is a really bad idea for federal courts to invent rights and take away the power of the states to govern marriages is a really bad idea that will effects libertarians won't like means I must hate the gays.

That is about all you have said.

[Rev. Blue Moon]

I am pro-gay-marriage, but I am primarily a federalist first. Marriage is the traditional province of the states, and therefore should have been left to the states.

While it may not be libertarian for a particular state to treat certain citizens differently, that particular localized injustice is not a reason to toss out an entire system that had, until the 1940s, been pretty effective at (a) actualizing the "laboratories of democracies" model and (b) keeping the national government in check.

In short: more liberty arises out of better processes and institutional methods, not at the whims of any individual, be he President or judge. John is right here, and he is invoking an Iron Law: Me Today; You Tomorrow. The statists will seize upon this usurpation of power by the court to cram down a whole series of initiatives that you guys don't want.

[kinnath]

Setting aside the ick factor for a while.

We have a case in Florida where a 49-year-old man has "adopted" his 42-year-old female lover so that she can now control 1/3rd of the trust that he set up for his two natural children. This is a clear and blatant case of rule-playing to ensure that the old dude has access to a piece of his fortune that is protected from the civil suit resulting from a fatal drunk-driving accident.

How is this in the slightest bit different than the old dude "marrying" a 42-year-old male lover to get spousal priviledge.

If the state is going to write rules that provide privileges, benefits, or other incentives to people that get married, then the state cannot discriminate between which classes of people are allowed to get married.

Now the obvious answer is to strip out all the rules that give any privileges, benefits, or incentives to people that get married.

But that task is many orders of magnitude more difficult than to just stop discriminating.

Oh, and marriage is not special. Rules is rules.

[Res Publica Americana]

I don't give two shits about whether it's been or is a state or federal power, precisely because it's wholly unjustifiable for government of any sort to define and determine marriage.

[John]

So you don't give a shit about the rule of law or anything else. It is okay to totally fuck over the Constitution and let the federal courts overreach their power as long as you get what you want.

Good to know. And I am sure no one else will abuse that precedent or anything because you are special.

You guys are frauds. You don't believe in limited federal powers at all. You believe in getting what you want. That is great, but don't bitch when other people who want shit you don't like so much have the same attitude.

[Heroic Mulatto]

You don't believe in limited federal powers at all.

So believing that what constitutes a "marriage" should be determined by the people actually in the relationship is more overreaching than believing the status of a relationship should be determined by the populous of a state?

Is it backwards day in Johnville or something?

[John]

No. Believing that there is a right in the constitution that was never contemplated by the drafters and has historically been left to the states means you don't believe in a limited constitution.

And further, thinking that there is not a federal right to gay marriage is different than thinking that gay marriage is a bad idea. You know that.

The bottomline is you guys will suck the federal cock in a heartbeat if you think it will give you what you want. Fine, but don't bitch when liberals do the same.

[Heroic Mulatto]

No. Believing that there is a right in the constitution that was never contemplated by the drafters and has historically been left to the states means you don't believe in a limited constitution.

Take a breath and re-read what Res Publica Americana wrote. He's arguing something completely different.

[John]

I am giving him too much credit. He is even worst. He thinks that since the government shouldn't be involved in marriage, who cares if we fuck the constitution to create gay marriage.

[Almanian]

But, but....CHAOS!!!!!!!!!11!!

I agree w/RPA

[John]

Fine. Have fun torturing the Constitution to create a right to gay marriage. And when liberals create a right to free health care and housing, good luck and telling them they are wrong.

If you can fuck the Constitution to get what you want, so can they.

[o3]

so ur saying marrage is a civil right?

[John]

No. they are.

[freddyb]

Several people here are asking why anyone would oppose gay marriage and I would like to shed some light on the issue. While I don't think it should be illegal it's just not going to work out because a guy is not going to keep his wife around for long if he's out chasing dudes. Just sayin'.

[Zeb]

Oh, how clever. Did you think that up all by yourself?

[freddyb]

Several people here are asking why anyone would oppose gay marriage and I would like to shed some light on the issue. While I don't think it should be illegal it's just not going to work out because a guy is not going to keep his wife around for long if he's out chasing dudes. Just sayin'.

[wareagle]

this did not make any more sense the second time you posted it. Thanks for playing.

[o3]

for most women fred, that aint an issue. fat married women best stay married to the one guy who'll male gaze them.

[freddyb]

It was a joke. You all need to lighten up.

[Tonio]

Freddy, you'd probably find a more receptive audience on the comments thread on Yahoo! news. Also, don't quit your day job.

[Eduard van Haalen]

The reasoning of the Court's 2-1 opinion is basically this: Even with Prop 8, same-sex couples could still register as "domestic partnerships" and get all the legal benefits of marriage. But they can't use the *word* marriage in official documents to describe their "partnership." The 2-1 majority says that this is irrational and oppressive, because by affording same-sex couples all the benefits of marriage, the state has *given up* any argument in favor of traditional marriage - it can't speak of preferring heterosexual reproduction, because you can get the benefits of marriage without being hetero or engaging in reproduction.

The lesson to other states is this: If you don't want to recognize gay marriage, don't start down the slippery slope by recognizing "domestic partnerships." The courts will say that recognizing such partnerships means surrendering your best arguments against SSM.

[R C Dean]

This just gets more and more interesting. The case upholding the federal law against polygamy is here:

http://caselaw.lp.findlaw.com/.....8/145.html

It went off as a strictly 1A case on this issue, with no discussion that I saw on 14A privileges and immunities/equal protection. The court's discussion of regulation of marriage is as follows:

Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of [98 U.S. 145, 166] the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

I'm curious, still, about which enumerated power the Congress exercised in enacting this law, but apparently that never came up.

[John]

Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of [98 U.S. 145, 166] the people, to a greater or less extent, rests.

That sentence affirms the idea that the legislature has the right to determine what is and is not a lawful marriage.

I think Eduard makes a great point above that California put themselves into a corner by allowing everything but the name. For that reason, this case could be limited to its rather unique facts.

[Eduard van Haalen]

And I suspect that when a "progressive" court considers a ban on SSM *and* domestic partnerships, the judges will say that it is excessive, cruel and extreme, why didn't they at least allow domestic partnerships, etc., etc.

In other words, it's the venerable legal principle of heads I win, tails you lose, neener neener neener.

[John]

Sadly true. And if courts can invent the right to gay marriage they will intent the right to a lot of other things. I am very disappointed that libertarians who claim to be such limited government believers would sign on to such a program.

But people are people.

[Eduard van Haalen]

But for those (not me) who take the 9th Circuit opinion seriously, it's useful to point out the slippery slope they've outlined.

The problem, of ocurse, is that (say) Californians try to adapt to the decision by abolishing "domestic partnerships," then the official line will be, "waah, they just out of left field are trying to take away our domestic partnerships, OMGextremistshatersnaibabykillers!!!"

[Applederry]

Once again, the courts did not invent a right here. California created that right and the courts said they can't restrict that right to certain people. Libertarians support an end to state-sanctioned marriage, but as long as it DOES exist, it must be non-discriminatory.

I don't know why you have such a hard time getting this.

[John]

I don't know why you have such a hard time understanding that states have been defining marriage by their own terms since before the 14th Amendment and at no time did the federal courts ever find that there was a right to gay marriage such that states had to extend it to gays.

You today, me tomorrow. You guys are selling your souls for this issue.

[Applederry]

No shit they did it before. Your argument basically boils down to "they've been doing wrong for a long time, so they can keep doing it, it's tradition!"

[Eduard van Haalen]

The California high court looked under the cushions and "discovered" that the state (not federal) constitution has a right to SSM. The voters used the initiative process to change the state Constitution so only an opposite-sex union can be marriage.

The 9th Circ. says that, under *federal* law, the state constitution of Calif is unconstitutional. Again, they looked under the cushions and discovered a right to SSM.

Unlike the lower court (which had a sweeping opinion) the 9th Cir. in theory gave a narrow decision. In theory the voters of Calif. can get around the decision by abolishing domestic partnerships.

But if the voters do that, the courts will discover something else under the sofa cushions to establish SSM again.

[Eduard van Haalen]

And technically, they limited their decision to where state law used to provide gay marriage and then state law got changed. So it technically doesn't apply to a state which never had SSM in the first place.

Again, I doubt this distinction will remain for long if the 9th Cir. gets its way.

[Applederry]

Was it federal law? Or constitutional law? The voters of California have no more right to violate the rights of others than the government. If the people of California passed an initiative to return blacks to 3/5 representation and the courts overturned it, would you claim they were inventing a right to representation?

Democracy does not equal right.

[Rev. Blue Moon]

That would be a plain violation of the 14th Amendment. The exact issue it was intended to address, in fact.

I do not think of this as the Federal Government "protecting rights"; I see this as the Federal Government overreaching and disrupting a very careful power dynamic we set up ("federalism") that, by process, yields more liberty than it curtails.

Arguing that we should toss out federalism because sometimes states violate what we think should be rights is like tossing out the entire judicial process because innocent people get convicted. The process is not 100% protective, but it's better than this catch-as-catch-can approach most are taking here.

[Applederry]

I agree with you about federalism. I think a lot of the intense polarization of politics today is because of a lack of respect for federalism and increased one size fits all government. However, for good or bad, the 14th amendment exists and trumps federalism in many cases.

[Tonio]

The courts looked at the gays and decided that they were human beings, deserving of equal protection. They also decided that the gays were born that way and had no choice about their affection for members of the same sex, thus rejecting beliefs about gays arising from primitive superstitions. The courts could find no justification from witholding from gays the same right of marriage which OS couples enjoy.

See, two can play the framing game.

[John]

So Tonio when the courts decide that other classes of people are worthy of protection, you are okay with that? The Courts can do whatever they want? Good luck

[o3]

ted olsen says civil rights, like marrage, are NOT subject to voting john. and until the govt REMOVES favored status from marrage, it is a civil right. after that tho, marrage would remain a common right.

[R C Dean]

ted olsen says civil rights, like marrage, are NOT subject to voting john.

A great example of assuming your conclusion.

[robc]

I think it proves my argument:

Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.However, we strike down this civil contract, as a violation of Amendment 1 and leave it as just its natural sacred obligation

I added the bolded part, which is where the rest of their argument should have gone. Of course, if they had done that, we would have polygamists running around claiming to be "married".

[.]

Justice is: everybody getting a pony, equally. Go liberty!

[Almanian]

So you support beastiality. Thanks for sharing.

[PR]

gay incestuous polygamy is the estate planning strategy of the future.

[A Serious Man]

Cohabitation and same legal rights for gay couples? Absolutely. Having the state call it marriage? Not so much. I wish a court opinion would make this distinction.

[A Serious Man]

Cohabitation and same legal rights for gay couples? Absolutely. Having the state call it marriage? Not so much. I wish a court opinion would make this distinction.

[robc]

You also are disappointed that Im even a bigger limited government believer.

So which is it?

[Friedrich Nietzsche]

The doctrine of equality! There exists no more poisonous poison: for it seems to be preached by justice itself, while it is the end of justice.

[Rev. Blue Moon]

The argument against polygamous marriage is a pretty strong one, in my opinion, one that is not relevant with a marriage between two people. To wit: (1) the inherent instability that accompanies the dissolution of property if one individual walks away from a group. That is, are you going to have to basically liquidate marital property every time to divide into "1/3 / 2/3"? (2) "ownership", for lack of a better term, of children within marriages. Should child-raising decisions be made by majority vote? and (3) End-of-life / medical decisions. Again, majority vote?

[robc]

1. That can all be handled via contract.

2. You didnt overcome the fundamental 1st amendment problem.

[Rev. Blue Moon]

Please outline the First Amendment problem.

[robc]

Its all over this thread.

[Rev. Blue Moon]

Fine: I don't think marriage licensing violates your First Amendment rights. The First Amendment protects your right to believe, not to act.

[robc]

You might want to think that thru.

So minors can be stopped from taking communion now? The 1A only protects their right to believe, not act.

Jews cant remove the star we force them to wear? After all, the 1A only protects their right to believe, not act.

[Rev. Blue Moon]

Someone can shoot heroin into his eyeballs, because that is a fundamental religious tenet?

I should phrase my statement more artfully: The First Amendment permits unlimited belief, but only limited action.

You just cannot have a civilization where an entire sector is above the law.

[robc]

Someone can shoot heroin into his eyeballs, because that is a fundamental religious tenet?

That doesnt require 1A. Thats covered by 9A.

[Rev. Blue Moon]

Not according to the commerce clause, it isn't.

Do you want to make an argument that's longer than a sentence now?

[robc]

Current commerce clause jurisprudence is bullshit. This is two sentences long.

[R C Dean]

You just cannot have a civilization where an entire sector is above the law.

I would like to agree, but I have to point out that is essentially the default position of most societies. Including, increasingly, our own.

[A Serious Man]

"My religion and my conscious permits polygamy, who the hell are you to deny me that?"

And anti-polygamy laws have a history in anti-Mormon bigotry.

[Rev. Blue Moon]

"My religion and my conscious permits polygamy human sacrifice, who the hell are you to deny me that?"

[robc]

As long as the human is yourself, go right ahead.

[o3]

no rev, that would be clear harm requiring remedy.

>how exactly does gay marrage HARM straight marrage requiring remedy?

>if the state incentivizes marrage, explain how exactly marrage is NOT a civil right?

>absent incentives, explain exactly how the common right to marrage is denied to gays.

be prepared to show ur work. begin

[John]

Those are good points. But I am sure the radical mormons have responses to that. But polygamy is generally a very bad idea.

[Eduard van Haalen]

A federal judge in Utah has allowed a poly-right suit to go forward:

http://religionclause.blogspot.....w-can.html

[R C Dean]

To wit: (1) the inherent instability that accompanies the dissolution of property if one individual walks away from a group.

There are centuries of partnership law that outline how to do this very thing. And I'm not sure why dividing by 3 is inherently more disruptive than dividing by two.

(2) "ownership", for lack of a better term, of children within marriages. Should child-raising decisions be made by majority vote?

Why is how child-raising decisions are made within a marriage any business of the state?

(3) End-of-life / medical decisions. Again, majority vote?

You can either (a) name one person (spouse or no) to be your medical decision-maker or do it by majority vote of your spouses, sure. Believe it or not, that's how its done now when your medical decision-maker(s) are your siblings or children.

I'm still not seeing a lay-down argument for banning polygamy.

[Rev. Blue Moon]

Partnership law is not marriage law. For example, do you need to file a document that states, in a marriage of four or five or whatever, that only Partner #1 and #2 can sign parental permission slips, pull the kid out of school, inoculate their child?

[robc]

There is no need for "marriage law". That is the problem. Get rid of it and let other forms of contracts take over.

[R C Dean]

Marriages are partnerships now, Rev. There is no problem inherent in a three-person partnership that does not exist in a two-person partnership.

I see no reason why the default rule for marriage (either spouse can sign, etc.) wouldn't apply to polygamist marriages (any spouse can sign, etc.).

[Tonio]

Great point, RC. I'm guessing that most polygamist marriages are patriarchal religious types (Mormons, Muslims, Jews*). They'd probably be ok with the (singular) husband having inherent PoA for the wives, but I'm not sure how they'd feel about any of the wives (or all of them) having PoA for the husband.

*Some ultra-orthodox Jews in the US practice polygamy, but they keep quiet about this.

[Brad]

I agree that the founders were clearly not thinking of a right to gay marriage when they wrote the constitution, nor could they have even forseen the debate about it. But many of them were not thinking of an equal right for black men to not be slaves when they wrote it either. Some anyway, not all, of course. Thus, if my memory is correct, I believe the founders also recognized that time and circumstances would change, and thus, some of our understandings of "rights" would change.

Normally, I hate that kind of sentiment because it gives liberals just cause to say that our interpretation of the first or second amendment has to evolve with the times, which is such bullshit.

But in this case, when the constitution is used to increase people's rights and not limit them due to 'evolving' times, I see no problem with it. Aside from the rational argument, which is that there is nothing wrong with gay marriage, the constitutional argument is a little more difficult. I doubt the founders thought that gay marriage was one of the unenumerated rights protected by the Ninth Amendment, but they said times would evolve, and this decision increases rights, not limits them. the bill of rights is still left intact, but we now have a broader catalog of rights to be included from the ninth. I have no problem with that.

[o3]

"Thus, if my memory is correct, I believe the founders also recognized that time and circumstances would change, and thus, some of our understandings of "rights" would change."
_

so it's ok to increase individual & corporate rights, but not society's thru health care?

[Ray]

The 'right' to healthcare is little more than slavery. You are saying that person a has the right to person b's time, money, and skills, regardless of person a's ability or desire to compensate person b. By doing this, person b loses his or her right to their own body.

[John]

Go Orin Go. If there is a "right to gay marriage", there are a lot of other rights in there too.

[John]

But in this case, when the constitution is used to increase people's rights and not limit them due to 'evolving' times, I see no problem with it.

You are kidding yourself Brad. Liberals would say that things like guaranteed welfare and restricting corporate right to free speech is increasing people's rights.

All you are really saying is "it is okay to invent things in the Constitution as long as our people are doing it."

[Tonio]

The ironic thing is that the non-poly religious type who have opposed SSM have basically opened the door for polygamy. Had they just STFU and minded their own business about SSM they wouldn't be facing the prospect of the courts declaring poly-marriage to also be a right.

[Words mean things]

Then all that remains are the all the other discriminations by the state in favor of selected interpersonal relationships.

I have yet to hear a SSM advocate explain why I, who have no blood relatives, should be forced to die alone in a hospital, away from my closest friends, just because I'm not "married".

[Ray]

Had a great argument with an uberlefty great friend of mine. She's so glad the government granted this 'right' to folks in Cal. I say the government can't grant rights only people have rights, and a right can't come at the expense of others, etc. She says, 'But the government IS people! It's an organization made up of people!" I say...here it comes...'So a corporation is people too, then, right?"
I swear I could hear the gears grinding and screeching in her head as it internally melt down.

[Tonio]

Good going, Ray.

[Elton John]

This is like the worst chat room ever.

[Anthony Weiner]

We could be so hot together.

[Ray]

How is marriage a right in any case? I always thought a right was something that just simply existed, and extended to everyone. Marriage as a right extends benefits to one group of people at the expense of others, ie, not everyone gets the same tax treatment and benefits that a married couple does.

[Tonio]

Ultimately, Ray, it's the right to enter into contracts, which derives from the right of self-ownership. Since the state has set itself up as the registrar and arbitrater of this particular area of contract law, it becomes an equal protection issue.

[John]

You can only make an equal protection claim if you are a protected class. Given that homosexuality was illegal at the time of the drafting of the 14th Amendment, just how are they a protected class?

[Words mean things]

it's the right to enter into contracts

Which you can already do. That's exactly what my father and his partner did starting in 1983.

[John]

It is not. This is all about equal protection. The government still makes distinctions even with gay marriage (no polygamy, no people under age getting married and so fourth)

When people say gay's have a right to marry, they are saying being gay is a protected class. The government discriminates against people all of the time. I can't take advantage of the ADA because I am not disabled. I can't get unemployment because I have a job and so fourth. I have no equal protection claim in those cases because having a job and being fully abled is not a protected class. If the government for example said I couldn't get unemployment because of my race or my religion, then I would have an equal protection claim since those classes are protected. This is why the government can say that only those who are residents for so long can get married (non-residents not a protected class) but can't say black people can't get married (race, a protected class).

So when courts say that marriage must include gay marriage, it is saying that being gay is a protected class. Now the question is why is it a protected class?

Understand this is different and a step further than saying we can't make homosexuality illegal. Those were privacy cases. Those don't protect your right to be gay as such, they protect your right to do what you want in your own home without the government coming in and arresting you for it. This is saying that being gay is like being black or Jewish and is a special distinction that the government cannot make decisions based upon.

So what makes being gay, as opposed to being a polygamist, a special protected class? Where does this idea come from? It certainly doesn't come from the history or intent of the drafters of the Constitution. Homosexuality was illegal up until just 40 years ago. It can't come from the text or the intent of the drafters. So it has to come from the outside. From society in some way changing its mind and deciding there is this new right. In other words, the living Constitution. That thing libertarians claim to hate in every other context.

There have been long threads where I have made a similar argument. The argument I make is that the people by electing people to Congress and the Presidency can at some level determine what the Constitution means over a long period of time. The robed overlords don't get the final vote in my view. The people do. And I am routinely lambasted for that.

But now we get to a good Libertarian pony like gay marriage. And my rather conservative view that if the voters overwhelmingly put a Congress in that decides to switch out the court they can, is out the window. Here the voters don't want gay marriage. But Libertarians are perfectly okay with unelected judges overriding election results and inventing a new protected class over the objection of the majority of the country.

Good luck with that as they say. It is terribly disappointing that the people on this board are willing to embrace methods of Constitutional interpretation that they would never accept in any other context.

[Tonio]

When people say gay's have a right to marry, they are saying being gay is a protected class.

No.

[John]

How are they not? You can only make an equal protection claim if you are a protected class. The states say that lots of people can't get married, minors and such. They don't get to make an equal protection claim.

If you are going to use the 14th Amendment, then understand what you are doing.

[heller]

John, what you just wrote is so retarded that replying to it seriously would make me retarded by association.

[Tonio]

Homosexuality was illegal up until just 40 years ago. It can't come from the text or the intent of the drafters. So it has to come from the outside. From society in some way changing its mind and deciding there is this new right.

No, again, John. Homosexuality has never been illegal here (1A, etc); homosexual acts were formely criminal in most jurisdictions. What the courts decided in Lawrence was that the prejudice against the homos was the result of irrational prejudice, that homos were not sick or aberrant.

This all came about because Justice Lewis Powell came to later regret his decision in Bowers v Hardwick.

[John]

"Homosexuality has never been illegal here (1A, etc); homosexual acts were formely criminal in most jurisdictions. "

Then gay marriage was necessarily illegal since there would be no legal way to consummate said marriage. And homosexuality was considered a mental disorder up until very recently.

There is just no way you can argue that the writers of the Constitution or the 14th Amendment ever intended homosexuality to be a protected class entitled to anything beyond cursory equal protection.

[Tonio]

I don't want anything other than equal protection.

[John]

So do people who want to get married when they are 12. So do I when I ask for unemployment benefits even though I have a job.

But guess what, the state gets to discriminate against me and them as long as the decision is rationally related to some end. You don't get to hold the government to a higher level of scrutiny unless you are in a protected class.

And that of course brings up back to the question, why are gays a protected class? And if the court can make them a protected class, then what is to stop them from deciding anything they want?

[what your words really say]

I don't want anything other than equal protection privilege. Instead of pushing for the removal of privilege, I seek to make myself more equal too.

[John]

"What the courts decided in Lawrence was that the prejudice against the homos was the result of irrational prejudice, that homos were not sick or aberrant."

But saying the state cannot ban something is completely different than saying that activity is subject to special status under the equal protection clause. The state cannot make it criminal to work. But being employed is not a protected class under equal protection.

The cases deal with two different things.

[Tonio]

And I wish you the best with learning to live with your disappointment, John.

Perhaps a meditation on the plight of generations of Americans denied basic rights will put this in perspective for you.

[John]

So in other words you have no response. That is fine. If you want to embrace the living constitution and think it is perfectly okay for judges to create protected classes at their will, fine. That is your right. But in doing that you lose the right to complain when liberals or conservatives or anyone else wants the courts to do the same thing. If it is a living Constitution, it is just that, living. And no one ever said Libertarians have exclusive rights over how it lives.

I think you are playing with fire here and selling out your principles over the fucking KULTURE war.

[Tonio]

I have a response, John. [raises middle finger]

It's not that the law changed, it's that reality changed. The reality that homos existed, and were born that way. No living constitution required.

The same way that laws against witchcraft are still on the books, but nobody wants to enforce them for fear of being an obvious idiot.

[John]

Then repeal the laws. I have no problem with gay marriage. But I have a real problem with judges putting shit in the Constitution that is not there. Homosexual acts were illegal for most of this country's history. The Constitution therefore didn't protect homosexuals. That is reality. No one ever said it was a perfect document. And the way to fix it is by amending it, not just pretending it says something it didn't.

[John]

And all of these arguments you are making can be made by liberals to support things like welfare and social security and the surveillance state. Sure the TSA wasn't contemplated by the Constitution or the commerce clause, but damn it reality changed. We need to protect ourselves. The Constitution is not a suicide pact.

You see what I mean?

[Words mean things]

In related news, the Court overturned the ban on billionaires collecting food stamps.