And There Goes Texas – Lone Star Gays Win Round in Marriage Fight

Federal judge rules recognition ban unconstitutional

marsmet53 / Foter / CC BY-NC-SA

There's no point in saying, "Really, a win in Texas?" when federal judges have ruled for gay marriage recognition in Utah, Oklahoma and Virginia so far. But, yes, a federal judge just ruled that the ban on gay marriage recognition in Texas is unconstitutional.

Judge Orlando Garcia writes:

The issue before this court is whether Texas' current definition of marriage is permissible under the United States Constitution. After careful consideration, and applying the law as it must, the Court holds that Texas' prohibition on same-sex marriage conflicts with the United States Constitution's  guarantee of equal protection and due process. Texas' current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants from enforcing Texas' ban on same-sex marriage.

The ruling, though, has been stayed for appeal as it was in Oklahoma and Virginia and eventually in Utah.  The full ruling can be read here (pdf).

Anybody care to wager whether the Supreme Court will be hearing one of these cases by next year?

Comments

[Another David]

It'll be interesting to see what the justices do if all of these (or none of them!) get upheld. No circuit split, no problem?

[Dances-with-Trolls]

It's drugz and gheys all the way down today.

[Tonio]

I'm going to make some popcorn.

[Tonio]

Oh, and Shackford, you are forever my hero for the illo and the alt-text.

[Almanian!]

I just like the picture and the Alt Text. I've given up on "rulings" and "laws" and "precedent" and "separation of powers" and "enumeration" and all that.

But I like the pic and the Alt Text!

[Swiss Servator, mehr K?se!]

Seconded.

Maybe our Judicial and Executive masters will give us fun pics and alt-text?

[Bo Cara Esq.]

Hm, I never pegged you as such an enthusiast for democracy.

[Tonio]

Who exactly have you pegged, Beauregard?

[Bo Cara Esq.]

Tonio is Ken Starr?

[Tonio]

Well-played.

[Episiarch]

This is a very gay day.

Master Shake: Plaque is a figment of the liberal media and the dental industry to scare you into buying useless appliances and pastes. Now, I've read the arguments on both sides, and I haven't found any evidence yet to support the need to brush your teeth. Ever.

Meatwad: I don't know how you'd know; you ain't got no teeth.

Master Shake: Well, I got rid of my teeth at a young age, because...I'm straight. Teeth are for gay people. That's why fairies come and get 'em.

[SugarFree]

Next on the agenda: Getting Texas to stop harassing jaywalkers and beating motorists to death.

[Episiarch]

I thought our most recent beating-to-death was in Oklahoma. It's very disturbing that I can actually type that and it's true because we see enough beatings-to-death.

[SugarFree]

Oops. You're correct. Give Texas a few days.

[SugarFree]

Or not...

Texas police defend DUI arrest of black man who blew 0.00 on Breathalyzer

Police in Texas are standing by their drunken driving arrest of a man whose Breathalyzer and blood tests showed no evidence of intoxication.

Larry Davis was arrested Jan. 13, 2013, by Austin police after he ran a stop sign and, according to arresting officers, appeared to be intoxicated during a field sobriety test.

Davis insisted he'd had only one drink and volunteered to provide a blood sample after testing 0.00 on a Breathalyzer ? the lowest recordable blood-alcohol content level ? and spent a day in jail, reported the Austin Statesman.

Months later, those results also came back negative, and Davis is now trying to have his arrest record cleared, which could take several more months.

But the arresting officer's supervisor said he still supports the decision to arrest Davis.

[Zeb]

the lowest recordable blood-alcohol content level

Was that really necessary to point out?

[Brett L]

I was told by a friend who had to go through the classes that in the state of Florida, this is recognized as legal by statute. I guess because the law covers the influence of anything -- including sleep deprivation -- that affects your driving. So it basically makes cops into judges of motorists' driving habits. What's the saying in Justified? "You may be the rap but you can't beat the ride."

[Shirley Knott]

Unless you're a Kennedy.

[Acosmist]

That's how it ALWAYS is. The "legal limit" is just per se evidence of the vague standard that has always existed.

[crazyfingers]

As long as the jaywalkers and motorists aren't gay, I don't see the problem?

[OldMexican]

After careful consideration, and applying the law as it must, the Court holds that Texas' prohibition on same-sex marriage conflicts with the United States Constitution's guarantee of equal protection and due process.

No, it doesn't. I don't understand why these federal judges dance around these issues by invoking the 14th Amendment as a fix-all.

No, what the prohibition does is conflict with the Constitution's guarantee of freedom of association and protection of contracts. But judges don't want to bring the 1st Amendment (or the rest of the Bill of Rights) because they don't want to bring a precedent that may later undermine any case that defends the private anti-discrimination clauses in the CRA '64, which violate the 1st and 4th Amendments (freedom of association and defense of private property.)

[Swiss Servator, mehr K?se!]

Tap Dancing (ie. "issue framing") is taught, starting with case one (usually "The Thorns Case") in law school.

Frame the issue your way, and you can rule anything.

[Zeb]

I think you are on to something there. Though I think equal protection does have some bearing.

For similar reasons, they completely ignore the "privileges and immunities" part of the 14th.

[Bo Cara Esq.]

The reason the P&I Clause is ignored is because of the Slaughter House Cases.

[Winston]

the United States Constitution's guarantee of equal protection and due process.

So Gitmo, Drones, NSA, IRS, FBI, CIA will all be declared unconstitutional now?

[Bo Cara Esq.]

You think the right to assemble and the prohibition on the impairing of the obligation of contracts could decide these cases?

[OldMexican]

Definitely. Because relying on the "equal protection" clause as basis for the decision implies that it is the state who is granting rights. Instead, a ruling based on the 1st Amendment and the protection of contracts implies a prohibition on the state, as in it cannot compel a person to marry another of a certain sex nor prohibit a person from marrying whoever he or she wants. Based on that legal theory, a state's prohibition on same-sex marriage is unconstitutional, but it would also leave the door open to declare the CRA '64 unconstitutional as well. Judges may be evil, but stoopid they ain't.

[Bo Cara Esq.]

"relying on the "equal protection" clause as basis for the decision implies that it is the state who is granting rights"

That is not quite right, the Equal Protection clause prohibits the government from creating certain legal distinctions, in the case of certain 'suspect' distinctions they can only do so under very limited circumstances and absent that they must offer a rational basis.

[Bo Cara Esq.]

Likewise when they say due process they mean substantive due process, which says that there are certain areas fundamental to liberty and rooted in our traditions where the government has no power to invade.

[OldMexican]

Re: Bo Cara Esq.

That is not quite right, the Equal Protection clause prohibits the government from creating certain legal distinctions

That's how YOU interpret it. The Equal Protection clause has been used by the Judiciary to create rights that did not exist, thereby leaving as precedent the notion that the state grants rights and that the constitution is there to protect these, completely turning on its head the stated purpose of the constitution which is to limit government from intruding or curtailing those rights with which we're born, not given by the state.

In this particular case, the implication of the federal judge's decision is that the state grants the right to marry so therefore the "equal protection clause" compels the government to grant that right equally.

[Bo Cara Esq.]

"The Equal Protection clause has been used by the Judiciary to create rights that did not exist"

Can you give me an example of this, because I am not seeing it.

"the implication of the federal judge's decision is that the state grants the right to marry so therefore the "equal protection clause" compels the government to grant that right equally."

I am not sure about that. I read it as saying, 'if the state wants to recognize certain living arrangements and give them goodies then it must not discriminate in this area.' The word 'marriage' trips people up I think, but these cases are about 'state recognized marriages.' The Equal Protection clause applies to government restrictions as much as it does government benefits and grants.

[OldMexican]

Re: Bo Cara Esq.

Can you give me an example of this, because I am not seeing it.

For instance, Romer v. Evans where the Supreme Court decided on a case where an amendment of the Colorado state's constitution prevented the state from granting special status to gays and lesbians as a protected group. The rationale is that since the state GRANTS the right of protection to a certain group of people based on a specific trait, then under the "equal protection" clause of the constitution the state could not legislate against providing such a status to a specific minority group. The implication is that the constitution is there to "protect" rights bestowed by the state to the people, since there is NO rationale to recognize a special right for people of certain traits besides liberty, life and property, as recognized by Natural Law or Common English Law. The state MADE UP a right, then it decided NOT to grant that right to group Y instead of group X and so the SCOTUS decided under the EPC that the state had to grant that right (in reality, privilege) to everybody that fancies him or herself part of a "protected group."

[PM]

Instead, a ruling based on the 1st Amendment and the protection of contracts implies a prohibition on the state, as in it cannot compel a person to marry another of a certain sex nor prohibit a person from marrying whoever he or she wants.

That would be relevant if marriage were something other than a grant of privilege from the state in the first place. If it were actually a private contract, or merely a social institution. As it sits, the state cannot compel you to marry anymore or prevent you from marrying anyone you choose, it just gets to decide which of those relationships it will bestow its platter of fine privileges upon through licensing. There's no conceivable logic, regardless of how tortured, that could turn a state license with attending privileges into a prohibition on the state's authority. It's a non sequitur.

[mad.casual]

judges don't want to bring the 1st Amendment (or the rest of the Bill of Rights) because they don't want to bring a precedent that may later undermine any case that defends the private anti-discrimination clauses in the CRA '64, which violate the 1st and 4th Amendments (freedom of association and defense of private property.)

This is how I understood Scalia's dissent in Lawrence v. Texas.

The court wasn't invoking some human right that already existed and was protected. It was inventing a new one to take a side in the culture war and declaring Mother Theresa an enemy of human rights in the process.

[R C Dean]

I'm kinda tired of the use of "due process" as a catch-all for things that really have nothing to do with due process.

[Fist of Etiquette]

They already stopped Texas from stopping butsecks, now you want to mess with Texas on marriage licensing? Outrageous.

[Stormy Dragon]

Anybody care to wager whether the Supreme Court will be hearing one of these cases by next year?

Ironically, as long as same sex marriage keeps winning, SCOTUS is free to remain silent on the matter. Only if the anti-same sex marriage side finally wins one, creating a circuit split, will they be forced to get involved.

[Tonio]

Even then, I don't think they are obligated; but IIRC they have always granted cert when there are conflicting rulings by the circuits.

[prolefeed]

SCOTUS grants cert when 4 out of 9 justices say, "Let's hear this sucker."

If they get 3 or fewer justices saying that, then each circuit ruling is the law of the land for that particular circuit -- unless another branch of the government refuses to recognize the judicial branch's ruling.

[Flatulent Monkey]

A maxim regarding two varieties of things originating in Texas pops, unbidden, into my mind.

[Tonio]

Chili and rodeos?

[Brett L]

Jeopardy answer: Two things you do besides gay mansex that will make your butt hurt.

[Almanian!]

Bravo. That made me snort Mountain Dew out of my nose.

[Tonio]

If it hurts, there's a problem. Srsly.

[Apatheist ?_??]

Yeah, people need stronger stomachs or if they are giant pussbags, less spicy chili.

[Brett L]

Totally how I found out I wasn't gay.

[pan fried wylie]

What precisely is a Texas Vegetable?

[Apatheist ?_??]

Brisket

[Brett L]

I was going to go with chili gravy.

[OldMexican]

Sausage. Smoked.

[Brett L]

Agreed. Your main thing at the barbeque is brisket, the side vegetable is smoked sausage.

[Swiss Servator, mehr K?se!]

+1

[SugarFree]

One of those retarded guys they put to death every once in a while.

[Stormy Dragon]

Chili with beans in it.

[Apatheist ?_??]

As a Texan I will enjoy the butthurt this will surely unleash. Plus our gay mayor's marriage is even more official now!

[Winston]

butthurt

Are you talking about the weddings?

[Bo Cara Esq.]

Rick Perry has already weighed in

"Today's decision is wrong for three reasons. First, it violates principles of federalism, second it trumps the voice of Texans and third...Third... What is it? Third...I can't, I'm sorry I can't think of the third."

[Apatheist ?_??]

Rick Perry doesn't seem to give a shit about anything any more as he's on the way out. Greg Abbott, the AG and almost certainly Perry's replacement, is going to have a field day with this. He's probably getting a huge erection right now that he gets to keep fighting this in the courts in the run up to the election.

[Bo Cara Esq.]

I would be very curious to see how Wendy Davis comes out on this.

[Apatheist ?_??]

She'll probably be both for and against it, just like with everything else.

[wareagle]

she's pretty good at straddling things it seems.

[Lyle]

It's not official at all yet in Texas. It will be, but just not yet.

[Certified Public Asskicker]

Facebook post with link to story on 10 Richest Neighborhoods in US. Caption is: "Little ole Maryland" ftw

Me: Do you know if there is a large entity nearby that dispenses trillions of dollars a year?

Enough snark, or not enough?

[Warty]

You know it's enough snark when the person unfriends you. Throw in some extra fucks or something.

[Certified Public Asskicker]

Not enough then, damnit. It I try again it will be too obvious.

[Root Boy]

Please, remind that fuck head that Mont. County is rich due to all the raping and pillaging of hard working people in the rest of the land.

[Doctor Whom]

Me: Do you know if there is a large entity nearby that dispenses trillions of dollars a year?

The elephant in the room, or in this case across Western Avenue.

[Certified Public Asskicker]

I kind of like this guy. But not when he brags about our state being a leech on the rest of the country.

[Longtorso, Johnny]

Houston Church Opts Not to Defect From Denomination
...Opponents of the switch argued for theological diversity. PCUSA does not require churches to ordain openly gay pastors if they choose not to. They bemoaned what they saw as inevitable fallout from the decision, and said that appealing to stricter evangelist views would only further isolate young members from the church.

In particularly fiery testimony, one opposing member said she feared the switch would make her "a member of a congregation that distinguishes itself by its homophobia."...

[Ted S.]

I think Protestant Church of the USA already has quite a few denominations.

[Brett L]

So, serious question: If homosexuality is now a recognized protected class by the Federal courts, doesn't this make all the bullshit about freedom of religion/association in Arizona completely toothless?

[SugarFree]

Yes, but it is still not a formal part of the CRA. A lawsuit will have to climb its way to SCOTUS.

[mad.casual]

Can you feel the awesomeness? We are this much (-

[mad.casual]

Can you feel the awesomeness? We are this much (- <-) closer to whimsically decided and enforced federally protected social classes.

I've got my fingers crossed that 'acquaintances of gays, homosexuals, and women' is next on the list.

[Bo Cara Esq.]

You might say that all this decision does is protect gays from whimsically decided and enforced protected social classes by Texas, as it reserves special protections for only certain heterosexual couples.

[wareagle]

you might say that the question keeps getting evaded and will continue to be evaded even if SCOTUS weighs in: what gives the state the authority to define marriage?

It's a contract and enough marriages come with pre-nups to support that contention. As long as the involved parties are 1) consenting and 2) of legal age, not the state's job to say if either can participate.

[Bo Cara Esq.]

That is a question that should be first and foremost aimed at the defenders of 'traditional marriage,' because their position is and has been that the state should select a particular living arrangement and bless it with benefits, while punishing all others. Cases like Lawrence have pretty much struck down the punishments, the wrangling now is over the benefits.

[wareagle]

it should be aimed at everyone. If you freely enter a contract with someone else, who is the state to say no?

Its only role is in mediating any disputes that a party brings forth, like it does with divorces, annulments, resolving pre-nups, etc. And eventually, someone might notice that handing out bennies is bad practice all the way down.

[Bo Cara Esq.]

That is ideal, but what is worse in my opinion is the state getting a role, but only for heterosexuals.

Ideally there would be no Post Office, but I would oppose a law that says that only Democrats could mail things.

[wareagle]

a Post Office is at least mentioned.

[mad.casual]

That is a question that should be first and foremost aimed at the defenders of 'traditional marriage,'

The question should be asked first and foremost of the creators of traditional marriage, whomever they may be. You already said the traditional marriage defenders' motives were whimsical.

You might say that all this decision does is protect gays from whimsically decided and enforced protected social classes by Texas, as it reserves special protections for only certain heterosexual couples.

By offering the ability to move them into couplings in which the federal gov't can tax them more heavily, I fail to see how it is a protection. Additionally, since the sexuality definitions/confirmations are so feeble, we could see it as the strict expansion of "protecting" couples.

[Homple]

Who gets to define "legal age"?

[Winston]

What about the phrase "right to marry"?

[Bo Cara Esq.]

Under Equal Protection law a distinction that does not have even a rational basis is not allowed, whether the distinction is based on a 'suspect classification' or not. That was the finding here (though the court said it would have found a suspect classification for gays if it were necessary).

[Root Boy]

What was the state denying gay couples anyway. No Income tax in TX, so you can't be treated unfairly in that. Was it things like spousal, offspring, and inheritance laws?

[mad.casual]

Chiefly, they were being denied the 'marriage penaltax' that the Fed administers in strict observance of the 14th Am.

Remember when BarryO promised to raise taxes on household incomes over $400K? Two $201K incomes don't fit the bill.

[DesigNate]

Mainly divorce.

If I'm a resident of a state, I shouldn't have to file for divorce in a separate state where myself or my partner don't reside in order to dissolve my marriage.

[Wandering Texan]

Good. This shit was a blight on the State's otherwise beautiful Constitution.

[Jeff D]

It is tough to express how bizarre the idea sounds. Men have the constitutional/inalienable right to marry men and women the right to marry women. Of course. How could anyone think otherwise?

[Winston]

And then the Feds will decide that Mormon Men have the constitutional right to marry lots of women after all!

[wareagle]

if they are consistent, that is exactly what they should decide. And if they are intellectually honest, the gayz should be alongside the wanna-be polygamists leading that charge.

[Tonio]

I've been there all along, BassBoat.

[wareagle]

+1 parade-leading implement of your choice.

[Heroic Mulatto]

Once the Gay/Mormon alliance is in full force, I shall look forward to Brother Wives on TLC.

[wareagle]

and inquiring minds wonder what said coalition will bring to future performances of the Mormon Tabernacle Choir.

[Bo Cara Esq.]

I am not sure why it is so bizarre. It is based on the idea that people have a fundamental right to be married and to be treated equally unless there is a rational reason otherwise. In the former the SCOTUS has defended, for example, the rights of prisoners to get married.

[Grand Moff Serious Man]

Asking about polygamy is a the best way to see how many people truly agree with that principle.

[Winston]

And the 14th Amendment will be used to legalize it despite the Radical Republicans opposition to polygamy.

[Tony]

There are plenty of more or less rational bases for not recognizing polygamists marriages, but it so happens that there are none for not recognizing gay marriages.

[wareagle]

no, there is no more rational basis for telling three consenting adults that they cannot participate in a contract than there is for telling two same sex adults the same thing. The traditional definition of marriage is being changed anyway; you're going to have to accept that the momentum swings past the point you where you wish it would stop.

[Tony]

I don't particularly care, but polygamists will have to make their own case. But polygamists aren't being denied a right that other people enjoy, so there's no equal protection argument.

[wareagle]

But polygamists aren't being denied a right that other people enjoy

did polygamy become legal and I missed it?

[Tony]

Nobody has a right to have a government-recognized poly marriage. That's not the same situation that's going on in these cases, in which gay people are being denied a right that straight people enjoy, and since there's no rational basis for this inequality, it fails the 14th Amendment. Nobody is born a polygamist.

[wareagle]

Nobody is born a polygamist.

which has nothing to do with anything. In the LGBT parade, one of those was born something other than what he/she is today. Love the "rights for me but not for thee" flag you're waving today.

[Tony]

This would go better if you'd stop being sarcastic and just say what you believe, because I somehow doubt you're a polygamists rights activist.

I am pretty liberal on this matter. Let them have their day in court. If you want me to come up with arguments for why it might fail in court, I can, but I don't honestly care that much.

[OldMexican]

Re: Tony,

Nobody has a right to have a government-recognized poly marriage.

Who cares about government recognition? The government is not there to bestow rights. Marriage is a contract and all humans are free to engage in contractual agreements of any shape or form as long as these do not include a 3rd party unwittingly or through fraud or subterfuge. The sole responsibility of government is to ensure that those contracts are protected and honored. That's it.

That's not the same situation that's going on in these cases, in which gay people are being denied a right that straight people enjoy,

It is the exact same situation - you have a tyrannical government reneging from its responsibility to protect and honor people's contracts and freedom to associate.

The problem with your argumentation is that you engage in question-begging by assuming that only government gets to decide who is married or not.

[R C Dean]

Nobody has a right to have a government-recognized poly marriage.

Yet people have a right to government-recognized gay marriage?

That's not the same situation that's going on in these cases, in which gay people are being denied a right that straight people enjoy,

Why isn't it equally accurate to say that polygamists are being denied a right that non-polygamists enjoy?

[Tony]

Yet people have a right to government-recognized gay marriage?

In some places. I believe they should as well in all places where hetero marriage is recognized.

Why isn't it equally accurate to say that polygamists are being denied a right that non-polygamists enjoy?

We can, if you like, treat monogamists and polygmaists as legally recognized classes of people, but it's not accurate--nonpolygamists are no more allowed to get government recognition of poly marriage than polygamists are.

[DesigNate]

That is some awesome posting right there Tony. Bravo.

I mean, word for word using the anti-gay marriage talking point and replacing it with polygamists and monogamists. That's got to be some of your best work.

I just hope you don't believe it.

[R C Dean]

polygamists will have to make their own case.

The gay activists are doing a fine job of that already.

[Heroic Mulatto]

There are plenty of more or less rational bases for not recognizing polygamists marriages, but it so happens that there are none for not recognizing gay marriages.

Lies. The holy Qu'ran is quite clear that a Muslim male can have up to four wives provided that he is able to meet all of their emotional, physical and financial needs in an equal manner.

There is nothing in the Qu'ran, the Sunnah, or the various reputable ahadith that support marriages between two or more men or two or more women.

[SugarFree]

The holy Qu'ran is quite clear that a Muslim male can have up to four wives provided that he is able to meet all of their emotional, physical and financial needs in an equal manner.

Hmm... Could a Muslim use the Kansas law to strike down restrictions on bigamy and polygamy?

[R C Dean]

Really, the polygamists can point to freedom of religion to shore up their case. That right is at least in the Constitution.

Wouldn't be hard to say the polygamists have a better case than gays do.

[Death Rock and Skull]

"The holy Qu'ran is quite clear that a Muslim male can have up to four wives provided that he is able to meet all of their emotional, physical and financial needs in an equal manner."

Well as long as its equal, meeting none of their needs at all would work!

[R C Dean]

There are plenty of more or less rational bases for not recognizing polygamists marriages

Such as?

[Bo Cara Esq.]

I think polygamy should be protected as well, so you probably should ask someone else.

Having said that, these laws are being struck down because the courts have concluded there is not even a rational basis to distinguish between hetero and homosexual couples, just traditional animus. Is the same true for polygamy? I guess that depends on whether you think the number of spouses could rationally matter but the gender does not.

[wareagle]

I guess that depends on whether you think the number of spouses could rationally matter but the gender does not.

a determination that should be made by those involved and not the state. Long as these folks are not asking me to support them, why should this concern me? The animus you refer to can just as easily be found with regard to polygamists as with gays.

[Tony]

Polygamy is an activity. Being gay is an inherent trait.

[wareagle]

Polygamy is an activity. Being gay is an inherent trait.

neither is the business of the state. If you're going to bang the drum for marriage equality, have the decency to be consistent.

[Winston]

Is being monogamous an "inherent trait"?

[OldMexican]

Re: Tony,

Polygamy is an activity. Being gay is an inherent trait.

Non sequitur. Marriage is a contract. All humans have the right to engage in contractual agreements regardless of traits. As it is usual for you, you just want to obfuscate the matter by bringing in red herrings.

[Bo Cara Esq.]

I agree, I am just saying, do not forget why we are in this mess. A long time ago statist supporters of traditional marriage got the state to enact a rather extensive regime of laws to promote their favored living arrangement and punish all others. On the one hand this included all kinds of benefits both financial and legal (like spousal immunity), on the other it included the criminalization of any living arrangements seen as a threat to their preferred one (adultery laws, polygamy laws, sodomy laws, contraception laws, etc.). People that wanted to live differently had to face the state that these conservatives sicked on them. They fought back and slowly most of these punishments have been upended (polygamy still out there). Now what is left to fight over is the exclusive grant of benefits and privileges to the 'preferred' lifestyle.

[Death Rock and Skull]

Don't forget marrying attractive cousins!

[DesigNate]

Something tells me that it wasn't just conservatives that came up with those laws.

[Jeff D]

The bizarre part is that you seem to imply there is no conceivable rational reason to think a man doesn't have a fundamental right to marry a man, or a woman a woman. The rational universe you inhabit appears to me to have a few blind spots.

[Homple]

Ok if the man wants to merry his twin sister?

[Heroic Mulatto]

constitutional/inalienable right

The Venn diagram of the two isn't a perfect overlap.

But you knew that already.

[mad.casual]

Show me in the constitution where is says that.

I keep seeing the Reason interviews with Clark Neily talking about Judicial Abdication. IMO, this is prototype.

[wareagle]

where does the constitution speak to marriage?

[Bo Cara Esq.]

The idea is that the 14th Amendment speaks of no deprivation of liberty without due process, and the courts have concluded that what that can mean is that if there is a liberty that is fundamental to the idea of ordered liberty or that is deeply rooted in our nation's traditions, then the government can not intervene without a very good reason. This reasoning was first used to strike down laws like one barring teaching children foreign languages in private schools, on the grounds that childraising is one of those areas where the government can not interfere without darn gtood reason. Later, in Griswold it was extended to family planning and intimate relations. The idea is that marriage is one of those deeply personal, intimate areas where the government can not interfere. Now, logically the conclusion from all that should be that the government can not favor traditional marriage, not that if it does it must also favor non-traditional intimate arrangements, but no one is asking them to do that so they are not.

[wareagle]

The idea is that marriage is one of those deeply personal, intimate areas where the government can not interfere.

which ought to answer the entire "who gives govt the authority to say who can/cannot participate in a contract" question.

[Tonio]

Perhaps that because the idea isn't as bizarre as you think it is?

[Almanian!]

What?

[OldMexican]

Re: Bo Cara Esq.

Can you give me an example of this, because I am not seeing it.

For instance, Romer v. Evans where the Supreme Court decided on a case where an amendment of the Colorado state's constitution prevented the state from granting special status to gays and lesbians as a protected group. The rationale is that since the state GRANTS the right of protection to a certain group of people based on a specific trait, then under the "equal protection" clause of the constitution the state could not legislate against providing such a status to a specific minority group. The implication is that the constitution is there to "protect" rights bestowed by the state to the people, since there is NO rationale to recognize a special right for people of certain traits besides liberty, life and property, as recognized by Natural Law or Common English Law. The state MADE UP a right, then it decided NOT to grant that right to group Y instead of group X and so the SCOTUS decided under the EPC that the state had to grant that right (in reality, privilege) to everybody that fancies him or herself part of a "protected group."

[mad.casual]

My fundamental beef is the notion of 'rational basis' justification for actions and traits that may, themselves, be irrational.

[mad.casual]

I see a reason or two why the state may value heterosexual marriages more than homosexual marriages. However, because of the nature of marriage, family, love, etc. I see no reason that isn't overshadowed or overwhelmed by rationales that don't make sense in our social.

To me, gay marriage has always been, and will always be like piling more people in to a '71 AMC Gremlin... either convert it to a fucking bulletproof limosine or send it to the junk yard.

[OldMexican]

Re: Tony,

Nobody has a right to have a government-recognized poly marriage.

Who cares about government recognition? The government is not there to bestow rights. Marriage is a contract and all humans are free to engage in contractual agreements of any shape or form as long as these do not include a 3rd party unwittingly or through fraud or subterfuge. The sole responsibility of government is to ensure that those contracts are protected and honored. That's it.

That's not the same situation that's going on in these cases, in which gay people are being denied a right that straight people enjoy,

It is the exact same situation - you have a tyrannical government reneging from its responsibility to protect and honor people's contracts and freedom to associate.

The problem with your argumentation is that you engage in question-begging by assuming that only government gets to decide who is married or not.

[Tony]

The sole responsibility of government is to ensure that those contracts are protected and honored. That's it.

Making government the third party in all contracts (the enforcer). Nobody's stopping anyone from drawing up make-believe marriage licenses, but marriage is legally recognized and married couples are treated differently by the law than, say, roommates. It's not the only example of government treating groups of people legally in a specific and practical way (like property owners, or police officers, or corporations, or unions, or roommates).

you have a tyrannical government

"I'm hysterical and detached from reality and need to get out more..."

Oh sorry, what were you saying?

question-begging by assuming that only government gets to decide who is married or not.
reply to this

Anyone can call themselves married, but the thing at issue is the government treatment, which is unconstitutionally illegal. I don't care how we do or don't legally recognize marriage, but I expect that treatment to be the same for straight and gay people.

Utopian fantasies are best reserved for fleeting daydreams.