Gay marriage ruling in CA

[Lobowolf]

Of course others would argue race is not the same thing legally as sexual orientation, many others would say they are legally equal.

Anyone who would argue that they're legally equal in the USA would be demonstrating a fundamental ignorance about constitutional law.

[jdonn]

~~In contrast, cigarette-smoking is certainly a choice people make.

are you sure? how about other addictions?

Well the first cigarette is a choice people make.

[mike777]

Of course others would argue race is not the same thing legally as sexual orientation, many others would say they are legally equal.

Anyone who would argue that they're legally equal in the USA would be demonstrating a fundamental ignorance about constitutional law.

Well I think many do....

 

 

In any event for decades polls show that the Bill of Rights will never pass, not close per polls.

 

As for the rest of the Constitution well I doubt most of us could tell you Article one from Article etc...without google in front of us...and really google the constitution....who can bother...

 

On the other hand I do know Lohan and Snookie....

[Lobowolf]

This goes too far, way too far, clearly the majority can limit rights of a minority and in fact have done so veryoften. In fact I bet you would agree with alot of this oppression of the minority in some cases. There are many other minorities besides gays or African-Americans,,,many more minorities.

 

 

Of course others would argue race is not the same thing legally as sexual orientation, many others would say they are legally equal.

Sure. Perhaps a good example is laws restricting the smoking of cigarettes in bars and restaurants. This could be viewed as restricting the rights of a minority (smokers). Certainly in many cases laws have been passed which restrict the rights of some groups.

 

The salient issues include:

 

(1) Does the law serve substantial purpose to improve the welfare of the majority? A lot of time was spent arguing this point in the same-sex marriage case. The conclusion reached by the judge was that allowing same-sex couples to marry would in no way damage the welfare of opposite-sex couples. Barring people from smoking in public places does improve the welfare of non smokers (mostly in health-related ways).

 

(2) Is the minority group "deserving" of protection? Certain types of minorities are protected much more heavily than others. In most cases minorities by choice (for example, people who choose to smoke) are not protected nearly as heavily as minorities by genetics (for example, people with a certain color skin). There has been ongoing debate about whether or to what degree sexual orientation is a choice. Modern science has come down pretty strongly in favor of sexual orientation being genetic. This was also discussed in the trial. In contrast, cigarette-smoking is certainly a choice people make.

With respect to equal protection claims, there is a "triple-tiered" framework in place, which is tied into not just whether a classification exists by choice or not, but also, for instance, the historical backdrop of discrimination against a particular class. For example, it's "easier" to discriminate against someone on the basis of sex than on the basis of race, although clearly both classifications are genetic.

 

The key components to the analysis are how important the governmental interest being advanced by the law is, and how closely related the law is to advancing that interests.

 

Under the "strict scrutiny" standard, the government interest purported to be advanced must be "compelling," and the law itself must be "necessary" to advancing that interest. In other words, if the government's interest is less than compelling, the law is unconstitutional if strict scrutiny applies. Moreover, even if the government's interests IS compelling, the law is still unconstitutional if it goes further than it would need to go (e.g. it's unnecessarily discriminatory) to achieve that interest. Strict scrutiny is applied when the classification is, e.g., by race. Laws analyzed under the strict scrutiny standard are almost never upheld. I think that when a U. of Michigan affirmative action scheme was challenged under equal protection, it withstood strict scrutiny, in the 1990s or early 2000s, and as I recall, that was the first law to stand up to that standard since Korematsu, which legitimated Japanese-American internment camps 50 or 60 years previously (and is widely held to have been decided incorrectly).

 

Under middle-tiered "heightened scrutiny," the law must serve an "important" government interest, and must be "substantially related" to that interest. These laws, then, are more likely to be upheld (but are still usually struck down), because the government's interest no longer has to be "compelling," only "important," and the relationship can be "substantial." The law no longer has to be "necessary." This standard is applied to, e.g., laws that discriminate on the basis of sex. The reason it's easier to discriminate by sex than by race comes down to the differences between "compelling" and "important," and "necessary" and "substantial."

 

Finally, all laws that discriminate on bases not falling under either of the other two standards are analyzed under "rational basis" scrutiny. Under this weakest of standards, the government's interest has to be "legitimate," and the law has to be "rationally related" to the interest. Laws falling under rational basis scrutiny are almost always upheld. Some SCOTUS language has suggested that there's a level slightly higher than rational basis scrutiny.

 

There's a "but" here, though; when the law affects access to a "fundamental right," then strict scrutiny is used regardless of the classification. The Prop 8 ruling was decided (at the 9th Circuit) under strict scrutiny because marriage is a fundamental right, even though sexual orientation is not a classification that in and of itself requires anything more than strict scrutiny.

 

The level of scrutiny to be applied is a good chunk of the battle (though the 9th Circuit said that the ban didn't survive rational basis scrutiny, either; but that's a much harder sell). Precedent, however, is that "mere animus" is NOT a legitimate basis for a law that discriminates, even against a group that isn't protected.

[mike777]

This goes too far, way too far, clearly the majority can limit rights of a minority and in fact have done so veryoften. In fact I bet you would agree with alot of this oppression of the minority in some cases. There are many other minorities besides gays or African-Americans,,,many more minorities.

 

 

Of course others would argue race is not the same thing legally as sexual orientation, many others would say they are legally equal.

Sure. Perhaps a good example is laws restricting the smoking of cigarettes in bars and restaurants. This could be viewed as restricting the rights of a minority (smokers). Certainly in many cases laws have been passed which restrict the rights of some groups.

 

The salient issues include:

 

(1) Does the law serve substantial purpose to improve the welfare of the majority? A lot of time was spent arguing this point in the same-sex marriage case. The conclusion reached by the judge was that allowing same-sex couples to marry would in no way damage the welfare of opposite-sex couples. Barring people from smoking in public places does improve the welfare of non smokers (mostly in health-related ways).

 

(2) Is the minority group "deserving" of protection? Certain types of minorities are protected much more heavily than others. In most cases minorities by choice (for example, people who choose to smoke) are not protected nearly as heavily as minorities by genetics (for example, people with a certain color skin). There has been ongoing debate about whether or to what degree sexual orientation is a choice. Modern science has come down pretty strongly in favor of sexual orientation being genetic. This was also discussed in the trial. In contrast, cigarette-smoking is certainly a choice people make.

With respect to equal protection claims, there is a "triple-tiered" framework in place, which is tied into not just whether a classification exists by choice or not, but also, for instance, the historical backdrop of discrimination against a particular class. For example, it's "easier" to discriminate against someone on the basis of sex than on the basis of race, although clearly both classifications are genetic.

 

The key components to the analysis are how important the governmental interest being advanced by the law is, and how closely related the law is to advancing that interests.

 

Under the "strict scrutiny" standard, the government interest purported to be advanced must be "compelling," and the law itself must be "necessary" to advancing that interest. In other words, if the government's interest is less than compelling, the law is unconstitutional if strict scrutiny applies. Moreover, even if the government's interests IS compelling, the law is still unconstitutional if it goes further than it would need to go (e.g. it's unnecessarily discriminatory) to achieve that interest. Strict scrutiny is applied when the classification is, e.g., by race. Laws analyzed under the strict scrutiny standard are almost never upheld. I think that when a U. of Michigan affirmative action scheme was challenged under equal protection, it withstood strict scrutiny, in the 1990s or early 2000s, and as I recall, that was the first law to stand up to that standard since Korematsu, which legitimated Japanese-American internment camps 50 or 60 years previously (and is widely held to have been decided incorrectly).

 

Under middle-tiered "heightened scrutiny," the law must serve an "important" government interest, and must be "substantially related" to that interest. These laws, then, are more likely to be upheld (but are still usually struck down), because the government's interest no longer has to be "compelling," only "important," and the relationship can be "substantial." The law no longer has to be "necessary." This standard is applied to, e.g., laws that discriminate on the basis of sex. The reason it's easier to discriminate by sex than by race comes down to the differences between "compelling" and "important," and "necessary" and "substantial."

 

Finally, all laws that discriminate on bases not falling under either of the other two standards are analyzed under "rational basis" scrutiny. Under this weakest of standards, the government's interest has to be "legitimate," and the law has to be "rationally related" to the interest. Laws falling under rational basis scrutiny are almost always upheld. Some SCOTUS language has suggested that there's a level slightly higher than rational basis scrutiny.

 

There's a "but" here, though; when the law affects access to a "fundamental right," then strict scrutiny is used regardless of the classification. The Prop 8 ruling was decided (at the 9th Circuit) under strict scrutiny because marriage is a fundamental right, even though sexual orientation is not a classification that in and of itself requires anything more than strict scrutiny.

 

The level of scrutiny to be applied is a good chunk of the battle (though the 9th Circuit said that the ban didn't survive rational basis scrutiny, either; but that's a much harder sell). Precedent, however, is that "mere animus" is NOT a legitimate basis for a law that discriminates, even against a group that isn't protected.

Keep it coming.....

 

 

 

I for one come to this forum to learn and from debate...asking questions...(most dumb)...I learn alot about the law.....math...science...stats..etc ..\

 

Granted alot of this stuff is "relearn" and this is ok ..that makes this site great..

 

 

ty you all forum posters...

[blackshoe]

As for the rest of the Constitution well I doubt most of us could tell you Article one from Article etc...without google in front of us...and really google the constitution....who can bother...

 

On the other hand I do know Lohan and Snookie....

The deplorable state of education in this country, not to mention the short attention span of most folks for anything that requires actual thinking, is probably fodder for another thread or six.

 

I: Right of Assembly, Freedom of Religion, Freedom of the Press

2. Right to Keep and Bear Arms

3. Protection against troops forceably billeted in citizens' homes.

4. Right to be secure in one's property. This is the one that requires the government to have a search warrant, for example.

5. Right against self-incrimination.

6.

7.

8.

9.

10. Rights not specifically delegated to the Federal government are reserved to the States, or to the People.

 

That's off the top of my head. If I thought about it a bit longer, I could probably come up with the rest, but it's bedtime and I'm tired.

[mike777]

off the top of my head most if not all are not in the articles of our const.....granted I had a glass of wine..

 

 

 

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lol they are ads.

 

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I fully grant you know all more than 99%

[OleBerg]

Now farm animals are supposed to start marrying toasters, or something.

Wtp?

Some might argue that animals cannot give consent, others might disagree.

 

OTOH in some cultures consent may not matter.

 

Perhaps if make marriages are legal based on the consent of the families or a local board of wisemen and not those who are actually getting married.

Well, the toaster can definitely not give consent.

 

But wtp?

[jdeegan]

:rolleyes: A win is a win. Never kick a winner in the ass, or anywhere else either. This whole business is starting to remind me of the civil rights struggle in the South in the 1960's.

In those days of yore, the electorate was against 'it' by about 60-40 (much more in some locales), but the business (and other) establishments were for 'it' by a strong majority (the local yokels are going to tell me who I can and cannot pay wages to?).

The end result was pre-determined. A win for the good guys where it really mattered in the urban areas, and a clinging to the old ways in the economically stagnant rural zones.

Remember, the social conservatives have an essential place in our society. When the new goes wrong, they have preserved a place where the majority can start over.

Mistakes? Tell me, do you think smoking cigarettes is a good idea? Social conservatives opposed this from its beginning.

[blackshoe]

off the top of my head most if not all are not in the articles of our const.....granted I had a glass of wine..

 

 

 

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lol they are ads.

 

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I fully grant you know all more than 99%

I thought we were talking about the Bill of Rights, not the original Constitution

 

Preamble - general stuff

Article I - Legislature

Article II - Executive

Article III - Judiciary

Article IV -

Article V -

Article VI - Amendments

 

IV and V have to do with specific powers, I think.