Time for a primer in law. Artie, please take a seat in the front row so you don't miss anything. If there's anything that's unclear, feel free to ask questions. If, instead of asking questions, you insist on making claims contrary to what is set forth here, please provide appropriate authority. On questions of law, appropriate authority would be a Court decision, preferably a SCOTUS opinion, since the points that I will be covering have largely been addressed by SCOTUS.
If you simply wish to pontificate, that is your right. However it would be helpful to all involved if, when you are stating your wish that the law be other than it is, you make that clear, and provide reasoned argument for why it should be different. Ideally, your argument will address and be responsive to the reasoning and rational that SCOTUS used in deciding the matter. You are particularly advised to refrain from making arguments that the facts are other than what SCOTUS has previously decided. I find it virtually inconceivable that you would be able to make a compelling case for a factual conclusion inconsistent with a SCOTUS ruling.
Artie wrote:
quote:
2. cases are brought up to SCOTUS, not amendments to State constitutions
Well, yes, cases are brought up to SCOTUS. Those cases can include challenges to State constitutions.
Artie wrote:
quote:
1. Its not up to SCOTUS.
If someone brings a case that makes its way to SCOTUS, then it most certainly is up to SCOTUS. SCOTUS is the final authority on the meaning of the Constitution. See
Marbury v. Madison.It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Artie wrote:
quote:
i wish i had a nickle every time someone brings up Loving v. Vriginia as if it even applies to this at all.
Courts decide cases based on a principle called
stare decisis, which, translated from the Latin, means "to stand by that which is decided." Courts look at prior cases for the principles upon which the prior cases were decided, and determine whether a prior principle applies to the case at bar. It should be apparent that the later case will not be factually identical to the earlier case. The question then becomes how is a later case the same as the earlier case, and does the general principle from the earlier case apply to the later case.
The Loving case involved a ban on whites marrying nonwhites. Obviously, factually this is a different question from whether gay marriage can be banned. However, the question is whether any general principle from Loving is applicable to the question of gay marriage.
Loving contains two different bases for striking anti-miscegenation laws. The first is based on the Fourteenth Amendment's Equal Protection Clause, which states in relevant part: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." The Loving Court wrote:
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." ... At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," ... and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense."....
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. ... We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
Citations and footnote omitted.
Loving stands for the proposition that a state marriage law violative of the Equal Protection Clause cannot stand. Thus, the question becomes whether laws prohibiting gay marriage are violative of the Equal Protection Clause. In order to answer this question, we need to know what level of scrutiny to apply to the question. In hope you will forgive me for cribbing from my own work as it gets rather tiresome saying the same thing over and over again. Much of what follows can be found in
this thread.
In essence, the Equal Protection Clause means that laws must apply equally to all equally situated persons. This language has been interpreted many times by the Supreme Court in many different contexts. To briefly summarize, the Court has developed three different tests depending on the type of classification a challenged law contains.
The Court will use what is called strict scrutiny if a law is based on a suspect classification, such as race or national origin, or if it impinges on a fundamental Constitutional right. Under strict scrutiny, a law must be narrowly tailored to meet a compelling state interest before it will be upheld. In addition, it must be the least restrictive means to achieve the end. As you can see, Loving was decided under strict scrutiny.
The Court will use what is called intermediate scrutiny when examining a law that classifies on the basis of gender. Where a law relies on a gender classification, it must be substantially related to an important state interest.
The lowest level of scrutiny under the Equal Protection Clause is called rational basis. Under this test, the law must be reasonably related to a legitimate state interest. The rational basis test is used for any classification in law that does not fall under strict scrutiny or intermediate scrutiny.
Any state action that treats one group of people differently from another is potentially subject to review by the courts to make sure that it does not run afoul of the Equal Protection Clause.
If the question of the validity of a ban on gay marriage is not decided under strict scrutiny, (more below on why it may be, even though it is not based on a racial classification) the next level of analysis is intermediate basis. The argument to apply this level of scrutiny is that laws banning gay marriage are not gender neutral. It makes the question of whether two people can marry one another turn on their gender. (The objection to this reasoning is that gay marriage bans are gender neutral, they apply equally to men and women. A version of this argument, based instead on race, was considered and rejected by the Court in Loving.)
Under intermediate scrutiny, the question becomes whether the ban is substantially related to an important governmental interest. Here is where my analysis begins to break down, because those who advocate bans on gay marriage are seldom particularly clear about what state interest the ban is intended to serve. There is frequently talk about "protecting traditional marriage." I suspect that a court would have no trouble finding that protecting marriage is a compelling state interest. But I have yet to hear anyone describe in what way allowing gays to marry will harm or even change in any way anyone else's marriage. Absent a showing that gay marriage presents a threat to marriage, I can't imagine how it could be described as substantially related to serve that end. If you can show how gay marriage is a threat to "traditional marriage," I'd be happy to listen. In the alternative, if you can show an important governmental interest that is served by banning gay marriage, I'd like to hear that, too.
I mentioned above that there were two different bases for the Loving decision. I've already described the Equal Protection analysis and shown how it would apply to gay marriage. The Loving Court also concluded that interracial marriage bans violate the Due Process Clause because
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
When a law infringes on a fundamental right, the Court will use strict scrutiny to determine whether it is violative of the Constitution. See, for example,
Oklahoma v. Skinner. Just as with intermediate scrutiny, or even rational basis, the first question is what purpose is the classification purporting to serve. I again concede that protecting "traditional marriage" is a compelling state purpose. As above, if you wish to explain how banning gay marriage is the least restrictive means for achieving that end, give it a go. Or, if you wish to propose a different compelling state interest served by banning gay marriage, I'm all ears.
Artie wrote:
quote:
I dont even see how a case will be brought up against prop 8. the scenarios aren't even remotely close. The lovings left the state to get married and came back, then they were arrested and charged with a felony. So two homosexuals leave CA and go to Taxachussets and get married, will they get arrested when they return to CA? no, thier marriage will just not be accepted. its over folks.
Here you attempt, using rather creative grammar, capitalization, sentence structure, punctuation and spelling, to distinguish Loving because it involved a criminal prosecution. While it is an accurate distinction, it is a distinction without a difference in this case. The closing lines of Loving read as follows:
To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.
Obviously Loving stands not just for the proposition that a state cannot criminalize interracial marriage, but that it cannot even refuse to recognize it.
Artie wrote:
quote:
Just so you know...the 14th amendment is BS.
I shall not unduly lengthen this message by repeating
in toto your objection to the validity of the Fourteenth Amendment. SCOTUS has considered your arguments and rejected them. See
Coleman v. Miller:
The legislatures of Georgia, North Carolina, and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868. Ohio and New Jersey first ratified and then passed resolutions withdrawing their consent. As there were then thirty-seven States, twenty-eight were needed to constitute the requisite three-fourths. On July 9, 1868, the Congress adopted a resolution requesting the Secretary of State to communicate "a list of the States of the Union whose legislatures have ratified the fourteenth article of amendment," and, in Secretary Seward's report, attention was called to the action of Ohio and New Jersey. On July 20th, Secretary Seward issued a proclamation reciting the ratification by twenty-eight States, including North Carolina, South Carolina, Ohio, and New Jersey, and stating that it appeared that Ohio and New Jersey had since passed resolutions withdrawing their consent, and that "it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual." The Secretary certified that, if the ratifying resolutions of Ohio and New Jersey were still in full force and effect notwithstanding the attempted withdrawal, the amendment had become a part of the Constitution. On the following day the Congress adopted a concurrent resolution which, reciting that three-fourths of the States having ratified (the list including North Carolina, South Carolina, Ohio and New Jersey), declared the Fourteenth Amendment to be a part of the Constitution, and that it should be duly promulgated as such by the Secretary of State. Accordingly, Secretary Seward, on July 28th, issued his proclamation embracing the States mentioned in the congressional resolution and adding Georgia.
Thus, the political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification. While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification, and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.
Footnotes omitted.
Any questions?
Those who would sacrifice an essential liberty for a temporary security will lose both, and deserve neither. -- Benjamin Franklin
We see monsters where science shows us windmills. -- Phat
™ Version 4.2
