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View Diary: The Kids Are Alright: Some Thoughts About Same-Sex Marriage (188 comments)

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  •  Well let me address some things (1+ / 0-)
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    Rumarhazzit
    1.  The referendum itself is a part of the Maine legislative process.  The people do have a right to veto the legislation passed by the legislature.  That doesn't mean though that the Maine judiciary is simply obliged to ignore the state constitution's gaurantees of equal protection.  
    1.  There are two different constitutional guarantees we speak of when discussing marriage and those are Due Process and Equal Protection.  We are brought up to think that all discrimination is unconstitutional...this is unfortunately not true.  In fact most discrimination is constitutional and presumed constitutional.  In order to get such discrimination struck down as unconstitutional, the court must be convinced that there is absolutely no rational basis for the law.  In other words, the government must be crazy.  It's a tall order to say the least.  

    So government discrimination against people on the basis of height, weight, looks, left handedness, wealth, age, mental retardation is pretty much presumed constitutional.  Now if you think about it, such a way of thinking does make sense in an awful lot of cases.  Let's say your local government hands out parking permits on your street so that only homeowners on your street may park on it.  That's discrimination (against people who don't live on your street) and it's perfectly constitutional.  

    Now there is an exception to this rule and it's a big one.  Discrimination on the basis of race is a no-no and rarely allowed.  Discrimination on the basis of national origin (ethnicity) and alienage is treated the same way.  Discrimination on the basis of gender is basically treated the same way as well.  

    However, sexual orientation discrimination is presumed to be constitutional so us queers are out of luck.  Fire a beloved and passionate teacher because they're gay?  Constitutional.  Revoke a job offer to the FBI or CIA to a student at the top of their class with a JD because they're gay?  Constitutional.  Dishonorably discharge your finest military officers because they're gay?  Constitutional.  Allow courts to enforce anti-gay constitutional provisions of contracts to allow private companies to bankrupt former employees who are gay?  Constitutional.  Prohibit gays from adopting children?  Constitutional.  Take away constitutional rights on the basis of one parent being gay?  Constitutional.  Prohibit gay men from donating blood to charitable organizations?  Constitutional.  Enact laws prohibiting the mention of homosexuality in schools?  Constitutional.  Prevent gay people from being given security clearances from the Defense Department?  Constitutional.  Prohibit gay people from getting married (to people we actually love and are committed to)?  Constitutional.  

    1.  If the government were to try and forbid men under 5'8 or women over 5'10 from getting married or tried to prevent left handed people from getting married or tried to prevent old people from getting married or tried to prevent infertile people from getting married, it would likely be unconstitutional as a violation of the Due Process Clause.  The Due Process Clause has been found (a multitude of times) to include a fundamental right to marry.  So even though those types of discrimination aren't presumed unconstitutional under the Equal Protection Clause, those laws would violate Due Process and be struck down.  But...the problem is that court after court after court (with California as the notable exception) has said that there is no Due Process right to "same-sex marriage."  See the problem?  
    1.  So courts have generally looked at this way.  Same-sex marriage prohibitions discriminate against gays and lesbians but such discrimination is perfectly constitutional as long as the government offers a few basic reasons for the discrimination.  And the courts say there's no fundamental right to same-sex marriage.  
    1.  We don't have enough votes on the Supreme Court to overturn same-sex marriage bans and when we lose at the Supreme Court level, we will have to wait decades for a reversal.  And who knows what kind of negative precedents something like that could set in the future.  We were fortunate that Bowers v. Hardwick only took 17 years to be reversed but in that time, enormous damage was done to our community.  
    1.  I am of the firm belief that Baby Boomers and minorities will overturn these bans but we don't have enough votes now on the Court.  I think we'll get the votes if are able to get Obama reelected but we can't just rush in now with a suit.  

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