Gay Marriage is a Constitutional Right. Here's why.

If you asked me 2 months ago whether or not the Supreme Court should strike down gay marriage I would have hesitated and said no for a few reasons.  The main reason is that "activist courts" and "pro-gay Democratic senators" piss off conservatives and it hurts us in elections.  As a heterosexual I would sacrifice gay rights for health care and sane policies in the Middle East. That was until I discovered that gay marriage rights are soundly rooted in the Counstitution; in fact, more soundly rooted than the status quo.

I have condensced the argumentation below in hopes that I can contribute something to the community other than trying to be the first to put up a hyperlink to a breaking story.  Hopefully you all will find this insightful and may help you educate or win arguments with your friends, colleagues, and family.

Outline:
1.  1st Amendment
2.  14th Amendment
       a.  Due Process Clause
        b.  Equal Protection Clause

Note 1: This diary turned out to be somewhat long.  I have it broken into three sections:  1st Amendment, Due Process Clause, and Equal Protection Clause.  In my opinion, the Constitutional Right to gay marriage is rooted in the third section, the Equal Protection Clause.  So if you are only in the mood for skimming, just go down to the bottom of the diary and read that.  If you are looking for a thoughtful analysis of many Constitional issues regarding gay marriage read the whole thing. :P

Note 2:  I used blockquote to organize the argument more so it's not just a hunk of text.  It is easier to read.  I am only adding this disclaimer so you all know that unless the text says otherwise, the blockquotes are original work.  

Well the argument in favor of gay-rights pretty much boils down to the 14th Amendment.  Before I get to that though, I'll pay some lip service to the another part that some might say favor gay marriage.  

1st Amendment:  

The 1st Amendment says that

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

Some have construed that gay marriage prohibition "respect an establishment of religion" because anti-homosexuality is predominately rooted in the bible.  

The main [secular] anti gay-marriage argument is that gay marriage will harm the traditional family structure (and thus the socialization of children) and discourage procreation.  To determine if an establishment of religion exists we can look to the Lemon Test.  The Lemon Test was created in Lemon v. Kurtzman.  It has two components (originally had three but that has changed) and they are:  Does the law have (1) a secular purpose and (2) a primary secular effect that neither advances nor inhibits religion.  

Under the first part of the test the anti gay-marriage advocates argue that preserving families and encouraging procreation are the primary secular purpose.  The primary effect of gay marriage bans is that gay people can not enter a legal contract known as marriage or enjoy the benefits thereof.  I tend to agree with this reasoning.  With the religious element out of the equation though there is only the "pro family" argument that the law has to rest on for justification.  This will be important when we look at the next part of the Constitution...

Welcome to 14th Amendment:  

The 14th Amendment was created in the aftermath of the Civil War to ensure the liberty and equality of black slaves.  In fact most of the amendment deals with how to deal with the ex-rebels, claims by the South of monetary compensation for lost propoerty and also gives the right to vote to ALL 21 year old men.  Anyway, I digress.  Here's what the (important) part of the amendment says:

[No State] shall 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

This important part of the amendment is broken down into two parts: the Due Process Clause and the the Equal Protection Clause.  

Due Process Clause

The government cannot take away liberty without Due Process.  This applies to both federal and state governments.  So what is Due Process?  There are two mainstream standards used by our courts to give all liberty-breeches "Due Process."  They are ordinary scrutiny and strict scrutiny.

Test 1:  Ordinary Scrutiny  Does the government have a legitimate interest to pass the law and are the means rationally related to meet that interest?  This test is easy for the government to beat.  The burden is on the complaintant to prove that the government has no reasonable interest.  Almost any law can pass ordinary scrutiny... marijuana prohibition, speed limits and disorderly conduct laws are just a few examples that would withstand merely ordinary scrutiny.  There are no Constitutional rights protecting our right to smoke pot so it is reasonable to use ordinary scrutiny in that case.  But what if the government is passing a law that violates a fundamental right, like free speech?

Test 2:  Strict Scrutiny  Does the government have a compelling interest to pass the law and are the means neccessary to acheive the interest?  With strict scrutiny, the burden is on the government to prove that theres a "compelling" reason to pass the law and to prove that the law absolutely is tailored to the compelling interest with no more restrictions than needed.  The government usually loses when its laws are put up to strict scrutiny.  

In regards to Due Process, this is used only for "fundamental rights" which includes essentially most of the Bill of Rights.  But it also includes a "right to privacy" which is not expressly granted in the Constitution but was derived by some Supreme Court justices (see Griswold v. Connecticut) who thought the Constitution gave a right to privacy based on a "penumbra" of other constitutional rights (no search and seizure, right to free speech, right to excercise religion, etc.).  

The right to privacy has been used since its mid-20th mostly to protect sexual and relationship decisions.  It gave parents the right to home school their kids, the right for married (and later single) couples to use birth control, and most famously it was the foundation for Roe v. Wade.  

So how does this tie into gay marriage?  Well a couple of years ago the Supreme Court overturned sodomy laws (in Lawrence v. Texas) based on this right to privacy.  Justice Kennedy, delivering the majority opinion, said:

The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

I must make clear however that the court avoided using any language which would imply a right to same-sex marriage in Lawrence v. Texas.  Regardless, if we have a fundamental right to make private choices in a marriage (for example, birth control), and a fundamental right to engage in same-gender sex, then do we have the right to enter marriage with someone of the same gender under our fundamental right to privacy?  

Lawrence v. Texas was decided on a 6-3 decision with Justice Kennedy delivering the majority opinion.  If the same case were held today, Alito would bring O'Connor's vote into a 5-4 decision upholding the same principles.  Justice Kennedy has a reputation for upholding precedent and there are 4 other liberal judges right now.  It's very possible that the current Supreme Court could rule gay marriage as a constitutional right.  

On the other side of the Due Process (right to privacy) debate, I should also point out that the right to privacy is very controversial, even among liberals who pay close attention to the workings of the Supreme Court.  Someone may strongly believe that a "right to privacy" is a great idea but that Congress, not the SCOTUS, should be the ones to give us that right.  Remember that "over reaching" is a two way street and just imagine how mad we'd be a if a right-wing court established a fundamental "right to property" and said that anything about a 30% tax rate was a fundamental violation of our right to property.  In this sense, perhaps the court should eliminate the right to privacy or refrain from expanding that right.

If we accept that gay marriage is not part of a fundamental right to privacy then anti gay-marriage reasoning undergoes the Ordinary Scrutiny Test and gay-marriage bans are upheld.  If we believe that there is a fundamental right to privacy AND gay marriage is protected under that right to privacy then gay-marriage bans must undergo Strict Scrutiny and will most likely be ruled unconstitutional.  It all hinges on whether gay marriage is a part of the right to privacy or not.  

(note: I did not apply anti gay-marriage reasoning to ordinary and strict scrutiny under this part of the diary but I did apply it at the bottom of the diary because I think that the Equal Protection argument is more convincing than the Privacy/Due Process argument.)

So... right to choose the gender to marry based on the right to privacy or not?  You decide.  

I think the Equal Protection clause is the convincing reason that a right to gay marriage exists.  You may want to go refill your cup of coffee quick.  You think it's long reading this?  Well, it takes longer for me to write it :)  

Okay, I got my coffee.  Let's rumble.

Equal Protection Clause

Everybody has a right to equal protection under the laws.  "But wait!" One might ask, "if everybody has equal protection then why can an 18 year old vote but a 5 year old can't?"  The reason why the government can discriminate sometimes but can't discriminate other times goes back to our old friends Ordinary Scrutiny and Strict Scrutiny.  The tests remain the same as above but I'll copy and paste them down here and explain how they, and their new friend Heightened Scrutiny, apply to the Equal Protection clause and then we will see how gay marriage fits into all of this.

Test 1:  Ordinary Scrutiny  Does the government have a legitimate interest to pass the law and are the means rationally related to meet that interest?  As stated before, the complaintant must prove the government's discrimination is unreasonable and the government usually wins.  People with poor eyesite can't drive cars without restrictions and children cannot vote.  These are examples of standard, justified discrimination that merely must pass ordinary scrutiny.

Test 2:  Strict Scrutiny  Does the government have a compelling interest to pass the law and are the means neccessary to acheive the interest?  As stated before, the government must prove its discrimination is for a compelling purpose and the government usually loses anyway.  This is applied whenever the category of individuals discriminated against are part of a "suspect class" (see below).  Race is the main example of a suspect class.  Any law that discriminates against blacks must withstand strict scrutiny.

Test 3:  Heightened Scrutiny  Does the government have an importantinterest to pass the law and are the means substantially relatedto acheive the interest?  This is an in-between test that was created for gender-based discrimination (man versus woman discrimination).  The justification was that women weren't as suspect of a class as blacks were but were definately subject to unfair discrimination.  The benefit of this classification is that it reflects reality more: not everybody is at an extreme; some are in the middle and this test allows us to accurately scrutinize those that are in the middle.

(Cool New Term) Suspect Class.  So how do we determine if someone is part of a suspect class?  There are 3 main criteria.  I will describe each criteria and apply homosexuality to it.

Does the Class (group) of people discriminated against have a(n):

1.  Immutable condition.  Race and gender are both immutable conditions-- you're virtually stuck with them.  Age is not.  Is homosexuality immutable?  Well don't ask me, check out this FAQfrom our friends at the American Psychological Association.  Here they say that

human beings can not choose to be either gay or straight... psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed.

 Seems convincing to me.

2.  History of repressive legislation.  Well members of minority races certainly have a history or repressive legislation (slavery and Jim Crow).  Females were denied the right to vote for way too long but were better off than blacks were at any rate.  There is definately been repressive legislation in regards to gays.  A while ago Colorado passed Amendment 2 which was struck down by the Supreme Court because it eliminated all same-sex benefits offered by any local governments.  We have 'Don't Ask, Don't Tell' in the military.  Laws banning sodomy.  There are plenty of examples of repressive laws.

3.  Discrete and insular condition.  How bright is the line seperating members of one Class from everybody else?  Race has an obvious line (physical characteristics, most notably skin tone).  Genitals are a rather insular difference between men and women.  Homosexuality is harder to pin down.  Bisexuals complicate matters quite a bit, but so might mixed ethnicities, hermaphrodites, and transgendered peoples.  You also can't tell someone is gay just by looking at them or talking to them.  Again, a man might look like a woman.  Who knows.  I personally don't like this criteria very much.

All of these factors are considered when deciding whether to label a certain class of individuals a "suspect class."  This is all qualitative, so everyone might have different ideas about how immutable homosexuality is, or how repressive legislation has been against them.  

Current precedent calls for merely ordinary scrutiny when deciding if laws that discriminate against homosexuals violate equal protection guarantees.  Let me repeat that, because this is ridiculous.  Current precedent calls for merely ordinary scrutiny when deciding if laws that discriminate against homosexuals violate equal protection guarantees.  

So basically, the courts are saying that gays aren't significantly oppressed or unfairly discriminated against.  They say that homosexuality is not immutable; it is indeed mutable.  It's just a choice anyway, despite what the "scientists" have to say.  This is outrageous and ridiculous.  The courts are simply wrong.  

I see no other choice except to use Strict Scrutiny to evaluate any governmental discrimination against gays.  So how does the anti gay marriage hold up under Strict Scrutiny?

Refresh yourselves on the strict scrutiny test up above if you need to really quick, because we need to apply them to gay marriage.  The only real secular argument that anti gay marriage advocates can claim is that promoting heterosexuality is good for families.  Specifically, children are harmed by having homosexual prents and homosexuals can't procreate for society.    

Application of Test 2:  Strict Scrutiny  Does the government have a compelling interest to pass the law and are the means neccessary to acheive the interest?

Compelling Interest?  Personally, I accept (and almost any court) would accept that preventing harmful situations for our children and promoting procreation are probably compelling objectives for the state.  After all, the well being of our children affects the health of our soceity once they become adults.  In order for it to be a compelling objective though, this really has to be about the difference between healthy children and either socially harmful children or no children at all.  Are gay marriage bans neccessarily tailored to this end?

Neccessary means?  No.  Gay marriage bans ARE NOT closely designed to accomplish the compelling objective of keeping our society's social fabric from deteriorating.  According to the APA, children who grow up in homosexual households are JUST AS HEALTHY in regards to "intelligence, psychological adjustment, social adjustment, and popularity with friends."  Here's a whopping surprise from the APA about gay men too:

Another myth about homosexuality is the mistaken belief that gay men have more of a tendency than heterosexual men to sexually molest children. There is no evidence to suggest that homosexuals are more likely than heterosexuals to molest children.

Gay marriage bans also have NO negative impact on procreation.  Homosexuality is IMMUTABLE, so whether they are married or not they will procreate at the same rate.  Marriage might actually encourage homosexual couples to adopt or bring a child into the relationship through a friend of the opposite sex.  The reason marriage might have a positive impact on this is because there will be legal encouragements (inheritance, health care, etc.) to do so.

Remember here too that under strict scrutiny, the burden is on the government to prove that it's case is compelling and the means are neccessary to acheive the compelling interest.  They simply cannot prove that legally sanctioned homosexual families are detrimental to society or (even if they were) that banning gay marriage will solve for the "problem" because that evidence does not exist.

Some people may argue we should use the heightened scrutiny test for gay marriage instead of strict scrutiny.  Heightened scrutiny is the same test we use for gender discrimination.  I think it is reasonable.  I also think that gay marriage bans would be struck down under this test as well because the facts simply don't match the rhetoric.

In a nutshell:  The Equal Protection Clause was added to our Constitution in the wake of the Civil War to make sure that equality was a Constitutional mandate.  Homosexuality is more akin to "race" than "age" in terms of immutability and discrimination.  Homosexuality is a suspect class.  All legislation discriminating against gays should be subject to the Strict Scrutiny test.  Since gay-marriage bans fail that test, gay-marriage bans are unconstitional and should be over ruled by the Supreme Court.

Thanks for reading.  It was kind of long but it's a very important subject.  I threw in some italicized and bold print to keep it pretty.  :)  Now remember that the strongest part of the argument hinges on whether homosexuals are a suspect class or not.  I think it is easy to argue that they are a suspect class, and that's really the major flaw in (most) thinking in the courts these days.  Go to your friends, families, and colleagues armed with this knowledge and upstage them with fancy legalese like: 14th Amendment, Equal Protection Clause, Strict Scrutiny Test, and Suspect Class.  ;)

•  Tips?

  ...spent a lot of time writing this.  :)

  by Tetris on Mon Dec 18, 2006 at 07:13:39 AM PDT

•  Thanks. good work. n/t

  by ExStr8 on Mon Dec 18, 2006 at 07:18:35 AM PDT

•  visually attractive diary...

  but the scary thing is... according to GOP experts... if we allow gay Americans to marry one another... before you know it, I'll be allowed to marry your diary!

  by skyterrain on Mon Dec 18, 2006 at 07:18:48 AM PDT

•  Yes

  I think it is likely that marriage equality is a Constitutionally-assured right in every state.  However, I think that it will be some time before this is all settled at the Federal level.  The best measure for now seems to make progress at the level of individual states.

  by bink on Mon Dec 18, 2006 at 07:22:18 AM PDT

  •  Massachussetts and New Jersey

    ...are on the right track.  I think we are on the track towards gay marriage, and it will probably happen in the Supreme Court before Congress takes it on (remember Brown v. Board of Education anyone)?  Hopefully Bush doesn't put any more wing nuts on... if we can get a Democrat to nominate the next 5 justices...

    by Tetris on Mon Dec 18, 2006 at 07:24:51 AM PDT

•  Same arguments..

  were used in the mid-1800s to argue that women had the "right" to vote.

  Didn't work then, either. Took a Constitutional Amendment. That didn't happen until 1920 (think about it; less than 100 years ago, your great-grandmother couldn't vote!).

  Wishing doesn't make it so, even if your argument on its face is completely logical and consistent. The current Supreme Court will not decide in your favor if you were to take it to them with this argument. They've already said that the states have the right to regulate marriage. And that's what the states have been doing in their various ways, both pro (Mass) and con (too many to mention).

  The Constitution is not your friend in this regard.

  by kmiddle on Mon Dec 18, 2006 at 07:23:10 AM PDT

  •  Modern law

    Brown v Board of Education (for people of color)
    Title IX Decisions for women

    and a long list of others suggest its not wishful thinking.

    If you got to go back that far to make your poin- pre 14th Amendment, pre- civil war, then your point in modern Con Law juris, isn't a good one.

    by bruh1 on Mon Dec 18, 2006 at 07:37:30 AM PDT

  •  Maybe it *didn't* work, but shouldn't it have?

    Maybe the female suffrage argument didn't work until there was a constitutional amendment, but I can't believe that was because of a problem with the Constitution; I think that's more a reflection that nine guys on the Supreme Court (or certainly at least five) were not going to empower women to vote, language be damned. When the Supreme Court really doesn't want to do something, they usually find a way to really not do it (see, for example, Bush v. Gore).

    I suspect that's part of why there was momentum for a constitutional amendment, in fact, because there was an obvious flaw in the interpretation/enforcement of the law. I could see the same chain of events happening on an issue like this, too.

    Also, I think arguments like this are a crucial part of the transition of public sentiment from "Hah, who thinks that's a good idea?" to "Yeah, that's pretty stupid and unfair and probably ought to be illegal, too..."

    by Christopher on Mon Dec 18, 2006 at 07:39:00 AM PDT

    •  the analysis is also not very useful

      because this was con law juris before the creation of the modern tests which have evolved into what they are now due to cases like Brown v board of education. women are now given higher scrutiny under equal protection,.

      by bruh1 on Mon Dec 18, 2006 at 07:45:44 AM PDT

  •  Particularly notable

    once a number of state had granted women sufferage, the "peer pressure" of the others to follow made the constitutional amendment a much easier thing to adopt.

    Once enough states have gay marriage, denying its existence when lots of gay married couples are out there and de facto boycotting states that don't have it would give them a strong incentive to act of their own accord.

    by ohwilleke on Mon Dec 18, 2006 at 08:39:20 AM PDT

    •  which would do nothing

      to change federal law on the issue.

      by bruh1 on Mon Dec 18, 2006 at 11:34:07 AM PDT

      •  It would change the politics of the federal law.

        by ohwilleke on Mon Dec 18, 2006 at 01:59:52 PM PDT

        •  thats incorrect

          the politics at the federal level for african americans didn't shift- and thats the better and more applicable comparison until the change at the federal level , and not because some states changed their laws. Most of the south and many states were still discriminating against blacks until Brown v Board, and it required Brown v Board II to actually start to see action. And even then, places like my hometown did not dissegrate until 1969- a ful 14 years after Brown v Board. As a result of the changes, my alma mater didn't allow women into the school until 1972 with the aplicability of equal protection to women. Indeed, women gained the most from programs like affirmative action which grew out of the federal level. They went from less than 10 percent of the legal professon to over half in under 20 years or so. Women aren't a minority, and that's why for example the rules regarding blacks are more applicable to the circumstances here. But even for women, the rights accrued in the work place, and as a result of actions like Title IX were as a direct result of federal, not state action. Aborton rights as a separate issue from all that I have discussed also grew out of federal action.  I could go on but I have made my point.

          by bruh1 on Mon Dec 18, 2006 at 02:12:30 PM PDT

          •  While federal law can drive

            changes in state laws and attitudes, it often goes the other way.

            by ohwilleke on Mon Dec 18, 2006 at 02:20:26 PM PDT

            •  No it does not

              You keep making general pronouncement which frankly would take me a lot of time to disprove, so I am just going to do the easy route and say that factually you are wrong. Historically you can not point to any significant movement for the increase of rights in the last 100 years that can be attributed to any state based action being the impetus, and before that the results were so piss poor on so many fronts to try to do so is to engage in a revision of history. From the movement for women's right, to worker protection rights, to rights involving securities regulation for shareholders  (which i will grant you finally the states started to pick up AFTER the federal changes), rights fo the criminal defendant, there has been a long history of the federal leading the most important advances in rights in this country. Point to specifics- your generalities are the fantasies that conservatives like to argue, but specifics is what embarasses them.  show me specific multiple indicators that your assertion is correct. Indeed, the movement to limit the rights of plaintiffs against state actions right now is based on this fantasy so I will require multiple examples before I feel you can make that general non descriptive claim. Andrew Sullivan likes claiming that the states will make the changes, but he can point to no where  this assertion is true. I am asking you, sense it's sort of you to prove that the federal strategy is wrong, because the states will do it instead, to prove it. Show me the money. No generalities.

              And more importantly,just to let you know, your point is still irrlevant even if you could prove it else where. The problem you face is that the right of marriage is actually a complex of rights mixing state, federal and local rights that cross state borders. There is no credible way you could separate out the issues without facing the problems that the civil union people are facing. namely, how are these laws interpreted by companies, by the federal government for benefits, and multiple other fronts which matter in the lives of real people who can't wait until the states are "ready" whatever that means sense you haven't prove your case.

              Any solution that will remotely make sense will start at the federal or end there- either way- it will be at the federal because that is where the issue of differences in the laws will have to be addressed. The court for pragmatic reason may avoid the question but that's not a legal argument. That's I am too afraid fo the consequences argument. There were a number of times- especially in the thirties- where the courts could have overturn plessy but choose not to do so. Instead, African Americans had to wait a nother 20 plus years. I suppose the logic is that was "better" for them. but thats incredible easy for someone not suffering form the lost to say.  Don't confuse the civil rights movements realization that they would have to continue fighting with what still might not have happened in 1955. And as for your other comments that some people don't liek the decision- tough. Monday morning quarterbacking is easy. Harder is figuring out what actualy happneed, and could better be created. Show me that it could.

              by bruh1 on Mon Dec 18, 2006 at 03:38:29 PM PDT

              •  Labor laws and worker's compensation

                both arose at the state level before they were adopted at the federal level.  Many of the protections were initially for women and children and miners only, and then expanded.  Unions were well established before they won federal protections in the 1930s, and there was more private sector unionization before the NLRA than there is now.

                Indeed, the Lochner Court was famous for repeatedly striking down state labor and consumer protections at the federal level for many years before the "switch in time that saved nine" caused it to change course in the face of a court packing plan.

                No-fault divorce was a state development (mostly in the 1960s).  So was the notion of non-legislative divorce at all.  Indeed, most of the federal laws impacting marriage arose out of the 1930s New Deal programs and the income tax.  Both were desirable, but both were quite late in the game.

                Juvenile executions were banned at the federal level because they were banned at the state level in most states.  The reduction in use of capital offenses from most serious felonies to primarily murder was a state development before it was a national development.  This was followed by the state level revolution that allowed execution only for first degree murder (Pennsylvania was the starting place IIRC) and not second degree murder or manslaughter.

                Prior to the civil liberties revolution of the late 1950s to early 1970s, one of the more important civil liberties was the state protected right to self-defense against malfeasant police.  The right to a direct appeal a criminal conviction also developed first at the state level and did not exist in the federal system until the 1890s.

                Voting for women started at the state level.  So did the married women's property acts (in the late 19th century prior to the right to vote) that gave women the civil rights (in the older sense of the word) to own property, make contracts and run their own busineses.  Indeed, there was never significant federal legislation on the married women with property front.  States have also been the genesis of inheritance rights more protective of women.

                Liability for defective products in interstate commerce was protected at the state level (largely due to decisions of California courts that were copied nataionally) before federal legislation intervened and federal legislation has largely restrained such litigation.

                The decriminalization of adultery and fornication took place almost entirely at the state level while it still remains in obscure federal law like the Uniform Code of Military Justice.  Lawrence was a capstone, that simply closed the books on something already banned in most states and indeed followed a state level repeal of the law upheld in Bowers v. Hardwick.  Federal housing discrimination laws nudged this along a little midstream, but change happened at the state level first.

                Abolition took place on a state by state level long before the 13th Amendment.  Indeed, it happened despite federal protections for slavery.  Many states had dismantled miscegenation laws before they were required by the U.S. Supreme Court to do so.

                Prohibition was widespread at the state level before it became federal law.

                Gay rights has developed at the state and local level much more quickly than at the federal level.  Several states now have gay rights or civil unions, none of which do so in reliance on the federal constitution.  Many localities have domestic partnership statutes and many states have laws banning discrimination on sexual orientation not found at the federal level.

                State action cracking down on domestic violence well preceeded laws banning purchases of guns by people convicted of domestic violence crimes.

                by ohwilleke on Mon Dec 18, 2006 at 04:11:57 PM PDT

                •  let's go through your examples

                  easy ones first:

                  a) prohibition is a restriction on rights.  are you arguing thats an increase of rights? bizzare argument to make.

                  b) abolition didn't happen because of state by state response. the south went to war because of abolition. it happened because the South was given no other choice under the 13th amendment. I dont know what fantasy reality you live in. But the South even under threat of ecomic depression, and the actual impact of a war, was still resistant, and remained so even with the passage of various statutory acts, con amends etc.

                  c) Gay rights didn't change after Bowers v Hardwick. It changed after lawerence- if the laws had changed- we wouldn't have needed lawrence. Lawrence happened because a harm occured when an actual plaintiff was put in an actual jail for having gay sex. which is really me just restating Con Law I- actual harm, actual plaintiff- and all that stuff about what must happen before S Ct will even hear a case. So, again not sure what unreality you live in, but its not matched by your choice of argument. Lawrence didn't capstone anything (unless you are referencing straight sex discriminstation) it was about discriminaton against gays. It overturned Bowers v Hardwick which was decided based on the idea that the state could criminalize gay conduct. it was based on international shifts as much as anything as per the dicta of the case. Nice fake out though. I love with conservatives do that (i know, I know you aren't a conservative but the argument certainly is misdirection in that its misses the point fo the whole fucking case, and not only does that ignores that the law was changed officially not at the state, but the federal because the states still refused to change the law. In fact, one state still had a 16 year old jailed for having sex with another boy around his age because of sodomy laws even after the case because they refused to enforce the federal ruling until the federal court stepped in to force them to do so, but of course, you apparently dont know that).

                  d) Gun bans are not based on domestic violence- that's a red herring. Its based primarily on a response to the fact that again guns a trafficked across state  lines, and there is no easily local redress to this fact. For example, a gun recently purchased in VA was used in NJ to shoot NJ police officers. There was no way to address the issues of the case because VA law, the juris under which teh gun seller was located, was didn't have any law sufficient to protect against vicarious liability. Under this theory of liability, if, as in this case, you sell a gun to X when you know that X is buying the gun for Y (who has a crimilar record to circumvent the laws against criminal gettings guns) then one should be able to find you liable. However, that's not easy to do state by state. Also, it doesn't address the whole issue of identifying chain of custody in gun violence cases where a gun is the only thing found at a grain scene. They, law enforcement, wanted a sort of finger printing of guns for this purpose. Again, not possible if the database if only of guns in NJ for example, but not VA. For the record, I am for gun rights, but I am also pragmatic about it.

                  e) Tort law- which is what I suppse you mean by products liability- grew out of very specific legal doctrines which aren't enumerations of rights. THey are about specific harms, and protections against harms. Not violations of rights. It's inapplicable unless you are going to go more radical than any liberal ever would in terms of the applicability of such areas of law. It's also amusign to hear that arguing sense hte conservative position is to limit the ability of defendants to claim damages or obtain redress is tort matters. Historically, the changes- that have caused these changes were multi state- ie, Ralph Naders movement for example. i can go on with this but again its a long subhject.

                  f) Voting for women. Happened through an amendment to the constitution. Saying it was in some states, bu tnot other, as you have done throughout, presupposes that the others would follow suit when you have no indicator that they would have. I went to a conservative unviersity. As of 1972- thats right 1972- they still were not letting women into the school until they were forced under federal law to do so. If your argument had any validity at all- if the flood gates were being openned in the 1920s for womens rights- then why did it take another 50 yrs to change the laws regarding getting an education? THe flaw in your argument is to confuse effect and cause.

                  g) Anything going beyond the 1900s is a joke considering the protections for civil liberties were a joke. I am not going to take that argument seriously. Sorry, just another red herring to me.

                  h) Junille Executions continued until recently when the S Ct expressly stopped them again. They were on the rise. Indeed, since you are on that subject, many states including TX still allowed until recently (as in a 2 or 3 years ago) for the execution of the mentally retarded. Basic criminal law 101- state of mind is one fo the basic elements of a case.  THe idea that a mentally retarded person could understand the nature of his actions in teh same way as a non mentally retarded person made about as much sense as that of children. And, inthe meanwhile, again, while you would have the defendants being harmed wait for the voters of TX to catch up with the nature of what they were doing- there were still multiple defendants being presently harm. That's going to be a continued them of this post by the way. That your argument requires one to accept continous harm in order to feel the states may (not will) but may change the laws when there is no proof that all of them will. Indeed, there is every evidence that they will not.

                  i) Divorce- again- the problem or fly in your analysis is that yes, divorce is state based, but the rights resulting from them are not specific to one state. If you divorce in TX- maine has to respect that decree and the rulings based on it unless some conflict of law exist requiring property, but a lot of depends on where you were married, and that doesn't address the federal issue of whether or not for federal law you are considered divorce. Your argument sort of again side steps the problems. I am still waiting for you to not do this by providing some examples where you dont say- yes well there is federal involvement that's key, and yes, the federal involvement was important in the modern state, but nevertheless somehow through magic pixie dust we are going to avoid this issue with gay marriage rights.

                  h) Now the most complicatd one- labor law and workers compensation. I suppose a lot of this depends on when you think things improved for workers? I would argue that didn't really occur until the FDR era which allowed for many of the safety standards to be put in place, and it didn't occur until laws preventing union busting, etc. The federal law allowed for an environment where things could improve. It clearly didn't do it by itself, but nor, as I have said else where can you say that development as been uniform. Down south, where I m from, the lack of higher labor standards, allows for Wallmart to do a lot of shit that they are being blocked from doing at the federal level. It also used to prevent state governments from mistreating their employment until the judicial activism of Scalia and co found a meaning in the 11th (??) amendment for the first time that had never been found there since the constitution was ratified. But its us lefty who are radical judicial interpretationists.

                  The problem you face- frankly- as I have gone through your examples is that none of them help you argue against my point. You can not solve the issue of federal rights regarding marriage by saying that you have civil unions. There is no reqirement that anyone recognize them. indeed, there need not ever been any such requirement. TX can always decide it doesn't apply to TX. They have done so with clearly obvious cases like mental retardation where multiple states band it and still they had to be forced as of 2 or 3 years ago to change their draconian laws. Your argument can not solve the issue of discrepancy in the laws, unless you rely on full faith and credit. Full faith and credit is a federal requirement under the Con Law which supposedly is inapplicalbe do to Clinton's anti marriage act. This hasn't been tested, but if it is, it's not clear what the court will do, but its clear that it would require federation action to resolve disputes between the states (another one of those pesky con law concepts). The other core problem your argument face were you to solve the federal issues question, the controversy between the states questions, is that of interntional issues. if I marry a guy from Denmark- I dont get to call that a marriage, and move him here. Immigration is clearly a federal question.  There are multiple other problems with your argument, but I think you get ht epoint. peace.

                  by bruh1 on Mon Dec 18, 2006 at 04:55:40 PM PDT

          •  one other point

            to get to brown required moral courage, something decidedly lacking in todays discussions about anything ont he left. all of it is this sort of well "i am above the fray" bs which sounds good but factually is just wrong because it runs counter to how things were actually won.

            by bruh1 on Mon Dec 18, 2006 at 03:40:57 PM PDT

•  I support the idea of gay marriage but

  it strikes me that the entire argument hinges on one question - is homosexuality an inherent characteristic or is it learned "chosen" behavior?  If it's the first, which I believe it is, it's easily arguable that it should be treated as you say a suspect class.

  If it's the later, those arguments fall apart.  At the heart of all this is how the majority of the American people view that question.  It strikes me that public perception on that issue is moving steadily in the direction of viewing homosexuality as an inherent characteristic.

  by calebfaux on Mon Dec 18, 2006 at 07:30:23 AM PDT

  •  asdf

    Even if its a learned behavior, evidence points that it is immutable once learned.  So one may be born gay or turn gay based on childhood events, but at any rate once a homosexual reaches sexual maturity he/she is "immutably gay."  

    Of course some would disagree w/ that and say that it can be turned back.  Personally I think it's sick to send someone to "gay camp" or whatever.  But that's besides the point.

    by Tetris on Mon Dec 18, 2006 at 07:38:10 AM PDT

  •  The question for the ages, but answer's

    beginning to take shape.  Although there are some who'll never be convinced.  

    Seems I recall studies showing a minority of the animal kingdom are homosexual in conduct.  If so, same-sex orientation is simply something inherent in some creatures and not others, as lower rungs in the animal kingdom don't "choose."  There are recent studies showing some evidence of a "gay gene" (Goggle it), too, but, as usual, more research is needed.  

    Nice diary, btw.  Very well thought out and written.  

    by DC Scott on Mon Dec 18, 2006 at 07:39:50 AM PDT

  •  in

    that case the same arguments could me made for ethinicity. That's not imutable, but it is protected. The question is how, in other words, one understand immutable. It's not dependent, and  nor should it be on majority decision.

    I will leave you with this- if in Brown v Board they had waited for the majority, African Americans would have stayed under Jim Crow. That's not a theory, that's a fact. My city for example didn't desegregate until 10 years after Brown under force of court order, and after trying to fight the decision for over a decade.

    I think what maybe useful in these discussion is a bit of Con Law history regarding what has happened in other examples. The one I give above about race is a powerful reminder that the majority can be wrong. Waiting for them to be right can be a fools goal.

    Until recently race was seem, despite evidence, as being something less than human. Read up on Charles Drew (I believe that's his name) for what happened when he discovered that blood types of the races were the same, and that blood was interchangeable between the races. desipte the evidence, the public still disbelieved it. Despite the evidence blacks were inferior. I think sometime we misunderstand how these things happened in the past. Sometimes the law had the change, and then the public came along, not the reverse. Indeed, often it was the law first, then the public. Not, the reverse.

    by bruh1 on Mon Dec 18, 2006 at 07:43:38 AM PDT

  •  Religion, occupation, opinion....

    These are all mutable, you can change them. But you can't fire someone because of their religion, it is constitutionally protected.

    A lot of things are constitutionally protected that are also changable.

    Not sure that argument falls apart as you say even IF it is mutable (which for most it is not)

    by wclathe on Mon Dec 18, 2006 at 08:19:14 AM PDT

    •  It's very sick - agree

      but from a philosophical/legal aspect something that is immutable is different from something that is not.

      by calebfaux on Mon Dec 18, 2006 at 09:36:44 AM PDT

      •  Somehow that comment got attached to the wrong

        comment- was meant in response to one above.

        The changeable things that are constitutionally called out are well defined.  The constitution it seems to me is largely silent on sexuality, which leaves the door open for multiple interpretations.  

        But in spirit there seems little question to me - people have a right to be protected in how they live their lives so long as their choices so not encroach on or damage other people.  The notion that homosexuality is a threat to much of anything is basically nonsense.

        by calebfaux on Mon Dec 18, 2006 at 09:44:36 AM PDT

        •  I understand the

          immutable argument- but its not necessary that the immutability be biological is the point I am making.

          by bruh1 on Mon Dec 18, 2006 at 11:35:35 AM PDT

•  I wish I'd thought of the First Amendment point.

  That's a great point about barring gay marriage being a violation of the First Amendment; I knew there was something wrong with the idea that the Baptists could tell the Unitarians they couldn't do gay marriages that meant anything civilly.

  Also, I've often wondered why a ban on gay marriage by the government isn't simple sex discrimination: a man can marry a woman - so why can't a woman marry a woman?

  (though I'm sure there's something I'm not including in that brief constitutional law argument)

  by Christopher on Mon Dec 18, 2006 at 07:33:02 AM PDT

  •  Actually you have a great argument.

    Check out Loving v. Virginia, which ruled interracial marriage bans unconstitutional.  In fact, Virginia (arguing to uphold interracial bans) said that equal protection isn't violated b/c each race can equally marry their own race.  

    The SCOTUS said that wasn't the case b/c it only banned whites and non-whites from marrying, but blacks could marry indians, for example.  Here's the majority opinion:

    Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... 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.

    The bottom line is that the courts simply do not see homosexuality as equal to either gender or racial discrimination.

    by Tetris on Mon Dec 18, 2006 at 07:42:44 AM PDT

    •  Forgot a link

      Here's Loving v. Virginia.

      by Tetris on Mon Dec 18, 2006 at 07:46:23 AM PDT

    •  Isn't homosexuality-based discim gender discrim?

      I still don't see how any kind of homosexuality-based discrimination is not gender-based discrimination - because ultimately any law that treats gays/lesbians differently from straight people says, "If you want to have sex with men instead of women (or women instead of men), you get treated differently."

      I can totally see how this isn't popularly recognized, but I can't see how it's not logically true ;-)

      by Christopher on Mon Dec 18, 2006 at 08:09:37 AM PDT

      •  I've made the same argument

        that discrimination based on sexual orientation is gender discrimination that doesn't even require a new class

        by bruh1 on Mon Dec 18, 2006 at 11:36:50 AM PDT

•  Great work, but irrelevant.

  Your posting is well researched and logical. And it's irrelevant, at least at present.

  As long as Republicans and their friends in the Religious Right can get and maintain power by appealing to homophobes, they'll appeal to homophobes.

  And they'll get away with it as long as Democrats remain spineless and run from the concept of equal rights for ALL Americans.

  by S1NV on Mon Dec 18, 2006 at 07:35:16 AM PDT

  •  So true...

    ...unless we can seize the SCOTUS.  

    I am hoping that trends are moving in favor of the liberals on this issue though.  My home state of South Dakota almost struck down Amendment C which banned same-sex marriage.  I think the final tally was like 53% - 47%.  In South Da-freaking-kota.

    by Tetris on Mon Dec 18, 2006 at 07:44:47 AM PDT

  •  I was talking with a blow hard

    I asked why he thought it was wrong ,
    he said its wrong because its wrong ,
    so I asked why is it wrong ,
    its wrong because its wrong ....
    So I asked him why he cares if two people he will never meet , see or hear about get married .
    You will never guess ,
    its wrong because its wrong .

    All the facts in the world will not fix some people .
    Is stupid a Immutable condition ?

    by indycam on Mon Dec 18, 2006 at 08:56:46 AM PDT

•  it's interesting

  Obviously, this stuff has been briefed and adjudicated before -- in New Jersey, New York, Massachusetts, etc -- and it strikes me that the proper level of scrutiny under current law is the "rational basis with teeth" line of cases for classifications where animus towards a socially disfavored group is perceived -- Moreno (hippies), City of Cleburne Living Center (group home for disabled), Romer/Lawrence (gays).  Except that gays weren't even considered when the original statutes were passed -- ther was no animus; "gay marriage" wasn't even a concept back then.  

  I'll jump to a meta-question, then: given our experience with Roe, are we as a society better off waiting for this to happen legislatively and incrementally, so it'll be more accepted?

  by Adam B on Mon Dec 18, 2006 at 07:45:46 AM PDT

  •  Good point about waiting for it legislatively.

    That's an important consideration.

    by Tetris on Mon Dec 18, 2006 at 08:12:13 AM PDT

•  They'd have a better shot...

  if they argued that it was some sort of liberty interest, instead of an equal protection issue.  To pass on an equal protection claim under strict scrutiny they'd have to prove it's an immutable characteristic.  But if they argued that it was a liberty interest, then they wouldn't have to argue equal protection.  However, if gay marriage was validated under a liberty interest, that would indeed create a slippery slope toward legalizing polygamy as well.  If a liberty interest allows the SCOTUS to change the sexes of those who can legally get married, this leads to the possibility of an argument being made that they should be able to also change the numbers of consenting adults as well.

  I dunno the answer.  But nice diary.

  by RyneSandberg on Mon Dec 18, 2006 at 07:45:58 AM PDT

  •  ...on the right to privacy

    You have a point.  It's hard to avoid some personal opinion in writing, and I'm probably guilty of that.  Personally I'm really hesitant to expand on the
    "right to privacy" under the liberty (Due Process) clause.  I just don't think the Court should have invented that right... Congress should have.  Don't get me wrong, I LOVE the right to privacy and it is wonderful, but I am just uncomfortable with the court synthesizing it.  So in my diary I left that part open ended since I'm not personally convinced by it (although anyone else certainly has a reasonable right to be convinced by it).

    And polygamy is just a stretch beyond homosexual marriage, under the liberty (Due Process) clause.  There are some distinctions so it's not neccessarily the logical extension though.

    by Tetris on Mon Dec 18, 2006 at 07:51:57 AM PDT

    •  I don't think it's a stretch...

      Hell, If I was from a different planet and they said which do you think would be legal first, polygamy or gay marriage, I'd guess polygamy, since it is more in tune with the "man-woman" marriage we are so used to. "Man-WomEN" would seem more acceptable under our laws than "Man-Man".  

      But just like I support gay marriage, I support polygamous marriages.  I mean, if that's what they wanna do, then I say "knock yourselves out."

      by RyneSandberg on Mon Dec 18, 2006 at 07:57:26 AM PDT

  •  The courts have to be convinced

    Sexual orientation is immutable. That's the only way to make it work. The only problem with that is that some people like both sexes, and while bisexuality is immutable as well it gives the impression of the opposite. It's not an easy case to win, but that's the one we must win.

    by Cali Techie on Mon Dec 18, 2006 at 08:21:21 AM PDT

•  Psychology is a failed science

  It is generally recognized that Freud failed.
  What has psychology done to improve the functioning of society?  Society is more dysfunctional today than than at almost any other point in its history.  Having failed practioners medicate.

  by monstersofid on Mon Dec 18, 2006 at 07:49:36 AM PDT

  •  uhm okay

    the analysis is based on actually following people around- not freud- and seeing what happens with actual outcomes, not theorectical opinions on behavior.

    also there is an abundance of science from biology which is weighing heavily in favor of their being a biological component. it's not conclusive, but the weight is extremely in favor of yes its immutable. so far in response to the science, the social sciece work, the anecdotal stories etc, the response has been its wrong because its wrong. that's not evidence of something being wrong.

    by bruh1 on Mon Dec 18, 2006 at 11:40:09 AM PDT

    •  "following people around"?

      I think it is sort of like imprinting or behavior modification and that does involve following people.  What is the biological component?  

      by monstersofid on Mon Dec 18, 2006 at 06:15:31 PM PDT

•  nit

  Someone may strongly believe that a "right to privacy" is a great idea but that Congress, not the SCOTUS, should be the ones to give us that right.

  Neither Congress nor SCOTUS give us rights.

  by Politburo on Mon Dec 18, 2006 at 07:52:12 AM PDT

  •  Congress can grant rights

    Congress can through Amendment (in conjunction with the states).  I personally think that Congress may be able to grant additional rights through mere law.  The 9th Amendment says:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    I think Congress could (at least try to) enumerate additional rights without Amendment by using this law.  The Supreme Court would ultimately decide whether this was legitimate, but I think it would be an interesting excercise of power.  Does anyone know if this has been tried before?

    by Tetris on Mon Dec 18, 2006 at 07:58:13 AM PDT

    •  well

      Depending on how you look at it.. things like the "Patients Bill of Rights" might fall under what you're describing (although this was not passed). I'm sure there's a better example that has passed. Ah, here's one:

      http://www.securityoncampus.org/...

      by Politburo on Mon Dec 18, 2006 at 08:13:18 AM PDT

    •  extra rights

      Congress can always add extra rights without amending the Constitution, they just can't take away rights without an amendment. Just look at social security, clearly not something contemplated in the Constitution but is now considered a property right by the courts which can not be abridged...

      by seagrams7ssu on Mon Dec 18, 2006 at 08:19:46 AM PDT

  •  human rights, no...legal rights, yes..n/t

    by RyneSandberg on Mon Dec 18, 2006 at 07:58:42 AM PDT

•  hmm

  Your argumants make sense but these would also be reasons why the right wingers would say we need a constitutional amendment to protect marriage.It all depends on your point of view.
  I don`t think when the founders wrote the constitution they considered gay people period, same as they  didn`t consider the rights of blacks .
  This really is a state issue and should be left up to individual states.I have no problems with gays marrying.I still can`t figure out why it upsets the fundies so much.
  I really think marriage was meant for a man and a woman but if two men or two woman want to do it I really don`t care.
  Still i doubt the supreme court would ever agree with you or even touch a case dealing with this. They would probably just punt it back to the states.

  by JOEL1954 on Mon Dec 18, 2006 at 08:02:07 AM PDT

  •  I agree...

    it's best left up to the states.  

    by RyneSandberg on Mon Dec 18, 2006 at 08:04:43 AM PDT

    •  it cant be just left up to the states

      marriage isn't merely a state by state venture- its one grounded in multi state and federal laws. 1200 federal rights acrue to married couples. on top of that, if one moves from one state to another, the full faiths and credit clause comes into force, etc. The idea that you can avoid the question by saying states rights ignores the reality of the institution as it is practice in america. the easiest way to handle it, and indeed the most effective would be at the federal because this way there are no conflicts of laws that will have rights be enforceable in one state, but not antoher which effect would be to effective deny rights.

      by bruh1 on Mon Dec 18, 2006 at 11:43:02 AM PDT

      •  A clean solution would have a much harder time

        winning the political consensus than a dirty one, with state by state differences, etc.

        There have been extended periods of time when key marriage issues (e.g. fault v. no-fault, marital rape v. no marital rape) have co-existed.

        There is a question over whether DOMA can validly reign in Full Faith and Credit, but federal DOMA hasn't been declared invalid yet.

        One area where federal conflict of laws rules, with state substantive law has worked pretty well is child custody controlled by the Parental Kidnapping Prevention Act.

        by ohwilleke on Mon Dec 18, 2006 at 02:14:03 PM PDT

  •  14th Amendment

    Wasn't written by the founders, it was written by the North after the Civil War.  So the "Equal Protection Clause" was very much intended for blacks and any other powerless minority for that matter.  They exactly what "Equal Protection of the Laws" meant when they wrote it and they did not limit it based on race (which they easily could have... for example, "no state shall deny equal protection of the laws based on race.")

    The framers may not have intended homosexuality per se as a protected minority status, but they intended that everbody have equal protection under the law and new what they were writing.

    So yes, I think homosexuality is protectd by the equal protection clause at least.

    by Tetris on Mon Dec 18, 2006 at 08:08:13 AM PDT

    •  My Grammar...

      was way off.  Let me clarify two points in the post immediately above this one:

      ...They knew exactly what "Equal Protection of the Laws" meant...
      ...but they intended that everbody have equal protection under the law and knew what they were writing...

      by Tetris on Mon Dec 18, 2006 at 08:09:58 AM PDT

•  I've been making the same argument

  That anti-gay legislation and laws banning gay marriage violate the due process and equal protection clauses of the Constitution for over 10 years. It hasn't been until the last two or three years that it's actually been argued in court that way, which is why now we have gay marriage in VT and MA because those courts recognize the immutability of sexual orientation.

  Unfortunately the federal courts do not yet get this. That's not unusual since they operate in a pretty rarified space and are not as in touch with the average person in society. In other words it takes a while for it to trickle up. Look at how long it took for them to start dealing with technology?

  We must keep hammering away at this so eventually the courts do get it. It's beginning to work as the ruling that abolished anti-sodomy laws shows.

  by Cali Techie on Mon Dec 18, 2006 at 08:16:45 AM PDT

  •  its not all the federal courts fault

    the advocacy groups have tended nto to focus as much on equal protection either.

    by bruh1 on Mon Dec 18, 2006 at 11:44:12 AM PDT

    •  Which is very frustrating

      Because it's so damn obvious.

      by Cali Techie on Mon Dec 18, 2006 at 11:57:36 AM PDT

      •  agreed but they tend to be

        more conservative than they maybe need to be. They were admanantly against fighting this hard for gay marriage until there we no choice when gay couples were discovering just how bad the system was for them. Most of the orgs, including HRC, said wait, wait, wait. THis has been there history. It is bizzare that they didn't focus on equal protection, but I can't say I am surprised because unfortunately a lot of gays buy into the idea that there is something we have to be ashamed of. THat's the mentality- the mentality of the closet- even when one is out- that I think explains a lot. When you are dating you can even see it there with out agressiviely independent some guys feel they have to be to the point the sabotage relationships. It's because they have been taught-  at leas tin part I think- that their relationships have less value, and no matter how strong you are, that's a hard thing not to internalize. Its taken my years of fighting my own views to get to a point to realize just how much of my thinking is tainted by what the majority has told me. I am still dating guys who think for example gays sholuldn't have kids, and when you question them on this they will say men are different or why put the kids through that burden or etc.

        by bruh1 on Mon Dec 18, 2006 at 02:06:44 PM PDT

        •  I hear ya

          I'm not a radical ACT-UP guy, but I'm also frustrated with the way HRC conducts business. So much so I've stopped contributing to them because I think they're not nearly as assertive as they should be on the issue. I'd start contributing again if they'd just grow a backbone, step up, and advocate for real change instead of trying to take tiny incremental steps.

          I'm one of the independent lot I'll admit, but I wouldn't call myself aggressively independent. I'm a bit introverted so I like and need my alone time. However I don't see my relationships as having any less value than a hetero relationship. The only real problem I've had is finding someone who understands that just because I'm not on IM all day or don't answer my cell phone every time he calls it doesn't mean I don't love him, but that's a topic for another thread or a diary in and of itself.

          by Cali Techie on Mon Dec 18, 2006 at 03:47:22 PM PDT

          •  I'm a moderate as well

            but the problem is that the debate is framed not as moderation, but as fear. Those aren't the same thing.

            The point you make about relationships  is different from what I often see. I often see guys who simply dont know how to handle relationships because they are , in my opinion taught, throughout their lives, by both the gay community, and by society at large, that there is somethign wrong with the idea of hving a relationship. I see a lot of bitterness and anger out there masquerading as independence and sarcastic wit towards doing what it takes to build a relationship. Which is a lot of work regardless of how you set up the particular rules of the relationship.

            by bruh1 on Mon Dec 18, 2006 at 05:06:26 PM PDT

•  No change in attitude...

  but, as a gay woman married to the woman of my dreams, and one with a solid understanding of both the Constitution and the practice of law, I suppose that's to be expected...

  by ultrageek on Mon Dec 18, 2006 at 08:19:58 AM PDT

•  Good policy, not a constitutional right.

  The U.S. Constitution is flexible.

  Legal Arguments

  It says nothing expressly about marriage.  And, while it evolves, it does so in the context of who is on the U.S. Supreme Court and what is going on in the Republic.

  While the equal protection clause has been used to make some rulings favorable to gay rights, a New Jersey type ruling is probably as far as that could ever go.  But, even the New Jersey ruling is a stretch under existing jurisprudence.  

  Usually equal protection questions are analyzed on a rational basis analysis.  It wouldn't be at all a stretch to say that the substantive rules of marriage reflects empirical assumption about the default or common economic arrangements found in a hetrosexual marriage and that the legislature has a rational basis for believing that the assumptions that underlie hetrosexual marriage don't apply with equal force to same sex marriage.  For example, a legislature might rationally believe that hetrosexual marriages are more likely to have one partner strongly dependent upon another than a same sex marriage.

  The decision to apply a higher level of scrutiny to sexual orientation, while an emerging tendency in the law is pretty much purely a policy question made by justices.

  Indeed, if one were going to have gay marriage nationally, the strongest argument would be one not mentioned in the original post- the argument that federal DOMA (which provides that states don't have to recognize other state gay marriages) is unconstitutional because it impermissibly shrinks the scope of the full faith and credit clause.

  On the whole, none of this is likely without immense turnover in the courts.

  Even If It Could, Should It?

  The risk of getting recognition of gay marriage solely by fiat of federal constitutional right, is that the court that grants that right can also take it away, all at once.

  One of the reason that abortion has been such a highly politically charged issue has been that it was done judicially at the federal level.  In much of the rest of the world, it was done legislatively and the mostly failed judicial efforts were attempts to declare that a state may not legalize abortion.  

  Securing gay marriage legislatively, one by one in states where the political climate is right, and piecemeal law by law at the federal level (for example as in the recent case of IRA rollovers), could prevent backlash by providing much of the benefit.

  Federal law could be helpful here.  Suppose that federal DOMA were amended to give the state that granted a gay marriage continuing jurisdiction of dissolutions of that union, and allowed the granting state to dispatch arbitrators by consent of the parties.  So, a couple marriage in MA, who live in VA, could petition to a MA court to have an arbitrator appointed to supervise and adjudicate a dissolution.  This would effectively transfer a substantial part of the benefits of gay marriage nationwide, without requiring unfriendly state legislatures or courts to get involved.

  ERISA could be amended to more neutrally mandate that any adult with a health insurance plan may designate one other adult as a dependent for that purpose.

  Ultimately, when there are only a handful of holdouts, the law might recognize a constitutional right, must as it ruled that juvenile executions were unconstitutional.  But, by then it would not disrupt the status quo in much of the nation.

  Public opinion on gay rights has been secured largely by seeing them in practice and discovering that the sky does not fall as people came out.  Gay marriage public opinion would change in the same way.

  by ohwilleke on Mon Dec 18, 2006 at 08:36:57 AM PDT

  •  Thanks for the insight.

    I firmly believe that strict (or at least heightened) scrutiny should be applied to homosexual discrimination.  And I believe that doing so, and ruling gay marriage bans unconstitutional (thus legalizing gay marriage de facto) is fully faithful to the intent of the Equal Protection Clause.

    You do raise serious questions about the danger of an 'activist court' to public opinion.  I agree that is an important consideration.  Really it just boils down to a political question within that framework, rather than a question of justice, in my opinion.  As a political science student I certainly see the value in weighing political options over justice in some cases, for the overall good.

    by Tetris on Mon Dec 18, 2006 at 08:45:30 AM PDT

  •  Do you disagree with

    Lovings decision? Do you disagree with the abortion cases? Just curious- none of that appears either. for that matter- equal protection analysis as we know it now didn't happen until Brown- do you agree with brown?

    by bruh1 on Mon Dec 18, 2006 at 11:45:45 AM PDT

    •  Lovings was an easy case at the time

      that it was decided, and civil rights leaders were wise to postpone pushing that issue until they had a number of precedents behind them (a conscious tactical choice that they made).

      Brown was the right result, supported by a less than exemplary opinion, so much so that there is a whole book of "alternative" Brown opinions prepared by civil rights legal scholars out there now.

      The abortion cases have held so far, but I am fairly nervous that, at some point, they will be overturned by conservative judges, and I am quite concerned about the collapse in women's rights that could happen if that event came to pass.  There are large swaths of states in the U.S. that would be immediately plunged into the dark ages.  They endure because they became cemented as precedent at the high water mark of liberal jurisprudence and have been around long enough to earn respect from judges who wouldn't have decided that way in the first place.  Until Casey, which basically made Roe a "superprecedent," the situation was even more dire.

      by ohwilleke on Mon Dec 18, 2006 at 02:09:45 PM PDT

      •  so you dont agree browh

        its a pretty simple question, and you dont agree with equal protection as it is applied, also a simple question which you avoid. see you later.

        by bruh1 on Mon Dec 18, 2006 at 03:24:44 PM PDT

        •  Brown's conclusion was pretty

          easy.  Brown's reasoning, which is heavy on social science, and thin on how it would apply to future cases was not.

          I certainly think that strategically, the decision to rest the entire application of the Bill of Rights to the states on the equal protection and due process clauses of 14th Amendment was a bad call.

          Resurrecting privileges and immunities doctrine would have been far wiser.

          by ohwilleke on Mon Dec 18, 2006 at 03:42:02 PM PDT

          •  I think

            basing it on actual evidence- which is what they did- was the best choice possible. The problem with the court has been its tendency to divorce itself from reality. A jurist divorcing him or herself from reality is the worst kind of jurist. It leads to bizzare statements like the newly choosen Assoc Justice who claimed in one case that he had as a apealate jurist that coal miners are not in the coal industry, or some such non sense, to back his idealogical bent. by requiring evidence, even if it means it hurts one short term it has a more concrete foundation. This is however, I admit, my bent on things- like Marshall and OConnor, I am a pragmatist first, theorist second. The most dangerous thing to any society is to let its idealogues take over. Thats including its christinist idealogues. The only reason why gays have had a hard time is that the idealogues resort to chrisitanity, not because of any particular element of the test for equal protection. I am also not about using or interpretating laws that much different than the basis for which they are created. THe noton that one is going to increase states rights through the juttsu of manipulating hte constitution in ways it was never meant to be interpretaed while pretending to be strict constructionist or other like terms is amusing, but dishonest.

            by bruh1 on Mon Dec 18, 2006 at 05:02:03 PM PDT

•  I'm trying to figure out how...

  my diary weakend 1 person's conviction in favor of gay marriage and turned someone else off advocating gay marriage completely.  Those were supposed to be jokes.  Oh well.

  by Tetris on Mon Dec 18, 2006 at 08:39:41 AM PDT

  •  Some people

    answer funny just to make your mind squirm like that.
    It wasn't me, I voted for the second one (strengthened).

    by Sidof79 on Mon Dec 18, 2006 at 08:55:42 AM PDT

  •  I believe that....

    some of the right wingers who lurk here probably will answer that your argument caused them to change their mind negatively about gay marriage (which I prefer to call "marriage equality") simply because any well reasoned argument that challenges their ideology is threatening to them.

    by emsprater on Mon Dec 18, 2006 at 09:30:42 AM PDT

  •  don't assume everyone here is being honest

    by bruh1 on Mon Dec 18, 2006 at 11:46:28 AM PDT

•  The issue of Church and State...

  ... is an important one in this argument, but the equal protection clause, as you have pointed out is the key.

  Last June, I posted a petition to "outlaw" marriage. What it does is make "civil unions" the norm; for everyone.

  by justiceputnam on Mon Dec 18, 2006 at 08:50:29 AM PDT

•  No offense, but

  duh.
  I've gotten into several arguments with people around where I live (good old bible belt), and they always wind up in opposition to gay marriage because 1) something about the Bible, or 2) something about the sanctity of marriage.

  Clearly, anyone using the Bible as supporting evidence for why something should be in or out of the Constitution is an argument that is just begging for someone to yell ESTABLISHMENT! ESTABLISHMENT!
  from Dictionary.com:
  sanc·ti·ty (noun)

  1. holiness, saintliness, or godliness.  

  2. sacred or hallowed character: the inviolable sanctity of the temple.  

  3. a sacred thing.

  So, gays shouldn't be married because marriage is holy.  Alright then.  So...what if I'm an atheist?  Can I not get married, either?  I think an atheist getting married would violate the sanctity of marriage much more so than a Christian homosexual marriage.  But what do I know.  I'm a married atheist.

  I've long dreamed about getting someone in opposition to gay marriage to argue either of these above points in court.  I think that should pretty much seal the argument.

  by Sidof79 on Mon Dec 18, 2006 at 09:02:04 AM PDT