Gay Marriage and the law of unintended consequences...

[Timber Loftis]

Thoran, you're the red herring I'm afraid. If we want to see where these opinions are coming from, we need to look at the applicable law.

You posted the Bill of Rights, the 1st 10 Amendments.

Mass. Ruling: based on Amendments V and XIV.

Recent federal ruling (right to non-intrusion into the gay bedroom): based on Right to Privacy, a penumbra right which is presumed to exist because it is a necessary assumption for the existence of other rights, including those found in Amendments III, IV, V, and others.

The rest you posted was a waste and incomplete.

[Thoran]

Originally posted by Timber Loftis: Thoran, you're the red herring I'm afraid. If we want to see where these opinions are coming from, we need to look at the applicable law. You posted the Bill of Rights, the 1st 10 Amendments. Mass. Ruling: based on Amendments V and XIV. Recent federal ruling (right to non-intrusion into the gay bedroom): based on Right to Privacy, a penumbra right which is presumed to exist because it is a necessary assumption for the existence of other rights, including those found in Amendments III, IV, V, and others. The rest you posted was a waste and incomplete.

I don't see how my response was a red herring... certainly it could be incorrect, but it was not an attempted diversion of the issue.

Regarding the issue... Well that's interesting, I'll take a guess that they're suggesting that denying gay partnerships is a "denial of liberty"? 14 seems mostly about states rights (which I was aware was part of the basis for the Mass decision, but not the part we were discussing). You've already mentioned that the Mass ruling didn't suggest that "Gay Marriage" should be legalized, only the legitimacy of Gay Partnerships (which makes sense to me). Since the Mass. ruling is part of the subject of the debate I'll concede that the Bill of Rights reference wasn't a Red Herring to that part of the discussion, however Sultan was specifically discussing Gay Marriage, and as you've said the Mass ruling doesn't seem to take a stand in that regard... how is it that you believe it applies?

How was the rest a waste or incomplete, you're not debating... you're just being contrary!

[Timber Loftis]

Guess my nature is contrary, sorry.

The 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

The "equal protection" part is the important bit. It means you can't use suspect classifications, like black/white, male/female, and gay/straight to deny one group of people the rights another group has under the law. HERE is a lengthy treatise on this amendment, seek out the "equal protection" chapters.

Now, how does this provision in the 14th Amendment, applicable to the states, affect the federal government which is normally subject to only the Bill of Rights. Through the 5th Amendment's reverse incorporation prohibiting the denial of "liberty" meaning "liberty the state provides."

HERE is an analysis of how the 14th Amendment Equal Protection provision gets "reverse incorporated" into the 5th Amendment's protection of liberty. (At p. 1356+)

‘‘In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.’’ ‘‘Equal protection analysis in the Fifth Amendment area,’’ the Court has said, ‘‘is the same as that under the Fourteenth Amendment.’’ 71 So saying, the court has applied much of its Fourteenth Amendment jurisprudence to strike down sex classifications in federal legislation, 72 reached classifications with an adverse impact upon illegitimates, 73 and invalidated some welfare assistance pro-visions with some interesting exceptions. 74 However, almost all legislation involves some degree of classification among particular categories of persons, things, or events, and, just as the equal protection clause itself does not outlaw ‘‘reasonable’’ classifications, neither is the due process clause any more intolerant of the great variety of social and economic legislation typically containing what must be arbitrary line-drawing.

The articles should have more than enough reading to satisfy any urge you have to read up on the topic.

[ 12-10-2003, 12:37 PM: Message edited by: Timber Loftis ]

Originally posted by Thoran: however Sultan was specifically discussing Gay Marriage,

you're telling me we are arguing about what to call it? [img]graemlins/biglaugh.gif[/img] i mean, seriously.

as timber has already shown, no one would deny gay "partners" equal protection, benefits, etc. under law as provided to non-gay "partners". marriage, civil union, domestic contract, grimbalg dwarfenburgers... knock yourselves out choosing.

the TRUTH is that we're actually in agreement on the salient point - give them equal treatment.

so let's have a group hug - feel the love! [img]graemlins/bighug.gif[/img]

[Thoran]

Originally posted by sultan: quote: Originally posted by Thoran: however Sultan was specifically discussing Gay Marriage,

you're telling me we are arguing about what to call it? [img]graemlins/biglaugh.gif[/img] i mean, seriously.

as timber has already shown, no one would deny gay "partners" equal protection, benefits, etc. under law as provided to non-gay "partners". marriage, civil union, domestic contract, grimbalg dwarfenburgers... knock yourselves out choosing.

the TRUTH is that we're actually in agreement on the salient point - give them equal treatment.

so let's have a group hug - feel the love! [img]graemlins/bighug.gif[/img] [/QUOTE]Actually I think we do agree on key parts of the subject, but agreeing isn't much fun now is it?

Regarding the naming convention, there IS a distinction... in opinion polls as well as in the Mass. Suprime Court. I was actually referring to TL's reference to the fact that the Mass Supreme Court left the door open for drawing a distinction between Marriage and Gay Legal Partnerships. Additionally TL's subsequent post objected to my rejection of the Bill Of Rights as a justification for changing the Definition of Marriage... it seems I'm not alone in that assertion (even though I don't know the proper legalese to communicate it), which you'll see below.

Now... to TL's reply: I checked your link, it was very interesting but didn't really show how equal protection/due process was being applied in regards to marriage (admittedly I didn't read the WHOLE thing). I found a legal opinion from NJ here and a quick search yielded some interesting stuff... I wish I had time to read all these documents, fascinating stuff:

http://www.judiciary.state.nj.us/feinberg/feinberg.pdf

(from Page 17)
The United States Constitution has never been interpreted
to guarantee same-sex couples the right to marry. A Due
Process Clause challenge to a same-sex marriage ban under the
Federal Constitution was rejected in Dean v. District of
Columbia, 653 A.2d 307 (D.C. 1995). In Dean, two homosexual
men appealed from an order of the court rejecting their
complaint for an injunction to require that the clerk issue
them a marriage license. The court concluded that same sex
marriage was not a fundamental right protected by the Due
Process Clause. Id. at 331. While recognizing that the freedom
to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness, the
court noted that the right to same-sex marriages is not a
fundamental right that is deeply rooted in our nation’s
history. Ibid.
Parts of the decision are worthy of review:
"The question, then, is whether there is a constitutional basis under the due process
(from Page 18)
clause for saying that this recognized fundamental right of heterosexual couples to marry also extends to gay and lesbian couples. The answer, very simply is ‘No.’ Even without reference to Hardwick’s constitutional approval of statutes criminalizing consensual sodomy, we cannot say that same-sex marriage ‘is deeply rooted in this Nation’s history and tradition.’"
[Id. at 333 (internal citations omitted).]
Applying that standard, both the Federal and State courts
consider as fundamental, those rights and liberties deeply
rooted in the Nation’s history and tradition and implicit in
the concept of ordered liberty.

Now while I didn't know the legalese to say it... I think this is a way of saying "if it's stuff we've been doing for a long time, the historical record IS of significance, and should be considered", which is what I said earlier... maybe that's what TL considered "a waste and incomplete", sorry I didn't know the right terminology (lawyers can be such sticklers).

(From Page 21)
Other sister states, faced with the same issue, have
declined to recognize a fundamental right to same-sex
marriage. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, L.Ed.2d 65
(1972), a male couple, argued that the absence of sex-specific
language in the Minnesota statute was evidence of the
Legislature’s intent to authorize same-sex marriages. Ibid.
The couple also claimed that prohibiting them from marrying
was a denial of their due process and equal protection rights
under the Constitution. Id. at 186
Recognizing the historic definition of marriage and
expressing an unwillingness to expand the definition of
marriage, in Baker, the court simply stated, “we do not find
support for [these arguments] in any decision of the United
States Supreme Court.” Id. at 186. The court rejected the
argument that the absence of an express statutory prohibition
(From Page 22)
against same-sex marriages showed a legislative intent to
authorize such marriages. Ibid. Most significantly, the court
held “[t]he due process clause of the Fourteenth Amendment is
not a charter for restructuring [marriage] by judicial
legislation.” Ibid.

There's a lot of discussion of State Constitutions in there too... and like Mass., Hawaii had some favorable (for Gay rights) rulings before a Legislative initiative closed the door. Seems to me that successful challenges are coming from State Constitutional bases, not THE Constitution. It SEEMS like this will work as long as State rulings don't run afoul of Federal Law. Of course that will mean that some states will allow Gay unions, while others won't... that'll get ugly real quick.

[Timber Loftis]

Finding an application of E.P. to this issue is difficult, because it's so new. The VT Supreme Court did it, but it was based on the broader protections of VT's constitutuion. In the Mass. opinion, it is also based on the Mass. constitution, but the Mass. court is very clear it would interpret the US Constitution's E.P. clause the same way. If you really want to read the best essay on the topic, get the Mass. opinion and read it. I posted a lenghty review of it here.

I was simply talking about all the Amendments that don't apply when I mentioned a "waste." Each amendment is a different argument (some are more than one). Posting ones that don't apply is like tossing the whole US Code at a criminal and saying "you broke this law." I was just trying to narrow it down and hone in on what the rule of law that was applied was.

[Edit]
HERE is the other thread. I posted some news article, linked the opinion, and gave a point-by-point analysis of the salient arguments addressed. All you need to know in one handy nutshell.

[ 12-11-2003, 03:30 PM: Message edited by: Timber Loftis ]