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The SC probably will cite Loving. 4 or 5 justices using it to invalidate ssm bans, and 4 or 5 concluding as the Minnesota SC did --- "Virginia's anti-miscegenation statute was invalidated solely on the grounds of its patent racial discrimination... in both a “commonsense and in a constitutional sense, there is a clear distinction between a martial restriction based merely upon race and one based upon the fundamental difference in sex.”
The same with the level of scrutiny. Some justices for a heightened scrutiny, others for rational basis review. Your continuing presumption that the SC will use a heightened level is a guess.
With all due respect to the Minnesota SC, their argument is incorrect. Loving v. Virginia was overturned both on the basis of marriage being a fundamental right and racial discrimination.
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Loving v. Virginia is the case that made marriage a constitutional right. "Earl Warren says in his opinion, 'Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.' The case was about interracial marriage, but the ruling went beyond the issue of racial bans by establishing marriage as part of the due process and equal protection guarantees of the Constitution," said Michael Grossberg, professor in the IUB Department of History and adjunct professor in the IU School of Law Bloomington.
I think my earlier posts discussing the level of scrutiny likely to be used would have implied my concession that there was a small chance that the rational basis could be used. Since you continue to attempt to spar with me over this point, I can only assume you didn't pick up on that.
I'd also point out that in both Lawrence v. Texas and Romer v. Evans, the anti-gay side could not even pass the rational basis test, and the current makeup of the court is not much different than it was then, so even if rational basis is used, the state will still have to show a legitimate interest in prohibiting SSM and as we've seen here, that argument is pretty much impossible to make.
You also never answered my question about which basis you felt should be used and why.
With all due respect to the Minnesota SC, their argument is incorrect. Loving v. Virginia was overturned both on the basis of marriage being a fundamental right and racial discrimination.
I think my earlier posts discussing the level of scrutiny likely to be used would have implied my concession that there was a small chance that the rational basis could be used. Since you continue to attempt to spar with me over this point, I can only assume you didn't pick up on that.
I'd also point out that in both Lawrence v. Texas and Romer v. Evans, the anti-gay side could not even pass the rational basis test, and the current makeup of the court is not much different than it was then, so even if rational basis is used, the state will still have to show a legitimate interest in prohibiting SSM and as we've seen here, that argument is pretty much impossible to make.
You also never answered my question about which basis you felt should be used and why.
Neither Lawrence nor Romer was about ssm.
Under traditional rational basis review, the burden is on the party challenging a law, who must disprove ‘every conceivable basis which might support it’ having a legitimate governmental interest.
I think rational basis should be used, but wouldn't be surprised or have an unassailable argument against the court if it uses a heightened standard.
I figured you'd reject the Minn. court decision, along with every other decision that supports bans against ssm.
Doesn't matter. The legal reasoning in both cases can be applied.
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Under traditional rational basis review, the burden is on the party challenging a law, who must disprove ‘every conceivable basis which might support it’ having a legitimate governmental interest.
At this point, do you honestly think I need an explanation on the levels of scrutiny?
Also, Romer and Lawerence were pretty easily won under rational basis, I doubt it would be much more difficult to win a SSM case on those grounds.
I've also asked more than once here, and so far no one has been able to explain what "legitimate interest" a state has in banning SSM. Before we can go disproving such nonsense, we need to know what the nonsense is.
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I think rational basis should be used
Why?
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I figured you'd reject the Minn. court decision, along with every other decision that supports bans against ssm.
When the court makes such a blatantly incorrect statement about the case law they referred to, it deserves to be dismissed.
This the point that seems to be failing to get across, therefore this is the point that needs to be emphasized the most.
Just because the cases aren't exactly the same doesn't mean pieces of the case cannot be applied.
In this case, the part where marriage becomes a fundamental right due to case law can apply to homosexual marriage.
Well, that, and you can't deny someone a marriage license solely on the basis of a protected class. Loving's race classification can just as easily be applied to sex.
A man can marry a woman, but cannot marry a man for no other reason than his biological sex. That's sex discrimination, and a violation of the 14th Amendment's Equal protection clause.
Doesn't matter. The legal reasoning in both cases can be applied.
At this point, do you honestly think I need an explanation on the levels of scrutiny?
Also, Romer and Lawerence were pretty easily won under rational basis, I doubt it would be much more difficult to win a SSM case on those grounds.
I've also asked more than once here, and so far no one has been able to explain what "legitimate interest" a state has in banning SSM. Before we can go disproving such nonsense, we need to know what the nonsense is.
Why?
When the court makes such a blatantly incorrect statement about the case law they referred to, it deserves to be dismissed.
To find out what "legitimate interest" a state has in banning SSM, all you have to do is read any of the many cases involving the subject. Try in particular any of the cases that upheld ssm bans. I'm confident you'll find those decisions 'blatantly misapplied case law,' but you'd get a feel for what proponents of bans offer as legitimate state interests.
As for Romer, the bigots and haters on the 8th Circuit Appeals Court said ---
"We likewise reject the district court’s conclusion that the Colorado enactment at issue in Romer is indistinguishable from § 29. The Colorado enactment repealed all existing and barred all future preferential policies based on "orientation, conduct, practices, or relationships.” The Supreme Court struck it down based upon this "unprecedented" scope."
Essentially, the judge's entire reason is because it might make heterosexuals not want to get married. If that's seriously the best legal argument the anti-gay side can come up with, it's quite obvious they have no valid arguments and are making them up on a whim. It also indicates that if heterosexual marriages are that pathetically fragile, the entire institution should just be eliminated.
Essentially, the judge's entire reason is because it might make heterosexuals not want to get married. If that's seriously the best legal argument the anti-gay side can come up with, it's quite obvious they have no valid arguments and are making them up on a whim. It also indicates that if heterosexual marriages are that pathetically fragile, the entire institution should just be eliminated.
I read it too. It was laughable - about what you'd expect from a Bishop of the Mormon Church.
If you'd read Loving, you'd learn the purposes of the anti-miscegenation law were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy."
The reasons given to oppose ssm might be just as horrible in your opinion, but are nothing like the ones given to support anti-miscegenation laws.
It is the same thing in that government is abusing it's authority by being involved in the who does or doesn't get to marry game. Since when should I or any adult need anothers permission to marry?
The end game is the same. Trying to preserve what one thinks is moral or just using government force, even though no ones rights have been violated.
Since when do I need to ask governments permission? The same thing that happened in the majority of the states in the early 1900's when whites couldn't marry blacks by law. We sure don't learn.
Essentially, the judge's entire reason is because it might make heterosexuals not want to get married. If that's seriously the best legal argument the anti-gay side can come up with, it's quite obvious they have no valid arguments and are making them up on a whim. It also indicates that if heterosexual marriages are that pathetically fragile, the entire institution should just be eliminated.
My preference is to scrap all civic marriage benefits, but since that's not happening...
The Nevada judge cited Justice O'Connor from Lawrence v. Texas ---
"That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."
I think Slate simplified the judge's reasoning. Anyway, there are more cases that offer other state legitimate interests that passed constitutional muster.
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