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Because everybody has the right to marry the person of the opposite sex of their choice.
Otherwise, people are wanting special rights for themselves.
So, again I am asking you this, are you willing to marry a person of the opposite sex that is gay and not attracted to you or in love with you to satisfy the biases of religion? YES OR NO? really simple question that you ignore every time.
Now that's an actual interesting legal question - and one the 6th Circuit did touch on.
It's the question of originalism. It's the issue of whether we should answer Constitutional questions as 21st Century Americans, or whether we should ask out judges to jump in a pretend time machine and try their best to pretend they're 18th Century Americans when deciding the issue.
Originalism (which actually would look to the mid-19th century on the 14th Amendment) on the subject of gay rights lost out when conservative Justice Kennedy wrote Romer v. Evans and Lawrence v. Texas, and United States v. Windsor (all decisions in support of gay rights, Windsor touching on marriage by invalidating the Defense of Marriage Act). The question in this case will be how far Justice Kennedy is willing to go. I think he is ready to go for a right to gay marriage in 50 states. I think the writing was on the wall with Windsor.
Quote:
Originally Posted by hammertime33
This right/privilege distinction is relevant to a 14th Amendment Due Process analysis, but it's beside the point and completely irrelevant in a 14th Amendment Equal Protection analysis. (And just because something is a Fundamental Right for Substantive Due Process purposes doesn't mean there can't be any regulation of it - it's just that any regulation of the Fundamental Right will be analyzed under the strict scrutiny standard.)
As to Due Process, the Supreme Court has repeatedly said that marriage is a "fundamental right." My thought is that this declaration of marriage being a fundamental right applies to private marriage associations, not civil marriages. Civil marriage is a law - it gives certain legal (not Fundamental) rights (privileges, protections, benefits, and responsibilities) to couples who want them. I don't see any reason why a state has to offer these legal rights of marriage - if Colorado wanted to abolish its marriage law regime tomorrow, I don't see why they couldn't. On the other hand, who I want to associate with and deem my spouse outside of any legal marriage framework is a fundamental right, and I think the government has no business whatsoever regulating that association.
Certainly the gay marriage proponents are making a Due Process argument - but that's not "what is (being) argued" as you claim. It's the backup argument to the main Equal Protection argument. And the 6th Circuit addressed it. For purposes of the argument, the 6th Circuit assumed civil marriage is a fundamental right, but then concluded that when the Supreme Court calls marriage a fundamental right it was implicitly saying man/woman marriage - that there is a fundamental right to a man/woman civil marriage, not a broader fundamental right to marriage. In any event, I would think that if the Supreme Court does consider civil marriage a fundamental right, then it only helps the pro gay marriage side (in other words, I think the 6th Circuit conclusion is nonsense).
But again, that's the backup argument. The main argument is an Equal Protection argument. The Equal Protection Clause applies to any and all State laws - regardless of whether the law concerns or regulates a privilege or a right. The Equal Protection clause is there to prevent different groups of people from being treated differently under the law, and there is a body of law to determine when laws are allowed to treat different groups differently and when they can't (it identifies suspect classes and then has a 3 tiered analysis - rational basis, intermediate scrutiny, and strict scrutiny).
As such, the Equal Protection clause applies to a state marriage law that excludes gay people from the privileges of marriage, or a state driving law that bans gay people (or Christian people, or women) from the privileges of driving, or a zoning law that bans mentally ill people from building a group home in a certain neighborhood, or a drinking law that sets a different age for men and women to enjoy the privileges of drinking alcohol, or an ordinance that regulates what types of businesses can advertise on the sides of cars, etc.
So again, the main issues in this case are 1) do these states have a rational reason for banning gays from marriage law or alternatively 2) should gays be considered a suspect or quasi-suspect class and afforded strict or intermediate scrutiny under a 14th Amendment Equal Protection analysis.
Right/privilege is an abandoned doctrine, and would only apply to procedural due process--not substantive due process. In fact, it is civil marriage that is protected by substantive due process--it is a fundamental liberty interest (and is also subject to equal protection--i.e., can't restrict marriage by race). You can make a theoretical claim that a state can abolish civil marriage, but that is not the question that would come before the Court. Every state recognizes and registers civil marriages. Without question, both Due Process and Equal Protection arguments have been (and will be) made for gay marriage.
On Due Process, there is a two-step analysis: 1) is there a protected liberty interest at issue? If so, 2) Does the restriction on that interest pass strict scrutiny?
On Equal Protection, there is a different two-step analysis: 1) What level of scrutiny applies (rational basis, heightened, or strict), and 2) Does the law pass that level of scrutiny? Justice Kennedy found that the federal Defense of Marriage Act (DOMA) violated both substantive due process and equal protection. Justice Kennedy is not exactly the clearest writer when it comes to sussing out the precise contours of his decisions. I think he applies rational basis scrutiny in the Equal Protection realm, and it is unclear to me how he analyzes substantive due process.
Reading the tea leaves of Lawrence v. Texas & Windsor, I think that the marriage bans will be held unconstitutional under the Equal Protection clause (with a similar blend of substantive due process) by Kennedy. I think it would be elegant to add a discussion of the Privileges and Immunities Clause.
Religious freedoms are a fundamental right in this country.
Not the advancement of deviant behavior.
When religion is used like a sword to cut rights to groups the it is a deviant behavior, religion itself is a behavior, but ones sexuality is not. You need to understand what behavior is.
Yes and the societies of several states, in fact the majority of them, say marriage is between a man and a woman. It's not for judges to over rule them based on laws written 150 years ago for entirely different purposes.
Yes it is, because our society works in a way to ensure the rights of the majority don't trample the rights of the minority. I fail to understand how the people who tout the Constitution as their bible at every turn fail to grasp this basic principal. Laws passed by the majority are not untouchable and sacrosanct.
Marry who you want. Does it really matter if the government recognizes the marriage and gives you that piece of paper? Is your love dependent on getting that permission slip? If so, you need a lot more help than the passage of a law can provide.
Is it an expression of love to sit at your spouse's sickbed? If yes, that piece of paper counts.
Is it an expression of love to wish to share your life with a foreign-born love? If yes, that piece of paper counts.
Is it an expression of love to wish your spouse to be able to hold on to the home you shared for decades after you pass? If yes, that piece of paper counts.
So if you're tired of hearing of it, step out of the way and let people marry.
Never has so much attention been paid to such a small segment of the population.
Frankly, I'm getting sick of hearing about "gay" this and "gay" that. I have no problem with people loving and making love to whomever they want, but seriously - this is WAY out of hand. Every third news story is about something related to the cause, and the gay population grossly overrepresented in television and the movies.
Marry who you want. Does it really matter if the government recognizes the marriage and gives you that piece of paper? Is your love dependent on getting that permission slip? If so, you need a lot more help than the passage of a law can provide.
Yes, because it hands people certain rights getting it.
I argue natural common law, creates our rights and you place statutory law on it to make it a privilege.
Nature doesn't provide, let alone uphold, one single right. As far as the "creator" goes, you have the right to be a protein snack for the apex predators on the savannah. Takes a society before you can even discuss the idea of rights.
The 6th Circuit Court is highly respected and has the fewest decisions over-turned of any of the federal appellate courts.
It is about special rights.
Uh-huh.....well, you had best check your federal and States budgets as well as county and city budgets.
Indeed it is.
They have the choice of not marrying.
Yeah, and qualified experts of the day thought eugenics was wonderful, too.
That is false.
Animal behavior is commonly misunderstood.
Humping/mounting are displays of superiority-submission, not homosexual behavior.
It's not sad, it's as normal as being left handed.
Wouldn't be the first time.
The 6th Circuit is well-respected, much more so than the 7th and 9th.
In fact, the esteem and respect of the 6th Circuit is greater than the 4th, 7th, 9th and 10th in toto.
Yes, it is an aberration.
The function of all life forms on this Planet is to reproduce to ensure the survival of the species.
Evolution has resulted in some species going to extraordinary lengths to procreate to ensure their continued survival on this Planet.
We stand in awe and marvel at sea turtles, salmon; insects that eat their mates; mating rituals; and even that plant-life which relies on its seeds being consumed by other organisms and transported great distances to perpetuate the species.
Humans are neither special nor different than any other life-form on this Planet.
If you can explain how a human fetus can gestate in a rectum, maybe I'll take you seriously.
Aside from that, you're doing nothing more than attempt to legitimatize deviant behaviors.
No, it is not true.
It's costing me money, so your claim of "zero impact" fails.
Oh, wait.....that's right.....you think the special programs and services provided to homosexual veterans are free.
You tap the special funny stick on the ground twice, and money falls out of the sky, showering the VA so tax-payers don't have to bear the burden.
Normally...
Mircea
Typical bigotted response, turn gay sex all into anal sex. Geez, man/woman, whatever you are, more straight people practice anal sex then do gay men or lesbians that seldom do, but leave it to you to break down gay sex to anal sex. All these benefits and rights that you think are special that we want, are indeed special right now, special rights granted to heterosexuals. The rights you think are special are paid for by all of us, not just straight people. Typical ignorance from the anti gay.
So it was just fine for states to ban interracial marriage? Sorry, Mr. and Mrs. Loving, interracial marriage is banned in this state. Go live another state if you want to be married. Oh, BTW, you better not travel to this state unless have all your POA papers in order because you will not be able to make medical decisions for each other either.
Sexual preference isn't addressed by the Fourteenth Amendment or any amendment.
You gotta love that. Put human rights up to a popular vote! Go democracy! U! S! A! U! S! A!
So who defines marriage then, not the courts, not the people, well then.... who?
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