Should gay marriage be voted on by states or made a federal law

Civil Rights and the Ballot Box

The present record of marriage equality at the ballot box in the states is 33-1 against. And that one was an Arizona refusal of a gay marriage ban, not the establishment of marriage equality; and voters fixed that "problem" a couple years later with another ballot measure to pre-emptively ban gay marriage, and that one passed.

The question, then, from a liberal perspective is one of letting a majority decide what rights a minority should be allowed. And while some resent comparisons of the gay rights issue to the American Civil Rights movement, the point holds to a certain degree. Who here will say that the South should have voted, state by state, to end racial discrimination? I really would like to hear the argument in favor of such a process; it would be mind-boggling detail, to be certain, trying to figure out how that would have worked. How long would the process of full humanity have taken for American blacks?

Another comparison would be the Equal Rights Amendment, which some opponents thought unnecessary, as the problem of women's equality would solve itself without federal intervention. It's three decades later, and equal pay for equal work is still an issue unresolved.

At the core of the homophobic argument is an increasingly untenable presumption that being gay is a choice, that one wakes up one day and chooses a behavior that is long and widely despised. More and more, as homosexuality resolves as a natural, inherent state, the choice argument is revealed as a desperate excuse justifying hatred.

Ultimately, the question of whether a majority should vote on whether to grant equality to a minority is an increasingly apparent ruse to preserve the privilege of arbitrating rights according to mere aesthetics.

 

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joepistole

Yes...

"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(sexual classifications-G)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 discrimination(or homophobia-G). Under our Constitution, the freedom to marry, or not marry, a person of another race(sex-G) resides with the individual and cannot be infringed by the State. ”


From the Loving v Virginia descision of the SCOTUS in 1967(plus corollary inserted by me-G)

This is about equal protection under the law, if anyone gets the benefits of marriage, no one can be denied them without cause(and how you feel about it is not sufficient cause). If the religious don't want homosexual marriage they are perfectly free to refrain from marrying a homosexual(in either sense of the word). They have no right, however, to deny the same rights to those who disagree with their religious view on the matter. Imposing those religious views on all is un-Constitutional and un_American.

Grumpy

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Basic civil rights of man. Hu. What about a woman? Leave it with the states.

 

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The unequal treatment of blacks and other minorities did not end with the passage of the 14th Amendment. Nor will unequal treatment of gay's end with the passage of laws allowing them same sex marriage. You have to remember a good percentage of this population grew up being taught homosexuality as a mortal sin. Mainstream religion needs to reconcile itself with homosexuality. And I don't see that happening any time soon either. But it would appear that homosexuality is increasingly becoming less stigmatized. According to recent surveys, some 47 percent of all Americans support same sex marriage.

Social attitudes will only change when society changes, and I think society is changing. But social change of this magnitude is slow especially when the notions are this embedded. When I was a youth, homosexuality was taboo. Racism was the norm, racial discrimination was the norm, segregated restrooms and everything else, the norm. I think there is a growing understanding that homosexuality is not a choice. But there will likely always be a segment of society that will always believe that homosexuality is a sin and a choice. This will take time. At some point in the future, homosexuality will be accepted and same sex marriage will be the law of the land. But I don't look for it in the near future.

And given the composition of the US Supreme Court, I don't see same sex marriage being the law of the land anytime in the near future. If we had a more liberal Supreme Court, I could see it. But that is not the case, we have an activist and extremely conservative Supreme Court backed up by a very conservative House - effectively insulating the Supreme Court it's extremist actions. I think same sex marriage has a better chance of getting passed through the ballot box than it does through action of the US Supremes. But then you have the issue of the Supremes enforcing the law or their ideology. To date, they have favored ideology over law.

http://www.nytimes.com/2012/05/11/u...shows-pace-of-social-change-accelerating.html

 

That is your opinion Grumpy and you are certainly entitled to it. But there is nothing in the 14th Amendment about marriage. The 14th Amendment was about race discrimination. Anything beyond that is you feeding your opinion into it. Two, you are mixing your personal moral beliefs with the law. There is a big difference between the two. Others don't share your moral beliefs.

 

Brief Notes on Equal Protection

Brief Notes on Equal Protection

The Equal Protection argument is a bit more complex than that, but it is still tenuous insofar as one is not going to convince a homophobe by it.

But, essentially, the Equal Protection argument falls under sex discrimination insofar as I cannot marry you because one of us is the wrong sex.

Where the problem arises is that gender issues have never been subject to strict scrutiny the way racial and ethnic issues are. As the Cornell University Law School explains:

The Supreme Court has dictated the application of different tests depending on the type of classification and its effect on fundamental rights. Traditionally, the Court finds a state classification constitutional if it has "a rational basis" to a "legitimate state purpose." The Supreme Court, however, has applied more stringent analysis in certain cases. It will "strictly scrutinize" a distinction when it embodies a "suspect classification." In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate. Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national origin, or, in some situations, non U.S. citizenship (the suspect classes). In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel. The Supreme Court also requires states to show more than a rational basis (though it does not apply the strictly scrutiny test) for classifications based on gender or a child's status as illegitimate.​

There are all sorts of problems in saying that one of a pair is the wrong sex insofar as one might convince the courts to bite. But this is the essential problem. At its heart, when we strip away the religious supremacy and dumb-assed (ha!) yuck factor, it's simply that one of a pair is the wrong sex.

That's the whole point: "But, Joe, your couplehood would be legitimate if Bobby was a woman."

That's all there is to it.

So, to the one, the argument is a sex discrimination issue. But that's not good enough under the present outlook of constitutional law. Maybe in thirty years, if this issue is still going on, but not now.

So, yes, your treatment of the Fourteenth is flawed insofar as it is too simplistic. To the other, though, I get your point.
____________________

Notes:

Legal Information Institute. "Equal Protection: An Overview". Wex. (n.d.) Law.Cornell.edu. May 11, 2012. http://www.law.cornell.edu/wex/Equal_protection

 

I completely agree with you on this point, Tiassa carries the balance of the argument quite well enough for me.

When I moved to Detroit many years ago, Michigan law forbad sex between anyone except a married man and woman, and then ONLY in the classic "missionary position". A gay couple was busted for disobeying that law, it went to court, was found to be unconstitutional and was thrown out. The question was also raised as to exactly how the government was going to make sure said law was obeyed - "the state government is going to be spying on people in the "privacy" of their own bedrooms?????" - if it was left intact.

If legal marriage did not give the participants any rights, privileges, extra-normal benefits or advantage then gay marriage would not be an issue. It does, however, and that is the crux of the dog biscuit. I see it heading for the supreme court eventually as a constitutional issue.

 

Could a gay man marry a woman and a man if gay marriages are legal? Say if a bisexual man wanted to marry both his partners then could he do so under a gay marriage law?

 

That is your opinion and you are certainly welcome to it. Now the question is your opinion any more reasoned than mine? I think not. I think your opinion is driven more by ideology than fact or reason. What you don't seem to understand is that marriage is a license issued by the state. Licenses bestow rights that are owned by the state onto the license holder. You do not need to be licensed to exercise your Constitutional rights, as they are not the states to give. But you do need a license to marriage if you want benefits/rights bestowed by such a license, because the state owns those rights.

The 14th Amendment prevents the state from discriminating based on race. There is no discrimination based on race in the debate over same sex marriage. In order for the same sex marriages to become the law of the land, you are going to need a court to say that sexual preference is a Constitutionally protected right. That is something that has not yet happened in our judicial system. And I don't see this US Supreme Court, given it is driven more by political ideology and political power than the rule of law, ever doing so. Even if we were to go to the extraordinary and amend the Constitution, I don't see this Supreme Court ever ruling in favor of same sex marriage. And I just don't see this Congress ever passing an same sex amendment to the Constitution either. In order for same sex marriage to become the law of the land, we will need to see a new Supreme Court and substantial Democrat majorities in the House and Senate along with a sea change in American views regarding same sex marriage. I think that sea change is happening, gradually. But it is happening.

Yes there are a lot of bedroom laws across the land. Unquestionably they are stupid and overly invasive. But they do exist, have existed since the earliest days of our nation. If your argument is that they should be abolished, I would agree. If your argument is that they are unconstitutional, that is another story. And it is my opinion, that regardless of the legal merits of either position, the outcome has been predetermined at least for the foreseeable future because of the extremely conservative and activist US Supreme Court. I don't see the Robert's court kicking government out of the bedrooms across the land anytime soon regardless of the legal merits. Unless and until, we get a more reasoned court gay marriage and any action to remove government from bedrooms across the land is doomed.

 

I guess that you 'didn't see' the 14th amendment's application to women's rights then, or was that a "racial" thing too in your "lay" opinion?

The federal constitution trumps state laws in the USA. It merely awaits the proper judicial case to arise and work its way up. As it did here and has elsewhere.

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...and FYI, the US constitution is the very embodiment of American ideology.

 

It should be done away with, altogether.

Marriage, in it's current state, that is.

If you want to get "married", go see a priest/rabbi/clergymen/witchdoctor/whatever your religion uses.

Separation of CHURCH and STATE ffs...

Then, introduce "civil unions" as the "government" variation on marriage, so that if you want, you can consolidate assets and such.

There, problem freaking solved...

 

I guess I missed that thing in the 14th Amendment or subsequent judicial opinion that said the 14th Amendment applied to sexual preferences. Perhaps you would be good enough to point it out to me?

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But we both know you cannot do it because it doesn't exist. There is a difference between women's rights and sexual preferences wither you want to recognize that fact is another matter. But facts are facts and sometimes reality bites.

And who claimed local law trumped the Constitution or was that you making a straw man?

As I have been saying repeatedly, until you have a Supreme Court willing to make the leap to include sexual preference as a covered category in the 14th Amendment, you are not going to see or be able to sustain federal recognition of homosexual marriage. The current Roberts court has repeatedly demonstrated that it is not capable of rendering a non ideological opinion. In case after case, conservative political ideology has trumped rule of law, time and time again. I don't see that changing as long as Republicans control the House and until there is some change it the composition of the US Supreme Court. So as repeated several times, you are going to need a change in the Supreme Court in order to make same sex marriage universal in the states. And that is no easy task. So while you may not like the message, it is the truth. So get out and do something about it. Put Democrat super majorities in the House and the Senate, reelect President Obama. Donate money to the cause. So that over time the composition of the courts can change and congress can hold the threat of impeachment over Supreme Court justices who flaunt the law with impunity (e.g. Thomas).

 

I'm missing something; and other notes

Though the Equal Protection Clause was crafted specifically in response to slavery, the Civil War, and Emancipation, nothing about the language of Section 1 explicitly reserves its consideration exclusively to racial and ethnic issues. Nor does it specifically exclude women from being people.

In the end, sex discrimination in general falls under the purview of Equal Protection, but it is viewed in that context according to a different scale than issues of ethnicity or religion.

As Biden noted, it's about who one loves.

We don't arrange marriages anymore; we do not force loveless unions between reluctant participants. People choose to get married, and the rumor is that they do so because they love one another that much, in that way.

The question is whether or not to throw out a marriage because one of the partners is the wrong sex.

It is far more fascinating a consideration than you're making it out to be.

But yes—

—we get you.

I would check in with you on this point, though:

How does the Republican House fit into that formula? I'm missing something.
____________________

Notes:

The Constitution of the United States of America. 1992. Law.Cornell.edu. May 12, 2012. http://www.law.cornell.edu/constitution/overview

 

The House drafts articles of impeachment. A Republican controlled House has not and will not impeach a right wing extremist politico like Thomas no matter what he does or does not do on the court.

My point is until you get a judiciary willing to recognize your arguments, they are for naught.

 

Thank ye

Ah. I see.

Thank you.

Aye.

 

Kittamaru

Marriage is a civil contract, not a religious one. Religiously blessed nuptuals are celebrated in Holy Matrimony sometimes, but marriage licenses are issued by the state, not the church. Even two Atheists have the "basic civil right" to be married and the church has no say in the matter. And if the state offers benefits for the contract to anyone, they can not be denied to anyone else without cause. The 14th Amendment is about equal treatment under the law, it applies equally to gay people who want to get married no matter how much some religious people think it is wrong, their opinions on the matter are as irrelivant as those of white supremist are on the civil rights of other races, and of equal value, logically or Constitutionally.

Grumpy

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Oh, trust me, I understand that - the problem is, a LOT of people tie marriage to religious beliefs in this country - which is fine - but then we try to regulate it as an item of the state.

Then again, I think the government needs to get it's hands out of a LOT of things... but that's just me

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good point..so much for separation of church and state..

but now for my two cents..

I am not gay..nor do i appreciate the openness of some gay ppl (i say some, because some are actually respectable)

i do not approve of gay men nor do i condemn them..(well except for the flamboyant ones..the ones that make it a point to let everyone around them know that they are gay,whether they want to know or not)

what transpires between two ppl in love is no ones business but the two ppl in love..i do not go around advertising my heterosexuality, i do not appreciate gays advertising their homosexuality..

this all being said..
if they want to get married,then they should not be prevented from doing so by some law..there is NO law that can speak to true love..love cannot be legislated..

 

Exactly my point. The problem isn't the law in itself at this point, it's that society has become so inundated with these petty laws that we RELY on them to make our notional judgement... we are all but INCAPABLE of thinking for ourselves XD

 

Don't say this often, but I agree with you 100%.