Same-sex marriage: An interesting new religious wrinkle

Re: Re: Re: Re: Re: Re: Re: Re: Re: Same-sex marriage: An interesting new religious wrinkle

Sorry, Jeff, I stand corrected. You used the word "faith."
I don't know why I thought you said "denomination."

Maybe I am not used to a Unitarian using the word "faith."

Just kidding, really I am.

I do appreciate the way you handled my error. You're a true gentleman.

 

I also find the equal protection argument interesting.

Equal protection analysis begins with determining whether, in fact, there IS any discrimination between classes of citizens. In the case of same sex marriage, I am not so sure there really is.

There is nothing forbidding any person, gay or straight, from marrying a person of the opposite sex, assuming age and consanguinuity requirements are met. The law as it stands is not discriminatory on its face.; it treats all citizens with exact equality.

In order for there to be an equal protection claim, therefore, an argument must be made that the effect of the law as applied discriminates. Well, maybe it does, but is there really scientific agreement, or even significant evidence on the "immutable" or "intrinsic" nature of homosexuality?

Such sociological evidence was pivotal in the Brown vs. Board of Education case. I haven't seen anything like it here.

 

You lost me with that last. Why would the matter of applied discrimination rest any more on homosexual causation than it does on religious causation?

 

Ah. An excellent question.

Statutes are presumed to be constitutional until someone proves that they are not. A statute can violate equal protection, and thus be unconstitutional for either legal reasons or practiccal reasons. For example, a statute restricting the right to vote in general elections to persons owning a certain amount of property are "facially" unconstitutional. No evidence is necessary; the law violates equal protection as a matter of law.

Now, the second approach to proving a statute is unconstitutional, resorted to only when the statute is facially neutral, that is, non discriminatory, is to show that the effect of the statute as applied is to discriminate in an constitutionally impermissible way.

Proving an "effect" means producing admissible evidence. Scientific opinion based upon research is one kind of admissible evidence. That's the evidence that I haven't seen.

The reason it matters is, a group of people may CHOOSE to be discriminated against in some way or other; there is no State action FORCING them to suffer discrimination. Under those circumstances, I don't think an equal protection argument would hold water.

I think that the group complaining of discrimination would have to demonstrate that they really DO suffer disparate treatment due to an involuntary, continuing (if not permanent) characteristic. Examples would be race or sex. It is that evidence that I haven't seen presented.

Discrimination based on religion is NOT really an equal protection issue; freedom of religion is enshrined separately in the constitution.

 

Thanks.

Too excellent an answer for my current lucidity. I'll mull it again tomorrow.

 

nosborne,

Would you say that this fits in with the concept of negative, implied rights as opposed to positive, delineated rights?

 

Sometimes people forget that idiots (like me) read this board.

So let's start at the very beginning: what is "equal protection"? It's a phrase that all of us laymen use, without it really meaning anything tangible.

Using heterosexual marriage as an example, I can't marry a six-year-old girl. I can't even marry my adult sister. Don't these prohibitions discriminate against and fail to provide equal protection for entire classes of couples: man-child couples and adult-sibling couples?

The point of these reductio-ad-absurdem examples is to illustrate that on its non-technical street-level face, "equal protection" is a synonym for "anything goes".

So if it isn't going to be absurd, the principle of "equal protection" that us laymen (including some big-city mayors) are so fond of throwing around must be limited in some pretty dramatic ways. How does that limitation happen in real-life judicial practice?

 

Re: Re: Same-sex marriage: An interesting new religious wrinkle

The term "same-sex marriage" seems like an oxymoron to me... Most religious people will not allow it to be redefined from one man and one woman.

While language rules tend to follow usage, I vote for a new term for these sorts of interpersonal partnerships that constitute legal entities. This approach could encompass society's evolutionary thinking on right and wrong, and confer familial rights to the parties involved. Let's be proactive, plan ahead and pass laws with some staying power.

Perhaps "personal partnership" would suffice for the next hundred years to allow for polygamy, artificial cyber-entities and cybernetic organisms to participate. For example, it is possible that there is some therapeutic value in allowing someone with a personality disorder to establish a personal partnership with computer-based entity tuned to react through voice and email in exactly the correct way to help the patient. Why not allow someone to marry a computer program? And what about other species, too? Don't want to leave them out. Oh, and since, I can name a star in the official star registry, why not make it a Mrs.? ;-)

Only less than half serious (so there is no need to spaz-out),

Dave

 

Re: Re: Re: Same-sex marriage: An interesting new religious wrinkle

Dave,

Got any good jokes about interracial marriage? Or about black people in general? How about Catholics? Or Jews? That would be a real hoot!

 

decimon:

I don't know. I confess that I haven't had to consider the distinction in connection with any equal protection analysis I've ever done, so I may be showing how out-of-date or plain inadequate my understanding is!

BillDayson:

Well said. Equal protection is a rather technical concept in American constitutional law. It involves a multilevel, multi-step analysis.

Discrimination itself is perfectly constitutional and a necessary activity in any society. Therefore, the first part of the analysis is to determine what, exactly, is the group suffering discrimination. If it's, say, snowboarders as opposed to downhill skiers, the right of the legislature to discriminate from a constitutional standpoint is very broad. This is termed the "rational basis" standard.
If there's any "rational basis" for the law creating the distinction, the Court will leave it undisturbed.

Scholars usually bounce from "rational basis" to the most exacting standard, "strict scrutiny" because this is where most of the law first developed. Discrimination based upon race is a "suspect classification". It receives "strict scrutiny" by the Courts, which generally means the law will be struck down. There ARE exceptions for rules designed to redress historic race-based wrongs, but in general, the classification itself dictates the ultimate decision.

Somewhere between these extremes is a classification, or possibly several slightly different levels of classification, called "heightened scrutiny" or something like that. (It's late. Sorry.) Here, there is a careful balancing between the discrimination and the legitimacy of the legislative purpose. If the legislatiive purpose is compelling and the law is closely tailored to accomplish its goal, the law may be upheld. Sexual discrimination falls into this category; it IS permissible under certain, narrow circumstances. Other examples are citizenship (a law may discriminate against non-citizens for employment as police officers but not for law licenses) age limits, and the like.

Now, unless there've been MAJOR developments since I last looked at this, sexual orientation has yet to be classified by the U.S. Supreme Court. When I say that I haven't seen the evidence yet, it is the trial level evidence in just such a federal lawsuit that I mean.

Now, just to keep it interesting, state constitutions (such as New Mexico and Washington) confer greater protection against discrimination than the U.S. Constitution does. That's where you see a state Supreme Court deciding that same sex marriage must be allowed as a matter of STATE law. The U.S. Supreme Court has no ability to review such a decision. However, if the U.S. Supreme Court decided that equal protection does require same-sex marriage, all states would have to comply.

Notice please that I haven't said a word about congress or a state legislature passing a law requiring states to recognize same-sex marriage. Nor have I addressed the defense of marriage act. These are completely different scenarios.
WHEW! Constitutional Rights in a single posting!

 

Re: Re: Re: Re: Same-sex marriage: An interesting new religious wrinkle

Did you hear the one about the lesbian, the priest, the rabbi, and the African Baptist preacher? If you did let me know, sounds good.

 

Re: protect women..., civilize men

The civilization comes about by making men responsible for their families. To provide for their children and family. Marriage in codified form articulates specific duties assigned to the man. Using this logic, men are required by society to be responsible.

I agree with your assertion regarding men be seen a income source, usually with limited rights to parenting subsequent to a dissolutiion. This situation comes about from the erosion of marriage laws and ease of divorce. I divorce was granted only for cause, then families would be required to be together. Spouses may not be happy, but alienation of the non custodial parent would be solved.

I didn't really get your point about children in dissolution of a homosexual marriage, but I don't really think that it would be any better than with heterosexuals divorcing.

 

Re: Re: protect women..., civilize men

I thought most people who divorce are no longer living together. Perhaps we need bars on the matrimonial door.

 

When was divorce "granted only for cause"? Hillel would grant a husband's petition for divorce "if his wife burned the soup", which is Rabbispeak for "any cause or no cause".

In the United States, up through the 1940's, it's true that technically the law required "cause", but since adultery WAS cause, divorcing couples would create false evidence strictly for the purpose of meeting this need, you know, photos of motel rooms with undergarments strewn around, that sort of thing.

In the eighteenth century, in England, husbands DID have the power, not only to refuse a divorce, but to compel their wives to live with, and sleep with, them and could use corporal punishment to enforce their desires. That's not marriage, that's plain slavery.

In Catholic countries, those who could afford it would simply separate and take lovers. Not divorce, but the practical equivalent. It sure messed up property rights, but then, even today marriage and divorce mess up property rights.

Even JESUS didn't forbid divorce, though his church does. Remember? "Indecency (or adultery, or prostitution, or lewd conduct, or however you Greek scholars translate it; I don't do Greek) is a separate case? Well, what is that but the 1940's U.S. law?

Actually, one could argue that the State of Nevada survived the Great Depression in large part because of no-fault divorce. You'd visit for something like six weeks, declare yourself a resident, obtain your divorce and hey presto! every state had to recognize it.

Divorce is a fact of human behavior. Modern law makes it somewhat less painful for the parties though nothing could make it pleasant for their children.

 

I'm not a lawyer, but I'm not sure that this is exactly correct, as presented. Of course all states would have to comply with the U.S. Supreme Court ruling.

However, if a state Supreme Court said that discrimination in marriage based on gender is illegal under the state constitution, and the U.S. Supreme Court (or a U.S. Constitutional Amendment) said that marriage is between a man and a woman, I would think that some states would come to the conclusion that they can not follow their own Constitution and the U.S. Constitution and still perform marriages. This would lead to a situation (which, admittedly, I favor) in which the state performs civil unions (without regard for gender) and churches (or whatever non-governmental institution you wish) performs "marriages" that have no legal recognition.

 

Equal Protection Question

I've seen conjectured that restricting marriage to one-man, one-woman did not violate the equal protection granted by the constitution. But why is saying that a man can marry a woman but a woman can't, not in principal a violation of that protection? Forget whether they are gay or straight -- this is a discrimination with respect to gender is it not?

 

Re: Equal Protection Question

I think this depends on whether one is a strict constructionist or a loose constructionist.

Only my opinion, mind you.

 

Jeff Hampton:

Well, as a procedural matter, the U.S. Supreme Court probably CANNOT declare that a marriage is between one man and one woman only. They COULD uphold a State, or I suppose even a Congressional enactment that defines marriage in that way, but they really can't create a law out of thin air in quite that way. All any Court can ever do is to declare a statute void as unconstitutional; the statute has to be there first. That really would be legislation by the Court, and they don't really do that, rumors to the contrary.

JoAnnp38:

Hm. Interesting question. I hadn't really thought about it from that perspective.

I am going to put on my tweed with the leather elbow patches and gesture with my pipe a little here. This means that I really don't know what I am talking about. (Especially since I don't smoke.)

The first issue is whether there is an identifiable group suffering discrimination. Answer: Yes. Legal protection is being doled out in a discriminatory fashion based on sex, a category requiring heightened scrutiny. So far so good.

Now, does the state have a sufficiently compelling reason to practice this discrimination? Hm. I don't know. Need some evidence there, I think.

I like it. This is an argument that will need to be addressed.

Hrumph. Class dismissed!

 

And how does a case like Row v Wade fit into this scenario? There was nothing in the law about trimesters. Yet that was the basis of the decision, at least according to Blackmun's opinon. And that edict from the Supreme Court has shaped the way that abortion is practiced in the U.S. for the past 30 years. It was clearly much more than simply declaring the Texas law void as unconstitutional.

 

God made Adam and Eve

Not Adam and Steve, so the saying goes. But God did make Steve!