| Author | Message | ||
     cjc Citizen Username: Cjc Post Number: 462 Registered: 8-2003 |
Pierce -- thanks for weighing in. So...we write a law that provides equality for gays to marry, but excludes all other forms of intimacy and legal relationships from that equality. And that would stand up in court? What if more law is written from the bench, saying "that law you just passed isn't fair to X in terms of equality." | ||
| Pierce Butler Citizen Username: Pierce_butler Post Number: 137 Registered: 6-2003 |
cjc, good point. After all, any law can be seen as drawing distinctions between or among classes of people: drug laws distinguish between those who like to smoke crack and those who don't. Fortunately, most of those laws are analyzed by courts with a very deferential level of review, called "rational basis" review. In other words, as long as the state has some rational basis for drawing the distinction, and drawing the distinction could logically be thought to further the state's goals, the law is okay. It is only when the law distinguishes based on a "suspect classification" that stricter scrutiny is required. When a law distinguishes on the basis of race, religion, ethnicity, or national origin, it is held up to "strict scrutiny" by the courts, meaning that the state must have a "compelling" interest justifying the law and the law must be narrowly tailored to further that interest. Thus, in the affirmative action cases, the Court used "strict scrutiny" because the Michigan policies distinguished on the basis of race and ethnicity. Although one of the policies passed muster in those cases, such a law will almost always be struck down under strict scrutiny. The one hypothetical (outside the affirmative action context) that is always bandied about in which a state authority might be justified in distinguishing by race is where there is a race riot in prison and the prison authorities decide to segregate the prisoners by race. Distinctions based on gender are somewhat different. They are analyzed under "intermediate scrutiny," which, as the name applies, is stricter than "rational basis" review, but not quite as strict as "strict scrutiny." However, I think they are closer to the latter than the former, especially after the Court's decision in the VMI case a few years ago. Since, as I see it, laws distinguishing between gays and straights are really making distinctions based on gender, they would be subject to intermediate scrutiny. There's nothing like Being and Nothingness. | ||
| Nohero Citizen Username: Nohero Post Number: 2434 Registered: 10-1999  |
The Lawrence case was decided by the U.S. Supreme Court based on the right to privacy, not equal protection. Its only relation to the decision on same-gender marriage is the fact that the relationship cannot be criminalized. The Massachusetts case was decided on equal protection grounds; Massachusetts includes "sex", along with "race, color, creed or national origin" and as a category in its constitutional provision on equal protection. Since the decision is based on equal protection, the majority felt comfortable with the idea that it was not starting down the slippery slope: Finally, there is an interesting passage at the end of Justice Greaney's concurrence: He's described a community much like the one we on this board live in. So, maybe the question should not be, "What about the slippery slope?" Instead, it should be, "Is it the right thing to do?" | ||
| cjc Citizen Username: Cjc Post Number: 464 Registered: 8-2003 |
OK. So, this seems like a "who knows, we'll see" on whether marriage can via the courts move successfully past gay marriage into other arrangements. Or am I wrong? If I'm not, the slippery slope seems to be a possiblity here. | ||
| Pierce Butler Citizen Username: Pierce_butler Post Number: 138 Registered: 6-2003 |
Nohero, I like the language of the concurrence (other than its "do the right thing" exhortation, which smacks of judicial legislation). In my view, the original Constitution and the Bill of Rights were highly concerned with preserving the values of community and participatory democracy, which is one reason so many limits were placed on the federal government. Far from destroying these values, the Equal Protection Clause should be read as opening up community participation to those heretofore excluded based on certain characteristics. There's nothing like Being and Nothingness. | ||
| ashear Citizen Username: Ashear Post Number: 799 Registered: 5-2001 |
Remember, this was based on the Mass constitution, not the federal one. I've been thinking quite a bit about the slippery slope argument. Though I'm not convinced it exsists I am convinced that barring same sex couples from getting married is incompatible with the basic idea of equal protection, as well as being just plain wrong. So I guess my question to cjc is, do you agree? If so do you think the harm of alowing poligamy and incest is great enough to justify continuing that wrong? If so can you tell me what that harm is? | ||
| strawberry Citizen Username: Strawberry Post Number: 1419 Registered: 10-2001 |
this thread is gay..  "That moment has directly affected my foreign policy. See, it changed the nature of the presidency. It changed the security arrangements of the United States of America. I vowed to the American people I would never forget the lessons of September the 11th, 2001." --President George W. Bush | ||
| ajc Citizen Username: Ajc Post Number: 2195 Registered: 9-2001 |
"Is it the right thing to do?" Thank you for sharing that Nohero... I believe it is not only the right thing to do, it’s the only thing to do if we want to truly support a lasting peace with all of mankind. IMHO. equal protection for all mankind must include sex, along with race, color, creed, and national origin. Where else but in America? God Bless America! | ||
| cjc Citizen Username: Cjc Post Number: 466 Registered: 8-2003 |
I can only say that I support the idea of gay marriage, but not at the expense of allowing incest -- bigot that I am. From what I've gathered on this board, you can write a law to proscribe other marriages. But intellectually, it creates a dilemna for me, which is why I asked the question. So ashear -- you accept gay marriage. By disallowing polygamy or incest, aren't you forcing your morality upon those people? And how do you justify that? Or would you write a law allowing that? From what I got from Pierce, you can write laws specifically to stop incest marriages or polygamy. But still -- is that intelletually honest? | ||
| Pierce Butler Citizen Username: Pierce_butler Post Number: 139 Registered: 6-2003 |
ashear, I know, but I think the same result should (and eventually will) obtain from the U.S. Supreme Court. It may not be until 2020, or 2050, but I am confident that they will do it. There's nothing like Being and Nothingness. | ||
| ajc Citizen Username: Ajc Post Number: 2201 Registered: 9-2001 |
"aren't you forcing your morality upon those people?" What does this issue have to do with forcing anyone to do anything? I believe you have it all backwards... If America truly supports a free society, then it can’t allow our laws to force us to single out those of us who choose to live a different life style then the rest of us? Where would that end? It’s time to stop making other people wrong in favor of our own personal beliefs and life styles. Live, and let live! | ||
| cjc Citizen Username: Cjc Post Number: 467 Registered: 8-2003 |
Read a good piece by Andrew Sullivan to answer my own question -- gay marriage is asking only for equal footing with hetero marriage in the ability to marry someONE (not some people). Not ANYone (incest)either. So maybe there is no slippery slope. I hope so, but there's no telling what a court or legislature may do. | ||
| ashear Citizen Username: Ashear Post Number: 800 Registered: 5-2001 |
CJC - I never said I would disallow either poligamy or incest. I asked what the harm of allowing them is. Since you are against them maybe you could answer that. Sullivan's point is the same one I made above. | ||
| bobk Supporter Username: Bobk Post Number: 3877 Registered: 5-2001 |
I think this is a wonderful example of carrying things to their illogical conclusion. There is absolutely no relationship between two adults engaging in a legal activity, cohabitation, and polygamy and incest which are illegal. Polygamy and incest laws only "discriminate" against illegal activity. The equal protection arguement as respects gay unions is for people engaging in legal activities, including sexual activities, while incest and polygamy are illegal activites. | ||
| cjc Citizen Username: Cjc Post Number: 469 Registered: 8-2003 |
Well, for starters, incest increases the likelihood of birth defects (unless that's been disproven lately). As for polygamy it is practised in the Middle East and....well....hardly a ringing endorsement there. If polygamy is entered into freely, it seems OK until it comes to divorce. Does the woman get to divorce the whole family and take half of the combined loot, or just say - the lone man (or woman if a bunch of men married one woman). How would that work legally? Please, ashear, defend incest and polygamy for us. | ||
| Pierce Butler Citizen Username: Pierce_butler Post Number: 140 Registered: 6-2003 |
"Polygamy and incest laws only 'discriminate' against illegal activity." Holy circular reasoning, Batman! There's nothing like Being and Nothingness. | ||
| rckymtn Citizen Username: Rckymtn Post Number: 194 Registered: 5-2001 |
bobk -- polygamy wasn't illegal in this country until the last half of the 1800s when anti-polygamy laws were passed specifically to criminalize polygamous relationships that theretofore were legal. And when the Mormons didn't stop practicing polygamy, defending the practice as commanded by God and protected by the Constitution, Congress enacted a law that disincorporated their church and seized their property (individuals and the church's). The feds actually sent marshals to the West to arrest, prosecute and imprison polygamists. So, wasn't that what Lawrence was really about -- getting government out of the private lives of individuals who love each other? So your "legal" v. "illegal" distinction fails. There is a very close link between "two adults engaging in a legal activity, cohabitation" and three, four, five or more adults engaging in the activity of cohabitation and seeking the right to be married to each other. I think the real issue is that the proponents of gay marriage do in fact recognize this very close link, but in order to achieve their short-term goal of marriage, they have to be vociferous in claiming that THIS is where the line will be drawn -- otherwise the battle is lost. Pierce is right on your circular reasoning. | ||
| rckymtn Citizen Username: Rckymtn Post Number: 195 Registered: 5-2001 |
By the way, this has been one of the most interesting debates in a long while here on MOL, and I have to congratulate everyone for the very interesting comments and points of view -- and for refraining from personal attacks. It could be that no matter what our position may be on this issue, we pretty much all should know both heterosexual and homosexual families in this community, and that connection keeps the diologue more civil than it would be otherwise. | ||
| drewdix Citizen Username: Drewdix Post Number: 391 Registered: 7-2001 |
Yep- it can really work. Amen (and kumbaya, cjc!) | ||
| Pierce Butler Citizen Username: Pierce_butler Post Number: 141 Registered: 6-2003 |
I noticed the same thing. I think most of us basically agree on what the outcome should be and disagree, if at all, on the details. By the way, I understand that the reason Utah did not become a state until 1896, even though it had a higher population than several states that had joined the Union in the 1880s, is that the U.S. refused to admit it until it outlawed polygamy in its constitution. Can anyone back me up on that? There's nothing like Being and Nothingness. |
