Will California deny peoples' rights in November?

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Re: Will California deny peoples' rights in November?

Postby portia » Wed Dec 12, 2012 5:59 pm

Sorry, Min. I don't follow your point.
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Re: Will California deny peoples' rights in November?

Postby Voronwe_the_Faithful » Wed Dec 12, 2012 7:18 pm

Nor do I, I'm afraid.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Wed Dec 19, 2012 12:23 pm

portia wrote:I see an analogy to criminal defense. Even the most horrible murderer is entitled to have his/her rights defended and all legal arguments that apply put forward. Even if the attorney knows that the person did the acts of which he is accused, taking the case means that the person has to be defended as well as circumstances permit. Keeping in mind ethics (such as not putting someone on the witness stand who one knows will lie).

Attorneys General should, and I hope they did, argue to the proponents of Proposition 8 that the measure was not constitutional. But, if they did, it was only their opinion. The Governor and Attorney General are not and should not try to be judges. They chose to be advocates. The people of the State of California decided to pass Prop. 8 (wrongly, but so what?). Those people are Jerry Brown's and Arnold Schwarzenegger's clients and they abandoned them.* There are many agile minds in the California Attorney General's office (Including, for 26 years in the past, Mr. Portia). They could raise whatever arguments exist for the Proposition, and should have.

But this controversy and difference of opinion has gone on forever, and is unlikely to be resolved.

*The people who voted for Prop 8 are voters and also taxpayers and pay the A.G.'s and Governor's salaries. They have a right to services. I am not suggesting anything unethical, but there are always some arguments that can be made.


Well, that is definitely one way of approaching the issue, and one with a lot of precedent and intellectual consistency. On the other hand, I have seen similarly situated people state that they are not wind-up advocates, and that it is their job to use their own judgment in making decisions about allocation of PA/DA resources. To use a real-world example: for over two years before the passage of I-502, it was impossible to get busted for misdemeanor marijuana possession in the city limits of Seattle. The City Attorney made a policy decision that his office would just not prosecute any misdemeanor possession cases referred to his office. The Police, not being fans of pointless paperwork, quickly stopped bothering. Seattle became a de facto zone of decriminalization, by the decision of the City Attorney.
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Re: Will California deny peoples' rights in November?

Postby portia » Wed Dec 26, 2012 5:58 pm

Yes, I agree that there are resource allocations to be made. If the Seattle DA decide not to prosecute because he (he?) believed that the people of Seattle didn't want prosecution, I can understand the decision. It is not an easy one.
I hope that the Surpeme Court doesn' decide the case on the basis of standing, however.
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Re: Will California deny peoples' rights in November?

Postby portia » Fri Mar 01, 2013 8:44 pm

I see that the Obama Admin. has decided to submit an amicus brief. No one I heard said what the brief argued.

Later: I looked up some articles, and apparently it argued that there was no argument that would overcome the Equal Protection argument.

I think that oral arguments are on the 26 and 27 of March.

Aside: I can understand the traditionalist's arguments, but after having looked at it from an Equal Protection point of view, there really is no hope for it. Any more than there was hope for interracial marriage prohibitions, etc. It is a good example of the fact that all sorts of things can reman in the law, until they are challenged.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Thu Mar 21, 2013 3:30 pm

portia wrote:I see that the Obama Admin. has decided to submit an amicus brief. No one I heard said what the brief argued.

Later: I looked up some articles, and apparently it argued that there was no argument that would overcome the Equal Protection argument.

I think that oral arguments are on the 26 and 27 of March.

Aside: I can understand the traditionalist's arguments, but after having looked at it from an Equal Protection point of view, there really is no hope for it. Any more than there was hope for interracial marriage prohibitions, etc. It is a good example of the fact that all sorts of things can reman in the law, until they are challenged.


Are you thinking that sexual orientation might be reassigned to the strict scrutiny classification?

While I am convinced that same-sex marriage is a good idea, and I certainly voted for it in November, I am not convinced it is a federal constitutional right, at least under current Equal Protection analysis. We all know that not all bad ideas are unconstitutional, and not all good ideas are constitutionally mandated. I suppose that makes me a traditionalist. I also think that state-by-state legislative enactment of same sex marriage is the best way to insulate against a cultural backlash against "dem damn activist ivory tower judges" and give it a greater depth of cultural legitimacy as well.
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Re: Will California deny peoples' rights in November?

Postby AlexSnitzel » Fri Mar 22, 2013 1:17 pm

The problem with state-by-state enactment of same-sex marriage is that it will never happen. Hell, in South Carolina homosexuality only technically became legal in the last 10 years or so, and it took the Supreme Court acting to do it. Times like these that need the federal government to step in and kick some sense into its dumber children.
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Re: Will California deny peoples' rights in November?

Postby portia » Sat Mar 23, 2013 4:38 pm

Arvegil wrote:Are you thinking that sexual orientation might be reassigned to the strict scrutiny classification?

While I am convinced that same-sex marriage is a good idea, and I certainly voted for it in November, I am not convinced it is a federal constitutional right, at least under current Equal Protection analysis. We all know that not all bad ideas are unconstitutional, and not all good ideas are constitutionally mandated. I suppose that makes me a traditionalist. I also think that state-by-state legislative enactment of same sex marriage is the best way to insulate against a cultural backlash against "dem damn activist ivory tower judges" and give it a greater depth of cultural legitimacy as well.


It is close, but I do not think the court will put sexual orientation in the stict scrutiny classification. But, I do not think they will have to. I have a feeling that they are pretty likely to put it in the no rational reason category. There is no evidence that forbidding same sex couples to "marry" accomplishes anything.

You may be right about the state by state rationale, and the Court would certainly benefit from avoiding a backlash. I dunno on this. I am sure that the agile minds on the Court could figure out something. (later: A commentator this AM ponted out that when the Supreme Court announces a national rule, that it does not settle the argument. Roe vs Wade being the example). That is true, but I do not agree that the Roe example applies. Allowing same sex couples to marry will not affect anyone else, against their will. Churches can still refuse to marry same sex couples; entities that deal with issues of who is whose next of kin are mostly accepting the idea that a civil union creates next of kin rights, so there will be no change, there. People who feel that children need parents of both sexes can continue to feel that way and campaign for more heterosexual adoptions, etc. This is different from the Anti-Roe people who have the cause of unborn children, which are affected by the ruling.
David Boies was om TV and answered a question on the Roe analogy. He said that Roe is different because Roe was talking about creating a right, whereas these cases are talking about denying a right to certain people. I do not think that this is a perfect distinction. But, more important, do not think that this "difference" is the core problem that some peole have with Roe.

And, to one of the people who was speaking on Meet the Press, who said that the important thing was to encourage and protect the 2-sex parental model, as everyone agrees that it is the best, I would say: you are arguing this in the wrong case. Whether same sex people can marry will not have any effect on 2-sex couples. If that is what he is trying to promote, he needs to be raising it in a no-fault divorce case. The argument that a 2-sex set of parents is best is irrelevant to this set of cases, as no one is attacking that idea.

I hope C-Span, or someone, will broadcast the arguments.


.Prop 8 might be unconstitutional, but the Const. does allow Congress to enact legislation to enforce it. Only if the court decides that to allow a state to refuse to recognize a same sex marriage, when they have to recognize a heterosexual marriage, is a denial of equal protection. That would be an OK theory. We will have to wait and see.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Mon Mar 25, 2013 4:10 pm

AlexSnitzel wrote:The problem with state-by-state enactment of same-sex marriage is that it will never happen. Hell, in South Carolina homosexuality only technically became legal in the last 10 years or so, and it took the Supreme Court acting to do it. Times like these that need the federal government to step in and kick some sense into its dumber children.


Just because something is sensible, does not mean it is Constitutionally mandated.
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Re: Will California deny peoples' rights in November?

Postby Cenedril_Gildinaur » Tue Mar 26, 2013 2:15 pm

Freedom of speech was achieved when government was removed from speech.
Freedom of the press was achieved when government was removed from the press.
Freedom of religion was achieved when government was removed from religion.
I'm for freedom of marriage - how do you suppose that can best be achieved?
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Re: Will California deny peoples' rights in November?

Postby Swordsman_Of_The_Tower » Tue Mar 26, 2013 4:28 pm

Cenedril_Gildinaur wrote:Freedom of speech was achieved when government was removed from speech.
Freedom of the press was achieved when government was removed from the press.
Freedom of religion was achieved when government was removed from religion.
I'm for freedom of marriage - how do you suppose that can best be achieved?



Let me guess...........let a smaller form of government do it? Like........the state?
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Re: Will California deny peoples' rights in November?

Postby Cenedril_Gildinaur » Tue Mar 26, 2013 6:03 pm

Wow. I can't tell if you are being sarcastic or if you really utterly epicly failed the answer to that question.
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Re: Will California deny peoples' rights in November?

Postby portia » Tue Mar 26, 2013 6:09 pm

I do not necessarily agree with C_G on how the freedoms were achieved, but I do agree with where he is going on marriage.

I would like to see the government removed from marriage, except for recording the fact of marriage (or dissolution) in a way that is similar to how property transfers are recorded, now. Do whatever you like as a ceremony, and the get it recorded in a marriage license register, cross referenced with each name. And you are married, until you are in the dissolution register (there may still be court cases necessary, for property divisions).
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Wed Mar 27, 2013 8:37 am

portia wrote:I do not necessarily agree with C_G on how the freedoms were achieved, but I do agree with where he is going on marriage.

I would like to see the government removed from marriage, except for recording the fact of marriage (or dissolution) in a way that is similar to how property transfers are recorded, now. Do whatever you like as a ceremony, and the get it recorded in a marriage license register, cross referenced with each name. And you are married, until you are in the dissolution register (there may still be court cases necessary, for property divisions).


For those of us in community property states, it is not going to be that simple...

Anyways, one other issue that has not been brought up (much) is the fact that, as a general rule, domestic relations law has been a matter of state jurisdiction. Outside of extreme cases (like Loving v. Virginia), do we really need to federalize domestic relations issues?
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Re: Will California deny peoples' rights in November?

Postby portia » Wed Mar 27, 2013 9:02 am

I am in a Community Property state, and a lot of people who have property issues dissolve the marriage and continue working on the property issues, later.

I agree that marriage has been the state's prerogative, and the feds should go along with whatever the state law is for the people involved. It should not be a big deal.
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Re: Will California deny peoples' rights in November?

Postby AlexSnitzel » Wed Mar 27, 2013 9:06 am

Arvegil wrote:
AlexSnitzel wrote:The problem with state-by-state enactment of same-sex marriage is that it will never happen. Hell, in South Carolina homosexuality only technically became legal in the last 10 years or so, and it took the Supreme Court acting to do it. Times like these that need the federal government to step in and kick some sense into its dumber children.


Just because something is sensible, does not mean it is Constitutionally mandated.


So what's your opinion of Loving v. Virginia? It was an extreme enough of a case to justify the federal gov't stepping in (as I believe you have elsewhere implied), or would you have rather it gone state-by-state and taken the probable 20 or so years to do that?

I've heard proponents of SSM say that they actually do not want the federal government making any nation-wide sweeping decisions, as they did in Roe v. Wade for example, because in the very long run it causes more of a backlash among its extreme opponents and that manifests in what happened in North Dakota this week for example. They say it is better for the nation to come to its senses as a whole over time. The problem with that of course is the millions of women who would be denied full healthcare in the meantime.
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Re: Will California deny peoples' rights in November?

Postby Lagniappe » Wed Mar 27, 2013 5:22 pm

I agree that marriage has been the state's prerogative, and the feds should go along with whatever the state law is for the people involved. It should not be a big deal.


I am afraid I do not see how this would work. And I do think it is a big deal. If state A decided a marriage between homosexuals was legal, and Bob married Bill, but then drove across state lines to state B, where such a marriage was illegal, then would Bob and Bill suddenly NOT be married? Would Mary and Mabel's children suddenly be illegitimate in state B, because their moms are suddenly not married? Would moving from state A to state B suddenly negate all the marriage benefits afforded a gay married couple by state A? Could someone visit their dying gay married spouse in the hospital while in state A, but be denied visiting rights if the dying spouse were moved to a hospital for additional treatment in state B? What about military families who must sometimes shift from state to state? Would their marriage be in a perpetual state of flux? Can you imagine what that would feel like to have your husband or wife suddenly declared illegitimate just because you crossed state lines? I can just see it... "Now we're married. Now were not. Married. Not. Married. Not. Ain't this fun?" :Q

Maybe the new phrase would be:

The sun is ris,
the sun is set,
and our marriage is null an' void
'cause we in Texas yet.
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Re: Will California deny peoples' rights in November?

Postby Swordsman_Of_The_Tower » Wed Mar 27, 2013 8:05 pm

It seems the bigots are really bringing out the big guns online now.

I've heard "Slippery slope" arguments. What's to stop a man from marrying his daughter? :Q Apparently it's epidemic in Canada.

I've heard "If being gay is genetic, I have gay relatives, why am I not gay?" :rofl:

Then of course the always effective and useful. "Bible defense". When I ask them what that has to do with people who say, don't believe in that. They say it doesn't matter, applies anyway. It's in many ways like arguing with a toddler. :roll:
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Thu Mar 28, 2013 8:14 am

AlexSnitzel wrote:
Arvegil wrote:
AlexSnitzel wrote:The problem with state-by-state enactment of same-sex marriage is that it will never happen. Hell, in South Carolina homosexuality only technically became legal in the last 10 years or so, and it took the Supreme Court acting to do it. Times like these that need the federal government to step in and kick some sense into its dumber children.


Just because something is sensible, does not mean it is Constitutionally mandated.


So what's your opinion of Loving v. Virginia? It was an extreme enough of a case to justify the federal gov't stepping in (as I believe you have elsewhere implied), or would you have rather it gone state-by-state and taken the probable 20 or so years to do that?

I've heard proponents of SSM say that they actually do not want the federal government making any nation-wide sweeping decisions, as they did in Roe v. Wade for example, because in the very long run it causes more of a backlash among its extreme opponents and that manifests in what happened in North Dakota this week for example. They say it is better for the nation to come to its senses as a whole over time. The problem with that of course is the millions of women who would be denied full healthcare in the meantime.


My opinion of Loving v. Virginia is that it is clearly distinguishable from SSM cases because any laws based on race are subject to the strict scrutiny tier under equal protection analysis, whereas laws which refer to sexual orientation are subject to a more deferential tier of analysis. One simply cannot compare race and sexual orientation on an equal protection analysis.
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Re: Will California deny peoples' rights in November?

Postby portia » Thu Mar 28, 2013 8:34 am

If DOMA is declared unconstitutional, then all there would be is the "Full Faith and Credit" clause, under which if you are married in one state, you are married in all. Another state might not like it but, as with any other law,( if you are an adult, or above the age of consent, or divorced, or whatever,) you would still be so in another state. If your new state were to claim that you had changed domiciles/permanent residences, it might claim you went bck to the status of your new domicile, but it would be a court fight, which it might not win.

I, personally, am sure that any court faced with this issue would work out something so that people would not change back and forth.

I am sure that South Caroline would be allowed to refuse to allow same sex marriages to take place within its borders (for a while), but not to fail to recognize marriages made eleswhere.
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Re: Will California deny peoples' rights in November?

Postby portia » Thu Mar 28, 2013 8:44 am

On the subject of the two cases argued this week, I think, putting together what I have heard and read, the following:
I think that Prop 8 will be struck down, but not made a general rule. If any other state gets itself into the same sort of predicament, it would be struck down, too. * I think that DOMA will be declared unconstitutional, returning the situation to whatever it was before DOMA. I doubt that either will become a general rule, and further changes will be left tot the states.

*In other words, if someone changes the law to make same sex marriages, OK, then trying to repeal it would be unsuccessful.
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Re: Will California deny peoples' rights in November?

Postby Minardil » Thu Mar 28, 2013 10:33 am

As I understand it, Prop 8 has already been struck down by the lower courts, and the Supremes will just let that lower ruling stand. And I agree, they will have to strike DOMA, which is clearly a violtion of the 14th Amendment.

HOWEVER, if the Federal Defense of Marriage Act is unconsitutional under the 14th, then similar state laws would also be unconstitutional for the same reason, correct? There isn't any 10th Amendment way to wiggle out of the Bill of Rights and the Equal Protection clause, is there?
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Thu Mar 28, 2013 12:09 pm

portia wrote:On the subject of the two cases argued this week, I think, putting together what I have heard and read, the following:
I think that Prop 8 will be struck down, but not made a general rule. If any other state gets itself into the same sort of predicament, it would be struck down, too. * I think that DOMA will be declared unconstitutional, returning the situation to whatever it was before DOMA. I doubt that either will become a general rule, and further changes will be left tot the states.

*In other words, if someone changes the law to make same sex marriages, OK, then trying to repeal it would be unsuccessful.


That would be the path of least resistance. It also has the virtue of returning this matter to the States, where it should be anyways.

Situations where a marriage that could not be formed in one state but can be recognized as valid by that state is already happening. Washington does not recognize the formation of common-law marriages within its borders, but will recognize one validly formed under the laws of another state.
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Re: Will California deny peoples' rights in November?

Postby portia » Thu Mar 28, 2013 1:49 pm

Minardil wrote:As I understand it, Prop 8 has already been struck down by the lower courts, and the Supremes will just let that lower ruling stand. And I agree, they will have to strike DOMA, which is clearly a violtion of the 14th Amendment.

HOWEVER, if the Federal Defense of Marriage Act is unconsitutional under the 14th, then similar state laws would also be unconstitutional for the same reason, correct? There isn't any 10th Amendment way to wiggle out of the Bill of Rights and the Equal Protection clause, is there?


Well, they could just let the lower court decision stand, although then why take it up, if all they want to do is let the 9th Circuit decision stand? It takes 4 justices to grant cert, so someone had an idea.

If there is another state that says it would not recognize a same sex marriage from another state, I believe that such a law would fail as contrary to "the Full Faith and Credit Clause" ---if DOMA is unconstitutional. The state with the non-recognition law would have to recognize the same sex marriage from elsewhere, just as it has to recognize a divorce on grounds that would not be good enough in that state (e.g. Nevada marriage and divorce laws are valid elsewhere, even though they may not meet residency laws or other grounds in some states).
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Re: Will California deny peoples' rights in November?

Postby Cenedril_Gildinaur » Thu Mar 28, 2013 4:36 pm

Swordsman_Of_The_Tower wrote:It seems the bigots are really bringing out the big guns online now.

I've heard "Slippery slope" arguments. What's to stop a man from marrying his daughter? :Q Apparently it's epidemic in Canada.

I've heard "If being gay is genetic, I have gay relatives, why am I not gay?" :rofl:

Then of course the always effective and useful. "Bible defense". When I ask them what that has to do with people who say, don't believe in that. They say it doesn't matter, applies anyway. It's in many ways like arguing with a toddler. :roll:


Ha! They're right about the slippery slope because I'm already advocating the next issue. I'm already coming out in favor of polyamory.

Then again, on this issue, libertarians have always been ahead of the curve. Progressives have only been at the forefront, and that's only because the forefront is defined by where they are and not by who is in the lead.

Way back when the issue was interracial marriages, there were slippery slope arguments about where it would go. Conservatives would ask if it would lead to other forms of marriage. Progressives, at the front by definition, said that their current goal was their only goal. Libertarians, ahead of the game, were already in favor of gay marriage. When the progressives finally caught up with us, we said "welcome aboard" only to be rebuffed with "now that we're here finally someone is talking about this when before nobody was." Too bad we were, and we're also talking about the next issue already. But progressives, at the forefront by definition, aren't talking about the next issue and say that their current goal is their only goal.
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Re: Will California deny peoples' rights in November?

Postby portia » Thu Mar 28, 2013 5:26 pm

Since I am in favorof the government getting out of marriage, and not limiing it to two people, what am I?

I am in favor of marriage among any number of consenting-age people of any gender, who are willing to make the commitment. If they want to do it, why should I care?
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Re: Will California deny peoples' rights in November?

Postby Swordsman_Of_The_Tower » Thu Mar 28, 2013 6:14 pm

Cenedril_Gildinaur wrote:
Swordsman_Of_The_Tower wrote:It seems the bigots are really bringing out the big guns online now.

I've heard "Slippery slope" arguments. What's to stop a man from marrying his daughter? :Q Apparently it's epidemic in Canada.

I've heard "If being gay is genetic, I have gay relatives, why am I not gay?" :rofl:

Then of course the always effective and useful. "Bible defense". When I ask them what that has to do with people who say, don't believe in that. They say it doesn't matter, applies anyway. It's in many ways like arguing with a toddler. :roll:


Ha! They're right about the slippery slope because I'm already advocating the next issue. I'm already coming out in favor of polyamory.

Then again, on this issue, libertarians have always been ahead of the curve. Progressives have only been at the forefront, and that's only because the forefront is defined by where they are and not by who is in the lead.

Way back when the issue was interracial marriages, there were slippery slope arguments about where it would go. Conservatives would ask if it would lead to other forms of marriage. Progressives, at the front by definition, said that their current goal was their only goal. Libertarians, ahead of the game, were already in favor of gay marriage. When the progressives finally caught up with us, we said "welcome aboard" only to be rebuffed with "now that we're here finally someone is talking about this when before nobody was." Too bad we were, and we're also talking about the next issue already. But progressives, at the forefront by definition, aren't talking about the next issue and say that their current goal is their only goal.



Well I'm you know, gay.


So when were "we" talking about it? Do we get first place?


And all this legalese reminds me why I didn't go to law school. A bunch of old fuddies talking about "new" things. I know what's right. And even if it's not legal, it's still right, no matter what the guys and gals in the ugly black dresses say.
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Re: Will California deny peoples' rights in November?

Postby AlexSnitzel » Fri Mar 29, 2013 7:33 am

Arvegil wrote:One simply cannot compare race and sexual orientation on an equal protection analysis.


Why not, exactly?

Both are inborn traits, both attract discrimination, in law and elsewhere. In many places orientation is just as much a protected class as race. Employment in the Federal Gov't, for example.

And that's what they are discussing in the SCOTUS this week - whether or not the case demands heightened scrutiny. So I believe the jury on your statement is still "out".

And on this theme, Justice Sotomayer asked the lawyer defending Prop 8 on whether he could think of grounds on which it would be acceptable to discriminate against gays on grounds other than marriage. "I cannot," he said.

[eta] a nifty flow-chart on how the Court could rule.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Fri Mar 29, 2013 7:48 am

AlexSnitzel wrote:
Arvegil wrote:One simply cannot compare race and sexual orientation on an equal protection analysis.


Why not, exactly?



Just how much do you know about the three tiered scrutiny level for Equal Protection Constitutional analysis? I am asking this honestly because Portia and I are both lawyers who had to be able to answer this question in order to survive Constitutional Law in law school. And I have already given you the correct answer: laws that discriminate based on race are subject to the highest scrutiny level, and laws that discriminate based on sexual orientation are subject to the lowest tier of scrutiny. ALL cases on this issue, up to this point, have universally held sexual orientation to be the lowest level of scrutiny [edit: at least at the federal appellate level; many cases have been decided at state supreme court level based on state Constitutions that are not relevant for federal analysis]. As I said earlier in this page, I believe that the SCOTUS would have to overrule a lengthy series of precedents and reassign sexual orientation to a higher tier of classification in order to make a decision that is not limited to California on the Prop.8 ruling, and I do not see this Court doing that.
Last edited by Arvegil on Fri Mar 29, 2013 8:07 am, edited 3 times in total.
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Arvegil
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Re: Will California deny peoples' rights in November?

Postby AlexSnitzel » Fri Mar 29, 2013 7:54 am

Oh ok then. Well then I clearly don't know as much as you. :)
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