subgenius wrote:Darth J wrote:In other words, you want legal issues to be decided on something other than legal grounds. What's funny, in a sad way, is that you are incapable of seeing same-sex marriage as anything other than a political or ideological issue.....
It is important to remind you that the location of the Equal Protection Clause is after the Privileges or Immunities Clause and the Due Process Clause of the Fourteenth Amendment.
No, that's not important. The order of the clauses doesn't mean anything.
Surely you recognize the historical construction, how the phrase “privileges or immunities” was intended to address the substantive rights that received explicit protection.
If the right to a same‐sex marriage were located in the Constitution, then it would be found in the Privileges or Immunities Clause....agreed?
No. The Supreme Court has decided that marriage is a fundamental right on substantive due process grounds. And that doesn't matter anyway, because I'm not arguing that there actually is a right to "same-sex marriage." I'm not asserting anything on substantive due process or suspect (or quasi-suspect) classification. The reason you think otherwise is that you don't understand 14th Amendment jurisprudence. You don't understand how equal protection applies to liberty or property interests created by state law.
What you do know is how to Google talking points that you think support what you're trying to say, and then parrot what you have found.
For example, in Pierce v. Society of Sisters, Justice McReynolds referred to the rights of parents to guide the education of their children, it is very unlikely that he meant to include parents that are same‐sex couples. In light of these historical realities,
Arguing from silence about what may or may not have been in a judge's head is not "historical reality."
one certainly cannot make the constitutional case for same‐sex marriages through the Privileges or Immunities Clause.
Even assuming for argument's sake that this is true: so what?
The EP Clause emphasizes the word “protection” as much as the word “equal." These were rights given to all persons, a broader class than citizens.
So what?
Rights granted to all persons were both fewer and more basic than those given to citizens. For example, Privileges or Immunities protected economic liberties, while Due Process (also extended to all persons) only protected against seizure. Privileges or Immunities gave only citizens the right to acquire property, but Due Process protected the property of all persons.
You know, this is exactly like having a thread about current practices in modern medicine, with Subgenius strenuously insisting that leeching is what doctors need to be doing most of the time.
The primary purpose associated with the Equal Protection Clause was not to deal with class or caste legislation, which would have been covered by Privileges or Immunities if covered by any part of the Fourteenth Amendment at all. Instead, the Equal Protection Clause had the great and noble purpose of addressing an ongoing evil: the perverted enforcement of the criminal law
United States v. Cruikshank
Once the purpose of the Equal Protection Clause is recognized, there is a powerful reason for the clause to remain separate and distinct from issues of same-sex marriage, or any class legislation
You don't have the vaguest idea how case law works. You think it's like citing Bible verses to argue from authority for some religious doctrine or value judgment. That isn't how judicial review works. That isn't how common law works. Cruikshank has not been good law for a long, long time for what you're asserting. The incorporation doctrine has overruled the rationale behind Cruikshank. But yeah, until its rationale was overruled by subsequent case law, Cruikshank was great precedent---as long as you weren't, you know, a black person living in the South. If Cruikshank were still good law, then there would be no reason why the state you live in couldn't make it against the law to practice Mormonism.
Everything you're saying in this thread, and your last post in particular, is ridiculous pseudolaw that only impresses rubes. What you're attempting to assert here is like a bunch of people from Mexico trying to claim ownership of Texas because the Americans lost at the Alamo.
It is important to note that Justice Holmes’ dissent in Lochner v. New York, that the rational basis review was intended to insulate modern legislative initiatives from being attacked as impermissible deviations from traditional common law principles. There was never a thought that the test could be turned against statutes that embodied traditional understandings.
It is important to note that Holme's dissent in Lochner was a dissent.
First, marriage is not a legal construct with totally malleable contours—not “just a contract.” Otherwise, how could the law get marriage wrong? Rather, some sexual relationships are instances of a distinctive kind of relationship—call it real marriage—that has its own value and structure, whether the state recognizes it or not, and is not changed by laws based on a false conception of it. Like the relationship between parents and their children, or between the parties to an ordinary promise, real marriages are moral realities that create moral privileges and obligations between people, independently of legal enforcement. - http://papers.ssrn.com/sol3/papers.cfm? ... d=1722155##
Your link doesn't actually go to the epic fail of an article you're quoting. It's here: http://www.harvard-jlpp.com/wp-content/ ... eFinal.pdf
I liked the foreshadowing of the fatuous reasoning that permeates this article, when the guys starts off by claiming that polygamy is really monogamy. "Even in traditions that permit or have permitted polygamy, each marriage is between a man and a woman."
"First, marriage is not a legal construct with totally malleable contours—not 'just a contract.' Otherwise, how could the law get marriage wrong?" He is begging the question by relying on a tautology about "real marriage," and then asserting that the law is getting his tautology "wrong."
"Rather, some sexual relationships are instances of a distinctive kind of relationship—call it real marriage—that has its own value and structure, whether the state recognizes it or not, and is not changed by laws based on a false conception of it." This is an explicit admission that he wants to talk about his cherished beliefs, not law.
"Like the relationship between parents and their children, or between the parties to an ordinary promise, real marriages are moral realities that create moral privileges and obligations between people, independently of legal enforcement." If they are independent of legal enforcement, then they are independent of legal interpretation, and therefore incapable of legal recognition.
Equal Protection can not be legitimately argued until one defines marriage...a definition you are unable to define, and rightly so.
"Rightly so" is a nonsensical coda to that sentence.
And I have defined marriage in this thread several times. Notwithstanding the ongoing straw man argument in this article you're so smitten with, people who think same-sex couples should be able to marry are in fact promoting a definition of marriage. It's a definition of marriage that actually exists in positive law, rather than pie-in-the-sky platitudes and religious dogma about legal relationships.
I can maintain that marriage involves: first, a comprehensive union of spouses; second, a special link to children; and third, norms of permanence, monogamy, and exclusivity.
You can "maintain" that, but you can't prove it. "A comprehensive union of spouses"---whatever that is supposed to mean---can be made between two people of the same sex. Children are not a legal element of marriage, so the "special link" you are asserting does not exist in law. "Permanence, monogamy, and exclusivity" (the latter two of which are redundant) do not require opposite-sex partners.
All three elements point to the conjugal understanding of marriage (rather than your ill-fated revisionist view).
"The conjugal understanding of marriage"? Kind of like the liquid understanding of water? Or the verbal understanding of words?
If you are going to continue with the idea that marriage is useless, then you must concede that any marriage laws are unnecessary.
Likewise, if you are going to continue with straw men, you must concede that the state has the right to force people into polygamy, given the state's compelling interest in the reproduction of its citizens.
if marriage is legally redefined,
That article you quoted isn't talking about a legal definition of marriage.
believing what every human society once believed about marriage—namely, that it is a male‐female union—will increasingly be regarded as evidence of moral insanity, malice, prejudice, injustice, and hatred, and the State can proceed accordingly.
I can think of no stronger concrete demonstration of malice and hatred by the state than by insisting that laws have to be interpreted rationally, fairly, and equally for everyone.
Think of the children!