States and the power to discriminate based on sexual orientation

Crovax said:

The constitution didnt do that until 1925 based on an amendment ratified in 1868. So the founders didnt exactly create that document. The founders didnt like a centralized tyrannical power but they were certainly ok with a local tyrannical one. You have "separation of church and state" Jefferson authoring a religions based state law that castrates gay people. What does that tel you about how the founders thought the bill of rights applied? Federalist 10 advocates against the danger of the tyranny of the majority but the solution wasnt individual rights but a representative govt.

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I'd opine the Founders couldn't get the States, who until the creation of the present Constitution saw themselves as separate but equal rather than subordinate to a Central power, to sign on to a strong central government the dangerous world requires. One only needs to look at how poorly the State Militias did on the Bladensburg Plain to see how a strong central government was needed.

Now as the nation matured and faced more complex social,economic and international problems the relationship between central vs state power has been altered. The much quoted Founders abhorred a standing professional Military as the tool of a tyrant (some right wing loonies see today's domestic military maneuvers as just that) but now more rational CONs see a large and well equipped (expensive) standing army as a lynchpin in the defense of freedom.

So the old argument of what would our Founders think of a contemporary issue is rather specious. They were mostly very privileged anglo-saxon brahmin and slavery was indeed alive and well. Women were second class citizens. Voting rights highly restricted. State militias were the backbone of our national defense.

These days such arguments are apples to oranges.

Our nation is going from an exclusive society were rights were highly restricted to an inclusive society where rights are broadened as widely as possible.

Disputatious71 said:

You are confusing the sacrament of marriage with a blanket assumption about civil unions.

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And you are confusing your outdated opinions on marriage with the actual law.

Hatuey said:

Wouldn't this be like a state providing 'free speech zones' though? Where rights can be regulated without it necessarily being considered an infringement on the right to exercise them? En tout cas, I think you're making the wrong argument. The court made a clear comparisons to previous bans that also singled out a specific group of couples. It even referred to previous bans Loving v. Virginia and Turner v. Safley, where specific classes of people were denied that right. However, maybe I'm not getting what you're saying right. As far as I understand your posts, they essentially say that:

- Loving v. Virginia
- Turner v. Safley
- Obergefell v. Hodges

Were all unconstitutional because they denied the state from picking and choosing who has a right to marry. Or do you find that the other two rulings had stronger legal footing than the most recent one?

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The Loving ruling was based on race and did nothing to alter the marriage definition from one man and one woman. A black woman is still a woman just as a gay woman is still a woman. If gender difference is not "required" (or even constitutional) then what (other than tradition) makes the marriage partnership, unlike a business partnership, limited to only two partners?

EDIT: On a similar note - what makes the definition of arms different among the several states? The 2A makes no distinction between a pistol, rifle or shotgun yet states are free to treat them differently as well as to consider the "and bear" part of the 2A as a state issued privilege.

RabidAlpaca said:

And you are confusing your outdated opinions on marriage with the actual law.

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Not outdated and not an opinion! Your opinion and my facts are what is being confused.

Disputatious71 said:

Not outdated and not an opinion! Your opinion and my facts are what is being confused.

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Ok, post the facts then. Please show where in the constitution YOUR definition of marriage is enshrined. Your religious beliefs do not trump the rights of others.

RabidAlpaca said:

Ok, post the facts then. Please show where in the constitution YOUR definition of marriage is enshrined. Your religious beliefs do not trump the rights of others.

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According to the Latin tradition, the spouses as ministers of Christ’s grace mutually confer upon each other the sacrament of Matrimony by expressing their consent before the Church. "1623 Catechism of the Catholic Church"

You cannot prove that marriage is not a sacrament, nor will you be able to redefine marriage!

Hatuey said:

It should be obvious that the bans on gay marriage, whether enacted by voting or legislation, singled out homosexuals. Though supporters of these bans have claimed that gays should have settled for "civil union", the reality is that some of these amendments also banned civil unions with gays in them. That said, people have claimed that the recent Obergefell ruling was unconstitutional. Which leads me to present this question:

Does the constitution give states the power to discriminate based on sexual orientation?

I have provided two answers to this:

A) Yes.
B) No.

The reason for this is clear. If you believe that these bans were constitutional, then states do have the power to discriminate based on sexual orientation. If you don't believe they were, then it's clear that states don't. There are no maybe's and others in most of my polls. They assume you understand the topic enough to make a decision based on what you know.

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The real answer to your question is "It depends on the circumstances"

The constitution does not allow the govt to grant benefits, priviliges (or punishments, fines, etc) to groups or individuals it favors (or disfavors). However, the govt is allowed to do so if doing so promotes (or discourages) something that is considered a legitimate interest of government. So whether or not a policy that discriminates based on sexual orientation is allowed depends on whether that policy promotes a legitimate interest.

Having said that, I can't think of any such policy that would promote a legitimate interest.

Disputatious71 said:

According to the Latin tradition, the spouses as ministers of Christ’s grace mutually confer upon each other the sacrament of Matrimony by expressing their consent before the Church. "1623 Catechism of the Catholic Church"

You cannot prove that marriage is not a sacrament, nor will you be able to redefine marriage!

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Umm, I think you missed the point. Look at the question:

RabidAlpaca said:

Ok, post the facts then. Please show where in the constitution YOUR definition of marriage is enshrined. Your religious beliefs do not trump the rights of others.

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So, quoting a "catholic catechism" is not a valid response, ya think?

Hatuey said:

It should be obvious that the bans on gay marriage, whether enacted by voting or legislation, singled out homosexuals

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A point worth making: I think that you are lumping together "statutes that define marriage as one man and one woman" with "bans on gay marriage". That is an oversimplification - such legislation would be equally hindering to those who sought polygamous marriages, or child-adult marriages, or marriages to anything other than an adult member of the opposite sex. Thus, I don't think you can state that they did "single out" homosexuals, homosexuals were merely the instance that resulted in the law being refined.

If a law did read "no gay marriages", then that would be a ban that singled out homosexual unions, which could indirectly be held to be singling out homosexual individuals.

Though supporters of these bans have claimed that gays should have settled for "civil union", the reality is that some of these amendments also banned civil unions with gays in them. That said, people have claimed that the recent Obergefell ruling was unconstitutional. Which leads me to present this question:

Does the constitution give states the power to discriminate based on sexual orientation?

I have provided two answers to this:

A) Yes.
B) No.

The reason for this is clear. If you believe that these bans were constitutional, then states do have the power to discriminate based on sexual orientation. If you don't believe they were, then it's clear that states don't. There are no maybe's and others in most of my polls. They assume you understand the topic enough to make a decision based on what you know.

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The ruling did not add sexual orientation to the "protected classes".

You know what I find so telling is during this whole issue leading up to the Supreme Court's NARROW decision in declaring SSM lawful in all states, across the pond in Ireland they had a national vote where the people decided if SSM would be recognized. Yes the people, not 5 justices politically appointed made the decision.

I ask you this, who is more free, those living in Ireland where they were allowed to vote and have that vote recognized or the citizens in the U.S. where one unelected justice by the name of Kennedy, redefined marriage for over 340 million people overturning the votes of millions.

We got a problem in this country and that is at the moment as soon as the Supreme Court declares something unconstitutional, it’s over. It does not matter what Congress, the president, and 50 state governors think. This is not right. One way to stop it is for Congress to limit the jurisdiction of federal courts including the Supreme Court. Congress has done this before. See Article III, Section 2, Clause 2. Congress can simply take away jurisdiction from federal courts all issues concerning gay marriage. Even with the Obergefell decision in place, a state could reinstate its marriage laws and a federal court could not interfere.

Hatuey said:

It should be obvious that the bans on gay marriage, whether enacted by voting or legislation, singled out homosexuals. Though supporters of these bans have claimed that gays should have settled for "civil union", the reality is that some of these amendments also banned civil unions with gays in them. That said, people have claimed that the recent Obergefell ruling was unconstitutional. Which leads me to present this question:

Does the constitution give states the power to discriminate based on sexual orientation?

I have provided two answers to this:

A) Yes.
B) No.

The reason for this is clear. If you believe that these bans were constitutional, then states do have the power to discriminate based on sexual orientation. If you don't believe they were, then it's clear that states don't. There are no maybe's and others in most of my polls. They assume you understand the topic enough to make a decision based on what you know.

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The states have broad inherent powers as sovereigns. The Constitution doesn't give them any powers. It was the states and their people who ceded certain of their powers to the United States in the Constitution, denied several powers to themselves, and reserved all the rest to themselves in the Tenth Amendment.

Also, when you talk about discrimination and protected classes, you are using the language of equal protection. But Obergefell was a straight up substantive due process decision.The fact Anthony Kennedy, grasping at straws to support an insupportable, arbitrary decree, tacked on an incoherent equal protection analysis does not make that any less true. As the Chief Justice noted, it violated the Court's own rules even to address the equal protection claim, because the majority had already disposed of the issue on due process grounds.

vesper said:

You know what I find so telling is during this whole issue leading up to the Supreme Court's NARROW decision in declaring SSM lawful in all states, across the pond in Ireland they had a national vote where the people decided if SSM would be recognized. Yes the people, not 5 justices politically appointed made the decision.

I ask you this, who is more free, those living in Ireland where they were allowed to vote and have that vote recognized or the citizens in the U.S. where one unelected justice by the name of Kennedy, redefined marriage for over 340 million people overturning the votes of millions.

We got a problem in this country and that is at the moment as soon as the Supreme Court declares something unconstitutional, it’s over. It does not matter what Congress, the president, and 50 state governors think. This is not right. One way to stop it is for Congress to limit the jurisdiction of federal courts including the Supreme Court. Congress has done this before. See Article III, Section 2, Clause 2. Congress can simply take away jurisdiction from federal courts all issues concerning gay marriage. Even with the Obergefell decision in place, a state could reinstate its marriage laws and a federal court could not interfere.

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Limiting the jurisdiction of federal courts is just one of several methods the other two branches can use to check the Supreme Court, but their will to use them is lacking. The most extreme example of Congress limiting the Supreme Court's jurisdiction that I know of is Ex Parte McCardle, 74 U.S. 506 (1869).

The states also play a role, as Justice Scalia pointedly noted in the last paragraph of his dissent in Obergefell. If more than a few states were determined to nullify a Supreme Court decision, no president could prevent them and hope to stay in office. This is a government of the people, and we should never forget that we are the ones who have the final say--in everything.

matchlight said:

Limiting the jurisdiction of federal courts is just one of several methods the other two branches can use to check the Supreme Court, but their will to use them is lacking. The most extreme example of Congress limiting the Supreme Court's jurisdiction that I know of is Ex Parte McCardle, 74 U.S. 506 (1869).

The states also play a role, as Justice Scalia pointedly noted in the last paragraph of his dissent in Obergefell. If more than a few states were determined to nullify a Supreme Court decision, no president could prevent them and hope to stay in office. This is a government of the people, and we should never forget that we are the ones who have the final say--in everything.

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I agree. You know the Constitution requires Congress to have a super majority rule to overturn a President's veto. What do you think about new law requiring a super majority in the Supreme Court to overturn state laws?

vesper said:

I agree. You know the Constitution requires Congress to have a super majority rule to overturn a President's veto. What do you think about new law requiring a super majority in the Supreme Court to overturn state laws?

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My opinion is, "Watch what you ask for, you might not like the results."

I don't want to have to have a super majority of the SCOTUS to overturn a State law that restricts my right to keep and bear arms.


>>>>

Hatuey said:

It should be obvious that the bans on gay marriage, whether enacted by voting or legislation, singled out homosexuals. Though supporters of these bans have claimed that gays should have settled for "civil union", the reality is that some of these amendments also banned civil unions with gays in them. That said, people have claimed that the recent Obergefell ruling was unconstitutional. Which leads me to present this question:

Does the constitution give states the power to discriminate based on sexual orientation?

I have provided two answers to this:

A) Yes.
B) No.

The reason for this is clear. If you believe that these bans were constitutional, then states do have the power to discriminate based on sexual orientation. If you don't believe they were, then it's clear that states don't. There are no maybe's and others in most of my polls. They assume you understand the topic enough to make a decision based on what you know.

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Since the Constitution is silent about sexual orientation and does not define marriage, those are issues that should clearly be left to the states to decide. What is and is not a legal marriage has to be defined by someone. For instance, marriage is limited to two people. Why? And who decides? Certainly not the Constitution. I cannot marry my sister. Why not? And who decides? What is and is not a marriage strikes me as exactly the type of issue that should be decided by the people and not unelected judges. Banning gay relationships or gay behavior would be a rights violation, but no one is suggesting doing that.

vesper said:

You know what I find so telling is during this whole issue leading up to the Supreme Court's NARROW decision in declaring SSM lawful in all states, across the pond in Ireland they had a national vote where the people decided if SSM would be recognized. Yes the people, not 5 justices politically appointed made the decision.

I ask you this, who is more free, those living in Ireland where they were allowed to vote and have that vote recognized or the citizens in the U.S. where one unelected justice by the name of Kennedy, redefined marriage for over 340 million people overturning the votes of millions.

We got a problem in this country and that is at the moment as soon as the Supreme Court declares something unconstitutional, it’s over. It does not matter what Congress, the president, and 50 state governors think. This is not right. One way to stop it is for Congress to limit the jurisdiction of federal courts including the Supreme Court. Congress has done this before. See Article III, Section 2, Clause 2. Congress can simply take away jurisdiction from federal courts all issues concerning gay marriage. Even with the Obergefell decision in place, a state could reinstate its marriage laws and a federal court could not interfere.

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Greetings, Vesper. :2wave:

It's probably because most people think that the SCOTUS is the final authority on the law, and don't realize their decisions can be overturned. I don't know if that's the best way to handle things, though, since that can be turned into something unfair if the political circumstances are right. Why do both parties hope that they're the ones that can appoint a new Justice when one retires? If our country wasn't so ideologically driven, it might be different. Obamacare is an example. Not one Republican voted for it, but it's now the law. When it was challenged, the SCOTUS found a way to explain their decision by using just one word, calling it a TAX. IMO, it's a penalty, because taxes are usually imposed on everyone equally, but that's the way it was decided so that's the way it is. Only when robots replace humans could it be different, but then we'd have the worry about who was programming the damn robots! It's true that the SCOTUS voted unanimously twice that BHO was over-reaching his authority, but he doesn't seem to care - his agenda is more important to him than what their opinion is on how he's handling things.

RabidAlpaca said:

If that same state used its "free exercise of given power to regulate society" to ban YOU from getting married, would that be fine? Can they ban Christians from marrying or owning property? Marriage is a right of the citizens, not the state, and they do not have the power to deny it to minority groups they find icky. (See Supreme Court decision)

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Bad example. States don't have a constitutional grant to run afoul of the freedom of religion. And in fact states do often ban marriage for those closely related. Despite what the rogue SCOTUS decisions of the past have claimed, marriage is NOT a federal constitutional right (in some states it may be a state constitutional right). It is neither enumerated nor is it implied.

vesper said:

I agree. You know the Constitution requires Congress to have a super majority rule to overturn a President's veto. What do you think about new law requiring a super majority in the Supreme Court to overturn state laws?

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I start by being reluctant to upset the balances the Constitution creates. I'm not even sure about Sen. Cruz' proposal for an amendment authorizing retention elections for Supreme Court justices. It's a difficult question, and anyone should carefully consider Hamilton's arguments about the advantages of an independent judiciary in Federalist No. 78 before leaping. I am not sure the checks already available are not adequate, but I am open to arguments that they are not.

We already have some very strong medicine on the shelf. Justice Samuel Chase was impeached largely because an infuriated Jefferson believed he had abused his position as a Supreme Court justice to further a political agenda. I don't know why impeachment should be considered unthinkable today. Having read Justice Kennedy's unprincipled ramblings in Casey, Romer, Lawrence, Windsor, and Obergefell, I am convinced he has for a long time been doing just what Chase was accused of. Obergefell is as flagrantly lawless and unconstitutional as any Supreme Court decision I have ever seen, including Roe v. Wade. And at times Justice Ginsburg hardly bothers to deny she is twisting the Constitution to fit her personal views.

Disputatious71 said:

States and the people have the power to define marriage as a civil union between a man and a woman. Your question is biased because that is not discrimination, it is the free exercise of a state's given power to regulate society and the people's voice through the polls to define marriage. Now if a state actively prevents and refuses to recognize a civil union between same sex couples then yes that state discriminates.

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Captain Adverse said:

Umm, I think you missed the point. Look at the question:



So, quoting a "catholic catechism" is not a valid response, ya think?

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Follow more than just the last responses and you can see the sophism and bias in the original question and the dismissal of an opposing argument.

Disputatious71 said:

According to the Latin tradition, the spouses as ministers of Christ’s grace mutually confer upon each other the sacrament of Matrimony by expressing their consent before the Church. "1623 Catechism of the Catholic Church"

You cannot prove that marriage is not a sacrament, nor will you be able to redefine marriage!

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LOL. You think America is based on Latin traditions? Marriage can be a sacrament to you, but it's not to me. Live and let live. Stop trying to force your beliefs on others and give freedom a chance.

clownboy said:

Bad example. States don't have a constitutional grant to run afoul of the freedom of religion. And in fact states do often ban marriage for those closely related. Despite what the rogue SCOTUS decisions of the past have claimed, marriage is NOT a federal constitutional right (in some states it may be a state constitutional right). It is neither enumerated nor is it implied.

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Ok, interracial marriage. Nowhere in the constitution does it say you have a right to marry someone of another race. That was found unconstitutional for the same reason SSM was. And it wasn't just a few SCOTUS's, it was 13. Marriage is a fundamental human right and you don't have the right to force your definition on others. Live and let live.

RabidAlpaca said:

LOL. You think America is based on Latin traditions? Marriage can be a sacrament to you, but it's not to me. Live and let live. Stop trying to force your beliefs on others and give freedom a chance.



Ok, interracial marriage. Nowhere in the constitution does it say you have a right to marry someone of another race. That was found unconstitutional for the same reason SSM was. And it wasn't just a few SCOTUS's, it was 13. Marriage is a fundamental human right and you don't have the right to force your definition on others. Live and let live.

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Show me where I am forcing anything on you! Interracial marriage, between a man and a woman, was upheld a long time ago! What is it about that that has you upset today? It is a human right because of the need to procreate. A civil union maybe a marriage or it may not be, but a marriage is between a human man and a human woman!

Living and let living is about tolerance, something the LGBT movement and anti-Christian's repeatedly fail to consider when discussing religious issues.

Yes, both state and federal governments are allowed under the constitution to discriminate any way they like... provided it reaches various standards. That's why we have tests like rational basis, intermediate scrutiny, and strict scrutiny. That's how we know exactly how much and for what purposes the state may discriminate.

Crovax said:

The answer is yes, that is not an opinion but a fact. In fact under the constitution the states have to power to discriminate against any group. However there are several federal laws that create protected classes.

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Contrary to the conservative obsession with protected classes, they don't actually matter that much. They're just recognition of issues that have been unjustly discriminated in the past. Something doesn't need to be a protected class to have constitutional protections to due process and equality under the law.

RabidAlpaca said:

Ok, interracial marriage. Nowhere in the constitution does it say you have a right to marry someone of another race. That was found unconstitutional for the same reason SSM was.

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I think there must be a collectivist website somewhere that is recommending the argument by analogy to Loving v. Virgian to all the comrades. It is sheer nonsense, for reasons I have gone into in detail several times here on other threads. The Virginia miscegenation statutes that made it a felony for a white person and a colored person to marry each other had its origins in slavery laws and was designed to maintain white supremacy. The statutes did the very thing it was the central purpose of the Fourteenth Amendment to prevent.

The notion that the people who drafted the Fourteenth Amendment and ratified it in 1868 ever meant it to guarantee homosexuals the right to marry each other against infringement by the states, or that it had ever been understood after that to guarantee any such right, does not even pass the laugh test. Justice Scalia made the point concisely in his dissenting opinion:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. (citing Town of Greece v. Galloway for that proposition; emphasis added)

Marriage is a fundamental human right

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Nowhere had the Supreme Court ever suggested before Obergefell, in Loving, Skinner, Meyer, Reynolds, or in any other decision where it had affirmed marriage as a basic right, that it was referring to anything other than marriage between one man and one woman. The claim that the Court ever meant "marriage, period" leads to the absurd conclusion the Court meant to say there was not only a fundamental right to homosexual marriage, but also to child marriage, incestuous marriage, bigamy, and polygamy.

and you don't have the right to force your definition on others.

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I agree. Anthony Kennedy and his four fellow philosopher-kings had no right to force their personal definition of marriage on the many tens of millions of Americans, a majority in seventy per cent of the states, who did not agree with it.

cpwill said:

A point worth making: I think that you are lumping together "statutes that define marriage as one man and one woman" with "bans on gay marriage". That is an oversimplification - such legislation would be equally hindering to those who sought polygamous marriages, or child-adult marriages, or marriages to anything other than an adult member of the opposite sex. Thus, I don't think you can state that they did "single out" homosexuals, homosexuals were merely the instance that resulted in the law being refined.

If a law did read "no gay marriages", then that would be a ban that singled out homosexual unions, which could indirectly be held to be singling out homosexual individuals.

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I'm sorry it took me so long to respond, I was out having a few drinks. It's Saturday, sue me :lol:. I perfectly understand where you're coming from. However, there are quite a list of bans/amendments which specifically singled out gay marriage:

Nebraska said:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.[2]

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Alabama said:

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

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Georgia said:

(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such relationship.[3]

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Oklahoma said:

(b.) A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.

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Mississippi said:

Marriage may take place and may be valid under the laws of this state only between a man and a woman. A marriage in another state or foreign jurisdiction between persons of the same gender, regardless of when the marriage took place, may not be recognized in this state and is void and unenforceable under the laws of this state.[2]

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Those that don't specifically mention gay marriage were adopted within the same political climate. Though your post doesn't deny that, I think it's pretty clear that the rest of the amendments/bans were adopted to fit that climate, and were also adopted with gays in mind. There simply was no wide scale movement to legalize other types of unions at the time. There still aren't. So while some efforts to ban gay marriage were pretty up front about their intentions, others simply used vague wording that would cover it. Don't you think?

Fletch said:

Since the Constitution is silent about sexual orientation and does not define marriage, those are issues that should clearly be left to the states to decide. What is and is not a legal marriage has to be defined by someone. For instance, marriage is limited to two people. Why? And who decides? Certainly not the Constitution. I cannot marry my sister. Why not? And who decides? What is and is not a marriage strikes me as exactly the type of issue that should be decided by the people and not unelected judges. Banning gay relationships or gay behavior would be a rights violation, but no one is suggesting doing that.

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As I mentioned earlier, went out for a few drinks. A bit tipsy but nothing a few hours at DP won't heal. So I apologize for the tardy reply.

At this point, it seems clear that these definitions aren't solely the responsibility of the state. That said, I think you can't marry your sister because inbreeding is probably a net negative for all parties involved both biologically speaking and even in accordance to studies done on the social dynamics of the matter. No such thing exists for homosexuals because their raisons d'être simply don't provide it. Sure, there are quite a few completely rejected articles by would-be scientists on the right who believe that these relationships have a negative impact, however it's not something supported by anybody considered mainstream whether they're left wing or right wing in as far as it regards their political beliefs. No?