The Constitutional SSM Argument

[Miguel17]

Law isn't my thing, but I've done some reading about constitutional law because I care about marriage equality. As far as I can tell, looking at Brown v. Board, Lyng v. Castillo, and some smaller cases, it seems that the real argument for same-sex marriage is a constitutional one; that is, under the Equal Protection clause in the 14th Amendment, not allowing gays and lesbians to marry is discriminatory.

Therefore, the question under the Equal Protection clause is whether gays and lesbians constitute a suspect class. This means a group that is discriminated against, whose discrimination can be remedied. In my reading I found three basic requirements for a suspect class.

1) Historical discrimination
2) Immutability of trait (can't be changed)
3) Is not harmful to society

That gays and lesbians meet 1) is beyond question, I think. 2) is inchoate, because scientifically we simply can't prove it one way or the other. There's question on this. And 3) is certainty met (it's in place to prevent, say, child molesters from claiming discrimination). So the real battle to be fought is over the immutability.

By the way--religion doesn't meed any of the three requirements, but it's protected by the First Amendment.

I think this playbook is important for discussion when same-sex marriage inevitably reaches the Supreme Court (although, the Obamacare ruling notwithstanding, I hope this is delayed until a more cooperative court), the argument will have to be made. So, thoughts? Criticisms? Suggestions? We all know that the moral argument in favor of same-sex marriage is no longer seriously challengeable by opponents. We've won that one. So what about the legal argument?

 

[Gipper]

There really hasn't ever been a legal argument to fight same-sex marriage, other than the fact that the nation was build on Judeo-Christian values, and are kept in perpetuity by a largely Christian populace.

In a perfect world, it would be a matter for church and not for state. If two dudes want to hit City Hall and declare themselves married dude and married dude, no sweat off my balls.

 

[AGENT J]

Law isn't my thing, but I've done some reading about constitutional law because I care about marriage equality. As far as I can tell, looking at Brown v. Board, Lyng v. Castillo, and some smaller cases, it seems that the real argument for same-sex marriage is a constitutional one; that is, under the Equal Protection clause in the 14th Amendment, not allowing gays and lesbians to marry is discriminatory.

Therefore, the question under the Equal Protection clause is whether gays and lesbians constitute a suspect class. This means a group that is discriminated against, whose discrimination can be remedied. In my reading I found three basic requirements for a suspect class.

1) Historical discrimination
2) Immutability of trait (can't be changed)
3) Is not harmful to society

That gays and lesbians meet 1) is beyond question, I think. 2) is inchoate, because scientifically we simply can't prove it one way or the other. There's question on this. And 3) is certainty met (it's in place to prevent, say, child molesters from claiming discrimination). So the real battle to be fought is over the immutability.

By the way--religion doesn't meed any of the three requirements, but it's protected by the First Amendment.

I think this playbook is important for discussion when same-sex marriage inevitably reaches the Supreme Court (although, the Obamacare ruling notwithstanding, I hope this is delayed until a more cooperative court), the argument will have to be made. So, thoughts? Criticisms? Suggestions? We all know that the moral argument in favor of same-sex marriage is no longer seriously challengeable by opponents. We've won that one. So what about the legal argument?

said before and ill say it again, there has never been one logical sound unbiased objective reason to not allow equal gay rights under the law.

People can still teach, preach, feel, think its wrong etc etc and I would defend that right also

but to participate in not allowing equal gay rights is hypocritical has an American.

 

[roguenuke]

Well, since technically, it isn't a person's sexuality that restricts whether they can get married, but rather their sex/gender, then is shouldn't be a "suspect class" at all. It should fall under the Intermediate Level of Scrutiny.

Of course, there is also a couple of cases from the SCOTUS on marriage laws that were struck down without the people meeting those things that you mentioned. One dealt with a law that prevented people who were behind in the child support from getting married, which is certainly not something that is "immutable". Another dealt with prisoners who were being denied the right to get married, which is again not "immutable" since they could always wait til after they got out of prison if they really wanted to get married. Yet both laws were struck down by the SCOTUS basically because the state could not show that there was any actual state interest being served in denying these people the right to marriage.

Plus, religion is in the highest category of scrutiny alongside race and it a completely voluntary position. No one's religion is "immutable".

The argument should come down to what state interest is truly being furthered in not allowing same sex couples to get married. We know the level will be either the lowest or the middle tier, but honestly it doesn't really matter, since this only makes a difference in how important the state interest is that is being furthered or how much it the restriction has to relate to that state interest. The state really doesn't have a strong enough argument though in even the lowest tier of scrutiny because there is nothing that prevents a same sex couple from fulfilling all of the legal obligations/responsibilities of marriage and there is nothing inherently wrong or harmful in promoting marriage between two people of the same sex.

 

[specklebang]

Since "all men are created equal", I think we should not allow OSM. Look how many problems OSM causes. Guys are more reasonable and they can work it out. Also, dick measuring would be more logical.

 

[Gipper]

I think we should not allow OSM. Look how many problems OSM causes.

 

[Miguel17]

The argument should come down to what state interest is truly being furthered in not allowing same sex couples to get married. We know the level will be either the lowest or the middle tier, but honestly it doesn't really matter, since this only makes a difference in how important the state interest is that is being furthered or how much it the restriction has to relate to that state interest. The state really doesn't have a strong enough argument though in even the lowest tier of scrutiny because there is nothing that prevents a same sex couple from fulfilling all of the legal obligations/responsibilities of marriage and there is nothing inherently wrong or harmful in promoting marriage between two people of the same sex.

That's what it comes down to. If the state has no compelling reason not to allow same-sex couples to get married, there's no reason for the courts to stand in the way. In terms of the Supreme Court, there is also the element of political impotence. The Court has shown little interest in making decisions to help those who can help themselves, so to speak. It doesn't get involved when the issue can better be addressed at other levels of government. I think a compelling case can be made, given the electoral failures of same-sex marriage on a state-to-state basis, that gays and lesbians' rights should be pursued at the Supreme Court level.

 

[Paschendale]

That's what it comes down to. If the state has no compelling reason not to allow same-sex couples to get married, there's no reason for the courts to stand in the way. In terms of the Supreme Court, there is also the element of political impotence. The Court has shown little interest in making decisions to help those who can help themselves, so to speak. It doesn't get involved when the issue can better be addressed at other levels of government. I think a compelling case can be made, given the electoral failures of same-sex marriage on a state-to-state basis, that gays and lesbians' rights should be pursued at the Supreme Court level.

This is the current stance on the Proposition 8 case. All of the things that opponents of SSM care about (most often protecting children), aren't actually furthered by restricting it. And this is the standard that will prevail until the Supreme Court takes it up, at which point they'll probably rule the same way. Unless they decide to make up facts, which they sometimes do. But there will be a very large backlash if they decide to do it in this instance. Legal arguments about SSM are basically over. And they've been sputtering for years. Prop 8 was only the latest in a series of attempts in California to ban SSM, and each one has been overturned as unconstitutional. SSM bans, in any form, aren't going to be around much longer.

 

[Miguel17]

This is the current stance on the Proposition 8 case. All of the things that opponents of SSM care about (most often protecting children), aren't actually furthered by restricting it. And this is the standard that will prevail until the Supreme Court takes it up, at which point they'll probably rule the same way. Unless they decide to make up facts, which they sometimes do. But there will be a very large backlash if they decide to do it in this instance. Legal arguments about SSM are basically over. And they've been sputtering for years. Prop 8 was only the latest in a series of attempts in California to ban SSM, and each one has been overturned as unconstitutional. SSM bans, in any form, aren't going to be around much longer.

If SSM went to the supremes right now, do you think they would legalize it, on anti-discrimination grounds? Personally I'm worried about the arithmetic of the justices right now. I think we could be looking at 5-4 upholding SSM bans.

 

[roguenuke]

If SSM went to the supremes right now, do you think they would legalize it, on anti-discrimination grounds? Personally I'm worried about the arithmetic of the justices right now. I think we could be looking at 5-4 upholding SSM bans.

I don't agree, although it is certainly possible. I think that Kennedy is at least a little more likely to strike down at least DOMA and Prop 8. Not so confident he would be willing to make a broader decision to take down all the same sex marriage bans, but I don't think he would vote to uphold either of those laws and he is the only one the more liberal judges need.

 

[code1211]

If SSM went to the supremes right now, do you think they would legalize it, on anti-discrimination grounds? Personally I'm worried about the arithmetic of the justices right now. I think we could be looking at 5-4 upholding SSM bans.

Is this an issue of Federal Law? It seems like this should be a power reserved to the various states or to the people.

 

[Miguel17]

I don't agree, although it is certainly possible. I think that Kennedy is at least a little more likely to strike down at least DOMA and Prop 8. Not so confident he would be willing to make a broader decision to take down all the same sex marriage bans, but I don't think he would vote to uphold either of those laws and he is the only one the more liberal judges need.

You may be right. The only LGBT case that Kennedy came down on that I know of (although I admit I'm not knowledgeable about the law) is the Lawrence v. Texas case; of course he came down on the side of legalizing sodomy.

Ultimately, we all know that in a SSM case Scalia, Thomas, Alito, and Roberts would be one side, and Ginsburg, Kagan, Sotomayor, and Breyer on the other. (Some people have talked about Roberts, after Obamacare, but I can't possibly imagine him coming out on the side of SSM). So the real question is Kennedy. I'm concerned he would support state's rights as far as a Prop 8 style ban, if that type of ban was brought to the court. DOMA is a different issue of course.

 

[Miguel17]

Is this an issue of Federal Law? It seems like this should be a power reserved to the various states or to the people.

I think the mere fact that every single state vote has been anti-SSM demonstrates a compelling need for a federal ruling. Although both sides are afraid of taking to the SCOTUS. State elections and referendums are one thing, but a SCOTUS case could be a Brown v. Board, or it could be a Plessy v. Ferguson. Integrationists had high hopes for Plessy, but it was a brutal ruling that set back black civil rights for fifty years.

 

[teamosil]

Good posts Miguel17.

There is a nuance you're missing through. There are three levels of suspect class. The highest level includes race and religion. In order for the government to deny members of different races or religions equal protection of the law it requires that the policy pass "strict scrutiny". That means that it needs to be "narrowly tailored" to a "compelling state interest". That standard is virtually impossible to meet. It has to be a crucial interest like say avoiding the total collapse of the economy or losing a war or something like that. And, in order to be considered narrowly tailored, it basically needs to be the only possible way to accomplish that objective. The district court decision in Perry v. Schwarzenegger found that sexual orientation is in this highest level of suspect class and hence denying gay people the right to get married is a clear cut violation of the equal protection clause.

The second tier includes gender. In this level policies need to pass "intermediate scrutiny". What that means is that the policy has to serve an "important state interest" and be "substantially related" to the goal. This is still a pretty tough standard, but some things do pass it.

The third tier includes every other characteristic a person can have. In this level, policies only need to have a "rational basis", meaning the court can see at least some line of thought that might justify the policy as serving some legitimate state interest. The circuit court decision in Perry v. Schwarzenegger decided that they didn't need to decide which tier sexual orientation falls in because it wouldn't pass even rational basis review. Their take was that in CA civil unions gave the same exact rights as marriage, so the only conceivable purpose of prop 8 was to shame gay people, which isn't a legitimate state interest.

 

[Aunt Spiker]

Everyone makes this more complicated than it already is.

It's very simple.

1) The government obtains only the powers granted to it by the constitution or subsequent constitutional amendments
2) marriage is not a construct that the government is ordained to define and uphold

 

[Miguel17]

Everyone makes this more complicated than it already is.

It's very simple.

1) The government obtains only the powers granted to it by the constitution or subsequent constitutional amendments
2) marriage is not a construct that the government is ordained to define and uphold

Well, I think Loving v Virginia, among many other cases, establish marriage as within the parameters of what the state can define. Keep in mind, interracial marriage was passed in 1967 by the SCOTUS against many of the churches' definitions of marriage at the time.

 

[Miguel17]

Good posts Miguel17.

There is a nuance you're missing through. There are three levels of suspect class. The highest level includes race and religion. In order for the government to deny members of different races or religions equal protection of the law it requires that the policy pass "strict scrutiny". That means that it needs to be "narrowly tailored" to a "compelling state interest". That standard is virtually impossible to meet. It has to be a crucial interest like say avoiding the total collapse of the economy or losing a war or something like that. And, in order to be considered narrowly tailored, it basically needs to be the only possible way to accomplish that objective. The district court decision in Perry v. Schwarzenegger found that sexual orientation is in this highest level of suspect class and hence denying gay people the right to get married is a clear cut violation of the equal protection clause.

The second tier includes gender. In this level policies need to pass "intermediate scrutiny". What that means is that the policy has to serve an "important state interest" and be "substantially related" to the goal. This is still a pretty tough standard, but some things do pass it.

The third tier includes every other characteristic a person can have. In this level, policies only need to have a "rational basis", meaning the court can see at least some line of thought that might justify the policy as serving some legitimate state interest. The circuit court decision in Perry v. Schwarzenegger decided that they didn't need to decide which tier sexual orientation falls in because it wouldn't pass even rational basis review. Their take was that in CA civil unions gave the same exact rights as marriage, so the only conceivable purpose of prop 8 was to shame gay people, which isn't a legitimate state interest.

Good points. The separate tiers is an important issue, although as you point out the state has no compelling reason to restrict SSM for any reason whatsoever. Ultimately, those who defend SSM must put for the legal arguments, because the anti-SSM crowd has no legal (or even more important), moral reason for their opposition. When it doesn't consist of "ew gays" or "but the Bible says...", they usually consist of arguments to support the status quo...which of course is not a legal or moral reason to do anything.

 

[teamosil]

Everyone makes this more complicated than it already is.

It's very simple.

1) The government obtains only the powers granted to it by the constitution or subsequent constitutional amendments
2) marriage is not a construct that the government is ordained to define and uphold

No, that's not quite right. The FEDERAL government only has the powers granted to it by the constitution. States have everything else. Regulating marriage is a state power.

 

[Paschendale]

Loving v. Virginia was 9-0. There's really no grounds to distinguish gay marriage from interracial. The key issue is going to, as it did in California and 9th circuit courts, that banning SSM doesn't further any of the governmental interests that proponents of such a ban say it will. Is it a legitimate government interest to promote a stable environment to raise children? Sure. But gays can raise children without marrying, and all the evidence suggests that gay parents are just as good at raising children at heteros. The burden is on proponents to prove that there's a reason to ban SSM, not on gays or anyone else to prove that there's a reason to protect it.

 

[Paschendale]

No, that's not quite right. The FEDERAL government only has the powers granted to it by the constitution. States have everything else. Regulating marriage is a state power.

But equal protection is a federal issue, and states do not have the power to overrule federal ones.

 

[teamosil]

Good points. The separate tiers is an important issue, although as you point out the state has no compelling reason to restrict SSM for any reason whatsoever. Ultimately, those who defend SSM must put for the legal arguments, because the anti-SSM crowd has no legal (or even more important), moral reason for their opposition. When it doesn't consist of "ew gays" or "but the Bible says...", they usually consist of arguments to support the status quo...which of course is not a legal or moral reason to do anything.

I'm just nitpicking now, but to be clear, if it is in the lowest tier, they don't require a "compelling" state interest, they just require a "legitimate" state interest. In CA the circuit court found that there was no legitimate interest served by banning same sex marriage, but "legitimate" is actually a very low bar. The only reason prop 8 wasn't found to serve a legitimate interest was because the civil unions were exactly the same. If CA didn't have civil unions, they very possibly could have been found to have a rational basis for believing that banning same sex marriage served a legitimate state interest. Basically prop 8 has no effect at all except to demean gay people, but in states without civil unions, for example, the state could argue that marriage carries tax benefits that are designed to encourage traditional families or some such nonsense. That would most likely be found to be a legitimate state interest. The standard in that bottom tier is very, very, easy to meet. There are relatively few laws in US history that have not met it. If sexual orientation is found to be in that lowest tier, that would definitely be a loss for the advocates of marriage equality, even though at least some of the bans on same sex marriage would be struck down. We want it to be at least in the middle tier and ideally in the highest tier because it has all kinds of implications beyond just marriage. For example, states can still allow employment discrimination based on sexual orientation if it is in the bottom tier.

 

[teamosil]

But equal protection is a federal issue, and states do not have the power to overrule federal ones.

Yep, that's right. If it violates equal protection (it does IMO), then the federal courts need to strike down state laws that ban same sex marriage. I think Aunt Spiker was just saying all government can't get regulate marriage at all. If so, that is incorrect. States can regulate it, and the federal government can ensure that they do so in a way that aligns with the constitution.

 

[Miguel17]

I'm just nitpicking now, but to be clear, if it is in the lowest tier, they don't require a "compelling" state interest, they just require a "legitimate" state interest. In CA the circuit court found that there was no legitimate interest served by banning same sex marriage, but "legitimate" is actually a very low bar. The only reason prop 8 wasn't found to serve a legitimate interest was because the civil unions were exactly the same. If CA didn't have civil unions, they very possibly could have been found to have a rational basis for believing that banning same sex marriage served a legitimate state interest. Basically prop 8 has no effect at all except to demean gay people, but in states without civil unions, for example, the state could argue that marriage carries tax benefits that are designed to encourage traditional families or some such nonsense. That would most likely be found to be a legitimate state interest. The standard in that bottom tier is very, very, easy to meet. There are relatively few laws in US history that have not met it. If sexual orientation is found to be in that lowest tier, that would definitely be a loss for the advocates of marriage equality, even though at least some of the bans on same sex marriage would be struck down. We want it to be at least in the middle tier and ideally in the highest tier because it has all kinds of implications beyond just marriage. For example, states can still allow employment discrimination based on sexual orientation if it is in the bottom tier.

I see. Well that is an important distinction. The equal protection clause under the 14th Amendment would protect any of the tiers, though, right? I would assume the e p clause would apply to any suspect class, but correct me if I'm wrong. I think it's clear the equal protection clause is applicable to the gay and lesbian community.

Many silly arguments may be advanced by anti-SSM people. Some have argued that financial benefits for "traditional" marriage promotes procreation, which of course is in the state's interest. But if that were true marriage benefits would be tied to children, not simply to marriage. Specifically what are the requirements for the upper tier? I thought it was just the big three of immutability, historical discrimination, and political impotence?

 

[teamosil]

I see. Well that is an important distinction. The equal protection clause under the 14th Amendment would protect any of the tiers, though, right? I would assume the e p clause would apply to any suspect class, but correct me if I'm wrong. I think it's clear the equal protection clause is applicable to the gay and lesbian community.

What I am describing is how the equal protection clause applies. It depends what tier you're in. For example, having a driver's license or being 18 are in the bottom tier, so states can discriminate on the basis of those things so long as they have some kind of legitimate reason. So, for example, they can discriminate against people without driver's licenses by denying them permission to drive because it reduces traffic accidents. But the equal protection clause would prevent states from discriminating on the basis of those things for a totally ridiculous reason. For example, if the states said that people without driver's can't wear blue shirts anymore just for the heck of it, the equal protection clause would stop them. When you get up to the top tier, the state would need a damn good reason and would need to show that it was the only way to achieve it, and if they fell short, the equal protection clause would stop them from doing it.

Many silly arguments may be advanced by anti-SSM people. Some have argued that financial benefits for "traditional" marriage promotes procreation, which of course is in the state's interest. But if that were true marriage benefits would be tied to children, not simply to marriage.

So I would say that promoting procreation is a legitimate state interest, maaaaybe an important state interest, but definitely not a "compelling" state interest. So, that would be a good enough interest to get them by in the lowest tier and maybe the second tier, but not the top tier.

But, the other half of the equation is how narrowly tailored the policy is to that interest. What you're pointing out by saying that opposite sex couples get those benefits without being married is that the policy is not very well tailored to the interest it is trying to achieve, and you're absolutely right. That level of tailoring would probably pass in the lowest tier where they just need a 'rational basis', but most likely would not pass in the middle tier, and definitely not in the top tier.

Specifically what are the requirements for the upper tier? I thought it was just the big three of immutability, historical discrimination, and political impotence?

Yeah, those are three that are often used. The reality is that they have applied different standards at different times. The court hasn't set a firm rule for what gets a class into which category. It's pretty hard to come up with one really. For example, being under 18 clearly is something states ought to be able to discriminate on the basis of, but really under 18 year olds meet all three of those standards. So, they do consider those three things, but ultimately they might decide which tier to put it in for other reasons too.

 

[Paschendale]

So I would say that promoting procreation is a legitimate state interest, maaaaybe an important state interest, but definitely not a "compelling" state interest. So, that would be a good enough interest to get them by in the lowest tier and maybe the second tier, but not the top tier.

Even if it is, banning SSM doesn't actually promote procreation, or provide a better environment for children. Not only must a ban be aimed at promoting a specific interest, it has to actually promote it. SSM bans don't accomplish anything besides discrimination, which is not a legit interest. SSM bans can't even meet a rational basis test.