The Constitutional SSM Argument

[ttwtt78640]

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?

If the 14th amendment did all of that then there would have been no need for the 15th, 19th, 24th or 26th amendments. The problem is that no FEDERAL power covers marriage, and no mention of marriage as a personal right exists, so it is a state function. Many things just ARE, such as the hundreds of credits, exemptions, deductions and exclusions in the FIT code, all based ONLY on the 16th amendment right to tax "income from all sources", yet the law concentrates 85% on how that income was LATER spent. To assert ANY constitutional protection it must be shown that a personal right or federal power exists in the constitution relative to marriage. The constitution ALLOWS discrimination as we see with gender specific physical fitness qualifications for "gender neutral" military positions, and with title 9 college sports spending requirements for male and female (separate but equal) athletes. What you want is a JUDGE to trump state law since "times have changed", but that argument is rediculous because the attidute of the voters has NOT changed or the state law would change. How can you argue for "equal" protection under the law while supporting many laws that are clearly not equal, specifically the FIT code, taxing two persons making the SAME income from the SAME source yet owing two different amounts of tax based on "personal relationsihips" and how they LATER spent that money?

 

[Helix]

it's a clear cut equal protection issue. SCOTUS will eventually decide it, and my guess is that discriminatory marriage laws will be tossed.

 

[ttwtt78640]

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?

Why would the SSM "community" be any different than a polygamy "community"? Just because someone is "prone to" or has a "strong desire to" does not make it discrimination to say NO. No harm to society can be shown to not allow roaming around naked on a beach or in a park, having 4 "wives", restricting alcohol sales on Sunday, having Christmas as a national holiday (holy day?) yet they are not automatic "rights" (or wrongs) simply because one can show no grave danger or harm to others.

 

[Cameron]

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?

Gay people should certainly qualify as at least a quasi-suspect class (like women and illegitimate children), if not a suspect class. But even if the judiciary is unwilling to go that far, banning gay marriage fails even basic rational basis review, because there is no legitimate reason for denying gay people the same privileges and benefits as straight people. In fact, given some of the aspects of gay culture, we should be encouraging gay marriage.

 

[Cameron]

Why would the SSM "community" be any different than a polygamy "community"? Just because someone is "prone to" or has a "strong desire to" does not make it discrimination to say NO.

You are absolutely right. What makes it unconstitutional discrimination is when the law does not serve any significant purpose or, if it does, is not a rational means of furthering that purpose.

The key difference between polygamy and gay marriage is that a gay monogamous relationship functions in exactly the same way as a straight monogamous relationship. The theories behind how government benefits are distributed to straight married couples apply equally to gay monogamous couples, and all the calculations would be identical. Polygamy is different because there are more parties involved. How does elective share work with four wives? How does custody work? Food stamps can't be distributed in the same way. Polygamy is actually a different type of union, so there are rational reasons why benefits might be afforded in different ways.

 

[Paschendale]

If the 14th amendment did all of that then there would have been no need for the 15th, 19th, 24th or 26th amendments.

False

The problem is that no FEDERAL power covers marriage, and no mention of marriage as a personal right exists, so it is a state function.

False, see Loving v. Virgina

Many things just ARE, such as the hundreds of credits, exemptions, deductions and exclusions in the FIT code, all based ONLY on the 16th amendment right to tax "income from all sources", yet the law concentrates 85% on how that income was LATER spent.

Not relevant

To assert ANY constitutional protection it must be shown that a personal right or federal power exists in the constitution relative to marriage.

Again, see Loving v. Virginia

The constitution ALLOWS discrimination as we see with gender specific physical fitness qualifications for "gender neutral" military positions, and with title 9 college sports spending requirements for male and female (separate but equal) athletes.

Yes, so long as that discrimination promotes some legitimate government interest. Fitness of military members to do the jobs they're assigned? Legit. Title 9 operates under an equal protection test, not a constitutional muster test. It's not relevant to this issue.

What you want is a JUDGE to trump state law since "times have changed", but that argument is rediculous because the attidute of the voters has NOT changed or the state law would change.

Supreme Court judge. You know, the folks who are specifically empowered to do just that. Also, the attitude of voters has changed. The majority of Americans support SSM, and even if they don't, the fact that it's closer to "majority" than "none" shows that opinions have changed dramatically.

How can you argue for "equal" protection under the law while supporting many laws that are clearly not equal, specifically the FIT code, taxing two persons making the SAME income from the SAME source yet owing two different amounts of tax based on "personal relationsihips" and how they LATER spent that money?

Again, not relevant. Income tax and SSM are separate issues that have nothing to do with each other. One is not a prerequisite for the other.

 

[code1211]

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.

In terms of equality before the law, gays are already that individually. It is only as they enter into this contract that the problem arrises. Are contracts a federal or a state issue under the Constitution?

 

[Miguel17]

If the 14th amendment did all of that then there would have been no need for the 15th, 19th, 24th or 26th amendments. The problem is that no FEDERAL power covers marriage, and no mention of marriage as a personal right exists, so it is a state function. Many things just ARE, such as the hundreds of credits, exemptions, deductions and exclusions in the FIT code, all based ONLY on the 16th amendment right to tax "income from all sources", yet the law concentrates 85% on how that income was LATER spent. To assert ANY constitutional protection it must be shown that a personal right or federal power exists in the constitution relative to marriage. The constitution ALLOWS discrimination as we see with gender specific physical fitness qualifications for "gender neutral" military positions, and with title 9 college sports spending requirements for male and female (separate but equal) athletes. What you want is a JUDGE to trump state law since "times have changed", but that argument is rediculous because the attidute of the voters has NOT changed or the state law would change. How can you argue for "equal" protection under the law while supporting many laws that are clearly not equal, specifically the FIT code, taxing two persons making the SAME income from the SAME source yet owing two different amounts of tax based on "personal relationsihips" and how they LATER spent that money?

Loving v. Virginia is the precedent, and clearly marriage is a federal issue there. The precedence that Loving establishes, in addition to marriage being a federal issue, is that while not in the constitution, marriage is a "basic civil right," and to deny that freedom to someone can only be done if the state has a compelling reason to do so. Notice that the onus is put on the state to prove that there is a compelling reason. What do you think is the compelling reason to deny marriage to same-sex couples.

I do want judges to overturn all SSM bans. Constitutionally, it doesn't matter if the voters minds have changed if the SCOTUS takes the case. Do you think there was a wave of public opinion against segregation in 1954? The SCOTUS stepped in there to protect a minority that was being discriminated against and was politically impotent to defend itself. But although it's irrelevant to the SCOTUS, polls show that more people support SSM (without any qualifiers) than oppose it. Considering the percentage was something like half of that ten years shows an unprecedented spike in belief in marriage equality. Normally public opinion only changes that quickly after something like 9/11. It's truly been amazing to see such a wave of support; the culture is changing.

The income tax isn't comparable to SSM.

 

[Miguel17]

In terms of equality before the law, gays are already that individually. It is only as they enter into this contract that the problem arrises. Are contracts a federal or a state issue under the Constitution?

Gays have equality in the right to a trial or the right to vote, but that's not what we're talking about here. I've heard people say that SSM bans aren't discriminatory because a gay or lesbian has the exact same right to marry as a straight person: they both have an equal right to marry the opposite sex. Clearly this is confused thinking, along the lines of the state of Virginia arguing in Loving v. Virginia that anti-miscegnation laws weren't discriminatory because they punished blacks and whites equally.

According to the SCOTUS, it's a federal issue when a politically impotent group is being discriminated against.

 

[teamosil]

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.

You don't need to convince me. I am absolutely on the pro-marriage equality end of the spectrum. I'm trying to predict what the courts would say, not giving my own personal opinion. The standard for "legitimate state interest" as required in the rational basis test is VERY low. Basically, the purported interest needs to be illegal to fail that test. Courts almost never fail any statute on rational basis review. They only times they have with regards to equal rights for gay people have been situations where there was clearly just no other possible explanation for the law other than that the state wanted to demean gay people. If the state can come up with anything at all beyond that, courts will almost certainly find that it passes rational basis review.

 

[Paschendale]

You don't need to convince me. I am absolutely on the pro-marriage equality end of the spectrum. I'm trying to predict what the courts would say, not giving my own personal opinion. The standard for "legitimate state interest" as required in the rational basis test is VERY low. Basically, the purported interest needs to be illegal to fail that test. Courts almost never fail any statute on rational basis review. They only times they have with regards to equal rights for gay people have been situations where there was clearly just no other possible explanation for the law other than that the state wanted to demean gay people. If the state can come up with anything at all beyond that, courts will almost certainly find that it passes rational basis review.

Well, it's unlikely that SSM will get a rational basis test, though, since even Lawrence v Texas applied intermediate scrutiny. It's unlikely that the court will have any grounds to distinguish SSM from the standard in Loving, which was strict scrutiny. But in Perry v Brown/Schwarzenegger, SSM bans even fail a rational basis. There's no purpose furthered by SSM bans except discrimination, which isn't a legit purpose.

 

[teamosil]

Well, it's unlikely that SSM will get a rational basis test, though, since even Lawrence v Texas applied intermediate scrutiny. It's unlikely that the court will have any grounds to distinguish SSM from the standard in Loving, which was strict scrutiny. But in Perry v Brown/Schwarzenegger, SSM bans even fail a rational basis. There's no purpose furthered by SSM bans except discrimination, which isn't a legit purpose.

Yeah, agreed on all points. Except, that I think that if courts did apply only the rational basis test, which requires only a "legitimate" purpose, then they would find that at least in some cases. The purpose don't really need to be even a decent one. It can be very far fetched and still pass rational basis. It is a VERY deferential standard. For example, they explicitly say that the purpose the state claims doesn't need to be the actual, real, reason the law was passed under rational basis review. It just needs to be one possible reason.

If I had to predict, I would predict that you are correct that it will fall under intermediate scrutiny and that the bans will fail to survive that level of review.

 

[Paschendale]

Yeah, agreed on all points. Except, that I think that if courts did apply only the rational basis test, which requires only a "legitimate" purpose, then they would find that at least in some cases. The purpose don't really need to be even a decent one. It can be very far fetched and still pass rational basis. It is a VERY deferential standard. For example, they explicitly say that the purpose the state claims doesn't need to be the actual, real, reason the law was passed under rational basis review. It just needs to be one possible reason.

If I had to predict, I would predict that you are correct that it will fall under intermediate scrutiny and that the bans will fail to survive that level of review.

See Romer v. Evans for an anti homosexuality constitutional amendment in Colorado failing rational basis.

 

[teamosil]

See Romer v. Evans for an anti homosexuality constitutional amendment in Colorado failing rational basis.

Yeah, that's the same rationale as the ninth circuit's decision in Perry v Brown- the law does nothing except demean gay people, so no legit purpose. But most ssm bans do other stuff. Change tax implications, maybe affect adoption, affect insurance and hospital visitation rights, etc. All that stuff gives them plenty of fodder to argue that there is a legitimate purpose (even though there really isn't).

 

[beerftw]

fun facts on constitutionality of marriage.

fact govt has no power over mariage except by 14th amendment which prevents discrimination without due process of law.

fact lovely vs virginia covers interacial marriage,already protected under 14th amendment,it doesnt give govt power oover marriage,it reinforced existing standards of an amendment,saying govt cant discriminate over marriage without due process.


fact states are not obligated to even accept marriage,all it takes is for the unconstitutional doma to end,and any state that doesnt accept ssm can outlaw all marriage and civil unions,since the 14th calls for equal protection,and equally giving no one protection is equal.the federal govt could do nothing since marriage is not defined under the constitution and left to the states,pre 14th amendment states had 100% say.post 14th states can either accept all or none,which both are withing constitutional rights.

all answers on this subject can easilylead to problems,since as stated under the constitution states hold rights over marriage,the 14th amendment blocks most that power,therefore any state can easily just deny marriage/civil union for everyone to block ssm.it would be where marriage would only be recognized by church and community,and maybe federal for tax reasons only,but not on a state level

 

[Redress]

If the 14th amendment did all of that then there would have been no need for the 15th, 19th, 24th or 26th amendments. The problem is that no FEDERAL power covers marriage, and no mention of marriage as a personal right exists, so it is a state function. Many things just ARE, such as the hundreds of credits, exemptions, deductions and exclusions in the FIT code, all based ONLY on the 16th amendment right to tax "income from all sources", yet the law concentrates 85% on how that income was LATER spent. To assert ANY constitutional protection it must be shown that a personal right or federal power exists in the constitution relative to marriage. The constitution ALLOWS discrimination as we see with gender specific physical fitness qualifications for "gender neutral" military positions, and with title 9 college sports spending requirements for male and female (separate but equal) athletes. What you want is a JUDGE to trump state law since "times have changed", but that argument is rediculous because the attidute of the voters has NOT changed or the state law would change. How can you argue for "equal" protection under the law while supporting many laws that are clearly not equal, specifically the FIT code, taxing two persons making the SAME income from the SAME source yet owing two different amounts of tax based on "personal relationsihips" and how they LATER spent that money?

You just explained why DOMA is unconstitutional. Marriage is and always was a state issue, until DOMA. So now based on your explanation, DOMA is gone. That means any state can sanction SSM. SO the next question is whether they can deny SSM, and that is where it gets a bit tricky and so many here are making mistakes. Let's follow it step by step.

1) Loving V Virginia: this is an important precedent, just not for the reason some are claiming. It does not make marriage a federal issue. It says that "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival". This is important because if marriage is a basic right, then the state(s) need a justification to deny that right.

2) While states get to decide who they marry, they have to do so within the constitution. Since Loving says that it is a right, even though it is a state issue, there still has to be a rational reason(using the lowest standard) or it is illegal to deny it under our constitution.

3) There is no such rational reason. States gain nothing from denying SSM.

4) Since SSM bans fail rational basis review, and DOMA fails as explained above, SSM is an inevitability without a constitutional amendment that simply won't happen.

 

[Redress]

Why would the SSM "community" be any different than a polygamy "community"? Just because someone is "prone to" or has a "strong desire to" does not make it discrimination to say NO. No harm to society can be shown to not allow roaming around naked on a beach or in a park, having 4 "wives", restricting alcohol sales on Sunday, having Christmas as a national holiday (holy day?) yet they are not automatic "rights" (or wrongs) simply because one can show no grave danger or harm to others.

Because SSM and polygamy are different? See, that is not so hard to understand.

 

[Redress]

Loving v. Virginia is the precedent, and clearly marriage is a federal issue there. The precedence that Loving establishes, in addition to marriage being a federal issue, is that while not in the constitution, marriage is a "basic civil right," and to deny that freedom to someone can only be done if the state has a compelling reason to do so. Notice that the onus is put on the state to prove that there is a compelling reason. What do you think is the compelling reason to deny marriage to same-sex couples.

I do want judges to overturn all SSM bans. Constitutionally, it doesn't matter if the voters minds have changed if the SCOTUS takes the case. Do you think there was a wave of public opinion against segregation in 1954? The SCOTUS stepped in there to protect a minority that was being discriminated against and was politically impotent to defend itself. But although it's irrelevant to the SCOTUS, polls show that more people support SSM (without any qualifiers) than oppose it. Considering the percentage was something like half of that ten years shows an unprecedented spike in belief in marriage equality. Normally public opinion only changes that quickly after something like 9/11. It's truly been amazing to see such a wave of support; the culture is changing.

The income tax isn't comparable to SSM.

Marraige is a state issue. I am aware of no rulings on SSM so far that say otherwise, and several explicetly state that it is a state issue.

 

[Redress]

You don't need to convince me. I am absolutely on the pro-marriage equality end of the spectrum. I'm trying to predict what the courts would say, not giving my own personal opinion. The standard for "legitimate state interest" as required in the rational basis test is VERY low. Basically, the purported interest needs to be illegal to fail that test. Courts almost never fail any statute on rational basis review. They only times they have with regards to equal rights for gay people have been situations where there was clearly just no other possible explanation for the law other than that the state wanted to demean gay people. If the state can come up with anything at all beyond that, courts will almost certainly find that it passes rational basis review.

To argue to uphold a law under rational basis review, you need to be able to show a legitimate government interest. No one has done that yet for banning SSM.

 

[Redress]

See Romer v. Evans for an anti homosexuality constitutional amendment in Colorado failing rational basis.

Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Kennedy wrote the majority opinion.

 

[Redress]

fun facts on constitutionality of marriage.

fact govt has no power over mariage except by 14th amendment which prevents discrimination without due process of law.

Debatable, certainly not "fact"

fact lovely vs virginia covers interacial marriage,already protected under 14th amendment,it doesnt give govt power oover marriage,it reinforced existing standards of an amendment,saying govt cant discriminate over marriage without due process.

False.

fact states are not obligated to even accept marriage,all it takes is for the unconstitutional doma to end,and any state that doesnt accept ssm can outlaw all marriage and civil unions,since the 14th calls for equal protection,and equally giving no one protection is equal.the federal govt could do nothing since marriage is not defined under the constitution and left to the states,pre 14th amendment states had 100% say.post 14th states can either accept all or none,which both are withing constitutional rights.

Debatable and not going to happen.

all answers on this subject can easilylead to problems,since as stated under the constitution states hold rights over marriage,the 14th amendment blocks most that power,therefore any state can easily just deny marriage/civil union for everyone to block ssm.it would be where marriage would only be recognized by church and community,and maybe federal for tax reasons only,but not on a state level

Or the world could end tomorrow, which is just about as likely as your scenario, maybe more likely.

 

[Somerville]

No one is using the argument that one problem for SSM opponents is the "equal protection" clause found in the 14th Amendment which would allow a same sex couple married in one of the states presently allowing such connections, to demand the same benefits and privileges if they moved to a state which bans SSM. This would set up a conflict between gay couples living in the state at the time the married SSM couple moves in, not receiving the same level of state support as the couple married legally elsewhere. OR if the new state of residence for the married same sex couple refused to provide the same benefits and privileges to a legally married couple, said state would be setting itself up for a federal suit alleging discrimination.

 

[Slartibartfast]

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

1. The federal government has jurisdiction over the military for obvious reasons.
2. I don't think the fed does much with marriage except for how you file your taxes and some rights when a person is sick or dead.

 

[ttwtt78640]

Because SSM and polygamy are different? See, that is not so hard to understand.

SSM and polygamy are NOT different, as they are BOTH simply "alternative" versions of the DSM marriage contract. One seeks to make gender not be considered (but seeks to keep the limit of only TWO partners), the other removes the limitation of the number of partners as well. Neither has any basis in "need", as both are simply prefered changes to accomodate a minority view CURRENTLY excluded by law from a STATE marriage contract. Business partnership contracts lack restrictions on either the gender of or the number of partners, thus show that no great difficulty in dealing with either change REALLY exists, it is simply as a matter of STATE contract law.

 

[Somerville]

SSM and polygamy are NOT different, as they are BOTH simply "alternative" versions of the DSM marriage contract. One seeks to make gender not be considered (but seeks to keep the limit of only TWO partners), the other removes the limitation of the number of partners as well. Neither has any basis in "need", as both are simply prefered changes to accomodate a minority view CURRENTLY excluded by law from a STATE marriage contract. Business partnership contracts lack restrictions on either the gender of or the number of partners, thus show that no great difficulty in dealing with either change REALLY exists, it is simply as a matter of STATE contract law.

If it is "simply a matter of STATE contract law" as you state (say - not that other kind of state, ain't English fun?), how then is the STATE which has a constitution forbidding SSM supposed to deal with a legally married couple who moves into the STATE with no SSM? According to multiple court cases, what is legal in one state shall be legal in all states.