Monday, July 17, 2006

Grandfathering Gay Marriage

Here is a quick post that I would like all to consider. Let us say for argument's sake that gay marriage is defeated by popular vote in 2008. The opponents of gay marriage keep telling us that those who are already married can keep their marriages, the petition is designed only to prevent anyone in the future from getting married to the same sex. This is all in the name of protecting society, family values, the children, and the institution of marriage. Let's say for argument's sake that we agree with that position. How can we say on one hand that gay marriage is so dangerous that even the most benevolent of our society cannot handle the responsibility, but then say we are going to leave several thousand of these gay marriages around anyway, just because they came first? If all gay marriages are negatively impacting society, then do you really think it is appropriate to leave any of them around? Won't this priveledged few have the same negative effect people are so worried about?

Think about this and feel free to share your thoughts.


John said...

It makes sense to those who believe that homosexuality is a chosen behavior. It make sense to those who believe that allowing gays to marry each other with cause children to see it as normal and therefore choose to be gay.

I happen to think that the grandfather clause automatically makes the new admendment incompatible with the rest of the constitution and will have to be struck by the court.

More interestingly, I think the federal constitution will be violated.

I dare anyone to read the 14th amendment and justify the unequal protection

John Hosty said...

I can't imagine that the opposition to gay marriage has not already seen this, so what is their answer to the problem? Are they just going to leave it unsolved and let it get struck down as unconstitutional? If they see a way around this I would love to understand.

John said...

Note: the terms I place in quotes are legal terms, they are not scare quotes indicating judgement.

This is what they hoping for:

Unless and until the legislature grants some measure of protection to sexual orientation as a "suspect" class, any law that discriminates against gay people can be reviewed under the standard of "rational basis".

That is what happened in NY.

Now, for those who try to make the case that gay marriage is similar to the issue in Loving vs. Virginia, I would like to point out that "suspect class" is the distinguishing feature.

The 14th amendment was written broadly, but still, Civil rights legislation recognized race, color, creed, national origin and previous condition of servitude as "suspect classes". And therefore, the 14th is intepretted in light of actual statutes.

(If you care, I could go on and explain why it has to be that way)

So any law that discriminates against a "suspect class" must be reviewed using "compelling state interest".

So therefore, in Loving the goverment was required to show that that the reason for banning interracial marriage is so compelling that it justified the discrimination; that cannot be done.

But under "rational basis" it is easy.

Since marriage has always been understood to be between opposite sex individuals, it is "rational" for a legislature to attempt to maintain the status quo. Again, without a statute to the contrary)

So, the hope of the anti camp is that even with the obvious equal protection violation, the court would use "rational basis" as its test and allow the violation.

The reason that I am optimistic is this line from the Massachusetts court's decision:

"If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable."

The biggest battle for equality must be fought in the legislature.

John Hosty said...

Thanks very much for that post John, that was something I did not know.

John said...

I am very dissapointed but hardly surprised to hear that Washington's Court upheld the State's Defense of Marriage act.

Remember what I said in my previous post about "suspect classes" and "rational basis" when distinguishing Loving's desicion from gay marriage, and compare what I said to what Washington's court said:

"The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature's decision that only opposite-sex couples are entitled to civil marriage in this state"

We need to establish sexual orientation as a suspect class.

John Hosty said...

So John, How would we go about establishing ourselves as such? If that is truly what needs to be done, then we should try to set it as a goal if it is obtainable. I welcome more input, thanks again.

John said...

I wish I knew.

The obvious answer is to make gay rights a campaign issue and get better representation in the legislature, but you can imagine how far that will go.

I prefer to compare the gay rights battle to the women's rights movement rather than racial equality for the main reason that racial minorities have been a suspect class since 1868.

Women have failed miserably in their attempt as well (are you old enough to remember the ERA?) until finally, in the early 70's Ruth Bader Ginsburg argued several cases before the supreme court that changed the calculus of rational basis vs. strict scrutiny.

She was able to persuade the court that there need not be only two standards, and introduced the concept of intermediate scrutiny.

I think we need a superstar of her caliber to fight in the courts and better legislatures.

Kip Esquire answered my question on strict scrutiny and indicates that the courts have more dicretion than they have the balls to use.

SCIA said...


You said:

"We need to establish sexual orientation as a suspect class."

That is the gay communities problem. They are going about labeling themselves as "second class citizens."

I ask what rights do heterosexuals have that the gay community does not? Remember, homosexuals DO have the constitutional right to marry. Current law does not keep homosexual individuals from marrying. It just keeps them - as well as heterosexuals - from redefining marriage by marrying a person of the same sex. Our current marriage laws treat everyone equally.

In terms of benefits at work, ect have you checked out the Benefits Fairness Act? I know John Hosty has and his responses to it have been fair. How about you John?

John said...


Please note my second post. "Suspect class" in no way indicates judgement It is a legal term. I don't like it either, and I prefer the more neutral sounding "protected class" but I don't get to define legal terminology.

Suspect class is required (in most cases, there are exceptions) for a court to review a law using strict scrutiny.

It is beyond obvious that if a gay person can not marry his or her soulmate then there is discrimination.

As far as benefits at work, I know nothing. If Mr. Hosty thinks them fair, I'll defer to his judgement.

I have never had any reason to learn anything about the Benefits Fairness Act. I didn't even know that such an act exists.

John Hosty said...

Let me clarify my position. I personally have no problem with seperate but equal, equal being the key word. It is when someone asks why we need to have a different name and I don't have a rational explanation that brings me to where I am today. My marriage to Ray will in no way change anyone else's lives or rights. The reasons for seperation don't hold up in my mind to the light of scrutiny.

The real problem is discrimination, fear, and hatred. This is coming from both sides, and I have been a victim of my own anger more than once, so I know how easily you can fall into this line of thinking.

Once we open up a line of communication to our opponents that breaks the barrier walls we can begin to heal.