@semck - Here is hoping that *this* time around, it will be made clear. That there will be no quibbling and adding to an ever growing list of protected classes, but that any derivation from the norm not covered as violating others rights (e.g. serial killers will not be considered a class compared to those who have obeyed the laws of society) will be a prtected and fully equal and integrated class.

Actually, Draug, that can't happen, because governments can and must make distinctions like that all the time. For example -- and just to take a more trivial example -- under what you suggest, no government agency could have gender-separated bathrooms anymore. That might be OK I guess, but do we really want to say it's required by the Constitution? Children couldn't be placed in different grades by age, etc., etc. These are silly examples, but the point is, you have to be super careful with this kind of thing.

My apologies Draug, I was confused by your posts.

@ Semck - And yet a bit of cursory research tells me that there has ever been a form of civil union that has been identical to marriage in every way except name. (I could be wrong about this, if you know of an example please do correct me). And even if "marriage" and "civil union" are technically equal, surely even the Supreme Court must realize that technically equal and actually equal aren't the same thing.

Mafia, I have no idea whether there has or hasn't been such a civil union. I'll take your word for it. My point is that in a discussion about the constitutionality of denying gay MARRIAGE, one should focus, first of all, on whether it would be constitutional to do so even if all the other rights were granted.

As far as I can tell, we're saying the same thing, but you just think I'm opposing you still for some reason.

If I may ask, what's the justification behind the resistance to considering LGB persons not a "suspect class".
And a separate question, what's the justification behind the resistance to considering transgendered people not a "suspect class".

Equal under the law is not equal in the eyes of society. As far as your outrageous examples, semck. We have Constitutionally protected equality between men and women, yet your example of the restrooms isn't exactly an issue, now is it. Using reductio ad absurdum is beneath you. You can argue better than that.

"one should focus, first of all, on whether it would be constitutional to do so even if all the other rights were granted." - Uhhhh...I'm not sure I agree with this, but I'll grant your point for the sake of argument. I don't find it clear which side of this question you come down on.

"As far as I can tell, we're saying the same thing, but you just think I'm opposing you still for some reason." - This statement implies you seem to agree with me that the word "marriage" carries significance that is not limited to the legal rights attached to it. Is that your position?

Mafia,

That's another issue, really. My point to draug has just been that his blanket statements about what the Supreme Court has said / what the Constitution says (according to the court) aren't really accurate if you don't remember that they've said it only in the context of suspect classes.

I can addres your question, but only after first making clear that it's been some time since I read the relevant case law, so I'm somewhat talking through my hat. First of all, even talking of suspect classifications in the context of gay marriage is a little tricky, because in many/most states there isn't an actual law prohibiting gay marriage -- there is just an absence of the extension of marriage to a certain class of couple, dating back to before people were even thinking about gay marriage. I think it becomes very hard, then, to argue that this distinction was made specifically to target a "discrete and insular minority;" and there aren't a bunch of other issues lying around, anymore, where gays are legally targetted systematically (even Don't Ask Don't Tell is gone), so it would be hard to argue that gays are a legally persecuted or singled-out class. So I see a lack of a strong argument for extending the definition here, but again, I'd definitely want to do more research. Sorry for the sketchiness.

"As far as your outrageous examples, semck. We have Constitutionally protected equality between men and women, yet your example of the restrooms isn't exactly an issue, now is it. "

Actually, Draug, gender / sex is not considered a suspect classification right now. If it were, absolutely this kind of case would be brought. You may call it absurd, but today's absurd has always been tomorrow's controversy in Constitutional law. Fifty years ago they would have called the discussion we're having right now absurd.

"Using reductio ad absurdum is beneath you."

On the contrary, it's the lifeline of good legal reasoning. Read almost any Supreme Court oral argument. Reductio ad absurdum is what they spend 60% of their time doing.

"First of all, even talking of suspect classifications in the context of gay marriage is a little tricky, because in many/most states there isn't an actual law prohibiting gay marriage"

Excuse me?! I just pointed out that nearly 80% of the states *do* have laws or amendments prohibiting gay marriage. Dude, you just threw the entire rest of your argument into the trash.

Seriously, go back and read my post which pointed out the 39 states with laws prohibiting same sex marriage.

It comes down to this. Do you want the instant gratification of universal gay marriage even if it means that roughly half of the country will fight it indefinitely, or wait till, state by state, legislatures pass laws allowing for it and even those opposed to it are forced to accept it since the democratic process has played out?

I'm only speaking of strategy here, not right or wrong or even what's legally correct, only what will definitely work in order to make American society as a whole accept gay marriage. If gay marriage advocates adopt a gradualist, state-centered approach the momentum will build and relatively soon it will be the case everywhere. If it's imposed like abortion was you will give the culture wars a new lease on life.

I see. It must be said, I find that a problematic limitation in itself. I do understand the rationale, but I think there are issues with it.
Also it gets harder to argue that there aren't laws or issues designed to specifically target gays and lesbians with things like Amendment 1 and Prop 8 flying around.

Draug,

"Excuse me?! I just pointed out that nearly 80% of the states *do* have laws or amendments prohibiting gay marriage. Dude, you just threw the entire rest of your argument into the trash."

Thanks for correcting me on that, then. But I won't agree that I threw the rest of my argument in the trash. Those states still didn't have gay marriage before that, so those laws were more about making a statement / drawing a line than effecting anything real. Even if those were all thrown out (under Romer, say), which I still don't see as likely, there still wouldn't be gay marriage in any of the states. Telling a state it positively had to have gay marriage would be an incredibly large step further. (Of course, states like California that had it and then got rid of it WOULD be affected by that).

"It comes down to this. Do you want the instant gratification of universal gay marriage even if it means that roughly half of the country will fight it indefinitely, or wait till, state by state, legislatures pass laws allowing for it and even those opposed to it are forced to accept it since the democratic process has played out?" - Uhhhhhh...No it doesn't. Not if you don't buy the idea that given time no one will care any more. If you don't believe that, then it doesn't come down to that at all.

But Invictus - Every legislative session more and more states consider laws that prohibit even the unequal civil union. Things aren't getting better. They are getting worse. Right and wrong when it comes to equality are not by popular vote nor should they be. If you wait until the majority of the states accept it, then the fact that more and more states are denying it means it will *never* happen.

I think the distinction between removing a right that already existed and preemptively preventing it becoming codified is a pretty academic one. I think to base a legal argument on that distinction is to hew much to closely to the letter of the law and ignore the spirit. Which isn't to say I think the argument won't hold up in a court of law, it's just I think that if it does, it means someone, somewhere has rather missed the point.

@semck - They were more than statements made by those state government's, they were assertions of what was once a practice into a pricipal, forever dashing the hopes of the affected class in those states of ever getting to marry and, in some casses, even seeing their relationship recognized and validated by their state legislature as legitimate. In many cases, thos elaws forced insurers and others to deny benefits that they might have gotten by simply going to another state to get married. You see, the states that changed the law generally recognized marriages from others states no matter the circumstances. Those laws began affecting couples who had married elsewhere by denying them civil rights like insurance and inestate inheritances and such that they had before the law was passed.

I'm no lawyer, but even I understand that.

Also it's not as though the LGBT movement isn't focusing on state by state battles. Whenever they come up the LGBT rights movement DOES fight them. And pretty consistently loses them. The only front that is seeing any real progress is the federal one. And here you are arguing that the best move is to abandon the only front in which any progress has been made at all and move all of the resources and all of the efforts to a front on which the LGBT rights movement has a record of something like 39 - 0. Think about that.

Errr sorry that should be 0 - 39.

What really gets me is people argue that illegal alien's are a protected class (really? They are here *illegally*!) but won't provide protection to tax paying law abiding citizens just because they are sexually wired differently than the "majority" because some religious fucktards in the "moral majority" think they have the right to speak for everybody because they are somehow closer to "God".

@Draug,

"They were more than statements made by those state government's, they were assertions of what was once a practice into a pricipal, forever dashing the hopes of the affected class in those states of ever getting to marry and, in some casses, even seeing their relationship recognized and validated by their state legislature as legitimate."

How did it "forever dash" anything? If you lived in a state where there was no gay marriage, and there were enough people in the legislature to pass one of these laws in the first place, chances are you were not going to get gay marriage passed that session anyway. But guess how hard it is to overturn one of these laws? (The legislature enacted ones, that is). Exactly as hard as it would have been to pass gay marriage in the first place if a sufficient majority had ever been attained! So I have a hard time seeing how anything was lost politically. Certainly nothing was "forever dashed."

Now, the constitutional amendments are a little different, obviously, as those are harder to remove. Indeed, my argument about "just making a statement" just fails here -- I should have been more careful.

I still have a hard time seeing it as a constitutional violation, however.

"In many cases, thos elaws forced insurers and others to deny benefits that they might have gotten by simply going to another state to get married. [etc.]"

Yes, that's true. I think part of the problem here is that, most unusually, this issue concerns the definition of a word. States that used to recognize each others' marriages no problem suddenly feel that other states have redefined a word to something they never even considered making it, and put the clamps down to stop it; and the hapless Supreme Court will end up getting to decide whether a state can be made to call a particular thing a particular word. At least that's one perspective. It's certainly true, anyway, that this issue, more than any I can think of, circles around the official usage of a legal (and non-legal, of course) word.

Anyway -- to those states that passed laws derecognizing gay marriage, their argument of course will be that they never intended to let other states dramatically redefine their law by redefining a word, and they were taking steps to prevent such. What the Court will do with that, I have no idea. Since -- again -- it just sets their law back to status quo ante, which was not set up with oppression in mind, I don't think there's a clear argument that it is oppression of an insular minority.

Illegal alienage is not a suspect classification, Draug. The only such classes are race, religion, national origin, and (legal) alienage.

But the fact that it affects Interstate Commerce (insurance companies and companies with locations and employess in multiple states are affected) means it *also* falls in the realm of the Federal Government. Hell, if Obamacare can force people to buy insurance, then surely the Fed can step in and define for certain what the *legal* definition of marriage is and establish a clause requiring all states to accept that definition for "interstate commerce" reasons. The like to use that excuse for all kinds of other situations less tennable than this.

I didn't say it was, but people are still arguing about illegal's rights and SCOTUS debating Arizona's law.

"Hell, if Obamacare can force people to buy insurance,"

I wouldn't predicate many arguments on this, not before late June anyway. ;-)

"then surely the Fed can step in and define for certain what the *legal* definition of marriage is and establish a clause requiring all states to accept that definition for "interstate commerce" reasons."

This would almost certainly be an overreach (and held to be so). On the other hand, it might credibly require at least the commercial benefits, i.e. insurance, etc., to be recognized. Though that would get very messy as well.

If Congress is going to step in, I think a much more natural clause would be Article IV, Section 1 (Full faith and credit).

I'll bow to your superior knowledge on what would be the most appropriate argument. I'm a software developer, not an attorney, and certainly not an expert in Constitutional law.

Sure. The FFCC says,

"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

So it seems, to me anyway, a pretty natural clause to use to do this if Congress were going to do it. I can't pretend to know any of its case law, though. And apparently it was never interpreted to require states to recognize interracial marraiges, while banning those was still considered Constitutional.

Well, here's a helpful analysis. It seems clear that, at least by itself, FFCC does not force recognition of gay marriages. Whether the second clause enables Congress to do so seems less clear to me.

http://www.law.yale.edu/news/4174.htm

What I find hard to understand to be quite honest is what argument can possibly be made against allowing gay marriage. It has literally zero to do with whether you think it's a sin to be gay, so what else can its opponents say?

You hear them talking about "undermining marriage" but what in god's name do they think they're doing to marriage by prohibiting certain people doing it?

It's so weird. I guess what you might say is that they view homosexual relationships as illegitimate and therefore not worthy of the recognition (and tacit approval) of the state. And yet they don't make breaking your word illegal, even though they think that's a sin too. And what about fortune telling and other "occult" practices?

My point is where does it stop? I think in ages past people accepted the idea of society legislating social norms, making deviations criminal. But I don't think Westerners at least accept this concept anymore - people these days believe laws should only exist to make harmful acts illegal, with the aim of minimizing harm. So when you have sins that are only harmless in that they are un-Christian, it's hard to see how you can make a case for it be illegal.

And of course there is the equality argument - how can the opponents argue that the state has any place to implicitly tell gay couples they don't have equal status with straight couples? If you believe the state should not do such a thing, it really truly is akin to claiming blacks shouldn't have access to our white schools because they aren't as good as us and we don't want to honor them by sharing the same facilities.

Huh. I guess you could think of legalizing gay marriage as a kind of desegregating of marriage - civil unions being analogous to the "colored" water fountain.

So basically what we're waiting for is a Supreme Court that will declare laws and amendments like NC's unconstitutional.

So since the justices are usually about 60-80, people from the younger generation will dominate the court around 2040, and gay marriage will be finally legalized all over the US.

Unless the new batch of justices appointed in the next decade or two are more progressive than I'm expecting, in which case it could be bumped up 15 or 20 years.

I think by 2040 or so though even Republican appointed justices will be supporters of gay marriage, because by that time evangelical Republicans will probably be dead.