Gay rights

[The Oi]

That's called splitting hairs.......

No, that's what @Hydroponic3385 does is called.

 

[NasstyNate]

I think the Court erred by not applying, to the fullest, The Rational Basis Test and Strict Scrutiny of the EPC. Their reasoning using Substantive Due Process is sketchy and has rightfully led to controversy. Had they applied Strict Scrutiny centered on a minority group endowed immutable characteristics, with a history of being discriminated against based solely on that characteristic, then not only would the Court have struck down all anti-SSM laws, but also all anti-gay laws. It would have been a much firmer basis for a ruling and probably would have gained Roberts on the majority as well. They beat around the bush insofar they remedied a wrong without fully exploring why that wrong was committed in the first place.

Yep. Another weak-sauce decision by someone unwilling to follow their convictions. There's no question that he had the votes to do it, though I'm less sanguine on Roberts joining the majority in the way you proposed. He was of course in the minority in US v. Windsor. In my opinion, he knew he was in the minority and wanted to come off as reasonable and non hateful, albeit in a very passive aggressive way. Dude is really concerned about his image.

Small nitpick - the preferred ruling would not outlaw all anti-gay laws, just those not narrowly tailored to serve a compelling government interest.

It is still legal to discriminate against homosexuals in many states. Now, they can get married but will still be second-class citizens for many years before more cases are decided.

Yep again, as discussed in the Indiana thread. The 9th Circuit would pretty quickly extend this decision to strict scrutiny under Equal Protection, but I'm less sure about the rest of the country. We're still a few years away from ending discrimination. I hope one of the presidential candidates takes a strong position on full protection under civil rights laws.

 

[The Human Q-Tip]

After reading many comments, all I will say is that rights do not belong in the purview of legislation or the democratic process. They are vested when we are born and the judiciary is absolutely correct to intervene when those rights are infringed upon by either the State or the majority.

Yeah, that whole "government of laws, not of men" thing is just sooooo 1776....

I can't believe I have to say this, but every single right identified in the Bill of Rights was passed "in the purview of legislation or the democratic process." Every single Amendment to the Constitution was passed via the democratic process. But you say that drafting Amendments and defining rights "do not belong in the purview of the democratic process."

I guess that whole Article V thing is just...unconstitutional??

I think the Court erred by not applying, to the fullest, The Rational Basis Test and Strict Scrutiny of the EPC. Their reasoning using Substantive Due Process is sketchy and has rightfully led to controversy.

I don't understand this point at all. You just stated above that courts, not the people, legislatures, or the democratic process, are responsible to determining what rights should be protected. If so, then how can you possibly object to substantive due process? It's essential to what you said above.

I'll grant you that using equal protection would have been the more judicially sound way to invalidate same sex marriage laws, but if you're going to stick to the idea that the Court is responsible for identifying and protecting rights, then you've got to go beyond equal protection because there are a great many "rights" that don't involve equal protection.

It is still legal to discriminate against homosexuals in many states. Now, they can get married but will still be second-class citizens for many years before more cases are decided.

Are you talking about discrimination by the private sector? And if so, are you saying that the Supreme Court should make that illegal as well?

 

[The Human Q-Tip]

So now, states such as Alabama are beginning to understand this as they begin to get out of the marriage licensing business altogether. Will others follow?

Too bad for Alabama and those other states, but I don't think they have that option anymore.

If this Court had ruled solely on Equal Protection grounds, then Alabama could end state recognition of the institution of marriage for everyone. Just don't do marriages period, and everyone is treated the same.

But that's not what happened. This Court expressly found that there was a fundamental right to marry. If the Court actually meant what it said -- which you'd have to assume -- it would be a violation of the Constitution for Alabama to stop performing state-sanctioned marriages.

 

[The Human Q-Tip]

I'm interested in your opinion on this. Under what level of scrutiny do you believe homosexuals should be viewed for Equal Protection analysis?

Rational basis.

After listening to the oral arguments, it became pretty clear that the only argument against gay marriage was that it changed the historical definition of marriage.

I think it's more accurate to say that the argument was that gay marriage had never been a fundamental right, which I think is inarguable if one is being honest..

This is to Roberts, not you - what a bunch of eye rolling bullshit. Where was this deference to the people during Shelby County v. Holder or Citizens United?

Well, it should be to me too because I agree with him. In each of those three cases, Roberts opposed what he saw as overreach by the federal government.

Shelby County was a federalism issue, not one of deferring to "the people". The question was whether Congress was exceeding its authority in overriding decisions of the elected state legislatures. Which are also "the people." Citizens United was also about an overreaching federal government, and so was the gay marriage case. He's not being inconsistent if you view those decisions from that perspective.

But let's talk about Citizens United, because it makes the comparison with this case much more stark. Citizens United arose out of the FEC banning the dissemination of a movie about Hillary Clinton. The government attorney even conceded at oral argument that they would also be permitted to ban books, then had to come back weeks later and say "uh, no, we could only bar political pamphlets." As if that was really any better....

In any case, it was absolutely no stretch at all to argue that this directly implicated the First Amendment. It is clearly a freedom of speech/press issue, which is a right expressly stated in the First Amendment. People can disagree about the result, but there is no reasonable claim that the Court simply created the constitutional protection of free political speech itself out of thin air.

In contrast, the Constitution itself not only never mentions gay marriage -- it doesn't even mention marriage at all. In fact, it doesn't even contain a general grant of authority for the Court to define new "Fundamantal Rights", which could easily have been included in Article III had the Framers seen fit to do so.

Back to Citizens United for a second.....

Actually, I don't think talking about the "right" to free speech is the best or most accurate formulation. What the Amendment actually says is that "Congress shall make no law ......" To me, that restriction on Congress' authority applies no matter who or what it is directed against. Whether or not a corporation is a "person" should be irrelevant.

 

[NasstyNate]

I think it's more accurate to say that the argument was that gay marriage had never been a fundamental right, which I think is inarguable if one is being honest..

I am just going by the questions from Scalia, Roberts and Alito. That's what they mainly asked about.

I agree that marriage is not a right.

Well, it should be to me too because I agree with him. In each of those three cases, Roberts opposed what he saw as overreach by the federal government.

Shelby County was a federalism issue, not one of deferring to "the people". The question was whether Congress was exceeding its authority in overriding decisions of the elected state legislatures. Which are also "the people." Citizens United was also about an overreaching federal government, and so was the gay marriage case. He's not being inconsistent if you view those decisions from that perspective.

Shelby County was not about federalism, or more specifically whether Section 5 of the Voting Rights Act was constitutional. Rather, it was about Section 4, the formula that Congress used to cover states subject to Section 5 preclearance when it reauthorized the Voting Rights Act less than a decade ago. It makes a mockery of his supposed deference to the political process and judicial restraint. Roberts basically said the peoples' representatives in Congress did not know what they were doing despite mountains of factfinding, hearings and testimony. I agree that Roberts would like to overrule parts of the Voting Rights Act as unconstitutional based on federalism concerns, but that is not what Shelby County did.

But let's talk about Citizens United, because it makes the comparison with this case much more stark. Citizens United arose out of the FEC banning the dissemination of a movie about Hillary Clinton. The government attorney even conceded at oral argument that they would also be permitted to ban books, then had to come back weeks later and say "uh, no, we could only bar political pamphlets." As if that was really any better....

In any case, it was absolutely no stretch at all to argue that this directly implicated the First Amendment. It is clearly a freedom of speech/press issue, which is a right expressly stated in the First Amendment. People can disagree about the result, but there is no reasonable claim that the Court simply created the constitutional protection of free political speech itself out of thin air.

In contrast, the Constitution itself not only never mentions gay marriage -- it doesn't even mention marriage at all. In fact, it doesn't even contain a general grant of authority for the Court to define new "Fundamantal Rights", which could easily have been included in Article III had the Framers seen fit to do so.

Back to Citizens United for a second.....

Actually, I don't think talking about the "right" to free speech is the best or most accurate formulation. What the Amendment actually says is that "Congress shall make no law ......" To me, that restriction on Congress' authority applies no matter who or what it is directed against. Whether or not a corporation is a "person" should be irrelevant.

I'm not seeing how this relates to Obergefell v. Hodges.

 

[The Human Q-Tip]

I'm not seeing how this relates to Obergefell v. Hodges.

Unless I misread your post, I thought you were saying there was a contradiction/inconsistency between Robert's position in Citizens United, and his position in Obergefell. If I'm wrong about that, then just disregard the rest of this.

Assuming that is the issue, then the point is that Citizens United involved striking down a statute because it conflicted with an explicit constitutional prohibition, and the other involved striking down a statute because it conflicted with a completely invented Constitutional right.

I've never understood the outrage about Citizens United. The idea that the government could lawfully ban a movie critical of a politician is something to which I'd think the general response would/should be "of course they can't fucking do that." And despite the backpedal by the SG, I think the logic of the law would have applied equally to the banning of a book or political pamphlet as well.

What I think is really needed is a mending of the Great Schism between the right of free speech, and the right of the press. They should be co-extensive, especially given that it can be very difficult to distinguish between the two nowadays anyway.

 

[NasstyNate]

Assuming that is the issue, then the point is that Citizens United involved striking down a statute because it conflicted with an explicit constitutional prohibition, and the other involved striking down a statute because it conflicted with a completely invented Constitutional right.

I think one can convincingly argue that you are making a distinction without a difference. Citizens United can easily be looked at as completely inventing the right for corporations and unions to directly influence elections. That, like marriage, is nowhere to be found in the Constitution.

I've never understood the outrage about Citizens United. The idea that the government could lawfully ban a movie critical of a politician is something to which I'd think the general response would/should be "of course they can't fucking do that." And despite the backpedal by the SG, I think the logic of the law would have applied equally to the banning of a book or political pamphlet as well.

Saying this is what Citizens United is about is like saying World War I was about the assassination of Franz Ferdinand. The outrage is more about the Court, and Roberts specifically, performing some really underhanded manuvors in order to allow unlimited money into the political system. Which, ironically, works against the political process he says should play out in gay marriage.

 

[gourimoko]

Can't really understand why anyone is saying marriage isn't a right (because it's not defined specifically in the Constitution).

Here's some quotes from various sources on the subject.

It is well-established and crystal clear that the right to marry is a central aspect of the right to liberty, privacy, association, and identity.

Fourteen times since 1888, the United States Supreme Court has stated that marriage is a fundamental right of all individuals. In these cases, the Court has reaffirmed that “freedom of personal choice in matters of marriage” is “one of the liberties protected by the Due Process Clause,” “essential to the orderly pursuit of happiness by free men,” and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

Here is a list of the fourteen cases, with links to the opinions and citations to the Court’s discussion of the right to marry.

1. Maynard v. Hill, 125 U.S. 190, 205, 211 (1888): Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
2. Meyer v. Nebraska, 262 U.S. 390, 399 (1923): The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
3. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942): Marriage “one of the basic civil rights of man,” “fundamental to the very existence and survival of the race.”
4. Griswold v. Connecticut, 381 U.S. 479, 486 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
5. Loving v. Virginia, 388 U.S. 1, 12 (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
6. Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971): “[M]arriage involves interests of basic importance to our society” and is “a fundamental human relationship.”
7. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974): “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
8. Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality): “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
9. Carey v. Population Services International, 431 U.S. 678, 684-85 (1977): “t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
   [*]Zablocki v. Redhail, 434 U.S. 374, 384 (1978): “[T]he right to marry is of fundamental importance for all individuals.”
   [*]Turner v. Safley, 482 U.S. 78, 95 (1987): “[T]he decision to marry is a fundamental right” and an “expression[ ] of emotional support and public commitment.”
   [*]Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992): “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
   [*]M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996): “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
   [*]Lawrence v. Texas, 539 U.S. 558, 574 (2003): “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
   

...

Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The U.S. Supreme Court first applied this standard to marriage in Loving v. Virginia (1967), where it struck down a Virginia law banning interracial marriage. As Chief Justice Earl Warren wrote for the majority:The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ...

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

While the U.S. Supreme Court has not yet ruled on same-sex marriage, it is unlikely that it would overturn the foundational premise that marriage is a civil right.

Lower courts, even when relying on disparate state-level constitutional language, have consistently acknowledged the right to marry. Legal arguments for excepting same-sex marriage from the definition of marriage as a civil right have rested, instead, on the argument that the state has a compelling interest in restricting same-sex marriage that justifies limiting the right to marry (an argument that was also used to justify restrictions on interracial marriage), and/or that laws permitting civil unions provide a substantially equivalent standard to marriage that satisfies equal protection standards.

 

[gourimoko]

Again, I think there are some fundamental misunderstandings here...

On unenumerated rights:

Unenumerated rights are legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law. [1] Alternative terminology sometimes used are: implied rights, natural rights, background rights, and fundamental rights. [1]

Unenumerated rights will be actual rights insofar as they necessitate the systematization of positively enumerated rights anywhere laws would become logically incoherent, or could not be adhered to or maintained in the exclusion of those unenumerated items as rights. Examples of this include federal systems where constituent member constitutions have to be interpreted in relation to their membership in the federal whole, adjudicative of whether authority is rightfully devolved or more rightly federative.[1]

This term alternatively, is used loosely to mean any perceived rights, often considered peremptory or intuitively fiat (such as rights innate to each individual or inherent to mankind),[1] that are without expression or instance of articulation.

In the United States, the Ninth Amendment to the U.S. Constitution protects against federal infringement of unenumerated rights. The text reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Supreme Court of the United States has also interpreted the Fourteenth Amendment to the U.S. Constitution to protect against state infringement of certain unenumerated rights including, among others, the right to send one's children to private school and the right to marital privacy.

Again, if the argument is that "it's not in the Constitution, so it's not a right" then we're really not understanding how the concept of "rights" applies, in really any context.

 

[gourimoko]

And as I've been referring to throughout the thread (Loving v Virginia):

The U.S. Supreme Court overturned the Lovings' convictions in a unanimous decision (dated June 12, 1967), dismissing the Commonwealth of Virginia's argument that a law forbidding both white and black persons from marrying persons of another race—and providing identical penalties to white and black violators—could not be construed as racially discriminatory. The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Chief Justice Earl Warren's opinion for the unanimous court held that:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

Associate Justice Potter Stewart filed a brief concurring opinion. He reiterated his opinion from McLaughlin v. Florida that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."​

 

[NasstyNate]

Can't really understand why anyone is saying marriage isn't a right (because it's not defined specifically in the Constitution).

Here's some quotes from various sources on the subject.

It is well-established and crystal clear that the right to marry is a central aspect of the right to liberty, privacy, association, and identity.

Fourteen times since 1888, the United States Supreme Court has stated that marriage is a fundamental right of all individuals. In these cases, the Court has reaffirmed that “freedom of personal choice in matters of marriage” is “one of the liberties protected by the Due Process Clause,” “essential to the orderly pursuit of happiness by free men,” and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

Here is a list of the fourteen cases, with links to the opinions and citations to the Court’s discussion of the right to marry.

1. Maynard v. Hill, 125 U.S. 190, 205, 211 (1888): Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
2. Meyer v. Nebraska, 262 U.S. 390, 399 (1923): The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
3. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942): Marriage “one of the basic civil rights of man,” “fundamental to the very existence and survival of the race.”
4. Griswold v. Connecticut, 381 U.S. 479, 486 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
5. Loving v. Virginia, 388 U.S. 1, 12 (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
6. Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971): “[M]arriage involves interests of basic importance to our society” and is “a fundamental human relationship.”
7. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974): “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
8. Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality): “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
9. Carey v. Population Services International, 431 U.S. 678, 684-85 (1977): “t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
   [*]Zablocki v. Redhail, 434 U.S. 374, 384 (1978): “[T]he right to marry is of fundamental importance for all individuals.”
   [*]Turner v. Safley, 482 U.S. 78, 95 (1987): “[T]he decision to marry is a fundamental right” and an “expression[ ] of emotional support and public commitment.”
   [*]Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992): “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
   [*]M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996): “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
   [*]Lawrence v. Texas, 539 U.S. 558, 574 (2003): “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

...

Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right.

The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The U.S. Supreme Court first applied this standard to marriage in Loving v. Virginia (1967), where it struck down a Virginia law banning interracial marriage. As Chief Justice Earl Warren wrote for the majority:The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men ...

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

While the U.S. Supreme Court has not yet ruled on same-sex marriage, it is unlikely that it would overturn the foundational premise that marriage is a civil right.

Lower courts, even when relying on disparate state-level constitutional language, have consistently acknowledged the right to marry. Legal arguments for excepting same-sex marriage from the definition of marriage as a civil right have rested, instead, on the argument that the state has a compelling interest in restricting same-sex marriage that justifies limiting the right to marry (an argument that was also used to justify restrictions on interracial marriage), and/or that laws permitting civil unions provide a substantially equivalent standard to marriage that satisfies equal protection standards.

Well I do not argue that marriage is not a right because it is not in the Constitution. And I certainly am not arguing that it is not a right as interpreted by the Supreme Court. That is clear, as your cites demonstrate.

First, I'll define my terms. Marriage is something performed within a religious setting following certain historical religious practices. Civil unions are the official instrument by which the government recognizes a legal partnership between two people.

Marriage arises fundamentally out of religion and is squarely under the First Amendment. I believe that is a right conferred by the Constitution and protected, albeit in a limited manner, from interference from Congress.

Civil unions are a government construct and have little to no support in the Constitution. There is nothing endemic to civil unions that could not be accomplished by a robust common law of clear property rights between individuals. The United States did not invent this type of civil partnership in 1789. In fact, I believe Congress would be well within its rights to end all civil unions tomorrow under the Commerce Clause.

These two terms are often conflated, sometimes purposefully in order to serve one's own position. I did that earlier. More specifically, I believe marriage is a right but civil unions are not. In the real world that means that the Constitution only protects religious marriage practices and does not protect its economic benefits.

Regarding the recent case, I thought Kennedy was once again a coward when he did not find that gay marriage bans are a clear violation of the Equal Protection Clause because they are not narrowly tailored to protect a compelling government interest, i.e. protect homosexuality as a suspect class. In my view of the Constitution, governments could choose to not recognize civil unions, but if they do, they must recognize those between same sex couples.

 

[The Human Q-Tip]

I think one can convincingly argue that you are making a distinction without a difference. Citizens United can easily be looked at as completely inventing the right for corporations and unions to directly influence elections.

I think you've stated the applicable right more broadly than it was found to exist. There are a great many ways that a corporation or union can lawfully be prohibited from trying to influence elections. For example, direct contributions to candidates may be restricted. Again, the issue in Citizens United was banning a movie. Or more generally, banning political speech via the media..

That, like marriage, is nowhere to be found in the Constitution.

The prohibition on Congress restricting speech is stated expressly in the Constitution. Whether that right applied to unions/corporations was the relevant question.

The equivalent would have been if the Constitution expressly recognized marriage, and the question was whether that right applied to gay marriages.

So, Obergefell not only extended a "fundamental right" to a group (gays) to which it had not previously been applied, it actually created that "fundamental right" -- marriage -- in the first place.

[quote[Saying this is what Citizens United is about is like saying World War I was about the assassination of Franz Ferdinand.[/quote]

But that's exactly what it was about. People would prefer to imagine fact scenarios more to their liking, but the fact is that if the case had gone the other way, political movies, books, and pamphlets could all be banned. After all, there's really no analytical distinction (at least at a Constitutional level) between a one minute ad on TV bought by a corporation, and a political movie or book financed by a corporation..

Anyway, I have a question. You seem to believe that Citizens United was wrongly decided. Is that based on a belief that the First Amendment does not apply to corporations?

 

[Tornicade]

except a civil union performed by a judge is a marriage and recognized as such and vice versa. the only difference between the two is who performs the ceremony. for legal prurposes they are one of the same.

Court ruled that Gays are entitle to the full protection of the constitution meaning they cant force a partner to testify against another and they have the right to privacy in communications with each other. Employers and companies must afford them the same tratment as they would any other spouse.

Lenders must treat tthe relationship as any other marriage when someone is deceased and spouses will have full legal rights over a deceased partners estate

 

[supergoat52]

First, I'll define my terms. Marriage is something performed within a religious setting following certain historical religious practices. Civil unions are the official instrument by which the government recognizes a legal partnership between two people.

Marriage arises fundamentally out of religion and is squarely under the First Amendment. I believe that is a right conferred by the Constitution and protected, albeit in a limited manner, from interference from Congress.

This is simply not true for everyone anymore, if it ever was true for everyone. I am getting married in about a year and there won't be any mention of any religion during the entire ceremony. My good friend from India will be getting married in a couple months and there won't be any Christian symbolism during the ceremony. This weekend dozens of drunk couples will be married in vegas with minimal religious symbolism at best.

Marriage is religious for some, probably most people. For people who have strong religious beliefs, literally every major milestone in life has religious implications. But there are tens of millions of people who have been getting married in the US in ceremonies that don't have anything to do with the Christian god.

I realize it is deeply religious for you and i respect that. But i don't think that you would want to legally prevent me from marrying my future wife just because we don't have any religious association with it. And if you allow non-Christians to have non-Christian weddings, how is that different from allowing gays to have "non-Christian" weddings?