Gay rights

supergoat52 said:

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?

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Congrats on the upcoming marriage.

Trust me when I say religion plays no part in my life. I was merely using the historical definitions in a legal context. Often the law comes off as cold-hearted. I did not mean it as such and apologize if I did.

NasstyNate said:

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.

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I agree.

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.

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I think that's a much better argument that is much less damaging to the Constitutional framework than the argument they actually used. I personally don't agree with it, but I can't say that the reasoning is illegitimate or a usurpation of the Court's proper role.

Never quite understood why the Court in Loving had to do both Equal Protection and Substantive Due Process. Always thought Equal Protection was the right argument.

Gotta agree with gour, marriage is a choice that people should be able to have no matter who it is with(relative of course since I don't personally believe that things like beastiality would be acceptable given one party is not human). It does not directly affect my life but I think people that are married should have the same rights and privileges no matter who they marry(Straight, LGBTQ etc).

NasstyNate said:

Congrats on the upcoming marriage.

Trust me when I say religion plays no part in my life. I was merely using the historical definitions in a legal context. Often the law comes off as cold-hearted. I did not mean it as such and apologize if I did.

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Gotcha, re-reading I can now see that more clearly.

Cheers all around good chap, and thank you!

The Human Q-Tip said:

No, you've misstated 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.

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Yes, the movie is why the Court initially granted cert. But as often happens, the opinion went much further than the original question presented. And in fact, the initial decision was narrowly about the movie, but the breadth of the case was extremely widened when Roberts took it upon himself to ask the parties to brief other issues.

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.

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You are begging the question. Speech is certainly in the Constitution, but the definition of speech is not. In fact, the Court had previously said multiple times that the type of speech contemplated in Citizens United was not within the definition of speech in the Constitution. So in changing that definition of speech, the Court "created that fundamental right" for corporations and unions.

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?

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The First Amendment does not apply to for profit corporations. Individuals within corporations can do whatever they want. And even if I were to concede that the First Amendment does apply, then the FEC has the power to regulate that speech around elections in order to ensure a fair political process.

The Human Q-Tip said:

Never quite understood why the Court in Loving had to do both Equal Protection and Substantive Due Process. Always thought Equal Protection was the right argument.

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I think it's pretty simple. They were afraid that states would simply stop recognizing civil unions/marriages and find a workaround. History, even recent, shows they were right to have that concern.

The Human Q-Tip said:

Never quite understood why the Court in Loving had to do both Equal Protection and Substantive Due Process. Always thought Equal Protection was the right argument.

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Because you don't understand any of this, and it's been obvious since the Marriage Equality thread. Lol!

O

NasstyNate said:

Yes, the movie is why the Court initially granted cert. But as often happens, the opinion went much further than the original question presented. And in fact, the initial decision was narrowly about the movie, but the breadth of the case was extremely widened when Roberts took it upon himself to ask the parties to brief other issues.

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The issues were interconnected. And, I've yet to see a criticism of the decision that wouldn't logically end up with the same result on the movie. There simply isn't a justiciable standard to draw the difference between that movie, and campaign ads.

You are begging the question. Speech is certainly in the Constitution, but the definition of speech is not. In fact, the Court had previously said multiple times that the type of speech contemplated in Citizens United was not within the definition of speech in the Constitution. So in changing that definition of speech, the Court "created that fundamental right" for corporations and unions.

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I think you're splitting hairs in trying to claim that they invented that right completely out of thin air, as with the right in the gay marriage case. And the primary case where the Court had said those restrictions were okay was the first time McCain-Feingold came up, and they expressly reversed that case. I can get disagreeing with what they did. I don't think a claim that they invented a right that had absolutely no basis in the Constitution is reasonable

The First Amendment does not apply to for profit corporations.

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Okay, well, out of curiousity, what is the Constitutional basis for saying it applies only to non-profits, but does not protect for-profit corporations? That sounds to me much more of a pure policy preference than something that has a constitutional basis. Because as a matter of practical effect (which shouldn't matter, but I'm just pointing it out). that means union (non-profit) speech is protected, but for-profit corporate speech is not.

But any case, I'd agree that the majority of the sentiment I've seen/read against Citizens United takes the position that the First Amendment does not apply to (at a minimum) for-profit corporations.

But I don't think the people who advocate that have thought through what it would actually mean, in practice, if corporations could not raise First Amendment claims. Just for starters, every single major media corporation in the country is a for profit corporation. So as a practical matter, you've just wiped out freedom of the press, because the First Amendment no longer applied to for profit-corporations.

NasstyNate said:

I think it's pretty simple. They were afraid that states would simply stop recognizing civil unions/marriages and find a workaround. History, even recent, shows they were right to have that concern.

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If that was their reasoning, then that's disgraceful.

The Human Q-Tip said:

What is the Constitutional basis for saying it applies only to non-profits, but does not protect for-profit corporations? Because as a matter of practical effect (which shouldn't matter, but I'm just pointing it out). that means union (non-profit) speech is protected, but for-profit corporate speech is not.

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Quite right. The reason I said for profit is because I wanted to distinguish religious protections found within the First Amendment. I will amend my answer to state that the First Amendment applies only to individuals in the context of public political speech.

But any case, I'd agree that the majority of the sentiment I've seen/read against Citizens United takes the position that the First Amendment does not apply to (at a minimum) for-profit corporations.

But I don't think the people who advocate that have thought through what it would actually mean, in practice, if corporations could not raise First Amendment claims. Just for starters, every single major media corporation in the country is a for profit corporation. So as a practical matter, you've just wiped out freedom of the press, because the First Amendment no longer applied to for profit-corporations.

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Not a good example. You are describing the government restricting freedom of the press, which is the next part of the sentence in the First Amendment.

Should Procter and Gamble be able to lie about the number of calories in its food? Should Pfeizer be able to exaggerate the effects of its new pill? I'm having trouble finding a Constitutional basis for the government restricting those actions under your analysis.

@NasstyNate , I know you and I are on the same side of this argument. I just wanted to add that I don't think the intention of any of the justices in those citations was that marriage was distinct from "civil union;" at least, not with respect to any meaningful distinction that could be made here. In this regard, I agree with @supergoat52 and @Tornicade .

With respect to any historical distinction; I think maybe when you're referring to civil union (outside of a same-sex context, but again, historically), you might be referring to common law marriage? But again, that was simply marriage without the state, and only applied to people who could otherwise legally be married.

So I'm having a hard time understanding where/how you're drawing the distinction between marriage and "civil union," again, within a historical framework as it would pertain to all persons (prior to the gay rights movement).

NasstyNate said:

Not a good example. You are describing the government restricting freedom of the press, which is the next part of the sentence in the First Amendment.

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But you didn't say that only the freedom of speech part of the First Amendment was inapplicable to (non-religious) corporations. You said the First Amendment did not cover corporations, and that includes freedom of the press as being inapplicable. And I'm not sure what the constitutional basis is for saying that for-profit corporations are protected by one but not the other, but okay. I'll assume that's your position.

So your position now is that if you're a for-profit media corporation, like ABC or TMZ, or ESPN, you are protected by the First Amendment. But if you're a non-media, non-religious corporation, you are not entitled to the speech/press protections of the First Amendment. Is that correct?

Should Procter and Gamble be able to lie about the number of calories in its food? Should Pfeizer be able to exaggerate the effects of its new pill? I'm having trouble finding a Constitutional basis for the government restricting those actions under your analysis.

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Well, this is something of a silly argument, don't you think? I mean, we both know that all those enumerated rights came with whatever caveats existed under common law. So the protection against "unreasonable or excessive bail" still permits a court to hold someone with no bail at all, because that exception existed at common law. And we also know that libelous or slanderous statements could be punished by courts, as with statements that were commercially false. Again, they understood all that when they drafted and ratified the First Amendment, and none of that has ever been in serious dispute.

More importantly, it has always been acknowledged that political speech is the very core of the First Amendment, and is entitled to the maximum amount of protection. Again, that was understood by everyone when it was ratified. So honestly, I think it is kind of disingenuous to equate, in a constitutional debate, restrictions on false advertising of a commercial product, and restrictions on political speech.

gourimoko said:

@NasstyNate , I know you and I are on the same side of this argument. I just wanted to add that I don't think the intention of any of the justices in those citations was that marriage was distinct from "civil union;" at least, not with respect to any meaningful distinction that could be made here. In this regard, I agree with @supergoat52 and @Tornicade .

With respect to any historical distinction; I think maybe when you're referring to civil union (outside of a same-sex context, but again, historically), you might be referring to common law marriage? But again, that was simply marriage without the state, and only applied to people who could otherwise legally be married.

So I'm having a hard time understanding where/how you're drawing the distinction between marriage and "civil union," again, within a historical framework as it would pertain to all persons (prior to the gay rights movement).

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So there's many ways to look at the law when asking what is constitutional. We can look at court decisions and predict future outcomes, read the Constitution literally, imagine it as a philosophical exercise, imagine what should happen given present conditions regardless of the words, etc. It goes on and on.

I am coming from a place of using the words of the Constitution as written and how I believe society should have progressed from then, including how I would have decided on cases of import. I freely admit that it is my own utopia. And in my mind, civil unions are synonymous with common law marriages. They were not contemplated in any way by the authors and I see no reason to read them into the Constitution because there are other means to accomplish their ends.

Now if I were to take what I believe your approach to be, which is the first I said, we are in complete agreement. Marriage is indistinguishable from common law marriage / civil unions and is a fundamental right protected by 14th Amendment due process and equal protection. But that's not very fun

NasstyNate said:

I am coming from a place of using the words of the Constitution as written and how I believe society should have progressed from then, including how I would have decided on cases of import. I freely admit that it is my own utopia.

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Now that is a refreshingly honest statement on what is actually going on in cases like Obergefell. What those cases really involve is imposing how individuals Justices believe society should have progressed upon the entire country as a Constitutional mandate. They're building their utopia.

Of course, "how they believe society should have progressed" is a completely subjective standard untethered analytically or otherwise to the Constitution. Maybe more importantly, it is a standard that has absolutely nothing to do with legal analysis or expertise at all. And legal analysis/expertise is supposed to be what qualifies Justices for that office.

Instead, what it amounts to is those Justices making purely subjective, normative judgments about what they think society "should" be like. And they are no more experts in morality or social planning than the average voter. Which is why I think doing what they did is a horrible perversion of the proper role of the judiciary.

At the same time, I'm realistic enough to understand that a lot of people want the justices to act that way, because it gets them the societal results they want. And I think that is unlikely to change. All schlubs like me can do is point it out, and then lament that few seem to care.

The Human Q-Tip said:

But you didn't say that only the freedom of speech part of the First Amendment was inapplicable to (non-religious) corporations. You said the First Amendment did not cover corporations, and that includes freedom of the press as being inapplicable. And I'm not sure what the constitutional basis is for saying that for-profit corporations are protected by one but not the other, but okay. I'll assume that's your position.

So your position now is that if you're a for-profit media corporation, like ABC or TMZ, or ESPN, you are protected by the First Amendment. But if you're a non-media, non-religious corporation, you are not entitled to the speech/press protections of the First Amendment. Is that correct?

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Media organizations are fully protected by the freedom of the press. My position is corporations/unions are not persons as contemplated by the speech provision of the First Amendment and therefore do not have those protections. You can go from there.

Well, this is something of a silly argument, don't you think? I mean, we both know that all those enumerated rights came with whatever caveats existed under common law. So the protection against "unreasonable or excessive bail" still permits a court to hold someone with no bail at all, because that exception existed at common law. And we also know that libelous or slanderous statements could be punished by courts, as with statements that were commercially false. Again, they understood all that when they drafted and ratified the First Amendment, and none of that has ever been in serious dispute.

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It's not silly. The same way you are hinting that I am drawing arbitrary lines can be turned around on you. Further, lying or exaggeration are not libel or slander. Even further, I do not believe the history of commercially false statements is what you say it was. If corporations have the protections of free speech, then why are they able to be compelled to speak, the most heinous of violations, by things such as the Pure Food and Drug Act?

More importantly, it has always been acknowledged that political speech is the very core of the First Amendment, and is entitled to the maximum amount of protection. Again, that was understood by everyone when it was ratified. So honestly, I think it is kind of disingenuous to equate, in a constitutional debate, restrictions on false advertising of a commercial product, and restrictions on political speech.

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You are begging the question again. Political speech by whom? I argue the authors of the constitution meant by individuals and did not contemplate corporations in any way.