@The Human Q-Tip ,
@NasstyNate ,
@MRMsix6 ,
@Cratylus , and anyone else who seems to think discrimination against homosexuals is somehow legal or constitutional.
My argument continues over from the Marriage Equality thread, and that any irrational discrimination against a group of people is a violation of that person's civil rights.
Nate, you are wrong to state that Equal Protection cannot be used to protect against discrimination on the basis of sexual orientation.
“What [the framers of the 14th Amendment] were getting at, basically, and you will find this popping up again and again in the legislative record, they were against caste. They did not want the United States to have any classes or castes that would identify people by their birth status.” -Justice Ruth Bader Ginsburg
--quote--
Conservatives, most notably Justice Antonin Scalia, view the Equal Protection Clause as mainly, if not exclusively, about eliminating discrimination on the basis of race; 3 hence, they often vote to permit other forms of discrimination.
The Court’s liberal Justices, frequently led by Justice Ruth Bader Ginsburg, view the Clause as more broadly prohibiting all forms of invidious discrimination that has the effect of creating favored or disfavored classes or castes.
This disagreement about the meaning of the Equal Protection Clause has resulted in sharply divided rulings over whether the Equal Protection Clause limits state-sponsored discrimination on the basis of sex and sexual orientation.
In these cases, Justice Anthony Kennedy has often, but not always, sided with the Court’s liberal wing, providing a viable but somewhat uncertain foundation for protection against discrimination on the basis of sex and sexual orientation.
The same rational-basis test used to protect against sex-based discrimination has been used in cases to protect against sexual orientation based discrimination.
Again, by the end of the year, the court is expected to strike down state same-sex marriage prohibitions on both the basis of equal protection and due process.
Hell,
even Fox News agrees the law is "clearly unconstitutional" http://video.foxbusiness.com/v/4143...-freedom-law-unconstitutional/?#sp=show-clips:
Perry vs Brown, decided on the basis of Equal Protection; majority decision:
“serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
To that end, the Court's present view is entirely based around Equal Protection:
Justice Kennedy ... in equal protection cases, ... seems intent to move the Court away from the “tiers of scrutiny” framework toward a more focused examination of whether laws improperly discriminate against individual Americans.
Justice Kennedy began articulating these views in J.E.B, in which he wrote an important concurring opinion, emphasizing that constitutional text and history supported the Court’s holding. Justice Kennedy observed that the Framers of the Fourteenth Amendment rejected an equality guarantee that proscribed only racial discrimination in favor of a broad guarantee written in “more comprehensive terms,”43 extending the guarantee of the equal protection of the laws to all individuals, both women and men.
“The neutral phrasing of the Equal Protection Clause,” Justice Kennedy explained, “extending its guarantee to ‘any person,’ reveals its concern with rights of individuals . . . . ‘At the heart of the Constitution’s guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial *or+ sexual . . . class.’”44
Which brings us to
Romer v Evans, again citing the Equal Protection Clause:
http://en.wikipedia.org/wiki/Romer_v._Evans
The majority opinion in Romer stated that the amendment lacked "a rational relationship to legitimate state interests", and the dissent stated that the majority "evidently agrees that 'rational basis' - the normal test for compliance with the Equal Protection Clause - is the governing standard".[2][3] The state constitutional amendment failed rational basis review.[4][5][6][7]
The decision in Romer set the stage for Lawrence v. Texas (2003), where the Court overruled its decision in Bowers,[1] and for the Supreme Court ruling striking down Section 3 of the Defense of Marriage Act in United States v. Windsor (2013).
Again, here the conservative justices are sticking to the three-tiered standard to determine compliance; however, as the majority has stated
repeatedly, and has been demonstrated here, the more important question is
"whether laws improperly discriminate against individual Americans." In that the justices would protect against any law that would establish or maintain
"any classes or castes that would identify people by their birth status."
So, I just want to point out that Equal Protection is 100% applicable here, contrary to what is being said in this thread by several of you. Equal Protection and Due Process are the basis for most of the recent litigative victories for same-sex civil rights in recent memory.
@MRMsix6 , you argue that Q-Tip has made the only legal argument in the thread, but this is false. Rather than making one of my own, I've referred to the New York Law Review, and the Columbia Law Journal which make the position very clear: discrimination on the basis of sexual orientation is in violation of the law.
@The Human Q-Tip : you argue that new laws would need to be enacted to protect against discrimination. This is false. Citing the Columbia Journal, Professor David Forman states
"(that) existing legal frameworks address claims of sexual orientation discrimination alongside defenses based upon religious freedom. Finally, this article seeks to accelerate an emerging trend toward including sexual orientation as a protected category in our nation's nondiscrimination laws, by highlighting an opportunity to counter religious misinterpretations currently reflected in the prevailing cultural narrative"
My point to you is that your interpretation of the law is not in accordance with the current legal "trend;" in other words, your interpretation of the law is as narrow as Antonin Scalia's; and since his opinion has not been and will not be the prevailing opinion of the court, it seems odd to suggest than any contrary opinion is somehow "wrong" or misguided.
For example, Scalia argued against the inclusion of women (sex/gender) under Equal Protection on the basis that it was not specifically mentioned and therefore not prohibited.
His words:
“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that.”
Again, this is the entire argument in and of itself. Does equal protection apply to sex? Reed v Reed says it does, but does not establish sex as a suspect classification. However, on this basis, other forms of discrimination, not expressly written into the law can be considered by the courts.
The point here is that,
1) Indiana's law would permit landlords, restaurants, motels and other public accommodations to discriminate on the basis of a customer's sexual orientation (a birth status, as Ginsburg puts it);
2) That Equal Protection is applicable here, according to numerous legal scholars, professors, and justices on the Supreme Court regardless of what posters here might claim from their own interpretations of the law;
3) Indiana's law is
unprecedented. According to Garrett Epps, "legal scholar" and Professor of Law at the University of Baltimore:
"
First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.”
Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.
According to Prof. Epps, the law is
"likely unconstitutional."
To cite, yet another legal scholar, Associate Professor Nancy C. Marcus at Indiana Tech Law School states the following:
"One basic constitutional problem with codifying a religious exemption to civil rights protections for public accommodations is that doing so on a statewide basis is essentially undemocratic, wiping out the various local public accommodations protections against sexual orientation discrimination that have been promulgated across Indiana democratically, by a representative majority of citizens in those localities that have voted to protect the civil rights of their LGBT residents.
A statewide ban on such protections is unconstitutional in the same manner as former Colorado Amendment 2, which the Supreme Court ruled unconstitutional in Romer v. Evans two decades ago. In that case, the Court explained that “[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” The same principles apply to the Religious Freedom Restoration Act, which is today’s version of Colorado Amendment 2."
The Fourteenth Amendment’s protections do not apply solely to people of color. Rather, the Fourteenth Amendment ensures the equal protection of all persons under the law, which includes LGBT persons. As such, segregation – including the denial of public accommodations– is unconstitutional even when defended in the name of religion, whether perpetuated against people of color or against LGBT individuals.
Furthermore, to the extent that RFRA proponents are motivated by moral opposition to homosexual and bisexuality, the legislation violates the constitutional mandate, articulated in the Supreme Court Romer v. Evans decision, that a state “cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law.”
Reciprocally, religious people may not make themselves exempt from our Constitution’s mandates and our nation’s laws by invoking their religious beliefs."
She goes on to point out that Justice Antonin Scalia stated the chief argument against such laws when defending states' rights by stating the following:
“because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order,” and to do so “would open the prospect of constitutionally required religious exemptions” in a myriad of contexts, “such as manslaughter and child neglect laws, compulsory vaccination laws, drug law and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws and laws providing for equality of opportunity for the races.”
My hope here is not to drown out the thread with numerous appeals to authority, but instead to offer some insight.
None of us are constitutional lawyers, AFAIK, and none of us is an authority on these issues. However, I have been alarmed by the matter-of-fact statements made by some posters suggest the Indiana law is completely legal and within the confines of the Constitution. It is not. Yes, arguably so.
Again, the Supreme Court's ruling on these issues by the end of this year will codify these protections on a federal level to protect same-sex couples.
From a legal standpoint, this law will be challenged and likely overturned on the aforementioned basises.
But more importantly, from a moral standpoint, I have to agree with some of the views presented by others in this thread that many of these arguments here are simply morally bankrupt, disgusting, and frankly bigoted.
@MRMsix6 , you accused
@Cavatt of intolerance when he rightfully called those opposed to same-sex marriage as bigoted. If I were opposed to miscegenation you would likely call me bigoted, and again rightfully so.
I think many of us have outdated views and outmoded beliefs that we feel we are entitled to; and we are, but that doesn't make them any less bigoted.
Stephen Peters of the American Military Partner Association asked the question in an op-ed "Can You Be Against Marriage Equality and Not Be Bigoted?" He stops right short of answering this question, leaving it up to the reader, but in closing states:
"Now I'm sure someone reading this will say I'm being intolerant of them and their views. Fundamentalist Christians love to claim they are being discriminated against (as if they somehow are the ones who have been persecuted throughout American history). It's almost funny if it wasn't so serious. But I don't believe the majority of the American people are buying it anymore. The victim mentality doesn't work when you are victimizing others. You can't claim persecution while persecuting others.
So can you be against marriage equality and not be a bigot? I'll let you decide. Is there a difference between having a bigoted viewpoint and actually being a bigot? Regardless, I'll continue to stand for equal rights and protections for all Americans, even for those anti-equality fundamentalists I disagree with. Sadly, they will not do the same for me."
So while people will jump to defend bigoted views, I will not.
Why?
Because I used to be a bigot, and I know first-hand just how insidious such a rationale can be.
Comments, completely out of ignorance, that state that gay couples would be less suitable that straight couples to raise children, and should therefore be denied their right to marry are bigoted. Period.
Is this what we're defending here?
My intention here is not to offend
anyone. I am sure everyone in this thread has, from their own perspective, admirable intentions. But let's not beat around the bush. Those in favor of this law are almost assuredly against same-sex marriage and therefore hold, at a minimum, questionable moral and ethical views towards homosexuals in general.
We can go back to the marriage equality thread and see a very interesting correlation between the views presented there and the views presented here.