Gay marriage 'earthquake' in '08?: The Swamp
 
The Swamp
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Posted May 30, 2008 2:30 PM
The Swamp

by Jim Tankersley

A leading evangelical Christian group is telling supporters that a "cultural earthquake" rocked California earlier this month, which threatens "to permanently alter marriage and families in America."

Focus on the Family Action, the political offshoot of Dr. James Dobson's Colorado-based Focus on the Family, is ramping up its coast-to-coast "battle to save marriage," its senior vice president for government and public policy explained in a fundraising e-mail this week. The effort is a response to a California court ruling that legalized gay marriage in that state, and which Focus on the Family Action says "will be felt in every state that does not already have a constitutional amendment defining marriage as the union of a man and a woman" because California does not require residency for marriage.

"Homosexual activists across the nation will be emboldened to push their anti-family agenda (it's happening this very moment in Colorado)," senior vice president Tom Minnery writes in the Focus letter. "The only recourse is for Californians to pass a state marriage-protection amendment on the ballot this November."

Later, he adds: "The California homosexual marriage 'earthquake' could forever change the cultural landscape of our nation -- unless pro-family citizens like you and me take a stand."

A series of state initiatives banning gay marriage drew big attention in 2004. Republicans credited them for bolstering evangelical turnout at the polls and helping to push President Bush to re-election victory, particularly in battleground Ohio. Analysts wondered in the aftermath of the California ruling if the issue could once again factor heavily this year.

Both John McCain and Barack Obama oppose gay marriage, and, unlike Bush, both oppose a federal constitutional amendment banning gay marriage. Obama supports civil unions for gay couples.
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Here's the letter in full:

Dear ____________,

On May 15, a cultural earthquake rocked our nation that threatens to permanently alter marriage and families in America.

Of course, I'm talking about the California Supreme Court ruling that legalized homosexual marriage in that state. As a result, California will soon begin issuing marriage licenses without any reference to "bride" or "groom."

But that is just the beginning of this cultural tectonic shift. Since California has no residency requirement for marriage, this quake will be felt in every state that does not already have a constitutional amendment defining marriage as the union of a man and a woman. Homosexual activists across the nation will be emboldened to push their anti-family agenda (it's happening this very moment in Colorado). The only recourse is for Californians to pass a state marriage-protection amendment on the ballot this November.

For years now, Focus on the Family Action has been working coast-to-coast on the battle to save marriage. The California decision is forcing us to further expand these and other efforts that we simply could not have budgeted for. That's where you come in.

Will you make a special gift today to Focus Action to help us defend marriage and continue our many other vital election year efforts? Please click here to donate online.

The California homosexual marriage "earthquake" could forever change the cultural landscape of our nation -- unless pro-family citizens like you and me take a stand. Focus Action is uniquely positioned to fight to save marriage this year, but we depend on the generous support of friends like you.

And let's face it -- the liberal media are doing everything in their power to downplay pro-family issues in this election cycle. They do not want the presidential and congressional candidates facing tough questions on marriage and the family. But these are crucial issues that must be addressed.

I am committing our team here at Focus Action to this great task. Will you make a gift to help Focus Action right now?

On behalf of our entire team, thank you in advance for joining with Focus Action to defend marriage at this crucial time.

Tom Minnery
Sr. Vice President, Government and Public Policy
Focus on the Family Action

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Comments

Focus on the Family Action, the political offshoot of Dr. James Dobson's Colorado-based Focus on the Family, is ramping up its coast-to-coast "battle to save marriage."

Save marriage? Like McCain's first one? Or Gingrich's, what is it now, 2, 3, 4? That's some "institution" you're trying to save.

Funny how president Bush says he doesn't listen to polls when it suits his own ideological purpose. Yet whenever "gay marriage" comes up, all he ever says is "will of the people". You know, like what the "polls" say. What a hypocrite.


So who is the party of States Rights? Pathetic. This will not lower the price of fuel. This will not keep jobs from moving overseas. This will not protect homes from being foreclosed. This will not make healthcare more affordable. The fact that these fringe groups continue to get free press blows the so-called Liberal media theory OUT. OF. THE. WATER.


These people have long ago abandoned sanity, facts, logic, and common sense in favor of religious fervor, mysticism, and paranoia. They home-school their kids partly to keep them away from the evil influences of those who aren't of their particular religious leaning and partly to make sure that the kids are properly trained not to believe in anything other than what their religious leaders tell them they should believe. In particular, Focus on Family (and Focus on the Family Action by extension) is a threat to our way of life and we should be looking at anything they say very suspiciously.


I'm all for everyone having their right to throw their two cents' worth in, but even more for those who listen doing so with some discernment and reason.

Any of you out there who haven't had a chance to read Chris Hodges' book "American Fascism" ought to do so.



What these folks need to explain is exactly *how* gay marriage is a threat to straight marriage, and also how it will alter families. Gay couples have been setting up households and having children for at least twenty years. What difference will it make to other people if they are permitted to marry?


I am mystified by the assertion that homosexuals somehow threaten families.

Every homosexual person is a human being, and is a member of his or her family. Every one of them has, or had, two parents. Many have children. Most live with and shared their lives with one other person.

Attacking gay people does not help anyone. It does nothing to "protect" anyone or anything. It is simply a hateful attack on a minority. It does harm both those people and their families.

But, it has been a way for hateful preachers and politicians to raise money and gain power. I believe that is the real reason why people like James Dobson keep doing it.

It is about time for real Christians to see through the hate. Real Christians don't hate. Real Christians don't try to harm other people.


If all the maligned gay adults, frightened gay kids, and silent gay soldiers promise not to hold the past 7 years against the Evangelicals, can we all move on? I'm sorry you're so very scared of the real world, Reverend Whoever. I can reassure you that being scared is completely endurable, however. I know, I'm a Gay American. Now please stop insulting my partner, who knows more about love, I assure you, than you do, as yet.


This is one topic I'll never understand. Why would gay marriage be a threat to the fabric of America. Some folks are gay. They fall in love. Who cares if they want to tie the knot. Most heterosexual couples are trying to just keep their marrige together, let alone the high divorce rate. I wish them all the best. Good luck. You'll need it!!!


Can you say immutable?


Marriage is a basic civil right that should be attainable by all Americans if they choose. For those who are uncomfortable with gay marriage check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue: www.OUTTAKEonline.com


I fully agree with 'livefromnewyork'. What threat is it to straight families if gay couples are permitted to marry? Every day on my way to work I see pro-marraige billboards that read things like 'Marraige is good for your health', 'Marraige is good for your kids', etc. Why should that only apply to straight couples? It shouldn't.


The church has lost more young people because of the hypocricy they see in the gay issue.


Pro-family = Pro-marriage = Pro-marriage equality.

Everyone should be able to have a family. Everyone should be able to be part of a family. Everyone should be able to start a family.


I really do agree with this statement. God established the marriage with Adam and Eve. The purpose of the marriage was to unify man and woman and have a physical representation of God and his creation. This is one reason why us Christians are against same-sex marriage. It affects the children also. Both a mother and a father lends characteristics to the child. For example, if there are only feminine influences to the child then girls will be brought up to not know how to behave with the opposite sex and thus cause problems. I admit I don't have all the answers but I feel that we can't abandon what we have always known. One last thing. The world has never seen a generation of children raised by same-sex families and so we don't truly know how bad everything could go.


The letter could have read:
"We at Focus Action have ginned this issue up one more time for our loyal, terribly misguided and nearly unhinged supporters.
God bless you, and keep the checks coming."


Uncle Sam,

We extend civil rights to many classes of people who's protected class is not an immutable trait. For example, religion. No one is born Christian, Jewish, Muslim, etc. They choose it. We have decided that is a civil right, so we protect it.

If the only test for civil rights was that there be some immutable trait, a lot of discrimination would be practiced against the same people looking to discriminate against the gays.


Can you say immutable?

Posted by: UncleSam | May 30, 2008 4:11 PM

I can say it. However, saying it doesn't change the fact that the word has no application in this discussion. Sexual behavior according to a particular preference orientation, like any other kind of behavior, is not an immutable characteristic.


"to permanently alter marriage and families in America."

For starters, just because Gay Marriage is legal, does not mean everyone in America is going to all of a sudden go out and Marry their Gay friend or Lesbian friend. But listening to Focus on the Family, they try to make it sound that way. Its just like how people make want to buy crap off TV, they make you think its a big deal when it really is not.

I support allowing homosexuals to get married. I an not gay, my girlfriend and I have been going out for almost 2 years, and intend one day to get married. People have the right to choose what they want to do with their life. If they want to be homosexual, fine, that is THEIR choice, not the choice of some political religious group.

I was very happy in fact to see that Ellen Degeneras and George Taxi were getting married, I hope they and their partners have a long and happy relationship. I know my girlfriend and I have, and I would hope that anyone is aloud to have a long happy relationship, no matter if its homosexual or not, we all have the right to do what makes us happy. The right to presue happieness, is that no written in the US constitution?

I will not say that religion should stay out of poltics, it does do some good (I am and long time atheist). Laws against murder, rape, robbery, all have a religious background, but that does not mean that some one else has the right to force their belifes on others, no one should have that right.


Ahhh. Good to see the Rachel Ray-supports-terrorists freaks are launching their holy crusade against homosexuals again. Have to save all our marriages from gays trying to be like The Cleaver's, because no issue in this country is more important then trying to eliminate this gay threat. It's great that Focus on Family is enlightening people like me on what the real threats to marriages are in this country.
I just assumed it was things like infidelity, alcohol/drug abuse, gambling, physical/emotional abuse, bankruptcy, imprisonment, abandonment, etc. that were the biggest reasons for divorce.

These "Christians" are more of a threat to American culture then the Taliban.


Posted by: DR | May 30, 2008 4:34 PM

You say "God" created one man, one woman marriage. O.K., then the govt. cannot make a law to enforce it or to deny anyone access to it. That would be against the seperation of church and state. Why are you so afraid of same sex-marriage? Don't you trust God's judgement? Man has no authority to enforce God's law. If it is such a great sin, won't God sort that one out in the end? Then let Him.
As far as children and families, what about orphans looking for adoptive parents. Wouldn't they be better off in the loving caring family of a sam-sex couple, than in some bad foster home or orphanage?


If the Biblical assertion that the story of Adam & Eve is a statement of fact, then one cannot be logically conclude that we are the product of incest.


Excuse me now, I have to catch the meeting of the Flat Earth Society, Jerry White presiding.


Can you say immutable?

Posted by: UncleSam | May 30, 2008 4:11 PM

I can say it. However, saying it doesn't change the fact that the word has no application in this discussion. Sexual behavior according to a particular preference orientation, like any other kind of behavior, is not an immutable characteristic.

Posted by: John W. | May 30, 2008 5:12 PM

That's a pretty definitive statement. Any facts to support that, or are you simply making things up because the wingnut haters lose this argument if sexuality is indeed immutable.

Here's a simple test. Let's assume you would want to rid the world of cancer -- something I take to be a fair assumption.

If you could cure cancer simply by becoming gay -- I mean longing for guys just the way you do women now, not just performing a sex act -- could you do it? I'm guessing the honest answer is no. Not even close.


The government's only role in marriage is to recognize the partnerships in regard to legal issues like property rights, parental rights, or inheritance. I can think of no reason why the government should apply different rules to gay partners.

And if anyone can tell me specifically how gay marriage is any kind of threat to anyone (other than the few hypocritical preachers), I'd love to hear it.


Right Wing Christians = Rule of Fear
I have known gay people in my family, my wife's family, the US Army, every company I have worked for.
I would trust ANY one of them with my life, wallet, well being, whatever, over Mr. Dobson or any of his minions.


Why don't I want homosexual marriage? Let me count the ways! For thousands of years marriage has been defined as between a man and a woman. If homosexual marriage is allowed then why not marriage between sisters and brothers, fathers and daughters, mothers and sons, grandfathers and granddaughters, etc. How messed up will we allow our children to become? All segments of society have concluded that children need both a Father and a Mother, not two mommies and not two daddies, to be well adjusted. I didn't make that up, scientist did that. Also, several reports are sounding the alarm of the disease rate among the homosexual community. Not only is there AIDS, but also Hepatitis B, Hepatitis C, antibiotic resistant syphilis, and the last report stated that MRSA (antibiotic resistant staph) is increasing at an alarming rate. Do I want these diseases in my own backyard? Do I want my children exposed to them? NO! Further, I have two boys, would I want to see them suffer with any of these illness by practicing homosexuality? NO! We need to connect the dots. How many children/teenagers will suffer through experimentation with members of the same sex. I don't want to see any child suffer, no matter the age. We can't allow homosexual marriage if we don't want to see our society crumble through death and disease. One group of individuals should not dictate the will of the majority, especially when health concerns are present. We need to enact constitutional amendments now before it's too late!


Why don't I want homosexual marriage? Let me count the ways! For thousands of years marriage has been defined as between a man and a woman. If homosexual marriage is allowed then why not marriage between sisters and brothers, fathers and daughters, mothers and sons, grandfathers and granddaughters, etc. How messed up will we allow our children to become? All segments of society have concluded that children need both a Father and a Mother, not two mommies and not two daddies, to be well adjusted. I didn't make that up, scientist did that. Also, several reports are sounding the alarm of the disease rate among the homosexual community. Not only is there AIDS, but also Hepatitis B, Hepatitis C, antibiotic resistant syphilis, and the last report stated that MRSA (antibiotic resistant staph) is increasing at an alarming rate. Do I want these diseases in my own backyard? Do I want my children exposed to them? NO! Further, I have two boys, would I want to see them suffer with any of these illness by practicing homosexuality? NO! We need to connect the dots. How many children/teenagers will suffer through experimentation with members of the same sex. I don't want to see any child suffer, no matter the age. We can't allow homosexual marriage if we don't want to see our society crumble through death and disease. One group of individuals should not dictate the will of the majority, especially when health concerns are present. We need to enact constitutional amendments now before it's too late!


KB,
No one is dictating to you. You don't have to take part in a gay marriage, or practice gay sex. It's somebody else's choice. BTW, the 'majority' can't dictate to the minority, in a free republic. The rights of the minority are guaranteed under the constitution.


ALL scientific studies dealing with gay parents have concluded that children raised by gay parents are very well adjusted. Lies about the facts are very harmful to my children and to the greater society. Science has also demonstrates from study after study for over forty years that peoples sexual orientation is immutable. Even studies from so called reparative therapists indicate sexual orientation can not be permanently changed. I want gay marriage for my children and I want gay marriage for your children who are BORN gay. Sexually transmitted diseases are not caused by gay people they are caused by society demonizing gay people. Gay people must no longer be victimized by ignorant sufferers of homophobia. Gay people need to be encouraged to marry and settle down. All facts have shown that when gay people marry their marriages last as long or longer than straight marriage. Gay marriage will strengthen society and straight marriage. Homophobia is a choice – Sexual orientation is immutable. Discriminating against people based on immutable traits is immoral.


KB, That was great! You left out the Rick Santorum signature "man-dog marriage" though. It is awfully scary to think that some idiots might want to marry family members or pets or inanimate objects like rocks. We obviously have way too many citizens who are dumb as rocks without breeding more, right? I fully support you in your effort to protect your sons from experimental gayness. My advice to you is to block TV shows with gays, leave a few Playboys lying around, and whatever you do, don't let them join the wresting team. I hear they can catch very nasty diseases from the mats.


Marriage came to be thousands of years ago as a means to support pro-creation. Our entire western cultural definition of family is defined around it. There is absolutely no reason gay people should be allowed to marry. If it is allowed, then why not legalize polygamy? Those poor polygamists should not be discriminated against.


www.ValueALLfamilies.com
Please go to this website. It shows how James Dobson uses gays for political advantage. Karl Rove had Dobson on his speed dial. Just another way for Republicans to divide and conquer. The marriage amendment will not only make marriage illegal for gay Americans but it also states in the second sentence "all legal rights associated with marriage can not be given to gays." In Michigan this month, 375 gay Americans in committed domestic partnerships just lost their health insurance because of the 2004 Michigan "marriage amendment." This is not what America stands for. It is simply prejudice against gay people. We need to grow up and vote for things that matter. Bashing gay people should not be top of the list. The caveman thinking of the Republican party has got to go. Yabba "W" Doooooooo
Extinguish the CAVEMAN in 2008. Vote Democratic!!!! We the people means ALL the people.
www.valueALLfamilies.com


Okay, folks….let’s get real. There is no boisterous outpouring of siblings desiring to get married. I’m also certain that animals can’t sign a marriage license, neither can plants. In this country, we are (supposedly) free from our fellow citizen’s religions convictions. This is about the rights of 2 adults who wish to strengthen society by committing their lives to each other. By the way, heterosexuals don’t seem to be great at this.
Christians who oppose gay marriage can’t have it both ways: persecuting gays for being “promiscuous”, but also not allowing them to marry so they can stand together legally in “fidelity”. Let’s face it….most people just don’t like the idea of same sex couples being “as good” as they are (which is what legal marriage would indicate). News flash!: That is the very definition of prejudice. This is not a religious issue, so scripture should never even enter the debate. For those who argue that our country is a religious one… privately maybe, but we are not a theocracy. If you want that, then move to Iran. The words, “In God we trust” were only added to our money after the civil war. The words, “under God”, were added to the pledge of allegiance in the 1950’s. The original ideals of our founding fathers were nobly inspired by the best of the human spirit…and were never intended to restrict our freedoms that do no harm to others. Unless you are being pillaged and raped by monogamous gay and lesbian couples…then your argument is no good. On this issue, you must look at it as an American first, and a Christian second. If you can’t do that…then you are truly un-American! Think about it (use your brain).


kb, do you have any statistics on hiv amongst the heterosexual community? how do you make the leap from gay marriage to children participating in homosexual acts? you do realize that homosexuality has been around for thousands of years as well, don't you? btw, you can't get hiv from a toothbrush or a handshake. you're the one that needs a better handle on connecting the dots. you make no sense.


C.Morris,
Just because someone wants to practice homosexual sex does not mean it won't affect my or others' lives. No one lives in a vacuum! As I stated before, we need to connect the dots on this lifestyle. We don't need a society falling apart because of disease or through psychological breakdown. Further, you need to read the constitution. The rights of the minority are not guaranteed in the constitution. In fact, government has the responsibility to protect the people as a whole. If one very small group poses a threat, as I believe the homosexual community does, then our government should step in and protect us!


KB – your argument essentially comes down to opposing gay marriage because gay marriage has always been opposed. This is not argument or analysis – it is merely a restatement of the original opposition. This is called tautological reasoning, or “post hoc, ergo propter hoc” reasoning (“therefore, and thus because of this”). Then you argue that if gay marriage is permitted, incestuous marriages will be permitted. How do you make this leap? When the US Supreme Court overturned all state sodomy statutes as applied to consenting adults acting in private for non-commercial purposes (see Lawrence v. Texas, 539 U.S. 558 (2003)), the Court made it very clear that anti-gay sex laws violated a constitutional right of a very high order and that the case in question did not involve bestiality, incest, prostitution, or behavior in which one of the parties was under duress. There are legitimate justifications for the prohibition of incest – genetic damage to children born as the result of incestuous relationships, and confusion as to the resulting relationships between people (is the child of a union between a man and his daughter the man’s daughter or granddaughter? etc.) both come to mind. Gay men and lesbians fall in love with, and have sex with, members of the same sex. There is absolutely no relationship between this issue and incest. Legalizing gay marriage in no way furthers any warped desire to recognize incestuous relationships – this is an ugly and disgusting debating technique.


Then you go on to blame the gay community for HIV, HBV, HCV, and other diseases. You may or may not be aware of this, but entire nations in Africa are collapsing as AIDS wipes out generations – generations of heterosexual men and women, leaving behind orphans – orphans who are frequently themselves infected. It is certainly true that HIV infection is more prevalent in the gay community than in the heterosexual community in the US, but this is not because of homosexuality per se. Gay men have learned how HIV is transmitted, and if anything, gay marriage will reduce the prevalence of HIV infection in the gay male community by providing the stable legal structure upon which an enduring and faithful emotional and sexual relationship can be constructed. Anybody who wishes to see decreases in the prevalence of these diseases would do well to support gay marriage, precisely because gay marriage would result in increased social and emotional stability.


As for methicillin-resistant staphylococcus aureus (MRSA) infection – MRSA has absolutely nothing to do with sexual orientation, and I have no idea what motivated you to blame gay men and lesbians for the emergence of a disease which is resistant to one class of antibiotics. As for these diseases and your own back yard – they are already in your own back yard! Hospitals all over the US have developed alternative protocols to treat MRSA (fortunately, big pharma has kept up with these variants, and new antibiotics (e.g. linezolid) have become available to treat MRSA).


But back to the issue of gay marriage – the California Supreme Court held that the denial of marriage to gay people violates both the due process and equal protection guarantees of the California state constitution. Just as the US Supreme Court developed a lengthy line of case law recognizing the existence of fundamental rights under the Due Process Clause of the Fourteenth Amendment (Skinner v. Oklahoma, 316 U.S. 535 (1942), Meyer v. Nebraska, 262 U.S. 390 (1923), Palko v. Connecticut, 302 U.S. 319 (1937)), so did the California Supreme Court develop case law recognizing the existence of fundamental rights under the due process guarantees of the California state constitution. One of these fundamental rights is the right to marry. The California Supreme Court held that this was a fundamental right under the relevant California precedents, and found that the state could not meet the burden of “strict scrutiny” to justify the denial of marriage licenses to gay couples. The California Supreme Court then analyzed the equal protection claim asserted by the plaintiffs, and concluded that gay Americans constitute a “suspect class” for the purpose of equal protection analysis, noting that gay Americans met a number of criteria reflected by other “suspect classes” (a history of persecution reflecting the possession of an immutable characteristic that bears no relationship to the ability of the individual to contribute to society, membership in a “discrete and insular minority,” a history of relative political powerlessness, etc.). The Court held that legislation that classifies on the basis of sexual orientation must therefore be subjected to “strict scrutiny” under both a due process and an equal protection analysis – and the ban of gay marriages certainly draws a “suspect classification” in that it impinges on the liberty interests of a “suspect class.” The state was unable to articulate or demonstrate the existence of a “compelling state interest” and was unable to demonstrate that the challenged legislation was “necessary” to promote that interest.


The bottom line is that gay Americans want what heterosexual Americans want – which is to love and be loved, and to enjoy the same recognition of their relationships as is accorded heterosexual relationships. The state supreme court framed this issue correctly, and found that the state simply could not justify denying to gay Americans the rights and privileges that married heterosexuals take for granted.


At first, it seemed likely that the voters would vote to amend the state constitution in November to reverse the state court’s decision. However, more recent polls have shown that the dynamics are already shifting in favor of the gay community. More people oppose banning gay marriage at the state constitutional level than approve of doing so, according to the two latest polls. This reflects the fact that many heterosexuals have gay friends and family members, and are not happy about voting to deny those people the same shot at happiness that they themselves enjoy. Just as the voters failed to amend the Massachusetts constitution to reverse the decision handed down by that state’s highest court, so too will the voters fail to amend the California state constitution to reverse the decision handed down by the California Supreme Court.

PHILIP CHANDLER


Let's expand this a little. I am left handed. There are currently between 10-15% of the population who claim left-handed status (a far larger percentage than the actual number of homosexuals, by the way). Should we lefties receive special treatment and demand equal protection under the constitution? Look at most doorways: they are designed in favor of "righties". Pick up any pencil or pen in your left hand as if to write with it: whatever is printed there is upside down. Even TV remotes are designed to put the most used buttons in the rightie-friendly positions. This kind of discrimination is pervasive throughout society. Historically, left handers were forced to "switch", or had their hand slapped just for doing what felt natural. It's endemic in our culture! Look up the root of the word sinister - from the Latin "on the left". Yet we lefties do not -- cannot -- require the majority to cater to our needs. We do our best to work with society as it exists.

I cannot force others to embrace my view of morality, but I should not be forced to embrace theirs either. I acknowledge the existence of, and even tolerate the practice of, other "lifestyle choices", but the very few who make those choices ought not be given the right to redefine society so they can pretend that their choices are "normal".


crud -
Murder has been around longer than homosexuality. Shall we embrace that as normal too?
-rd


KB,
How has the fact that I - or anyone - practice homosexual sex with my partner of 2 years affected your life? How exactly would legalizing gay marriage cause a nationwide psychological breakdown? It's people like you, who by refusing fellow Americans simple rights like making a desicion on behalf of the other, who are causing moral decay and the crumble of society. Gays causing disease and posing threats? Please. You're grasping at straws.


David Everett – your analogy is a poor one and does not reflect the realities involved. Left-handed people are not denied the right to marry. Left-handed people are not discriminated against in employment, housing, and access to places of public accommodation. Left-handed people are not beaten up and murdered because of their laterality. Left-handed people are not told, by American society, that they are inherently immoral and that they behave in an immoral manner whenever they use their left hands with which to write, eat, or otherwise function. (Granted – left-handed people were once shunned and mistreated – teachers even slapped the hands of children who wrote with their left hands! – but such cruelty is now recognized as irrational and barbaric). Left-handed people do not, currently, suffer persecution and abuse at the hands of right-handed people. In legal terms – no aspect of US government (or state government) seeks to deprive left-handed people of “fundamental” rights simply because they are left-handed. The problems that you identify – problems such as pairs of scissors being designed for right-handed people, instruments being designed for right-handed people, etc. – do not amount to an invidious (and insidious) form of discrimination intended to deprive left-handed people of fundamental rights.


Your analogy collapses because you fail to tie the classification you identify (laterality) to the denial of a fundamental right. The California Supreme Court correctly framed the issue as being about the denial of a fundamental right (marriage has been identified in both federal and state constitutional jurisprudence as a “fundamental” right – see e.g. Zablocki v. Redhail, 434 U.S. 374 (1978)) to an entire class of persons based on the sexual orientation of that class of persons, and then proceeded to determine whether the state had demonstrated the existence of a “compelling” state interest that could justify the denial of that right to those persons. The court concluded that the state had not made such a showing. The court also engaged in an equal protection analysis, and concluded that the classification itself was “suspect,” thereby triggering “strict scrutiny.” Left-handed people do not constitute a “suspect class” for the purposes of equal protection analysis, because they lack the requisite criteria for inclusion under this paradigm. Although left-handed people possess an “immutable” characteristic (left-handed people have been shown to have differences in neurophysiology) and were once either shunned or forced to write with their right hands, they are not treated in this manner today – either by society generally, or by legislation specifically. For example – it remained perfectly legal, up until 2003, for a state to throw any person convicted of engaging in consensual gay sex with another adult in the privacy of his or her home into prison. The Georgia sodomy statute mandated a minimum prison term of one year and a maximum prison term of 20 years for any person convicted of having gay sex with another consenting adult, even in the privacy of the home (by the way, “sodomy” was defined by such state statutes, nationwide, to include oral sex). I am unaware of any state statute in the 20th or 21st century that permitted the state to throw a person into prison for writing with his or her left hand, under any circumstances.


The US Supreme Court handed down a disgusting decision in 1986 (Bowers v. Hardwick, 478 U.S. 186). In that decision, the Court mocked the claim of a gay man who had been harassed and arrested by the police. Michael Hardwick was a bartender who lived in Georgia. One night, a houseguest admitted the police to Hardwick’s home; the police wished to serve Hardwick with a warrant for public drinking (in fact, the fine had already been paid and the warrant was therefore no longer valid). The police entered Hardwick’s bedroom and found him engaging in oral sex with another man. The police arrested Hardwick; however, the District Attorney declined to prosecute Hardwick (doubtless realizing that such a prosecution would raise seven different types of hell when disclosed to the media). Despite the fact that the charges had been dropped, Hardwick was so outraged that he filed suit against the State of Georgia, seeking declarative and injunctive relief. The US District Court threw the case out in response to a 12(b)(6) motion filed by the state (failure to state a claim, since the charges had been dropped). The US Court of Appeals for the Eleventh Circuit reversed, in a deeply divided opinion. The US Supreme Court issued a writ of certiorari, and reversed the Court of Appeals in what was acknowledged by both liberal and conservative jurists to have been a gratuitously cruel, ugly, and intentionally demeaning opinion. Although the Georgia sodomy statute applied to both heterosexuals and gay people alike, the Court obsessed over the gay issue, mocking Hardwick’s claim of a right to sexual privacy as “at best, facetious.” The highest court in the land gave its imprimatur to state statutes that provided for the imprisonment of gay men and lesbians; the State of Montana’s sodomy statute provided for a prison sentence of 10 years, and many of the other 25 states that had such statutes on their books were equally severe. Lesbian mothers actually lost custody of their children in some cases because they were considered to be “unconvicted felons” (see Bottoms v. Bottoms, 444 S.E.2d 276 (Va. App. 1994) to learn about the case of Sharon Bottoms, who lost custody of her little boy because she was in a lesbian relationship).


I don’t think that this has ever happened to a left-handed person. I am left-handed, and I have never been fired from a job at which I excel because I am left-handed. However, I was fired from a high-paying job in 2006 when my manager (and partial owner of a small consulting firm) learned that I am gay. My “Christian” manager refused to state the reason for firing me; I only learned the reason the next day (Saturday) when my colleagues called me to express their sympathy and disgust. I am therefore in a position to analyze your analogy from a very personal perspective. Your analogy is a particularly bad one, for the reasons outlined above.


The US Supreme Court corrected Bowers in Lawrence v. Texas, 539 U.S. 558 (2003) – some 17 years after inflicting Bowers upon the gay and lesbian community. In Lawrence, the Court acknowledged that it had demeaned and insulted the plaintiff in Bowers, and further acknowledged that it had framed the issue far too narrowly: “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” The Court bluntly and explicitly reversed Bowers, declaring that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”


I do not ask that society restructure itself to suit me. I merely ask that I be granted the same rights and privileges as are afforded heterosexuals. This is what the California Supreme Court realized when it handed down its decision in in re Marriage Cases.

PHILIP CHANDLER


KB,
People with guns pose a threat, but it's allowed.
People eating red meat pose a health cost problem, but it's allowed.
Tobacco causes untold suffering, but it's allowed.
I could go on.
These activities are allowed because we are a free (I think) society.


* * * * *

Posted by: Philip Chandler | May 31, 2008 10:39 AM

Mr. Chandler,

You correctly give the California Supreme Court's holding. What you fail to do, however, is explain why the California Supreme Court correctly decided the case. This is important in light of the striking irregularities employed by the Court to reach its decision.

First, you failed to mention the Court never held that the law created a "suspect classification" on the ground that homosexuality constitutes an "immutable characteristic." To the contrary, the Court danced around the issue, and essentially held that "immutability" of a character trait common to the class against which the law discriminates is not necessary to constitute a "suspect classification." That is not correct. The Court correctly observed that discrimination on the basis of constitutionally protected rights invokes equal protection analysis. However, discrimination on the basis of a constitutionally protected right does not create a "suspect classification." It is the alternative of a suspect classification. (See Plyler v. Doe, 457 U.S. 202, 216-217 (1982).) Thus, the Court improperly mixed equal protection properties. Furthermore, the Court's identification of a "suspect classification" based on the exercise of a constitutional right merely begs the question of whether same-sex marriage is a constitutionally protected right. Thus, the Court's reasoning in finding a law discriminating against same sex couples was circular.

Second, the protection the Court afforded to this "suspect class" creates a bizarre anomaly. Discrimination on the basis of "sex" - which is clearly "an immutable characteristic determined solely by the accident of birth" (Frontiero v. Richardson, 411 U.S. 677, 686 (1973) - only gets "intermediate" scrutiny under prevailing constitutional analysis. (See Craig v. Boren, 429 U.S. 190, 197-98 (1976) {stating that the government can justify a gender based classification only by showing that it "substantially further[s] important governmental objectives" rather than the "compelling" interest demanded in strict scrutiny.)) Yet, the California Supreme Court decided to apply "strict" scrutiny involving a claim of discrimination based on sexual orientation or preference - which no one has ever demonstrated to comprise an "immutable" characteristic. There were simply no grounds to select "strict" scrutiny as the applicable test, as opposed to "intermediate" or "rational-basis" scrutiny because not all suspect classifications get strict scrutiny. The gender discrimination cases prove this.

Moreover, the departure from a lower level of scrutiny was even more unexpected because federal courts have never given sexual orientation any higher scrutiny than that of "rational basis." (See Romer v. Evans, 517 U.S. 620, 632-33 (1996). The later decision in Lawrence v. Texas, 539 U.S. 558 (2003), which overruled Bowers v. Hardwick, 478 U.S. 186 (1986), doesn't change any of this. The decision in Lawrence was not specific to homosexuals as a class. It merely said that prohibiting acts of sodomy violated the rights of personal autonomy of all consenting adults even if the relationships in which the sex occurred are "not entitled to formal recognition in the law." (See Id. at 567.) In specific response to points raised in Justice Scalia's dissent, the Court also made it clear that the case "[did] not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." (Id., at p. 578.) In other words the Court in Lawrence specifically disavowed that it was granting any constitutional footing to the right of same-sex couples to marry. This is significant because the Court has repeatedly held that, when interpreting a provision of the California Constitution that is similar to a provision of the federal Constitution, "'cogent reasons must exist'" before it will construe the California Constitution differently and "'depart from the construction placed by the Supreme Court of the United States.'" (See Raven v. Deukmejian, 52 Cal.3d 336, 353 (1990), quoting Gabrielli v. Knickerbocker, 12 Cal.2d 85, 89 (1938).) Thus, the Court abandoned its own rules of Constitutional adjudication by selecting a higher level of scrutiny - insofar as no such cogent reasons for departure existed.

Third, the creation of a right to marry for same sex couples is equally unsupported for many of the same reasons. In none of its approximately 156 years of existence had California afforded constitutional protection to any homosexual behavior, much less to the right of same-sex couples to marry. This fact was never disputed by any member of the Court's four justice majority. The majority conceded that the State Constitution, effective from the moment of statehood, evidenced an assumption that marriage was an institution consisting only of partners of the opposite sex. Indeed, all up until 1975, non-vaginal-genital heterosexual sex in California was considered a crime even between consenting adults. (See People v. Rossi, 18 Cal.3d 295 (1976).) In contrast, fundamental rights entitled to the Constitution's protection are those "which are objectively, 'deeply rooted in this Nation's history and tradition' . . . 'so rooted in the traditions and conscience of our people as to be ranked as fundamental' . . . and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed . . .'" (Washington v. Glicksburg, 521 U.S. 702, 720-21 (1997), internal citations omitted.) I don't need to tell you that same-sex marriage - on either the federal or state level in California - had ever been recognized as a fundamental right under the foregoing criteria. To the contrary, decisions out of the United States Supreme Court have focused on the "heterosexual" aspects of marriage in describing the fundamental right to marry. (See Skinner v. Oklahoma, 316 U. S. 535, 541 (1942), and Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978) (Stressing the aspects of procreation, child-birth, child-rearing and family relationships that arise from marriage.) Thus, again, in the absence of "cogent reasons" to do so, the California Supreme Court had no legal basis to re-define marriage on the basis of pseudo-constitutional principles simply to accommodate the desires of a non-suspect class.

Fourth, the Supreme Court injected a factor into the analysis that had never been considered a valid rationale for interpreting the California Constitution. That is, the Court placed virtually determinative weight on the trend of laws passed recently by the Legislature (a body incapable of amending the Constitution) to determined that the will of Californians was to afford same sex marriage some protection. This is a first. The Court had never given legislative activity such weight in determining the meaning of the Constitution. For the first time in its history, the California Legislature knows it can indirectly amend the California Constitution through a pattern of laws, even though it is cannot do so directly. The decision, in this regard, is not only unprecedented; it represented a clear break with the past. The Court has added a gloss to the Constitution that had never squared with the understanding of the majority of Californians.

I could go on for a while longer, pointing out how the laws in question were neutral, were not passed with a particular animus toward the LBGT communities, and never operated to deprive any member of any of these communities of the right to marry as defined. The combination of these circumstances would normally suffice to defeat any serious equal protection or due process claim.

I have a couple other observations to make about your posts.

You claim the views in California are changing to such a degree that Californians are unlikely to support the November initiative to make the language of Prop. 22 part of the Constitution. Don't count on it. A large percentage of Democrats in California – and Hispanics in particular - do not support same-sex marriage. It's a fair bet that the Republicans in California don't support same-sex marriage either. I might also point out that the current poll numbers are about the same as those just prior to the passage of Prop. 22 by 61% of the vote. A lot of people will simply not express their true feelings on the issue in a public poll.

Finally, you claim that you "do not ask that society restructure itself to suit . . ." you. However, to ask for the right of same-sex couples to marry does, in fact, demand a substantial amount of social deconstruction. For as long as history has been recorded, men in every society in every part of the world have depended on the nuclear family as the basic building block of society. Those families have not always been patriarchal, but they have been based on the union of a man and a woman (and, in some instances to a lesser extent, men and women) as the core basis for procreation, child rearing, and the establishment of social customs and mores. The family structure, as recognized, has never particularly depended on western religious convictions either. Many Asian cultures have traditionally adhered to the man-woman strictures without as much as word of influence from the West. It's as universal as language and music - because it is the only sure fire way to establish family ties, propagation of the human race, rights of lineage and inheritance, and to protect against sexual taboos such as incest.

Therefore, don't get all pushed out of shape when people strenuously object to marriage by same-sex couples. It is a major change. It is also resented because a lot of people view it as nothing more than a means by which a very small minority of citizens have used the courts to enforce acceptance and recognition of a lifestyle with which they do not agree -even if they are willing to be tolerant of it in principle.


OMG KB you are one back woods nut case. For every one of your nut case Dr's who claim children do better with one mom and one dad, there are 4 who say there is no correlation. SO many scientific studies disprove your every thought more so than your bible or junk science Voo Doo Dr's.
As for you assertion about gays and AIDS, the fact of the matter is that the heterosexual population holds the record for infection not the gay community. And the rest of that garbage dribbling out of your mouth, well I'm not so sure Jesus Christ would agree with either!


I see my comments have definitely brought out the community to discuss this issue. GOOD! That was my intent. Now, you want facts. OK. Here goes: According to the CDC in Atlanta in 2006 out of all the new cases of AIDS 500,000 were registered in the Homosexual - men having sex with men - community. Now, in the heterosexual male community, are you ready for this . . . only 65,000 cases were reported. Hm, let me see, who has the greatest numbers and which community do they fall into. Frankly, I wish there were no cases reported but that isn't reality.

Next, in the "Gay City News," dated May 16, 2008, it stated :"The health department reported a 60 percent increase in syphilis cases in 2007, over 2006 among gay and bisexual men. MRSA has emerged as a serious health problem among gay men in New York City and across the country. "

According to Robert Seidenberg, a technical writer at the American Red Cross Blood Services, National headquarters from 1994 to 2002, he wrote, "The health department reported a 60 percent increase in syphilis cases in 2007 over 2006 among gay and bisexual men. MRSA has emerged as a serious health problem among gay men in New York City and across the country."

Ladies and Gentlemen, as you can see, these are real facts that we as a nation must deal with. I don't care about legal cases, or whether someone is going to eat red meat or not. I'm talking about a real possibility of an epidemic of great proportions! I don't want to see anyone suffer with AIDS or any other illness if one can avoid it. I've already seen that. That's why I write the way I do. Don't you see, we need to connect the dots. Someone mentioned Africa. Do you want to become like Africa? I don't. There are other facts that I've gathered but I'm afraid those facts really don't matter to most of you and that's sad. You'd much rather have your way and let the rest of us suffer for it. And that, I'm sorry to say, is the real travesty in this story.


Forgive my writing again, but when I posted last time the information I quoted from Robert Seidenberg was inadvertently mixed with a report from the "Gay City News." So, here is the correct quote: "The fact that young men are being sent the wrong message is evident in the continuous stream of Centers for Disease Control (CDC) reports that show sharp increases in AIDS, syphilis, gonorrhea, and other illnesses among MSM, after a brief period of decline during the AIDS panic of the 1980s. Despite two decades and billions spent in "AIDS awareness," risk behavior is again rampant; and not surprisingly, a disproportionate percentage occurs among youth ages 15 to 22." Sorry for the bad info. At least I'm willing to see my errors and correct them. Oh, and by the way, I never mentioned the Bible and my info comes from sources like the CDC and the Red Cross, definitely not nut case organizations.


comparing homosexual sex to murder? what planet are you numbnuts from? the only argument the anti-gay marriage crowd ever gives is that it somehow infringes on the sanctity of marriage. first of all, how so? second of all, why would anyone hold such a repeatedly failed concept in marriage to such a high regard that it is somehow sanctimonious?
kb, the great leap in logic in your posts has been exposed by many others above but I still want to know one thing. how does citing disease statistics in the homosexual community have anything to do with you, your marriage, your children and their marriages, or marriage period?


* * * * *
Posted by: a blinkin | May 30, 2008 6:46 PM

I don't have to prove being gay isn't immutable. In a legal proceeding, immutability is a question of fact that must be proven by the proponent of the fact. That is, gay people, claiming a denial of equal protection, have to prove the immuntability of homosexuality to gain anything more than "rational basis" scrutiny from the courts (outside of Cal. and Mass.) in a discrimination action. To date, no one has proven this, and no court has ever ruled that immutability has been established as a scientific fact. That's just the way it is.


Posted by: KB | May 30, 2008 8:11 PM

It can go the other way, too. If we outlaw one set of consenting adults their freedom to marry who they wish, we could end up with the intolerant society of the 50's - 60's. It was illegal for blacks and whites to be married in several states. Also, Christians and Jews. Should we go back to those days? Sounds like you would like to. The rock musician Bono had a one Catholic and one Protestant parent. Where he grew up in Ireland, that was considered taboo. And his family was ostracized as a result. Be careful what you wish for, you may get it.


John W. – we clearly differ with respect to the reasoning employed by the California Supreme Court. I am well aware of the fact that the court did not specifically establish that being gay is an immutable characteristic; nevertheless, the majority discussed this proposition at some length and clearly articulated the conclusion that gay people constitute a “suspect class” for the purpose of equal protection analysis under the California state constitution. Furthermore, the Court did not “dance around” the issue of whether sexual orientation is immutable – the court noted that immutability of the characteristic in question is not necessarily required in order to hold that a classification is suspect. The court concluded that “[b]ecause a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate his or her sexual orientation in order to avoid discriminatory treatment.” The court adduced Ninth Circuit precedent (Hernandez Montiel v. I.N.S. (9th Cir. 2000) 225 F.3d.1084, 1093 [“[s]exual orientation and sexual identity…are so fundamental to one’s identity that a person should not be required to abandon them”]) and Canadian constitutional law (Egan v. Canada, 2 S.C.R. 513, 528 [‘whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.”] in this analysis. I can already hear argument that references to Canadian case law are inappropriate – however, the court did not place reliance on these holdings; it merely noted that other courts of competent jurisdiction have determined that, for the purposes of equal protection analysis, sexual orientation is a characteristic that is, at minimum, highly resistant to change.


I note, separately, that sexual orientation is a suspect class under the State of Hawaii’s equal protection jurisprudence (see Baer v. Miike, 994 P.2d 566 (Haw. 1999), in which the Hawaii Supreme Court noted that statutes that classify on the basis of sexual orientation remain suspect, notwithstanding the fact that the Hawaii constitution has been amended to grant the legislature the power to limit marriage to a union of one man and one woman, and notwithstanding the fact that the legislature has invoked this power; the Hawaii Supreme Court observed that all other classifications on the basis of sexual orientation remain suspect (see Footnote 1, supra)). I further note, separately, that the dissent in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). 7 N.Y.3d 338 (the New York gay marriage case) concluded that gay men and lesbians comprise a suspect class for the purposes of equal protection analysis in the State of New York. The Hernandez dissent cited from City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) in this context, noting that “[n]o single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny” (Cleburne, 473 U.S. at 472 n 24 [Marshall, J., concurring in the judgment in part and dissenting in part]). I further note, separately, that the Kentucky Supreme Court, in Commonwealth v. Wasson, 842 S.W.2d 487 (1992) (holding that the Kentucky sodomy statute was repugnant to the Kentucky state constitution as applied to consensual sexual activity between adults in private settings), held that “because homosexuals have historically been subject to invidious discrimination, laws which burden homosexuals as a class should be subjected to heightened scrutiny under the equal protection clause.” The Kentucky Supreme Court accepted and adopted analysis from the concurrence by US Court of Appeals Judge Norris in Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989); again, this state supreme court did not place reliance on this analysis (which involved adjudication of the US Constitution’s Equal Protection Clause), but noted its applicability to Kentucky equal protection jurisprudence.


More recently, the US Court of Appeals for the Ninth Circuit conducted a searching review of what the US Supreme Court actually did in Lawrence v. Texas, 539 U.S. 558 (2003) as opposed to what the US Supreme Court said it did in that case (see Witt v. Dept. of the Air Force, 06-35644, May 21, 2008), and concluded, unanimously, that the US Supreme Court held that the right to intimate sexual relations (both gay and straight) is a right of a very high constitutional order, and that the US Supreme Court actually applied a form of heightened scrutiny in striking down the Texas sodomy statute (and all other state sodomy statutes) as applied to sexual conduct between consenting adults in private settings for non-commercial purposes. Two of the circuit judges held that classifications on the basis of sexual orientation are, at the very least, quasi-suspect; the concurrence, authored by Senior Circuit Judge William Canby, held that classifications on the basis of sexual orientation are suspect. This opinion was not available to the California Supreme Court at the time that in re Marriage Cases was handed down, but is certainly apposite. This three-judge panel observed that the Court went out of its way, in Lawrence, not to identify the level of scrutiny that it applied to the Texas sodomy statute; however, a careful and thorough examination of what the Court actually did makes it very clear that the Court most definitely did not engage in traditional rational basis review (which permits even post hoc justifications for challenged legislation).


It is easy to get side-tracked by the complexities of equal protection analysis, for which reason I believe it necessary to return to the touchstone of interpretation of the Equal Protection Clause of the Fourteenth Amendment (and interpretation of the equal protection component of the Fifth Amendment’s Due Process Clause (see Bolling v. Sharpe, 347 U.S. 497 (1954)) in US Constitutional adjudication. The core criterion at issue in the recognition of “suspect classes” is the identification of “discrete and insular minorities” in contexts which are such that the normal political processes of the state are either not available or are otherwise insufficient to redress grievances adequately. This lies at the heart of what Justice Stone alluded to in Footnote Four of United States v. Carolene Products Company, 304 U.S. 144 (1938). Judge Canby, in Witt (supra), further noted that the US Supreme Court did not employ traditional rational basis review in Romer v. Evans, 517 U.S. 620 (1996) (striking down Colorado’s pernicious “Amendment 2” as a facial violation of the Fourteenth Amendment’s Equal Protection Clause). The strong language used in both Romer and Lawrence is consistent with the application of a more searching standard of review than traditional rational basis review, notwithstanding the Court’s coy (and probably intentional) refusal to state, unequivocally, the standard of review that it applied in both cases.


In short, I believe that you are mistaken in asserting that the California Supreme Court “improperly mixed” equal protection properties. The criteria for the identification of suspect classes must necessarily involve considerations of historical issues (a history of past discrimination), relative political powerlessness, the possession of a characteristic that is immutable, the possession of a characteristic that is deeply personal, equal ability to contribute to society, discrete and insular status, and minority status in broader society (and this list is probably not exhaustive). This is a fact-intensive investigation, and it is inevitable that reasonable people will disagree. This is to be expected. (What is not to be expected, in the opinion of the writer, are the insulting, abusive, and sneering comments made so frequently by Justices Scalia and Thomas.)


You then argue the existence of a “bizarre anomaly” in that classifications on the basis of sex are accorded quasi-strict scrutiny under federal equal protection jurisprudence, whereas the California Supreme Court accorded strict scrutiny to classifications based on sexual orientation. By the very terms of your assertion, you are mired on the horns of a false dilemma. You are conflating federal and state equal protection analysis to arrive at this “bizarre anomaly.” Under federal jurisprudence, classifications on the basis of sex are quasi-strict classifications (see Frontiero v. Richardson, 411 U.S. 677 (1973), United States v. Virginia, 518 U.S. 515 (1996)), whereas classifications on the basis of sexual orientation have been subjected to rational basis review by some federal judges, quasi-strict scrutiny by other judges, and strict scrutiny by still other judges (again, look to what the US Supreme Court actually did in Lawrence and Romer as opposed to what it said it did). Prior to the handing down of Lawrence, classifications on the basis of sexual orientation were almost always subjected to rational basis review. However, in the wake of Lawrence, at least one federal appellate court (the US Court of Appeals for the Ninth Circuit, in Witt (supra)) has subjected classifications based on sexual orientation to intermediate scrutiny. There is no question that Lawrence has changed the constitutional landscape – although the US Supreme Court spoke in terms of rational basis review in both Romer and Lawrence, commentators have pointed out (and judges have held) that the Court invoked a different standard of review – what the Court did and what the Court said it did are simply not possible to reconcile. (See Witt, supra, for an extended and extremely thorough analysis of the Court’s actual behavior). But returning to the California Supreme Court’s decision in in re Marriage Cases – you are forgetting that the California courts only recognize two standards of review (rational basis review and strict scrutiny). The California state courts do not recognize quasi-strict scrutiny – hence, in matters involving state constitutional adjudication, this anomaly simply does not exist.


Your other objections are discussed above, albeit indirectly. You refer to gay Californians as a “non-suspect class,” despite the fact that the California Supreme Court specifically and unequivocally identified gay Californians as a suspect class. You argue at length about the importance of the nuclear family, headed up by the man, and the role that this family structure has played throughout history. I do not, in any way, seek to destroy this particular family structure. It will endure together with gay marriages. I was infuriated recently when watching a commentator on C-SPAN assert that gay people are not really interested in gay marriage, and that efforts to legalize gay marriage are really efforts by the hard left to deconstruct the nuclear family. I am a gay man, and some people have (for whatever reasons) referred to me in writing as a gay rights activist. I am very interested in gay marriage – I would like to see gay people granted the same opportunities to avail themselves of the stabilizing influences of marriage, and the social support structures associated with marriage, as are granted to heterosexuals as a matter of course. Marriage is not a zero sum game. Heterosexual marriages are not impacted by the recognition of gay marriages. As Chief Judge Judith Kaye, of the New York Court of Appeals observed in her dissent in Hernandez v. Robles – “There are enough marriage licenses to go around for everyone.”


Some heterosexuals have argued that the recognition of gay marriage in some way “cheapens” heterosexual marriages. This is nothing less than a gross insult to gay people throughout the world. Implicit in this argument is the notion that gay people are in some way less than human. Groups such as the “Family Research Council” (FRC), the “American Family Association” (AFA), and “Focus on the Family” (FOTF) frequently assert that heterosexual marriages will be “cheapened” or “insulted” by the recognition of gay marriages. These comments come from people such as the thrice-married drunk named Bob Barr, who introduced the so-called “Defense of Marriage Act” (DOMA) in 1996; his second marriage collapsed after he was photographed licking whipped cream from the breasts of a stripper at a fundraiser. They come from people such as Newt Gingrich, who served his second wife with divorce papers as she lay dying of ovarian cancer in the hospital; these comments come from people such as the late Sonny Bono, who destroyed his relationship with his own daughter (Chastity Bono, an out gay activist) by voting for DOMA before ending his second (or third?) marriage, and himself, by skiing into a tree whilst high on the painkiller Vicodin. These comments come from people who are unable to keep their own marriages together for more than a few years at a time. These comments come from people who believe that their religion trumps constitutional guarantees of fairness and equality.


Gay marriage is real in both name and substance in Canada, Belgium, The Netherlands, South Africa, and Spain. Heterosexual marriages have not collapsed in those jurisdictions.


Gay marriage is real in all but name in the UK. Civil Partnerships in the UK are substantively identical to heterosexual marriages, and are recognized as marriages for all practical and legal purposes, both in the public sector and in the private sector. Only the name is different.


Gay marriage is real in substance, but not in name, in Denmark, Sweden, Finland, Iceland, Norway, Germany, and other European nations. Such relationships are generally referred to as “domestic partnerships” in these nations, but they are substantively identical to marriage. Denmark led the way by legalizing such domestic partnerships in 1980; heterosexual marriage has not fallen apart in the 28 years since such relationships were first recognized by Danish law.


South American nations are also starting to recognize gay relationships. Chile, Argentina, and other South American nations recognize gay relationships, but not to the same degree as is the case in Europe.


In the US, gay marriage is now recognized in both name and substance in California and in Massachusetts. Gay marriage is now recognized in substance (but not name) in New Jersey, Connecticut, New Hampshire, Hawaii, Oregon, and Washington. These relationships are referred to as “civil unions” (New Jersey, Connecticut, and New Hampshire) or as “domestic partnerships” (Hawaii, Oregon, and Washington).


Finally, you believe that the November referendum will result in gay marriage in California being banned by a state constitutional amendment. I doubt that this will happen based on trends that are already at work. Immediately following the decision by the California Supreme Court to recognize gay marriages, support for gay marriage dropped (the public did not like being forced into recognition of such relationships by the court). However, just two weeks after the decision was handed down, polls showed a pronounced shift, with 51% of people approving of gay marriage, 42% of people disapproving of gay marriage, and the remainder expressing no opinion. As time passes, and as gay couples get married, it becomes increasingly difficult for heterosexuals, most of whom know or are related to gay people, to vote to destroy existing relationships. Although I am by no means convinced that gay marriage will endure after November in California, I believe that the chances of gay marriage surviving are better than the chances of them being destroyed at the state constitutional level.


Time will tell.


PHILIP


KB – all of your comments about the prevalence of AIDS / HIV are arguments FOR gay marriage, not against gay marriage. Marriage exerts a stabilizing influence on those who enter into it, which means that it is very likely that rates of new infections will be lower within the gay community once gay marriage becomes legal throughout the community.


You are not debating gay marriage in your posts. All that you are doing is trying to smear the entire gay community based on the prevalence of HIV and other illnesses. The fact is that gay men are like any other group of men – some are faithful and monogamous, and others fool around. This observation has no bearing on the subject under debate. So why have you raised an issue that has no relevance?


PHILIP CHANDLER


If you want to safe marriage start with the one that matters - your OWN. If you want to safe a society start with the one you call your family. If people of opposite sex and same sex want to be in a loving relationship like the one your in let them. You may have forgot your friend Adolf who burned a few million jews because they didn't fit in, but as a reminder he also burned a couple of million gays. Before he did so he marked them with an upside down pink triangle. Of course your not talking about burning people, your talking about an class of citizen. Wait, wasn't that what your friend was talking about too. The better race.


a blinkin writes that “I don't have to prove being gay isn't immutable. In a legal proceeding, immutability is a question of fact that must be proven by the proponent of the fact. That is, gay people, claiming a denial of equal protection, have to prove the immuntability [sic] of homosexuality to gain anything more than "rational basis" scrutiny from the courts (outside of Cal. and Mass.) in a discrimination action. To date, no one has proven this, and no court has ever ruled that immutability has been established as a scientific fact. That's just the way it is.”

*****************

No, that’s actually not the way it is. As has been pointed out already, immutability of the defining characteristic is only one of several factors that fact-finding courts take into consideration when determining the appropriate level of scrutiny to be applied in the context of equal protection challenges to laws that classify on the basis of the characteristic in question. A history of past discrimination against members of that group is another factor; status as a “discrete and insular minority” is another factor; relative political powerlessness is another factor. The US Supreme Court has never subscribed to the notion that the fact-finding court has to check off factors from a list, one by one, to arrive at a determination that the group constitutes a “suspect class.” As the California Supreme Court observed, statutes that classify on the basis of religious belief are subject to strict scrutiny, notwithstanding the fact that people can and do change their religious beliefs. The application of strict scrutiny can result from a finding that the right infringed is a “fundamental” right, or from a finding that an equal protection challenge involves legislation that draws a suspect classification or that targets members of a suspect class.


This is one of the issues to which I responded in my earlier message to John W.


PHILIP


To Philip Chandler,
You've totally missed my points. Marriage never stopped teenagers from experimenting sexually! Didn't you read what I quoted from the American Red Cross that risky sexual practices have increased in the 15-22 age brackets. How many boys will turn into men with AIDS, resistant syphilis, and the more chilling MRSA? How many will suffer and die? I'm not talking about just now, I'm talking about down the road! All the legal briefs, legal decisions, lawyer speeches, judges comments won't take away the disease rate of the Homosexual community. And, by the way, neither will marriage. If the CDC and the American Red Cross can't convince you then I guess nobody can.


KB – you have totally missed my point! What do these figures (pertaining to HIV infection, etc.) have to do with the legal issue of gay marriage? If anything, you are arguing against your own facts. Marriage has been shown to have a stabilizing influence on those who enter into this relationship in the heterosexual community, and there is every reason to think that marriage will have a similar stabilizing influence on gay men and lesbians who enter into this relationship in those jurisdictions where it is recognized. As for MRSA – this issue is much more prominent in the UK than in the US (this is not to state that MRSA does not occur in the US – it is merely an observation that MRSA has become a matter of public concern in the UK, whereas most people in the US remain ignorant as to the seriousness of the problem). The MRSA problem has been blamed on promiscuous prescription of antibiotics, resulting in the development of methicillin resistance. These issues are in no way associated with, or related to, gay marriage!

PHILIP


Philip,
Where's your head. Sexual experimentation for teens is real. If you legalize homosexual marriage, our youth will experiment more thinking it's perfectly safe to do so. MRSA is high in San Francisco and New York City. In the "Gay City News" article I quoted from May 16 it's gotten so bad that New York has dropped it's medical coverage! Do you want your male child coming down with any of the diseases I quoted, and I quoted more than just AIDS. Think man, think? Where do you want our society to go????


* * * * *
Posted by: Philip Chandler | June 1, 2008 12:01 PM

Mr. Chandler,

I appreciate your post because it is always a joy to interact with an articulate and obviously intelligent people as you apparently are. I have a couple comments on your post, although I plan to address your points in a different order than you addressed them. I'm afraid, however, that my post will be too long if I address all the issues in one go, so I will address what I view to be the specific defects of the California Supreme Court's decision in a subsequent post. With these comments out of the way, I begin.
* * * * *
Number One: In your last point, you wrote to me: ". . . you believe that the November referendum will result in gay marriage in California being banned by a state constitutional amendment." That is a mild mischaracterization of what I wrote. I said, "Don't count on it" in response to your claim that polls show Californians are less likely to support the November initiative. I am no prophet, and neither am naïve enough to make predictions about mass behavior. The point was making is that your optimism based on poll numbers and demographics is premature. The poll numbers are little different from those prior to the passage of Prop. 22. Furthermore, polling in California is a risky business because the State's demographics are very complicated. It is very easy to come up with a non-representative sample. As I stated, Hispanics, although overwhelmingly Democratic, are largely opposed to same-sex marriage. This is a significant factor when one considers that Hispanics comprise about one-third of California's population. Also, samples favoring coastal inhabitants over those of the Sacramento and San Joaquin Valleys are sure to produce a more "liberal" response. These variations could well be the reason why the Field Poll showed the population slightly against the initiative, whereas a different poll conducted by an L.A. group revealed almost the exact opposite figures. In any event, I have always been amazed at the ability of voters to defy poll numbers in the final result. So, I repeat: Don't count on it. Only time will tell.
* * * * *
Number Two: You expressed your infuriation at a C-SPAN commentator who "assert[ed] that gay people are not really interested in gay marriage, and that efforts to legalize gay marriage are really efforts by the hard left to deconstruct the nuclear family." I can see how this would anger you if it does not accurately represent your viewpoint. Nevertheless, the commentator's remarks have more substance than his or her own prejudices. There have been substantial efforts from a variety of groups to deconstruct the male dominated, heterosexual social paradigm. To them, the exclusive recognition of heterosexual marriage between one man and one woman represents the Bastille to be stormed. Radical feminists have advocated abolition of marriage altogether in favor of flexible, polyandrous/polygamous relationships. To them, same-sex marriage represents a positive move toward toppling the male dominated, heterosexual, man-woman paradigm. After all, what genuine, principled argument can be made against their goals once the dominant paradigm does not remain exclusive? Even gay activists have, in the past, made the argument that recognition of same-sex marriage would force social recognition and, therefore, social acceptance of GLBT communities. Although I cannot find the material with sufficient speed to give you a web page or other citation, I know I have seen it myself. This is no small cause of resentment for those who believe the issue of same-sex marriage in the courts has been used to force the acceptance (rather than tolerance) of homosexuality, thereby sidestepping social evolution and the democratic process.
* * * * *
Number Three: I cannot agree in the least with your framework in which you discuss the Fourteenth Amendment's Equal Protection clause. The purpose of the Equal Protection Clause is not, and never was, simply to protect "'discrete and insular minorities' in contexts which are such that the normal political processes of the state are either not available or are otherwise insufficient to redress grievances adequately." The core purpose of the Equal Protection Clause, as the name implies, was - and is - to guarantee equal treatment under the law to all people similarly situated. (See Barbier v. Connolly, 113 U.S. 27, 31 (1885).) Thus, the Equal Protection Clause protects from discriminatory laws even the most politically powerful of all racial, gender and ethnic majorities - the white male. (See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 728-32 (1982) [holding unconstitutional the M.U.W.'s policy of excluding males from a nursing school under the heightened scrutiny test applied to gender discrimination]; and Adarand Construction Co. v. Pena, 515 U.S. 200 (1995) [Subjecting to "strict scrutiny" for racial discrimination a law giving racial preference to minorities over a businesses owned by a white male.].)
*****
Number Four: You and Judge Canby are both incorrect in suggesting Romer v. Evans, 517 U.S. 620 (1996) involved anything more than "rational basis" review. To the contrary, the Court in Romer struck down the provision of the Colorado Constitution in question (e.g. "Amendment 2") without applying any level of scrutiny at all. The Court wrote that "Amendment 2 fails, indeed defies, even [the] conventional inquiry" of the rational basis test (Id., at 631-32) because: (1) "the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation" and (2) "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests." (Id., at 632-35.) Central to the Court's analysis was its observation: "'[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" (Id., at 634-35, quoting Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973).) In short, the law constituted a per se violation of the Equal Protection Clause (which is a rare occurrence indeed). Clearly, therefore, heightened scrutiny was neither needed nor applied; in which case, any language you can glean from the case to suggest otherwise is pure obiter dictum.
* * * * *
Number Five: I entirely disagree with the notion expressed in Witt v. Department Of The Air Force that the Court in Lawrence v. Texas, 539 U.S. 558 (2003) subjected the Texas sodomy law to "strict scrutiny" or even any particular heightened scrutiny. The Texas statute in question prohibited certain intimate sexual activity under all circumstances between same-sex partners. (Id., at 563.) The Court's pronouncements that, "the Due Process Clause" gave the petitioners "the full right to engage in [said] conduct without intervention of the government," and "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (Id., at 578) left no room for any constitutional application of that law under any level of scrutiny. In fact, the second comment employs the same language courts use to describe the failure of a statute under a substantive Due Process "rational basis" analysis. (See Washington v. (Glucksberg, 521 U.S. 702, 722 (1997).) Moreover, nowhere did the Court ever say the petitioners had a "fundamental right" to engage in such conduct so as to trigger strict scrutiny review. (See Lawrence, at 564 and 586 (Scalia, J. dissenting.) That the Court overruled Bowers v. Hardwick, 478 U.S. 486 (1986) is similarly irrelevant in divining the level of scrutiny used. Bowers declined to hold the right to homosexual sodomy was either a "fundamental" right or a liberty interest for which the State had no rational basis to abridge. (Id., at 191, 196.) Thus, simply ruling against the State on latter issue - as the Court appeared to do in Lawrence by defining a "liberty interest" in sex and intimate relations - provided ample ground to overrule Bowers without using strict scrutiny. I don't suppose I need to remind you that the Court failed to apply the right test or ask the right questions to make it sound like strict scrutiny review (e.g. "compelling interest'?, "narrowly tailored"?, etc.) Hence, I suppose someone could believe the Court in Lawrence applied strict scrutiny - much the same way Roman oracles believed they could tell the future from examining the entrails of a chicken.
* * * * *
That's all for today. See you tomorrow with the rest.


*****

Posted by: Philip Chandler | June 1, 2008 12:01 PM

Mr. Chandler,

I must apologize for not being able to post the second part of my analysis as promised. I just picked up a new case today, so I didn't have the time to finish my comments on the California Supreme Court's decision. I will try to finish in the next day or so. I must also apologize for the "first draft" appearance of my posts. I trust you can read and comprehend them even with the typos. Sorry.


John W. -- I did not observe your latest message until today (16 July). Since your last post, there have been significant developments regarding gay marriage in California, Massachusetts, and New York. It is entirely possible that the California Supreme Court will hand down a decision preventing the proposed amendment to the California constitution to prohibit gay marriage from being decided by the voters in November. Equality California has argued that 1) the question put to those voters who voted to ban gay marriages in the initial petition signature drive were misled by the proponents of a ban of gay marriages, and that 2) the proposition prohibiting gay marriage amounts to a constitutional revision as opposed to a constitutional amendment, which would make it improper to put before the voters. On the other side of the country, the Massachusetts state legislature is currently deciding whether to repeal the 1913 law that prohibits officials from issuing marriage licenses to out-of-state couples who reside in those states that do not recognize the marriages in question. The Massachusetts state senate has already voted to repeal the legislation, and all eyes are now on the house, which is expected to repeal the legislation too (the governor has announced his support for the repeal). Both developments could have major impacts on the state of gay marriage after November. And in New York, the governor recently issued an executive order instructing all state officials to recognize gay marriages entered into in other jurisdictions where gay marriages are legal (e.g., in nations such as Canada, South Africa, Norway, The Netherlands, and Belgium, and in states such as California and Massachusetts).

As regards the California vote in November -- I am not counting on anything. Like you, I am well aware that group behavior can be very difficult to predict. What I am saying -- and what I repeat -- is that more recent polls show that support for gay marriage is rising in California, and more recent polls have shown that the initial backlash against the California Supreme Court's opinion has died down considerably. Gay couples have already married in California, which makes it much more difficult for people who know gay people to vote in favor of the marriage repeal measure. It is one thing to vote to prevent gay people from marrying. It is quite another thing to vote to dissolve the marriages of people you know and like. The issue of gay marriage ranks dead last in importance among 16 campaign issues for the average US voter, according to an announcement released by the Pew Research Center on June 12 (see http://pewresearch.org/databank/dailynumber/?NumberID=542). Far from counting on gay marriage being repealed in California in November, I am hoping that it is not repealed. The bottom line -- nobody can tell what will happen, but people can make informed and educated predictions.

Secondly, you support the view that many people who support gay marriage are in fact trying to "deconstruct" the traditional, male-dominated society. To the extent that US society remains male-dominated (a point that you appear to concede), I am also in favor of eliminating such dominance. However, it is not for a person who knows nothing about the lives of gay people to make broad statements about the motivations of gay people such as me. And as for acceptance of homosexuality versus tolerance of homosexuality -- you are absolutely right when you state that I wish to be accepted as opposed to tolerated. And you are absolutely right when you observe that people such as me are prepared to do whatever it takes to attain acceptance, as opposed to tolerance. Quite simply stated -- MY LIFE IS NOT UP FOR DEBATE. I don't know how else to put this. I am entitled to treatment as a human being of equal worth -- and there is no force in the world that will convince me that I should approach heterosexuals with cap in hand, shuffling and mumbling, as a supplicant. If I have to resort to forcing the issue by taking the majority to court, then that is precisely what I will do. To the extent that US society has codified the notion of equality under law in its state and US constitutions, I will invoke those constitutional guarantees as and when necessary.

Thirdly -- I never said that the primary purpose of the Equal Protection Clause was to protect discrete and insular minorities. You are attacking a straw man. This is merely one application, suggested by Justice Stone in his famous footnote to United States v. Carolene Products Co., 304 U.S. 144 (1938), and this application has been expounded by constitutional scholars such as John Hart Ely in his book, "Democracy and Distrust: A Theory of Judicial Review." The general purpose of the Equal Protection Clause is to ensure that groups of people who are similarly situated are treated similarly, and to prevent such groups from being treated differently, with adverse impact to members of one of the groups in question. It was under this rubric -- combined with a finding that gay people constitute a "suspect class" for the purpose of equal protection analysis -- that the California Supreme Court held that the ban on gay marriage violated the state constitution. My reference to discrete and insular minorities was intended to expand upon the references to a "suspect class" and to explain why the California Supreme Court held that gay men and lesbians constitute a "suspect class" -- not to prescribe the manner in which the courts interpret the Equal Protection Clause. To the extent that I was unclear in this observation, I apologize and hereby correct the record. The Equal Protection Clause is intended, as you write, to prevent unfair and discriminatory application of the law. "Strict scrutiny" applies under those circumstances where the right infringed is fundamental, or when the legislation impacts a "suspect class." The designation of a "suspect class" is usually made under those circumstances where the group in question has experienced a history of discrimination based on the expression of an immutable characteristic that bears no relation to the ability of the group in question to contribute to society, or where the group in question possesses the characteristics of a "discrete and insular minority." John Hart Ely has suggested that a democracy may "malfunction" when it restructures itself to "keep the outs out and the ins in."

Fourthly -- it is merely your opinion that Judge Canby was incorrect in holding that the US Supreme Court employed a more searching standard of review in Romer v. Evans, 517 U.S. 620 (1996). Judge Canby did what should have been done a long time ago -- instead of looking to what the US Supreme Court SAID it was doing in Romer, Judge Canby looked to what the US Supreme Court ACTUALLY did in Romer. Rational basis review has been described as a "paradigm of judicial restraint," permitting even post hoc justifications for the challenged legislation (see Heller v. Doe, 509 U.S. 312 (1993)). One post hoc justification that comes to mind is conservation of the state's resources to fight other forms of discrimination. Every justification advanced by the state was dismissed under the theory that the statute and the circumstances surrounding it were sui generis. That is a neat way of ducking the question, but it fails to answer the question. Furthermore, although the Romer Court stated that it "affirm[ed] the judgment, but on a rationale different from that adopted by the State Supreme Court," an examination of subsequent language strongly suggests that the Court adopted the analysis of the state court. The statement "[c]entral both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance" is nothing less than an endorsement of the state court's position that Amendment 2 violated the newly recognized fundamental right to equal participation in the political process (yet the US Supreme Court claimed to affirm on a rationale different from that adopted by the state court). The statement "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" is similarly a restatement of the position that all persons possess a fundamental right to equal participation in the political process. So just how different was the rationale adopted by the state court? I contend that the US Supreme Court's rationale was very similar, if not identical -- yet through linguistic sleight of hand, the Court asserted that it was employing the rational basis standard. Some scholars argue that the Court really employed "rational basis with teeth" as the standard of review -- yet this standard has never been recognized explicitly by any Article III court. I believe that the US Supreme Court applied a heightened form of scrutiny but was reluctant to announce that it was doing so.

Fifthly -- I disagree with you on this point for substantially the same reasons that I disagree with you on point four. It does not suffice to state what the Court SAID. It is necessary to state what the Court DID. Time prevents me from developing this point more fully, but I disagree with you for the same reasons as stated above.

Back later...


PHILIP CHANDLER


John W. -- At present, I do not have the time to undertake a full analysis and rebuttal of your comment pertaining to the overruling of Bowers v. Hardwick, 478 U.S. 186 (1986) by Lawrence v. Texas, 539 U.S. 558 (2003). I contend, however, that the Lawrence Court did not undertake rational basis review of the Texas statute when conducting its substantive due process inquiry. The Court stated, for example, that "[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (Id., at 578). Under a rational basis inquiry, the Court would not have any need to identify a legitimate state interest "which can justify its intrusion into the personal and private life of the individual." By adding this phrase, the Court made it clear that it could not find a rational basis for the intrusion caused by the statute -- something that the rational basis test neither requires, nor suggests is necessary. Any post hoc justification would have constituted a rational basis -- and any such basis would have sufficed to preserve the statute from the declaration of invalidity. The rational basis test does not require that the state provide a rational basis justifying the impact of the statute -- it requires only that the state provide (or that the court adduce) a rational basis for the statute's existence.

You assert that "The Court's pronouncements that, "the Due Process Clause" gave the petitioners "the full right to engage in [said] conduct without intervention of the government," and "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (Id., at 578) left no room for any constitutional application of that law under any level of scrutiny." Respectfully, this assertion entirely misses the point. In the absence of the identification of a fundamental right and in the absence of a classification that is suspect, the Court had no business making the pronouncement that you identify. A statute enjoys the presumption of constitutionality until it is demonstrated to be unconstitutional. Merely asserting that the statute at issue in Lawrence intruded into the personal and private life of the individual does not set a threshold for constitutional application -- something that you appear to believe, per the above quote. To the contrary -- identification of impairment of a liberty interest triggers an inquiry which is dependent in nature on the status of the liberty interest in question and on the status of the classification drawn by the statute. Hence, your assertion that the Court's pronouncement "left no room for any constitutional application of that law" is simply wrong as a matter of law. You appear to conflate the requirements for determining that a statute is constitutional under the Due Process Clause with the requirements for identifying a statute as facially unconstitutional. A statute can only be deemed to be facially unconstitutional if there are no circumstances whatsoever under which application of that statute can ever yield a constitutional result (see US v. Salerno, 481 U.S. 739 (1987)).

Again, you make reference to the language employed by the Court -- doing precisely what Judge Canby warned against. Judge Canby made it clear that his analysis focused on the Court's actual behavior in both Romer and Lawrence, emphasizing what the Court ACTUALLY did in both cases as opposed to what the Court SAID it did in both cases. Scalia's sputtering indignation in both cases is in and of itself illustrative -- he asserted that the Lawrence Court "laid waste" the foundations of its equal protection analysis.

PHILIP CHANDLER


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