Im not sure I see where in the Constitution there can be that distinction made between gender-based discrimination for contract rights and race-based. From a legal standpoint.

 

Can you spell it out for me?

 

 

The governance of Contracts is not a power granted to the Federal government. It is why contract law is different in every state, and why marriage law is different in every state.

Ok.

 

But you condescendingly referred me to the constitution when referring to the difference between race-based discrimination vs. gender-based discrimination. So what is it that I'm supposed to be looking for that makes one legally (if not morally, to paraphrase you) acceptable while the other is not?

 

I'm honestly not arguing right now. I'm really hoping you can explain what you're referring to, because it's not clear to me.

Can't you guys just enjoy the two damn hot chicks making out!?

Ok.

 

But you condescendingly referred me to the constitution when referring to the difference between race-based discrimination vs. gender-based discrimination. So what is it that I'm supposed to be looking for that makes one legally (if not morally, to paraphrase you) acceptable while the other is not?

 

I'm honestly not arguing right now. I'm really hoping you can explain what you're referring to, because it's not clear to me.

 

 

Because race is specifically mentioned in the US Constitution, and a denial of access to rights and privileges due to race is prohibited therein and per judicial precedent dating from the moment of passage of the 14th amendment race is specifically what it was referring to.

 

Frankly, if advocacy groups were not playing a zero sum game, same-sex marriage would be a reality in all but the most stubborn states. Divorcing (pardon the pun) the term from the desired rights would get civil union legislation through most state assemblies. Visitation, taxation and property rights are really the core of marriage law and few people would want to deny a person the right to visit their loved one in the hospital, nor to prohibit the inheritance of shared property, etc.

Because race is specifically mentioned in the US Constitution, and a denial of access to rights and privileges due to race is prohibited therein and per judicial precedent dating from the moment of passage of the 14th amendment race is specifically what it was referring to.

 

 

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

OK. You're not doing a good job of being specific. That's what I'm looking for. Talk to me like I'm stupid.

 

Race is not mentioned in the 14th amendment, however you are right that judicial precedent has applied to racial discrimination, among other things.

 

However, based on judicial precedent established in United States V. Virginia, doesn't the 14th amendment cover gender-based discrimination as well?

Gender-based discrimination is still not sexual-orientation based discrimination, and the US Constitution has a gender-specific amendment as well. US v. Virginia also hinged upon the fact that VMI accepted Federal funds and thus was subject to the equal protection clause. A private institution is only required to permit members of all races (per the 1961 Civil Rights act), there is no requirement that mandates admission of both genders.

 

Given that it was necessary to amend the Constitution to require states to provide the absolute fundamental right of a representative government (voting) to women indicates that the states possessed the capacity and legal authority to deny that right to citizens of the United States - for arbitrary reasons - in the first place.

 

The 14th Amendment argument is the strongest one used for judicial activism of all sorts - but there is judicial precedent that denies rights to American Citizens for a wide range of causes - criminal conviction, residence, mental illness, sexual-orientation, height, weight, physical capacity, etc.

 

I am not a lawyer, and I have had lawyers tell me my understanding is pretty strong, and I have had lawyers tell me that my understanding is fundamentally flawed. Take it for what it is worth.

 

In my experience, when the court acts in a heavy handed way, without a clear expression from the Constitution, battle lines are drawn. In many cases the judge acts with the best of intent in order to correct a perceived injustice, but if left alone the issue would resolve itself within a generation - without the lingering political distraction of organized resistance from folks that feel persecuted but the courts "tyranny."

 

As it is, most young people do not really care about the sexual-orientation of their fellow citizens. As time passes, today's youth will be tomorrow's voting majority.

Gender-based discrimination is still not sexual-orientation based discrimination,

 

 

I disagree, but I suppose that's open for interpretation.

 

Also, when you say 1961 Civil Rights act, what are you referring to?

Gender-based discrimination is still not sexual-orientation based discrimination,

 

 

I disagree, but I suppose that's open for interpretation.

 

Also, when you say 1961 Civil Rights act, what are you referring to?

 

The non-typo 1964 Civil Rights Act :dancehead

Gender-based discrimination is still not sexual-orientation based discrimination, and the US Constitution has a gender-specific amendment as well. US v. Virginia also hinged upon the fact that VMI accepted Federal funds and thus was subject to the equal protection clause. A private institution is only required to permit members of all races (per the 1961 Civil Rights act), there is no requirement that mandates admission of both genders.

 

Given that it was unnecessary to amend the Constitution to require states to provide the absolute fundamental right of a representative government (voting) to women indicates that the states possessed the capacity and legal authority to deny that right to citizens of the United States - for arbitrary reasons - in the first place.

 

Marriage is controlled via state governments, which are subject to the U.S. Constitution. I'm not sure how the Federal funds issue distinguishes U.S. v. Virginia.

 

I don't know what you're trying to in the 2nd paragraph, but the 19th amendment, whether or it was absolutely necessary in light of the before-standing Constitution, was enacted to give women the unabridged right to vote. The 15th, 19th, and 26th amendments, for example, were all added subsequent to the Bill of Rights, of course. So, insofar as the argument is that the Constitution guarantees certain rights such as those but not the rights of same-sex couples to marry, that's only because there hasn't been an explicit subsequent amendment; but, that's a circular argument. My feeling is that the 14th Amendment prohibits such discrimination on its face, anyway.

If the 14th Amendment is so broad then what behavior can the government ban / regulate?

 

Can we make distinctions based upon age? Genetic relation? Can we prevent people from using marriage contracts for business purposes? Would there be such a thing as marriage fraud as relates to immigration?

If the 14th Amendment is so broad then what behavior can the government ban / regulate?

 

Can we make distinctions based upon age? Genetic relation? Can we prevent people from using marriage contracts for business purposes? Would there be such a thing as marriage fraud as relates to immigration?

 

The government can ban/regulate almost anything under current Commerce Clause jurisprudence, hence why my super-Conservative Constitutional Law professor begrudgingly conceded that Obamacare is likely Constitutional. But, you can't typically discriminate within those regulations, subject to sufficient justification under the proper test, i.e. rational basis review, intermediate scrutiny, or strict scrutiny.

 

Your post seems to be conflating what the government can regulate generally and how it can structure those regulations relative to certain groups of people. They can ban illegal drugs, but they can't do so only toward women, for example.

I'm going to have to step out of this conversation. We may have fallen into the intellectual deep end here and if I try to grab on to Mystikol, we'll both drown.

The tendency to talk past one another is constant, and little is precisely known in these areas, so I too tread lightly.

 

Also, I'd embarrassed to say something patently wrong :lol

Also, I love the imagery/metaphor/whatever literary device that is.

It's from 30 Rock.

 

 

"Why don't Catholics eat meat on Fridays? I'll tell you why! Because the Pope owns Long John Silvers!"

 

Phenomenal.

If the 14th Amendment is so broad then what behavior can the government ban / regulate?

 

Can we make distinctions based upon age? Genetic relation? Can we prevent people from using marriage contracts for business purposes? Would there be such a thing as marriage fraud as relates to immigration?

 

The government can ban/regulate almost anything under current Commerce Clause jurisprudence, hence why my super-Conservative Constitutional Law professor begrudgingly conceded that Obamacare is likely Constitutional. But, you can't typically discriminate within those regulations, subject to sufficient justification under the proper test, i.e. rational basis review, intermediate scrutiny, or strict scrutiny.

 

Your post seems to be conflating what the government can regulate generally and how it can structure those regulations relative to certain groups of people. They can ban illegal drugs, but they can't do so only toward women, for example.

 

I will not make any high-sounding protestations to 'sanctity' - I will just talk about what is, and what was, in American society and the societies that American society primarily descends from.

 

Marriage under (most) current law, long-standing precedent and societal tradition is the legal bonding of a man and a woman. Structuring the legal and social construct of marriage to include persons of the same gender is a departure from the traditional definition set by our society. Although there is nothing wrong with setting aside tradition when warranted, to indicate that our government's founding document demands it is dubious at best.

 

If the 14th Amendment means everything that the last 40 years of judicial activism has indicated, then the 19th Amendment was needless. The government has a 220+ year history of granting privileges based upon arbitrary factors - the arbitrary factors that have been deemed undesirable have been prohibited by the US Constitution by amendment (race, gender for voting, age beyond 18 for voting, financial capacity).

I don't care enough to read more than the last post... (I've had some beeeer).

 

 

Gay marriage should be a federal issue and not a states rights issue. It's about protecting the freedoms of individuals, which should be universal.

 

Or at least... me thinks.

 

 

For it to be a federal issue, marriage would have to be a civil right like voting. Then we'd have to assume that "gay" is a protected class, and if so what level of legal protection should they be afforded. (should it be the same as with racial discrimination or intermediate like with gender).

 

And then we have to determine if marriage, when states first began to make it a legally defined union between people of opposite sex, that there is some intent or purpose to deny homosexual people from obtaining that legally defined union.

 

As a state police power issue, its much simpler. The fact that one State does it and another does not shows me that the system is working perfectly as the seperate States are supposed to be sovereign.

Also, I would be willing to agree that a State ban on gay marriage may be unconstitutional. However, a law allowing only people of the opposite sex to marry is not an affirmative act of government that is leading to discrimination.

 

Mystikol- the Commerce Clause has been scaled back big time since the 1990s, so I would disagree that the Feds can regulate anything. In fact, now moreso than it was in the 60s or 70s the CC has been limited. Its been years since con law so I dont remember the case names, but I'm sure you're covering them in your con law class.

While I agree with that, I still wouldn't say it's grounds to stop it from being paralleled to the women's rights and black rights movements.

For it to be a federal issue, marriage would have to be a civil right like voting. Then we'd have to assume that "gay" is a protected class, and if so what level of legal protection should they be afforded. (should it be the same as with racial discrimination or intermediate like with gender).

 

I've thought about this as well. Historically, homosexuality has not been a protected class. I think the courts will change that because of public opinion, but a distinction should still be considered.

 

Homosexuality is being lumped together with the women and black civil rights movements. While there are some similarities, I don't find sexual orientation to be directly analogous to race/gender. Homosexuality is more of an action, while race and gender are more salient qualities. Now this does not imply there is a "choice" involved for a man to be drawn to another man (to say there is a choice is nonsense), but homosexuality is a quality that can be hidden, unlike race or gender.

You may very well be right; what they really should be considering are the factual circumstances IMO. I think if you look at the last 50-100 years, there are a lot of arguments that homosexuals face similar levels of discrimination to blacks, for example. If you go back several hundred years, blacks seem to be more heavily discriminated against, although I admittedly haven't done/read any academic work on this point -- it's mainly just my perception.

I don't care enough to read more than the last post... (I've had some beeeer).

 

 

Gay marriage should be a federal issue and not a states rights issue. It's about protecting the freedoms of individuals, which should be universal.

 

Or at least... me thinks.

 

 

For it to be a federal issue, marriage would have to be a civil right like voting. Then we'd have to assume that "gay" is a protected class, and if so what level of legal protection should they be afforded. (should it be the same as with racial discrimination or intermediate like with gender).

 

And then we have to determine if marriage, when states first began to make it a legally defined union between people of opposite sex, that there is some intent or purpose to deny homosexual people from obtaining that legally defined union.

 

As a state police power issue, its much simpler. The fact that one State does it and another does not shows me that the system is working perfectly as the seperate States are supposed to be sovereign.

I'm not convinced the bolded is accurate, but I may be misunderstanding your point. The Federal government can and has -- rightly or wrongly on a philosophical level -- usurped some things that people think of as state issues, or at least have imposed plenty of regulations on those things. For example, there is a Federal influence in elementary/secondary schooling; Federal regulations pertain to corporations despite corporations being state-created entities; and many more, even though there are no civil rights involved.

 

The protected class analysis takes place if an existing statute were challenged on Constitutional grounds like the 14th amendment. But the Federal government might be able to enact Federal legislation regarding gay marriage, perhaps under the Contracts Clause, Commerce Clause, or 14th Amendment.

 

Whether this would be a good thing is a separate question, but it's plausible.

Mystikol- the Commerce Clause has been scaled back big time since the 1990s, so I would disagree that the Feds can regulate anything. In fact, now moreso than it was in the 60s or 70s the CC has been limited. Its been years since con law so I dont remember the case names, but I'm sure you're covering them in your con law class.

 

That's why I said almost anything. The cases I read didn't suggest it had been scaled back "big time," but that's a debatable point. There still isn't a coherent framework from limiting legislation under the Commerce Clause that I have seen, and the current statement of it is extremely broad.

You may very well be right; what they really should be considering are the factual circumstances IMO. I think if you look at the last 50-100 years, there are a lot of arguments that homosexuals face similar levels of discrimination to blacks, for example. If you go back several hundred years, blacks seem to be more heavily discriminated against, although I admittedly haven't done/read any academic work on this point -- it's mainly just my perception.

 

 

I wouldn't go so far as to say that. But as penguino said, it's something that doesn't have to be expressed. If you go back several hundred years, I'd venture so far as to say it was so taboo that people wouldn't even think about expressing it. I'm not saying it's more or less heavily discriminated against, but rather that it wouldn't be fair to say that one was more or less discriminated against versus the other. I'm sure homosexuals were being lynched as well. It's just something that you can 'get away with'. You can't exactly get away with being black and not having anyone know.

You may very well be right; what they really should be considering are the factual circumstances IMO. I think if you look at the last 50-100 years, there are a lot of arguments that homosexuals face similar levels of discrimination to blacks, for example. If you go back several hundred years, blacks seem to be more heavily discriminated against, although I admittedly haven't done/read any academic work on this point -- it's mainly just my perception.

 

 

I wouldn't go so far as to say that. But as penguino said, it's something that doesn't have to be expressed. If you go back several hundred years, I'd venture so far as to say it was so taboo that people wouldn't even think about expressing it. I'm not saying it's more or less heavily discriminated against, but rather that it wouldn't be fair to say that one was more or less discriminated against versus the other. I'm sure homosexuals were being lynched as well. It's just something that you can 'get away with'. You can't exactly get away with being black and not having anyone know.

Yeah, there are tons of definitional issues (i.e. what is discrimination? what kinds are worse than others? etc.) before you even begin to address some of the larger philosophical, moral, and empirical questions.

There's a strong argument to be made that the entire administrative agency system is unconstitutional, which is fascinating to me.

 

You're right about Constitutional Law, although at least part of the reason is because we have a precedential system, and there is a ton of precedent for just about all the plain language parts of the Constitution, so they now play a heavy role.