Copper Seth wrote:
Debra Law wrote:
Marriage is a fundamental right....Every denial or deprivation of a fundamental right must be necessary to serve a compelling state interest. Each denial or deprivation must be analyzed on its own merits.
Where is your citation for this one? Because you are confusing several issues of Constitutional Law. When refering to Equal Protection and discrimination, the courts use that test ONLY when the class is "SUSPECT", or meets three criteria. In re Marriage Cases waived the most important one, immutable characteristic, simply because religion cannot be discriminated against and it is not an immutable characteristic. This is because *everybody with me now* religion gets its own Constitutional provision protecting it from discrimination. (In re Marraige Cases, p. 842; Cal Const Art 1 Sec 4). Religion has never been subject to Equal Protection analysis. That analysis is preserved for unconsidered distinctions, such as race. Gender doesn't even that get kind of scrutiny. It gets intermediate scrutiny. Other classifications get rational basis review, which means that the gov only has to have a rational basis for distinguishing along the lines it does (age falls under this category).
Based on my previous post, do you now understand that gay couples who are denied the right to marry have more than one cause of action (claim) arising under the state constitution? (1) They have a claim against the state for denial of a fundamental right (marriage); and (2) they have a claim against the state for discrimination in violation of the equal protection clause. Under the federal constitution, fundamental rights are secured against state denials or deprivations under the due process clause of the Fourteenth Amendment. Under the CA state constitution, the Declaration of Rights, Article I, provides the following:
Section 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty
, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
Section 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws....
An individual's right to marry is a fundamental liberty interest secured by the constitution against state deprivation. Thus, homosexual couples who have been denied the right to marry have standing to sue the State for a violation of the due process clause of the state constitution. The court applies the strict scrutiny test. It is unconstitutional for the state to deprive any person of a fundamental right unless doing so is necessary to serve a compelling state interest.
Homosexual couples who have been denied the right to marry may ALSO sue the State for a violation of the equal protection clause. Persons similarly situated must be treated the same by the government. Because homosexual persons belong to a minority group that has been historically subjected to adverse treatment, discrimination, and stigmatization, the CALIFORNIA Supreme Court ruled that they belonged to a suspect class. The Court applied strict scrutiny.
You don't "believe" that sexual orientation is an immutable trait, but that's not relevant. The Court noted some controversy over this issue. The Court cited a Canadian case which stated, "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." Regardless of whether homosexuality is an "immutable" trait, the Court said immutability is NOT invariably required. The Court said, "Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.
" The Court also said:
"[O]ur decisions make clear that the most important factors
in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society. Thus, 'courts must look closely at classifications based on that characteristic lest outdated
social stereotypes result in invidious laws or practices....This rationale clearly applies to statutory classifications that mandate differential treatment on the basis of sexual orientation.'" (Internal citations omitted.)
Thus, your allegation that immutability is the most important factor and that the Court waived that factor "simply because religion cannot be discriminated against and it is not an immutable characteristic" is FALSE
. Again, the Court stated that immutability is not invariably required because OTHER factors are MORE IMPORTANT. Similarly, the Court considers discrimination based on religion to be suspect and would also apply strict scrutiny.
Your allegation that "Religion has never been subject to Equal Protection analysis" is also FALSE
. The fact that a person is specifically protected against discrimination on the basis of religion under another section of the state constitution does not alter the equal protection analysis. "Religion" is the suspect classification that is subject to scrutiny. The Equal Protection Clause of the United States Constitution also subjects discrimination on the basis of religion to strict scrutiny.
Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.
City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
There are many cases and controversies wherein an injured party has invoked the equal protection clause to remedy discrimination based on religion. One case that comes to mind concerns a prisoner who was not allowed to burn incense when he practiced his religion. He was Wiccan. However, the prison authorities allowed Native Americans to burn items when they practiced their religion. The prisoner had a claim under the free exercise clause of the First Amendment AND a claim under equal protection clause of the Fourteenth Amendment.
With respect to the State of California, your allegation that gender discrimination is not subject to strict scrutiny is also FALSE. Under the FEDERAL constitution, gender is subject to heightened scrutiny called intermediate review. However, the State of California may interpret its own STATE constitution to afford its citizens greater protection. The California Supreme Court has done so:
In enforcing the California Constitution’s equal protection clause, however, past California cases have not applied an intermediate scrutiny standard of review to classifications involving any suspect (or quasi-suspect) characteristic. Unlike decisions applying the federal equal protection clause, California cases continue to review, under strict scrutiny rather than intermediate scrutiny, those statutes that impose differential treatment on the basis of sex or gender.
In re Marriage Cases
Copper Seth wrote:
So, please, again, I implore you to only refer to the law when you know it. Otherwise, you spread bad information for everyone to see. I'm really tryign to save you from yourself, as much as everyone else from your mistaken information.
YOU haven't displayed any knowledge at all concerning the law and you're "imploring" me to shut my mouth? You're the one spreading the blatantly FALSE information. Implore yourself.