Copper Seth:
Here is our previous conversation in context:
Debra Law wrote:Copper Seth wrote:Loving v. Virginia should also not be used in conjuntion with Brown v Board of Education, because this is not an issue of seperate but equal.
You're advocating separate and disparate treatment, and yet you say this is NOT an issue of the "separate but equal" doctrine that was discredited? How can you look at yourself in the mirror with a straight face?
Marriage for heterosexual couples vs. Civil Unions or domestic partnerships for homosexual couples
That's separate and unequal.
Copper Seth wrote:BvB dealt with public education, something given to everyone for very specific reasons.
Education at public expense is not a right. However, when the State provides public education to children (and mandates compulsory attendance under the penalty of law), then the state has a constitutional duty to treat all children alike. In other words, the State cannot establish superior schools and reserve those schools for a "special class" of heterosexual students and establish inferior second-class schools for disfavored homosexual students. That would be unconstitutional discrimination.
Copper Seth wrote:But marriage is not given to everyone. Even the ancillary rights that accompany marriage are reserved for that special class of relationships.
Marriage is a fundamental right. The State may not deprive any individual or class of individuals from exercising a fundamental right unless the deprivation is NECESSARY (and narrowly tailored) to serve a COMPELLING State interest. Although you place yourself and your fiancee in that "special class" of heterosexuals whom you believe are entitled to superior rights, you're not any more special than homosexuals.
In the above discussion, you failed to distinguish between liberty secured by the due process clause and the protection of similarly situated persons under the equal protection clause. You erroneously elevated public education to a stature greater than that of a fundamental right because, you stated, it is "given to everyone," whereas marriage is NOT "given to everyone."
You erroneously allege, because education is "given to everyone for very specific reasons" whereas, marriage is NOT "given to everyone," then excluding gay couples from the right to marry is not an issue of "separate but equal" doctrine that was discredited in Brown v. Board of Education.
In your analogy, you erroneously compared apples to oranges as your justification for treating homosexuals as second class citizens. In other words, you compared a fundamental liberty interest (in marriage) to a state-created property interest (in public education).
The Fourteenth Amendment provides, "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."
The United States Supreme Court has clearly ruled that education at public expense is NOT a fundamental right secured as a LIBERTY interest under the due process clause. See SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973):
Quote:In Brown v. Board of Education, 347 U.S. 483 (1954), a unanimous Court recognized that "education is perhaps the most important function of state and local governments." Id., at 493. What was said there in the context of racial discrimination has lost none of its vitality with the passage of time:
"Compulsory school attendance laws and the great expenditures for education both demonstrate our [411 U.S. 1, 30] recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Ibid.
This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U.S. 205, 213 (BURGER, C. J.), 237, 238-239 (WHITE, J.), (1972); Abington School Dist. v. Schempp, 374 U.S. 203, 230 (1963) (BRENNAN, J.); McCollum v. Board of Education, 333 U.S. 203, 212 (1948) (Frankfurter, J.); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U.S. 79 (1907).
Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that "the grave significance of education both to the individual and to our society" cannot be doubted. 69 But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.
. . . Thus, the key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. . . .
We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty and have found those arguments unpersuasive. In one further respect we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has [411 U.S. 1, 38] applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which "deprived," "infringed," or "interfered" with the free exercise of some such fundamental personal right or liberty. . . .
It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights....
Public education is NOT a fundamental liberty interest, it's a property interest. See, eg., Goss v. Lopez, 419 U.S. 565 (1975) :
Quote:Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause....Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so and has required its children to attend. Those young people do not "shed their constitutional rights" at the schoolhouse door.
In Brown v. Board of Education, the Court struck down the "separate but equal doctrine" that was previously embraced by the Plessy v. Ferguson decision. The Plessy case considered "public transportation." Neither public transportation nor public education are fundamental liberty interests. However, children (like adults) are constitutionally entitled to equal protection of the law. Here's what the Brown Court said:
Quote:In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, [347 U.S. 483, 488] they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537 . Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.
The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction....
In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout [347 U.S. 483, 493] the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws....
In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout [347 U.S. 483, 493] the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system." 10
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 11 Any language [347 U.S. 483, 495] in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.
As I stated before, education at public expense is not a right. In other words, it is not a LIBERTY interest secured by the Constititution. However, when the State provides public education to children (and mandates compulsory attendance under the penalty of law), then the state has a constitutional duty to treat all children alike. In other words, the State cannot establish superior schools and reserve those schools for a "special class" of heterosexual students and establish inferior second-class schools for disfavored homosexual students. That would be unconstitutional discrimination (under the equal protection clause).
The State cannot establish two separate insitutions to deal with similarly situated families as a means to regulate familial rights and duties. Families headed by homosexual couples are similarly situated to families headed by heterosexual couples. By reserving the institution of "marriage" for heterosexuals and segregating homosexuals into a newly created institution called "civil unions" or "domestic partnerships," the State's policy of separating people based solely on their sexual orientation is interpreted as denoting the inferiority of families headed by homosexuals. As the California Supreme Court held, the State is required to provide homsexuals and their families the same respect and dignity that the State affords to heterosexuals and their families.