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Gay Marriage - Legal Question

 
 
majikal
 
Reply Fri 16 Jul, 2010 11:41 pm
I was having a discussion tonight with a lawyer who is an opponent of gay marriage. I'm a proponent of gay marriage but he seemed to squash everything I said with some legal this or that. Can someone with legal knowledge help me out here? I'm trying to understand if he's correct or just spewing nonsense. Deb Law?

I said: The state cannot discriminate based on the gender of your intended spouse.
He said: Thats not how gender classifications work. Laws prohibiting gay marriage have equal effect on both men and women. The do not discriminate based on gender, they discriminate based on sexual orientation.

I said: Judge Kramer (CA supreme court) ruled that the marriage law was subject to, and failed, the strict scrutiny test because it involved a "suspect classification," ( gender of one's intended spouse), and the fundamental right to marry.
He said: A superior court judge (who likely recieved his law degree through correspondence) can rule whatever he likes. The problem is that he's wrong and outweighed by nearly 50 years of precedence. Gender has never garnered strict scrutiny. It is subject to intermediate scrutiny. Whats more as I said above is that these laws dont discriminate on the basis of gender. Someone that affects both men and women by definition doesn't discriminate on the basis of gender.

I said: Something about Loving v Virginia and gay people have the right to marry
He said: Gay people have the freedom to marry. They do not however have any rights to government benefits. It's dishonest to hold up Loving as supportive of your position. I can guarantee in 1967 when the justices used the term "marriage" they were speaking of straight marriage exclusively. There simply was no such thing as gay marriage back then. If you asked these same justices whether they intended their language to apply to two women or two men they would give you an emphatic no.

Everything I'm learned on the subject he seemed to say was incorrect. Have I been led astray all these years? I'm frustrated.
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Type: Discussion • Score: 7 • Views: 11,020 • Replies: 167

 
joefromchicago
 
  2  
Reply Sat 17 Jul, 2010 07:15 am
@majikal,
majikal wrote:
I said: The state cannot discriminate based on the gender of your intended spouse.
He said: Thats not how gender classifications work. Laws prohibiting gay marriage have equal effect on both men and women. The do not discriminate based on gender, they discriminate based on sexual orientation.

Well, I suppose he's right. But then laws criminalizing homosexual sex also discriminate on the basis of sexual orientation, and those were struck down by the supreme court in Lawrence v. Texas (albeit on due process grounds, not equal protection).

majikal wrote:
I said: Judge Kramer (CA supreme court) ruled that the marriage law was subject to, and failed, the strict scrutiny test because it involved a "suspect classification," ( gender of one's intended spouse), and the fundamental right to marry.
He said: A superior court judge (who likely recieved his law degree through correspondence) can rule whatever he likes. The problem is that he's wrong and outweighed by nearly 50 years of precedence. Gender has never garnered strict scrutiny. It is subject to intermediate scrutiny. Whats more as I said above is that these laws dont discriminate on the basis of gender. Someone that affects both men and women by definition doesn't discriminate on the basis of gender.

Again, he's right: gender is not a "suspect classification." But then homosexuality isn't a gender. I'm starting to see the problem here: your lawyer friend was knocking down all of your arguments because you didn't have very good arguments to begin with.

majikal wrote:
I said: Something about Loving v Virginia and gay people have the right to marry
He said: Gay people have the freedom to marry. They do not however have any rights to government benefits. It's dishonest to hold up Loving as supportive of your position. I can guarantee in 1967 when the justices used the term "marriage" they were speaking of straight marriage exclusively. There simply was no such thing as gay marriage back then. If you asked these same justices whether they intended their language to apply to two women or two men they would give you an emphatic no.

Possibly, but then a lawyer should know that the court only deals with the cases that come before it, not some hypothetical case that might come before it in the future. If the court, in Loving, had said "our ruling today doesn't apply to homosexuals," it would have been obiter dictum (try that one out on your lawyer friend).
0 Replies
 
plainoldme
 
  1  
Reply Sat 17 Jul, 2010 07:20 am
Rats! I pushed the wrong button! I wanted to reply to your post on a line by line basis but pressed reply to all. My computer is taking forever to load anything, so I will have to be back later.

What I want to say is that attorney sounds like a pretentious bully. I am not a lawyer but I wrote a thesis in Celtic Studies at a university that limits the same to the Medieval period. I read a great deal of Medieval French, English and Irish law and commentaries on law and marriage from church fathers that point to the same lessons I learned during my own divorce:

1.) That marriage is, first and foremost, about property. (During the Medieval period, when divorce was rampant, it was about property writ large.)

2.) I never found a statement that marriage is between a man and woman.

3.) Marriage and divorce are what the lawyers will make of it.
joefromchicago
 
  2  
Reply Sat 17 Jul, 2010 07:32 am
@majikal,
majikal wrote:
He said: A superior court judge (who likely recieved his law degree through correspondence) can rule whatever he likes.

Quote:
The Honorable Richard A. Kramer was born in Brookline, Massachusetts on July 22, 1947 and graduated from the University of Southern California Law School in 1972 as a Doctor of Jurisprudence, following a Bachelor of Arts, magna cum laude degree in political science in 1969. He was appointed to the San Francisco superior court by Governor Pete Wilson in 1996. Prior to this appointment, he was a civil litigator representing the banking industry. Kramer has been recognized for his ability to handle many complex cases, leading to California's Judicial Council to appoint him as the same-sex "Marriage Cases" coordinator.

Source.

USC's law school is usually ranked in the top 20 nationwide.
0 Replies
 
plainoldme
 
  1  
Reply Sat 17 Jul, 2010 07:33 am
@majikal,
Quote:
Laws prohibiting gay marriage have equal effect on both men and women

That is logical and, in effect, true.

Quote:
The do not discriminate based on gender, they discriminate based on sexual orientation.

Interestingly, he says that the laws do discriminate so they do violate the Constitution. That means he had nothing else to say.

Quote:
superior court judge (who likely recieved his law degree through correspondence) can rule whatever he likes.

Did he make that snide remark about correspondence schools? I bet he feels threatened by gay marriage. The man is beneath contempt.

What is even more interesting is that this buffoon presents an upfront insult to someone doing exactly what he is doing: stating what he thinks. No wonder people tell lawyer jokes.

However, while a superior court judge may rule as he wishes, his opinion can be over-ruled if it is found not to be in accordance with the law. His tactic then is simply a delay.

I already have three of the dreaded quote boxes in this reply and I need to research strict scrutiny and immediate scrutiny.

But, in re: Loving v Virginia, he is probably right that in 1967, the justices were speaking of marriage as straight marriage but only because gay marriage was not raised as an issue then. Loving v Virginia was two years before the Stonewall Riots.

However, there is increasing pressure from the general public to permit gay marriage. One of my daughter's closest friends, a gay man I have known since he was five, is now engaged to his long time partner. Our family is close to his family. I wish these two young men nothing but the best.
plainoldme
 
  2  
Reply Sat 17 Jul, 2010 09:04 am
Strict scrutiny is the most stringent standard of judicial review used by United States courts reviewing federal law. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue.
The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced in footnote 4 to United States v. Carolene Products (1938), in the context of the New Deal. Governmental restrictions on constitutional rights that undergo strict scrutiny are most commonly but not invariably found invalid. The first and most notable case to apply strict scrutiny and find the governmental actions valid was Korematsu v. United States (1944), in which the Supreme Court upheld racial-based internment of Japanese Americans during World War II.

Anyone who wishes to read more on strict scrutiny can follow this link:

http://en.wikipedia.org/wiki/Strict_scrutiny
0 Replies
 
Foofie
 
  1  
Reply Sat 17 Jul, 2010 12:11 pm
In my own "opinion," marriage was designed by society, historically, to determine how children will be raised, and who has responsibility to raise them, in addition to answering the question about who owns property. So, gays, again in my opinion, may be initially thinking of marriage as consummating a romantic relationship, something that feudal peasants never imagined when they got married (have children to take care of one, if one was lucky enought to grow old).

In other words, the concept of "gay marriage" may only appear logical, if one thinks of marriage as the consummating of a romantic relationship. That is fairly new in history, relatively. Perhaps, parents of gay children should be allowed to "arrange" their gay child's marriage to another "gay child"? That would allow gay marriage to evolve historically through the phases that heterosexual marriage evolved?

But, if marriage is based on the concept of responsibilities of child rearing, then the lgbt community may have to admit that marriage, by definition, is for those who can procreate between two partners.

Actually, gay relationships are evolving societally, I believe, since prior to the AIDS epidemic, I thought some gays had relationships that can be thought of as promiscuous (i.e., the book City of Night by John Rechy). So, without marriage, gay relationships might be evolving to the "puppy love" stage? In comparison, look how long historically, heterosexual marriage was arranged by parents/clan/tribe. Society evolves slowly, I believe.

These are all my own thoughts/opinions. Nothing legal is implied.



0 Replies
 
BillRM
 
  0  
Reply Sun 18 Jul, 2010 08:14 am
@plainoldme,
Marriages is about children and who inherent property in the next generation.

Homosexuals couples can not created children inside the relationship without outside aid and so are not the same as heterosexual’s marriages.
plainoldme
 
  3  
Reply Sun 18 Jul, 2010 08:37 am
@BillRM,
No, marriage is not about children but about the retention of property and power. At a time when marriage developed -- when the church was opposed to marriage and only grudgingly married couples at the door of the church -- there is little evidence that peasants and common people married.
plainoldme
 
  3  
Reply Sun 18 Jul, 2010 08:39 am
@plainoldme,
Marriage is only secondarily about children insofar as marriage creates a structure by which less scientific societies could identify the father of the child who was the heir to what ever the family had to pass along.
0 Replies
 
majikal
 
  2  
Reply Sun 18 Jul, 2010 12:54 pm
@BillRM,
I don't care about your opinion, I'm asking for the legalities of things said, not your objection to gay marriage
spendius
 
  1  
Reply Sun 18 Jul, 2010 01:53 pm
@majikal,
Anything is legal once legislated for. Your lawyer is a pedant. Getting something legislated for is a matter of persuasion and in most places that persuasion has been insufficient to legalise homosexual marriage which must be one of the least gay activities of the social whirl because the ironic banter between members of the opposite sex is impossible. One can only make jests, cutting barbs and the like at individual foibles rather than general ones characteristic of each sex. Marriage is between aliens. It's the ultimate in exogamy and is unlikely to happen if endogamy within the sexes was "gay".
BillRM
 
  -1  
Reply Sun 18 Jul, 2010 02:22 pm
@majikal,
Quote:
I'm asking for the legalities of things said, not your objection to gay marriage


You seem not to like anyone opinion that does not support your as the fact that a gay couple and a non-gay couple are not the same for the reason of children are in fact is a legal matter.

The society is not a stake holder in gays relationships as they tend not to effect the next generation of citizens it the relationships last one year or a lifetime.

The society however have a large stake in promoting many decades long stable relationship in heterosexuals couples so the children are raised inside those relationships to adulthoods.
plainoldme
 
  3  
Reply Mon 19 Jul, 2010 07:15 am
@BillRM,
Believe me: I did a thesis (essentially) on Medieval Marriage.

Marriage as an institution was created in the Middle Ages and it took years for it to be hammered out. Marriage then and now is about property.

The notion of protecting children is recent.
BillRM
 
  0  
Reply Mon 19 Jul, 2010 07:22 am
@plainoldme,
Property and how it is handed down to the next generation is about children of that union even in the middle ages.
plainoldme
 
  2  
Reply Mon 19 Jul, 2010 07:31 am
@BillRM,
No. Simply no.

During the Middle Ages, the children of upper class (landed) families were sent into fosterage at age 14 or so.

Today, a couple in court for a divorce will find that the court is more involved with their income and property than with their children.

BEsides, I suspect that everyone knows a gay and/or lesbian couple with children.
BillRM
 
  0  
Reply Mon 19 Jul, 2010 08:35 am
@plainoldme,
Gay couples do not produce children without someone of the other sex being involved!!!!!!! Not one child in the history of the human race had been produce as a result of a gay union.

Second there had always been complex laws concerning passing property to the next generation that tie into married.

Who ended up inheriting the lands and or the titles was a main concern of Middle Ages laws.

Wars was fought and an ocean of blood had flowed over those issues.
majikal
 
  4  
Reply Mon 19 Jul, 2010 04:25 pm
@BillRM,
Get out of here, Bill. No one cares about your homophobia
spendius
 
  -2  
Reply Mon 19 Jul, 2010 04:59 pm
@plainoldme,
Quote:
BEsides, I suspect that everyone knows a gay and/or lesbian couple with children.


I don't. I don't know anybody who ever mentioned that they did either. And I don't know anybody who ever mentioned that they knew anybody who had ever mentioned that they did.

And I know a lot of people and more than a few very well indeed.
BillRM
 
  -1  
Reply Mon 19 Jul, 2010 06:16 pm
@majikal,
Quote:
Get out of here, Bill. No one cares about your homophobia


LOL LOL LOL So if someone dare to disagree with you you then label and name call?

Look up my statements in others threads on this system such as my total support of removing the ban on gays servicing in the military openly at once.

Unlike you I do not have a simple outlook on life.

Gays couples are not the same as non-gay couples because they are not the engine for raising the next generation of citizens therefore the state have no stake or reason to license and promote such relationships.
 

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