Missouri voters ban gay marriage

How sad.

Agreed.

Cycloptichorn

I wonder how much cash was spent by these "grassroots" organizations to promote/fight this amendment. Let's face it, the amendment only applies to 10-15% of the people - meanwhile there are children to school, roads to pave, and people to feed.

My own personal position on this is that anyone stupid enough to put 50% of their possessions on the line for a relationship should go for it. I would have voted against it. What upsets me a little is all the time and money spent on an issue which is a personal and not public matter.

I'm originally from missouri - and most people don't have a solid image of it. You have St. Louis - what used to be a major industrial center with lots of black people and lots of democratic and liberally-minded voters.

Then you have the rest of Missouri, which, for the most part (excluing college towns) is very agrigulturally-based and filled with few liberal- voting minority groups and mostly republican-voting christian conservatives.

So, if votes are based from number of counties (and not proportioned by individuals in the Missouri population) I am not at all suprised.

Re: Missouri voters ban gay marriage


Very good. LOL These anti-same-sex marriage people are seeding a fertile litigation field through their activism. If they think they are protecting their "wise policy" against a legal challenge--they went about it in the WRONG WAY.

This is an issue that a cowardly United States Supreme Court would probably like to avoid. But, when the activists are making this a major issue throughout the country to the point where the people are amending their state constitutions to sanction discrimination against homosexuals, they are making it more and more difficult for the U.S. Supreme Court to look the other way.

These people are not protecting their views from legal challenge, they are inviting legal challenge. This issue will flood the courts. Petitions for writs of certiorari will flood the United States Supreme Court forcing the Court to act. If the Court rules in accordance with the Supreme Law of the Land, then all state constitutional amendments and laws that prohibit same-sex marriages will be declared repugnant to the Supreme Law of the Land.

Is it a common occurance to have the supreme court over rule a state constitution? Is there precedence for that?

Huh?


McGentrix! I'm surprised that you might think that a state constitution carries more weight than the United States Constitution! In the heirarchy of laws, the U.S. Constitution is Supreme. It makes no difference if the inferior law is a state regulation, a state statute, a state constitution, or a federal regulation, or a federal law enacted by Congress. If any inferior law is in conflict with the supreme law, the supreme law trumps. There are MASSIVE amounts of precedence for that simple, but core principle.

I understand that. Is there a federal law that restricts states from adding this provision to their constitutions?

Federal Law


Federal law? How about the United States Constitution--the Supreme Federal Law of the Land. Check out the Fourteenth Amendment!

Check out this United States Supreme Court case:

ROMER v. EVANS, 517 U.S. 620 (1996)

Excerpt from FindLaw:

After various Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. The trial court's grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the Amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the State Supreme Court affirmed.

Held:

Amendment 2 [to the Colorado State Constitution] violates the Equal Protection Clause. Pp. 4-14.


(a) The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible. The extent of the change in legal status effected by this law is evident from the authoritative construction of Colorado's Supreme Court - which establishes that the amendment's immediate effect is to repeal all existing statutes, regulations, ordinances, and policies of state and local entities barring discrimination based on sexual orientation, and that its ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment - and from a review of the terms, structure, Page II and operation of the ordinances that would be repealsed and prohibited by Amendment 2. Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions. Pp. 4-9.

(b) In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e.g., Heller v. Doe, 509 U.S. 312, 319 -320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i.e., respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State's interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the Amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Pp. 9-14.

J. Kennedy
Justice Kennedy's opening paragraph in ROMER v. EVANS sets forth a core principle of law that rules our nation. The Supreme Court has ignored that core principle many times in the past, but eventually comes forward, admits the error, and correctly applies the law.

In a post on another thread, I mentioned the wrongfulness of the "separate but equal" doctrine that the Supreme Court embraced in Plessy v. Ferguson (1896). It took many decades for the Court to recognize its error and correct it in 1954. But, even in 1896, Justice Harlan recognized the wrongfulness of discrimination.

Today, some people recognize the wrongfulness of the prohibition against same-sex marriages. It's only a matter of time before the Court examines the issue and applies the Supreme Law. Hopefully, the Court will heed the wise words of Justice Harlan and it won't be another century before this nation progresses.

JUSTICE KENNEDY delivered the opinion of the Court.

One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution.

well, it will certainly be interesting to see what the fallout shall be.

Will they also recognize the "wrongfulness" of not allowing someone to marry their sibling? Or how about marrying a parent? Because if you are going to argue the correctness of gay marriage in the way it seems that you are (from a discrimination angle), then why not go all the way and argue for the legitimacy of all marriages? Seems the right thing to do, is it not?

And yes McG, it should be interesting to see what the fallout will be. In either case, both sides are in for a long protracted struggle I do believe.

Good Question


Hi CoastalRat:

You presented a good question.

The answer to your question can be found within the text of the Supreme Court case, Romer v. Evans (discussed in previous post).

http://laws.findlaw.com/us/517/620.html

Many, many years ago when I endeavored as a young woman to study and read court cases for my law school classes--I often felt like I was reading a foreign language. When I read, I had to keep my huge Black's Law Dictionary on the study table and refer to it often.

Today, I can quickly browse a case and immediately know exactly what it says and why it says what it does without the assistance of my law professors or a legal dictionary. That comes with years and years of experience. Even though we live in a society ruled by law, most people don't understand how it works within the framework of our constitutional republic.

The Fourteenth Amendment to the Constitution prohibits States from making any laws that deprive its citizens of due process of law or equal protection of the laws. The equal protection clause, however, does not prohibit the States (through their general police powers) from making classifications.

At a minimum, the equal protection clause requires that the classification must be rational and must serve a legitimate state interest. (The Fourteenth Amendment abhors arbitrary classifications that serve no legitimate governmental interest.)

When the State enacts a law that prohibits a person from marrying his sibling or from marrying some other person closely related by blood, the question is this: What legitimate interest is the government trying to protect by making this classification of persons whom another person cannot marry.

The government can reasonably argue that the state has a legitimate (and perhaps substantial) interest in protecting persons, especially young persons who are not in a position to protect themselves, from incest and the effects of incest. The prohibition against allowing persons closely related by blood to marry each other may be viewed as a rational means of discouraging incest.

When the State enacts a law that prohibits same-sex marriages, the question is this: What legitimate interest is the government trying to protect by making this classification of persons whom another person cannot marry? What legitimate government interest is served by prohibiting a homosexual from marrying the person of his choice simply because the person is the same sex?

If we can identify the government interest--then and only then may we determine whether that government interest is legitimate and and whether the means chosen to serve that interest are rationally related to that interest.

In Romer v. Evans, the Supreme Court said:

"The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons . . . We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end . . . even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained . . . Equal protection of the laws is not achieved through indiscriminate imposition of inequalities."

In Romer v. Evans, the United States Supreme Court asked the question: Does the state constitutional amendment serve a legitimate state interest and is the amendment rationally related to that interest?

The State of Colorado claimed the constitutional amendment simply denied protected status to homosexuals, lesbians, and bi-sexuals. The State argued that the amendment simply denied gays and lesbians "special privileges."

The Court found that the constitutional amendment went far beyond the stated purpose of treating all persons alike. The Court found that the amendment treated gays and lesbians differently by denying them the same protection from discrimination that all other citizens enjoyed.

Based upon the negative impact of the amendment solely on homosexuals and no other persons, the Court said the inevitable inference is that the disadvantage imposed upon homosexuals was born of animosity towards them. The Court said, if the constitutional concept of "equal protection of the laws" means anything, it must at the very least mean that a desire to harm a politically unpopular group cannot constitute a legitimate governmental interest as a matter of law.

The State of Colorado claimed the constitutional amendment simply respects other citizens' freedom of association. The State argued that the amendment respects the freedom of persons, such as landlords or employers, who have personal or religious objections to homosexuality.

The Supreme Court rejected the State's arguments. The state failed to identify a legitimate state interest that the constitutional amendment served. The Court said:

"[The constitutional amendment] is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Class legislation is obnoxious to the prohibitions of the Fourteenth Amendment."

In summary, a state classification must serve a legitimate government interest. Animosity toward a certain class of persons (e.g., homosexuals) can NEVER serve a legitimate government interest.

As a further note, if the classification infringes (burdens) a fundamental right or targets a suspect class (e.g., race), then the Court applies a heightened standard of review called strict scrutiny. The Court then asks the question: Does the classification serve a COMPELLING government interest and is the classification NECESSARY and narrowly-tailored to serve that compelling (not merely legitimate) interest?

I hope this post adequately answers your question. It was a good question! I'm glad you asked.

Answered and answered with a pretty good explanation. Not being a lawyer type, I certainly won't be arguing points of law with you.

Thanks. But personally, we are still setting up a situation whereby an argument can be made that no harm would come from me marrying my sister, and as such, the government has no right to outlaw it. If we, as two consenting adults, wish to marry, then what right does the government have to stop us?

When you mention that the government may exclude siblings from marrying in order to discourage incest. Would not the government be making a moral judgement about incest? What is wrong with it? Apart from religious objections there is nothing wrong with it. So how or why would the government object? We already have laws protecting minors from sex (this of course would include incest), so why protect consenting adults from marrying? The courts would have no choice but to continue down the slippery slope and allow siblings to marry.

And what about 2 brothers or 2 sisters? There would be no natural children involved, so that would eliminate the argument that the gov. is preventing defects that may be caused by close relatives marrying. So, will the government only allow gay brothers or sisters to marry? Well, now we have a hard and fast discrimination suit if two gay brothers can marry but I can't marry my sister.

Where does it end? What legit interest does the government have if two women want to marry one guy? Or vice versa? There is no legit interest. What about 3 women and two guys all marrying? Again, no legit interest of the government to stop it?

These are all questions that will come up sooner or later. All because a small group of activists want to change the historical definition and practice of marriage. And, unless all opinion polls I have seen are very wrong, a large majority in this country is against changing the definition of marriage.

Anyway, it will be interesting to see how it will come out. I'm sure many will be watching this issue closely for years to come.

Oh, and in case I did not say it earlier, thanks for the detailed response. It was interesting.

Incest causes genetic mutations, labrat, you must know that. And mutations lead to physical and mental problems which in turn lead to higher societal cost (in dollars).

Opening the Floodgates


Hi CoastalRat:

I understand your argument. Your argument is common and often referred to as "opening the floodgates." People argue, if we allow X, then we will need to allow Y and Z, etc., and where does it end--where do we draw the line?

In 1869, a woman named Myra Bradwell passed the Illinois Bar Examination. Nevertheless, she was denied a license to practice law because she was a woman. It was argued that granting Mrs. Bradwell a license would be "opening the floodgates." If one woman was allowed into a civil office, then all civil offices would be filled with women. [GASP! LOL]

http://www.lib.niu.edu/ipo/ihy980445.html

Perhaps your hypothetical argument that there is nothing wrong with consensual, but incestuous marriages will prevail, maybe it won't. But, the issue is not whether states should allow incestuous marriages; the issue is whether states should allow same-sex marriages.

I noted in my previous post--when a state makes a classification that impinges upon a fundamental right--the Supreme Court will not apply the most deferential rational basis/legitimate interest test to review the constitutionality of a state law. Rather, the Supreme Court will apply a heightened standard of review through the strict scrutiny test. The state must come forward with a COMPELLING interest for infringing upon a fundamental right, and the classification must be NECESSARY and narrowly tailored to meet that compelling interest.

The reason I made note of this in my previous post is because, in 1978, the United States Supreme Court declared that the right to marry is a fundamental right--it is a component of an individual's fundamental right to privacy (right to be free of unreasonable government intrusions into personal and private matters).

See ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978)

The Court held, since the right to marry is of fundamental importance (citing Loving v. Virginia, 388 U.S. 1), and the statutory classification involved significantly interfered with the exercise of that right, "critical examination" of the state interests advanced in support of the classification was required. The Court found that state interests assertedly served by the challenged statute unnecessarily impinged on the right to marry.

Accordingly, it is most likely that the U.S. Supreme Court will not apply the most deferential rational basis test to a constitutional challenge against state prohibitions against same-sex marriages. It is highly likely that the Court will apply the most scrutinizing test possible under constitutional law.

I wonder if State Government can articulate a legitimate interest served by the prohibition under the rational basis test let alone a compelling interest under a strict scrutiny analysis.

Existing Supreme Court cases most certainly foreshadow the results of the challenge. I doubt that an "opening the floodgates" argument will be enough to convince the Court that the prohibition against same-sex marriages should stand.

Miss Law, do you happen to know the argument in the abolition of miscegeny which was advanced by Virginia as to the Commonwealth's interest in the case you cited? Obviously, i could go look it up myself, and wade through it, but if you have a ready answer, that would be appreciated.

There is obviously a legal precedent for doing what they are in Mo. I am sure that at least one or two lawyers did some research to decide if this will stand up in court or not. In their opinion, it will. Otherwise, I doubt it would have been presented to the people to vote on.