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lawyerly types, explain something to me
So I was reading this:
and it occurred to me that arguing that because THE GAYS aren't specifically mentioned in laws regarding marriage (except in recent odious instances like Prop 8), they are necessarily barred from marriage
reminds me a lot of the Susan B Anthony trial, when she voted because THE WOMEN weren't specifically banned from voting
and being citizens, wouldn't you assume that they had the rights of all the other citizens?
Didn't we all kind of snigger at the mental gymnastics it took to say that Anthony had broken the law when she cast her vote, as a citizen of the US and not banned from doing so?
(Didn't it seem as ridiculous as declaring "All men are created equal" while keeping slaves?)
Anyway, I thought everyone was in general agreement that by holding all citizens equal, you don't get to apply the laws to some groups on not others.
Do the mental gymnastics necessary to declare that the law applies to one group, but not another, even when it doesn't say anything of the kind, have a legal basis?
(What would happen if Anthony's case were retried today?)
And aren't those opposed to marriage equality actually the ones redefining marriage? Quite literally?
Do I not understand how laws work?
"The meek shall inherit the earth" isn't about children. It's about deer. We're all going to get messed the fuckup by a bunch of cloned super-deer.- samfish2bcrab
Sometimes I wonder if scientists have never seen a sci-fi movie before. "Oh yes, let's create a super species of deer. NOTHING COULD POSSIBLY GO WRONG." I wonder if State Farm offers a Zombie Deer Attack policy. -CaliopeSpidrman
Re: lawyerly types, explain something to me
I don't follow a lot of your question, because I'm not familiar with the particulars of Susan B. Anthony's case, and I think most marriage laws do require that the marriage be between a man and a woman.
Regardless, the equal protection clause of the Fourteenth Amendment is how the promise of "all men (and women) are created equal" is supposed to be kept. If a law distinguishes between classes of people it is subject to some level of scrutiny depending on the distinction that is made (race, sex, national origin, etc.) and there must be anything from a "compelling reason" to a "substantial reason" to a "reasonable basis" for the distinction for it to be upheld. I'm wildly over-simplifying here, by the way.
My understanding is that the California court held that there was no rational basis for denying gays and lesbians the right to marry, that Prop 8 served no legitimate government interest, and was borne out of animosity toward gays and lesbians.
In Anthony's case (I think it was in New York), the law said that any citizen over whatever age and residency could vote. So she did. And got thrown in jail. And you should read the case because her testimony was amazing (basically: I've always had the right to vote. I'm a fcuking citizen, morons). Also amazing was the mental gymnastics that said she couldn't vote because although the law didn't say men specifically, it didn't say women and because women couldn't vote traditionally, of course she was excluded. And I assumed (wrongly?) that the proper response to that was a huge snort because wtf? justifications like that aren't supposed to have any place in law.
I don't know about California, but in Oregon (before we passed our own odious amendment), Multnomah county looked at the actual law and it said fuckall about marriage being between a man and a woman, just about it being between legally consenting adults who aren't first cousins. So it would seem to me that marriage here would have always been open to THE GAYS even before you get to the point of not being able to pass laws that apply to one group and not another.
And looking at the "narrow" decision by the 9th court, I'm wondering how any judge could get around the mental gymnastics to claim that laws like DOMA aren't in fact redefining marriage to deprive some citizens of their rights. If it's narrow because we can't pass laws to take away rights (and not that we have a duty to expand them to all), wouldn't that be the case in all states before these stupid amendments and DOMA were passed?
Unless of course, I'm misguided and Anthony's case was decided rightly because it wasn't depriving her of her natural rights, just failing to expand them.
"The meek shall inherit the earth" isn't about children. It's about deer. We're all going to get messed the fuckup by a bunch of cloned super-deer.- samfish2bcrab
Sometimes I wonder if scientists have never seen a sci-fi movie before. "Oh yes, let's create a super species of deer. NOTHING COULD POSSIBLY GO WRONG." I wonder if State Farm offers a Zombie Deer Attack policy. -CaliopeSpidrman
I'm not fully awake yet, and must admit that I know next to nothing about Anthony (and embarrassingly first thought: what does that chick who killed her kid have to do with gay marriage?) and had a hard time understanding the Slate article.
I suspect that the problem would be that municipalities would decline to issue marriage licenses even in states that did not define marriage as between man/woman or that have not included that language now and would argue that the reasonable understanding of marriage is man/woman based on history and tradition. That's just a guess.
I think the idea is that all people have a legal right to be married (gay or not) but only have the right to marry people of the opposite sex. So, tadda! when you look at it that way all people DO have the right to get married but just like some states say you have to be a certain age or can't marry your first cousin, these prop 8 style laws say it has to be someone of the opposite sex and it applies to all citizens equally.
Now just so I'm clear, I think it is a ridiculous argument and I don't understand why people care so much what gay and lesbian people are doing.
Married 10/24/09
BFP #1 5/20/11 ... M/C confirmed and D&C 6/28/11
Dx: LPD - 2 TI clomid cyclels & 2 clomid IUI cycles = BFN
BFP #2 6/29/12!!!!... Beta #1 - 70... Beta #2 - 164
I guess that's essentially my question. Is it really a good legal argument to say, okay that's not what the law *says* but it's how it's always been applied, so although there is no good reason (which is what the Slate article was getting at) to interpret it to allow less rights, we're going to do that anyway? I had the weird impression that that wasn't how it's supposed to work.
I love Dahlia Lithwick, but I have to really focus to get her usually. It was so hard when she was NPR.
Ugh, BikeBride, that makes me so ragey. If anything shoes the shallowness of the anti-marriage equality side, it's that smarmy, condescending "oh but you have all your rights" position. SMASH.
"The meek shall inherit the earth" isn't about children. It's about deer. We're all going to get messed the fuckup by a bunch of cloned super-deer.- samfish2bcrab
Sometimes I wonder if scientists have never seen a sci-fi movie before. "Oh yes, let's create a super species of deer. NOTHING COULD POSSIBLY GO WRONG." I wonder if State Farm offers a Zombie Deer Attack policy. -CaliopeSpidrman
Courts do generally look to history and precedent, and yes even dictionaries, in interpreting statutory language.
I find Ted Olsen's role in this whole thing surprising and awesome.