More marriage for teh ghey

[Anastasia Beaverhausen]

I got to it on George Takei's FB feed. Fantastic, moving. Still a little agog at the star power it pulled.

[Demimonde]

It was a very moving and very intelligent play. A fantastic idea to make a stage production of a trial that should have been already made public.

I was slightly sad to see that only approximately 136,000 viewers had seen it on youtube when I first went to the link. But I was thrilled that after spending two hours watching it, that number had climbed to 189,000. I hope it continues to climb and more people can witness what happened in that trial.

[ChuckF]

Originally Posted by Anastasia Beaverhausen

Still a little agog at the star power it pulled.

Oh you fag apologists are so easy to impress with Jamie Lee Curtis, Brad Pitt, Martin Sheen, George Clooney, Jane Lynch, and other various Hollywood celebrities! But prepare to have your depraved consciousness exploded into fucking pieces when you hear The Word from The Greatest Star of Them All.

[BrotherMan]

[LadyShea]

North Carolinians!? What is your Governor trying to say that she won't say? I no unnerstand her fargin point!

“We have a very clear statue on the books that defines marriage in North Carolina as being between a man and woman, so today’s vote, though some of the extremists have labeled it as about marriage between a man and woman, it’s about civil rights. It’s about taking away rights of North Carolinians,” she said.

“It’s very important to me that the folks in North Carolina who have not cast their ballot understand that this constitutional amendment takes away a lot of civil liberties, civil rights. It’s not about gay marriage,” Perdue said. “That is not what this issue is about. We have a statute on the books. So for the voters in North Carolina, don’t be confused. Go in there and vote no.”

Read more: N.C. Gov: Gay marriage ban ’hurts our brand’ - Mackenzie Weinger - POLITICO.com

If it's not about gay marriage what it is about? Why is the statute okay but the amendment not?

[ChuckF]

She's right because the amendment is so horribly drafted. It has basically nothing whatsoever to do with gay marriage or the statute. It uses this bizarre "domestic legal union" term that has never been used in North Carolina law before. It will do absolutely nothing to change the state's ban on gay marriage. Heterosexual couples who are not married will also be adversely affected. Mainly, it will deprive children of domestic partners who receive insurance benefits from certain municipal employers of insurance coverage. It will also prevent future legislation recognizing civil unions. Oh, and also it will probably deprive abused women who are not married of certain legal protections (unless, of course, they marry their abuser.) The talking point is that it will prevent a judge from striking down the state law as unconstitutional, because it probably is. It would bind state judges, but a judge hearing a federal constitutional challenge could still strike down the law. And the amendment, for that matter. So that's a lie. Here is a look at some of the possible consequences of the amendment.

A shocking proportion of North Carolina voters mistakenly think that the amendment is just about gay marriage, and support it because of that. Once they learn what the amendment says, and that it precludes any legal recognition of relationships other than marriage, support drops.

[LadyShea]

So amendments can be struck down as unconstitutional as well?


Thanks for the explanation. I wish the governor had just laid it out clearly, because it sounded like she was weaseling or trying to hide that she didn't know what was going on or or something.

[ChuckF]

Absolutely. State constitutional amendments can violate the federal constitution. Romer v. Evans.

[LadyShea]

Now, can someone please explain to me how these bans are NOT prima facie unconstitutional?

They are inherently government religious endorsements. There is no non-religious argument against gay marriage and there is no compelling state interest in what genitalia people applying for a license have.

[Ymir's blood]

Of course it's not about religion. It's about banning things that ten year old boys find icky, just like the War on Women.

[ChuckF]

Originally Posted by LadyShea

Now, can someone please explain to me how these bans are NOT prima facie unconstitutional?

They are inherently government religious endorsements. There is no non-religious argument against gay marriage and there is no compelling state interest in what genitalia people applying for a license have.

I can try, but it's going to be in a pretty lazy way, because of lazy.

It comes down to the level of scrutiny that judges apply when reviewing legislative acts that discriminate for constitutional issues under the equal protection clause or due processes clause of the fifth and fourteenth amendments.

The lowest level of review is called "rational basis." This is basically a minimal level of review: all the legislature has to do is make sense. The law simply has to be a reasonable way to obtain an objective. The objective doesn't have to be a good or even legitimate one, just a conceivable one. This is very deferential to the government, and the challenger bears the burden of proof.

The second level of review is called "intermediate scrutiny." In order to pass intermediate scrutiny, a legislative act has to be substantially related to an important government purpose. The government's goal has to be more than legitimate - it has to be important. The courts will also look at the actual purpose of the legislation, as opposed to the more deferential rational basis review, which looks at any conceivable basis. The means employed by the legislation to achieve the actual objective must be substantially related to the goal, or "narrowly tailored." So what the legislation actually does has to be a good way to achieve the objective. It does not have to be the least restrictive alternative. The government bears the burden of proof to be show that the legislation is substantially related to an important government purpose.

The third and most rigorous level of review is called "strict scrutiny." A law passes strict scrutiny review if it is necessary to achieve a compelling government purpose. The government's objective has to be more than just legitimate or important - it has to be compelling, or crucial, or vital. The actual purpose will be considered by the court. Unlike intermediate scrutiny, the means used by the legislation have to be necessary to achieve that compelling objective: they have to be the least restrictive means of achieving that objective. The government bears the burden of proof to show that the legislation is necessary to achieve a compelling purpose.

So when do courts use which level of scrutiny? This is a big question, so let's limit it to fifth and fourteenth amendment issues. Typically, if a regulation is purely economic in nature, rational basis scrutiny will be applied. In an equal protection analysis, like laws banning gay marriage will probably face, there are a few questions to answer. The guidance comes from footnote four in a 1938 case called Carolene Products. Basically, levels of scrutiny higher than rational basis should apply when laws are passed that interfere with fundamental rights, are facially discriminatory, distort the political process, or discriminate against discrete and insular minorities that lack the political means to defend their own interests. These are called suspect classifications.

In the case law, race and national origin classifications are typically subject to strict scrutiny, which usually amounts to fatal scrutiny, at least since 1944. Laws that provide class-based remedies to benefit racial minorities (like affirmative action) are subject to a slightly looser version of strict scrutiny. Laws that discriminate on the basis of gender are typically subject to intermediate scrutiny. Laws that discriminate against non-marital children are generally subject to intermediate scrutiny. Laws that discriminate against non-citizens are typically subject to strict scrutiny, with a lot of exceptions (i.e. if Congress does it, rational basis scrutiny applies). Lots of other types of discrimination are subject only to rational basis review. Laws that discriminate on the basis of age, disability, wealth, and sexual orientation all face rational basis scrutiny.

For now. In Romer, the Court considered this Colorado amendment:

No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Take a second to read that twice, think about what it does, and then realize how stupid it is. This failed even rational basis review, because the amendment had no relationship to a legitimate government interest. He's right: it was a supremely weird amendment, singling out people on the basis of a single trait (like, having red hair), and then imposing a constitutional penalty upon them. The decision is basically the court going WTF.

Then in 2003, along came Lawrence v. Texas, which invalidated sodomy laws. Kennedy complicated things a little bit by using the language of rational basis review in his opinion, while apparently applying an incrementally higher level of scrutiny. So nobody is quite sure what level of scrutiny should be applied to these discriminatory amendments and laws.

This is why it's important for bigots to characterize homosexuality as a choice rather than an immutable characteristic: if it's a choice, then homosexuals are not a discrete and insular minority, and not a suspect class, so rational basis scrutiny should apply. But as you point out, it's pretty hard to come up with a legitimate (let alone important or compelling) government objective in keeping same-sex couples from getting married. Proposition 8, for example, failed even rational basis review. Recognizing civil unions makes the task of the bigots more difficult - if there's a legitimate objective to prevent same-sex couples from marrying, why isn't it defeated by recognizing civil unions with the same substantive rights and benefits as marriage? They are left, like bigots before them, to advocate for separate but equal. Some states, like California, recognize sexual orientation as a suspect class for state constitutional jurisprudence. We're not there yet in federal constitutional jurisprudence.

[LadyShea]

If that's lazy your applying yourself must be something to see, thanks, Chuckles

[LadyShea]

The decision is basically the court going WTF.

Is it worth a read?

[ChuckF]

Oh, totally. Also worth the read is Scalia's dissent. It is wonderful writing. Also, he is deeply afraid of gay people.

If you saw me apply myself, you would shit your pants in ecstasy and fear. That's why I don't apply myself very often.

[LadyShea]

Gay people are very scary! All gay and homosexual and stuff...fearsome!

BTW, Kiddo said it is wrong to prevent people getting married to whomever they want (watching Glee leads to discussions of the gay). So, in case you needed any more convincing.

[LadyShea]

Originally Posted by Justice Kennedy

Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

LOL

[Watser?]

I have had a gay people crush a confetti egg on my head! How's that not scary and unreasonable and full of agenda?!!

[erimir]

You know, I assumed that the gay marriage ban would pass from the get-go, despite hopeful signs that if NC residents knew what it actually would do they would vote against it.

But I have to say I'm even surprised at how high the margin is... supposedly around 60% of North Carolinians support gay marriage OR civil unions according to polls with only 30 some percent opposing having any recognition at all. Yet the amendment is passing 61%-39%.

[One for Sorrow]

So I guess now you have no choice but to marry a woman who can pop out lots of white babies? Be sure to send me an invite!

The whole thing is so fucking

[LadyShea]

I have to assume opponents are ready with test cases to challenge it? Is it possible that it won't go to court at all?

[ChuckF]

Durham County is one of the municipal governments that extends insurance benefits to domestic partners and children. The County Commissioners have resolved by a 5-0 vote that they will continue doing so without regard to the amendment.

[LadyShea]

That sounds like a direct challenge, lol, I look forward to seeing how that goes. Were common law marriages previously recognized?

[ChuckF]

Nope. NC doesn't recognize common law marriages within the state, but it does recognize valid common law marriages created in other jurisdictions, so long as those marriages substantially satisfy the statutory requirements for marriage in NC.

[LadyShea]

So if they didn't recognize common law marriages, didn't have a civil union law, and already outlawed same-sex marriage, why a special Amendment? What it a special vote too, just for this?

[ChuckF]

Originally Posted by LadyShea

So if they didn't recognize common law marriages, didn't have a civil union law, and already outlawed same-sex marriage, why a special Amendment?

Because Jesus? It's not really clear because the reasoning is so muddled and stupid. The one I've heard most frequently is to make sure that SOME LIBERAL JUDGE can't "change the law" (where "change the law" means "find the law unconstitutional"). Of course, this amendment doesn't actually do that, as I discussed before. It's hard to tell to what extent that is just ignorance and to what extent it is a figleaf for homophobia. In any case the rationale boils down to: God hates fags, so the Constitution should too. And also women, because gross.

I just want to make sure you guys recognize that this is TOTALLY DIFFERENT from an 1875 amendment to the North Carolina Constitution (click the full screen to see the amendment to article fourteen):

What it a special vote too, just for this?

Nah, it was on the regular primary ballot.