[wpietri]

Untrue. If you read Judge Walker's decision against Prop 8, or the recent judgment against the Michigan Marriage Amendment, you'll see that both Prop 8 and the MMA failed because they violate the 14th Amendment's grant of equal protection: http://en.wikipedia.org/wiki/Equal_Protection_Clause

In particular, both Prop 8 and the MMA failed to meet the Rational Basis test: http://en.wikipedia.org/wiki/Rational_basis_review

That is, both courts found that there was no rational basis for keeping gay people from getting married. The rationales offered by proponents didn't measure up.

[fakeanon]

>All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Proposition 8: Section I. Title

        This measure shall be known and may be cited as the "California Marriage Protection Act."

    Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

        Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

Which part of this denies equal protection to someone under the laws?

[wpietri]

The part where gay people are treated as not as good as straight people. The state has a legitimate interest in promoting marriage. Basically, because families. If you want to exclude gay people from that, you can't just presume they're inferior. You have to demonstrate it.

[oberto]

Untrue. Courts have also upheld many Prop 8-like measures in other states - see Nebraska's Initative 216, which the Eighth Circuit ruled was acceptable (http://en.wikipedia.org/wiki/Citizens_for_Equal_Protection_v...). So the courts disagree, and you cannot simply cherry-pick the "right" cases where the preferred side wins, to say that courts (who are always right) support you.

And ultimately, the courts are decided by majority vote, by being appointed by politicians that citizens vote for. A Supreme Court in Russia may find a rational basis for opposing gay marriage, and then write that in an opinion.

[wpietri]

As far as I know, no recent court has found that there is a rational basis for anti-gay-marriage laws. The Nebraska decision hauled up a 1972 decision, back before much of the science was in. And the entire point of Prop 8 in specific was to strip a right from gay people by amending the CA State Constitution, so I'm going to stand by my assertion that marriage redefinition is not what's going on here. Indeed, it's Prop 8 that explicitly redefined marriage here.

[hackinthebochs]

I voted for gay marriage in the last election in my state, but honestly that rationale seems extremely strained. Yes, government has a legitimate interest in defining marriage as it confers certain benefits to certain people. The "rational basis" test should not be one that questions the validity of the exclusions/inclusions within the law, but rather if the government has a legitimate interest in law in question. It should not have been the burden of the proponents to prove that the government had a rational basis for excluding gays from marriage.

[wpietri]

If you think that's the case, then work to appeal the 14th amendment, which grants all people, including gay and lesbian ones, equal protection before the law.

Seriously, go and read the decision on Prop 8, or the recent one on the Michigan Marriage Amendment. Both are clear and readable explanations of why gay people start out equal, and if you want to make laws against them, you have to prove that there's a rational basis for the state to do so.

[hackinthebochs]

>Both are clear and readable explanations of why gay people start out equal

Not being able to marry a same sex person is not "not equal" (pardon all the negatives). The fact that we have to rely on judges to offer strained arguments to cause any meaningful cultural shift is a bug in our system, not a feature. Judges should not be seen as the savior of the republic. The proper place for this to change is through legislation. All of this is assuming the definition of marriage being between a man and a woman was ever codified into law before this became a point of contention--not sure if I've ever actually seen such a thing.

[wpietri]

There's no mystery here. Everybody starts out equal before the law. To pass a law that singles out a group of people, you have to at least have a rational basis for doing so. If the state is going to have civil marriage, then to exclude gay people from it, you need a rational basis for doing so. There isn't one. The majority doesn't get to have an opinion on whether group X is deserving of the right of equal protection; it they could it wouldn't be a right.

Regardless, in the case of California, gay people could get married before Prop 8, so if you are worried about redefining marriage, it's Prop 8 that should be your problem.

[hackinthebochs]

>Everybody starts out equal before the law

Yes, gays were certainly free to marry opposite sex people if they chose to.

>you need a rational basis for doing so

Government has an interest in promoting "positive" social policy through the power of taxation. Seems like a rational basis to me. The question then becomes is an opposite sex marriage more beneficial to society than a same sex marriage. This is something that should be decided directly, not through the rational basis test.

According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.

[wpietri]

> Yes, gays were certainly free to marry opposite sex people if they chose to.

This is a glib, assholish way of putting a point, a point that makes no sense if you phrase it more clearly. Civil marriage is about two people deciding to form a partnership together. For example, you could claim that an interracial marriage ban is perfectly equal, because a black person can marry any other black person they want, and a white person can similarly marry a white person. But that's gluing a thin paper smiley-face on over a white robe and hood; it deceives nobody.

> This is something that should be decided directly, not through the rational basis test.

I can't imagine what you mean by that. The rational basis test requires that laws have a... rational basis. That's a pretty low bar. If you read the MMA decision or the Federal Prop 8 decision, you'll see that those trying to prevent gay marriage had no rational basis for doing so. In particular, they could demonstrate no harm to society. They tried, but the science wasn't on their side.

> According to the links posted in a sister comment, gays could have civil unions in california, prop 8 just codified that they wouldn't be called marriages.

That is incorrect. Prop 8 initially stripped all marriage rights, exactly as it was intended to. The proposition was necessary because California's constitution provides for equal protection, so a constitutional amendment was required to make an exception so that gay people could be treated unequally.

Once it made it to the CA Supreme Court, civil union rights were restored, and it was only the term "marriage" that was left as a sop to the will of the voters. But even that was seen -- correctly in my view -- as a violation of the 14th amendment.

[dnr]

I'm curious what you think of this line of reasoning:

http://www.volokh.com/2012/02/07/same-sex-marriage-bans-and-... http://www.slate.com/articles/news_and_politics/jurisprudenc...

[hackinthebochs]

I'm not a fan of that reasoning. When framing the question in terms of "marrying opposite sex", it cannot be concluded that this rule violate equal protection (men and women are equally allowed to marry the opposite sex). When framing the question in terms of what an individual can do (Jane cannot marry Susan whereas John can), then it appears you violate equal protection. This scenario tells me one thing: that this reading of the issue is missing critical nuance.

Whenever a rephrasing of an issue can lead to the opposite conclusion, its clear that critical nuance is being stripped away. The fact is a marriage is a coupling of (at least) two people; one cannot meaningfully speak of an action of marriage of a single person. So framing the question in terms of what an individual can/can't do seems to be the error. Restrictions on marriage can only be meaningfully applied to the set of all individuals involved; and there is no way to phrase it in this way that leads to an equal protection violation.