Now that California has made motions to legalize gay marriage is it likely for a group of states to come together and push a bill legalizing it before a vote for a ban ever comes to a vote in Congress?

I don't really know how to respond to this, since the judge's decision is for California alone.

Is Judge Kramer within his right to lift the ban on gay marriage in California? Also, do you believe he truly has the best interests of everyone at heart? Why or why not?

Yes he is. Our country is a democratic republic, created to ensure that the public elects officials to create laws. But three branches of government were established to maintain a system of checks and balances: the legislative, the executive, and the judicial. The judicial is the check and balance for the other two--it's primary purpose is to determine whether or not what the legislature does is constitutionally valid.

Frankly, I'm tired of the term "judicial activism" because it incorrectly labels the judicial system as flawed. I've listened to Sean Hannity and Mark Levin talk ad nauseam about how unelected judges (untrue, really, since judges are elected by our elected representatives) are legislating from the bench. This misinterpretation of the judicial system creates a very negative view of judges, as evidenced by the hostility on display in blogs and even these forums. It's a frightening thought should judges ever need to politicize their decisions to keep their jobs.

I think there are bound to be people who feel he does not have the best interest of everyone at heart. Proposition 22 passed with a 60% majority, which means 60% of Californians are now angry. But the role of a judge is to examine the cases which are brought before him--he can not simply pick up any cause and decide whether or not it is valid. Since Mayor Newsom brought this case before the judicial system, Judge Kramer decided that Prop. 22 is unconstitutional. It is fully within the rights of the California public to create a constitutional amendment similar to Prop. 22. There is your system of checks and balances at work. If you don't like it, write to your Founding Fathers and complain.

Do you support the actions nullifying the ban? Why or why not?

Personally, I do. As gender is considered one of the many immutable traits (along with race, ethnicity, etc.), Proposition 22 is invalid. Marriage, as written, declares that discrimination occur on a gender level (not on a sexual orientation one). It does not say one straight man and one straight woman may marry. Since the law is gender-based, it is unconstitutional to prevent one man from marrying one woman.

And spare me the insensitive and wrong-headed arguments of slippery slope theory. This will not lead to bestial marriages, since that implies an animal can be called human. It can not. An animal can not say "I do" or sign a marriage contract. Frankly, even comparing the two proves the lack of substantive ground opponents to gay marriage have. There are preclusions to marriage, such as incest, mainly because procreation in such cases can and often does result in harm caused on children. That is a biological and genetic fact. Since two men can not procreate, no offspring can be created. Thankfully, procreation is not a requirement of marriage.

Will activists who support traditional marriage manage to appeal and win back the ban on gay marriage in California? Why or why not?

Not unless a constitutional amendment is passed.

*edited to correct Levin name--said Carl, should be Mark*

From this thread hayleyanne:


Now the "if it has a reason" part is where you are incorrect because the language in this clause is very clear here. We are NOT dealing with the US Constitution, we are dealing with the State Constitution and the State Laws.

The text does not anywhere allow for different treatment if the government has a reason, whether there is a precedent or not - in fact it specifically forbids it:


You are trying to argue against gay marriage in a general way Hayleyanne, citing the US Constitution, why it is wrong morally, etc. You are however completely ignoring our state constitution which is very clear on this matter. The question was not whether gay marriage is unconstitutional on a federal basis, it was whether it is unconstitutional in the state of California. This clause makes it unconstitutional - end of story.

You can claim we are weird all you want to, but the simple fact of the matter is this has been in our Constitution for quite some time and the judge in this case was doing his job, he was not taking an activist position.

To come to hayleyanne's defense here for a moment, the case was argued on the basis that the statutes violate Art. 1, Sec. 7 Subd. (a)... not Subd. ( b ). Also that they violate Art. 1, Sec. 1. And she is right... precedent illustrates that the State can exclude a class of people if there is legitimate State interest in doing so. This judge ruled using the strict scrutiny test, although he states and illustrates that using both tests (rational basis and strict scrutiny) the statutes fail to meet constitutional muster. Regarding the strict scrutiny test, this is how it works.


He basically examined the precedents that were put forth by the State and came to the conclusion that these precedents did not illustrate that the State has a legitimate interest in limiting marriage to opposite sexes for the purpose of procreation. He goes further and states that even if a compelling interest in procreation existed, under the strict scrutiny test, the State has to prove that the laws are not arbitrary but are necessary to further its purpose.

This is what he finds:

I'm going to ignore the "crazy" thing and get back to the debate proper:

You've stated that constitutional interpretation is the principle for determining whether or not a given law should be overturned. You've stated that some laws are in fact unconstitutional. What you've failed to provide is why you think this law is not unconstitutional (California). There appears to be no rational basis to proscribe same-sex marriages in the California constitution. Given that you seem to be a textualist and believe that laws which are unconstitutional should be overturned, I would think you would be lauding this decision. If not, then please make your case about why same-sex marriage can be explicitly proscribed in California.

To come to her defense, yet again, she has. She believes that the precedents presented by the state establish a legitimate State interest in marriage for the purpose of procreation. She is wrong, but she does provide her opinion on the subject.

Here is one of the reasons she is wrong:

1. In using the Baker v. Baker (1859) precedent, the State tried to prove that procreation is a legitimate State interest regarding marriage because of this line in the precedent (which they used out of context), "...the first purpose of marriage, by laws of nature and society, is procreation. A woman, to be marriageable, must, at the time be able to bear children to her husband..."

Sounds pretty cut and dry, doesn't it?

The problem with this is that the line, taken out of context, ignores the intent of the paragraph, which was to illustrate that the annulment was based on the concealing of the woman's condition and not to establish that the first purpose of marriage is procreation. Much of the paragraph talks about assumed paternity and how this man would, because of this woman's deception, be burdened with an illegitimate child, the procreation line above is mentioned, followed by a statement regarding how a woman's "purity" is essential to the existence of marriage. It concludes:


This precedent states that -- despite the first purpose of marriage being procreation (this, again, was in 1859 and this purpose was reflected in the laws at the time) and despite the fact that this meant that a woman must be in a condition to procreate at the time of marriage -- in the end, "a party can enter into a marriage with someone who can't produce children as long as that party voluntarily and deliberately does so." And, the intent of the precedent was not to establish a legitimate State interest, but to establish that, when entering a marriage, the concealment of a pregnancy by another man from a husband is fraud and grounds for annulment. The fact that the precedent references a legitimate State interest is not enough, because it does not prove that the same legitimate State interest exists today -- and history, in and of itself, is not enough.

This is how Kramer interpreted the precedent and it is the type of interpretation a textualist dreams about.

First off, entspeak, I appreciate your clarifying how the argument I am making runs. You do understand exactly what I am saying. Logophage and CJ-- entspeak hits it on the head in his explanation. The California equal protection amendment does not forbid laws that treat different classes of people differently if there is a rational basis for doing so.

We appear to be at loggerheads over whether Kramer's opinion, that the state has no rational basis to limit marriage, is correct.


Now, on to your points entspeak. I want to try and respond fully as you have put forth a strong and fair argument for why the Judge's opinion is correct.




Yes, you have described exactly the rationale Kramer used in reading the precedent. He took this same view with all the cases cited by the State: that the court (in each case) was dissolving the marriage because of a fraud that was perpetrated on one of the parties.

But this leaves me unsatisfied. How can a court find "fraud" unless there was an essential (or significant) element of the contract that was being misrepresented? What was the "element" that was misrepresented in the Baker case? Did it not at least relate to procreation? Please answer this question. Even if the element only related to procreation-- does that not show that the marriage contract contemplates that the parties will likely expect to have children? I.E. if I get married and find out the my husband can't father children and I want a divorce-- I have grounds.

All that the State needs to show is that the statute has a rational basis. Is it not rational to limit marriage to a man and a woman, when the california courts themselves have recognized that a significant element of marriage is at least related to procreation? That is what I do not "get". It is like Kramer is refusing to acknowledge that procreation has had any role in these fraud cases. I mean, fraud can't exist if a party misrepresents an element that is not significant. EX. When I married John, he said he was a U-Mich fan-- now he says he is a Mich State fan-- I need to have the marriage dissolved because he misrepresented his views on this. Of course that can't work.

The reason these cases held that the marriages could be dissolved is because they were "fraudulent"-- is it not disingenuous then to ignore that the elements misrepresented in those cases were related to procreation?

That is my beef with how Kramer read the precedent. I understand that times have changed. Heck, we don't need grounds to dissolve a marriage contract anymore. But that is not the point. The point is that when people did need grounds-- a misrepresentation about an element relating to procreation --- was sufficient.


I actually think the State was creative in using this argument. Think about it. They knew how the court in Goodridge had blatantly held that the marriage statute had failed the rational basis test on the basis that procreation is not linked to marriage. So the State sought to show how the courts themselves had acknowledged the importance of procreation to the marriage contract. Of course, they were slapped down by Kramer who refused to see anything other than general "fraud" blatantly ignoring what the basis of that fraud was.



This I do not agree with. I think the term "textualist" is being bandied about very loosely with no respect to its meaning.

Earlier in the topic I asked you this question. I responded to a similar question from you as you placed great import on it. However, you chose not to respond to my question which was:

Source: Post #72

However, later you answered this question in a post responding to Entspeak:

Source: Post #84

So it would seem that we all agree that there is no rational basis to restrict homosexual couples from marriage because there is no legal connection between procreation and marriage.

But then you go on and make the fraud argument again, in regards to annulment cases. However, as I stated earlier in the thread:



Notice that there are all sorts of grounds for annulment. Procreation is one. However, it is NOT that enough that a person cannot have children, that person had to misrepresent that fact to the other.

Now, back to the equal protection argument.

I think it is safe to say that both parties entering into a homosexual union do so with both knowing that they cannot have children together though traditional means.

If a heterosexual couple enters into a union both knowing they cannot have children together through traditional means then there are no grounds for annulment.

Since we allow heterosexual couples to enter into a marriage, knowing that they cannot procreate then we cannot restrict homosexual couples from entering into the same type of marriage without violating the equal protection clause of the California state constitution. This is because we are allowing one class of citizens (Heterosexuals) to enter into marriage without the ability to procreate while restricting another class of citizens (homosexuals) from doing the same.

source

Section 7.A. Has been referred to by some to suggest that the state can in fact treat different classes of citizens differently if there is a rational reason. I do not see the mention of a Rational basis in this section at all. And my reading of the above would seem to suggest that the bulk of section A applies to public schools alone. However, for the sake of argument lets say that the state can in fact do this if there is a Rational basis for such unequal treatment.

So this begs the question: What is the Rational basis for the state to restrict homosexual couples from marrying but not barren couples?

IMHO for the state to avoid the violation of the equal protection clause and NOT allow homosexual marriage you would have to also ban all marriage where the members entering into the union cannot have children together.




OK, well in another topic you said:



So, based on the above I am confused. This begs the question: Where does the California decision vary from the above?

I just don't see where the law is not consistant with the California Constitution. Unless people are limiting "to contain all that it fairly means" to what they personally believe, or restricting the application of the word "fairly" to their own moral views.

At another time you further expanded on the subject of interpretation to included the following. It appeared to me at least that you agreed with it as well



This then also begs the question. How is the ruling in this case 'wrong' or improper when compared to the above quoted concept, that I believe you support?

Significant and essential are not words that are mutually exclusive -- something that is significant is not necessarily essential. Something of significance can be considered essential, but it doesn't have to be. It's a matter of degree. This is an important distinction to make in the law. Some states require an essential element, California does not... it requires only that the element be significant. While this does include essential elements, it also includes lesser, but still significant elements. But for the sake of argument, let's say that California does have a requirement for an essential element. This is why that doesn't matter:

---------------------------------------------------------


This would be true if Kramer used the rational basis standard to make his decision. He did not.



As for the other precedents:

Vileta v. Vileta (1942): The woman lied about her infertility, is this grounds for annulment? Yes, but only if the man acts promptly. If he chooses to ignore or accept the fraud when it is discovered, there is no grounds for annulment. The State would allow them -- force them -- to remain married despite the woman's infertility, if the man did not act promptly upon the discovery of this fraud -- meaning that if he accepted it, he couldn't later change his mind. This precedent, like the first, does not establish that the State has a legitimate interest in limiting marriage for the purpose of procreation. If it did, there would be no conditions set regarding the annulment based on the fraud. So, with the full knowledge of the State, a couple can remain, or be forced by the State to remain, married despite the fact that procreation will never occur.

Schaub and Security First National Bank v. Schaub (1942): A woman marries an older man for money and property and is never intimate with him, she continues a sexual relationship with her previous boyfriend in an "open, flagrant and continuous manner." This precedent has nothing at all to do with procreation as a purpose of marriage, but adultery and misrepresentation of the fact that she was going to stop having sex with her boyfriend and start having sex with her husband when she married him.

Sharon v. Sharon (1888): "Concerned with whether a contract that provided that there relationship would be kept secret for a period of time was a marriage under California law. The union had not been solemnized in a ceremony, but the parties' agreement and their behavior indicated consent to many of the rights and obligations of marriage." This precedent really has nothing to do with procreation as a purpose of marriage. The Court in this case did, however, quote from a treatise, Stewart on Marriage and Divorce, stating that, "the procreation of children under the shield and sanction of law" is a purpose of marriage. But these were the words of a treatise, not the Court, and not related to the issue put before the court.

Hultin v. Taylor (1970): "An action to recover money spent by the plaintiff on his former wife's house." What does this case have to do with procreation? Nothing. The actual annulment case mentioned in this precedent (not used most likely because it occurred in a different state -- I don't know, but it seems logical to make that assumption) is only mentioned "in passing as one of the facts in the case. Hultin cannot support the argument for which plaintiffs cite it."

In Re Marriage of Liu (1987): Wife's sole purpose for marrying was to get a "green card" in order to remain in the United States... woman had no intention of having sexual relations with her husband... Marriage annuled because the husband's consent to marry had been obtained through fraud. No mention of procreation at all in this case.

So, these are the cases put forth by the State to establish a legitimate State interest in limiting marriage for the purpose of procreation.

Both Baker and Vileta acknowledge that, depsite full knowledge of the condition by the State, a couple can be married -- and, in fact, can be forced by the State to remain married -- with no possibility of procreation. If there were a legitimate State interest in limiting marriage for the purpose of procreation, this would not be the case. And if the courts in these cases were going to force a man to remain married if he did nothing about the fraud when he first found out about it -- despite the fact that the woman could not procreate, did they express the notion procreation was essential to the marriage?

Schaub, Hultin, and Liu have nothing to do with procreation as a purpose of marriage.

Sharon, while mentioning procreation as a purpose of marriage does not, because of the intent of the case, establish procreation as an essential purpose of marriage, nor does it establish a legitimate State interest in limiting marriage for the purpose of procreation.



But do the precedents establish that there is a legitimate State interest in limiting marriage for the purpose of procreation? The state does not have to show that procreation is or was important to marriage -- it has to show that it has a legitimate interest in limiting marriage for the purpose of procreation. The precedents presented by the State fail to do this. To pass the strict scrutiny test, the State also has to show that, if a legitimate interest exists (which they already failed to prove), making such a distinction is necessary to further this interest. Assuming that such an interest existed, the State could provide no proof whatsoever that making such a distinction was necessary to further this interest.

Entspeak wrote:








Maybe this is where we are having some disconnect. It is not that the State is limiting marriage for the purpose of procreation. Rather, it limits marriage for reasons related to procreation: to enforce paternal obligations; to protect women and children; and to promote a stable family environment in which children (the likely product of heterosexual relations) can be raised. Such a reason IMO is not irrational.



The game is over once a judge says that strict scrutiny applies. No law ever ever passes strict scrutiny. I guess I shouldn't say never-- I think the only one was in a case called Korematsu where Japanese were restricted in detainment camps.

I see. If this is the case, which it isn't because this is how the State characterized it in this case -- they argued that:




... but if what you state is the case, how do the precedents presented by the State illustrate the importance of limiting marriage for these reasons? If it isn't about procreation as a purpose in marriage, but rather reasons related to procreation, how do these precedents apply?

If the possibility of procreation is essential to marriage, you can't have marriage without the possibility of procreation. If the State can't show that procreation is essential to marriage -- meaning that you can, indeed, have marriage without the possibility of procreation -- then it is unreasonable to use procreation (and all the reasons related to it) as a reason to limit marriage.

The precedents show that even back in 1859 and 1942 -- when marriage was all about procreation... all the laws making it primarily about procreation existed when these cases occurred -- even then the courts acknowledged that it wasn't essential... a person could remain in a marriage if there was no possiblity of procreation.



Do you feel that the strict scrutiny standard does not apply in this case? If you do, please explain why and how Kramer was wrong in applying it.

(1) Entspeak all the reasons I listed above, illustrate legitimate interests the government has in defining marriage as it does. It harken backs to the distinction I have been trying to make about marriage as a "right" vs. and marriage as "government regulation". Why does the government regulate marriage at all? It does so to : protect women and children; impose paternal identity and obligation; and to promote a stable family structure for the likely offspring of the union. Some of this debate has to ask why the government is in the marriage business at all. I have said before, that I would be more receptive to arguments made by pro gay activists that describe why the state has an interest in regulating homosexual unions. And as I have said before, I can see some of these arguments being made. But the point is, the entire analysis has not proceeded down this path. Instead, they have chosen to paint it as a civil rights issue, when I don't think that is appropriate. Of course, they make this argument so as to appeal to the broader public. But if that is the case-- they should just take their arguments directly to the Legislature. I was thinking about this the other day. Don't you find it strange that we no longer see activism for legislation? Like the Civil rights act or the ERA? Nowadays -- the battles are fought in the courts and I think this is very harmful. We need only look at that Schiavo case to see how darn politicized the judiciary is perceived to be by people.

(2) I do not think that strict scrutiny ought to be applied. In order for it to apply, you are supposed to have a "fundamental right" that is "rooted in history". I think it is laughable to assert that the right to marry someone of the same sex is rooted in history-- plain and simple. And if a court does find such a right-- well then I think that is a case of where the court is decreeing that black is white and white is black and then we have have surely gone through the looking glass.

Well, for the purpose of this debate, let's stick to the facts of this case. You are, yet again, misstating the reason why the State is in the marriage business today. If you are going to state, "to protect women and children", you are going to have to be specific as to how and how it is reflected in the laws regarding marriage. And we both acknowledge that procreation is not mandatory in marriage today, so there is not a State interest in promoting a stable family structure solely for the purpose of dealing with potential offspring. But has no bearing on the case. The purpose of the case was not to establish why the State is in the marriage business today, but to establish why it feels there is a legitimate interest in limiting it to opposite sexes.



No, you have to have a "suspect" classification or a fundamental human right implicated in the legislation. The question is, does the marriage law establish a "suspect" classification. Yes. A gender-based classification (opposite sex vs. same-sex). The state attempted to argue that the equal protection clause protects individuals and not the groups into which they might be classified. There is, however, precedent illustrating that the equal protection clause can and has been applied to groups.



This was a USSC case.

As to the fundamental right issue. As Kramer states, the USSC and the California courts have long held that the right to marry is fundamental. The State argued that the right to marry should only be the right to marry a person of the opposite sex. They assert that the right to marry an individual of the same-sex has never been recognized in California and can't be, therefore, used to form a basis for equal protection analysis. They argue that the right to marry must be defined in terms of who one can marry -- that to do otherwise would open the door to siblings marrying and adults marrying children. To which Kramer responds:



Perez and Loving recognize a right to marry. They go on to recognize that the right to marry can't be limited by the government when it comes to race. Perez states that there can:



This means that Perez is not stating that a right to marry exists and therefore anyone can marry anyone else -- siblings can't marry each other and adults can't marry children -- but it is stating that one can choose who to marry... this is the right, and that the choice of whom cannot be limited by the State unless there is a legitimate governmental reason for doing so.



So, the State can preclude incestuous marriage and establish a minimum age of consent to marriage because the State has a legitimate State interest in doing so.

If procreation is not essential to marriage and the state has no legitimate interest in limiting marriage for purposes of procreation, the different classifications created by the marriage law (opposite sex vs. same-sex) for purposes of (or related to) procreation are arbitrary. This means that if an opposite sex couple is allowed to marry or remain married with no possiblity of procreation existing in the marriage, the government can't ban same-sex marriage on the basis that there is no possibility of procreation.

It certainly doesn't seem likely. American policy is usually affected during election years, for states to come together would break tradition in a way. Usually only candidates for president can swing states to mold to their will, usually not any other way.




All though I don't think the judge was entitled to make that decision I do think he has the best interests of everyone at heart. He did, however, abuse his authority; even though he had a mindful purpose. He took a stand against tradition and chose to take steps toward giving American's equal rights and opportunities. The issue does not even boil down to gender- it should concern love and choice. The judge chose to help homosexual couples advance their right to marry because as American's they should have that right. We are assured the pursuit of happiness under our highest laws, yet anyone who opposes same sex marriage chooses to spit upon the Constitution.




I do not, love is limitless. It knows no age, station in life, or gender. Love strictly is and deserves to be credited as such. Just because it takes seed in the hearts of two people of the same gender doesn't mean it should be outlawed or called abnormal. Our government cannot discriminate potential candidates for employment based upon something as trivial as eye color.. but they try to discriminate people based on who they love.




It seems unlikely, I think enough people realize the right to love is something sacred and should be preserved... not eliminated.

This is interesting. How exactly did he abuse his authority? Have you read the case? The State failed to show that the State had any legitimate interest in excluding same-sex couples from marrying. To add insult to injury, he analyzed the case from the point of view that the legitimate interest was exactly what the State said it was... and they failed to show that even if the exclusion was related to the legitimate State interest that the State claimed -- procreation... such an exclusion was not necessary to further that interest. He didn't abuse his authority, the State didn't prove their case.

Here is a bit of news which is, apparently, relevant to this discussion. A U.S. District Judge in Nebraska overturned that states constitutional amendment banning same-sex marriaged.

ACLU, et al v. Bruning (2005)

It makes one wonder if a Constitutional Amendment in light of the decision in California will stick. And whether these types of decisions will make a US Constitutional Amendment a reality. The Nebraska case deals with the overreaching nature of the Marriage Amendment.

If this ruling holds up on appeal, I believe it will spark a national movement in support of the federal marriage amendment.

But the opinion is riddled with errors and should be overturned by the Eighth Circuit.

The Nebraska Constitutional Amendment at issue reads:

"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

First, the judge does not hold that there is a constitutional right to same-sex marriage. Rather, he held that the Nebraska amendment is unconstitutional in its entirety.

One huge problem with the ruling relates to the fact that he struck down the entire amendment. The standard canons of constuction for interpreting statutes is that they must be interpreted to avoid constitutional problems, when such an interpretation is consistent with the language.

Judges cannot choose the broadest interpretation of a statute and then strike down the statute because the interpretation they chose is unconstitutionally broad.

In this case, the judge's argument that "a domestic limited partnership" — a business entity — "composed of same-sex partners as defined in the Partnership Act could run afoul of [the Nebraska amendment] as it is written" verges on the absurd and is unnecessarily broad. It violates the established canons of construction and the opinion should be overturned by the eighth circuit.

You say riddled with errors and you mention one. And even that is wrong. In Nebraska "domestic partnership" has a very specific legal definition that is not at all similar to definitions used by other states to define "domestic partnership" as a union related to marriage in other states. If the wording of the amendment was such that it mentioned that the uniting of the two people of the same-sex had to be related to marriage in some way -- as other amendments make very clear, you might have a point. But as the second sentence of the amendment is extremely broad, the judges argument is certainly relevant.

I do agree with you that this will lead to greater support for a Federal Marriage Amendment -- a bad move, in my opinion.

You misunderstood my point entspeak. The judge erred in reading the amendment as broadly as he did. I suggest you read an excellent piece by Eugene Volokh on this decision. He details out all the problems with the opinion. Here is the portion relating to statutory interpretation:

[quote=hayleyanne,May 28 2005, 12:12 PM]

Again, this was not the only point made during the decision. As I have explained, the judges reading of the amendment as it regards to the term, "domestic partnership" under the Partnership Act, is most certainly plausible considering Nebraska's definition of "domestic partnership" and the lack of a reference to marriage in the second portion of the amendment.

The blogger you referenced also states:

[quote]That, I think, can't be right. Most state constitutional provisions make it harder for people to enact certain laws — a state constitutional right to privacy, for instance, makes "chills or inhibits advocacy of [privacy-restricting] legislation" in precisely the same way as the Nebraska same-sex amendment does: People become less willing to advocate the legislation since they know it will be futile, so long as the amendment remains on the book.[/quote]

The specific example he uses is a constitutional protection of rights, not a constitutional restriction of rights. As such, it doesn't fit as an analogy.

Also, the amendment does not prohibit opposite sex unmarried couples from seeking, through the legislation, laws to allow for legal recognition of their relationships. So an opposite sex couple could still actively pursue legislation, and could constitutionally have it, that would allow a partner to make funeral arrangements for their loved one without being married. Such laws, however, would not be allowed, constitutionally, to apply to same-sex couples. Therein you have your violation of the 1st Amendment and 14th Amendment.

Regarding, intimate association... this came up in the discussion regarding the Ohio Amendment's effect on domestic violence laws. The same applies here, although, it most certainly only applies to same-sex relationships in this instance.

His reference to bills of attainder and polygamy is ridiculous in this case, because Nebraska does not have a constitutional ban on polygamy. Besides, constitutional bans on polygamy relate to a much more solid legitimate State interest. The Idaho constitution refers to the fact that polygamy is not only prohibited, it is a criminal offense. If you look at cases involving polygamy, you come to understand why.

The fact of the matter is, this particular amendment is geared not only to reserving rights associated with marriage for couples of the opposite sex. It goes beyond this by reserving the possibility of "domestic partnerships", and "civil unions" or legal recognition of any other type of similar relationship for those couples of the opposite sex. This is why it is unconstitutional. According to the wording of the amendment, the types of relationships do not need to be similar to marriage, they need only be similar to civil unions and domestic partnerships -- which are unmarried relationships. This extends far beyond a protection of marriage.

And, because of this, appears to be based not on a desire to protect the tradition of marriage, but based on an animus toward homosexuals. If this wasn't the case, the amendment would apply to unmarried relationships same-sex or opposite sex. It doesn't.

The “blogger” happens to be a very well respected law professor and commentator.

http://www1.law.ucla.edu/~volokh/




Why? The argument that Volokh was examining has to do with first amendment rights to advocate. What is the relevance in the distinction between advocating for a restriction or protection of “rights”? There is none.



Are you still referring to the first amendment argument here? If so, you are wrong—the amendment does not stop anyone from advocating for any kind of legislation. Are you confusing this with the equal protection argument under Romer?

.

The “intimate association” argument from the court is way off the mark as the amendment does not prohibit any cohabitation relationships. As the commentator (Volokh) points out:

.


Finally, entspeak states:




I think that here you must be referencing the equal protection argument under Romer. I agree with Volokh, that an extension of Romer here is too broad. As Volokh points out:

I know who he is. Doesn't mean I have to agree with him, does it? I read his blog.



The amendment goes farther than Volokh states. It covers same-sex marriage, same-sex civil unions and domestic partnerships and all other same-sex relationships similar to same-sex civil unions and domestic partnerships -- note: not necessarily similar to marriage, but similar to civil unions and domestic partnerships. Other marriage amendments, the Ohio amendment for example, clearly specify that the relationship must be similar to marriage and the amendment applies equally to heterosexual unmarried relationships as well as homosexual unmarried relationships. This amendment does not. It only applies to homosexual unmarried relationships and it leaves unclear what types of relationships are similar to "civil unions" and "domestic partnerships" -- especially considering the legal definition of such terms as they exist today in Nebraska. How can one make the argument that Romer does not apply? Romer deals with laws created out of an animus toward homosexuals. All the evidence points to that being the case here. If the aim was to protect marriage from recognition of same-sex marriage and from quasi-marriage unions, it would apply to heterosexual unions as well as homosexual unions. It is clearly geared to restricting the rights of homosexuals. It is not a protection of marriage, it is a protection from homosexuals. Heterosexuals can weaken marriage all they want, they still have that right in Nebraska -- this amendment does nothing to protect marriage from their actions, only from the actions of homosexuals. Romer applies.




Really? Are you sure? Perhaps you should read the case again. Why does this case exist in the first place? The case revolves around legislation to give domestic partners the right to make decisions regarding the remains of their deceased partner.



The attorney general informed the author of the legislation that such a law would violate the constitution, not because it granted rights to unmarried persons that were normally relegated to married couples, but that it granted rights to homosexual unmarried persons that were normally relegated to married couples. The proposed legislation was then dumped. The legislation was not even considered because it would include rights for unmarried homosexuals. So tell me again, how this doesn't inhibit advocacy of gay rights legislation?