vincentML
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quote:
laurell3:
Really? Well tell me what standards of review the USSC uses when considering the equal protection clause and how they determine what level of a standard they will employ? Could it be that is ultimately comes down to the classification and whether it impedes a status they have previously found as protected? Yes, I believe it is. Let me tell you how it works:
The Court only applies the highest standard and is likely to find that a law that classifies individuals violates the equal protection clause when they apply the strict scutiny standard of review (under which the law/classification in question must be pursued to promote a compelling or overriding interest of the government and must be necessary and narrowly tailored to promote that compelling interest). That standard of review is only applied to cases involving race or national origin. Thus, the only truly protected classes thus far under the Court's reasoning in this area do not include gender. Until they change that, they will apply the lower standards of the "rational relationship" test (under which a law need only conceivably contain a classification that bears a rational relationship to an end of government which is not prohibited by the Constitution) or Intermediate review (hybrid standard).
I understand the need to classify individuals for the purposes of consideration. It is part and parcel of our cognitive construct. But I think you are perhaps mistaken that only protected classes warrent the strict scrutiny review and the only protected classes to date are race and national origin. Clearly the liberty of individuals to engage in sexual oriented behavior has been decided. I do not have the Lawrence Decision so i rely on Wiki:
"The majority decision also held that "the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections." Holding that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," the court struck down the anti-sodomy law as unconstitutional.
Kennedy's opinion grounded the right of consenting adults to have sex on how intimate and personal the conduct was to those involved, not on the conduct being traditionally protected by society (as in Bowers), procreative (as in Eisenstadt and Roe), or conducted by married people (as in Griswold). This opened the door in theory to protection of a whole host of sexual activity between consenting adults not protected by other decisions. Kennedy's did not extend the opinion to include governmental recognition of such relationships."
And this from the Perry case just decided that the government's burden of a right deemed to be fundamental must withstand strict scrutiny review:
"Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. See Washington v Glucksberg, 521 US 702, 719-720 (1997). When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US 374, 388 (1978).
THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER
The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v
Safely, 482 US 78, 95 (1987) (“[T]he decision to marry is a fundamental right” and marriage is an “expression[ ] of emotional support and public commitment.”); Zablocki, 434 US at 384 (1978) (“The right to marry is of fundamental importance for all individuals.”); Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Loving v Virginia, 388 US 1, 12 (1967) (The “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Griswold v Connecticut, 381 US 479, 486 (1965)"
It appears that it is the nature of the individual right that is protected and not the nature of the class of individuals. So, we shall see what SCOTUS does. It will be interesting I think.
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vML
Our lives begin to end the day we become silent about things that matter. ~ MLK Jr.
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RE: Judge rules California's ban on same-sex marriage i... - 
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