vincentML
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quote:
ORIGINAL: laurell3
Ok, you're actually saying the same thing I did, but it's apples and oranges. You are combining equal protection cases with due process cases. Read my post again, and your response and you may see that I was addressing the issue of the Equal Protection Clause and the necessity for a clear ruling finding this a "suspect" class in order to finally resolve the issue.
It is essentially the same standard and tests applied for both equal protection and substantive due process for different reasons and I do think that one or the other will be applied here and BOTH were applied by the lower court in their finding stiking the law as unconstitutional. But they aren't the same as far as what fundamental rights/groups the Court has recognized as those bearing strict scrutiny.
I do think that they will employ a similar line of reasoning as to what you are suggesting, although I believe the issue really properly lies in the area of equal protection as it is a law that allows access based on a classification system, which is THE focus of the equal protection clause. However, the USSC does an odd jump back and forth between when they apply either of these doctrines that doesn't make all that much logical sense historically, but allows them to control the extent to which they want to vary the law overall. Courts are sneaky like that and it makes for goofball precedent that is difficult to apply.
Lawerence (lawerence and bowers were both partially overturned subsequesntly by the way BECAUSE of their refusal to decide the ultimate issue) is a due process case, not equal protection. The Court found a fundamental right of privacy that was protected in that case, and declined to decide that case as it was presented under the equal protection clause. That is my point, they most likely WILL NOT deal with the issue of homosexuality at all. As I suggested earlier, they might make it rather simple and extend their earlier decisions that the fundamental right of privacy extends to access to marriage, but that doesn't resolve the overall issue of other laws that are based on gender and sexual orientation, it only makes THIS law invalid. I am hopeful that they will have the courage and knowlege to realize that it is time to make a ruling that makes ALL of these laws based on sexual orientation invalid and recognize another suspect class that bears strict scrutiny. It would be a landmark case for sure, but it is time.
There is NO one right answer when it comes to the law, especially constitutional law which is very complex. There are only valid arguments and arguments that don't really address the Court's previous findings and thus not really applicable, but there are MANY valid arguments and ways that situations such as this can be argued.
Okay. I understand what you are saying, you are right, and I appreciate the education. Thank you. I found the following, however, and I invite your comment.
http://topics.law.cornell.edu/wex/equal_protection
quote:
The Supreme Court has dictated the application of different tests depending on the type of classification and its effect on fundamental rights. Traditionally, the Court finds a state classification constitutional if it has "a rational basis" to a "legitimate state purpose." The Supreme Court, however, has applied more stringent analysis in certain cases. It will "strictly scrutinize" a distinction when it embodies a "suspect classification." In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate. Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national origin, or, in some situations, non U.S. citizenship (the suspect classes). In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel. The Supreme Court also requires states to show more than a rational basis (though it does not apply the strictly scrutiny test) for classifications based on gender or a child's status as illegitimate.
By emphasizing marriage as a fundamental right has not the Court in Perry made it easier for the USSC to apply the strict scrutiny test?
In the instance of gender, isn't it true that the rational basis test places less of a burden on the State but there is nevertheless some burden to show an overriding interest?
In Perry, the State (neither Schwarznegger nor Brown) did not assert a "legitimate state purpose." Instead, proponants of Prop 8 asserted the following:
"Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the “central purpose of marriage, in California and everywhere else, * * * to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.” Doc #172-1 at 21.
Proponents asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive
persons seeking such unions of due process. See generally Doc #172-1. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate parallel institution under its domestic partnership statutes. Doc #172-1 at 75 et seq."
Hardly seems to meet the test of "more than a rational basis" does it?
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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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