Re: California Supremes Invent Right to Marriage

by Aaron Tue May 20, 2008 12:49 pm

ziggy wrote:
Aaron wrote:Seems what Stephanie and I were saying has already started happening. Here, in New Mexico a photographer was sued because she refused, or grounds of religious belief, to photograph as same sex ceremony and was sued under New Mexico's sexual discrimination law. I read in today's paper the Elane Photography was fined over $6,000.00 plus they have to pay court cost and attorney's fees.

How bad is it going to get in California for all that deal with the wedding industry?

This takes place in New Mexico- so what's your point?

Anyone can sue anyone else for anything- almost anything. I could sue a photographer for refusing to come take pictures at my stag party. I would lose my lawsuit, of course- as will the plaintiffs in the case you cite here.

They've already won. The photographer was fined over $6k plus attorney fees.

by ziggy Tue May 20, 2008 1:46 pm

Aaron wrote:
ziggy wrote:
Aaron wrote:Seems what Stephanie and I were saying has already started happening. Here, in New Mexico a photographer was sued because she refused, or grounds of religious belief, to photograph as same sex ceremony and was sued under New Mexico's sexual discrimination law. I read in today's paper the Elane Photography was fined over $6,000.00 plus they have to pay court cost and attorney's fees.

How bad is it going to get in California for all that deal with the wedding industry?

This takes place in New Mexico- so what's your point?

Anyone can sue anyone else for anything- almost anything. I could sue a photographer for refusing to come take pictures at my stag party. I would lose my lawsuit, of course- as will the plaintiffs in the case you cite here.

They've already won. The photographer was fined over $6k plus attorney fees.

Premature exhilaration. It hasn't even been to a Court yet.

And this case is not about gay marriage anyway- nor about any other kind of marriage. It is about the state's Human Rights Act- about whether the photographer may discriminate based on the couple's sexual orientation, not their marital status.

by Aaron Tue May 20, 2008 2:22 pm

ziggy wrote:
Aaron wrote:
ziggy wrote:
Aaron wrote:Seems what Stephanie and I were saying has already started happening. Here, in New Mexico a photographer was sued because she refused, or grounds of religious belief, to photograph as same sex ceremony and was sued under New Mexico's sexual discrimination law. I read in today's paper the Elane Photography was fined over $6,000.00 plus they have to pay court cost and attorney's fees.

How bad is it going to get in California for all that deal with the wedding industry?

This takes place in New Mexico- so what's your point?

Anyone can sue anyone else for anything- almost anything. I could sue a photographer for refusing to come take pictures at my stag party. I would lose my lawsuit, of course- as will the plaintiffs in the case you cite here.

They've already won. The photographer was fined over $6k plus attorney fees.

Premature exhilaration. It hasn't even been to a Court yet.

And this case is not about gay marriage anyway- nor about any other kind of marriage. It is about the state's Human Rights Act- about whether the photographer may discriminate based on the couple's sexual orientation, not their marital status.

It all comes from the same issue Frank.

And the way I see it, if a private business doesn't want to photograph homosexuals or anyone else for that matter, why should they be forced to?

by ziggy Tue May 20, 2008 2:54 pm

Aaron wrote:It all comes from the same issue Frank.

No, it is not all from the same issue. Discrimination against gays has been with us for generations. "Gay marriage" has become a social issue only the last couple decades.

And the way I see it, if a private business doesn't want to photograph homosexuals or anyone else for that matter, why should they be forced to?

They shouldn't. But it has nothing to do with same-gender marriage- as the New Mexico example you cited shows.

If we are having a family picnic and hire a photographer to take pictures, but he / she declines to participate because she thinks that someone there may be gay, then that's OK, as far as I am concerned.

But again, it has nothing to do with government dis-allowing same-gendered couples the legal benefits of marriage. The benefits of marriage do not include having a photographer, nor a florist of your choice.

by Aaron Tue May 20, 2008 3:14 pm

Yet as soon as a photographer or a florist refuses to provide their services for a gay marriage, they will face the same legal consequences as Elane Photography in New Mexico did; discrimination charges and a potential lawsuit.

And no, homosexuals have not been a protected class for generations. That is only recent and is only in a few states, WV NOT being one of them.

SB 660 (I think) would have made homosexuals a protected class. Fortunately, it failed. Sooner or later though, it will be a federally protected class and that is not right.

by ziggy Tue May 20, 2008 6:36 pm

Aaron wrote:And no, homosexuals have not been a protected class for generations.

I didn't say they were. I said that homosexuals have been discriminated against for generations.

by ziggy Tue May 20, 2008 8:01 pm

Aaron wrote:Yet as soon as a photographer or a florist refuses to provide their services for a gay marriage, they will face the same legal consequences as Elane Photography in New Mexico did; discrimination charges and a potential lawsuit.

If so, it won't be because of gay marriage- but because of anti-discrimination laws- which are a different topic.

by Aaron Tue May 20, 2008 8:01 pm

ziggy wrote:
Aaron wrote:And no, homosexuals have not been a protected class for generations.

I didn't say they were. I said that homosexuals have been discriminated against for generations.

My mistake. But be that as it may, they still do not deserve the same rights of other classes of people that have been discriminated against.

by Aaron Tue May 20, 2008 8:02 pm

ziggy wrote:
Aaron wrote:Yet as soon as a photographer or a florist refuses to provide their services for a gay marriage, they will face the same legal consequences as Elane Photography in New Mexico did; discrimination charges and a potential lawsuit.

If so, it won't be because of gay marriage- but because of anti-discrimination laws- which are a different topic.

Why should it be that way for discrimination laws? The next thing you know, liberals are going to be after catholics for not discrimation charges because they won't open communion to everyone.

I can see it now, Azik Zimbob Rastadad Rafari Smith v. The Pope for failure to give him red kool aid and 3 day old croutons.

Rolling Eyes

by ziggy Tue May 20, 2008 8:03 pm

Aaron wrote:My mistake. But be that as it may, they still do not deserve the same rights of other classes of people that have been discriminated against.

Why not?

by Aaron Tue May 20, 2008 8:05 pm

ziggy wrote:
Aaron wrote:My mistake. But be that as it may, they still do not deserve the same rights of other classes of people that have been discriminated against.

Why not?

Why???

by ziggy Tue May 20, 2008 8:05 pm

Aaron wrote:Why should it be that way for discrimination laws?

I am not saying it should be- just that if it is it will be because of anti-discrimination laws, not because a state allows gay marriage.

by ziggy Tue May 20, 2008 8:08 pm

Aaron wrote:
ziggy wrote:
Aaron wrote:My mistake. But be that as it may, they still do not deserve the same rights of other classes of people that have been discriminated against.

Why not?

Why???

Because of the Constitution, including the 9th and 14th amendments.

Now, why not?

by Aaron Tue May 20, 2008 8:16 pm

ziggy wrote:
Aaron wrote:
ziggy wrote:
Aaron wrote:My mistake. But be that as it may, they still do not deserve the same rights of other classes of people that have been discriminated against.

Why not?

Why???

Because of the Constitution, including the 9th and 14th amendments.

Now, why not?

I'm discriminated against as a white man. Does the 9th and 14th amendment protect me?

We're all discriminated against in one way or another. Where's the line?

by ziggy Tue May 20, 2008 8:32 pm

Aaron wrote:I'm discriminated against as a white man. Does the 9th and 14th amendment protect me?

Yes. And if you really have a case, contact an ACLU attorney. Roger Foreman in Charleston is one, Jason Huber is another.

We're all discriminated against in one way or another. Where's the line?

I don't feel particulary discriminated against. Why do you?

Where's the line? Wherever the Constitution and Constitutional laws put it.

by ziggy Tue May 20, 2008 8:38 pm

Aaron wrote:The next thing you know, liberals are going to be after catholics for not discrimation charges because they won't open communion to everyone.

Going after churches for their religious practices is not at all the same as going after the state for discriminatory marriage laws.

Under the 14th Amendment, states are mandated to not 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.

And it is the states, not the churches, that make thye marriage laws we are talking about here.

by Aaron Tue May 20, 2008 9:34 pm

ziggy wrote:
Aaron wrote:I'm discriminated against as a white man. Does the 9th and 14th amendment protect me?

Yes. And if you really have a case, contact an ACLU attorney. Roger Foreman in Charleston is one, Jason Huber is another.

We're all discriminated against in one way or another. Where's the line?

I don't feel particulary discriminated against. Why do you?

Where's the line? Wherever the Constitution and Constitutional laws put it.

Tell that to a white man that works 8 years or more part time before they can get hired at UPS when a black man or woman can be full time in less then 1. That's one example. Another would be in running for the Presidency of the liberal party.

You still haven't shown where a homosexual person is being discriminated against, or what rights and priviliges they are losing because of their sexual orientation under the 9th or the 14th amendments.

Sorry Frank, your dog ain't hunting on this one. You guys are confusing political correctness with discrimination.

by ziggy Tue May 20, 2008 11:00 pm

Aaron wrote:You still haven't shown where a homosexual person is being discriminated against, or what rights and priviliges they are losing because of their sexual orientation under the 9th or the 14th amendments.

I don't have to show anything. It is the state that wants to disallow to some couples what it allows to other couples- the legal benefits of marriage- that has to show a compelling state / public interest in allowing marriage to some, but not to others. Such compelling interests have been shown as relates to marriage involving close relatives, and underage people. But no such compelling state or public interest has been shown as relates to interracial marriages or denying the legal benefits of marriage to same gendered couples. Constitutionally, the right to equal protection of the law is the default position- unless some compelling state interest to the contrary can be demonstrated.

Again:

The compelling state interest test is a test used by the US Federal Courts in due process and equal protection claims (all claims with Constitutional bases, actually) under the Fourteenth Amendment for state action and under the Fifth Amendment for federal action. It is part of the strict scrutiny analysis that a federal court will employ when either a suspect class is involved or a fundamental right. A government action or statute subject to strict scrutiny must satisfy a compelling state interest that is narrowly tailored to achieve that interest. The court will give the strictest scrutiny of the state or federal action when it impacts or targets a specially protected class (race, ethnicity) or when a fundamental and Constitutionally protected right is involved (Freedom of Speech, Right to Vote). The compelling state interest test is distinguishable from the rational basis test, which involves Fourteenth and Fifth Amendment claims that do not involve a suspect class and involve a liberty interest rather than a fundamental right.

http://en.wikipedia.org/wiki/Compelling_interest .

And:

Along with the lower standards of rational basis review and intermediate scrutiny, strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause
http://en.wikipedia.org/wiki/Strict_scrutiny .

In other words, for a state to deny a rright or state sanctioned privilege allowed to some, but not to others, the state must show that the denial of that right / privilege to some- the unequal protection of the laws- serves a rational purpose, not just the arbitrary and capricious whims of the state.

by **Stephanie** Tue May 20, 2008 11:22 pm

Ziggy,

I have a question for you.

Have the states allowed same sex couples to marry for the past 232 years? Are homosexuals suddenly being discrimated against?

If it wasn't an issue before, is it because gay people didn't exist until the 20th Century in America?

by SamCogar Wed May 21, 2008 8:25 am

Stephanie wrote:Ziggy,

I have a question for you.

Have the states allowed same sex couples to marry for the past 232 years? Are homosexuals suddenly being discrimated against?

If it wasn't an issue before, is it because gay people didn't exist until the 20th Century in America?

Steph, that was a "strawwoman" argument. Laughing

The "discrimination" associated with queers marrying ...... is not actually about the "marrying part", ............ its all about the "ownership" and "heirship" rights associated with marriage.

The queers are only now fighting "the fight" ...... that the females "fought" nigh onto 100 years ago, to wit:

In the early 19th century, the vast majority of married women throughout Europe and the United States still had no legal identity apart from their husbands. This legal status—known as coverture —prohibited a married woman from being a party in a lawsuit, sitting on a jury, holding property in her own name, or writing a will. In custody disputes, courts routinely granted permanent custody of children to the father.
----------------
the first women’s rights convention. This convention met in Seneca Falls, New York, on July 19 and 20, 1848. The Seneca Falls Convention attracted more than 200 women and approximately 40 men. For the convention, Stanton, Mott, and several others wrote a Declaration of Sentiments and Resolutions, often considered the founding text of the American women’s rights movement. Based on the Declaration of Independence, the Declaration of Sentiments stated that men and women were created equal and that, like men, women were born with certain natural rights. The document criticized men for denying women the right to vote, the right to hold property, equal terms in a divorce, and custody of children.
-------------------------------------
Beginning in the 1830s, states passed laws and statutes that gradually gave married women greater control over property. New York state passed the Married Women’s Property Act in 1848, allowing women to acquire and retain assets independently of their husbands. This was the first law that clearly established the idea that a married woman had an independent legal identity. The New York law inspired nearly all other states to eventually pass similar legislation.

Microsoft ® Encarta ® 2006. © 1993-2005 Microsoft Corporation. All rights reserved.

Steph, the subordinate party in queer couplings are only demanding that which many females were demanding in the 1800's, ...... only now the domnant party is in agreement with the demands.

cheers

by SamCogar Wed May 21, 2008 8:28 am

That should have been ..... "nigh onto 160 years ago"

.

by Aaron Wed May 21, 2008 9:32 am

ziggy wrote:
Aaron wrote:The next thing you know, liberals are going to be after catholics for not discrimation charges because they won't open communion to everyone.

Going after churches for their religious practices is not at all the same as going after the state for discriminatory marriage laws.

Under the 14th Amendment, states are mandated to not 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.

And it is the states, not the churches, that make thye marriage laws we are talking about here.

I think you need to do some research on Baker v. Nelson.

The Minnesota Supreme Court acknowledged the Fourteenth Amendment prohibits some state restrictions upon the right to marry, but that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex".

Source

According to the Minnesota case, same sex couples are not protected constitutionally to receive a marriage license.

The Supreme Court dismissed the case "for want of a substantial federal question" which constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts.

Right or wrong, whether you agree or disagree, unless the Supreme Court changes it, that is the current law of the land.

California was wrong in overturning the ban based on Supreme Court precedance.

by ziggy Wed May 21, 2008 11:28 am

The Supreme Court dismissed the case "for want of a substantial federal question" which constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts.

No. A dismissal of a particular case without decision in one case does not preclude another federal Court from entertaining a different case.

This or some future U.S. Supreme Court will take it up when two or more federal appeals district Courts rule on it differently- creating a national conflict on federal issues- if not sooner.

by ziggy Wed May 21, 2008 11:32 am

Stephanie wrote:Ziggy,

I have a question for you.

Have the states allowed same sex couples to marry for the past 232 years? Are homosexuals suddenly being discrimated against?

If it wasn't an issue before, is it because gay people didn't exist until the 20th Century in America?

States did not allow interracial marriages for more than 150 years, either. When someone fimally successfully challenged it was not because of "suddenly being discriminated against". It was that just because it was the practice it was not necessarily a Constitutional practice. Same with homosexual marriage- and, as Sam points out, other social equality and equal protection issues over the centuries.

by Aaron Wed May 21, 2008 11:48 am

ziggy wrote:
The Supreme Court dismissed the case "for want of a substantial federal question" which constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts.

No. A dismissal of a particular case without decision in one case does not preclude another federal Court from entertaining a different case.

This or some future U.S. Supreme Court will take it up when two or more federal appeals district Courts rule on it differently- creating a national conflict on federal issues- if not sooner.

Granted, it's only wikipedia (which you've used as well) but they say you're wrong.

The "decision" of the U.S. Supreme Court expressly states that the Court was declining to review this case. Therefore, there is no Supreme Court decision. Of course, this is a notable state supreme court case, and should remain in Wikipedia, but it is by no means a U.S. Supreme Court case any more than the 5,000 or so other appeals the Supremes decline to review each year. BD2412 talk 02:56, 30 October 2005 (UTC)

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Wrong, this was not a simple denial of certiorari, which would not have any precedential value. The case was summarily affirmed.

Upon review, the United States Supreme Court dismissed the appeal "for want of [a] substantial federal question." 409 U.S. 810 (1972).

Examining Precedent of the United States Supreme Court shows the clear and explicit directive that dismissals "for want of a substantial federal question" are binding precedents on all lower Federal Courts.

"[U]ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial". Hicks v. Miranda, 422 U.S. 332, 344 (1975)

"[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 176 (1977).

Lower Federal Courts are expressely prohibited from ruling in a way inconsistant with binding precedent.

“[Summary Decisions] prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977)

This is explicit not only in the holdings of the United States Supreme Court, but also the holdings of other Circuit Courts.

[L]ower courts are bound by summary decision by this Court ‘until such time as the Court informs [them] that [they] are not. Doe v. Hodgson, 478 F.2d 537, 539 (2nd Cir. 1973)

Baker is binding precedent and until overruled by the United States Supreme Court, it remains that way.

I am simply amazed that someone who claims to be an attorney, doesn't understand the precedential value of a dismissal for want of a substantial federal question.

You may not like the fact that Baker is settled law, but not liking that fact does not reality change.

source

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