NYTimes: "Strong Support Found for Ban on Gay Marriage"

[Drake Tungsten]

Right. So? That doesn't mean tradition itself has any legal authority.

What else are you going to turn to when there's no law regarding an issue?

[Imran Siddiqui]

That doesn't mean tradition itself has any legal authority.

Well that true if that 'tradition' isn't precedent, which is a passed on common law, kinda like tradition. But yeah, usually tradition doesn't have any authority... courts can ignore it at will.

[Kuciwalker]

Originally posted by Drake Tungsten

Right. So? That doesn't mean tradition itself has any legal authority.

What else are you going to turn to when there's no law regarding an issue?

If there isn't any law, how is something coming to court?

[Drake Tungsten]

Courts deal with issues of dubious legality all the time. That's their job, particularly in the case of the Supreme Court.

[Imran Siddiqui]

What else are you going to turn to when there's no law regarding an issue?

But there is... Since the court has decided there is substantive due process, that is the law on point. Marriage is a fundamental due process rights. Of course this is also an equal protection case... basically on the same basis as Loving as someone pointed out above.

[Drake Tungsten]

But there is... Since the court has decided there is substantive due process, that is the law on point. Marriage is a fundamental due process rights. Of course this is also an equal protection case... basically on the same basis as Loving as someone pointed out above.

I was speaking in a more general sense. Custom is often turned to if there is no definitive legal basis to rely on. I'm not saying that applies in this case, though; I don't really know the case law that well.

[Ned]

What substantive due process does is declare unconstitutional laws that unreasonably interfere with liberty. But what liberty is a somewhat defined by the court by looking to traditions to define liberty's fundamental aspects. As Justice Harlan said, what we regard as traditions is forever changing.

Once sodomy was abhorrent to society. Just this year the court has declared unconstitutional laws banning sodomy because society has changed its attitudes regarding sodomy and laws banning it interfere with the fundamental right of privacy of such relations in one's own bedroom.

Certainly liberty includes the right to marry, the right to have sexual relations in the privacy of the bedroom, the right to travel, the right to contract, and the right to consult with the doctor concerning medical procedures including in the first trimester whether to abort one's fetus.

Even though the right to marry is a fundamental right of liberty, there are no traditions in our society that would recognize the right of two people of the same sex to marry. If the Supreme Court were to render unconstitutional laws banning gay marriage, they would have to do so on the basis of a denial of equal protection.

But equal protection jurisprudence looks to see whether the laws have any rational basis, or whether the person denied equal protection is in a so-called protected class. If they are in a protected class then the government has to have a very strong and good reason for the inherent discrimination.

I think the best argument for gay marriage is that gays should be a protected class because they are born that way and they are being discriminated against because of their status.

[Imran Siddiqui]

Once sodomy was abhorrent to society. Just this year the court has declared unconstitutional laws banning sodomy because society has changed its attitudes regarding sodomy and laws banning it interfere with the fundamental right of privacy of such relations in one's own bedroom.

Even though the right to marry is a fundamental right of liberty, there are no traditions in our society that would recognize the right of two people of the same sex to marry.

Jeez, it didn't even take you two paragraphs to totally contradict yourself. There were no traditions in our society that would recognize gay sex. And, furthermore, society is changing its attitudes towards homosexual marriage and laws banning them interfere with the fundamental right to marry.

The SCOTUS can easily wipe out all anti-gay marriage acts by saying that two people, of proper age, have the fundamental right to marriage. Done.

It'd be harder to do the equal protection rational because sexual orientation isn't a protected class. Though a smart lawyer would argue that this is sex discrmination because a person can't chose to marry someone of the same sex, ie, while women can marry men, men can't marry men (btw, that was the basic argument used in Loving v. Virginia). However, of course, gender is middle tier scrutiny, which gives much less protection than race cases.

Substantive due process is the way to best win this case, IMO.