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Papadoc wrote:Maybe americans can stop putting V8s into everything.

But it's so much better when Holden / BMW / Mercedes / Toyota do this?

JohnHwangDD wrote:Oops, yeah, I made that incorrect assumption.

Huh? Your worldthink doesn't allow for the very concept of "wrong" as everything is relative and contextual. I, OTOH, don't have such restrictions, so from my POV, you are wrong.

Don’t worry, I haven’t drunk from the fountain of left wing kool aid so deeply that I think everything is relative and all that. I’m still quite comfortable with calling you wrong .

@sebster: Heh.

dogma wrote:

JohnHwangDD wrote:
If the issue were actually put up to a democratic vote, that would be a good thing.

California voted twice to ban gay marriage, first by law, then by Constitutional amendment.

Unfortunately, the 14th amendment makes ANY ban on the basis of identity illegal. Sorry.

That's simply not how the courts interpret the 14th amendment. If you really think it pohibits discrimination on "identity" than you need to really look into the jurisprudence, which tends to be much more originilist in it's scope than you think.

The 14 amendment states that all people born in the US are citizens, and that no person shall be denied due process of the law by their home state. The goal of the amendment was to ensure that the Civil Rights act of 1866, which was could have been struck down by the courts as unconstitutional, would remain good law. The amendment was primarily concerned with the so called "Black Codes" rising up in the south. the other major effect was to extend constitutional restraints on the states, and not just on the federal government.

Courts in the 20th century haven't fixated entirely on the racial component, but it's still by far the easiest way to make a valid 14th amendment claim. The court generally asked a few big questions: was the law classifying people, and if so, was it doing so based on immutable characteristics. While Racial classification is generally held to "Strict Scrutiny" (requiring a compelling state interest, a narrowly tailored rule, and no less burdensome alternative), classifications based on gender, parental status (illegitimate children couldn't inherit by intestacy until the 60's), and nationality are generally held to what's called Rational Basis "with teeth." Rational Basis requires only a legitimate governmental interest, with means rationally related to the ends.

To give an example, a state law requiring all pit bulls to be licensed at the state level, at a higher charge than other dogs, would pass the rational basis test. The state can regulate for health and safety, and regulating dogs is at least rationally related to that. Now, that's a pretty ineffective law, but it's legal.

An example of strict scrutiny not striking down racially discriminatory laws are the use of race as a factor in law school admissions. Michigan could show that having a diverse state bar was a compelling interest, and also showed that race was used as part of the overall background of the application process, making it narrowly tailored. On the other hand, quotas in education were struck down pretty aggresively, as were systems that used points and granted points to minority candidates.

Using the 14th amendment to strike down gay marriage bans isn't a new idea, but it's destined to fail. Unlike Loving v. Virginia (that struck down interracial marriage bans) there is no racial component here, making the case weaker. Gender specific laws are upheld all the time: military service, conscription, single sex schools, etc. While these bans are pretty clearly invidious, homosexuals aren't being denied due process, as they can still marry like anyone else. Right now, no man can marry another man, not just homosexuals.