If you enshrine these things in law, or enact them by executive fiat, of course you are violating people’s rights. How not?
But the argument is that only by arming the general populace can you ensure a “well-regulated militia” free from Federal control. They do also seem to agree with the idea that an individual right to possess weapons for self-defense was assumed at the time and therefore implied by the amendment, but they have clear historical context for that - the fight over whether or not to provide for regulated militias outside Federal control. They argue that the amendment was a way to get around that problem, because an armed populace doesn’t need a specific law establishing a militia to defend itself from oppression (they quote the Federalist on this issue in one article I saw).
But what does that mean? Does a law demanding that everyone wear a Swastika when out in public offer equal protection, or does it disproportionately harm those who are typically the targets of that hate symbol?
Sounds like you’ve rephrased the question to create the answer you want. I don’t see any language in the 14th amendment guaranteeing equal protection to all possible combinations of people, such as “same-sex couples”. If I make a law that defines a set of privileges and immunities that apply to people holding a marriage license, I also have to specify the requirements for obtaining a marriage license. Those requirements might be that two people can get a joint marriage license if they don’t share a grandparent, don’t share a biological sex, don’t have an active marriage license with another person, and are legal adults. If protected classes of people don’t exist, then any individual who is barred from marrying another individual as a result of any of these requirements has not been afforded equal protection. If I require people applying for a marriage license to be physically in the same room as two witnesses who will attest to the willing participation of each marriage partner, then I’m not affording equal protection to people who hate being in the presence of more than one other person. I have to consider the prevalence of the individuals whose rights are infringed (and the burden placed on them) or I can’t possibly weigh the strength of the State’s compelling interest.
So you think it should be OK for businesses to discriminate or segregate their customers in these ways, as long as their discrimination has no legal force? But presumably you don’t agree that they should be able to not bake cakes that will be used for gay weddings?
I think I probably agree with your actual positions on these issues (assuming I have judged those positions correctly), but I’m playing Devil’s Advocate here to show that it isn’t self-contradictory or intentionally deceitful to hold the opposite opinions. It’s morally wrong, but that’s not the same thing as false or self-contradictory.
No part of the texts talks about a militia free from federal control, and many of the same men who approved the Constitution, or their peers, a short time later passed a law requiring that every man buy weapons so that he would be available as a militia member in the event the federal government need to call him into service. If the militia was imagined as an anti-federal force, why would the federal government care whether they armed themselves or not?
In any event, you’re free to imagine that you know what each of the framers thought on this matter, but anyone else is free to imagine something else, so as a means of determining what the Constitution says, it’s a pretty poor method.
You can probably figure this out yourself. You have a right to freedom of speech. Forcing you to wear a swastika effectively compels your speech, which is a direct violation of that right. Absent a compelling interest, it would not be Constitutional, and it is hard to imagine what would qualify as a compelling interest. The 14th amendment doesn’t even enter into it.
That’s a bad-faith response. All the justices grant the right to marry exists. State laws prevent some people from exercising the right. If the question isn’t ‘do those restrictions infringe the rights of some people who want to marry?’, then what it is the question?
This is a stupid response. The plain text of the 14th amendment says it applies to “all people”, and prohibits states from infringing its protections for “all people”. It does not create classes of people, and does not even mention classes of people. It doesn’t mention ‘combinations of people’ either, that it should be obvious that the set of ‘all people’ necessarily includes any combination of people you care to name.
Where did I say that?
Perhaps, but color me decidedly unconvinced of that. You’re making bad arguments, and they’re not just bad, they’re the same arguments advanced by people who demand the right to discriminate.
I’m not imagining anything, I’m relaying to you what the Heritage Foundation says its position is on this issue. It is based on their interpretation of comments about it in the Federalist Papers, which are a good source on what the Framers were thinking at the time. Basically, they decided against setting up a militia that would be somehow cordoned off from Federal control, and instead gave the Feds full control of the military, counting on an armed populace to be a bulwark against tyranny.
Hmm, sounds like the logic behind Masterpiece.
But they disagree about what that right means. You are just imposing your own definition and calling the rest of the details “State laws”.
Did you read the rest of the paragraph where I explained the problem with your position here? Without delineating the class of people who are harmed by a law, how can you possibly assess the relative value of the State’s compelling interest? You just keep saying “the plain text doesn’t mention classes of people” as if that statement is meaningful. The plain text, by definition, creates at least two classes of people for every law it might apply to: those who are protected in one way and those who are protected in a different way. If there are no such classes, there is no violation.
When you dodged my question about what constitutes illegal discrimination or segregation by businesses by saying that those rules would violate people’s rights if they are enshrined in law or enacted by executive fiat.
I am intentionally explaining to you the arguments made by those people. You are dismissing them without any actual basis and this comment is fairly revealing. It’s obvious that my arguments are bad because they are used by bad people!
I think same-sex marriage should be legal because same-sex relationships should be treated the same as opposite-sex relationships in all ways. I believe this regardless of the text or intent of any laws or amendments. I think the idea of “compelled speech” doesn’t apply to the functioning of a business - I’m perfectly comfortable with the government requiring a business to post signs with specific information it deems necessary for the public good, for example. People can exercise their free speech in a lot of reasonable ways, but the only way to ensure fair access to good and services for minorities is to require all public-serving businesses to serve all customers equally. The details of how exactly to create laws and amendments that enforce that are complex, but the principle doesn’t care what the current details are. The bad people’s arguments don’t have to be bad arguments to be wrong. They just have to be arguing about the wrong thing - in this case, the strict intention of the original text, as opposed to the broader principle that should guide it.
I will admit, though, that there’s some debate to be had over whether or not the letter of the law is the best way to govern. On the one hand, it makes it easier to point out abuse, because at least at some point everyone got together and wrote down their interpretation. On the other hand, it makes it really easy to open up a gap between the application of the law and the underlying principles, simply by refusing to update laws as society changes.
Expanding on this since it’s a claim that requires strong support. I didn’t just reframe the question, I made an argument for why the question has to be framed that way, and you completely ignored that argument.
Here it is again:
The Constitution prohibits the states from infringing on your rights. Your rights under the Constitution are both enumerated and unenumerated (see the 9th amendment). The Courts have agreed (in Loving and elsewhere) that you have the right to marry. All 9 Justices in Obergefell grant that you have the right to marry. So there is no question as to whether gays have the right to marry.
Obergefell concerns laws enacted by some states which prevent some people from marrying the person of their choice. The question before the Court is obviously is this a lawful restriction? What would make it lawful? Well, if there was a compelling interest presented in restricting the right (for example, a restriction that one must be a legal adult before marrying, in order to prevent abuse and exploitation of minors); and if the restriction did not constitute an unequal application of the law.
It isn’t a question of the form should we extend to gays the right to marry. Under the Constitution, gays have the right to marry just as anyone does, because everyone has that right. And the right can’t be satisfied by giving them a right to marry that excludes all the possible partners of their choice - that is what was decided in Loving, after all, in response to the argument that being able to marry someone of the same race was sufficient. If you’re robbed of choice by the law, the you’re robbed of the right.
Given that, how else would you phrase the question than do laws against same-sex marriage infringe on the rights of some people?
You should just have that as your signature at the bottom of every one of your posts.
Personal attacks? I guess that shouldnt be a surprise.
I can’t grasp why you think that’s a problem. Say there’s a law which gets challenged. The challenge comes before you. You determine the law does infringe on the rights of some people, and then examine whether there is a compelling interest at stake. As part of that examination, you ask who are the people being harmed? Well, they’re the people being harmed. The ‘class’ creates itself, with no need to define in it in advance of any particular case.
Ah, so they didn’t mean to create militias, and to make that clear, they stated in the text that the purpose of enumerating the right was to facilitate creating militias. That’s a hard argument to make.
Only if you’re deliberately looking for resemblance while playing a game of gotcha.
I didn’t understand it to be such a question. I thought you were talking about prohibitions with the force of law, since that is what we were discussing. Now that I understand it, I’d say that, absent any other facts, it’s hard to say. If you tell your poker friends to speak English, and they laugh in your face, has discrimination occurred? I doubt it. If you tell your friends to take off their shoes in your house, does that infringe on their rights? Again, I doubt it.
This is a false claim. You may not like the basis on which I’m dismissing them, but I think you have to grant that I’m making an actual argument in each case.
Well, that’s a good idea, but I keep hoping I won’t need to.
I never said it was a question about extending rights, I said that it was a question of what the right itself entails. The Justices do not agree that everyone has the right to marry anyone they want (for example, they don’t think you should be allowed to marry your sister or someone who is already married) and in particular, some of them disputed the idea that the right to marry could have any meaning other than a man and woman marrying. So aside from re-framing the question so that it pre-supposes the answer “well of course this law is deny a right to gay people”, what principle underlies the need for same-sex marriage. I contend that the equality of same-sex relationships is in itself the important principle.
Well, you could start by phrasing it without assuming the laws are themselves “against same-sex marriage” as opposed to simply being “marriage laws”.
No, it isn’t - they are explaining that the right exists to enable the creation of militias, but they are not going to create any other section delineating how those militias should work.
Are you intentionally dodging here? The question is about a business - my poker buddies and my house are not businesses.
I’m supposed to understand that you’re talking about businesses here? How, exactly?
Where is the poker table? Where is the no-shoe area? Who are ‘you’? Is speaking English a condition of playing? Is not wearing shoes a condition of availing yourself of a good or service?
It was part of a paragraph discussing the Civil Rights Act…
Make whichever assumption you like. Regardless, people have a right to marry, and a particular law prevents some people from marrying, regardless of the way the law is framed. Now what? What’s the question before your court?
The dispute was about whether or not the law prevented some people from marrying. Framing it such that the law is obviously preventing some people from marrying because marrying includes same-sex partners is pre-supposing the conclusion. The argument wasn’t “gays shouldn’t have the right to marry” it was “unless you have one man and one woman, it isn’t marriage.” Most of the laws in question probably didn’t even frame the one man, one woman bit as a requirement, they just assumed that was what was meant.
This. This is what I dislike about Liberalism.
No one disputed that the law prevented some people from marrying. Not even the dissenting justices disputed that. The question was whether the Constitution permitted that prohibition.
No. The case concerned laws explicitly banning same-sex marriage in several states:
Michigan had enacted one law which restricted adoption to only married couples, and another law which banned same sex marriage. A gay coupled who wanted to adopt challenged the ban.
Ohio enacted a ban on same-sex marriages which included a provision against recognizing such marriages which had taken place in other states where they were legal. A couple who had married in Maryland sued when Ohio would not recognize their marriage.
Two other same-sex couples also sued Ohio because Ohio refused (under their same-sex marriage ban) to list both parents’ names on a birth certificate.
Four other cases came from Kentucky, which had also enacted a same-sex marriage ban.
All these cases were rolled up int the case the Court heard as Obergefell. Every one of them involved an explicit ban on same-sex marriages.
Why not read the decision? Or at least the Wikipedia entry.
This part you mean?
The Court ordered briefing and oral argument on the following questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Yes. It’s pretty clear from the discussion (in, say The Federalist Papers, Anti-Federalist writings, and various state Constitutions) that the intent of the militias mentioned in the 2nd Amendment was for the State’s defense, not as a check on its authority.
From what I understand, the Equal Protection Clause applies mostly to rights granted by state and local governments (except for due process, which is a federal right.) Specific protected classes were all established by other laws, not by the 14th Amendment. Example: discrimination by race, religion, national origin, or sex is prohibited by the Civil Rights Act of 1964. It’s possible for Congress to pass a Civil Rights Act that includes LGBT folks as a protected class, but this has not happened and the EPC only applies to states that guarantee equal access to commerce for LGBT folks (like Colorado and Oregon do, for instance.) I don’t think it’s ever been argued in court that, for instance, a cake baker in Tennessee can’t refuse to bake a wedding cake for a gay couple, or even to outright ban gay people from their establishment. Tennessee offers no protection for gays, and indeed prohibits passage and enforcement of local non-discrimination laws. In the Volunteer State, you can be legally fired, refused service, or denied housing for being gay. AFAIK, Tennessee’s right to do this has not been challenged.
I’m struggling to figure out what this argument is about.