Journal of No. 118

:-p

(In all seriousness, though, I am making a generalization about people based solely on their race and a single data point...)

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ladyeuthanasia.livejournal.com

Honey, how can this turn from a popularity contest into a civil rights issue, like Virginia vs. Loving? It has to be taken away from The People, who are obviously regardless of color too stupid and selfish to live.

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Until my benevolent dictatorship gets underway, 'we the people' still have the final say, even if it takes a constitutional amendment to get something done.

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ladyeuthanasia.livejournal.com

But civil rights can't be determined by the popular vote, hence the Loving vs. Virginia case. There was some abysmal number of people in favor of interracial marriage then -- like 18%? I don't recall the exact statistic I heard on NPR but, if left to The People, interracial marriage would have been illegal for a lot longer.

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Judges can overturn laws if they are in conflict with the state constitution, but the people can change the constitution. Indeed, that's precisely what prop 8 did.
In the case of interracial marriage, the federal consitution was involved via the 14th Amendment, but that too can be changed by the people.

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ladyeuthanasia.livejournal.com

Okay, NOW I remember. Thanks. :)

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I referenced this just now in my other post, but just to clarify: race is a suspect class under the equal protection clause. Sexual orientation isn't. That's why Loving v. Virginia was decided appropriately, but the Fourteenth Amendment would not apply to a comparable suit involving gay marriage.

As for why race is a suspect class and sexual orientation isn't: it's because the people who passed the Fourteenth Amendment understood and intended it to apply to race and not to sexual orientation. You can't simply extrapolate a principle and extend it to encompass somebody else simply because you feel it ought to. That's the same shit the fundamentalists pull when they say that the founders put "In God We Trust" on the currency and made provision for a congressional chaplain, therefore this is a country founded on Christian principles and we should have prayer in schools.

In 1868 the country got serious enough to amend the Constitution to give equal protection to people of all races; there's no reason why the people of 2009 shouldn't be obligated to amend the Constitution again if we want to grant that level of protection to people of all sexual orientations.

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As for why race is a suspect class and sexual orientation isn't: it's because the people who passed the Fourteenth Amendment understood and intended it to apply to race and not to sexual orientation. You can't simply extrapolate a principle and extend it to encompass somebody else simply because you feel it ought to.

My ignorance is fairly profound here, but [plays with wiki for a minute] isn't your statement assuming that "original intent" is *the* way to interpret the Constitution? Rather than, say, a textualist interpretation that suggests that when the 14th Amendment says "any person" it means "any person".

Okay, okay, yes there is significant precedent behind the concept of "suspect classes" and who the Supremes have put in that category. But, in the end, they get to make that decision, not the people of 1868, right?

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Sure. But if there are two ways to interpret the law, SCOTUS usually tries to go with legislative intent.

The principle here is simple: it's never been the case under the law that a person could marry another person of the same gender, so if you want that to be the law now, then it should happen through the recognized process of amending the law, rather than the judiciary "discovering" a new right.

If the ideological balance of the Court swings (farther) away from my own beliefs, I don't want them suddenly discovering new rights for those I disagree with. (Like organized prayer in schools, for example.) So I can't in good conscience support this just because I happen to agree with the goal. Our system of government is designed to fundamentally resistant to change, and this is a virtue, not a failing.

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The principle here is simple: it's never been the case under the law that a person could marry another person of the same gender.

It is the case in a few states, and was briefly the case in California. How does this differ from interracial marriage at the time of Loving when it was legal in some states but not others?

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Loving isn't the issue, the underlying law (in this case, the equal protection clause of the Fourteenth Amendment) is. At the time that the Fourteenth Amendment was written, gay marriage had never been legal or recognized. Interracial marriage, however, was legal (or at least not explicitly illegal) in most states.

The fundamental question when it comes to authorial intent is "did the authors consider this?" We can safely assume, I think, that the authors of the Fourteenth Amendment were aware of interracial marriage. We can't assume the same about gay marriage. Therefore it's legitimate to interpret the amendment as implicitly endorsing one, but not the other.

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I know we've disagreed about this before, but I'll do it again: There is not one word in the Fourteenth Amendment limiting it to race. The Thirteenth Amendment outlaws slavery (albeit also without explicit reference to race); the Fifteenth Amendment prohibits denying someone the right to vote "on account of race, color, or previous condition of servitude"; but the Fourteenth Amendment contains no such limitation. The applicable sentence in section 1 reads:

No State shall 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.

The U.S. Constitution guarantees equal protection to every "person" -- not to every black person, or to every brown person or white person or green person or heterosexual person, but to every person, period. Homosexuals are unquestionably "persons"; to the extent that prejudiced bigots can vote to deny equal protection to homosexuals simply because they outnumber homosexuals, the U.S. Constitution can and should prevent it. (Whether it will prevent it depends largely on whether the United States Supreme Court is ready to consider homosexuals a traditionally disadvantaged group, as we have previously discussed.)

And to counter your argument that those who drafted and ratified the Fourteenth Amendment were thinking of race and nothing else, I again remind you that the equal-protection clause is also the basis for overturning governmental discrimination on the basis of gender, despite not saying a word about it. (See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), in which a unanimous Court held that the equal-protection clause applies to governmental discrimination on the basis of gender; Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), in which the Court applied stricter judicial scrutiny to gender-based discrimination ["To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives"], even though in that case the discrimination was against males rather than females; and more recently United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), in which the Court (with only Justice Scalia dissenting) struck down the University of Virginia's male-only admission policy as violating the equal-protection clause, because the government could offer no "exceedingly persuasive justification" for the discrimination.)

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jedifreac.livejournal.com

In Ian's defense, even if I personally believe the 14th Amendment should treat classifications like gender and sexual orientation with the same scrutiny, the court has this deal where they don't like to do that. Race based discrimination really is given more weight than sexual orientation, even if it shouldn't necessarily be.

During Hernandez v. Robles the court (granted this was a lower court) argued that the clear intent of the Fourteenth Amendment was to address racism, to argue why Equal Protection worked for Loving but not for Hernandez. It's been really hard to argue that A) Sexual Orientation is a suspect class and B) Same-sex marriage is a fundamental right. It's nice that California's supreme court recognizes the suspect class bit. Not so nice that the California constitution no longer recognizes it.

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Just to show that both sides of my mouth work...

The U.S. Constitution guarantees equal protection to every "person" -- not to every black person, or to every brown person or white person or green person or heterosexual person, but to every person, period.

I harped on the 'any person' as well, but if our anyperson happened to be a convicted felon, then certain laws would apply to him or her in a discriminatory way, or one could say that the laws regarding the awarding of scholarships discriminate against stupid people. I don't think we want the 14th amendment to apply, um... indiscriminately.

Saying that scholarships don't discriminate, since anyone who scores such and such gets one is equivalent to saying that marriage laws don't discriminate, since anyone can marry a person of the opposite sex.

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Funny you should mention scholarships as an example -- when I was in law school, I had a serious disagreement with my Jurisprudence professor, culminating with me writing a paper which, among other things, made the point that someday some idiot would probably argue that it was unconstitutional for public universities to discriminate on the basis of intelligence.

Even funnier you should mention criminals, because as it happens the United States Supreme Court has specifically invalidated a regulation limiting the rights of incarcerated inmates to marry, as an unconstitutional violation of the equal-protection clause of the Fourteenth Amendment. (Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).)

As I understand

ian_tiberius, he is asserting that judicial application of the Fourteenth Amendment ought to be limited to cases involving discrimination based on race. That is why Loving v. Virginia is fine with him, but a judicial decision affirming a right to marriage between two men or two women would not be. My point is that the Fourteenth Amendment contains no such limitation, and moreover that the courts have in fact used it in innumerable situations that have nothing to do with race (such as gender or being a convicted felon). In fact, the U.S. Supreme Court has specifically used the Fourteenth Amendment as the basis for overturning laws that discriminate against homosexuals. (See, e.g., Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) [overruling Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)].)

Both you and he are obviously correct, however, that the Fourteenth Amendment does not prohibit every possible type of discrimination. The key factor is -- as the language of the Fourteenth Amendment makes plain -- whether the discrimination deprives someone of "equal protection" under the law. Generally speaking, a law denies a person of equal protection if that person (or class of people) is treated differently than someone else in essentially the same position. That last bit is the tricky bit -- also known as "the bit that lets judges do whatever the hell they want" -- because it depends on the specific circumstances of the law in question.

If a law discriminates, and the discrimination has absolutely no rational relationship to any legitimate governmental purpose, then the law violates the equal-protection clause. For example, if a public university's regulations give a benefit like a scholarship to Person A because Person A has higher grades and test scores than Person B, that is permissible, because the two are not similarly situated within that context. If, on the other hand, Person A and Person B have roughly the same grades and test scores, but the university's regulations give the scholarship to A because B is black (or female, or Jewish, or disabled, or illegitimate, or gay), then that is a denial of equal protection.

If, on the other hand, the law does bear some rational relationship to some permissible governmental purpose, then whether the courts will uphold the law typically depends upon whether the class against which the law discriminates is a "suspect" class deserving of higher protection. Race is such a class. Gender is such a class (though it is not as "suspect" as race). California courts now recognize sexual orientation as such a class; federal courts, so far, do not. The federal district court in which the challenge to Proposition 8 is now pending is bound by the current state of federal law, so it could properly invalidate Proposition 8 only by holding that the law bears no rational relationship to any permissible state purpose. (Personally I don't think it even manages to do that, but it is a ridiculously easy standard to meet.)

Continued...

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...continued:

The U.S. Supreme Court, however, is not so bound, and could decide to declare that laws discriminating on the basis of sexual orientation are subject to more rigorous judicial scrutiny. And that's the issue: not whether marriage should be redefined, nor whether people have the constitutional right to marry someone of the same sex, but whether discrimination based on sexual orientation should be subjected to more rigorous judicial scrutiny than discrimination based on, say, intelligence. Unhappily, my suspicion is that the U.S. Supreme Court is probably not ready to make such a declaration. The California Constitution prohibits homosexuals from doing something that heterosexuals can do: marry each other. The U.S. Supreme Court has repeatedly declared the right to marry to be a fundamental right (see, e.g., Meyer v. Nebraska 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)), so that's not the issue. The issue is whether the government, by enforcing the will of the majority as expressed through the initiative process, can take away an acknowledged fundamental right from a minority group -- which unfortunately it can unless the law is completely irrational or the minority group is deserving of special protection.

I think I'm just blathering now. And moreover I have managed to exceed the maximum length of a LiveJournal comment. Time to stop.

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Yes, it's true... this man wastes more time on the internet than

ladyeuthanasia.

I read every jot and tittle of what you wrote. I think the part that confirms my instinct is... That last bit is the tricky bit -- also known as "the bit that lets judges do whatever the hell they want" -- because it depends on the specific circumstances of the law in question.

The Supremes are neither required nor forbidden to rule in any particular way, but custom and the make-up of the current court suggest to me that overturning 8 is a longshot. Since I have my legal team on the case... if they did overturn prop 8, how widely would that apply? Would that immediately legalize gay marriage in every state, or would it only apply to CA's specific proposition, or to some federal district or arrondissement or whatever they're called?

Re: 2012

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ian-tiberius.livejournal.com - Date: 2009-11-20 06:05 pm (UTC) - Expand

Re: 2012

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As I understand ian_tiberius, he is asserting that judicial application of the Fourteenth Amendment ought to be limited to cases involving discrimination based on race. That is why Loving v. Virginia is fine with him, but a judicial decision affirming a right to marriage between two men or two women would not be.

No, my assertion is that the judicial application of the Fourteenth Amendment ought to be limited to how it would have been understood at the time it was passed.

The long and the short of it is that our legislature (at a national level) has never passed a law intended to legalize same-sex marriage. You can take their literal words, absent context, to support your argument, but you can't make a reasonable case that that is how the authors intended their words to be interpreted. I would say that as our legislature has never passed a law intended to legalize same-sex marriage, it sets a very dangerous precedent to claim that they legalized it inadvertently.

Now insofar as the Constitution doesn't say that marriage is under federal control, and insofar as the Constitution does say that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state", I believe it's entirely appropriate to 1) allow individual states to legalize same-sex marriage, and 2) to require states to recognize same-sex marriages performed in other states.

I would offer women's suffrage as a comparison. Nowhere in the Constitution does it say that women can't vote. In fact, it says things such as "The House of Representatives shall be composed of members chosen every second year by the people of the several states", and I think we can all agree that women are people. Nonetheless, at no point did the Court ever accept that equal protection (or any other rationale) required that women be given the vote. Instead, it was legalized here and there in particular states, and eventually - when it was felt appropriate by the country as a whole - we passed the Nineteenth Amendment and made it the law of the land.

The California Constitution prohibits homosexuals from doing something that heterosexuals can do: marry each other.

Here's another phrasing: homosexuals have exactly the same right as heterosexuals - the right to marry someone of the opposite gender. As a heterosexual, I too am barred from marrying another man; ergo, homosexuals and I have parity.

Obviously, this is me playing devil's advocate, but my point is that the issue is not so clear-cut as you make it out to be. Many people would sincerely offer up the argument I just laid out above, and accuse you of playing word games just as you would accuse them of doing the same. As a matter of linguistics or logic, neither formulation is unassailable. In such cases I believe it's entirely reasonable to defer to authors' intent.

The issue is whether the government, by enforcing the will of the majority as expressed through the initiative process, can take away an acknowledged fundamental right from a minority group

The minority group in question never had the right in the first place. If same-sex marriage had always been legal in our society, then I would completely agree with you that the government couldn't take that right away from same-sex couples. But in that hypothetical world, it would be fair to assume that all relevant laws and Constitutional amendments had been enacted with the assumption that same-sex marriage was included. In our world, that's not true.

I think I'm just blathering now.

Not at all. But we clearly have different judicial philosophies.

Re: 2012

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Re: 2012

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I know we've disagreed about this before, but I'll do it again: There is not one word in the Fourteenth Amendment limiting it to race.

There are two different issues here, so let's separate them. The first is whether or not the Court traditionally thinks equal protection applies more to some anypersons than others. Clearly they do, from the history of decisions involving the equal protection clause, in which they have come up with different levels of scrutiny depending on the class of people being discriminated against. Race > sex > orientation. So that's the "what's likely to happen" argument.

Now the "what ought to happen" argument: Should the Court throw out precedent and declare that equal protection applies in full force to sexual orientation as well? My feeling is no. I think deference to precedent and authors' intent is more important than pushing through this particular goal.

Now, you could take my argument above and apply it to interracial marriage as well, right? Would I have opposed Loving v. Virginia? In response, I would argue that authorial intent in the Fourteenth Amendment must have been different. At the time of the Civil War, five states had laws explicitly banning interracial marriage. This makes absolutely clear that the authors of the amendment were aware that this issue was out there, and contentious, and they chose not to limit their expansion of rights to explicitly exclude marriage. I feel we can assume that they knew of interracial marriages and opted not to ban them, which constitutes an implicit endorsement. Gay marriages, on the other hand, we can probably assume they never even considered.

I'm all in favor of equal rights for homosexuals. I will vote for gay marriage, I would even support a constitutional amendment to make sexual orientation a protected class, but I don't think that the courts should be in the business of locating new rights within laws where we can be pretty certain they were never previously understood or intended to be found. That way lies madness. Let's do this the right way and let there be absolutely no mistake that these rights are legitimate and uncontestable.

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Should the Court throw out precedent and declare that equal protection applies in full force to sexual orientation as well? My feeling is no.

That's not throwing out precedent. As noted above, the U.S. Supreme Court has already used the equal-protection clause of the Fourteenth Amendment to invalidate laws discriminating on the basis of sexual orientation. Precedent supports applying equal protection to homosexuals just as it applies to heterosexuals... and, as I've observed before, so does the plain language of the Fourteenth Amendment.

I think deference to precedent and authors' intent is more important than pushing through this particular goal.

See above regarding precedent. And given the truly vast number of cases in which courts have applied the equal-protection clause of the Fourteenth Amendment to laws that had absolutely nothing to do with race, I feel confident that virtually every judge in the country would disagree with you on the issue of "authors' intent."

At the time of the Civil War, five states had laws explicitly banning interracial marriage. This makes absolutely clear that the authors of the amendment were aware that this issue was out there, and contentious, and they chose not to limit their expansion of rights to explicitly exclude marriage. I feel we can assume that they knew of interracial marriages and opted not to ban them, which constitutes an implicit endorsement.

Actually, one might well argue the contrary: The framers of the Fourteenth Amendment knew that there were laws banning interracial marriages, yet chose not to address them at all. One could therefore argue that the framers knew of those laws and opted not to ban them, which constitutes an implicit endorsement. (By way of comparison, the Fifteenth Amendment explicitly addressed and invalidated the state laws prohibiting blacks from voting.)

In my view, the fact that the Fourteenth Amendment doesn't explicitly mention marriage (interracial or otherwise) is no more enlightening than the fact that it doesn't explicitly mention anything else, including race. It is a general statement that all persons are entitled to equal protection under all laws. I think that any attempt to carve out exceptions to this broad language is essentially an exercise in sophistry.

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That's not throwing out precedent. As noted above, the U.S. Supreme Court has already used the equal-protection clause of the Fourteenth Amendment to invalidate laws discriminating on the basis of sexual orientation.

I presume you refer to Romer v. Evans and Lawrence v. Texas, which you cited in an earlier post.

First of all, I just went and re-read the summary and Justice Kennedy's opinion for the majority in Lawrence v. Texas, and at the risk of looking the fool, I do not see an equal protection argument in there, only a due process argument, which is a thoroughly different kettle of fish. For the record, I quite agree with Justice Kennedy's reasoning on the due process argument.

As for Romer v. Evans, the difference I see here is that the people of Colorado were taking away an existing right from a particular class of citizens. I think it's a reasonable reading of the Fourteenth Amendment to say that the authors were proscribing the segregation of any class for the purpose of rescinding existing rights; I don't think it's a reasonable reading of an amendment written in the 1860s to say that they were intentionally creating a new right to same-sex marriage.

And given the truly vast number of cases in which courts have applied the equal-protection clause of the Fourteenth Amendment to laws that had absolutely nothing to do with race, I feel confident that virtually every judge in the country would disagree with you on the issue of "authors' intent."

For the record: I don't believe that the equal protection clause is confined to race. I believe it's confined to what the authors intended it to refer to. The question of precisely what falls within that penumbra is up for debate. But it's fairly safe to say that same-sex marriage wasn't on the authors' list of anticipated results.

[The Fourteenth Amendment] is a general statement that all persons are entitled to equal protection under all laws. I think that any attempt to carve out exceptions to this broad language is essentially an exercise in sophistry.

And yet such exercises in sophistry have been carried out and upheld by generations of Supreme Court Justices. They have separated strict scrutiny from intermediate scrutiny from rational-basis testing, and created a whole hierarchy of suspect classes. To denounce those as "exercises in sophistry" is to suggest that the entire history of equal protection clause jurisprudence be upended.

Re: 2012

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Given the justifiable importance that you attach to legal precedent, I leave you with some final thoughts from the United States Supreme Court on the subject of marriage:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).)

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. (Moore v. City of East Cleveland Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).)

... it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage ... .' (Carey v. Population Services Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).)

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. (Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).)

Our law affords constitutional protection to personal decisions relating to marriage ... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).)

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. (Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003))

... the regulation of constitutionally protected decisions, such as ... whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. (Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).)

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"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).)

The Court found its grounding for the decision in Loving in the Fourteenth Amendment. The history of the passage of that amendment suggests that it was explicitly intended to address race, whereas nothing in the history suggests that it was explicitly intended to address sexual orientation. And the history of Fourteenth Amendment jurisprudence supports that interpretation, by conferring the highest tier of suspect classifications on those discriminated against on the basis of race or national origin. We went round on this before, but I still see nothing inconsistent about my reading that the equal protection clause was properly applied in Loving but could not be applied in identical form to a case involving a same-sex couple. (Neither does the New York Court of Appeals; see Hernandez v. Robles while we're citing cases. I think Justice Smith articulates the argument pretty well on pages 8 and 9; he further elaborates specifically on the equal protection argument in the section labeled "Equal Protection", pages 13-16. Yes, I am well aware that this case does not have the same stature as a SCOTUS decision, but Justice Smith makes many of my points in a more coherent and educated manner than I.)

"This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." (Moore v. City of East Cleveland Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).)

If there's a due process argument to be made against Prop. 8, then by all means please articulate that and I will consider it. I don't really see it myself, but as should really be noted in every post I make, I have no legal training.

"... it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage ... .'" (Carey v. Population Services Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).)

...this a case about legal bans on contraceptives. While I appreciate and agree with the sentiment, I feel this is peripheral at best to the issue under discussion, as are several of your other links. There are far more relevant cases that deal more directly with the issue at hand - whether the equal protection clause pertains to same-sex marriage - than this.

[continued]

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[continuing]

"Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." (Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003))

Come on. Lawrence was about sex, not marriage, and it was decided on due process grounds, not equal protection. I appreciate your engagement in this argument with me - I really do. It's been extremely thoughtful and well-reasoned (at least on your side; others will have to judge my side.) But at this point I feel a little bit spammed by your selection of quotes, which aren't really a listing of relevant precedents so much as cherry-picked sentences from other cases, some of which are only tenuously connected, and appear to be selected for emotional impact more than for legal relevance.

I also sense a certain sarcasm in your opening line, and from that I infer at least a touch of hostility. At the risk of repeating myself: I am entirely in favor of legalizing same-sex marriage. I voted against Prop. 8, just like I voted against Prop. 22. I will vote for the legalization of same-sex marriage again the next time it comes on the ballot. I am not your ideological enemy. But I attach a lot of importance to the means as well as the ends, and I do not believe that asking the judiciary to overturn Prop. 8 is necessary, or proper, or even wise. I am willing to be persuaded on any of these points, but not by emotional appeals or by a list of not-entirely-relevant quotations.

Here's what I think is the strongest argument for your position, and it's not one you've really hammered on: that denying the right to same-sex marriage ought to fail the rational basis test, not just strict scrutiny or intermediate scrutiny. As I said before, I concur with most of the existing jurisprudence that the equal protection clause is clearly more about race than about other classifications, but also that it still applies in lesser form to other forms of discrimination as well. I'm curious if there's a reason you haven't really drilled this home, because from my (amateur, not-as-informed-as-I-would-like-to-be) perspective, it's the best argument for your position. If instead you feel it's weaker than other arguments, I'd like to know why that is.

Re: 2012

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