necoandjeff wrote:

> Kevin, I get your point that marriage is not a fundamental right, but I
> don't see anything wrong with calling it a right. 

Well, I think I have made it clear that I do.

> Once the legislature
> decides to allow people to avail themselves of the law that says they can
> marry, it becomes a right. 

The legislature decides to allow people to avail themselves of the law 
that says they can drive on public roads, but I do not think you would 
say that operating a motor vehicle on a public road is a right. I think 
it is silly to say that the people's availing itself of a law is the 
sine qua non of a right. I avail myself of the law many times a day, but 
I don't fool myself into believing that all those acts are rights.

> It is a right that can be taken away just as
> easily as it was given of course, but it is still a right while it exists.

If it were a right, it seems to me that it could not be taken away as 
easily as it is given. If it were a right, you'd need due process.

> Of course the beef of those in support of same sex marriage (including
> myself) is that it is a violation of equal protection for the state to
> create a law and apply it in a manner that discriminates based on sex.

Well, at least you make the better argument that I don't see many people 
making i.e. you argue for gender discrimination rather than sexual 
preference discrimination. However, I think it is sloppy of you to say 
that "it is a violation of equal protection for the state to create a 
law and apply it in a manner that discriminates based on sex" when that 
is clearly not the case. For example, you may have heard that women may 
not register with Selective Service.

The state is clearly allowed to create laws and apply them in a manner 
that discriminates based on sex. The state has to meet the intermediate 
scrutiny standard and has the burden of showing that the law is 
substantially related to an "important" government interest, but that is 
not the same thing as saying that a law that is applied in a manner that 
discriminates based on sex is per se a violation of equal protection.

Of course, an argument based on sexual preference discrimination is a loser.

> Precisely why there is an absurd amendment proposal floating out there. 

I don't understand this sentence.

> The
> conservatives know that there is a big loophole and the only way to close it

Loophole in what? We already have the Clinton-signed DOMA so I don't 
know why everyone is so surprised by the idea of a constitutional amendment.

> is to put their wishes on a par with the fourteenth amendment by passing a
> twenty eight. There are good argument on both sides regarding whether this
> is indeed a violation of equal protection so I wouldn't characterize it as
> clearly being a violation or clearly not being in violation, 

Then you might want to check what you wrote above.

> but I certainly
> come down on the side of it being a violation and I hope our California
> courts (and a much longer shot, the supreme court) come down that way as
> well.

Ok, let me get this straight: an amendment ratified through the Article 
V process is absurd, but you hope for a few judges to amend the 
Constitution by fiat.

One of those choice is clearly absurd, but you didn't pick the right one.

- Kevin