necoandjeff wrote:

> "Kevin Gowen" <kgowenNOSPAM@myfastmail.com> wrote in message
> news:2p4fp6Fgnl9cU3@uni-berlin.de...
> 
>>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.
> 
> 
> There is a law that affirmatively allows people to drive on public roads?

At least there is in the state of Florida. We call it Florida Statute 
322.03.

> People availing themselves of it isn't the right, that would be the exercise
> of the right. But people often speak of rights without them needing to be
> fundamental rights. Ever heard of contractual rights? Saying marriage isn't
> a fundamental right is correct. Saying it isn't a right (because you
> consider right to be the equivalent of fundamental right) is a semantic
> argument that there isn't much support for, given the fact that way more
> people out there consider the word right to be something broader than you
> do.

Remember what I said about law school favoring fallacy over sound 
reasoning? This is a good example. An appeal to "way more people" is not 
sound reasoning. People who like fancy Latin talk call it "argumentum ad 
populum." (My favorite fancy Latin talk is "per stirpes")

>>>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 it can. See the above. I have the right to claim certain
> exemptions on my tax form that may not be available to me next year because
> of an amendment to the tax code that repeals the law that provides me with
> that right. (note the use of the word "right.")

Noted. Is this where I whine about buzzwords and outlines. As you said, 
I think our disagreement on this point is semantic and relates to our 
views on the jurisprudential nature of rights. I consider the exemptions 
you describe above to be entitlements.

>>>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.
> 
> 
> I didn't feel like pulling out my old con law outlines to get all the right
> buzz words and figured you would understand the relevant concepts 

Is it SOP to whine about buzzwords and old outlines when making sloppy 
statements of law in the office and/or before a judge? California is 
really something.

Of course I understand the concepts, but I have no means of knowing 
whether or not you were mistaken or just being sloppy. Either way, 
people are watching and they might get the wrong idea! Americans are 
stupid enough about their rights as it is, the biggest offender being 
"freedom of speech".

> (plus I
> thought I had written "with limited exceptions" which was intended to lend
> accuracy to the statement but I guess I forgot.)
> 
> 
>>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.
> 
> 
> I never said per se did I? You're trying to turn my laziness into something
> more than it is. 

See above. I have no means of knowing whether or not you were mistaken 
or just being sloppy.

> Anyway, it is my strong belief that the government would
> not be able to meet that test. Molifying a bunch of homophobes and religious
> zealots 

Well, at least you aren't making the straw man argument that only a 
homophobe or religious zealot could support state sovereignty in the 
granting of marriage licenses.

Now that you mention it, my law school was on a street named for a 
religious zealot whose radical religious views informed his mission for 
wholesale changes in the laws of the United States. That street is 
called Martin Luther King Blvd.

A while back, there was a whole bunch of religious zealots called 
"abolitionists." Let's never speak of them again.

> doesn't fit my definition of "important government interest" though
> I suspect Bush would disagree (assuming you could capture his attention long
> enough to digest all three of those words together.)

OMG WTF BUSH IS TEH DUM LOL!!!1111!!!one!

>>Of course, an argument based on sexual preference discrimination is a
> 
> loser.
> 
> Although it isn't currently the law, I would be quite open to considering
> homosexuals a suspect class that would crank up the scrutiny on such laws to
> an even higher level.

Of course you're open to it. I was simply making a prediction. If age 
and handicap are not suspect classes, I don't see how you are going to 
get sexual practice in there. Good luck, though.

>>>Precisely why there is an absurd amendment proposal floating out there.
>>
>>I don't understand this sentence.
> 
> 
> Let me know which word you're having trouble with. I'll send a link to M-W.

What is the subject of the statement? I was being charitable when I 
called it a 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.
> 
> Loophole in the fact that if the various man/woman marriage laws are struck
> down as being violations of equal protection, the flood gates will be
> opened. Must...stop...it...with....amendment.

Good idea. I really don't see what the big deal of a amendment that 
would be the operational equivalent of the DOMA is. On the other hand, I 
think an amendment prohibiting states from granting licenses for 
same-sex marriages would be wrong. I am pretty much in step with the VP 
on this issue, as he explained yesterday:
http://edition.cnn.com/2004/ALLPOLITICS/08/24/cheney.samesex/

I do predict that in the states that change their definitions of 
"marriage", insurance companies will start changing their definition of 
"insured", but that is the beauty of our free market system.

>>>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.
> 
> 
> What? I don't see any inconsistencies. Just because I'm willing to concede
> that the other side has good arguments doesn't mean I can't strongly
> disagree with them.

I was refering to your earlier sloppy statement about gender 
discrimination/EP.

>>>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.
> 
> 
> I didn't say "an amendment ratified through the Article V process is
> absurd." We have 18 of them, most of which make perfect sense. Elevating
> this particular issue to the level of a constitutional amendment is what is
> absurd. I called a specific amendment proposal absurd. Pay closer attention.

Tee hee! Funny how an amendment going one way is "absurd" but a judicial 
  fiat in your favor is a "recognition."

Power to the people! (unless they don't know what's best for them)

> And recognizing that discrimination based on sex is a violation of equal
> protection isn't judges amending the constitution by fiat.

You know, some people say that. Some people say that judges "recognized" 
that a right to abortion on demand exists in the Constitution, while 
others call that a judicial amendment. We obviously disagree on this 
point as well.

>>One of those choice is clearly absurd, but you didn't pick the right one.
> 
> 
> The characterizations of them are absurd, I'll grant you that.

Indeed. I mean, "recognizing"? Very rich.

- Kevin