AL Supreme Court orders probate judges not to license same sex marriages

[SteveRogers]

Is there any action any form of government can take to force all counties to follow the ruling? Can't they be arrested or removed from their jobs for not following the ruling?

Couples just have to start suing all the individual probate judges in their counties in federal court to get injunctions ordering them to comply with the original ruling.

Not sure what state government remedies might be available, but it doesn't sound like anyone in the Alabama government is particularly inclined to take action.

[SteveRogers]

Now they ordered a stop again. I guess they don't understand federal supremacy. Alabama deserves all the ridicule they get.

YES! YES! Rally against the unjust activist judges! Show the supreme court the ridicule they'll receive if they rule in favor of SSM!!!

On what legal grounds specifically do you disagree with the federal district judge's decision?

[SteveRogers]

On the grounds that the state need only subsidize man woman relationships, as they are most beneficial to the state’s interest in procreation.

That's just a conclusory statement, not a counterargument to the judge's decision. What levels of judicial scrutiny are you arguing should be applied to (1) sexual orientation and (2) restrictions on the right to marry?

The courts are destroying the instution of marriage with this horrible activism.

Destroying? How so? Can you explain in detail what will happen when the institution of marriage is destroyed? Do you mean that people will stop getting married, or what? Has the institution of marriage been destroyed in Massachusetts yet? If not, how much longer will it take?

[SteveRogers]

On the grounds that the state need only subsidize man woman relationships, as they are most beneficial to the state’s interest in procreation.

That's just a conclusory statement, not a counterargument to the judge's decision. What levels of judicial scrutiny are you arguing should be applied to (1) sexual orientation and (2) restrictions on the right to marry?

The courts are destroying the instution of marriage with this horrible activism.

Destroying? How so? Can you explain in detail what will happen when the institution of marriage is destroyed? Do you mean that people will stop getting married, or what? Has the institution of marriage been destroyed in Massachusetts yet?

Marriage will lose almost all its meaning. It will be seen as little more than a friendship. This is probably already the case in Massachusetts.

[Citation Needed]

Do you have any evidence to support your claim that all marriages in Massachusetts, both gay and straight, are currently merely platonic friendships?

Also, are you just ignoring the question about the legal reasoning behind your position on this issue forever?

[SteveRogers]

I have a question for the gay marriage boosters on this forum.

If you think that the 14th amendment forbids consideration of gender differences when issuing marriage licenses, why do you think segregating bathroom facilities is perfectly lawful?

Because a crapper is a crapper. As long as everyone is catered for it doesn't matter whether you have unisex facilities or stalls. You don't even have to provide urinals.

You seem not to remember that "separate but equal" was explicitly outlawed in 1954, based on the same amendment.

Government discrimination on the basis of race is subject to strict scrutiny whereas discrimination on the basis of sex is subject to intermediate scrutiny, so the government has a much lower burden for justifying separating public restrooms into "Men's" and "Women's" restrooms than it would for separating them into "White" and "Colored" restrooms.

[SteveRogers]

I have a question for the gay marriage boosters on this forum.

If you think that the 14th amendment forbids consideration of gender differences when issuing marriage licenses, why do you think segregating bathroom facilities is perfectly lawful?

Because a crapper is a crapper. As long as everyone is catered for it doesn't matter whether you have unisex facilities or stalls. You don't even have to provide urinals.

You seem not to remember that "separate but equal" was explicitly outlawed in 1954, based on the same amendment.

Government discrimination on the basis of race is subject to strict scrutiny whereas discrimination on the basis of sex is subject to intermediate scrutiny, so the government has a much lower burden for justifying separating public restrooms into "Men's" and "Women's" restrooms than it would for separating them into "White" and "Colored" restrooms.

You haven't explained why you believe gender discrimination in marriage is illegal but discrimination in restrooms is legal.

Ok, I'll bite.

While the Supreme Court hasn't yet clarified what level of judicial scrutiny is appropriate for government discrimination on the basis of sexual orientation, I'd argue it should be the same intermediate scrutiny used for sex/ gender discrimination, so the government must show that a law (1) furthers an important government interest, and (2) the disparate treatment is substantially related to that interest.

When addressing laws treating men and women differently, the Supreme Court has often upheld laws that can be justified by demonstrable physical differences between men and women. (Ex. SCOTUS has ok'd requiring men but not women to register for the draft). In the case of public restrooms, the government would probably win by arguing that there is an important government interest in ensuring privacy and peace of mind to people in the restroom. Actual physical differences between males and females necessarily lead to different bathroom practices. Additionally, women might be made uncomfortable if men were allowed to roam about in the women's restroom, etc. So the partitioning of restrooms between males and females is substantially related to the government's interest in ensuring privacy in the bathroom.

As for marriage, states generally try to justify their gay marriage bans by claiming government interests in promoting procreation and stable families. But accepting those interests as important, a blanket denial of marriage rights to gay couples doesn't actually do anything to further those interests. There's no evidence that letting gay couples get married will stop straight couples from getting married, having children, and raising those children in stable households. Legalizing gay marriage doesn't actually turn anyone gay, so unless you're literally arguing that gay people should enter sham marriages with the opposite sex purely for the sake of procreation, it's not as if anyone who would otherwise be settling into a straight marriage is suddenly going to go get gay married and forego having kids instead. The other claimed government interest in enforcing gay marriage bans is of course moral disapproval of homosexuality, but the Supreme Court has already made it clear that "bare animus" towards a group of people is never a legitimate government interest.  

And discrimination on the basis of orientation isn't a very good fit for the claimed interests in procreation and stable households anyway. On the one hand, straight but infertile couples are allowed to get married. On the other hand, gay people can in fact have biological children, so if the government is really concerned about ensuring children grow up in a stable household with two parents, it makes no sense to deny marriage rights to gay couples. Again, if you have a child born to a gay father via a surrogate, the government has no argument that that child would be raised in a "one man, one woman" household were it not for gay marriage being legalized.  

Additionally, marriage is a fundamental right, and any law that denies that right to any pair of consenting adults should actually trigger strict scrutiny.

[SteveRogers]

CJK, Race is treated with strict scrutiny, sex is not.  And, it's different.  A black woman and a white woman are not different in any relevant way such as to justify segregated bathrooms.  Men and Women are different.  Everyone agrees on that.  You're wrong.  And, your analogy doesn't work.

Well, in 1954 "everybody agreed" blacks and whites were different. At a bear minimum blacks had statistically vastly higher rates of committing violent crime than whites (and still do).

But get this... I actually AGREE with you. Men and women are different. So why do you fail to apply that logic to same sex marriage?

Because the right to marriage is a profoundly important right, and the choice of who you marry is intensely personal. For the government to deny any person that right is to mark them as inferior to other people. That far outweighs the fact that you might be made uncomfortable by gay marriage. Nothing bad will happen to you if the gay couple down the street gets married.

The right to choose where you go to the bathroom when not at home? Meh. Not as important.

[SteveRogers]

Everybody is allowed to marry so long as it is the opposite sex.

This is among the most offensive, ignorant, and intellectually dishonest defenses of gay marriage bans that gets tossed around. Do you expect that gay men and women across the county should be comforted by the fact that they have the right to  enter into a sham marriage with someone of the opposite sex who they don't love?

[SteveRogers]

There are plenty of unisex bathrooms out there if you want to use one. It's not like the Constitution mandates separate bathrooms for men and women.

It's a pretty poor parallel to gay marriage.

I'm not directly saying the issues are equivalent, but I am saying that if the 14th Amendment renders gender qualifications for marriage irrelevant it could lead to declaring all gender segregation illegal on the basis they did in Brown v. Board of education.

Man, you are bad at equal protection analysis.

[SteveRogers]

There are plenty of unisex bathrooms out there if you want to use one. It's not like the Constitution mandates separate bathrooms for men and women.

It's a pretty poor parallel to gay marriage.

I'm not directly saying the issues are equivalent, but I am saying that if the 14th Amendment renders gender qualifications for marriage irrelevant it could lead to declaring all gender segregation illegal on the basis they did in Brown v. Board of education.

Man, you are bad at equal protection analysis.

You still have not explained why gender qualifications should legally be abolished solely in regards to marriage but retained elsewhere.

When you have an equal protection issue, the outcome is going to depend on a number of factors including: what right is being infringed by treating group A different from group B, what classification is being used as the basis for that disparate treatment, and how good the government's reason for that disparate treatment is.

[SteveRogers]

Just out of interest CJK, and moving this away from your more scatological concerns, would you agree with your own position expressed earlier, that by extension it is possible to uphold the ban on interracial marriage as that didn’t stop blacks from marrying, as long as they married other blacks.

The fact that blacks could actually love a white person (and vice versa) and there wasn’t anything suspect about it, there wasn’t anything unnatural about it, there wasn’t a threat to the family, or to marriage or society or the church of whatever didn’t count for anything when that law was still in place. And the only reason it didn’t count for anything in law, was that the state arbitrarily decided that black people marrying white people was a threat.

It was in my opinion completely constitutional, whether or not it was morally right. The court should not be reinterpreting the constitution no matter how noble minded. Even if the court had done nothing the racial restrictions would have eventually have been abolished. It would have been better to do that than traumatize both races. But I don't think you can equate racial restrictions on marriage, which was a pure American invention with the fundamental gender restrictions on marriage.

Well that's me out of here.

Same.

[SteveRogers]

I just want to clarify that I'd be fine with having civil unions as a solution, but when you push to redefine a gender-specific institution like marriage it's going to lead to have a lot of unfortunate implications. Separate but equal has been vilified over the years but it is a lot more nuanced than its critics let on.

Yeah, that was a defensible position for the right 10 years ago, but now it comes across as desperation because you recognize certain defeat on the terms of marriage.

So again, if you think that inherent gender qualifications are illegal on marriage, why do you support them on public restrooms? If you think that a separate but equal solution stigmatizes all gays as sick freaks, why do you find the bathroom restrictions not stigmatizing all men as perverts and all women as fragile little girls?

Because the right to choose who you marry is substantially more important to one's sense of self-worth than where you go to the bathroom. Done.

[SteveRogers]

All racial segregation, both State mandated or not, was outlawed so I don't see what difference it makes. Nobody cares if mandatory desegregation increased black on white crime or made whites and blacks feel bad.

Ok, so you are literally just a racist. Got it.

[SteveRogers]

modern fashion trends have destroyed the traditional concept of preventing men from harassing women.

Parrot it all you want, that line won't work on the jury in your inevitable lawsuit.

I think you know what I meant. The traditional concept of male-female interaction was that women had to not "provoke" men into harassment by wearing "provocative" outfits. That concept is no longer in effective operation. So the idea that we have to segregate bathrooms to prevent men from losing control is logically also outdated.

There are far more low key and practical reasons for separate bathrooms.

Fx different hygiene standards.

Bathrooms used by men stink and become messy. So it is considerate towards women to have separate facilities.

Again, my point is that even if there are good reasons, those reasons are no better or worse than the reasons given for past discrimination that are now completely ignored in mainstream discourse.

You understand that this argument only works in your favor if one starts from the premise that racial segregation was good and reasonable, right?