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

[CJK]

Thank God a state court is fighting back against this nonsense.

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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?

[CJK]

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.

[CJK]

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.

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What, in your mind, would constitute a plaintiff with standing in a discrimination case like this?

Remember that separate but equal fell because the separate was inherently unequal. Not only did schools for African Americans get a fraction of the resources, but Linda Brown herself had to walk much, much further to get to her segregated school than if she could have gone to her neighborhood school reserved for whites.

In cases where bathroom facilities haven't been sufficient for women, women ask for more women's rooms, not integrated restrooms. The NAACP didn't sue for more African-American schools closer to where children lived.

All that said, it's not impossible that culture changes enough that integrated bathrooms become seen as the logical solution. Many restrooms already share hand washing facilities or provide a series of unisex single-serves.

The court ruled against segregation not because the facilities were de facto unequal but because they claimed it psychologically implied inferiority. Do we have any evidence that most blacks actually opposed segregation before 1954? Legally speaking, what the majority happens to think is irrelevant to whether it is lawful. I'm sure you can some men who claim that existing laws stigmatize them as perverts.

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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.

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 differences between blacks and whites lead to real tensions. Additionally, whites might be made uncomfortable if blacks were allowed to roam about in the white's restroom, etc. So the partitioning of restrooms between blacks and whites is substantially related to the government's interest in ensuring privacy in the bathroom.

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As for bathrooms, states generally try to justify gender segregation by claiming government interests in promoting privacy and peace of mind. But accepting those interests as important, a blanket denial of equal rights to men and women doesn't actually do anything to further those interests. There's no evidence that letting men and women use the same restroom will prevent people from going to the bathroom. Desegregation doesn't actually make any guys perverted, so unless you're literally arguing that women should be prevented from wearing any provocative clothing, it's not as if anyone who isn't a pervert would become one otherwise. The other claimed government interest in enforcing gender segregation is of course women's distrust of male intentions, but the Supreme Court has already made it clear that "bare animus" towards a group of people is never a legitimate government interest. 

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This is a silly argument.

A bathroom is a public accommodation and most people justifiably don't want to use a bathroom with the opposite sex.  

A bathroom is a public accommodation and most people justifiably don't want to use a bathroom with another race.

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It's perfectly rational to cater to that large majority of the population.  And, it's an all or nothing thing for each particular bathroom, either it's racially segregated or it isn't.

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A bathroom is for multiple people. Already people have to share the bathroom with plenty of others. Desegregation does not change the nature of the bathroom.    

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And, legally, you can move to a state that has no racial segregation, if you would like.  Besides, there's no deprivation if someone who is comfortable using an integrated bathroom uses a racially segregated one.

So, this is just a stupid argument.

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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?

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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.

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

All racial segregation everywhere was outlawed by the court. My point is that if you think the 14th Amendment bans gender discrimination in the marriage issue you are opening the door to declare it binding in the bathroom issue a well.

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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.

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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 in regards to marriage but retained elsewhere.

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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.

The decision the court could possible overturn is Baker v. Nelson (1971) which ruled against gay marriage and explicitly justified it by saying  "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

https://en.wikipedia.org/wiki/Baker_v._Nelson

If that decision is found to incorrect, why would other restrictions that are "based upon the fundamental difference in sex" be in line with the 14th Amendment?

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However, the bathroom analogy isn't a good one as we don't have a situation where everyone isn't provided access to a bathroom for their gender.  (Unless you're going to argue we have more than two genders by using a definition not based on physical attributes.)

Everybody has access to a public bathroom so long as they choose the one that matches their sex. In a like manner everybody has access to marriage so long as they choose an opposite sex partner.

Yes of course marriage is not the same thing as going to the bathroom but the legal principals are the same. Also, unwanted interest situations already exist in bathrooms as gay men and straight men are required to use the same facilities.

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However, the bathroom analogy isn't a good one as we don't have a situation where everyone isn't provided access to a bathroom for their gender.  (Unless you're going to argue we have more than two genders by using a definition not based on physical attributes.)

Everybody has access to a public bathroom so long as they choose the one that matches their sex. In a like manner everybody has access to marriage so long as they choose an opposite sex partner.

Yes of course marriage is not the same thing as going to the bathroom but the legal principals are the same. Also, unwanted interest situations already exist in bathrooms as gay men and straight men are required to use the same facilities.

Terrible analogy. We all need to take a leak. Marriage is a government recognised union of two people who are not related. That union has traditionally been, in good faith between a man and a woman who love each other with a sexual intimacy (scam marriages aside). That union may, or may not result in children. As to what sex, if any happens within that marriage is also of no business to the state. Even gay marriage opponents are generally not interested in policing that area. The reason why state sanctioned marriage has been between a man and a women was because of general ignorance or dismissal of the fact that two men or two women may love each other with that same level of sexual intimacy. And that love is innate within them. Whether or not they raise children or what intimacy they have should be of no business to the state for the same reason the state should not have an interest in prohibiting a post menopausal woman from marrying.

I don't see how this contradicts anything I wrote. Why abolish gender discrimination in one but not the other? Why believe the state has no interest in regulating marriages but has a huge interest in maintaining segregated bathrooms?

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Let's take my analogy to a ridiculous extreme: desegregating public showers. Right now you, me, and everybody else on the planet agrees that this would cause the world to end. Just like the vast majority of the southern whites thought that the world would end if racial segregation was abolished and the vast majority of people believed that gays were sick freaks. Yet I've personally seen no scientific evidence to substantiate this.

If society and media relentlessly portrayed such showers as being a routine, mundane manner instead of a taboo sexual fantasy and emphasized that males acting on their instincts were low class scum, you could plausibly argue that the situation would be no different than women wearing skimpy and provocative clothing in our everyday lives. In 1900 bear arms were considered to be utterly scandalous, and modern bikinis simply unimaginable. The only countries today that actually protect women in this regard are Muslim.

This is the door you are opening by mindlessly cheering the end of thousands of years of gender restrictions on marriage. Nobody in the 1960s civil rights movement had the faintest idea that their activities would later be used to justify homosexual marriage.

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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.

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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.

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Really? You guys think there was no traumitization going on in South in the 1950s and 1960s?

If you really believe separate but equal is wrong you should be advocating the abolition of all sex segregation everywhere.

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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?

[CJK]

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.

Right, but the vast majority of people feel self-worth with existing marriage laws just like the vast majority of people have no problem with bathroom segregation. Only a tiny minority feel otherwise. If the 2% who are gay have the right to change the definition of marriage, then the small number of people offended by bathroom segregation have a right to change it too.

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The exact degree of public support is irrelevant to determining a law's constitutionality and the exact degree of self-worth involved is completely irrelevant to determining whether discrimination is justified.

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2% is a weirdly low estimate for how many gay people there are. It also conveniently ignores the existence of transgender people who have weirdness going on with the legal status of their gender (which is, admittedly, a smaller percentage), and the existence of bisexuals who want more than a capricious and unpredictable chance of being able to marry who they end up wanting to (which may actually be a larger percentage). It's also completely irrelevant.

Why is it irrelevant? If members of a tiny group get to change ancient laws on marriage merely because they claim discrimination, then members of other groups can change long-standing uncontroversial gender related laws as well.

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I think some issues are being mixed up.

The people pushing gay marriage have made perfectly clear they do not consider a civil union good enough. So whether or not they function well is actually a red herring. They want a full blown removal of the gender restrictions on marriage. They are claiming that ability to reproduce is suddenly irrelevant to marriage.

That leads me to wonder if this opens the door to abolishing other gender restrictions. Let's say you find someone who claims, like gay marriage supporters, that separate but equal restrooms are inherently discriminatory because they stigmatize all men as pervs or women as weaklings. It could be argued that segregation, regardless of the justifications offered, is irrelevant to going to the bathroom.

You just dismiss this all as absurd, but how do you really know? In the 1980s gay marriage was universally seen as an absurdity as well.

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The people pushing gay marriage have made perfectly clear they do not consider a civil union good enough. So whether or not they function well is actually a red herring.

Um WHAT?! One compelling reason a civil union is not good enough is because it doesn't function well! No one knew this in 2000 when Vermont introduced them, but evidence piled up quickly after that. You can't ignore that because you prefer to argue with a different argument. Both apply.

Everything that I have read suggests that even a perfectly functioning civil union would not satisfy them. The 2008 California marriage ruling explicitly said civil unions weren't good enough because they deny "dignity and respect" to homosexual couples, despite the fact this would change the very definition of what a marriage is.

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The introduction of no-fault divorce was a much more serious blow to 'what marriage has been' than simply removing the increasingly meaningless variable of gender. I think CJK is at best falling prey to the 'anything that existed in society when I was born is normal and natural; anything introduced into society after my adolescence is an abomination' fallacy. At worst, and most likely, he is just a loathsome bigot.

And once again, if you honestly believed gender is a "meaningless variable" you should have no problem with immediate bathroom desegregation. If you really believe that no-fault divorce destroyed the sanctity of marriage you should realize that modern fashion trends have destroyed the traditional concept of preventing men from harassing women.