Politics: Onward from New Hampshire

[Not Me]

Originally posted by Tyrone_Slothrop
Maybe if I haven't had too much to drink, I will add to this latter, but suffice to say that you are trying define away the equal protection argument that Burger and I keep making

Ty, first, what precisely is your EP argument under Loving that would allow gay marriage. Then second, how could that same argument not be used to require polygamy be allowed, too.

In Loving, the USSC characterized the VA law at issue as:

The statutes proscribe generally accepted conduct if engaged in by members of different races.

Do you not see a difference between proscribing marriage (meaning punishing by jail time in this context) and simply not providing for it? I see a difference.

The Loving court also was very focused on the fact that criminal penalties attached to interracial marriage and that was a very important issue in their decision.

At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny" . . . Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." (emphasis added)

There is no criminal penalty against gays when marriage is defined as between one man and one woman and only a marriage between one man and one woman is recognized.

Loving is just too factually different to apply to the situation of forcing legislatures to allow gay marriage. Loving is a case about preventing legislatures from criminally punishing people for legally marrying in another state and then moving back to a state that criminalized interracial marriage.

I see you don't litigate because if you did, you would understand how important distinguishing and analogizing the facts are. You don't just extract abstract legal concepts out of opinions. You have to also look at the facts to determine if the legal principles would apply in a different factual context.

Originally posted by Tyrone_Slothrop
We say, A. You say, you must say B instead, and B is wrong. Well, we're saying A, and until you come up with something better (or just responsive), it's a little pointless to invest more in it.

That is not an accurate charaterization of what I said. I said that the facts of Loving are too different from the gay marriage scenario for you to just pluck abstract legal principles out of Loving and apply them to forcing legislatures to allow gay marriage.

Loving was a criminal statute that on its face discriminated on the basis of race. That is nothing at all like forcing a state legislature to allow gay marriage because the statute on the books defines marriage as between one man and one woman.