Con Law - Gay Marriage Forum

[phonepro]

Pretty sure that gay marriage is going to be a question on my exam.

What issues are possible to raise? I know there is Lawrence Romer Loving formula.. etc. EP and SDP/Fundamental Right issues.. but where does congress get the power to regulate marriage in the first place? Would you open up with the commerce clause, and whether or not congress can regulate marriage in general.

[Braindead]

Congress cannot regulate marriage through the commerce clause. You'll most likely have to mention Section 5 Enforcement Clause of the 14th Amendment f you want Congress to enforce it, assuming you can establish that right to a gay marriage is a fundamental right. If you can't argue that its a fundamental right, it will most likely be invalidated by SCOTUS due to the 10th Amendment. That is my guess, but don't rely on it unless someone else on TLS approves, I may be way off.

[dakatz]

Talk about how gays are not a suspect class and haven't received more than rational basis review, but that Romer held that mere moral disapproval isn't enough to constitute a rational basis (applying the logic of Moreno). This is a fairly good argument for allowing gay marriage since there would need to be a rational reason for disallowing it that goes beyond moral disapproval and im not sure what tha would be.

[Ty Webb]

Your gay marriage question almost certainly wouldn't be premised on the federal government banning it. It would likely come from a state law banning gay marriage.

[Ty Webb]

Congress cannot regulate marriage through the commerce clause. You'll most likely have to mention Section 5 Enforcement Clause of the 14th Amendment f you want Congress to enforce it, assuming you can establish that right to a gay marriage is a fundamental right. If you can't argue that its a fundamental right, it will most likely be invalidated by SCOTUS due to the 10th Amendment. That is my guess, but don't rely on it unless someone else on TLS approves, I may be way off.

This is painfully convoluted.

[Charles Barkley]

For SDP, state the right broadly to find the right fundamental (right to marry - which has been recognized). On the other hand, state the right narrowly (right for gays to marry), which has not been recognized and traditionally not protected.

[Braindead]

Congress cannot regulate marriage through the commerce clause. You'll most likely have to mention Section 5 Enforcement Clause of the 14th Amendment f you want Congress to enforce it, assuming you can establish that right to a gay marriage is a fundamental right. If you can't argue that its a fundamental right, it will most likely be invalidated by SCOTUS due to the 10th Amendment. That is my guess, but don't rely on it unless someone else on TLS approves, I may be way off.

This is painfully convoluted.

I apologize, wasn't going to go through an entire analysis. Thought OP sought a quick summary of how Congress may regulate gay marriage and I just wanted to point out that it probably would not come through the commerce clause.

[09042014]

Pretty sure that gay marriage is going to be a question on my exam.

What issues are possible to raise? I know there is Lawrence Romer Loving formula.. etc. EP and SDP/Fundamental Right issues.. but where does congress get the power to regulate marriage in the first place? Would you open up with the commerce clause, and whether or not congress can regulate marriage in general.

You don't understand SDP and EP. Relearn the basics. They are about the states not doing something, not the feds regulating.

You could possibly make the argument that marriage is economic under Lopez and then aggregate that shit. But there are plenty of counter arguments to that though.

Also try arguing that it's not gay discrimination but gender discrimination so you can apply intermediate scrutiny.

[Ty Webb]

Pretty sure that gay marriage is going to be a question on my exam.

What issues are possible to raise? I know there is Lawrence Romer Loving formula.. etc. EP and SDP/Fundamental Right issues.. but where does congress get the power to regulate marriage in the first place? Would you open up with the commerce clause, and whether or not congress can regulate marriage in general.

You don't understand SDP and EP. Relearn the basics. They are about the states not doing something, not the feds regulating.

You could possibly make the argument that marriage is economic under Lopez and then aggregate that shit. But there are plenty of counter arguments to that though.

Also try arguing that it's not gay discrimination but gender discrimination so you can apply intermediate scrutiny.

That could be an interesting argument that might pique your professor's interests. How would you frame this? That a woman has the right to marry a man, but a man doesn't have the right to marry a man? If you could get into intermediate scrutiny, it becomes a lot easier to win this kind of case.

[CAHopeful]

1. Per Loving, marriage is a fundamental right that cannot be restricted. Therefore, a classification that discriminates against a class of persons in regards to marriage should receive strict scrutiny - although usually this standard of review isn't as rigid for fundamental rights as it is for racial classifications.
2. Although the Court has clearly stated that marriage IS a fundamental right, if the State is arguing that it is not or that its prohibition of gay marriage should pass under strict scrutiny, then you should argue that it's a sex/gender classification entitled to intermediate review.
3. You can also argue that it's a discriminatory purpose case and that "but for" the discrimination against gay couples, the law would not exist. However, if the gay marriage ban isn't discriminatory on its face, it may be tough to prove under discriminatory purposes that it's discriminatory in its application.
4. If you lose under Loving, also argue that sexual orientation should be treated like gender and illegitimacy and thus receive at least intermediate review - not the basic rationality test.

[Ty Webb]

1. Per Loving, marriage is a fundamental right that cannot be restricted. Therefore, a classification that discriminates against a class of persons in regards to marriage should receive strict scrutiny - although usually this standard of review isn't as rigid for fundamental rights as it is for racial classifications.
2. Although the Court has clearly stated that marriage IS a fundamental right, if the State is arguing that it is not or that its prohibition of gay marriage should pass under strict scrutiny, then you should argue that it's a sex/gender classification entitled to intermediate review.
3. You can also argue that it's a discriminatory purpose case and that "but for" the discrimination against gay couples, the law would not exist. However, if the gay marriage ban isn't discriminatory on its face, it may be tough to prove under discriminatory purposes that it's discriminatory in its application.
4. If you lose under Loving, also argue that sexual orientation should be treated like gender and illegitimacy and thus receive at least intermediate review - not the basic rationality test.

This seems like a smoshing together of substantive due process and equal protection.

Also, to number two - if the state is arguing that its prohibition of gay marriage should pass under strict scrutiny, why in the world would you want to persuade the court to use a less exacting standard of review?

[CAHopeful]

Whoops. What I meant was that if the state is arguing that it's not a fundamental right, you can argue it's a sex/gender classification and bring it under the discriminatory purposes analysis. Or you can argue that sex. orient. should be elevated to intermediate scrutiny.

[Ty Webb]

Whoops. What I meant was that if the state is arguing that it's not a fundamental right, you can argue it's a sex/gender classification and bring it under the discriminatory purposes analysis. Or you can argue that sex. orient. should be elevated to intermediate scrutiny.

That makes more sense.

Along those same lines, remember that Romer set the standard for homosexual classifications at rational basis, but I think there's a good argument for why homosexuals deserve a different standard. The argument here would be that they're much more like a racial class than they are some arbitrary distinction because of the history of discrimination, the genetic predisposition, etc. You might argue that they are a discrete and insular minority, pointing out that the court has always looked to protect those groups with "immutable" characteristics. As more information comes to light about homosexuality, the court should become more receptive of the idea that gay people don't choose to be gay necessarily. At least that's the argument you would have to make if you wanted a heightened standard of review under EP analysis.

[bjsesq]

I see DF is in here making the Koppelman argument again. Prof. Koppelman (Andrew) argues that intermediate scrutiny applies for the reasons Ty Webb touched on before. It is gender discrimination because a man is capable of marrying a woman, but the right to marry a woman is denied to women. Bam. Gender discrimination. Most courts haven't been too open to this argument, however.

assuming you can establish that right to a gay marriage is a fundamental right

This is a simplistic phrasing of the issue. This is equivalent to saying "do gays have a fundamental right to anal sex?" Well, not directly, but privacy protects the right.