DOMA & Prop 8 Cases Forum

[target]

Anyone read these cases in their Con Law 2? I don't know what to get out of these cases. The SC didn't say what should be a standard of review for sexual orientation discrimination in these cases, and they said these holdings should be read narrowly. So, how applicable are these cases to other same sex marriage cases?

[NonTradHealthLaw]

I think you can safely string cite to Windsor/Cleburne for the premise that "a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group." Standard of review is still to be determined, but animus is well-accepted to fail even rational basis review.

Frankly, I'm surprised you read Perry for ConLaw II - seems more appropriate for Fed Courts.

[2807]

This is the dilemma and tricky way that levels of scrutiny interact and facts/arguments are important.
There is no answer, there is only analysis.
You want an answer...?... then go to a court.
Then appeal.
Then give up.
Then start over.
----------------------------------------------
Basically:
1. You have an Equal Protection issue: Treating a class of people differently than others.
2. And a Due Process issue: Fundamental right of marriage.

Here is the fun:
Sexual orientation is not a protected class, so heightened scrutiny is not applicable.
BUT...
Marriage is a fundamental right, so heightened scrutiny would apply.

So, here you have a conflict in which scrutiny to apply...
The analysis has to show the above positions, then discuss the arguments to move the line one way or another.

Each party will define the right/class and its corresponding level of scrutiny.... the way they need it for victory.

When a fundamental right is involved, the scrutiny tends to get higher and the Gov is forced to legitimize its rationale.
Here, it would be:

Against same sex: The claimed liberty interest is NOT "deeply rooted in the country’s legal traditions and customs."
Wants the issue to be "SAME SEX marriage."..... And they say the definition and tradition of "marriage" is man-woman.
Therefore, this is not even a "marriage" debate.

For same sex: Marriage is a FUNDAMENTAL RIGHT. Same sex is included. Period. Strict Scrutiny. We win.

Some label this a "Quasi-Suspect" class level of scrutiny.

When a law also shows hostile prejudice towards a class/group then the law can be struck for that EP issue too.

It is a tough issue.
It is also a way that you may be tested to show that you know all the moving parts in an analysis like this.
It is more complex than a standard essay, but it really is ALL the same stuff you already know.
It is just FUNDAMENTALS and analysis.

DO NOT fall into the trap of looking for an answer.
You are now an ANALYZING MACHINE.
Law = no answers, just analysis.
The jury/judge gives the answer...

[Br3v]

This is the dilemma and tricky way that levels of scrutiny interact and facts/arguments are important.
There is no answer, there is only analysis.
You want an answer...?... then go to a court.
Then appeal.
Then give up.
Then start over.
----------------------------------------------
Basically:
1. You have an Equal Protection issue: Treating a class of people differently than others.
2. And a Due Process issue: Fundamental right of marriage.

Here is the fun:
Sexual orientation is not a protected class, so heightened scrutiny is not applicable.
BUT...
Marriage is a fundamental right, so heightened scrutiny would apply.

So, here you have a conflict in which scrutiny to apply...
The analysis has to show the above positions, then discuss the arguments to move the line one way or another.

Each party will define the right/class and its corresponding level of scrutiny.... the way they need it for victory.

When a fundamental right is involved, the scrutiny tends to get higher and the Gov is forced to legitimize its rationale.
Here, it would be:

Against same sex: The claimed liberty interest is NOT "deeply rooted in the country’s legal traditions and customs."
Wants the issue to be "SAME SEX marriage."..... And they say the definition and tradition of "marriage" is man-woman.
Therefore, this is not even a "marriage" debate.

For same sex: Marriage is a FUNDAMENTAL RIGHT. Same sex is included. Period. Strict Scrutiny. We win.

Some label this a "Quasi-Suspect" class level of scrutiny.

When a law also shows hostile prejudice towards a class/group then the law can be struck for that EP issue too.

It is a tough issue.
It is also a way that you may be tested to show that you know all the moving parts in an analysis like this.
It is more complex than a standard essay, but it really is ALL the same stuff you already know.
It is just FUNDAMENTALS and analysis.

DO NOT fall into the trap of looking for an answer.
You are now an ANALYZING MACHINE.
Law = no answers, just analysis.
The jury/judge gives the answer...

Dude, you are helpful.

I am going to respond to your answer to my own Q in the other thread later when I go back and look at the practice Q I was doing to see what I meant last night lol. But, thanks.

[target]

This is the dilemma and tricky way that levels of scrutiny interact and facts/arguments are important.
There is no answer, there is only analysis.
You want an answer...?... then go to a court.
Then appeal.
Then give up.
Then start over.
----------------------------------------------
Basically:
1. You have an Equal Protection issue: Treating a class of people differently than others.
2. And a Due Process issue: Fundamental right of marriage.

Here is the fun:
Sexual orientation is not a protected class, so heightened scrutiny is not applicable.
BUT...
Marriage is a fundamental right, so heightened scrutiny would apply.

So, here you have a conflict in which scrutiny to apply...
The analysis has to show the above positions, then discuss the arguments to move the line one way or another.

Each party will define the right/class and its corresponding level of scrutiny.... the way they need it for victory.

When a fundamental right is involved, the scrutiny tends to get higher and the Gov is forced to legitimize its rationale.
Here, it would be:

Against same sex: The claimed liberty interest is NOT "deeply rooted in the country’s legal traditions and customs."
Wants the issue to be "SAME SEX marriage."..... And they say the definition and tradition of "marriage" is man-woman.
Therefore, this is not even a "marriage" debate.

For same sex: Marriage is a FUNDAMENTAL RIGHT. Same sex is included. Period. Strict Scrutiny. We win.

Some label this a "Quasi-Suspect" class level of scrutiny.

When a law also shows hostile prejudice towards a class/group then the law can be struck for that EP issue too.

It is a tough issue.
It is also a way that you may be tested to show that you know all the moving parts in an analysis like this.
It is more complex than a standard essay, but it really is ALL the same stuff you already know.
It is just FUNDAMENTALS and analysis.

DO NOT fall into the trap of looking for an answer.
You are now an ANALYZING MACHINE.
Law = no answers, just analysis.
The jury/judge gives the answer...

This is very helpful. Although didn't the DOMA case strike down that argument that a marriage is traditionally between a man and a woman?