"[injustices] to be vindcated"? WTF?

This post made me cry tears of joy.

MysTTTal loves him some Prop 8 Bukkake

I will support gay marriage when illegal immigrants finally have the right to publicly subsidized education.

"I believe that marriage is between a man and a woman,"

Barack Obama.

DLgAy

If everyone is entitled to equal treatment, why can't I marry someone else if I am already married (let's say the first wife is cool with it)?
Bigamy laws are discrimination against already-married people.

Hi, I’m Elie Mystal

I just discovered that litigators are hired guns who will argue on behalf of anyone willing to pay their fees. I think I should share this revelation with the rest of the legal community.

Hi, I'm Commenter #9,

I am a douche of massive proportions. I don't understand politics or the most basic workings of the universe in general.

I think that the Former Solicitor General of the United States of America putting his name on the same brief as one of the world's most prominent litigators in a gay rights case does not mean anything.

I would share this revelation with the rest of the legal community, but they would almost certainly call me out for being a naive, dumbass.

I predict Ted Olson's invite to next year's Fed Soc dinner will be mysteriously lost in the mail.

I'll say it again. If everyone is entitled to equal treatment, I'm suing Harvard for rejecting me because I have a lower LSAT score, GPA, etc.

It took 60 years to overturn Plessy v. Ferguson.

What gay rights victories occured over the past 5 years? During the past 5 years, 30 states have banned gay marriage and 5 states have allowed it. Is this so sort of bizzaro world. There is no emerging national consensus for gay marriage. Just because all the people YOU talk to support it doesn't mean there is widespread acceptance of it.

@10 - The war's over man, Wermer dropped the big one.

15--You mean Wormer.

12: Harvard rejected you because your low LSAT, GPA, etc, rightly indicated your imminent failure to understand basic precepts of constitutional law.

17, what makes gay people a more protected class than dumb people?

8 - I think lots of people agree, but nice try at coming up with a slippery slope

18. What makes dumb people a more protected class than gay people? Last I checked, dumb people were allowed to get married to other dumb people, have dumb children, and further weaken our species.
--Elie

20, you mean dumb people are allowed to get married to other dumb people _of the opposite sex_ (for most states) and have dumb children?

Gay people are allowed to get married to other gay people of the opposite sex as well. Maybe they'll have more-likely-to-be-gay children. Nobody is stopping them.

I typed abovethelaw.com into my address bar - how did I get to this rainbow coalition blog?

Ellie -

Dumb people are discriminated against in multiple ways everyday of their lives. School admissions, scholarships, jobs, etc. And in a systematic institutionalized way. Nice try though.

Elie, gay people and dumb people are treated equally -- they both can only marry one person of the opposite sex, age 16 or older, to whom they are not related. Nice try.

The fact that a person doesn't *want* to operate within the law doesn't make a law discriminatory. For example, Whites and Native Americans are equally forbidden from using peyote.

I support forcing rights upon my fellow attorneys. - "Hard Anal" Tvetenholdt

10 for the win.

Olsen taking this case is huge. Seriously people. HUGE.

Time to look ahead.

Would the following five Justices support a holding that sexual orientation is a suspect class subject to strict scrutiny under the EP Clause?

Sotomayor, Ginsburg, Stevens, Breyer, Kennedy

@27, You'll never get strict scrutiny out of Kennedy. Intermediate scrutiny is a possibility.

27 - Probably. As usual, Kennedy gets to decide the future of America.

Obama is just another black person who hates gays just like 70% of the black voters in California. Maybe if we can get a white president in 2012 gays will finally get the equal protection they are entitled to.

Ellie got pwned.

LOL @ 30

27/28 - my question is how does any justice say that sexual orientation is not a protected class? Seriously, do any of the justices really believe that sexual orientation is a choice for all people? The sooner this issue gets to the SCOTUS and gets resolved for good, the better.

I'm with # 24. And for that matter, anti-miscegenation laws treated blacks and whites equally -- they both could marry someone of the same race as them. What was up with that Loving v. Virginia case? To quote the trial judge: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

@32 - Look at Lawrence v. Texas. There is NO convincing Scalia that sexuality is a protected class. I believe Alito, Roberts, and Thomas would follow suit, but in a less ... emphatic ... tone.

I bet Kennedy would side with the conservatives on this, and even everyone on the left - besides Stephens - is a toss-up. I do agree that your question does boggle the mind.

-28

32, is intelligence a protected class? I don't think being dumb is a choice for anyone, while for sexual orientation we have people like Lindsay Lohan and Ann Heche.

Is race a protected class? I ask because the racist Sonia Sotomayor thinks that Hispanic women can decide cases better than white men, and it raises the question of whether white men can get a fair hearing in front of her.

strange bedfellows indeed. 2 fellows in bed is strange enough. 2 girls and a fellow, well now you got my attention.

35 - except that everyone has an opportunity in the United States to go to school and better themselves. If someone is gay because that's the way they were born, there is nothing they should have to do to change that. Kind of like being a woman or black. It's really that basic. It's time people got over the fact that gay people should be entitled to all of the same rights as straight people and move on.

Is genetic relationship a protected class? I don't think being in love with and sexually desiring my 17 year old daughter is a choice, yet the Man continues to deny me my equal protection right to marry her.

Protected classes are stupid.
Equal protection is stupid.
It's sad that our forefathers didn't considered blacks to be the same as us - they were wrong, and they were dumb.

meh

38 - Come on. Try to keep up. The original point was that the guy CANNOT go to Harvard because he's dumb.

It's time people got over the fact that incestuous people should be entitled to all of the same rights as other people and move on.

If you don't like the constsitutional environment in California, move to Connecticut or Massachusetts. We'd love to have you; its a welcoming couple of states. MA has Barney Frank and Providencetown - what more could you ask for? Ct has - well - let me think about it. Income taxes are lower than in CA.

Apparently black people can go to Harvard even if they are dumb. So much for "equal protection".

38, yes dumb people have the opportunity to go to schools and try to change their "dumb" trait. But they can't get into the schools like Harvard, who discriminate against dumb people. Also, why are you stigmatizing dumbness as a trait that needs to be changed? Why aren't dumb people entitled to all of the same rights as the smart people? More proof that dumb people deserve to be a protected class.

Gay people have the opportunity to go to certain "schools" and try to change their "gay" trait. Some succeed, some fail. Do you tell your gay friends that they should be thankful for the opportunities to change their gayness?

Do the retards who think school admissions based on intelligence really believe they are putting forth an anologous argument?

The previous poster said it best when expressing this was why they didn't end up at Harvard.

Have the decency to stand for what you actually believe in - that homosexuality is as immoral and disgusting as incest, bestiality, etc.

The best way to challenge a state constitutional provision defining marriage as between one man and one woman is to present a court with litigants who defy the very definitions of "man" and "woman." In short, I think the gay marriage advocates could demonstrate that prop 8 is unenforceable by demanding that the court determine the gender of "true" hermaphroditic transsexuals.

All of substantive due process is a sham. The only due process the Founders guaranteed was procedural due process.

If you want a substantive right, go make some law that gives it to you or prevents its being taken away -- or amend the constitution to enumerate such right (e.g. bear arms, be free to speak, etc.). The 5th/14th Amendments will ensure your right to a trial regarding that law.

46 - seriously, are you really that dense, or is this just a bad attempt at a flame? Oh and 42, if you think not being able to go to a particular school (or group of schools) when there are thousands to choose from in the United States is equivalent to whether or not someone is gay from birth, then you're a few steps behind even 46. Try to keep up fellas.

I'm gay - why wasn't my comment (this one) moved up higher in the comments? Neither sexual orientation nor chronology is a choice.

50, so it's ok that I'm not allowed to go to a certain school that discriminates against me, as long as I have many other schools to choose from?
Hmm, I don't think that argument worked when the University of Texas tried to keep out blacks and make them go to other law schools. Are you seriously retarded?

Also, you may have noticed that even if gays can't get married in California, they can get married in many other places. I guess that means everything is A-Ok.

I agree with 14.

I deduced that Olson signing on was for one of two reasons; you tell me which is more cynical:

1) One of the great pillars of the conservative legal community is willing to ditch one of its most deeply held beliefs because at the end of the day, his principles mean nothing, and he is, per comment 9, nothing but a hired gun; or

2) He's actually "helping out" to get it to SCOTUS sooner, in the hopes of teeing it up for failure, since he thinks that there aren't 5 votes for gay marriage yet, and that bringing it up now assures it will either (a) fail immediately (AMK might go for homo sex, but a Catholic like him might have a harder time swallowing full marital rights), or (b) suffer the fate of Roe: win at the high court and then suffer decades of erosion, thanks to gun-jumping at a time when legislators were finally starting to see the light and enact the desired policy democratically?

No doubt, 49. That must be why they used the word "process" in "due process." Yes, substance can be presented as evidence of whether due process was received, but "substantive due process" is nonsensical. It's what happens when you decide cases based on empathy rather than reason, a concoction like the penumbras of privacy.

52 - big picture man, big picture. Do you really think intelligence (or in your case, dumbness) is a protected class? Would you argue that the degree of a person's intelligence (or again dumbness, just to make sure you're following) is equivalent to the color their skin or their gender? Don't embarass yourself by answering that question. See 47's comments, pull your head out of your ass and take a look around. The world is passing you by.

56, there can be more than one protected class and there is no requirement that the various traits be "equivalent." Gender is not equivalent to race. You can stop with the ad hominem nonsense and explain why dumbness/intelligence is not a protected class when sexual orientation should be one.

57, the argument correlates more closely to the right that is being sought. In your case, it is selective admission into a competitive institution. The right being sought is equal access to a school irrespective of achievement. May as well be employment where a requirement is to lift heavy objects, but the person is unable. Your proposal suggests we abandon meritocracy in its entirety, which, I suppose is a part of your point.

It also neglects to pay attention to selectivity by private institutions. Harvard *could* choose to discriminate for any reason it wants. Look at the Boy Scouts. Look at the Klan.

Conversely, gay marriage is about equal rights under recognized law, not admission into a private institution.

You are comparing apples and underwear.

Why don't you address why you're unwilling to put forward moralistic arguments? Because you're afraid (or know) they'll fail?

57, I'll stop with the ad hominen nonsense, assuming you stop referring to people as retards. Seriously.

Ok, let's stop the ten-thousand foot level debate because it's not worth dragging it out - i think we're boring everyone. Let me try it from a purely practical point of view - unlike binary issues like whether someone is gay or straight, or male or female, intelligence is a slding scale. Where do you draw the line? Do you pick an IQ score or an SAT score? How do you adjust for things like learning disabilities that can affect those scores but don't necessarily reflect how intelligent a person is? It's an impossible exercise.

And just because I can't help it... are you suggesting that the homosexual people are any less deserving of protection than black people? Forget about the intelligence debate for a second and just answer that question.

59, here's your binary: the IQ required to get into Harvard. There.

And stop calling the right to state-recognized joint property ownership, etc. "protection." If you favor gay marriage, fine. But there's no "protection" going on. They're not a suspect class, they're not afforded 14th protection, and there's no way in hell the reconstruction Congress had gays in mind when the 14th was ratified.

10 is absolutely right.
9 and 54 you are obviously moronic law students.
Olson and Boies are doing this pro bono. So much for your hired gun theories.
Olson signing on to this huge.

Redistributionist liberals have effectively been treating dumbness as a protected class for a long time. Thier entire theory is that it's not the fault of dumb people that they haven't made as much money as smarter people so it's only fair that the government redistribute the wealth to them.

It really doesn't matter though - They won't have the votes.

Too bad Souter is leaving the Court - this could be his big chance to come out of the closet!

Dumbness is not a protected class because dumb people do not constitute a discreet and insular minority. See US v Carolene Products, footnote 4. Dumb people are clearly in the majority.

On a separate topic, I'm a little concerned about this Olson thing. Can anyone say "Trojan Horse"?

Attacking the dumbness thing head on misses the point. That is that all people will never be treated completely equal for one reason or another. As soon as liberals get equality for homosexuals (which means ensure that homosexuals have more rights then white men) they'll move on to some other "victimized group."

Admit that this is not about marriage. The California court said that gay couples have the exact same substantive rights as straight couples. Only the designation "marriage" is different. Being able to use the term "marriage" is just the next step in the gay agenda's ultimate plan to start suing churches and individuals for discrimination.

If I am wrong, then please explain why pro-gay-marriage legislators in New Hampshire voted down the revised gay marriage bill solely because it included protection for clergy who refuse to perform gay marriages because of religious beliefs. Because such a bill would hamper their ultimate goal of destroying religion.

Thanks, 65, for illustrating my point.

--64

how is this news? i swear to god this site is going down the tubes...

64, women are a majority in the US too, in case you didn't know.

69 -- tell it to the Supremes. They may be a numerical majority but they were (and probably remain) a political minority.

Um, yeah 33, restrictions on marriage are *just like* restrictions based on race...Unless, of course, you want to marry your sister, in which case everyone just thinks you're a sick piece of shit and doesn't care about your "rights".

I have granted the decision to have my fish speakers in my army the ability to wed and have children without the need for men. This move extends and demonstrates the domestication that is necessary in my Empire; they serve as bureaucrats and priests. In a sense, marriage is static and an extension of govermental power. In a static society like this hydraulic despotism, this move preserves the Golden Path.

In contrast, male armies are essentially predatory and will turn on the civilian population in the absence of an external enemy.

God Emperor Leto II Atreides (from the stolen journals of Dar-Es-Balat)

60 - So if a particular airline says that they can't sell a seat to a particular person because they are too obese and they won't physically fit in the seat, then obese people are a protected class? Should the airline have to adjust the size of its seats, and thus likely affect its financial performance, just to accomodate potential passengers' weights?

Stop burying your head in the sand and realize that in many cases sexual preference is not a choice - it is not fuzzy, it cannot be changed by any externality that is any way within the control of the individual - and should not be treated any differently than characteristics such as gender and skin color.

In any event, stop avoiding the issue and just answer my question.

Whoa, gays are gonna start using the constitution to sue churches and individuals??? They're magic! Tell me more, 66.

71 - you forget that children of incest often have major genetic abnormalities - so there are justifiable public policy reasons for why incest is problematic in ways in which gay marriage is not.

73, no the argument would be that obese people, some (but not all) of whom did not choose to be obese, are not a protected class, and neither are gays. Airlines do not have to change their seats to accommodate fat people, and mainstream society does not have to change their definition of marriage to accommodate gay people. Gay people can marry each other all they want, but just like the fundamentalist LDS plural marriages, those "marriages" do not have to be recognized by the rest of society.
If being a protected class hinges on whether some people had no choice, then we would have a whole lot more protected classes.

73 and 60 -- you are both missing the point. A suspect class doesn't pop up everytime someone is treated differently, even if they are being treated differently because of an immutable characteristic. You don't see a lot of ugly waitresses in fine New York restaurants because fine New York restaurants won't hire them. You don't find a lot of overweight ladies waiting tables at Hooters. Clearly ugly and overweight people are discriminated against. That does not make ugly and overweight people members of a judicially protected suspect class. Why? Because they have access to political power. If things got too bad for them -- say, if suddenly no one would hire ugly or overweight people, legislatures would kick into gear faster than you can say "majority of the electorate."

75, I thought marriage wasn't about procreation. At least, that's what the gay marriage supporters tell me. How about we allow incest marriages, but have a rule that they have to undergo genetic screening when having kids and are encouraged to adopt, just like gays.

76 - ah, here we go, the comparison to plural marriage. You realize that when people argue that the rights of gays to marry shouldn't be protected because it's just like the rights of would-be polygamists to marry shouldn't be protected, they fail to acknowledge that traditionally plural marriage is illegal because there is a high incidence of related victimization in those scenarios - just like incest.

Where is the associated victimization in gay marriage? Who is hurt by it?

79, it's strange how related victimization isn't so important when liberals argue against drug laws, prostitution laws, pornography laws, etc., but it becomes all-important for polygamy and incest laws.
As it turns out, there already are laws against statutory rape, abuse, and so on.

Let's raise the incest marriage age to 25. If two siblings in their 40s want to marry, who is hurt by it?

80 - uh, their offspring.

81, see 78. Marriage is not about procreation.
Btw, you know that you can have kids outside of marriage, right?

80, and by the way. I'm all for polygamy among consenting adults. Why do i care if you want to have four wives. That's your business, not mine.

Okay, anti-prop-8, pro-gay, pro-woman, pro-minority voter here. Serious, non-flaming, non-rhetorical question here. Why *is* it okay to discriminate based on intelligence but not other characteristics like race, sex, orientation, religion, disability veteran status, HIV status, age, etc., etc.? I mean, to be fair, we've already started down this slope somewhat in society, in that we provide extra accommodations for people with learning disabilities. But what makes intelligence (whatever that means) unique?

I suppose there's one possibility that people with intelligence have greater competence, and thus as a society it's in our interest to provide the more intelligent people greater opportunities to put their gifts to society's best advantage. But this is kind of attenuated with respect to how we actually utilize discrimination based on intelligence. Because, hypothetically, a sufficiently smart person, as long as s/he is given the necessary basic resources (I'm talking food/water/shelter here), could pretty much always find a way to become a rocket scientist, or whatever. That doesn't explain why we reward smart people -- who only have POTENTIAL to do great things -- with more money, better opportunities, etc. than dumb people, who actually are also quite capable of making contributions to society that are of equal or greater value than the contributions ultimately made by many intelligent people (for instance, I'm sure most would agree that Bernie Madoff, by all accounts an extremely intelligent individual, has made DETRIMENTAL contributions to society that outweigh the detrimental contributions of even the most asinine and Neanderthal of individuals).

So while an intelligent person might have greater POTENTIAL for doing something to benefit society, why does it make sense to us to provide that person with rewards BEFORE s/he has made any such contributions? Perhaps a bit of elitist narcissism compels us to disdain individuals of low intellect?

I'm serious here. I don't really have a good answer to this question. I don't have a good alternative to our own system, either, but I don't think the question deserves to be simply dismissed out of hand. It's worth discussing.

82 - ok, so let them get married, but make it illegal for them to have children together. I don't care. Whatever construct you can think of that avoids the victimization issue is fine. The bottom line is that trying to compare gay marriage to other situations where victimization has traditionally been a key concern is just bogus. And the pundits know it.

84, look, i don't necessarily disagree with you. But the point is that those who argue against gay marriage consistently construct comparatiave arguments that are at least in some part faulty or argue that it's bad for society, bad for families - whatever that means. When the reality is that gay people are treated differently from straight people. Because they are not entitled to marry, they are not afforded the same rights that married people have, in particular in very diffilicult situations like death and the breakup of relationships. All of the comparisons and academic diatribes aside, from a really very basic point of view, why should that be? Why should t my gay friend be prevented from being at his partner's bed-side when he is dying just because his partner's family members say he shouldn't? And don't tell me you can just construct some domestic partner arrangement that gives gay people all of the same rights. If they are going to have all of the same rights then why not just call it marriage and be done with it. It just doesn't make any sense.

If prop 8 is really only about the use of the word "marriage", then why is the government involved? Since when is it the government's role to define words? When governments print dictionaries, you know there's something totalitarian going on.

This is crazy. Is Olson trying to kill the gay right movement? Is he doing this on purpose?
I am a huge supporter of gay marriage. I of course voted against prop 8 and hoped that the CA Supreme Court would kill it. I was disappointed and I'm looking forward to 2010 or 2012 to have the people change it.
I also think that the ban on gay marriage is a clear violation of the 14th Ame. of the Fed. constitution.
THAT BEING SAID, this is SO the wrong time to raise this issue in a federal court. If those guys win in the 9th Cir. it will make gay marriage legal in many conservative states, including for example ID or Utah. Do we really need to push this issue so hard now? I think a graduate process will be much more helpful in promoting gay marriage. As part of this process a federal case should be presented in the future, but not now. WAY to early to force Utah to allow gay marriage.

1,

Not that it matters, but I'm a practicing lawyer. If Olson is doing it pro bono, then I'm left with my second conclusion, which is that 88's hysteria is warranted. I'm not saying it's beyond the realm of possibility that Olson's being genuine -- I've only met him once and definitely haven't searched his writings and speeches for an opinion on gay marriage, but I think it's fair to be suspicious when a big-time conservative lawyer takes on a case that challenges conservative beliefs on a huge social issue, where his position also aims to strengthen the federal government at the expense of state governments and pushes for judicial override of the popular will. The possibility that he's sandbagging the operation is only bolstered, I think, by the fact that now gay rights groups are coming out and saying the suit is premature. I hope Olson is really behind this, but I also hope Boies is really involved to make sure there's no bullshit from an insincere Olson.

-54

84: back to the earlier comment about harvard admission...if a dumb person could meet harvard's arbitrary admission requirements, then they would be accepted. regardless of the fact that they are actually very dumb. so the dumb person is not actually discriminated against just because s/he can't get into harvard (b/c many very smart people can't either). discrimination does not mean denial of opportunity.

kids, we don't discriminate against dumb people.

88 & 89, i am wondering the same thing. maybe olson is really "socially liberal" as the prop-8 people say. i thought he might have that libertarian thing going on but that opposes the idea of more federal regulation. i am perplexed.

88-

You say that "a federal case should be presented in the future, but not now." But what do you say to all the couples in California who want to get married, but after Prop. 8, may not?
You tell them to wait it out? For how long?
If this is the "so the wrong time," when exactly do you envision the "right time" will arrive"?
And what do you propose that those loving couples do while they patiently wait for your master plan to unfold? Embrace their status as second-class citizens?

With respect for your good intentions, that just doesn't work. These couples are suffering a grevious wrong today and each day they are told by the state that their relationship is not good enough to be called a "marriage." Any while many adult smile through the stigma, many teenagers don't have that strength, and some of those kids kill themselves because they can't bear the thought of living an entire adult life being branded as defective.
For all these people, YES "we really need to push the issue so hard now." They don't have the luxury of waiting. Their lives are going by.

P.S. Utah is in the 10th Circuit

I have a theory about why gay marriage is a bad idea. It has nothing to do with morals, and made up "rights".

I'm against gay marriage because if we give gays that, they won't sit down and shut up. They'll move on to the next issue -- something else will be a decade long rallying cry. And if we give them that, they will find another issue, and so on. Eventually, you'll see President Mohammad in 2034 appoint a gay Supreme Court Justice who is about 50th on the list of most qualified candidates, for the simple reason that he'll win big "diversity" points for appointing the first openly gay justice. And this sort of thing will happen all up and down the institutions of the country, further weakening our meritocracy with even more out of control, inefficient, and discriminatory affirmative action and diversity hysteria. Happened with the blacks, happening with the Hispanics, and it will happen with gays too if we don't draw a line in the sand.

Sucks for them, but long-term institutional efficiency is just more important than the ability of 3% of the population to marry.

93 = reason why you shouldn't marry your sister (or at least breed with her).

92 -

88 here. I am well aware that those couples are suffering and are being treated like 2nd class citizens. I am also a realist.
You asked until when they need to wait? If they are in CA - I guess a year (Nov. 2010 election). Maybe 3. If they are in Utah - probably about 8-10 years or maybe a little less if the case is taken to a Federal court in the "right time" - 3-5 years.
You can check it out here: http://mapscroll.blogspot.com/2009/04/mapping-future-of-gay-marriage_04.html

In other words - do you think we can win this in the Federal system now? Only 4 states actually perform same sex marriage (and we know how Justice Kennedy likes to look at those numbers in his opinions). CA, one of the more liberal states, just outlaw it. 12 of the 13 federal cir. court are controlled by conservative judges. The SCOTUS is controlled by conservites justices. There are probably less than 10 US senators that publically support federal same sex marriage. The majority of American still object to the idea. The conclusion is that pushing it now will probably fail and cause a huge damage to the natural process of legalizing it. Even if you win in court, it will unite the conservative like Roe and you will never hear the end of it.
We should take it a bit slower. Let the demographic work for us. Let the old voters who hate gay die and being replaced by young and very supportive voters.
We should first take new england, new york, new jersey, CA, Hawaii and a few other liberal states. Let Obama make a few additional appointments in federal court and than, in 3-5 years, when American are about equaly divided on the issue - take it through the federal system, with a great chances of success.

Wouldn't giving free human anatomy lessons clear this whole gay marriage issue up?

haynes and boone's houston office should get involved

they have a number of gay partners who are "active" in the gay community

I think this shows the remarkable arrogance of Olson and Boies. I hate to be pessimistic, but there is clearly a high probability that they will lose badly before the supreme court, which would be a major disservice to their clients and cause.

24 - Virginia used the same argument in Loving; they lost.

86 - oh, absolutely agreed. And probably really what it boils down to is that this isn't the time or place for the discussion. Just saw it being discussed and thought I would throw out my thoughts. But you're absolutely right that it's mostly a distraction tactic by the right, who has no interest in defending the rights of the mentally challenged anyway.

90, your response misses the point. No one is arguing that a less intelligent person DOES meet Harvard's admission standards (otherwise they'd be getting in and there'd be no discussion). I think the question is, rather, (at least in part), are those admissions standards legitimate, or are the standards THEMSELVES unfairly discriminatory? (As, e.g., a requirement that you be able to bench-press 200 pounds to be a police officer -- the fact that more men than women would qualify under that standard isn't what makes the administration sexist/discriminatory; what makes it sexist is that it's an arbitrary standard likely designed to keep women out of the police force, even though it has little to nothing to do with their ability to actually do their jobs).

Anyway, as I said to 86, this probably isn't the time or place for the discussion. So let's discuss it some other time and instead, right now focus on deflecting poorly-formulated, unreasoned right-wing arguments against marriage equality.

-84

A possible argument for trying this case now as opposed to in five or ten years --

This may be the only chance we have to get this issue before the Ninth Circuit *in this way*. Keep in mind that, *in California*, under the In re Marriage Cases decision, sexual orientation is a suspect class, subjecting discriminatory laws on that basis to heightened scrutiny (conversely, this is NOT the case under federal law and the law of most states). Given that CALIFORNIA treats gays as members of a suspect class, perhaps there's an argument to be made that stripping them of rights, by amendment or otherwise, is therefore a violation of their 14th Amendment rights. I'm not a constitutional lawyer and am a number of years out from law school, so I don't know if you can mix state and federal constitutional law like that... but it doesn't seem to me there's any *particular* reason you couldn't.

So, for one thing, the argument underlying this particular case might be kind of unique -- even if the federal government doesn't give sexual orientation heightened scrutiny, California does, and given THAT, there are more serious 14th Amendment concerns.

Of course, of all the circuits in the country, the 9th is the best one to hear this case. And assuming the voters fix this in the next few years anyway (which we likely will), this will be the only chance to bring a California case on the issue (Washington, Oregon, and Hawaii are doubtful candidates for doing something similar -- the right would expend far fewer resources trying to defeat gay marriage in those states than it did in California). AND, given the mixed state and federal law issues that it might be deciding, in addition to political publicity attached to the issue, there's a fair chance that THIS particular case would be less likely to be granted cert than would a case relying only on federal law.

I mean, if SCOTUS can decide the Pledge case on a technicality, I doubt it will want to dip its toe into the waters of the gay marriage debate a second earlier than it has to.

101 - I don't think you can make this argument and that mix. A state can decide to treat a group of people as suspect class but that is not the same as "suspect class" under federal law. You can't have state law dictates how to interpret federal law.
Gay are probably a suspect class because of the SCOTUS caselaw.

102, the difficulty is that it's ambiguous under Lawrence what the status of sexual orientation is under federal law. Kennedy's majority opinion used the language of rational basis review but aside from calling it "rational basis" his reasoning SOUNDED a lot closer to intermediate scrutiny, so the states have been left scratching their heads for the past six years. It seems to me the argument would be more along the lines of holding California to its own rules -- like, okay, California, if you're going to say that being gay is a protected class, then follow constitutional law about how you treat protected classes. I don't know if this argument would work or not but I'm not aware of any case law saying it can't. Probably because it's kind of a unique situation.

103 - you are right about Lawrence but probably not about the rest.
When CA court holds that gay is a protected class they are actually saying "protected class under state law." That is the only thing that they can say. What does protected class under state law means? Whatever the state law, as interpeted by the state supreme court, says it means. It is almost accidential that federal caselaw and state caselaw use the same term of art (e.g., "suspect class") but the meaning doesn't have to be similar. If CA caselaw would have called it "disprivileged class" would that make a different? No. This is state law.
When a federal court need to decide if gay is a protected class it will look only at federal caselaw, even if the answer under this caselaw is not perfectly clear.

104, right, *except* that the whole point of 14th amendment jurisprudence is that while the state can afford *greater* protections to its citizens than the federal government does, it can't provide anything *less* than a certain baseline of rights.

I see your point about classes fitting only within the confines of the constitution under which they arise. I'm not saying it's a slam-dunk argument, more just kind of thinking out loud. It seems to me the argument might be something along the lines of, California is denying its citizens due process by failing to uphold its own rules with respect to this one class of citizens. Basically it would be a way of getting around having to clarify the status of gay people under the US Constitution. Which I consider desirable only because of the current makeup of the Supreme Court (I don't trust Kennedy to do the right thing). So maybe that's a little different from subbing in California class status into the federal due process analysis. I think in essence what I'm saying is maybe there is an argument that the manner in which California has allowed a group of citizens *its jurisprudence* treats as specially protected, is itself a violation of due process. Not because of the federal level of scrutiny analysis, but because California has gone against its own precedent in a way that fails rational basis review? Something like that?