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

[CJK]

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.

[SteveRogers]

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.

Ok, I'll bite.

While the Supreme Court hasn't yet clarified what level of judicial scrutiny is appropriate for government discrimination on the basis of sexual orientation, I'd argue it should be the same intermediate scrutiny used for sex/ gender discrimination, so the government must show that a law (1) furthers an important government interest, and (2) the disparate treatment is substantially related to that interest.

When addressing laws treating men and women differently, the Supreme Court has often upheld laws that can be justified by demonstrable physical differences between men and women. (Ex. SCOTUS has ok'd requiring men but not women to register for the draft). 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.

As for marriage, states generally try to justify their gay marriage bans by claiming government interests in promoting procreation and stable families. But accepting those interests as important, a blanket denial of marriage rights to gay couples doesn't actually do anything to further those interests. There's no evidence that letting gay couples get married will stop straight couples from getting married, having children, and raising those children in stable households. Legalizing gay marriage doesn't actually turn anyone gay, so unless you're literally arguing that gay people should enter sham marriages with the opposite sex purely for the sake of procreation, it's not as if anyone who would otherwise be settling into a straight marriage is suddenly going to go get gay married and forego having kids instead. The other claimed government interest in enforcing gay marriage bans is of course moral disapproval of homosexuality, but the Supreme Court has already made it clear that "bare animus" towards a group of people is never a legitimate government interest.  

And discrimination on the basis of orientation isn't a very good fit for the claimed interests in procreation and stable households anyway. On the one hand, straight but infertile couples are allowed to get married. On the other hand, gay people can in fact have biological children, so if the government is really concerned about ensuring children grow up in a stable household with two parents, it makes no sense to deny marriage rights to gay couples. Again, if you have a child born to a gay father via a surrogate, the government has no argument that that child would be raised in a "one man, one woman" household were it not for gay marriage being legalized.  

Additionally, marriage is a fundamental right, and any law that denies that right to any pair of consenting adults should actually trigger strict scrutiny.

[bedstuy]

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.  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 sex segregated or it isn't.   

A marriage is for two people.  There is no sharing of marriage between people.  There is no zero sum game where same-sex marriages change the nature of opposite sex marriage.     

And, legally, you can create a large bathroom that caters to both sexes, if you would like.  Besides, there's no deprivation if someone who is comfortable using such all gender bathroom uses a sex-segregated bathroom. 

So, this is just a stupid argument.

[CJK]

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. 

[CJK]

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.

[True Federalist (진정한 연방 주의자)]

A marriage is for two people.  There is no sharing of marriage between people.  There is no zero sum game where same-sex marriages change the nature of opposite sex marriage.     

And, legally, you can create a large bathroom that caters to both sexes, if you would like.  Besides, there's no deprivation if someone who is comfortable using such all gender bathroom uses a sex-segregated bathroom. 

So, this is just a stupid argument.

There are those opposed to SSM who would dispute that, tho certainly that is what civil marriage is primarily about these days.  I would agree with you that same-sex marriage does not change the nature of opposite sex marriage.

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.)

[bedstuy]

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

And, you can build your own private bathroom however you want.  You can't get a same-sex marriage in certain states.  Stop being a dumb-dumb.

A marriage is for two people.  There is no sharing of marriage between people.  There is no zero sum game where same-sex marriages change the nature of opposite sex marriage.     

And, legally, you can create a large bathroom that caters to both sexes, if you would like.  Besides, there's no deprivation if someone who is comfortable using such all gender bathroom uses a sex-segregated bathroom. 

So, this is just a stupid argument.

There are those opposed to SSM who would dispute that, tho certainly that is what civil marriage is primarily about these days.  I would agree with you that same-sex marriage does not change the nature of opposite sex marriage.

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.)

Well, those people can have any opinion they want.  Legally speaking though, they're wrong.  It's a decision between two people and the government doesn't evaluate their fitness for marriage or let a panel of their peers vote on it.

[SUSAN CRUSHBONE]

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?

it shouldn't be. unfortunately, society hasn't advanced that far yet.

[CJK]

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?

[SteveRogers]

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.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

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?

This. Activist judges don't say that it's unjustified to discriminate between rich and poor on welfare, health care subsidies, and tax subsidies, or unjustified to discriminate between women and men on roles within the military (yes, this is done less now, but it's not gone by any means) and the right to use a certain bathroom, or unjustified to discriminate between old and young on all sorts of health and income related assistance, so the idea that marriage is this "special issue" in which we must widen it until no one can possibly complain about its scope being too small is really kind of silly.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

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.

Nothing bad will happen to you (in most cases) if you use an unsegregated bathroom....

[7,052,770]

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.

[CJK]

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.

[CJK]

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.

[SUSAN CRUSHBONE]

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.

a woman is allowed to marry soren bowie but a man isn't. how is that equal?

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and once again, that would be a good thing.

[SteveRogers]

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

This is among the most offensive, ignorant, and intellectually dishonest defenses of gay marriage bans that gets tossed around. Do you expect that gay men and women across the county should be comforted by the fact that they have the right to  enter into a sham marriage with someone of the opposite sex who they don't love?

[SteveRogers]

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.

[CJK]

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.

[SteveRogers]

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.

[CJK]

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?

[Ban my account ffs!]

Gays have to learn to share bathrooms with straight men.  I have no problem sharing them with women.  Though in that case I might consider more privacy around urinals or just have stalls.

[CJK]

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.

[afleitch]

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.

[CJK]

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?