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Also, it should be noted that in the example you provided, the conclusion had been reached that, on the basis that compulsory registration of the offenders regulated by the law, was non-punitive it didn't fall under the definition of an ex post facto law per article one section nine of the federal consitution: Link.
My point was that the US Supreme Court has created a series of exceptions for "expost facto" laws, allowing the government to pass such laws when the penalty is civil in nature. Here, the penalty would be civil in nature and allowed by SCOTUS.Quote:
Originally posted by Theairoh
Yeah. I'm aware of this example, but how are gay people who were married under the previous laws sex offenders exactly? Those laws don't apply to them, and they are just one kind of retroactive law in recent history. Just because there was one exception doesn't mean there will be a hundred more, and instating ex post facto laws has generally been considered very bad fair. Considering prop 8 was reacted to with a great deal of mixed feelings from many officials I don't think it, or any laws spawned by it, will receive the same support.
Wrong. The court can and should ignore things like feelings, emotions, and so forth - it is a court. I do not understand your last point though, about something being 100%. Marriage rights are granted by the state, the state has the power to grant, change, and revoke that which it grants.Quote:
Also, just because the constitution states something doesn't implicitly make it automatically so. The court can't just 'ignore' the marriages because they happened when it was legal, their licenses and marriage rights are 100% valid until they are revoked/altered by a new law or judgment. Something which, the supreme court of California is now apparently reviewing. [/B]
If by punitive you mean criminal, you are correct - however - I suspect you mean penalty in general.Quote:
Originally posted by Theairoh
Also, it should be noted that in the example you provided, the conclusion had been reached that, on the basis that compulsory registration of the offenders regulated by the law, was non-punitive it didn't fall under the definition of an ex post facto law per article one section nine of the federal consitution: Link.
Ex post facto applies almost exclusively to criminal laws. Here, California did not pass or create anything with criminal contexts involved. SCOTUS has repeatedly held, and did so in the link you provided, that as long as the penalty is civil in nature then the State can do it almost at will. Here, the penalty would be civil in nature - the revocation of a marriage license. Sure, the two people could claim to be married, but under the law they would not.
Sexual Orientation employment protections by state:
Alabama:
No protection
Alaska:
Since 2002: Sexual orientation protected in state employment
Arizona:
Since 2003: Sexual orientation protected in state employment
Arkansas:
No protection
California:
Since 1979: Sexual orientation protected in state employment
Since 1992: Sexual orientation protected in all employment
Since 2003: Gender identity protected in all employment
Colorado:
Since 1990: Sexual orientation protected in state employment
Since 2007: Sexual orientation and gender identity protected in all employment
Connecticut:
Since 1991: Sexual orientation protected in all employment
Delaware:
Since 2000: Sexual orientation protected in state employment
Florida:
No protection
Georgia:
No protection
Hawaii:
Since 1991: Sexual orientation protected in all employment
Idaho:
No protection
Illinois:
Since 1996: Sexual orientation protected in state employment
Since 2005: Sexual orientation and gender identity protected in all employment
Indiana:
Since 2001: Sexual orientation protected in state employment
Since 2004: Gender identity protected in state employment
Iowa:
1999-2000: Sexual orientation and gender identity protected in state employment
Since 2007: Sexual orientation and gender identity protected in all employment
Kansas:
Since 2007: Sexual orientation and gender identity protected in state employment
Kentucky:
2003-2006, as of 2008: Sexual orientation and gender identity protected in state employment
Louisiana:
1992-1996, since 2004: Sexual orientation protected in state employment
2008- No protection[1]
Maine:
1997-1998: Sexual orientation protected in all employment
Since 2001: Sexual orientation protected in state employment
Since 2005: Sexual orientation and gender identity protected in all employment
Maryland:
Since 1995: Sexual orientation protected in state employment
Since 2001: Sexual orientation protected in all employment
Since 2007: Gender identity protected in state employment
Massachusetts:
Since 1989: Sexual orientation protected in all employment
Michigan:
Since 2003: Sexual orientation protected in state employment
Since 2007: Gender identity protected in state employment
Minnesota:
Since 1991: Sexual orientation protected in state employment
Since 1993: Sexual orientation and gender identity protected in all employment
Mississippi:
No protection
Missouri:
No protection
Montana:
Since 2000: Sexual orientation protected in state employment
Nebraska:
No protection
Nevada:
Since 1999: Sexual orientation protected in all employment
New Hampshire:
Since 1997: Sexual orientation protected in all employment
New Jersey:
Since 1991: Sexual orientation protected in state employment
Since 1992: Sexual orientation protected in all employment
Since 2006: Gender identity protected in all employment
New Mexico:
Since 1985: Sexual orientation protected in state employment
Since 2003: Sexual orientation and gender identity protected in all employment
New York:
Since 1983: Sexual orientation protected in state employment
Since 2002: Sexual orientation protected in all employment
North Carolina:
No protection
North Dakota:
No protection
Ohio:
1984-1999: Sexual orientation protected in state employment
Since 2007: Sexual orientation and gender identity protected in state employment
Oklahoma:
No protection
Oregon:
Since 1987: Sexual orientation protected in state employment
Since 2007: Sexual orientation and gender identity protected in all employment
Pennsylvania:
Since 1975: Sexual orientation protected in state employment
Since 2003: Gender identity protected in state employment
Rhode Island:
Since 1985: Sexual orientation protected in state employment
Since 1995: Sexual orientation protected in all employment
Since 2001: Gender identity protected in all employment
South Carolina:
No protection
South Dakota:
No protection
Tennessee:
No protection
Texas:
No protection
Utah:
No protection
Vermont:
Since 1992: Sexual orientation protected in all employment
Since 2007: Gender identity protected in all employment
Virginia:
Since 2005: Sexual orientation protected in state employment
Washington:
Since 1985: Sexual orientation protected in state employment
Since 2006: Sexual orientation and gender identity protected in all employment
West Virginia:
No protection
Wisconsin:
Since 1982: Sexual orientation protected in state employment
Wyoming:
No protection
District of Columbia:
Since 1973: Sexual orientation protected in all employment
Since 2006: Gender identity protected in all employment
And, of course: Executive Order 13087 protecting sexual orientation in federal employment.
H.R. 1592: Local Law Enforcement Hate Crimes Prevention Act of 2007 aka Matthew Shepard Act - Still pending Senate:
(a) In General- Chapter 13 of title 18, United States Code, is amended by adding at the end the following:
"(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person--
(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(i) death results from the offense; or
(ii) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person--
(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(I) death results from the offense; or
(II) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill."
Notice that the provisions for the classically protected elements (Race, Color, Religion, or National Origin) is identical in every way to the new provisions protecting sexual orientation and gender identity.
From barackobama.com - "Obama and Biden will strengthen federal hate crimes legislation, expand hate crimes protection by passing the Matthew Shepard Act, and reinvigorate enforcement at the Department of Justice's Criminal Section."
Its passage is probably inevitable at this point.
The funny thing about rational basis scrutiny, that you mentioned, is that it has been used to strike down anti-gay laws as well as, as you've detailed, not protect sexual orientation in its appeals.
Romer v. Evans, 517 U.S. 620 (1996)
Lawrence v. Texas, 539 U.S. 558 (2003)
And, an interesting aside:
http://messengerandadvocate.wordpres...e-an-analysis/
The California Supreme Court struck this down using the strict scrutiny basis of review (Isn't this your state?).
I'm not a law student by any stretch of the imagination, but from the information I've given above, I think we could construe that sexual orientation is a class, a defineable group of people, and has a level of protection in some jurisdictions and even in the Supreme court to a degree, while not (currently) adhering to the definition of the strict scrutiny review.
With the nullification of sodomy laws, the addition of employment protections for sexual orientation, and the pending hate crimes ammendments - I guess I was hasty in labeling sexual orientation as a protected class in the Federal arena. Though, I'll point out that a large number of people and media outlets refer to sexual orientation as a "protected class" atleast at the State level.
I think I already said, regarding the issue of protecting minorities, that I can produce no law or instruction in this case. That doesn't make it right, though. And we're back to our original argument where you essentially implied that we should rejoice in the proper function of our system of law, and I suggest that it's absurd because there are obvious inequities (in that a minority is subject strictly to the majority's will in all cases) and I simply can't condone the complacency that you do on this issue, and I'd actually go as far as to say it's dangerous to be so complacent.Quote:
Joreth: I would challenge you to produce law to the contrary.
Lead paint was once extremely popular (Maybe it still is: see China)- that didn't make it a good thing.
Anyhow, I've enjoyed arguing with you, I've learned alot, and I've had alot of fun. Hopefully, if there's anything else to squeeze out of this thread, we can get back to the topic at hand.
I am aware of this. However, you can't really be sure whether or not this will be a 'civil' matter until it is resolved by the supreme court. There have been zero laws created since prop 8 was passed, although the supreme court called a temporary halt to gay marriages until a decision was reached. Based on the wording, (found here:Link. I know Dalaena was looking for it.) I actually think they will have to make gay marriage ILLEGAL, and thus those married would be committing a criminal offense under any such new laws. The matter of what is 'punitive' or not however, seems to be a very annoying gray area that these future decisions could easily get caught up in.Quote:
Originally posted by Joreth
My point was that the US Supreme Court has created a series of exceptions for "expost facto" laws, allowing the government to pass such laws when the penalty is civil in nature. Here, the penalty would be civil in nature and allowed by SCOTUS.
On the other hand, if the supreme court authorized it, any such laws could be enacted retroactively.
Actually, they don't have any right to just take them away on a moment's notice after they were legal in the first place. What I am saying here is that, gay marriage WAS legal in California, gay couples were MARRIED in California. Since there has been ZERO rulings and ZERO new laws regarding gay marriage since prop 8 was passed, their marriages are actually STILL valid until some new law/ruling is made to invalidate them. Just because the state's constitution now says it's so doesn't mean it's been enforced yet. That alone is not enough to annul those marriages on it's own power.Quote:
Marriage rights are granted by the state, the state has the power to grant, change, and revoke that which it grants.
The question here, is if they do enforce them, are they initiating ex post facto laws? That all depends on what laws are created, and what the supreme court of California finally decides.
Wait. wut?Quote:
Here, California did not pass or create anything with criminal contexts involved. SCOTUS has repeatedly held, and did so in the link you provided, that as long as the penalty is civil in nature then the State can do it almost at will. Here, the penalty would be civil in nature - the revocation of a marriage license. Sure, the two people could claim to be married, but under the law they would not.
It would be the state's responsibility to see those marriages criminalized, not a private sector nor that of civilians. So, how would those punishments be civil? It would be the state's attorney's job to prosecute that sort of thing, so they would be criminal offenses. I don't know what the difference is EXACTLY between civil/criminal punishments but I would think that a revocation of marriage rights, per a criminal offense would've fallen under criminal punishment. Feel free to enlighten me if I'm incorrect on this, the difference between civil and criminal law confuses the crap out of me.
In any case. The only thing one could argue against that with is to say this is a 'regulatory' law, rather than a punitive one, but that is still a gray area because these things were LEGAL before and no outside factor other than 'ur gay, gtfo' is being used to stipulate that.
You are still missing the point. All of those things, from States, further illistrate that it IS A STATES ISSUE, moreover, if you really read Romer v. Evans you will see that sexual orientation is NOT a protected class.Quote:
Originally posted by Cais
[B]Sexual Orientation employment protections by state:
...
And, of course: Executive Order 13087 protecting sexual orientation in federal employment.
H.R. 1592: Local Law Enforcement Hate Crimes Prevention Act of 2007 aka Matthew Shepard Act - Still pending Senate:
(a) In General- Chapter 13 of title 18, United States Code, is amended by adding at the end the following:
"(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person--
(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(i) death results from the offense; or
(ii) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person--
(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(I) death results from the offense; or
(II) the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill."
Notice that the provisions for the classically protected elements (Race, Color, Religion, or National Origin) is identical in every way to the new provisions protecting sexual orientation and gender identity.
From barackobama.com - "Obama and Biden will strengthen federal hate crimes legislation, expand hate crimes protection by passing the Matthew Shepard Act, and reinvigorate enforcement at the Department of Justice's Criminal Section."
Its passage is probably inevitable at this point.
The funny thing about rational basis scrutiny, that you mentioned, is that it has been used to strike down anti-gay laws as well as, as you've detailed, not protect sexual orientation in its appeals.
Romer v. Evans, 517 U.S. 620 (1996)
Lawrence v. Texas, 539 U.S. 558 (2003)
And, an interesting aside:
http://messengerandadvocate.wordpres...e-an-analysis/
The California Supreme Court struck this down using the strict scrutiny basis of review (Isn't this your state?).
I'm not a law student by any stretch of the imagination, but from the information I've given above, I think we could construe that sexual orientation is a class, a defineable group of people, and has a level of protection in some jurisdictions and even in the Supreme court to a degree, while not (currently) adhering to the definition of the strict scrutiny review.
With the nullification of sodomy laws, the addition of employment protections for sexual orientation, and the pending hate crimes ammendments - I guess I was hasty in labeling sexual orientation as a protected class in the Federal arena. Though, I'll point out that a large number of people and media outlets refer to sexual orientation as a "protected class" atleast at the State level.
The media is incredibly misguided, and purposefully mistates the law when it comes to what is a constitutionally protected class. There is a reason that race is the only real protected class - we have an amendment that makes it a protected class. Without the 13, 14, and 15 amendments race would not be a protected class either.
Your point seems to be that because homosexuals are a minority they deserve protected status.
Well I am italian catholic (not practicing) so I think that based on your logic I need to have protected status too, because after all I make up a much smaller segement of the population than homosexuals do... so I deserve more protection - obsurd argument, isnt it?
You're right here. There is no case law or federal law, or even state law, that you can produce that makes sexual orientation a protected class. Everything you "produced" above weakens your argument because any law relating to sexual orientation - where it protects sexual orientation is exceptionally limited.Quote:
I think I already said, regarding the issue of protecting minorities, that I can produce no law or instruction in this case.
There is a proverb you should familiarize yourself with: The law as it is is never as it ought to be.Quote:
That doesn't make it right, though.
If you have a problem with the law, you ought to change it and do so by the proper means. The people in California had a problem with the law and they used the proper means to change it.
Theairoh... nothing in your link shows anyway that Prop 8 is going to make a homosexual marriage ILLEGAL, rather, it is very very simple - it says "All marriages not defined by this amendment will be ignored." It states no criminal sanctions, no penalties, nothing.Quote:
Originally posted by Theairoh
I am aware of this. However, you can't really be sure whether or not this will be a 'civil' matter until it is resolved by the supreme court. There have been zero laws created since prop 8 was passed, although the supreme court called a temporary halt to gay marriages until a decision was reached. Based on the wording, (found here:Link. I know Dalaena was looking for it.) I actually think they will have to make gay marriage ILLEGAL, and thus those married would be committing a criminal offense under any such new laws. The matter of what is 'punitive' or not however, seems to be a very annoying gray area that these future decisions could easily get caught up in.
The only penalty implied is completely civil in nature - it is going to ignore any marriage between two homosexuals. There is no prison sentence anywhere, no felony level, nothing. It is completely civil in nature. Accordingly, your argument that it will be a criminal offense is not accurate based upon the law.
I predict that the California Supreme Court is going to dismiss the law suit, and the matter will be sent to the federal court of appeals to address the federal issue.
Who is they? If they are the voters and citizens of California, you are incorrect. Gay marriage was valid in California, but it was hotly debated. As a result of homosexuals and their voting bloc forcing the issue down the throats of people that fear change the voters freaked out and took away gay marriage. It's that simple.Quote:
Actually, they don't have any right to just take them away on a moment's notice after they were legal in the first place. What I am saying here is that, gay marriage WAS legal in California, gay couples were MARRIED in California. Since there has been ZERO rulings and ZERO new laws regarding gay marriage since prop 8 was passed, their marriages are actually STILL valid until some new law/ruling is made to invalidate them. Just because the state's constitution now says it's so doesn't mean it's been enforced yet. That alone is not enough to annul those marriages on it's own power.
Proposition 8 is really no longer a proposition, it IS law now. All of those marriages are void, they no longer exist, however, the California Supreme Court can issue a stay until it issues a ruling.
Easy question. No.Quote:
The question here, is if they do enforce them, are they initiating ex post facto laws?
You are under this misguided impression that California is making them criminal or illegal. I have no idea where you are getting this, but it really is a shame that you are either being spoonfed incorrect information or you are trying to twist the issue.Quote:
It would be the state's responsibility to see those marriages criminalized, not a private sector nor that of civilians. So, how would those punishments be civil?
Prop 8 does not criminalize gay marriage, it simply makes it null, void, and non-existent in California.
See aboveQuote:
It would be the state's attorney's job to prosecute that sort of thing, so they would be criminal offenses.
It is in no way criminal. The State can pass an administrative rule recalling ALL of the marriage licenses issued to gay partners. It does not need to be criminal, states pass non-criminal rules all the time. For instance, Ohio has over 30 chapters in it's code (read as: law) and only one chapter, chapter 29, deals with criminal law.Quote:
I don't know what the difference is EXACTLY between civil/criminal punishments but I would think that a revocation of marriage rights, per a criminal offense would've fallen under criminal punishment. Feel free to enlighten me if I'm incorrect on this, the difference between civil and criminal law confuses the crap out of me.
Punitive does not mean Criminal. Im not sure why you are confusing the two.... Criminal means felony or misdemeanor conviction. You have to agree with me that the State does not have to make every law a criminal law, it can make many different laws.Quote:
In any case. The only thing one could argue against that with is to say this is a 'regulatory' law, rather than a punitive one, but that is still a gray area because these things were LEGAL before and no outside factor other than 'ur gay, gtfo' is being used to stipulate that. [/B]
Following from that the State can then make civil punishments, think sex offender laws, that are highly retroactive and are a huge and possibly "unfair" burden on people. Those are not retroactive.
No, actually it says 'Only marriage between a man and a woman is valid or recognized in California.'Quote:
Originally posted by Joreth
Theairoh... nothing in your link shows anyway that Prop 8 is going to make a homosexual marriage ILLEGAL, rather, it is very very simple - it says "All marriages not defined by this amendment will be ignored." It states no criminal sanctions, no penalties, nothing.
The purpose of the amendment was to ban gay marriage, not just to 'ignore' the one's that exist/will exist.
Note: Here, and here.
Would you like to present a law or ruling in California that even cites the amendment? Let alone enacts it. Because as far as I know, there's zero.Quote:
Proposition 8 is really no longer a proposition, it IS law now.
Ummm really? Theairoh? Have you been reading what I have been posting? I am not sure if you are just arguing to argue or what, because as I said above it is a ban.Quote:
You have this idea that a ban = criminal, it does not in the civil context, to think otherwise is crazy - moreover - you have presented nothing that would support your proposition that suddenly California is going to criminalize gay marriage rather than just ban it.
Again. No laws are required to enact amendments, amendments are self-executing. In other words as soon as an amendment is passed it is automatically extended to everything that it is supposed to touch.Quote:
Would you like to present a law or ruling in California that even cites the amendment? Let alone enacts it. Because as far as I know, there's zero. [/B]
Now... a court or legislature could then try to extend it further, but that is different.
That's interesting, because the word is yet out on how the state plans on dealing with the previous marriages. If the amendment was just automatic and retroactive then a decision would have been reached by now.
That doesn't seem to reflect what you're saying.
So. Who's arguing for the sake of arguing again?