Does, Brown v. Board of Ed, apply to Gay marriage?

[Exultant Democracy]

If separate is by definition not equal, I think we would have to accept that giving people civil unions instead of marrages has to be considered unconstitutional.

I know some Black people feel uncomfortable equating the fight for gay marriage with the civil rights struggle, but the fact is that they are in many ways the same fight. Until all men was free we will all be bound by the same chains of oppression.

[buckeye1]

1. The amendment is DOA.

It won't get out of committee. Time to bury this dead issue.

[Exultant Democracy]

12. This issue isn't dead

I may not be gay, but what you do unto the least of my brothers you do unto me. How can I be who I ought to be until "you" can be who you ought to be too?

What does any marriage mean until all people who love each other and wish to be married are allowed to.

[Ysabel]

16. agree...

none are free unless and / or until all are free...

[Hand]

2. The argument's quite possible...

Lawrence Tribe (Harvard Law School leftie prof) made that exact point on the NewsHour this week. He used it against the "Marriage no, Civil union maybe" idea. Essentially, this is "separate but equal", and Tribe says "As we know, separate is not equal."

QED!

[DuctapeFatwa]

3. Yes. The court that appointed bush will have to overturn it, and

the congress will have to amend the first amendment to remove the language relating to religion, and repeal the 14th, in order to avoid both constitutional crisis and endless legal challenges.

[Exultant Democracy]

4. I feel bad but I think we need to call our candidates to task on this

It is not acceptable to try and keep your wiggle room with matters of civil rights. At first I was alright with the stand the Kerry and Edwards were taking, but when you look at it from this angle it has to be seen as a constitutional battle that can not be left up to the states. The law has already spoken, separate is not equal, and the 14th amendment give all people the same rights.

[DuctapeFatwa]

5. Equal Rights under the law as an opt-in choice for states has a lot of

very business-friendly potential.

Suppose I have 50 office employees, and several hundred laborers.

Most of the laborers belong to a particular ethnic group.

It would help me out a lot if my state would establish a separate legal status for that ethnic group. I could save a bundle in benefits alone!

[Mattforclark]

6. "It is not acceptable to try and keep your wiggle room"

That's nice in principle, but suicide in practice.

Even the SC judges that decided brown/board proceeded within the political context they faced. If they had not softened the blow to the extent possible, progress would have stalled. Politics is the art of what's possible. That is why those who want to make abortion illegal worked on 'partial birth' abortion.

Politics does not end where the constitution begins.

[Exultant Democracy]

8. The, B v. B of E, was not the politically prudent choice

If fractured and almost destroyed the Democratic party and allowed the Republican to run a race baiting agenda in the south, but in the end with federal support its benefits outpaced it's costs.

This needs to be an issue of civil rights, not an issue of gay marriage.

[Mattforclark]

10. political prudence

"The, B v. B of E, was not the politically prudent choice. It fractured and almost destroyed the Democratic party and allowed the Republican to run a race baiting agenda in the south, but in the end with federal support its benefits outpaced it's costs."

Quite true. It is also true that state gay marriage is not a politically prudent choice. But the Supreme Court, even in deciding Brown v. Board, was not blind to political considerations. It could have been even worse (politically).

"This needs to be an issue of civil rights, not an issue of gay marriage."

That's what it is.

[Exultant Democracy]

11. How do you feel our candidates should handle this issue then?

So far they have ducked it, and kept it narrowly defined as an issue of marriage, and not as a civil rights issue (Just JE and JK, not DK and AS.)

[Mattforclark]

13. I think

that ducking it is wise. Quietly, on the side lines, they should do what is possible to help, but not expose themselves to political death. John Kerry's stated opposition means very little, because he doesn't have any power over the issue besides his vote on FMA. As long as he doesn't vote for that, or take actions to undermine the cause of civil rights, we should give him credit.

I am most certainly not saying that we should not fight, I am saying that our presidential nominee should not lead the fight, and that we should try not to overplay our hand to the extent of causing massive backlash (IE the FMA passing). We get what we can today, and then tomorrow we get some more. The demographic trends are very much in our favor.

The nominee will move to the center during the election, and then during his presidency will move back to the left.

[Exultant Democracy]

15. Well what you think is what they are doing,

if it works you will be right, but what if much like Clinton they only make a small token gesture and continue to ignore the needs and rights of the gay community.

If you let a politician off a hook, they aren't very likely to jump back on it.

[Beer Snob-50]

7. civil unions and marriage is two ways of saying the same thing

one is the secular civil term and the other is religious.

[Exultant Democracy]

9. Not when it comes to social security benefits.

[plcdude]

14. all legal marriages are

civil unions. It is a civil right matter.

[iverglas]

17. why "separate but equal" is not equal

... and is therefore not constitutionally acceptable.

I thought some might enjoy what the Supreme Court of Canada has had to say about that.

http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol1/html/1998scr1_0493.html

In this case, the Court held that a provincial law that prohibited discrimination in the private sector (housing, employment ...) on the grounds of sex, race, religion, etc., had to be interpreted as also prohibiting discrimination on the ground of sexual orientation. (All emphases added.)

Nonetheless that exclusion, deliberately chosen in the face of clear findings that discrimination on the ground of sexual orientation does exist in society, sends a strong and sinister message. The very fact that sexual orientation is excluded from the IRPA, which is the Government's primary statement of policy against discrimination, certainly suggests that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination. It could well be said that it is tantamount to condoning or even encouraging discrimination against lesbians and gay men. Thus this exclusion clearly gives rise to an effect which constitutes discrimination.

The exclusion sends a message ... that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. The effect of that message on gays and lesbians is one whose significance cannot be underestimated. ...

Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetrates the view that gays and lesbians are less worthy of protection as individuals in Canada's society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.

From the 2003 Ontario Court of Appeal decision striking down the ban on same-sex marriages (first quoting an earlier Federal Court decision in an immigration case):

http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.

... Marriage is, without dispute, one of the most significant forms of personal relationships. For centuries, marriage has been a basic element of social organization in societies around the world. Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflect society’s approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships. This can only enhance an individual’s sense of self-worth and dignity.

... Historically, same-sex equality litigation has focused on achieving equality in some of the most basic elements of civic life, such as bereavement leave, health care benefits, pensions benefits, spousal support, name changes and adoption. The question at the heart of this appeal is whether excluding same-sex couples from another of the most basic elements of civic life - marriage - infringes human dignity and violates the Canadian Constitution.

And of course, the answer was and is "yes". It does.

It's so simple.

.