Sunday, March 06, 2005

just a though

I don't know if this has been brought up or argued anywhere, but right now I just had to read, for property class, Baker v. State 744 A.2d 864 (Vt.. 1999). In this case they pretty much say that homosexuality is a suspect classification based on Article 7 of their Constitution. (Again all cites come from the case and so I will not put in internal citations and say anything referring to this case comes from the case) I was thinking about this because of all the stuff that is going on. I was thinking about Carolene Products footnote 4 and think I have come to a conclusion.
Homosexuals are not a discrete and insular minority. Homosexuals come in all shapes and sizes and of all races and genders. They hold a plethera of jobs. I think they have a fair shot at political recourse. They may lose, but they have a shot at it. Let's not forget that white males, the most unprotected class in all of America, has representatives among it that are homosexual. So no I don't not think they are a discrete and insular minority that is disserving of automatic judicial protection.
I am still a bit vexed about the equal protection claim. First off I think a truck that wants to put it's own companies advertise on it and a truck that wants to put other companies advertisements on it are different. That is not treating similarly situated individuals differently. I know that this will be disagreed with on the whole, but I think it is true. The company that puts up it's own adds also cannot put up other people's adds.
How does this apply to the debate at hand. Well it will go something like homosexuals have all the exact same rights as straight couples. Neither set of couples can marry into the same sex. People will argue that the proper class is people that want to get married and that you are discrimination against certain people that are within the class of people that want to get married. I dont' really see this because I think you can seperate the classes into people that want to marry those of the opposite sex and those that want to marry the same sex. I think these are differently situated individuals. That being so you are still not allowing people to marry the same sex and treating that class of people differently from another class of people. Ok that may be true, but since you are not a discrete and insular minority you ought to take that up with the legislature.
Personally I don't really care who gets married. I dont' think arguments saying that the institution of marriage will be irrepairably harmed by allowing same sex couples to be married carry much weight. I think if you like that argument then you pretty much have to hate no fault divorces because they caused the number of divorces to skyrocket and I can think of nothing that hurts marriage more than a divorce. So that argument I just think is no good. So where do you go from here. i think it is a state issue. Vermont allows civil unions and it looks like Massachusetts is going to allow gay marriage. Great for them. Some states have decided to put it into their own constitutions that they don't want to allow it. Great for them. One reason I like having autonomous states is that they can choose to live differently than other states. That means those who hate gay marriage can live in Michigan and those who love it can live in Massachusetts. This is also why I agree with Raich in Raich v. Ashcroft. I think people that want to go either way should create movements in their states to push their lifestyle. Most states will respect your property interests once you move to another state so you can live somewhere and get married then move to another state and keep your property interests if you need to. What I love about this country is the freedom to be different. I think that also means the freedom for one state to allow something and another state to not allow it.


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