To make a viable constitutional argument based on the Establishment Clause, you have to establish that somehow the government has established a religion or has become excessively entangled with a religion. To my knowledge, those are the only two lines of reasoning the Supreme Court has used when invalidating legislation because it violates the Establishment Clause.

It’s not sufficient to argue that a law was influenced by religious beliefs or that voters made decisions based on their religious beliefs (among other things, courts are hesitant to infer the beliefs of the voters). It doesn’t matter. The question is: has the government established a religion (it hasn’t) or is the government becoming too entangled in religious affairs (providing public funding for religious programs or creating public displays involving religious symbols or public prayer).

Your argument that this violates the establishment clause doesn’t fall under any existing line of Supreme Court cases. The Supreme Court gets to say what the law means. They get to say what it means for Congress to Establish a religion. And thus far, they haven’t indicated that your argument has any merit (which is why Olson/Boise didn’t try to make this argument, as well).

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Just because someone doesn’t have religious beliefs does not mean they are not being persecuted because of religious beliefs.

Religious persecution has two forms: persecution of a person based on their religious beliefs, and persecution of a person based on the religious beliefs of the one doing the persecuting.

In this matter, as in the matter of same-sex marriage, persecution is taking place wherein the parties doing the persecuting do so based on their own personal religious beliefs in marriage.

In that regard, this is in fact religious persecution.

Further, because religious believers went to the polls and voted to persecute same-sex couples using the law, Proposition 8 and other same-sex marriage bans in fact violate the Establishment Clause because voters mistakenly believed they were voting to protect their belief in a religious institution; an act specifically banned by the Constitution when one considers that the government is one “of the people…”

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The relevance here is that classification based on sexual orientation hasn’t explicitly received heightened scrutiny. And same-sex marriage has never been considered by the Court, so its status as a fundamental right is uncertain. But I wonder what you think of the argument that the combination of the two might create a Plyler-esque situation: if same-sex marriage is at least a quasi-fundamental right, and sexual orientation is at least a quasi-suspect class, then the combination of the two should lead to a heightened level of scrutiny, just as the combination of education and illegal aliens did in Plyer v Doe?

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12-07-09
Are gays the only group that perverts and mocks Gods #1 commandment “ Thou shall love the Lord thy God with all your heart, and love your neighbor like yourself”? Probably not the only group, but the sure are at the top of the list. It’s pretty obvious the gays foul godliness and the wholesome life when they crack jokes about loving a neighbor in a gay way. It’s almost like they are looking to start a fight with normal people. Look at how they fouled the cowboy culture with their Brokeback Mountain movie. The American cowboy has been the backbone of right wing Christian heterosexual living for more than a century. The movie has probably only served one thing, an increase of violence between straight cowmen and gays. We will probably never know that stats on how many bar fights were caused because of that movie. Just the slightest provocation by someone that infers homosexuality will cause a fight, and the movie has only increased the likelihood of that factor.

12-2- 09 IT’S NOT HOMOPHOBE IT’S HOMOABOMINO
Homophobe is commonly defined as a fear of gays and the gay lifestyle. However it is also a mental suggestion. The gays are suggesting that we be afraid of them, and also to tamper with our mental process. So in a way homophobe is a psychological attack against the straight world. We don’t fear the gay sex act, because we are naturally straight. Fear is a powerful tool of mental suggestion. Most gays don’t know the people they call homophobic well enough to justify the use of the word. Using suggestion to attempt to confuse the enemies mind was used in World War 2, and in the Vietnam War, Hanoi Hannah used propaganda and disinformation against American soldiers.
So I say tit for tat. They want to call us homophobic,(to harm us) and in return we should correct them by saying, we are homoabomino, or homoabominaters.

10-22-09 GAYS SERVING OPENLY IN THE MILITARY MEANS STRAIGHTS HAVE A LEGAL AND MORAL RIGHT TO SEPRATE HOUSING. YOU DON’T FORCE MEN AND FEMALE SOLDIERS TO BUNK AND SHOWER TOGETHER, SO EQUAL PROTECTION WOULD MEAN SEGREGATED BARRACKS FOR THE GAYS SERVING OPENLY. So let’s spend billions of dollars building new housing, showers, and toilets, and while were at it new uniforms for the probationary gay service members. After all this would be a new program and they should be distinguished form normal troops.
Once gays become legal to serve in the military the straights will have a new found “right” to demand separate housing. The segregated living conditions men and women enjoy currently will be the rallying point for more division.

2-18-10
The argument that other countries have gays serving openly in the military has been presented without any specifics. I’ve heard that in smaller countries the men train in the army during the day, and go home to sleep with mom and dad. America has the largest military in the world and should not be compared to the smaller countries.
The same logic should apply when considering the Gay Army of Thebes. They were only 150 couples and we don’t know what kind of rules, disciplines maybe even torture was used to control them. One small example over 2,000 years ago hardly represents the millions of gays in America.
10-24-09
Homosexual predators are looking for young straight men that have not developed a strong moral fiber, and firm sexual identity. The basic training and advanced military training facilities are prime hunting grounds for preying gays who know there is confusion in the minds of the new recruits fresh from home. Do you want your son or daughter exploited by these vultures of human sexuality?
THE MILTARY VICTIMS OF HOMOSEXUAL PREDATORS ARE UNTOLD STORIES, LOST BECAUSE OF SHAME, DEPRESSION, AND FEAR. Someone must speak to congress for them. Those men and women were exploited/molested by gays learned a lesson from the school of hard knocks. They trusted someone who they believed was a friend and coworker, only to wake up and find themselves used and abused at an age and time when there wasn’t anyone to turn for support. They have carried this dark secret for decades and many will die rather than speak out. So we only hear from the soldiers that were never attacked by gay predators. They speak out, saying the gays were O.K., and that they did the job right. Unfortunately they don’t understand there is two sides to every story.

While we are at it let’s define exactly what kind of homosexual behavior should be permitted in the gay barracks. Will they be allowed to have oral and anal sex in the showers and barracks? What about more deviant types of gay sex, like feces and urine, and S&M?

Gays are trying to pass themselves off as being intellectually superior because they claim to practice and endorse metrosexuality and bisexuality. In truth intellectually superior people are those that contribute to our modern technology by inventing and discovering and innovating. Bisexuality doesn’t even exist! It’s more lies from the gay left. The proof is in your own body and mind. You can only desire and lust after one gender, it’s the natural way we function. Bisexuality can only happen as an act of deliberation, concentration and meditation. They make themselves perform bisexual acts for whatever reason is conjured in the mind of the offender. This isn’t being intellectually superior, it’s just a con, usually by prostitutes and other criminal types.

Gay marriage
10-13-09 The real reason God destroyed the homosexuals of Soddom has nothing to do with religion. God wanted to protect us from a group of people that mock all laws. Putting a gay man in prison is like putting a fox in a hen house. Can you imagine if we had coed prisons? A murderer or rapist, bank robber, etc. would be in hog heaven if he was doing 20 to life with a cellmate that looked like Marilyn Monroe. He’d have free rent, free food and medical care and a good looking lady. Homosexuals do not fear jail, in fact as we have seen homosexuality in prison is beyond commonplace. That is why some people say “homosexuality is a more heinous crime than murder”, because it mocks and laughs at all laws, and law and order is what we must live by.

10-15-09 The homosexual mafia is the largest and most unrecognized organized crime family in the world. They have the ability to transcend every way of life, race, religion, job, and family are all tainted by the gay underground. Lacking any fear of prison and encouraged by the knowledge they can overcome through attrition, extortion, lies and deceit, murder and mayhem the gay man is a monster in comparison to the mafias and street gangs we read about in the daily news. They live a secret life and even those in the “out”, celebrities, and working gays are despicable drug addicted alcoholics willing to bend to the will of anybody that professes allegiance to the gay cause, for the purpose of defending their sect. Gays may be hiding inside the real mafia or working at the FBI, they operate as doctors, lawyers and police officers, and they have one thing in common, a reason to defy the government, which is the protection of the gay world.
The most despicable homosexual propaganda suggestion in the world is “if a man is sensitive, and displays any artistic and creative abilities then he is obviously gay”. This is often used as an innuendo to undermine a man’s success in life. It’s pretty obvious these people will take over the world soon. Only a worldwide war on homosexuality will stop them, and we are to civilized to do that. It is understandable why God destroyed the gays at Soddom, he wanted to slow their conquest of the world. 6/23/09
10-16-09
GAYS DELIBERATELY SPREAD AIDS IN THE 80’S

So why are we kissing up to these fiends? Give them gay marriage, openly serve in the military, etc is a travesty considering the probability they did spread AIDS on purpose. If you were around in the 80’s you’d remember the enormous amount of antigay activity.
It is so obvious that some members of the gay community infected with AIDS went around spreading it to the straight world, that if you don’t see it, it’s because you nose is to big. Oh!, so they were just trying to protect their culture from the hate crimes. Spread AIDS to heterosexuals and children, killing thousands is O.K. because you are trying to protect your gay friends. Now we have “moved on” the typical liberal response, based on a mental deficit because they can’t or don’t want to remember the atrocity of homosexual monsters contaminating straight people on purpose So now it’s time to reward the gays with special rights. Ignore the fact that millions of people in America sincerely believe homosexuality is a disease out of control.

http://www.tencommandments.org “homosexuality is at least as heinous as a crime as murder”. Because of world overpopulation problems the gay population is multiplying in greater numbers. We must be prepared to safeguard our future in a post apocalyptic world. When God returns he must not see us as a Caligula-ized society. The gays are using psychological warfare tactics to spread their cult. Every time they use innuendos to suggest some celebrity is gay, or they call you a homophobe, or they say that anybody over 30 years old that isn’t married is gay, is mind warfare. It’s part of their plan to convert us. Look at gay marriage; have you ever seen a gay couple that has been together 60 years? We have millions of hetro marriages that have lasted 40, 50, and 60 years, but there is probably not one gay couple in America that has lived together in a marriage lifestyle for 60 years. The demand for gay marriage is just part of their conquest plans. “Smiling faces show no traces of the evil that lurks within” Undisputed Truth. It means that our worst enemy is sometimes the one we don’t see. Homosexuality may be a greater enemy than the Taliban. We have fought religious wars for thousands of years, but the war against homosexuality may be something new that is emerging from overpopulation.
S.I.M.P.L.E., surplus intelligent male population life elimination is a simple philosophy based on one simple fact. The fact is for thousands of years women have given birth to more male babies than female ones. Whether you believe in God or not it is still a biological and historical fact that all wars throughout history were fought primarily by men only. War, crime, suicide, drugs, etc all contribute to balancing the sex ratio. It’s the real reason God the Father destroyed Sodom and Gomorrah, cities having an enormous surplus of males, and they all (except Lot) were worshippers of the beast. A male dominated world must be free of homosexual contamination to function as a civilized people.
The normal growth patterns that have kept our population balanced are out of whack because of global overpopulation. This problem can have a cancerous effect that would allow one group to escalate out of proportion. Nature may be trying to correct the problem of overpopulation through homosexuality. Unfortunately it takes intelligent design to repair a problem of this size. If we abide by natures fix the consequences may be a Sodomite planet. 10-18-09 We seem to think that things like women’s lib is an intellectual evolution. What a coincidence that at the same time women’s lib is, we are also experiencing world overpopulation, a factor in considering nondiscriminatory war. Nature is a real part of life, and it is entirely possible that gay populations may be on the rise to counter our overpopulation.

CULTUSRELIGOHOMOSEXUALARMATADISEASE

We can’t even find the right labels for these people. Individually they are not a cult, or a religion, or a disease, or an army. Combine them together and it appears to fit. The gay movement of today is a combination of cult, religion, army, and disease. Any one of them would set of alarms if it was some other group, but we just ignore any suggestion that gays are a cult or an army. So why doesn’t somebody invent or create a new designation for these people? They obviously embrace gayness as a cult/religion. It’s common knowledge many gays refer to us heterosexuals as “repressed homosexuals”. Supposedly we live in a world of fear, unable to loose the chains of oppression. Open up and accept their homosexuality as way to world peace, by sleeping with as many people as you can. As the gay movement grows they are easily implementing tactics that would be considered in some countries as psychological warfare. This “gay marriage” scheme is one such tactic. Gays have lived for thousands of years without marriage, so why all of a sudden are they looking for marriage? So they don’t have guns and rockets, you can still fight a war without, “the pen is mightier than the sword”. Edward Lytton.
Homosexuality may not be a disease one finds in the Merck manual, they are biased enough to not even refers to it as a disorder. Just remember Sodom a city ruled by homosexuals as a parable. When and if ultraliberals and gays become the voting majority we will see laws change until rape and incest and every imaginable type of despicable act is legalized. In the movie “The Island of Dr. Moreau” H.G. Wells. The creations were half man and half beast; in real life we are hiding our other half (the beast) deep within the walls of the mind. “All have sinned” Romans 3:23 means we are supposed to repress our lower base animalistic desires, not open up to them as the homosexuals preach.

Gay Marriage is all about “flaunting”, looking for attention, jumping into the limelight, even if it is only for 15 minutes of fame, it is what the gay mind craves. In rebuttal the gays cite the high divorce rate among straights, totally disregarding the nature, decided by thousands of years of patterns, and a culture with a hyper-serious intent. The sanctity of marriage sits higher up than the basal understandings gays associate with. The mockery of our institution is as juvenile as being “mooned” by roadside hooligans.
God help us if the prison population finds some loophole in gay marriage laws that helps them “get over” on the system. This will certainly help turn prison into a gay paradise.
Amen

Links to homosexuality as a disease:
My Genes Made Me Do It. (book) N.E. Whitehead, PhD.
Gay Cure Makes homosexuality A Disease. care2.com, blog
http://www.standardofliberty.org, found in yahoo under search ”why isn’t homosexuality a disease”?
gay-rights-law.suite101.com Gay Gene: Implications and Dilemma
http://www.conservapedia.com/Homosexuality
http://www.freerepublic.com Why Isn’t Homosexuality Considered A Disorder On The Basis Of It’s Medical Consequences
members.tripod.com/british-nation/illness.htm Homosexuality is a Mental Illness.
http://www.jeremiahproject.com

6-19-09

Is homosexuality a more heinous crime than murder? Are gays a greater enemy than the Taliban or Al Qaeda? If so, how can it be demonstrated? It looks like one answer is popularity/propaganda potentials that could elevate gay movement. If they became very popular homosexuality could become a cult or even a religion. The idea that we as a people can find peace happiness and prosperity, to live in a crime and war free world is possible if we all sleep and have sex together is not that farfetched of an idea that the gays would support. Is it why God destroyed Sodom, because the gays took over the government and had laws that required strangers and visitors to their cities to have sex with the people of Sodom in order to be accepted? Should we allow the homosexuals the opportunity to advance their cult/religion and create a popularity front that will draw our world’s youth to their cause?

Fact: “In December 1973 this movement achieved a major victory when pressure groups succeeded in forcing the American Psychiatric Association to remove homosexuality from its list of mental illnesses”. Safezone.slu.edu
Was the pressure on the APA some kind of extortion? Could it be challenged in today’s court system?

If you told a blind person or someone with kidney stones that their disease is a normal biological experience, and that they should accept and even learn to enjoy their disease, and not to seek a cure, you would more than likely get spit on. Homosexuals have used pressure tactics to force the APA to remove them from a disease status, is like the blind doing the same because they like their social security check more than sight. The difference is homosexuality is a perversion of deviant pleasure and being blind is not. They both are normal and natural biological occurrences, but being a common experience in nature doesn’t exclude them from being undesirable. Any desirability in homosexuality lies in the government’s unwillingness to lead and educate the people. It is a responsibility for parents that must be reinforced by the government to teach our nations youth that homosexuality is biologically wrong and is a disease in nature.

If you take away the religion, what is left behind is pure biology, nature, evolution, and where does homosexuality stand then? It becomes a natural enemy of the heterosexual, a biological force of competition, a foreign army, a predator that one must protect from.
When you add religion homosexuality is the power of evil, sin, lust and sexual aberration.
How can an intelligent heterosexual show any support for gay marriage, knowing that with or without religion gays are a type of enemy, something that you cannot in any serious contemplation stand in defense of?

ON GAY ADOPTION

Gays have had thousands of years to fine tune a culture of deception. They have passed on from generation to generation the ability to hide their homosexuality from family, friends, church, and community and even the work place. The lies and deceit come automatically and mechanically, and is a function that allows this segment of the population to blend invisibly. Unless one has lived within the gay community (as one of their own) then you can never really be certain of the full extent of their culpability.

MORE ON GAYS IN THE MILITARY

Gays don’t enlist in the military because of a deep desire to serve their country. It’s more likely they are joining to try and bond in a predominately male environment. Some are possibly possessed with the intent of treason and to master the system undetected, so as to come out later and champion the gay liberation cause. It is clear they are not serving the purpose of honor and duty to their country. It’s pretty obvious that gays in the military do not lack male aggressive behavior. The idea that gays are timid and meek effeminate types isn’t not true to the cases we see and read about in the press. All the more evidence to not trust them.

2-16-10
We have all seen or read of homosexuality in other species of animals. It’s acceptable behavior because they are lower animals. We know it’s wrong because in our simplest understanding of biology, sex is for the creation of new life.
With human homosexuality, we tend to view those infected as we would others with birth defects and disease, consequently we embrace and protect them from harm. Unfortunately gays are humans with minds, not cats and dogs, and what has happened is they have used this protection to enhance their predatory nature. They have learned to accept their defect as normal, because it is normal in nature to have defects. The problem is they misused the word normal, and now claim to be normal or free of defect. They have twisted the reality of being defective/diseased people and created an illusion of being in a proper state of existence.
Science not religion, or the combination will prove the gays undoing. We will soon create the technology to design sexual preference at birth. Eventually homosexuality will be phased out of existence. After all what rational minded couple would choose their newborns to be gay?

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Pretend for a moment that the Supreme Court decides that any law which limits marriage to one man and one woman violates the equal protection clause. Under DOMA, the federal government treats marriage as a relationship between one man and one woman exclusively. Such a broad holding would seem to automatically invalidate DOMA.

Alternatively though, the Supreme Court could rule on a more limited basis. For example, the Court could consider the unique situation in California: first the state made it clear that everyone had particular rights, then the state stripped an unpopular minority group of these rights. If the Court’s holding is more narrow and more focused on the factual background leading up to Prop 8, then it might not have much of an impact on DOMA.

Also worth mentioning: another case out of Massachusetts (Gill v. Office of Personnel Management) is directly challenging the constitutionality of DOMA. MA is in the First Circuit, which is generally much faster than the Ninth Circuit, so despite the fact that Perry is currently further along, there’s a decent chance Gill will reach the Supreme Court first.

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Our arguments are strong, our lawyers are brilliant and our expert witnesses could not have been better. But we definitely don’t have the advantage. If this case makes it to the Supreme Court, we need five of the nine Justices to rule in our favor. Based on the current composition of the Court and the inclinations of each Justice, we will have a really hard time getting there (which, incidentally, is why many LGBT organizations advised against pursuing this case at this time in the first place).

Ultimately though, any Supreme Court decision will depend upon the reasoning of the lower courts. So until Judge Walker gives his opinion, anything I say is really just speculation. (It will be speculation after he gives his opinion, too, but then it will be slightly more informed speculation).

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Presuming the Supreme Court takes the case and rules in our favor, then Proposition 8 is invalidated. California will return to its pre-Prop 8 status, and same-sex couples will be allowed to get married. But the broader implications depend on how the Court reaches this decision.

If five Justices decide that the Constitution provides a fundamental right to marry the person of your choosing regardless of gender, or that it violates the Equal Protection Clause, then any federal or state statute or state constitutional provision that limits marriage to people of opposite genders could be challenged (and should succeed).

If instead, two Justices find that that Prop 8 violates the Equal Protection Clause and three find that it violates the Due Process Clause (or some other combination of reasoning that gets five votes for us), then we have five Justice on our side, but no majority rationale. As a result, it becomes more difficult to challenge related legislation, because only the majority rationale becomes binding precedent. Everything else just becomes part of the argument. Should this happen, we’ll likely see quite a bit of litigation as lower courts try to figure out what exactly is and is not permissible.

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Am I the only person wishing there was another name for “suspect class”?

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Your question potentially implicates two different constitutional issues, the First Amendment guarantee of religious freedom and the Equal Protection Clause of the Fourteenth Amendment.

Let’s start with the equal protection issue. The Equal Protection Clause prohibits discrimination based on religion. But the first question is whether a group of people that is being treated differently than others because of their religious beliefs. In this case, gays and lesbians are not facing persecution because of their religious identifications. Those who are unable to marry because of Prop 8 undoubtedly hold a wide range of religious beliefs. Religion doesn’t decide the classification at issue, so there isn’t an equal protection challenge to be made on that ground.

The First Amendment reads in part: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” Much like the analysis of the equal protection and due process, religious freedom as protected by the First Amendment has a precise meaning.

The free exercise clause has been interpreted to mean that the government generally cannot prohibit someone from the free exercise of their religious practices (though there are exceptions). This doesn’t really affect the definition of state-sanctioned marriage; religious institutions that want to perform marriage ceremonies for same-sex couples are free to do so, the state just won’t validate these marriages.

The establishment clause means that the government cannot establish a religion or become excessively entangled with a religion. Certainly marriage and religion are intertwined (religious officials can sign marriage certificates), but sanctioning a relationship between two people isn’t akin to declaring a national religion. And excessive entanglement generally affects things like public funding for religiously sponsored programs or public displays involving religious symbols or prayer in schools.

So, in the summary version that you were probably hoping for in the first place, the Constitution provides protections for religious freedom, but these protections are somewhat narrowly defined — and this falls outside of those protections.

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At the appellate level, they’ll just be arguing over the interpretation of the facts, from a legal standpoint. So, they’ll be arguing over whether the trial court should have used strict scrutiny for equal protection (because sexual orientation discrimination is akin to racial discrimination) or rational basis (because sexual orientation isn’t a suspect class), for example.

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