Prop. 8 gay marriage ban goes to Supreme Court

[Severian]

Would it be OK if the majority voted slavery back in to avoid that legislation that is against it?

 

That is the price you have to pay for democracy. Banning slavery even though the majority want it is undemocratic. I would argue that the majority is "wrong" if they want slavery, but who am I to enforce my will on the majority. I would rather persuade them to my point of view with reasoned argument.

[jackson33]

Democracy is by definition the oppression of the minority by the majority. But if you try and circumvent democracy by legislation (rather than persuasion) I think you are on a very slippery slope.

 

The difference between a Democracy and our system of a Representative Republic, has established a system where local issues can be determined by local popular vote, but to the limits of the Nation Interest or Constitution. Corporate Law, for instance is purely a State issue, for structuring but has limitations by regulations of Congress and/or the Executive branch. Many laws, including seat belts, insurance, taxes, road structures, education k-12 and others are State driven...but in funding controlled by the Federal to a degree.

 

 

doG; Yes, even amendments can be overturned, the Constitution changed or the total electorate ignored. Prohibition the most referred to, but suffrage, election of Senators by popular vote or the total of House Members, all directly addressed in the Constitution are not what was intended. Of course slavery will not come back, but under our system, this could happen...where it starts from, not material.

[iNow]

California laws related to 'Same Sex Marriage' or more specifically the recognition of, are identical to the US. Family Law Codes, state that "A man and women".

 

The Defense of Marriage Act (DOMA) that you referenced could also be struck down by the Establishment Clause, which is why I mentionded that.

 

There is no relevant secular reason for a law preventing homosexual unions from being equivalent to heterosexual unions in the United States, and no harm is being done to others, so such a law is not in place for reasons of protection or avoidance of harm to our citizens. With that said, the only remaining foundation for such a law is the invocation of morality. Since it is the invocation of morality, it has no place being viewed by due process, and is best analyzed under the Establishment Clause in the first amendment to our constitution.

 

 

Amentioned, this issue needs addressing at the National Level, since by Constitution laws pertaining to individual rights must be recognized by all States if legal in one State and was the original intent of the 14th A.

Indeed, but I find that to be the most frustrating part of this. It is ALREADY addressed at the national level.

 

1st Amendment - Establishment Clause

Article IV - Full Faith & Credit Clause

14th Amendment - Equal Protections Clause

 

 

It's only a matter of time before SCOTUS comes to bat and tells the witch-burning angry mobs to back the hell off.

Edited November 20, 2008 by iNow
multiple post merged

[doG]

That is the price you have to pay for democracy. Banning slavery even though the majority want it is undemocratic. I would argue that the majority is "wrong" if they want slavery, but who am I to enforce my will on the majority. I would rather persuade them to my point of view with reasoned argument.

 

Again, we are not a democracy.

 

doG; Yes, even amendments can be overturned, the Constitution changed or the total electorate ignored. Prohibition the most referred to, but suffrage, election of Senators by popular vote or the total of House Members, all directly addressed in the Constitution are not what was intended. Of course slavery will not come back, but under our system, this could happen...where it starts from, not material.

 

I didn't imply that amendments could not be overturned or slavery returned. I only asked if it would be right to do so. The only point made is that a will of the majority does not necessarily make it right. That is why the founders chose a republic.

[jackson33]

Again, we are not a democracy.

 

I didn't imply that amendments could not be overturned or slavery returned. I only asked if it would be right to do so. The only point made is that a will of the majority does not necessarily make it right. That is why the founders chose a republic.

 

The Republic is at the National Level, based on common interest. States and lower governments are democracies, even if to degree. Majorities do rule, and a good thing when interest in Wyoming or New Jersey, NYC or NY may be totally different. State rights were a determining cause for the ratification of the Constitution, in the first place. Common interest of the Federal is based on issue, which directly of indirectly effect all States, regardless each States opinions on that issue. This is why, House members create the Legislation, although where majority (Democracy) ends...

 

iNow; Based on laws today and IMO, the US SC could only rule against 'Same Sex Marriage' or at best against those legislatures interpretations, especially in California, where their laws indicate exactly what US Codes already indicate and based on recognition to certain rights. I agree, under any other name any Union, could no longer be found other than 'Legal Consenting Adults'. Again, SF under California law has the authority to grant rights, which are not authorized or mandated acceptable to California, the question there being, where those rights infringe on the rest of the population.

 

On the personal level, I feel to much US law is already based on Religious concept, but not anywhere near the levels of the 19th Century. However to me it falls both direction and religious sects should be allowed the same privileges you suggest for gays, but limited to other laws and restricted from public funds or benefits, until or if it is acceptable to the majority.

[doG]

States and lower governments are democracies...

 

Please name the States that DO NOT have a House of Representatives in their own structure. They all use representative democracy, a republic, as opposed to direct democracy. As far as I know they are all technically Constitutional Republics.

[jackson33]

Please name the States that DO NOT have a House of Representatives in their own structure. They all use representative democracy, a republic, as opposed to direct democracy. As far as I know they are all technically Constitutional Republics.

 

"To a degree": But all representatives with in any State, represent only the people of that State. I mentioned this in comparing the needs of people in NYC and NY...The founders literally hated the idea of "mob rule" (Democracy) but wanted the input of the populace.

 

The House, when designed (though democracy never mentioned) was for districts of 30k people. Those 30K then chose the one person to represent them and sent to (today) Washington DC., or if you prefer the 'Representative Democracy', but beyond this and the controlling factor for our Federal 'Common Interest' Republic takes hold. To illustrate this if we had held to a maximum of 30K per district, we would have near ten thousand districts today...totally unrealistic.

 

For the record, however some city, even a few counties do use pure Democracy or the 'Town Hall' system and most all States have some form of the 'Referendum System' (Individual vote) for major issues. Democracy is a term used, but degree of more relevant. Even the Greek word for democracy was to the degree of a quorum. I realize this is nitpicking, but I feel strongly misunderstood as you drop from the Federal to lower levels of government. Remember of the 2M or so populace in the late 1700's, the electorate, those allowed to vote was probably less than 200K or about 10% of the total.

[iNow]

The Republic is at the National Level, based on common interest. States and lower governments are democracies, even if to degree. Majorities do rule...

 

As doG has already shown, the States are also representative democracies. They are not direct democracies as your words suggest.

 

Further, the Federal laws regarding rights of the citizen always supercedes State laws regarding rights of the citizen. This means that any laws passed by the states which are counter to the principles spelled out in the federal constitution (equal protections clause, establishment clause, full faith and credit clause, etc.) will be struck down as being unconstitutional at the federal level, regardless of what process put said laws into place at the state level.

 

For the same reason that a city or county cannot make laws counter to the laws of the state, the state cannot make laws counter the laws of the nation.

[Pangloss]

Let's get off this definitions issue, please. Yes, we have a representative government, it's reasonable in modern context to call it a "democracy", and that is not relevant to the issue at hand.

[iNow]

Pangloss - I think you're wrong in this context. Nothing personal, but I do. Let me explain quickly.

 

In general parlance, we call it a democracy and everyone understands what we mean. No problems there. However, in this thread the suggestion was made that majority sentiment matters when writing laws, and it was in this context which the discussion of democracy arose. This was not a correct representation of our system, as we are a representative republic with a system in place to prevent the minority from being overrun by tyranny of the majority.

 

Hence, if someone argues their position on the assertion that we are a democracy, and they implicitly suggest that we are a direct democracy in the process of doing so, it MOST CERTAINLY warrants correction as it's a false representation and hence a bunk argument.

 

 

Precision is important, and if we're going to use words which have several meanings, we need to be clear about which meaning we are going by and which ones apply to the discussion.

 

I'm quite content to move past this, but it's not acceptable to let such things go uncorrected. This IS a science forum after all.

[Severian]

What rubbish. The USA was founded on democratic principles. It doesn't matter one bit whether that is direct or representative democracy. The fact of the matter remains that the question under discussion was put to the vote and the electorate made its opinion clear.

 

If you do not want to follow the decision of a democratic vote, then your representative democracy should not ask the electorate to vote on the issue. Would you still be saying that this is too important a decision to place before the electorate if your opinion had been reflected by the majority vote?

[Pangloss]

Um. On second thought, I'm quite wrong. Pardon me.

[iNow]

What rubbish. The USA was founded on democratic principles. It doesn't matter one bit whether that is direct or representative democracy. The fact of the matter remains that the question under discussion was put to the vote and the electorate made its opinion clear.

 

We may be getting into territory which warrants its own thread, but the fact of the matter is that regardless of the number of citizens who want something, that something still must fit within the conditions and guidelines laid out in the constitution.

 

Majority rule is explicitly protected against, ergo arguments to the contrary are moot since all laws within the US must first abide by and align with the guidelines of our federal constitution. Now, with that said, the issue under discussion here is whether or not the Supreme Courts will find these laws/amendments/changes to be against the federal constitution or not.

 

My feelings about how I might respond if I found myself as part of the majority are also irrelevant, since this thread has focussed explicitly on constitutionality.

 

 

So, put that in your pipe and smoke it, Ozymandias!

[Pangloss]

Yes. But like I said before, if the people want it enough to make a constitutional amendment to enforce it, no court in the land can do anything about that. The amendment could later be rejected, but that also would be an act of the people.

 

Like I said, we need to focus on hearts and minds, not legislating from the bench. People don't like getting pushed around. The heart of what Severian is saying above is just as valid as what you're saying.

[john5746]

http://en.wikipedia.org/wiki/Loving_v._Virginia

 

 

Loving v. Virginia(1964) - overturned Virginia's Racial Integrity Act of 1924, which made it a felony for a white and non-white person to marry. Bans on interracial marriage were NOT done by democratic means, but via the courts. No one can argue that the South wanted to end racial descrimination.

 

The arguments against interracial marriage included:

 

God seperated the races, so they were not intended to mix

Interracial marriage(sex) would result in a degraded population

Mixed offspring would cause much grief to their families and society

 

whites and non-whites were punished in equal measure for the offense of engaging in interracial sex, so equal protection doesn't apply

 

 

 

Against using this case to support same sex marriages:

 

[T]he historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.[10]

 

I disagree with the above in that homosexuality has been regarded as sinful for a very, very long time, so that marriage could not be considered. Why would same sex marriage be considered by a culture that thinks their God hates it? I just think it seems like a bigger stretch than interracial marriage because we were not alive 50 years ago. This resulted in offspring - you could see the result! Must have been very scary.

 

 

 

Brief History of US Marriage

[doG]

If you do not want to follow the decision of a democratic vote, then your representative democracy should not ask the electorate to vote on the issue.

 

This is exactly the point. The majority decided it didn't like the court's interpretation of the law so they put the issue on the ballot so they could use mob rule to oppress the minority the court ruled in favor of. What next? Maybe all the poor people will get a measure on the ballot calling for a 100% tax on all assets over $10000 so the government can send free checks to the poor. We all belong to one or more minorities. Where does it stop?

[iNow]

Yes. But like I said before, if the people want it enough to make a constitutional amendment to enforce it, no court in the land can do anything about that. The amendment could later be rejected, but that also would be an act of the people.

Ah, yes and no. As I mentioned before, the federal constitution takes precendance over a state constitution as outlined by the Supremecy Clause in Article VI:

 

 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

From wiki:

 

http://en.wikipedia.org/wiki/Supremacy_clause

The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land." The Constitution is the highest form of law in the American legal system.

State judges are required to uphold it, even if state laws or constitutions conflict with it.

 

 

I think you will notice that I've been arguing primarily from a federal level on these points. This means that any amendments to the state constitution can still be overturned by SCOTUS. That would be the "no" part of my response to your point.

 

For the "yes" part, you would, of course, be correct if we amended the federal constitution in this way. I see that as much less likely, but indeed possible. If the country as a whole (the majority against whose tyranny the minority has been maximally protected) chose to amend the federal constitution to disallow two people of the same gender from marrying, then they could certainly do so.

 

There is, however, a caveat in that the new amendment must not conflict with existing amendments, nor create ambiguity in application of any previously existing law or provisions. The constitution (and, perhaps more appropriately, those sworn to protect it) cannot allow provisions that are mutually inconsistent and irreconcilable to exist simultaneously. For these reasons, I see an amendment of this sort at the federal level as very unlikely to happen, since such a provision would, in fact, appear to conflict with the aforementioned Establishment Clause and the Equal Protections Clause.

 

So, the odds are against such an amendment making it into the federal constitution, but I grant you that it is, in theory, at least possible, just at an incredibly low order of probability. Additionally, if such an amendment were successfully passed, it could later be reversed as you suggest by a new amendment from the people, much like the 21st amendment reversed the 18th amendment, which prohibited the possession and sale of alcohol.

 

 

Like I said, we need to focus on hearts and minds, not legislating from the bench.

TBH, I'm not at all swayed by this "legislating from the bench" nonsense. It's the same stupid argument that the whackos who think a clump of undifferentiated cells deserve the same rights as a fully developed and grown human being, or folks who want to see creationism taught in the classrooms alongside evolution (do they want to teach the stork theory of childbirth, too?). It's a farse and a smoke screen to hide the fact that they don't have a meritorious argument in support of their position.

 

The purpose of the supreme court is to rule on the intent of the law and uphold the constitution. That's what is going on here, and trying to cast the justices in the dim and derogatory shadow of "activism" is weak, wrong, and completely hypocritical considering your repeated reminders about the need to win "hearts and minds."

Edited November 21, 2008 by iNow

[Pangloss]

Yes, I was talking about an amendment to the US constitution.

 

There is, however, a caveat in that the new amendment must not conflict with existing amendments, nor create ambiguity in application of any previously existing law or constitutional amendment. I also see this as unlikely to happen, since such a ruling would, in fact, appear to conflict with the aforementioned Establishment Clause and the Equal Protections Clause.

 

No, those are broad definitions and this would be a specific one, so it wouldn't be open to interpretation. No matter how contrary it is to the concept behind the above, there would be nothing the Supreme Court could do about it.

 

Is it likely? It doesn't appear so, but my point was that with virtually every national politician opposed to gay marriage, pushing harder doesn't sound like a good idea.

 

 

TBH, I'm not at all swayed by this "legislating from the bench" nonsense. It's the same stupid argument that the whackos who think a clump of undifferentiated cells deserve the same rights as a fully developed and grown human being, or folks who want to see creationism taught in the classrooms alongside evolution (do they want to teach the stork theory of childbirth, too?). It's a farse and a smoke screen to hide the fact that they don't have a meritorious argument in support of their position.

 

Judicial restraint is not a stupid argument, and it works in your favor as often as it does to your detriment. I wonder if you realize you're riding a popular bandwagon just like the people you're railing about. You just rejected my hearts-and-minds argument in favor of legally forcing other people to do things your way. Right or wrong, do you really think that's the best way to win this fight?

 

That's what gets the left in trouble with the right more than anything else, this notion that if you just fix all the laws the way they're supposed to be, and make that the new status quo, the right will relax and, over time, come around to proper way of thinking.

 

That's a stupid argument. And it's one that has consistently failed, not only unsuccessful in winning over any hearts and minds, but single-handedly giving voice and footing to the very thing it hoped to stamp out, in the form of conservative talk radio, Fox News, etc.

 

There are now 23.5 months until the mid-term election. Do you think it would be better to use them to continue the gradual progress that has already been made on this issue (as reflected in poll after poll), or do you think it would be better to swing for the fences and hope to knock one out of the park, knowing that the fence is a good 600 feet away and the pitcher just put his hand to his mouth while the umpire was looking the other way?

[iNow]

That's what gets the left in trouble with the right more than anything else, this notion that if you just fix all the laws the way they're supposed to be, and make that the new status quo, the right will relax and, over time, come around to proper way of thinking.

 

That's a stupid argument.

 

Sure is a good thing that's not the argument I was making then, isn't it? Also, you were not talking about "judicial restraint." You explicitly said "legislating from the bench," which is what prompted my comments on that topic.

[Pangloss]

I was talking about judicial restraint. I said we shouldn't be legislating from the bench (which is judicial activism, the counterpart of restraint, falling under the same general subject), and you replied that you considered the activism argument "stupid" because their case does not have a "meritorious argument". But judicial restraint has nothing to do with whether the issue under consideration is meritorious -- in fact it is often applied even when it is crystal clear that judicial action is warranted. The judiciary prefers to allow lawmakers the power and flexibility they need to make proper laws, only intervening when absolutely necessary. This is a good thing.

 

So you see it as righting an obvious wrong, and they see it as "legislating from the bench." That's politics for you. I think we should focus on education instead of orders and demands. We should accept California's decision, watch public acceptance continue to grow, and by ignoring the offer of battle, eventually win the war.

 

But hey, that's just my two bits on it.

Edited November 21, 2008 by Pangloss

[iNow]

I think we should focus on education instead of orders and demands. We should accept California's decision, watch public acceptance continue to grow, and by ignoring the offer of battle, eventually win the war.

 

We may just have to disagree then, as I simply cannot fathom how anyone would argue in favor of accepting a state level constitutional amendment which is inconsistent and irreconcilable with the federal constitution, especially since the federal constitution represents the supreme law of the land per the Supremecy Clause in Article VI.

 

Problems don't often fix themselves, they must be tackled head on. Ignoring the issue and sticking your head in the sand like ostriches are not viable solutions (unless you're a top executive in Detroit).

[Mr Skeptic]

Education is one way to tackle a problem head on, and probably a better solution than ramming your superior ideas down their ignorant throats.

[iNow]

Education is one way to tackle a problem head on, and probably a better solution than ramming your superior ideas down their ignorant throats.

 

Please be so kind as to clarify for all of us precisely which part of my argument on the constitutionality of all of this you are summarily dismissing as "superior ideas" being forced "down their ignorant throats."

[Mr Skeptic]

If the courts find it to be unconstitutional, they had better strike it down. But you could easily end up with it going the other way around, with the federal constitution also being amended (not by the court, of course), which is probably 100% opposite of what you want. Republic or not, the will of the people will be heard, and you are better off getting them to agree with you.

[iNow]

If the courts find it to be unconstitutional, they had better strike it down. But you could easily end up with it going the other way around, with the federal constitution also being amended (not by the court, of course), which is probably 100% opposite of what you want. Republic or not, the will of the people will be heard, and you are better off getting them to agree with you.

 

Yes, I completely agree, and that's almost verbatim what I said in post #42 above.

 

Where's the issue again? Also, are you going to clarify where it was you think I was cramming my "superior ideas" down the throats of the "ignorant?"