Judge overturns Calif. gay marriage ban

[GGT]

I'm not Republican. And legislative activism may be preferable but then it's not happening or going in the wrong direction, he is not absolved by saying "that should be legislative." The Court can, it's in a different position with radically different powers and means of influence.

I'm not a Republican, either. I'm asking you to explain your position between state and federal legislative activism. I'm a bit confused --- because your previous posts seemed to advocate the long slog, with referendums and ballot initiatives, using legislatures state-by-state, appellate courts, district courts....moving through the legal processes gradually and painfully slow.

I got the impression that you didn't want the Executive or Judicial branches of government making these decisions, even though it's clearly within their power to do so. Correct me if I'm wrong about that.

[LittleFuzzy]

I've made no distinction between state and federal legislative action in this thread that I am aware of, and I was also fairly plain that I think the Executive can and ought to be working more proactively on this issue. It's the Court I'm more wary about about.

And yes, at this point I think the best approach is slow. There is a solid minority group of states which are permitting marriage, the feds have been told they have to recognize it when a state marries people even if they're of the same sex, and many/most of the others are opening up legal avenues to get the various legal rights, privileges, etc. that are usually provided in one big lump with marriage, via somewhat more painstaking means. I think it would be better to get the areas coming around on their own to trying to make one or two sweeping strokes across the entire nation judicially because I'm very much afraid if that happens we're going to end up with either marriage or gay rights in general getting fought over and picked at for another forty to sixty years, as has happened with desegregation and abortion. The Courts have problems getting states and lesser jurisdictions to actually toe the line when the topic involves this sort of strong cultural divide, even when its getting supported by Congress and/or the Executive.

[Dreadnaught]

My thinking is mostly in line with Fuzzy's on this, but...

There are two distinct questions.

1: Are gays a protected group like blacks etc
2: Is marriage a right.

On number 2 Loving is completely relevant. You claimed marriage as a right "is a new concept" but in Loving the Supreme Court unanimously decided nearly half a century ago that: Marriage is one of the "basic civil rights of man" ... To deny this fundamental freedom ... etc.

The fourteenth amendment is specifically invoked. That destroys any notion that marriage is somehow exempt or not a "right". It is unanimously a fundamental right and has been so for nearly half a century. So the only issue is do we accept gays as a protected group or not, not whether if they are it applies to marriage. If they are then precedent says it must apply to marriage.

I think it's plainly obvious that homosexual marriage was not at all being considered in the 1967 Loving case on interracial marriage.

This kind of false reasoning is exactly why i have always and vehemently opposed the term gay marriage. The question if there is or is not a constitutional right to marry is utterly irrelevant. The relevant question is if a state has the right to regulate marriage in a way that excludes people of the same gender from entering into it. It all the way up just a question of equality and equality alone. The fact that a particular minority was persecuted only quite recently should never be an excuse to put their rights on hold.

Once again, if the state has the "right" to regulate marriage, than is gay marriage really a "right"? I would prefer this be out of the sphere of government. But if it is going to be a government function, we Amerikans may as well benefit from the kind of legal experimentation that our system affords to push us towards gay marriage via our political process.

[GGT]

I've made no distinction between state and federal legislative action in this thread that I am aware of, and I was also fairly plain that I think the Executive can and ought to be working more proactively on this issue. It's the Court I'm more wary about about.

I meant your posting history, and debates on DADT, Prop 8, DOMA, etc. How could the Executive could be more pro-active than it's been already? The Obama administration has been key in changing military policy, not defending DOMA, extending federal benefits to same-sex couples....

And yes, at this point I think the best approach is slow. There is a solid minority group of states which are permitting marriage, the feds have been told they have to recognize it when a state marries people even if they're of the same sex, and many/most of the others are opening up legal avenues to get the various legal rights, privileges, etc. that are usually provided in one big lump with marriage, via somewhat more painstaking means.

I think it would be better to get the areas coming around on their own to trying to make one or two sweeping strokes across the entire nation judicially because I'm very much afraid if that happens we're going to end up with either marriage or gay rights in general getting fought over and picked at for another forty to sixty years, as has happened with desegregation and abortion.

The Courts have problems getting states and lesser jurisdictions to actually toe the line when the topic involves this sort of strong cultural divide, even when its getting supported by Congress and/or the Executive.

In other words, you want to wait for more states to legally recognize marriage equality....because it would make things "easier" for SCOTUS? I can appreciate your fears (in bold), but not sure I understand your rationale.

One main reason we fought over desegregation was rooted in public education, and state 'rights' vs federal funding. That was long after non-whites and females had constitutionally recognized and protected "equal status". We've fought about abortion services over the same funding reasons, even though abortion is protected as an individual right.

This goes well beyond strong cultural divides....and gets into religious vs individual rights and freedoms. I'm surprised you prefer to wait, and endure the long slog, when politics has contaminated our judicial processes. Marriage is being used as a proxy, to get constitutionally recognized and protected rights for individuals that happen to be homosexual. Isn't that backward?

My thinking is mostly in line with Fuzzy's on this, but...

I think it's plainly obvious that homosexual marriage was not at all being considered in the 1967 Loving case on interracial marriage.

Once again, if the state has the "right" to regulate marriage, than is gay marriage really a "right"? I would prefer this be out of the sphere of government. But if it is going to be a government function, we Amerikans may as well benefit from the kind of legal experimentation that our system affords to push us towards gay marriage via our political process.

Well, that's why I'd prefer sexual preference/orientation be deemed on par with race, ethnicity, gender -- "born that way". Loving v Virginia was more about race than marriage, and Brown v Board of Education was more about racist bigotry than education. Millions of people were denied their rights....waiting for the political process to experiment state-by-state....not such a good precedent.

[GGT]

Any comments about Arizona's senate bill to deny service to homosexuals, by calling it a right to "religious freedom"? It will probably by vetoed by the governor, but that it was even passed as law is just....crazy.

[Hazir]

My thinking is mostly in line with Fuzzy's on this, but...



I think it's plainly obvious that homosexual marriage was not at all being considered in the 1967 Loving case on interracial marriage.



Once again, if the state has the "right" to regulate marriage, than is gay marriage really a "right"? I would prefer this be out of the sphere of government. But if it is going to be a government function, we Amerikans may as well benefit from the kind of legal experimentation that our system affords to push us towards gay marriage via our political process.

The right is equality, marriage is the material issue. If you give people the right to marry then you better have damned good reasons to withhold that right from others. As far as I am concerned to strife for gay marriage would fly in the face of equality. Nobody I know is in favor of gay marriage. A lot of people I know support the idea that witholding equality before the law is a violation of very basic rights.

I also very much doubt you think 'like fuzzy' because the clear line under his incrementalism is that he supports any means of undermining a practise that runs counter to your own Constitution. He has no problems whatsoever with the route via the courts to throw statutes out, he merely worries about the potential for a backlash. You on the other hand are taking the position that it should be dealt with through the political system; as if minorities should only have rights that the majority allows them.

[LittleFuzzy]

The right is equality, marriage is the material issue. If you give people the right to marry then you better have damned good reasons to withhold that right from others. As far as I am concerned to strife for gay marriage would fly in the face of equality. Nobody I know is in favor of gay marriage. A lot of people I know support the idea that witholding equality before the law is a violation of very basic rights.

I also very much doubt you think 'like fuzzy' because the clear line under his incrementalism is that he supports any means of undermining a practise that runs counter to your own Constitution. He has no problems whatsoever with the route via the courts to throw statutes out,

Well, not quite. I'm not certain I'd support federal legislation abrogating state authority over and/or regulation of marriage or the Courts backing the Feds up on that, I think that's just not how the flow of powers in our federalist system should play even if it involves the Feds forcing the same-sex marriage issue in our favor.

[GGT]

Well, not quite. I'm not certain I'd support federal legislation abrogating state authority over and/or regulation of marriage or the Courts backing the Feds up on that, I think that's just not how the flow of powers in our federalist system should play even if it involves the Feds forcing the same-sex marriage issue in our favor.

But that's not the 'methodology' we used to accord minorities (non-white men, women) equal status, with rights to own property or vote.

[Hazir]

Well, not quite. I'm not certain I'd support federal legislation abrogating state authority over and/or regulation of marriage or the Courts backing the Feds up on that, I think that's just not how the flow of powers in our federalist system should play even if it involves the Feds forcing the same-sex marriage issue in our favor.

Oh, I never considered the option of federal legislation. It seems self-evident that the federal government doesn' t have that right. That's what makes DOMA such an abomination.

[GGT]

I think the US needs to re-visit an Equal Rights Amendment to our Constitution that includes sexual preference/orientation/identity. That would go a long way in recognizing, and protecting, human rights as civil rights.

Unfortunately....many Americans believe that's undermining their 1st Amendment Rights and "religious freedoms".


BTW, I think there's "mission creep" stemming back to the Religious Freedom Restoration Act http://en.wikipedia.org/wiki/Religio...estoration_Act
and *some* legislators mangling the law's intent.

[GGT]

Fuzzy, excuse me for being blunt and personal, but your position sounds like cognitive dissonance. You shouldn't have to wait through slow, legislative processes, state-by-state, to have your rights recognized or legally protected, as a gay man. I'm perplexed by your trust and patience in the legal system, at the expense of your own identity, and living as a 2nd class citizen. Can you explain this to me, so might understand where you're coming from?

[LittleFuzzy]

Fuzzy, excuse me for being blunt and personal, but your position sounds like cognitive dissonance. You shouldn't have to wait through slow, legislative processes, state-by-state, to have your rights recognized or legally protected, as a gay man. I'm perplexed by your trust and patience in the legal system, at the expense of your own identity, and living as a 2nd class citizen. Can you explain this to me, so might understand where you're coming from?

There are a number of states where I can legally marry (or the full legal equivalent, which is not what I'd prefer but which is not, at present, worth making waves about) and as of last June, the Feds have to recognize it, even if I then move to a state like Texas. And even in Texas, a number of the legal factors like medical proxies can be gained individually, though it's more work to gain them individually. At this point in time we're mostly talking about convenience and/or de jure recognition compared to the present de factop recognition, in those states which haven't already turned our way. Insisting on getting everything immediately is not worth the potential political cost or decades-long headache, given what we already have. Getting everything is still desirable, it's still something we should be pushing for and advocating, but we're at a point where we can afford to do it right. It's not a question of whether or not we should have to wait, GGT. The world isn't perfect, it's never going to be perfect, and it's IDIOTIC to act like an ideal world is the starting point rather than the goal. I am many things, pedantic, fussy, and so on but one thing I am not is an idiot.

[Loki]

A federal judge has struck down Texas' ban on same-sex marriage, ruling Wednesday it has no "rational relation to a legitimate government purpose."

[Dreadnaught]

The right is equality, marriage is the material issue. If you give people the right to marry then you better have damned good reasons to withhold that right from others. As far as I am concerned to strife for gay marriage would fly in the face of equality. Nobody I know is in favor of gay marriage. A lot of people I know support the idea that witholding equality before the law is a violation of very basic rights.

I also very much doubt you think 'like fuzzy' because the clear line under his incrementalism is that he supports any means of undermining a practise that runs counter to your own Constitution. He has no problems whatsoever with the route via the courts to throw statutes out, he merely worries about the potential for a backlash. You on the other hand are taking the position that it should be dealt with through the political system; as if minorities should only have rights that the majority allows them.

Once again, I don't believe in a "right" to "equality". That's enormously vague.

Also, Fuzzy pretty clearly outlined his problems with using the courts because of the backlash, which is also one of my positions.

Fuzzy, excuse me for being blunt and personal, but your position sounds like cognitive dissonance. You shouldn't have to wait through slow, legislative processes, state-by-state, to have your rights recognized or legally protected, as a gay man. I'm perplexed by your trust and patience in the legal system, at the expense of your own identity, and living as a 2nd class citizen. Can you explain this to me, so might understand where you're coming from?

Everyone has to work through the political process to change most state practices, that's the point of democracy.

[Loki]

The point is that the government is providing a significant economic advantage to a group of people for reasons that have no public interest behind them.

[Dreadnaught]

Yeah, but that's like XX% of what the government does.

[Loki]

And when you combine that with treating different groups of people (defined in terms of traits and not their actions) systematically different, it's a pretty good reason for the courts to step in.

[Dreadnaught]

Sounds like a good reason to end heterosexual marriage, affirmative action, preferential tax rates for contractors or minority-owned businesses and the entirety of disparate impact analysis. And yet our political system has produced all of these.

[Veldan Rath]

Government being hypocritical?

Say it ain't so.

[Loki]

Sounds like a good reason to end heterosexual marriage, affirmative action, preferential tax rates for contractors or minority-owned businesses and the entirety of disparate impact analysis. And yet our political system has produced all of these.

I could make pretty good public interest arguments for each of those. I can't think of any public interest in discriminating against gays.

[RandBlade]

Once again, I don't believe in a "right" to "equality". That's enormously vague.

Also, Fuzzy pretty clearly outlined his problems with using the courts because of the backlash, which is also one of my positions.

You don't believe in the 14th Amendment?

Doesn't matter though whether you believe in it or not as it is part of the Constitution.

[Flixy]

Sounds like a good reason to end heterosexual marriage, affirmative action, preferential tax rates for contractors or minority-owned businesses and the entirety of disparate impact analysis. And yet our political system has produced all of these.

It is about ending heterosexual marriage - either you have marriage, or you don't. Affirmative action is indeed treating different groups of people differently, but as Loki mentioned there are public interest arguments for it, and basically it's only there because certain groups have been systematically discriminated against in the past. Though I would agree affirmative action should be based on socio-economic class rather than race. I don't know anything about your preferential tax rates or disparate impact analysis, so I can't comment on those.

[RandBlade]

Preferential tax rates for businesses have nothing at all to do with anyone's race, gender, orientation, religion or anything else. Anyone can form or operate that type of business. If you had preferential tax rates for businesses owned and ran by white men then that would be unconstitutional.

[GGT]

There are a number of states where I can legally marry (or the full legal equivalent, which is not what I'd prefer but which is not, at present, worth making waves about) and as of last June, the Feds have to recognize it, even if I then move to a state like Texas. And even in Texas, a number of the legal factors like medical proxies can be gained individually, though it's more work to gain them individually.

But that's not "Equal Access", and discriminatory at face value. Don't kid yourself, Fuzzy....you can still be denied hospital visitation, your medical power-of-attorney can be voided, and your Will can be nullified....depending on state laws.

At this point in time we're mostly talking about convenience and/or de jure recognition compared to the present de factop recognition, in those states which haven't already turned our way. Insisting on getting everything immediately is not worth the potential political cost or decades-long headache, given what we already have. Getting everything is still desirable, it's still something we should be pushing for and advocating, but we're at a point where we can afford to do it right. It's not a question of whether or not we should have to wait, GGT. The world isn't perfect, it's never going to be perfect, and it's IDIOTIC to act like an ideal world is the starting point rather than the goal. I am many things, pedantic, fussy, and so on but one thing I am not is an idiot.

Of course you're not an idiot! But this isn't about "doing it right" or perfection. The ideal that matters is equality. Those being denied equal access or treatment shouldn't consider it just an "inconvenience", and patience in the political process shouldn't be a pre-requisite.

Once again, I don't believe in a "right" to "equality". That's enormously vague.
Also, Fuzzy pretty clearly outlined his problems with using the courts because of the backlash, which is also one of my positions.

Echoing Rand, don't you believe in the US Constitution, or the 14th Amendment? It's "vague" on purpose, with intent to make it a 'living' document that can be interpreted and amended by future generations.

Everyone has to work through the political process to change most state practices, that's the point of democracy.

But we're not just a mish-mash of independent states, or a direct democracy. We're a representative republic, a union of states that makes us a Nation. E pluribus unum. Don't make the mistake of confusing our political process, or state legislatures, with the Constitution, or Civil Rights. That just won't work in the 21st century.

[Hazir]

The ideal that matters is equality. Those being denied equal access or treatment shouldn't consider it just an "inconvenience", and patience in the political process shouldn't be a pre-requisite.
.

I totally agree, here in The Netherlands the push for full equality gathered force AFTER the near equal status of domestic partnership was created. Even though the inconveniences had been reduced to the bare minimum, the inequality was unacceptable.

Althought equality should be self-evident, the 14th amendment leaves no room for the idea that equality before the law is not a fundamental right in the US.

[GGT]

Arizona's "religious freedom" law was passed for bizarre, political reasons. It's the same basis (used by Republicans) to ban "Sharia" law.

[Dreadnaught]

I could make pretty good public interest arguments for each of those. I can't think of any public interest in discriminating against gays.

It is about ending heterosexual marriage - either you have marriage, or you don't. Affirmative action is indeed treating different groups of people differently, but as Loki mentioned there are public interest arguments for it, and basically it's only there because certain groups have been systematically discriminated against in the past. Though I would agree affirmative action should be based on socio-economic class rather than race. I don't know anything about your preferential tax rates or disparate impact analysis, so I can't comment on those.

Anyone can make a public interest argument for anything. That's why gay marriage bans have won statewide referendums in so many states here.

You don't believe in the 14th Amendment?

Doesn't matter though whether you believe in it or not as it is part of the Constitution.

You don't seem to understand the limits of the 14th Amendment in this case. Or at least you see it with a very Continental definition of "equal".

[Loki]

Right, because when gay marriage was banned it was based on a public interest rationale and not on a "we hate fags" rationale.

[GGT]

Anyone can make a public interest argument for anything. That's why gay marriage bans have won statewide referendums in so many states here.

You don't seem to understand the limits of the 14th Amendment in this case. Or at least you see it with a very Continental definition of "equal".

Why would you make an inflammatory comment like that? Europeans on this board have a good understanding of the US Constitution, and its Amendments -- often more knowledgeable and sophisticated than US posters.

The US has bickered (and fought) over "rights" from our very beginnings. Religious liberty and property ownership were contradictions to Catholicism/Church of England, Monarchies, and "inherited" wealth/power. The New World held promise....but only after natives were forced from their lands, their culture and religion demeaned. And don't forget, those who designed and wrote our first Constitution were white, male, Deist/Christian, property/slave owners.

That's why our Constitution -- and Bill of Rights -- is so brilliant. It was created as a living, changing, adaptable document. Of, by and for The People. With legislative 'representation' that can be modified, without undermining basic tenets of "Equality".

[Hazir]

I would say that it's more than a bit odd to percieve a reference to the Declaration of Independence as 'Continental'. The whole argument against the Bill of Rights was that it could be abused as a limitative enumeration of rights. The 14th amendment having to turn equality into positive law is a strong argument for that idea.

Dreadnaught seems to think that only those things are rights that the government bestowes upon us. He must have them mixed up with entitlements.