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Thread: Supporting Gay Marriage; Not Comfortable With SCOTUS Ruling on Issue

  1. #61
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    Why would they address full faith in a ruling where they were going to impose a blanket ban on all mecegenation laws?
    Congratulations America

  2. #62
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    Quote Originally Posted by Dreadnaught View Post
    I'm not sure I understand your first paragraph about Dutch courts with the last paragraph about Dutch courts. They seem contradictory, do you mind clarifying?

    Your last post seems to specifically support what I've been saying. The Dutch experience was a decisive legislative victory and people are not keen to "roll that back". It's the same in New York -- a democratic victory lent legitimacy and eroded the remaining opposition. The US must have dozens of smaller legislative victories across our states to get there, which takes time.

    Contrast that to the last major US social issue that was dictated by judges: abortion. It galvanized a religious/social conservative movement that continues to agitate to reverse the court's decision decades later.

    The cold reality is same sex marriage is not a core right. It's a relatively recent concept in mainstream western society. As much as I want gays to be able to marry, the inability to marry in many US states is not equivalent to slavery or being deprived of the right to vote. Gays aren't having their assets stripped away and being convicted of raping random heterosexual men by bigoted juries. None of this is to suggest that gay rights are somehow not real -- but one has to step back and make sure the process doesn't cause long-term harm. Perfection and instant gratification are not the hallmarks of democracy.

    I'm curious if anyone else here has a view on this. It could be an absolute disaster for the cause. A realistic scenario is the court rules that the Defense of Marriage Act is unconstitutional, but specifically allows individual states to define/ban gay marriage. Which is either a victory or a defeat, depending on how you look at it.
    There is no contradiction, the court can never apply a constitutionality test, but the court can apply the law. If the law says that two adult persons can be married a judge, seeing the inaction of parliament, can conclude that parliament has no opinion on it. After a while we could expect courts ruling in favour of 'gay marriage'. Parliaments hand was forced and they tried first to deal with it through Civil Partnerships, which then were followed by full equality, not because suddenly there was a majority, but because a blocking minority lost its ability to block.
    Congratulations America

  3. #63
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    P.S. I happen to know the couple whose litigation against all odds forced politics to move on the issues.
    Congratulations America

  4. #64
    Quote Originally Posted by GGT View Post
    And if SCOTUS had waited for "popular opinion" to make their decision....as you want them to do for marriage equality....how many more decades would women have had to wait for gov't "permission" to control their own bodies?

    What gives? You're practically apoplectic when teh gummit interferes with business by regulations, and paint taxation as tantamount to tyranny.....but not so much when they're poking into bedrooms or legislating sexual-related activity.

    Besides, what would be the point of federal judiciary review if it's nothing more than confirming popular opinion, or keeping the status quo, instead of interpreting constitution and laws, and making 'controversial' decisions? Seriously.
    Abortion without Roe v. Wade a counterfactual with no real answer. I believe laws against abortion peaked in the 1920s, but the thaw began in the late 1960s/early 1970s New York, Washington and a few other places legalizing abortion upon request. A host of states were simultaneously legalizing it in cases of rape and incest. The landscape was very much in flux and seemed to be heading towards increased legalization as Roe v. Wade was decided. But we have no way to know, it could have gone either way.

    But none of this is a contradiction in my views. I want gay marriage to be legal. My focus is on how it becomes legal and the best way to make that victory an enduring political victory.

    But the whole reason we're in this situation is because most state governments have chosen to make particularly strict definitions of marriage, that much should be obvious.


    Quote Originally Posted by Hazir View Post
    There is no contradiction, the court can never apply a constitutionality test, but the court can apply the law. If the law says that two adult persons can be married a judge, seeing the inaction of parliament, can conclude that parliament has no opinion on it. After a while we could expect courts ruling in favour of 'gay marriage'. Parliaments hand was forced and they tried first to deal with it through Civil Partnerships, which then were followed by full equality, not because suddenly there was a majority, but because a blocking minority lost its ability to block.
    Sounds like a narrow advantage was exploited in the lack of a definition of "marriage" in Dutch law. But it was still the kind of thing that required a clear legislative solution to finally resolve. It would have been a bit different if the definition was always clearly between a man and a woman, no? We don't have that advantage -- many states clearly define marriage as being heterosexual. Part of our puritanical heritage or something.

  5. #65
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    When it was first challenged, the courts said basically 'look, we agree that the laws says what you claim, but we took it to mean two people of a different sex for as long as we have had the law. We want to hear from the legislative before we are going to rule different.'

    Everybodybody knew that meant the court preferred a legislative solution, but that they would not wait indefinately.

    Also, I can assure you that 50 years ago Holland probably was still one of the most Puritanical countries in the world. For a big part of the nation even doing something like watching TV or knitting was considered a sin if you did it on a sunday.the only bakers that were allowed to be open on sundays when I was young were owned by Jews.
    Congratulations America

  6. #66
    Quote Originally Posted by Dreadnaught View Post
    Abortion without Roe v. Wade a counterfactual with no real answer. I believe laws against abortion peaked in the 1920s, but the thaw began in the late 1960s/early 1970s New York, Washington and a few other places legalizing abortion upon request. A host of states were simultaneously legalizing it in cases of rape and incest. The landscape was very much in flux and seemed to be heading towards increased legalization as Roe v. Wade was decided. But we have no way to know, it could have gone either way.
    Your "thaw theory" is flawed. Abortion was fully legal in only 4 states when Roe v Wade was decided. States making exemptions for rape and incest weren't really giving women full self-determination rights, but deciding to add a layer of "legal review" made by courts (ie, that gov't intrusion conservatives purport to care about.)

    But none of this is a contradiction in my views. I want gay marriage to be legal. My focus is on how it becomes legal and the best way to make that victory an enduring political victory.

    But the whole reason we're in this situation is because most state governments have chosen to make particularly strict definitions of marriage, that much should be obvious.
    And since we're a UNION of states, it matters because hetero marriage is legally recognized in all states, and between states.

    That makes Prop 8 slightly different from DOMA --- there were marriage equality laws in place, and then taken away. If SCOTUS rules as if marital laws are "just like any other law", they could uphold CA changing laws at will, or by ballot voting.

    But if they view marriage as a contract with legal standing, and one class of (hetero) citizens has full access, but another (LGBT) doesn't, that could be deemed discriminatory. Alternatively, since marriage is a voluntary contract that states tax (in registration fees and licenses), with federal tax preferences and deductions for married couples ....hell, it could fall under the interstate Commerce Clause.

    I think you're hung up on "state's rights", instead of focusing on people and their Civil Rights and Human Rights. You say you want gay marriage to be legal, but prefer the long slog of states using their legislative/court processes to eventually come to the same conclusion. That wouldn't have worked for anything else related to Equality -- not for slavery, voting, interracial marriage, desegregation, abortion -- and you know that's why SCOTUS is involved now.

    The reason is because All People Equal Under the Law is a Right. That's not something that should be up for popular vote. It's got nothing to do with your concerns about a slippery slope for "free phones", or whatever else you said earlier.

  7. #67
    Another element I haven't seen discussed here, yet. That marital rights of heterosexual spouses can (and should) transfer after gender reassignment, even though they're technically considered same-sex couples.

    Ergo...marriage has nothing to do with gender or sexual orientation.

  8. #68
    Everyone supporting court rulings that bend/twist/crazy extrapolation of what the legislative or constitutional intent must understand that you then can't complain if the ruling goes against your political preference.

    When X amendment was written did they believe that it meant Y when it came to gay marriage? Or executions? Or government power? If the court is freely allowed to go beyond the rigid interpretation of the law as written then they can just as easily rule AGAINST you. That means if a law specifically states you can't discriminate against X Y Z then the court could freely overturn it based on some bull shit "interpretation." At this point why don't we just do away with marriage as a governmental institution? Hell lets interpret the equal protection clause to require all married and single people to be treated EXACTLY the same and oh... since separate and equal doesn't apply lets just abolish governmental marriage? Do you see how it can 'justify' everything?

    I don't really care about gay marriage except for two issues. 1. It shows how spineless and pathetic our politicians are. If you had one view of something 20 years ago - changing it now because other people have changed just shows you have a spine of jelly. 2. The courts and the philosophy behind the rulings.

    Just require wills for everyone (or not, get personal responsibility you lazy cretins) and stop treating married people differently than single people. Not for taxation not for SS not for pensions not for jack. Grandfather everyone under existing laws but moving forward each person is an individual and is treated as individual regardless of the cultural notion of "marriage."

  9. #69
    Quote Originally Posted by Lewkowski View Post
    snip

    At this point why don't we just do away with marriage as a governmental institution? Hell lets interpret the equal protection clause to require all married and single people to be treated EXACTLY the same and oh... since separate and equal doesn't apply lets just abolish governmental marriage? Do you see how it can 'justify' everything?
    Just require wills for everyone (or not, get personal responsibility you lazy cretins) and stop treating married people differently than single people. Not for taxation not for SS not for pensions not for jack. Grandfather everyone under existing laws but moving forward each person is an individual and is treated as individual regardless of the cultural notion of "marriage."
    It's not realistic to think governments will stop recognizing marriage/civil unions as legal contracts. Or as property/asset transfers and Wills by proxy. But I'm sure attorneys would love all the new billable hours in law suits, and clogging up the courts.

    Sure, the IRS could get rid of joint tax returns, marital discounts, and treat every tax payer as an individual. For that matter, they could also get rid of dependent child deductions unavailable to 'non-breeders', mortgage interest deductions that punish renters, educational credits that non-students don't get, etc.

    Accountants and their lobbyists wouldn't support that, though. Neither would any SS or pension beneficiaries (or military spouses) living on spousal benefits. None of this total individualism is very likely. But your motive is cleverly aimed at individuals buying more insurance products for their spouses and children. Life Insurance, Disability Insurance, Long Term Care Insurance, the opportunities are endless, huh.





    I don't really care about gay marriage except for two issues. 1. It shows how spineless and pathetic our politicians are. If you had one view of something 20 years ago - changing it now because other people have changed just shows you have a spine of jelly. 2. The courts and the philosophy behind the rulings.
    Wow. If you expect people to never change their views or opinions during a lifetime, or adapt to cultural evolutions....it's no wonder you see all things as black-or-white, right-or-wrong, and nothing in between. Does this mean you don't view the US Constitution as a "living document", and none of the Amendments are valid?

  10. #70
    Quote Originally Posted by GGT View Post
    Wow. If you expect people to never change their views or opinions during a lifetime, or adapt to cultural evolutions....it's no wonder you see all things as black-or-white, right-or-wrong, and nothing in between. Does this mean you don't view the US Constitution as a "living document", and none of the Amendments are valid?
    Changing the constitution via amendments is PERFECTLY fine. Changing the meaning of the constitution by judicial fiat is the problem.

  11. #71
    Quote Originally Posted by Lewkowski View Post
    I don't really care about gay marriage except for two issues. 1. It shows how spineless and pathetic our politicians are. If you had one view of something 20 years ago - changing it now because other people have changed just shows you have a spine of jelly. 2. The courts and the philosophy behind the rulings.
    http://en.wikipedia.org/wiki/File:El...ollege1948.svg

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  12. #72
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    It shows how spineless and pathetic our politicians are. If you had one view of something 20 years ago - changing it now because other people have changed just shows you have a spine of jelly.*
    Or, not changing your views as you grow older, wiser, etc., is rigid, stubborn, and in some cases stupid.

  13. #73
    You forgot close-minded.

  14. #74
    Quote Originally Posted by Dreadnaught View Post
    My focus is on how it becomes legal and the best way to make that victory an enduring political victory.
    Considering we have already covered how the opposition is expiring, rather than converting, I'm curious if you can expand on this. If SCOTUS reinforces the concept of equal rights, what backlash scenario do you envision that would outlast the lifespan of the opposition?
    Last edited by Ominous Gamer; 12-13-2012 at 09:18 PM.
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  15. #75
    Quote Originally Posted by Lewkowski View Post
    Everyone supporting court rulings that bend/twist/crazy extrapolation of what the legislative or constitutional intent must understand that you then can't complain if the ruling goes against your political preference.

    When X amendment was written did they believe that it meant Y when it came to gay marriage? Or executions? Or government power? If the court is freely allowed to go beyond the rigid interpretation of the law as written then they can just as easily rule AGAINST you.
    I'd like to point out that Scalia, the intellectual mainstay of the court's conservative wing agrees that the court is not allowed to go beyond the rigid interpretation of the law as written. As a consequence of this, lawyers almost never go before the court and try to make an argument about what was believed or meant when the law was written, what is called "original intent" or "legislative intent". Because what they intended is of absolutely no relevance, what they actually did is what matters. It is not the court's job to try and implement the murky intent of a couple hundred legislators.
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  16. #76
    Quote Originally Posted by Hazir View Post
    When it was first challenged, the courts said basically 'look, we agree that the laws says what you claim, but we took it to mean two people of a different sex for as long as we have had the law. We want to hear from the legislative before we are going to rule different.'

    Everybodybody knew that meant the court preferred a legislative solution, but that they would not wait indefinately.

    Also, I can assure you that 50 years ago Holland probably was still one of the most Puritanical countries in the world. For a big part of the nation even doing something like watching TV or knitting was considered a sin if you did it on a sunday.the only bakers that were allowed to be open on sundays when I was young were owned by Jews.
    The fact that both our societies have massively changed in a way that's positive for gay rights is all the more reason I prefer legislative solutions. Those are real victories to me.

    Quote Originally Posted by GGT View Post
    Your "thaw theory" is flawed. Abortion was fully legal in only 4 states when Roe v Wade was decided. States making exemptions for rape and incest weren't really giving women full self-determination rights, but deciding to add a layer of "legal review" made by courts (ie, that gov't intrusion conservatives purport to care about.)
    [...]
    The reason is because All People Equal Under the Law is a Right. That's not something that should be up for popular vote. It's got nothing to do with your concerns about a slippery slope for "free phones", or whatever else you said earlier.
    1) You seemed to ignore my point. Abortion had only recently become legal on-demand and the women's lib movement was rapidly gaining steam. Other states could have easily followed. Similar to how same sex marriage in the US started somewhere and rapidly expanded to be legal in more and more states.

    I don't pretend to be certain about this trajectory. That's the point -- no one can be certain. We can only be certain that Roe v. Wade distorted that potential progress by making women's rights the focal point of religious rage.

    2) "All People Equal Under the Law" is not a "right" in the sense that you seem to believe it is. The phrase you're possibly misquoting is "equal justice under the law" which has a subtle but important difference.

  17. #77
    Quote Originally Posted by LittleFuzzy View Post
    I'd like to point out that Scalia, the intellectual mainstay of the court's conservative wing agrees that the court is not allowed to go beyond the rigid interpretation of the law as written. As a consequence of this, lawyers almost never go before the court and try to make an argument about what was believed or meant when the law was written, what is called "original intent" or "legislative intent". Because what they intended is of absolutely no relevance, what they actually did is what matters. It is not the court's job to try and implement the murky intent of a couple hundred legislators.
    Here is a classic example. The 8th amendment. Should it be used to outlaw capital punishment? My answer would always be no since the folks who created the amendment were perfectly OK with hangings. To in effect re-write the law by interpreting that amendment to be something different goes beyond the bounds of what the justices should be doing. I don't see how you can divorce the intent factor on something like this. And while I like Scalia I doubt I'm in 100% agreement with any of the justices.

  18. #78
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    Quote Originally Posted by Lewkowski View Post
    Here is a classic example. The 8th amendment. Should it be used to outlaw capital punishment? My answer would always be no since the folks who created the amendment were perfectly OK with hangings. To in effect re-write the law by interpreting that amendment to be something different goes beyond the bounds of what the justices should be doing. I don't see how you can divorce the intent factor on something like this. And while I like Scalia I doubt I'm in 100% agreement with any of the justices.
    Really? How hard is it to enumerate punishments you don't think are cruel or unusual. It would have taken 4 words tops to cement Capital punishment, yet they decided not to write them down.
    Given what they did to the 2nd amendment, which could have been a lot more precise with half a sentence less, one is inclined to think they didn't leave it out in order to be economic with words.

    What the Supreme Court conservatives have got right, and you got entirely wrong is that the Constitution is a rule book by which to play, not a contract to eviscerate the legislative.
    Congratulations America

  19. #79
    Quote Originally Posted by Lewkowski View Post
    Here is a classic example. The 8th amendment. Should it be used to outlaw capital punishment? My answer would always be no since the folks who created the amendment were perfectly OK with hangings. To in effect re-write the law by interpreting that amendment to be something different goes beyond the bounds of what the justices should be doing. I don't see how you can divorce the intent factor on something like this. And while I like Scalia I doubt I'm in 100% agreement with any of the justices.
    Without the historical context, don't you think it's actually one of the more vague and subjective Amendments in the Constitution? "Excessive" and "cruel" are pretty subjective words. The only slightly less subjective adjective is "unusual".

  20. #80
    Pretty sure that cruel and unusual punishments = punishments carried out in Britain and not in the US in 1789.
    Hope is the denial of reality

  21. #81
    Quote Originally Posted by LittleFuzzy View Post
    I'd like to point out that Scalia, the intellectual mainstay of the court's conservative wing agrees that the court is not allowed to go beyond the rigid interpretation of the law as written. As a consequence of this, lawyers almost never go before the court and try to make an argument about what was believed or meant when the law was written, what is called "original intent" or "legislative intent". Because what they intended is of absolutely no relevance, what they actually did is what matters. It is not the court's job to try and implement the murky intent of a couple hundred legislators.
    Hasn't Scalia said the Constitution is a 'dead document' (ie, not a 'living document')?

    Regarding standing -- there was a good piece in NYT recently explaining and questioning that part. Also that the court tries to rule in favor of current legislature and laws, whenever they can.



    Here's the link for anyone who missed it: http://opinionator.blogs.nytimes.com...f=supremecourt
    Last edited by GGT; 12-15-2012 at 03:24 AM.

  22. #82
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    Well and so they should; the courts should only step in if the Legislature is in obvious breach of the Constitution or absolving itself from its duty to legislate. I don't really believe in the Constitution as a 'living document' in the sense that it puts the Supreme Court in the role of legislator by default.

    And just in case anyone wonders; I don't think equal treatment is a novelty, applying it wrt to marriage legislation is merely eliminating a clear injustice.
    Congratulations America

  23. #83
    Quote Originally Posted by Hazir View Post
    Well and so they should; the courts should only step in if the Legislature is in obvious breach of the Constitution or absolving itself from its duty to legislate. I don't really believe in the Constitution as a 'living document' in the sense that it puts the Supreme Court in the role of legislator by default.

    And just in case anyone wonders; I don't think equal treatment is a novelty, applying it wrt to marriage legislation is merely eliminating a clear injustice.
    A living document means it has an interpretive context (IMO). The US has Constitutional anti-discriminatory and equal treatment laws for race, ethnicity, gender, religious affiliation...but not sexual orientation. At least not explicitly. That's part of the problem.

  24. #84
    "At least not explicitly" should deflate whatever inchoate anger and rage you're directing at this.

  25. #85
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    Quote Originally Posted by GGT View Post
    A living document means it has an interpretive context (IMO). The US has Constitutional anti-discriminatory and equal treatment laws for race, ethnicity, gender, religious affiliation...but not sexual orientation. At least not explicitly. That's part of the problem.
    When was it again that some political bigwig was against the Bill of Rights? The fact that it's not explicit doesn't mean equal treatment is not intended for all citizens. The problem is not in the Constitution but in the Dark Ages of psychiatry. Now that that whole humbug has been done away with it seems to me that the best and easiest way to go about this is applying the law as it was written AND As it happens intended; as a guarantee for equality under the law for all.
    Congratulations America

  26. #86
    Quote Originally Posted by Dreadnaught View Post
    Without the historical context, don't you think it's actually one of the more vague and subjective Amendments in the Constitution? "Excessive" and "cruel" are pretty subjective words. The only slightly less subjective adjective is "unusual".
    Sure - which is why its important to go back to what the amendment author's meant by it. Otherwise you get into a situation where ANY punishment is OK per the "interpretation" of the current court or on the other end of the spectrum almost NO punishments are acceptable based on the "interpretation" of the current court.

  27. #87
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    Quote Originally Posted by Lewkowski View Post
    Sure - which is why its important to go back to what the amendment author's meant by it. Otherwise you get into a situation where ANY punishment is OK per the "interpretation" of the current court or on the other end of the spectrum almost NO punishments are acceptable based on the "interpretation" of the current court.
    Humbug, if the drafters meant something different, they could have written something different. We are not beholden to the thoughts of those who came before us. What we are bound by is the parts of the contract they drafted and that we decided not to change.
    Congratulations America

  28. #88
    Quote Originally Posted by Hazir View Post
    Humbug, if the drafters meant something different, they could have written something different. We are not beholden to the thoughts of those who came before us. What we are bound by is the parts of the contract they drafted and that we decided not to change.
    In that case you're completely happy with the courts deciding the government can take away all freedom based on some garbage slant they may have?

  29. #89
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    Quote Originally Posted by Lewkowski View Post
    In that case you're completely happy with the courts deciding the government can take away all freedom based on some garbage slant they may have?
    And on the basis of what law or what jurisprudence would they decide so? The courts doing their assigned task is not the same as judicial activism. Not even if what they rule is a big change in the way we do things. It is only activism if courts go beyond their given task and put themselves in the position of a counter-government.
    Congratulations America

  30. #90
    Quote Originally Posted by Lewkowski View Post
    Sure - which is why its important to go back to what the amendment author's meant by it. Otherwise you get into a situation where ANY punishment is OK per the "interpretation" of the current court or on the other end of the spectrum almost NO punishments are acceptable based on the "interpretation" of the current court.
    It's clearly meant to be a little subjective. After all, hanging was acceptable at that time. I'm glad that we have the latitude to say that it's not acceptable now.

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