Another day, another judge unilaterally throws out a state's ban on same sex marriage

Since we have been allowing divorce since the 1800s, that means marriage has already been redefined from its original meaning. In addition, the legal definition of marriage is as a contract. The right to enter into a contract is a fundamental right, and the right to contract has been protected by the Supreme Court since the 1800s.

Marriage is a fundamental right according to the Supreme Court, that means the Fourteenth Amendment applies, and since a marriage can exist between two people regardless of sex, it must be so under the Fourteenth Amendment.

Except same-sex divorced people weren't whining about traditional marriage in the first place, so they're not hypocritical.

Domestic partnerships are separate and substantially different. Brown v. Board already settled that separate but equal doctrines are violative of the Fourteenth Amendment.

 

Just because a majority of citizens votes for a law doesn't make it constitutional. Laws passed by the people, either directly, or through their legislators (either at the state level or the federal level) still need to pass constitutional muster. And guess what, that's the one of the purposes of the federal judiciary: to review laws that have been passed to see if those laws are constitutional. This is hardly the first time a federal judge has struck down a law that passed with a majority of citizens voting for it. And as the case usually is, it's being appealed to a higher court, who may or may not uphold that decision. And I'm sure the loser of that decision will appeal it to the US Supreme Court. So it's not like they can make unilateral changes without a lot of oversight. And like in most cases, the decision was stayed to allow a higher court to rule on the decision, so nothing has really changed, yet.

Tell me, do you feel that the decision in Loving v. Virginia was proper? After all, 9 unelected demigods in black robes overturned the popular wishes of the population of 16 states.

 

If you were to present a cogent valid point, perhaps others might think about it.

So are you saying that you support the rights of individual states to vote, through the will of the people, to strip certain classes of people of their constitutional rights? And they should be able to do this why? There is certainly no question that some people do not WANT certain other people to enjoy the same constitutional rights they theymselves enjoy. Now, the American political philosophy of all men created equal, and due process under the law, runs contrary to this desire. Which SHOULD rule, the rights guaranteed under the US Constitution, or the deprivation of those rights by a majority of voters in certain states? Your main complaint is that equal application of the law "forces down our throats" the equality that law guarantees. And you wonder why people don't see validity in your viewpoint?

And by "the will of the people" we understand you are referring to a majority of voters in certain states, whose will is that SOME people they dislike should be denied their equal rights. If the majority vote to deprive a minority of their rights, how do YOU propose that the rights of that minority should be restored? How should their rights be protected?

But you are allowing the will of SOME people to override the US Constitution. And try as we might, nobody can seem to get through to you that this isn't a good idea. You yourself seem to be recognizing here that if same-sex marriages are protected, you are not in any way injured. Indeed, this has been the theme in all of these cases you despise - the court asks the State to show injury resulting from such marriages, and the State cannot do so.

So we circle back around. You argue repeatedly that if a majority of the voters in some states decide to deprive a minority within their state of their constitutional rights, this is not only proper but it would actually be "dangerous and contemptible" to enforce the US Constitution. But you personally don't really care about same sex marriage, oh no, furthest thing from your mind. Except you have never once argued that individual states can vote to ignore the US Constitution if they feel like it. Can you name any other rights guaranteed to all US Citizens that you feel should be taken from them if they are in a minority?

 

Starting from Jamestown, sodomy was a criminal offense punishable by death in some colonies, and was a criminal law until recently, making it against the law for almost 400 years, and voting against marriage is stripping people of there constitutional rights?

I assume you are in favor of the DOMA ruling being reversed since you are arguing against it.

 

Sad but true. And slavery is still practiced in some parts of the world.

Courts have consistently ruled that the right to marry is a fundamental constitutional right. If that right is denied in individual cases, then some compelling state reason should be provided, case by case.

I'm not sure what you are saying here. I'm arguing that every citizen should be equal in the eyes of the law, and tht no citizen should be deprived of any constitutional rights without due process of law in each case.

But I do get a chuckle from how some of these laws are named. The "Defense of Marriage Act" was an attempt to prohibit marriages. So of course in our Orwellian political world, prohibition is called defense. War is peace, ignorance is knowledge, slavery is freedom, and you "defend" someone's right by depriving him of it. Great stuff.

 

I was referring to the federalism basis why DOMA was ruled unconstitutional: it violated state's rights to define marriages.

 

Oh no, it did no such thing. The part that was ruled unconstitutional was the part that said the Federal government doesn't recognize same-sex marriages which are legally performed. The Court ruled that if a state says it's legal and performs the marriage, the Federal government must honor that marriage.

There was a certain amount of dicta in the decision, however. As the Loving case established, the states' rights to define marriage can NOT be permitted to extend to the point of denying basic constitutional rights. But it was noted in passing (NOT as part of the decision itself) that states do retain a lot of flexibility within the bounds permitted by the US Constitution. And in fact, you see that certain aspects of marriage do vary from one state to another - things like degree of consanguinity, minimum age, length of waiting periods, cost of licenses, and so on.

Still, the DOMA decision very carefully did not rule on whether a state prohibition on same-sex marriage violates the constitution. The ruling was much more narrow, ruling only that IF the marriage was legal, the Feds must honor it. Which is still quite a lot, considering the sheer pervasive influence of marriage in thousands of laws and regulations and legal precedents.

 

I think he's saying there is no constitutional right to gay marriage. Marriage between a man and woman is a constitutional right and the Supreme court has told us why.

 

Ah, but we have an answer for that, from the decision in utah:

So yes, prior decisions you quote from concerned men and women. They were also from a different point in time when the there were dramatically different understandings about homosexuals, which naturally would not have been included given those understandings. We also know from the Supreme Court that those understandings have changed dramatically. And we know that marriage has been recognized as a protected right for those who are known to be unable to procreate and who are subject to reduced rights in the first place (prisoners).

We can keep talking past each other on this all day. The fact is that there are court cases and precedent that support both sides. Certainly procreation has been recognized as an important feature in marriage, but it is also impossible for you say that it is the only sufficient feature the court has recognized.

 

Courts are now rather unanimously disagreeing with him, and finding that people with varying sexual orientations are still people, still citizens, and still protected by due process of law.

But even if we set aside any constitutional considerations, what we have here is a policy whose sole effect is to punish a class of people by denying them a substantial number of benefits, without providing ANY benefit to anyone in exchange. So one question the courts address is, does government have a compelling interest in harming a minority, without any known benefit to the majority? And if a state holds a referendum, and the majority votes to harm the minority, should such a vote be allowed to stand? If so, what protection should the minority have, or what avenue of redress of the harm?

I'm willing to bet that the majority of states would vote to deprive atheists of as many rights as they could. Being a fairly small minority, the atheists could never hope to recover their equality through the ballot box.

 

A fact nobody denies. Which is probably why you brought it up.

Nonsense. The policy is to have more children born into homes with both their mother and father present to provide and care for their children together. The policy isnt served by excluding anybody. It is only served by including heterosexual couples. The only couples with the potential of procreation.

 

Nonsense, we now and always have known that only an "intimate" bond between a person of the opposite sex creates a family. Gays and their supporters want to insist that marriage has nothing to do with procreation while insisting that it still remain about sex. Other than the fact that sex between men and women creates children, it is irrelevant to this new stated governmental interest in fostering the formation of stable homes. More single parents and grandparents raising children in a home together than have ever been raised by homosexual couples.

 

Lolwut! Are you serious here? Homosexual couples WANT all the children they raise, and at the same time the government (through aid to dependent children) is essentially spending a bundle to purchase single-parent families. And of course, this imaginary policy you cite seems to have no problem marrying sterile people, and elderly people. In no way is the ability to procreate even remotely a test for marriage. Your excuse here is fatuous. Can't you do better than that? You look like a fool.

 

Back to reality, of course we "know" no such thing. Out there in the real world, we have families of many descriptions - plural marriages except in law, live-in parents and grandparents, couples (or more) of the same sex, extended families living together and all of these stable and raising healthy children. And all of them involving intimate bonds.

No, that's your blinders in operation. What we're looking for is legal recognition of stable, intimate relationships. MANY gay couples wish to raise children.

So what? The only relevance I can find here is that if we make it nearly impossible for some people to adopt, we can turn around and say "see, not many have adopted!" Still, your point is correct. ANY arrangement of consenting adults in a stable committed relationship is better for the children than single (often absentee) parents.

 

You failed to notice none of my arguments incuded "the ability to procreate" . But of course, thats why you want to go there now. You like your arguments with no one else on the other side. I'll wait here while you run down your strawmen, looking the fool.

 

Well, let's look at the substance of your recent posts. You wrote:
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Golly, this rests on procreation. Let's try the next post:

Oops, once again you're talking about creating children.

But NOW, you turn around and say you weren't talking about the ability to procreate at all! I'm sorry, but that was the entire substance of your argument. Nothing else. If you wish to raise some other straw man, you might, you know, MENTION it rather than denying you're talking about the only thing you're writing about. Makes you look even more dishonest than usual.

 

Hmmm, I wouldn't think that in the case of the elderly or people in prison, that there would be any significant between saying that they have the "ability"to procreate, or the "potential"to procreate. In both cases, the state can be confident that the answer is no. Yet the state has shown little interest in limits on marriage on the basis of said ability or potential. You're splitting hairs.

 

Can you give us proof of that? There are several states with a history of same-sex marriages. Surely there must be enough evidence there to show your proof that "marriage will become greatly degraded".

 

Actually there have been no real studies of the effect of same sex parents versus "mom and dad". The studies that you refer to are studies of 1 parent versus 2 parents.

2 same sex parents is a recent situation with a high history of stigmatization. We need more years data to see the effect of raising children in a same sex marriage. So far the stories about the children have been good but there is not enough data to do a real study.

 

Yes, it did. The court had two rationales: federalism and equal protection. And was a typical Supreme Court ruling that was as contradictory as it was activism.

There is not basic constitutional right to marry, and it sure does not fall under equal protection. You are incorrect in your assessment of the decision, and showing a little bias, to state that rationale for state’s rights to define marriage is merely obiter dicta, and the equal protection rational is ratio decidendi. Considering the court used equal protection, but applied it to only states that recognized same sex marriage would be a stronger argument for obiter dicta than the federalism rationale, but the court used both, and in a sophomoric method.

 

Thanks for the comment.

This has been going on in any society. The minority has a better representation in a democratic republic but it does not have the right to overrule the majority. Federal Judges follow the U S Constitution. They are not activists unless they rule ignoring the Constitution. States have rights but individuals have more important rights.

"overtly expressed will of the people in the sovereign states" does not overruled society's rights represented by the Federal opinions. Federal opinions are for all of our society.

"forcing behavioral and attitudinal changes on a population that doesn't WANT them." You keep arguing about the state's population. States' populations are still part of the country's population. It is the country's population through its representatives that decides society's norms. We can not function properly with individual state societies' norms.

I believe that "the will of the people" refers to the will of the U S population, not a state population or a city population or a business population.

 

The purpose of the federal judiciary is not to determine whether state laws are constitutional or not, because when the judiciary was established, in the context of this thread, the Bill of Rights did apply to the states, and when the 14th Amendment was passed, equal protection was on a function of due process and equal protection in the courts.

 

Sorry but- yes, it is indeed. State laws cannot subvert the US Constitution.

 

Was that the purpose of the judiciary? And what case law would you propose to present that applied the Bill of Rights to the states when the judiciary was established?

 

The Supreme Court never made any such distinction