Well… That didn’t take long…
[quote]Aragorn wrote:
[quote]JR249 wrote:
I don’t believe the court erred in the outcome of the ruling, but I agree that the majority rationale is problematic in opening up the Pandora’s box of making marriage a fundamental right. That certainly was a compelling interest in prohibiting state’s from legally denying marriage benefits to same-sex couples, but it could have been done in a way to ensure religious liberty was protected going forward. The language in the Bob Jones case did stipulate that similar legal rationale couldn’t be used against strictly religious, non-educational institutions, but a change in venue is only a case law review away.[/quote]
The problem is that as I’ve noted, and as DB has so eloquently ranted about, the rationale is AT LEAST as important as the final outcome, because it is what sets the stage for the next 50-100 years of legal opinion. This was a clusterfuck of bullshit reasoning IMO. I agree with jjackkrash that this outcome was the only probable outcome after the case went to court, but via the 14th/suspect class/Equal Treatment route. The two (rationale/process and outcome) are of course inextricably tied in court opinions, but if in a hypothetical world I could choose only ONE of them…I would really have rather had a bad outcome but with solid reasoning to set up the next generation of cases instead of the reverse, which is what we got.[/quote]
The problem is even simpler than that. I saw a headline somewhere earlier today that captured the problem perfectly. In fact, the headline highlighted TWO problems.
“Supreme Court Makes Gay Marriage the Law of the Land”
Problem One: SCOTUS is not the body that makes things the law of the land. The “law of the land” is the Constitution, meaning that it is the law that applies to ALL of the country. Anything not in the Constitution is to be made law through the will of the people. Not five people and not nine people. THE people. SCOTUS is essentially an interpretative body, not a legislative one. We already have a legislative branch. SCOTUS does not exist to create laws, however redeemable the law itself may be, when such a law fails to make it through the prescribed legislative process.
Problem Two: The headline is a celebratory one. It should not be, for all the reasons already mentioned.
The ONLY appropriate outcome is for state legislatures to extend gay marriage. It had already happened in 38 states. People forget how important our constitutionally-protected rights are in advancing these sorts of issues. I could get behind SCOTUS’ decision ONLY if we did not have the right to freedom of speech or freedom of assembly.
But we DO have those rights and they ARE protected. We can exercise such rights, and when we do so we can advance such issues. The Founding Fathers knew what they were doing. I have always argued on here that “good” speech outweighs “bad” speech in the free market of ideas. It happened in 38 states, and I have no doubt that it would have eventually happened in the remaining states. The combination of free speech, freedom of assembly, and the ability of states to decide on rights not specifically enumerated for protection in Amendments 1-8 should suffice when it comes to any sort of issue like the gay marriage one.
Apparently, some people feel otherwise.
[quote]JR249 wrote:
[quote]DBCooper wrote:
We see this everywhere. There is a complete and utter lack of dialogue in this country about these sorts of issues. Bill Maher or Sean Hannity putting the token conservative/liberal punching bag they call a guest on their shows is not an open discourse. Being told, repeatedly, that you are a homophobic bigot because you disagree with a Supreme Court Justice’s rationale is not an open dialogue.
Anyone who is dumb enough to actually engage anyone on Facebook already knows this, though. But if you don’t know this, go on Facebook and tell your “friends” that you think Justice Kennedy arrived at his decision using a poor legal rationale and that the decision has further set the country back. In fact, just get right down to brass tacks and tell your Facebook “friends” that you think the Obergefell decision is a dark day for the freedoms of Americans. Watch that shitshow unfold and try to call it an open dialogue.
[/quote]
I’m a little late to the party, but here’s the problem - it becomes at 14th Amendment issue when states get involved in creating, legislating and regulating “marriage” benefits. This isn’t the first time the issue ended up at the High Court, as they used the exact same legal rhetoric in the Loving v. Virginia anti-miscegenation case in 1965, i.e., but the Due Process and Equal Protection clauses were invoked against Virginia’s law banning interracial marriage. Granted, that was a race-based case, but the institution of marriage vis-a-vis the 14th Amendment was the core legal issue, so same concept, different social issue.
I don’t believe the court erred in the outcome of the ruling, but I agree that the majority rationale is problematic in opening up the Pandora’s box of making marriage a fundamental right. That certainly was a compelling interest in prohibiting state’s from legally denying marriage benefits to same-sex couples, but it could have been done in a way to ensure religious liberty was protected going forward. The language in the Bob Jones case did stipulate that similar legal rationale couldn’t be used against strictly religious, non-educational institutions, but a change in venue is only a case law review away.[/quote]
They most certainly DID err in the outcome of the ruling. By making any ruling whatsoever, other than kicking the issue right back to the states, they have erred.
The ends do not justify the means.
[quote]2busy wrote:
Well… That didn’t take long…
Shit. It took several days longer than I had anticipated!
[quote]DBCooper wrote:
I don’t like this one bit, and this is where this country is headed. You see it all the time.[/quote]
For the record, I agree with your arguments. Social liberalism is going off the deep end right now, and I honestly believe any rational individual who isn’t concerned even a little bit with what’s going on is in danger of being delusional.
But lemme be an ultra cynic real quick-
[quote]DBCooper wrote:
Nietzsche was wrong: it’s not God who is dead, it is open dialogue.[/quote]
Open dialogue never existed. Like God =P (Sorry, I couldn’t resist a silly little swipe).
[quote]pushharder wrote:
Again, Bert, I completely on board with you on this thread. We’ve disagreed over many things but you’re nailing it left and right here from the legal perspective.[/quote]
And this is pretty much the only thing that makes me feel that there is any hope for a truly open dialogue to continue/restart in this country.
I mean, we’ve had some knockdown, drag-out arguments in here, but there is a very significant amount of respect for someone else’s opinion that must be necessary for the 9th/10th Amendments to really work.
I don’t think the social liberalism/social-reform-through-gov’t-fiat crowd understands this at all. I’m socially liberal, but I’m constitutionally conservative, a rare combo. Virtually all social liberals are extremely tolerant of things…except intolerance of the things they are tolerant of. And that naturally makes them the most intolerant group of people in this country.
To people like us, the bigger issue really is what has happened to the ability to self-govern in this country. Like I said earlier, I strongly support gay marriage and always have. But quite frankly, I don’t give a fuck how many fags can get married now.
Justice Kennedy, again, has mangled the Constitution and seriously eroded our ability of self-governance so that marriage can be extended to about 2% of the population, if that. I think I’ve heard that upwards of 10% of the country is gay or bisexual, and I’m going to go out on a limb and assume that virtually all of them already lived in the 38 states that legalized gay marriage on their own. OUR FUCKING SYSTEM WAS WORKING EXACTLY THE WAY THE FOUNDING FATHERS INTENDED IT! WHAT DON’T THOSE PEOPLE UNDERSTAND ABOUT THIS???
It is so fucking pompous and ignorant to claim that that day last week was a good day. These people are essentially placing the wishes of a tiny minority of the country above the ENTIRE country’s ability to self-govern. If it weren’t so goddamned infuriating, the irony might be amusing. After all, the gay marriage crowd always likes to run the ol’ “keep the gov’t out of my private life” flag up the pole.
[quote]sufiandy wrote:
http://dailysignal.com/2015/07/02/state-silences-bakers-who-refused-to-make-cake-for-lesbian-couple-fines-them-135k/[/quote]
This one is even more disgusting. In what motherfucking world does someone have a legitimate legal claim to my property without first engaging in a voluntary contract with me?
That is essentially what this ruling does. A gay couple walks in and wants a cake for their wedding. Fucking outstanding! And I hope their marriage is a long and loving one.
But when a guy says, “you know what, I’m not down with that gay shit, so no, you cannot have one of my cakes” he is making a choice about his property. It is his ingredients that will be made into a cake, and it requires a voluntary exchange for him to give the gay couple his property in exchange for money. And if that’s the case, so what? While I don’t agree with the baker’s position, I wholeheartedly support his property rights.
This case is a classic example of the positive vs. negative rights dichotomy.
The argument that the guy’s bakery sits in a building that is connected to public property (the sidewalk and street in front of it) is immaterial. After all, it isn’t the gay couple’s tax dollars that are paying for the sidewalk in front of the bakery; it is the baker’s taxes.
On top of everything else, if the baker is allowed to discriminate in terms of who he provides his service to, it makes it easier to avoid his business if you aren’t into discriminatory behavior. I wouldn’t want to support a business that would deny service to gays, but I would most likely never know that baker’s attitude if he was forced to sell to everyone. If discrimination of this kind were legal, all the bigots would be out in the open and I’d know who they are.
[quote]sufiandy wrote:
http://dailysignal.com/2015/07/02/state-silences-bakers-who-refused-to-make-cake-for-lesbian-couple-fines-them-135k/[/quote]
It’s funny, too, because liberal interpretations of the Constitution argue that there are certain implications that the Constitution makes. That’s how the fundamental right to privacy was found in the Constitution. Certain rights can be found in the “penumbras and emanations” of the Constitution, as Justice Douglas wrote in Griswold v. Conn.
If that’s the route they’re going to take, I cannot think of a whole lot that emanates from the Constitution more than the idea that your private property cannot simply be taken from you.
You know, people like to say that Thomas Jefferson or George Washington were the greatest of the Founding Fathers. But I would argue that it’s James Madison by a country mile.
Perhaps the fact that he is so infrequently honored, especially compared to the rest of the Founders, speaks much more loudly than previously thought. Is it pure coincidence that the architect of the Constitution and the Bill of Rights amended to it has largely been forgotten by history, at least in comparison to Jefferson and Washington?
I challenge anyone here to read Federalist #10, 39, 47, 48, 49, and 51 and then try to argue that Madison was not the most brilliant of all the Founders.
[quote]DBCooper wrote:
They most certainly DID err in the outcome of the ruling. By making any ruling whatsoever, other than kicking the issue right back to the states, they have erred.
The ends do not justify the means.[/quote]
I’d have to strongly disagree with this point. By leaving the matter up to the democratic process of the states, there were still a number of states that hadn’t extended marriage equality to homosexuals. This presents a problem both for those living in those states, and those who move to those states, already married where legal, yet potentially facing the threat that the state in question refused to recognize that marriage due to their sexual orientation. That presents a flagrant problem in light of the 14th Amendment and the Loving precedent, which dealt with the exact same legal issue at its core, even though the reason for denial of marriage licenses was, at that time, race. Would that right have been democratically extended in time? Possibly, but that could have taken decades or more in some of the most ardent, socially conservative southern or western states.
The real problem is how the court has interpreted the 14th Amendment since the early 20th century, but this case is hardly the first in potentially expanding the scope of that amendment well beyond its original intent. Hence, when you’ve already had numerous other cases that have long since expanded the scope of the 14th Amendment beyond what the Joint Committee on Reconstruction ‘may’ have initially intended in the mid-1860s, it’s superfluous to argue that the the court should have ditched standing precedent in this one particular case, a case which hardly erodes state’s rights to the extent that others arguably have, e.g., Gitlow, Adamson, or the litany of other early landmark cases that torpedoed the selective incorporation doctrine that stands today after nearly a century of ensuing case law.
[quote]JR249 wrote:
[quote]DBCooper wrote:
They most certainly DID err in the outcome of the ruling. By making any ruling whatsoever, other than kicking the issue right back to the states, they have erred.
The ends do not justify the means.[/quote]
I’d have to strongly disagree with this point. By leaving the matter up to the democratic process of the states, there were still a number of states that hadn’t extended marriage equality to homosexuals. This presents a problem both for those living in those states, and those who move to those states, already married where legal, yet potentially facing the threat that the state in question refused to recognize that marriage due to their sexual orientation. That presents a flagrant problem in light of the 14th Amendment and the Loving precedent, which dealt with the exact same legal issue at its core, even though the reason for denial of marriage licenses was, at that time, race. Would that right have been democratically extended in time? Possibly, but that could have taken decades or more in some of the most ardent, socially conservative southern or western states.
The real problem is how the court has interpreted the 14th Amendment since the early 20th century, but this case is hardly the first in potentially expanding the scope of that amendment well beyond its original intent. Hence, when you’ve already had numerous other cases that have long since expanded the scope of the 14th Amendment beyond what the Joint Committee on Reconstruction ‘may’ have initially intended in the mid-1860s, it’s superfluous to argue that the the court should have ditched standing precedent in this one particular case, a case which hardly erodes state’s rights to the extent that others arguably have, e.g., Gitlow, Adamson, or the litany of other early landmark cases that torpedoed the selective incorporation doctrine that stands today after nearly a century of ensuing case law.[/quote]
Disagree all you want. You’re still entirely wrong.
The Supreme Court DOES NOT MAKE LAWS AT ALL. It interprets the Constitution and declares laws already established to be unconstitutional or they affirm the law’s constitutionality. That is it.
If you can point out to me where in the Constitution the right to marry is protected, I could get onboard with your argument. But it isn’t anywhere in there. No legal tradition that influenced the Constitution has ever protected marriage unconditionally. Look up the Julian Laws from the days of Augustus. Look up polygamy’s history in this country.
And to argue that the Supreme Court has fucked up its interpretation and application of the 14th Amendment so badly that we must continue to follow in its misdirected footsteps is ridiculous. That is the big argument against stare decisis, that it makes it hard to undo a bad decision. Thank god, or else the decision in Scott v. Sandford would still be relevant.
[quote]DBCooper wrote:
Disagree all you want. You’re still entirely wrong.
The Supreme Court DOES NOT MAKE LAWS AT ALL. It interprets the Constitution and declares laws already established to be unconstitutional or they affirm the law’s constitutionality. That is it.
If you can point out to me where in the Constitution the right to marry is protected, I could get onboard with your argument. But it isn’t anywhere in there. No legal tradition that influenced the Constitution has ever protected marriage unconditionally. Look up the Julian Laws from the days of Augustus. Look up polygamy’s history in this country.
And to argue that the Supreme Court has fucked up its interpretation and application of the 14th Amendment so badly that we must continue to follow in its misdirected footsteps is ridiculous. That is the big argument against stare decisis, that it makes it hard to undo a bad decision. Thank god, or else the decision in Scott v. Sandford would still be relevant.[/quote]
Then we’ll have to agree to disagree - where does the 14th Amendment state that “equal protection” or “due process” are limited to constitutionally protected rights?
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
I agree that the Supreme Court does not make laws, it interprets them. However, given the above language, it doesn’t say that, for example, equal protection or due process applies only to constitutionally protected rights in, say, the First Amendment. The amendment, as ratified, specifically guarantees all citizens within its jurisdiction “the equal protection of the laws.” Since this is nothing more than judicial interpretation of a standing amendment, it seems clear to me that the states failed to make a cogent case that denying same-sex marriage benefits was defensible in light of the Equal Protection clause. You might interpret that differently, and that’s fine, but you can’t claim someone is wrong when this whole judicial game is about interpretation, of which yours is one, but obviously there are other interpretations as well.
Question - do you also think the High Court erred in the Loving ruling back in 1965?
[quote]DBCooper wrote:
Virtually all social liberals are extremely tolerant of things…except intolerance of the things they are tolerant of. And that naturally makes them the most intolerant group of people in this country.
[/quote]
Ehhh… Are you sure?
Cause I think that’s an awful lot like those people who scream “AMERICA!” and then also support a ban on flag-burning.
I think most people are extremely tolerant of things, except intolerance of things they are tolerant of.
[quote]magick wrote:
Ehhh… Are you sure?
Cause I think that’s an awful lot like those people who scream “AMERICA!” and then also support a ban on flag-burning.
I think most people are extremely tolerant of things, except intolerance of things they are tolerant of.[/quote]
I think both sides are guilty of said hypocrisy - a lot of liberals will argue for extensive personal liberty, which I agree with, but then take issue with the Second Amendment as having less importance here, namely because a weapon is involved. In the same breath, yes, you have conservatives who argue for minimal government intervention, then support bans on flag burning or censorship of groups like WBC.
[quote]DBCooper wrote:
The argument that the guy’s bakery sits in a building that is connected to public property (the sidewalk and street in front of it) is immaterial. After all, it isn’t the gay couple’s tax dollars that are paying for the sidewalk in front of the bakery; it is the baker’s taxes.
[/quote]
And that’s what it’s all about. The baker may be willing to turn down additional income from a gay couple, on principle; however, the state is not. The baker is merely an employee of the state, so he doesn’t get to make decisions regarding who receives his service.
Let’s say that I own a restaurant that adds a tip(let’s say that the tip is 85% of the bill-yes, I know that’s pretty absurd) to its customers’ tabs. A guy that my waiter, Matt, doesn’t like the looks of walks in and takes a seat in Matt’s section. Matt refuses to provide the guy service. I tell Matt to serve the guy. Matt refuses, even though he will receive tip money for serving the guy. Matt no longer has a job.