Gay Marriage Discussion

Off Topic Politics & World Issues
501

[quote]magick wrote:

[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]

Not to derail, but since you mentioned it, a group of protesters called Disarm NYPD planned on burning the flag were met by a group of patriotic bikers.

The protesters who demanded for the immediate disarmament of the NYPD, called the NYPD for help when they felt threatened by the bikers.

Quote of the day -

â??They took off like little bâ??hes,â?? said one biker. â??They lit the fâ??king flag and took off running once they got slapped once or twice.â??

502

[quote]JR249 wrote:

[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]

The Equal Protection Clause refers specifically to laws applicable to the citizens of the United States. That is a direct reference to federal law.

As far as “life, liberty, property” goes, again, that is an issue for the states to decide if it is not already specifically enumerated in the Constitution. Liberty in particular is an ambiguous term. Liberty to some might mean the right to do literally anything they want. Others feel that there are certain limits to the liberties we naturally have as human beings. The Founding Fathers knew it was foolhardy to list all the rights that the citizens have collectively and that the federal gov’t could not violate.

They reasoned that the best way to deal with such ambiguity was to let the people who would live under such laws create the laws themselves via their state legislatures. It is the epitome of self-government.

As far as Loving v. Virginia goes, I do not think that the Court erred in its decision, and I will explain why.

As I have stated previously, the rationale behind such decisions is arguably more important than the decision itself, since the rationale is used as precedent for future cases brought before the Court. In Loving, the state was unable to provide a compelling interest that anti-miscegenation laws furthered. Although I personally would still prefer for the decision to be left to the states, the fact is that the states must still be able to show that there is a compelling interest they are furthering, one so compelling that it overrides a fundamental right. It’s really the only compromise I’m willing to make on the issue.

503

[quote]magick wrote:

[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]

Look, I’m not saying that this is a one-way street. Of course both sides are guilty of said hypocrisy. I just feel that the socially liberal crowd is more guilty of this than the socially conservative crowd. Perhaps I’m wrong, but the overriding point is that this hypocrisy is extremely prevalent in this country.

504

[quote]NickViar wrote:

[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.[/quote]

I stopped at “the baker is merely an employee of the state”.

Really? In that case, where’s my timecard? Where’s my salary? Where’s my paid vacation?

I really hope you’re just trolling now with that one. We are not employees of the state, the state is OUR employee. WE pay THEIR salaries. WE pay for their paid vacations, their sick leave, their health benefits, all of that. It is OUR tax dollars that fund the whole fucking deal. Revenue from tariffs come from goods provided by US. You have it entirely backwards, and quite frankly, a lot of what you have said in here in the past is now making perfect sense to me.

505

[quote]DBCooper wrote:

As I have stated previously, the rationale behind such decisions is arguably more important than the decision itself, since the rationale is used as precedent for future cases brought before the Court. In Loving, the state was unable to provide a compelling interest that anti-miscegenation laws furthered. Although I personally would still prefer for the decision to be left to the states, the fact is that the states must still be able to show that there is a compelling interest they are furthering, one so compelling that it overrides a fundamental right. It’s really the only compromise I’m willing to make on the issue.
[/quote]

A couple of points to add…

The Loving case essentially established marriage as a fundamental right, not the recent Obergefeller case, so this case wasn’t really landmark in that regards, and I think that’s worth spelling out here (check out Earl Warren’s direct use of that language in the opinion handed down in that case, which was 9-0). Even setting aside the fact that marriage as a fundamental right was not accepted as the legal standard in this case, and had that rationale not been used at all, this case could have been challenged and won on the part of the state denying the Plaintiff a contract right (marriage is a legal contract), under a rational basis review as opposed to a strict scrutiny review.

[quote]DBCooper wrote:

The Equal Protection Clause refers specifically to laws applicable to the citizens of the United States. That is a direct reference to federal law.

[/quote]

I believe case law precedent from the High Court has been pretty clear that a state need not violate a clearly delineated federal law to violate the 14th Amendment, i.e., a state, a state statute, or an employee/agent of state or local government acting in official capacity can run afoul through legal fiat or self-conduct towards a fellow citizen. For example, in this case, the question of whether the equal protection clause has been violated arose when a state (Ohio in this case) grants a particular class of individuals (e.g., heterosexuals) the right to engage in a particular activity (obtaining a marriage license and/or having their marriage in another state legally recognized by the state of Ohio) yet denies other individuals (i.e., Obergefell and his terminally ill partner, John Arthurthe) the same right.

Since a fundamental right was already established in the Loving case nearly forty years ago, making this a 14th Amendment issue on that basis, what is Ohio’s compelling right here, in your opinion, in furthering a legitimate government interest?

506

[quote]DBCooper wrote:
I stopped at “the employee is merely an employee of the state”.

Really? In that case, where’s my timecard? Where’s my salary? Where’s my paid vacation?

I really hope you’re just trolling now with that one. We are not employees of the state, the state is OUR employee. WE pay THEIR salaries. WE pay for their paid vacations, their sick leave, their health benefits, all of that. It is OUR tax dollars that fund the whole fucking deal. Revenue from tariffs come from goods provided by US. You have it entirely backwards, and quite frankly, a lot of what you have said in here in the past is now making perfect sense to me.[/quote]

Your salary is what’s left after the state takes its cut. Your paid vacation is whatever paid vacation you get. With the existence of an income tax, all workers are employees of the state. This mess can’t be fixed unless the federal(I realize that the bakery deal is a state issue, but states can’t do much competing for population when the federal government is already taking so much more) income tax is eliminated.

I totally agree with what you’ve written in this thread(in theory/on principle), but the idea that the state recognizes private ownership of anything is not correct. I don’t agree with the idea that everyone is merely an employee of the state, but that’s the way citizens are viewed. That’s why a baker isn’t allowed to refuse to bake a cake for a gay wedding.

507

[quote]JR249 wrote:

[quote]DBCooper wrote:

As I have stated previously, the rationale behind such decisions is arguably more important than the decision itself, since the rationale is used as precedent for future cases brought before the Court. In Loving, the state was unable to provide a compelling interest that anti-miscegenation laws furthered. Although I personally would still prefer for the decision to be left to the states, the fact is that the states must still be able to show that there is a compelling interest they are furthering, one so compelling that it overrides a fundamental right. It’s really the only compromise I’m willing to make on the issue.
[/quote]

A couple of points to add…

The Loving case essentially established marriage as a fundamental right, not the recent Obergefeller case, so this case wasn’t really landmark in that regards, and I think that’s worth spelling out here (check out Earl Warren’s direct use of that language in the opinion handed down in that case, which was 9-0). Even setting aside the fact that marriage as a fundamental right was not accepted as the legal standard in this case, and had that rationale not been used at all, this case could have been challenged and won on the part of the state denying the Plaintiff a contract right (marriage is a legal contract), under a rational basis review as opposed to a strict scrutiny review.

[quote]DBCooper wrote:

The Equal Protection Clause refers specifically to laws applicable to the citizens of the United States. That is a direct reference to federal law.

[/quote]

I believe case law precedent from the High Court has been pretty clear that a state need not violate a clearly delineated federal law to violate the 14th Amendment, i.e., a state, a state statute, or an employee/agent of state or local government acting in official capacity can run afoul through legal fiat or self-conduct towards a fellow citizen. For example, in this case, the question of whether the equal protection clause has been violated arose when a state (Ohio in this case) grants a particular class of individuals (e.g., heterosexuals) the right to engage in a particular activity (obtaining a marriage license and/or having their marriage in another state legally recognized by the state of Ohio) yet denies other individuals (i.e., Obergefell and his terminally ill partner, John Arthurthe) the same right.

Since a fundamental right was already established in the Loving case nearly forty years ago, making this a 14th Amendment issue on that basis, what is Ohio’s compelling right here, in your opinion, in furthering a legitimate government interest?[/quote]

I suppose my issue with the whole thing really boils down to a very basic disagreement with both the Warren Court and again with the current one. I simply don’t think that marriage is a fundamental aspect of liberty, and as such, I think the question about compelling interests is moot.

Things that are fundamental aspects of liberty are essential to the point of needing some sort of overriding interest to limit it. As Chief Justice Roberts pointed out, many of the same arguments made by Kennedy and in favor of gay marriage (and also in the Loving decision) are equally applicable to polygamy. It seems to me that the same argument that would establish gay marriage or interracial marriage as fundamental to liberty would also open the door to other forms of marriage that certainly have never been considered fundamental to liberty.

Now, I think the case can be made quite easily for a state’s compelling interest in prohibiting incestuous marriages. But what about polygamy? Is it fundamental to liberty? Is a natural right of mine being violated if I cannot marry Mork, Mindy, and Marisa? What about a marriage between 20 people? What compelling interest would the state have in prohibiting that if marriage is considered to be fundamental to liberty? What argument that applies to any two consenting adults does not apply to even more adults than that? As Kennedy has somehow established, love is an integral part of marriage and by extension, liberty. Since marriage apparently conveys some sort of special type of love integral to liberty, who’s to say that even MORE love can’t be had with 4 or 5 people involved?

So in my opinion, many of the arguments about the EPC/DPC are moot. I do not feel that either Warren or Kennedy sufficiently established that marriage is a fundamental right. And the EPC/DPC apply to “life, liberty, property”.

If the Court can sufficiently establish that something is a fundamental aspect of liberty, then I can get onboard with it. Now, you may have started thinking that I have a rather stunted view of liberty, but I do not.

I simply view the ability to self-govern as perhaps the ultimate liberty, one that overrides the “right” to marriage and many other things. As I have repeatedly said, I firmly believe that the path of self-governance will eventually lead to things like gay marriage, interracial marriage, and so on. Quite frankly, if something really is fundamental to liberty, then I have a hard time seeing how it can remain limited in some illegitimate way forever.

I work under a very basic assumption: when given the chance, people will generally do the “right thing”. Being an educated, capable, critical thinker is always a part of the equation. Combine that with freedom of speech, assembly, press, so on and so forth, and I think history has shown that we DO continually move in the direction of expanded, equally applied liberty and so forth. It shouldn’t go unnoticed that in about a decade’s time this country went from zero states with specifically legalized gay marriage to 38 out of 50.

Is it a little slow at times for some? Sure, but does that excuse just tossing aside the basic principles of self-government?

I think at some point we should ask ourselves this: if we as a nation are truly so blind as to what liberty is to the point that we need a judicial body of 9 to fix mistakes that are clearly beyond the bounds of their constitutionally enumerated duties, do we even deserve the unique form of gov’t that we have now?

508

[quote]NickViar wrote:

[quote]DBCooper wrote:
I stopped at “the employee is merely an employee of the state”.

Really? In that case, where’s my timecard? Where’s my salary? Where’s my paid vacation?

I really hope you’re just trolling now with that one. We are not employees of the state, the state is OUR employee. WE pay THEIR salaries. WE pay for their paid vacations, their sick leave, their health benefits, all of that. It is OUR tax dollars that fund the whole fucking deal. Revenue from tariffs come from goods provided by US. You have it entirely backwards, and quite frankly, a lot of what you have said in here in the past is now making perfect sense to me.[/quote]

Your salary is what’s left after the state takes its cut. Your paid vacation is whatever paid vacation you get. With the existence of an income tax, all workers are employees of the state. This mess can’t be fixed unless the federal(I realize that the bakery deal is a state issue, but states can’t do much competing for population when the federal government is already taking so much more) income tax is eliminated.

I totally agree with what you’ve written in this thread(in theory/on principle), but the idea that the state recognizes private ownership of anything is not correct. I don’t agree with the idea that everyone is merely an employee of the state, but that’s the way citizens are viewed. That’s why a baker isn’t allowed to refuse to bake a cake for a gay wedding. [/quote]

People who pay taxes are not employees of the state. They/we are funders of the gov’t that we have chosen. To say that we are employees of the state is to imply that we are not sovereigns, that the state is the ultimate sovereign. I’m not happy with the general direction of the country, but I certainly would argue vociferously against the argument that we are THAT fascist of a nation.

Now, have we used our sovereignty in such a way as to have given more power to the state than is healthy for sovereignty? Sure, no doubt.

But the fact is that our system of gov’t is still such that we can retain all of the sovereignty we may have lost along the way. So in essence, we still remain the ultimate sovereign. Some might argue that the gov’t is beholden to the WRONG people, but the fact remains that it is beholden to someone.

Taxation is an accepted reality. Those who argue that it is simply coercion at the point of a gun must have missed the part(s) of the Constitution that addresses taxation. Our system of gov’t was never created with the goal in mind of removing any and all taxation of the people. Since the people create a form of gov’t, if it has the power of taxation built into it, then it necessarily must have come from the people, not the gov’t. Not in the case of our nation’s history at least. If someone doesn’t like the idea of taxation of any kind whatsoever, they are free to leave. But to be free, on principle, of any form of taxation at all is something that has not been recognized in all republican forms of gov’t (to the best of my knowledge). So it must not be a fundamental aspect of liberty.

Taxation at the whim of a despotic tyrant/oligarchy/ochlocracy is a different story entirely. But the idea of taxation in general is not something created by the state. In many ways, the state is created in part for the purposes of taxation, to simply arrange a “fair” system of such.

So I fail to see how the fact that we pay taxes removes our sovereignty and reverses the natural employer/employee role.

509

@ JR249:

It should also be noted that there is a very basic difference between asking someone how they feel about a particular Court decision in light of previous case precedent and how they feel about a Court decision from a purely constitutional standpoint.

If previous case precedent is the final arbiter of a decision’s merit, that is one standard. But in this country, and especially concerning anything in front of the Supreme Court, the Constitution is the final arbiter, not case precedent. If case precedent were the final arbiter, then Scott v. Sandford might still be the law of the land. Do we really want THAT?

510

Godfuckingdamnit, I am really rambling on now…

You know, people always argue about the Constitution and “loose constructionism” vs. “strict constructionism”. The argument for loose and against strict generally centers around the thesis that strict constructionism essentially leaves us subordinate to late-18th century standards. By extension, the loose interpretation allows for adaptation of the document to modern circumstances.

This couldn’t be a more erroneous and, to be honest, insulting take on the Constitution and the Founding Father themselves.

The Founders weren’t so stupid as to be unaware of the fact that time changes society dramatically over time. They were prime examples of such a concept. The 9th and 10th Amendments are the exact tools provided within the Constitution to adapt it to modern times. The thing is, WE THE PEOPLE are the ones who have to use the tools. And those tools are the legislatures within our own states.

Take a gander at Federalist #10 sometime. The same brilliant motherfucker who wrote the 9th and 10th Amendments also clearly understood that with more geographical territory would come more interests. And those interests may not always perfectly gel across all states, and especially with a country of 50 states and 310 million people. So it makes perfect sense to, when in doubt, err on the side of caution that allows states to determine their own course rather than try to apply a standard equally across an entire group of states that clearly have so many varied interest within them. If something IS a common interest amongst all states, then it certainly doesn’t need an oligarchy of 5 to promote such an interest.

511

[quote]DBCooper wrote:
@ JR249:

It should also be noted that there is a very basic difference between asking someone how they feel about a particular Court decision in light of previous case precedent and how they feel about a Court decision from a purely constitutional standpoint.

If previous case precedent is the final arbiter of a decision’s merit, that is one standard. But in this country, and especially concerning anything in front of the Supreme Court, the Constitution is the final arbiter, not case precedent. If case precedent were the final arbiter, then Scott v. Sandford might still be the law of the land. Do we really want THAT?[/quote]

I asked only because it was a major, fundamental shift at the time. Yes, of course, interpretations can change, e.g., Scott v. Sandford is no longer the law of the land, but given your background you have to acknowledge the power that case law precedent has historically played, agree with it or not, and there was nothing indicating that the High Court had any reason to fundamentally view marriage as a “fundamental right” any differently in this case. In fact, if you want to take this at face value, apparently such language has been used since the 19th century in court cases (nonetheless I think most political scientists agree the Warren Court case established marriage as a fundamental right in the context that directly applied this case):

The states’ rights concerns are all valid, and even I conceded that I think the court partially erred in how it interpreted the case, although I agreed with the outcome itself. However, all of that becomes problematic, in my opinion, because the constitution was permanently changed by the 14th Amendment. This wasn’t a decision by the judicial majority, nor congressional legislation - it was a landmark amendment that changed the playing field, a legitimate change in the constitution that, for better or worse, usurps the rights of the states, and the people, vis-a-vis what you already stated from the original Bill of Rights (i.e., 9th and 10th Amendments, etc.) to determine these matters through local legislative action. I can respect that you view how the 14th Amendment has been interpreted as being erroneous, but you can’t argue that it’s ratification permanently altered the playing field against the states, and it eroded the ability of these types of matters to always be reserved to the states, or the people. Hence, this exact debate will continue for years to come, just over different topics. The 14th Amendment is no less contentious now than it probably was 100 years ago.

513

[quote]pushharder wrote:

What this basically says is the 14th trumps the 9th and 10th. All the time. Every time.

Can’t get what you want when you want it via the 9th and 10th? Run crying to a panel of judges and present the tear-stained 14th to them. Make them feel like you do. Tug on their heart-strings. Convince them to legislate from the bench and invent new emotive-based “rights” that have somehow inexplicably been ignored for generations.
[/quote]

Not entirely, it’s important to look at the text itself and ensuing litigation since then. Yes, it’s an amendment, so it does supersede the 9th and 10th, in cases that conflict with equal protection, due process or privileges and immunities, and even then, only insofar as a state is unable to show a greater compelling interest that passes one of the tiered scrutiny tests. So I think it’s important to note the 14th Amendment was not written to nullify the 9th and 10th completely, in the same manner that prohibition was completely overturned by a later amendment, but rather just to ensure that the 9th and 10th were not able to be used to deprive citizens of certain rights in certain narrow situations that pertain to what is written in the actual text of the amendment.

519

[quote]pushharder wrote:
Some quotes from Scalia’s, Thomas’ and Roberts’ dissents: Log In ‹ Fellowship Of The Minds — WordPress

Good stuff.

Interesting to me and I didn’t realize all of this was the case (from Scalia):

“[T]his Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination?. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”[/quote]

I disagree with the reasoning Scalia is suggesting here.

Primarily because the court is supposed to raise above the failures of democracy and whatnot. Their sole purpose is to interpret the Constitution as impartially as possible.

If people suggested that they were not being impartial (which they might be able to make, since this wasn’t an unanimous decision in the same way Brown vs. Board of Education was, no matter the backdoor politicking that apparently went on with that one), or that they interpreted the Constitution poorly, then fine; argue away.

But the argument that the court failed because they butted into the democratic process simply doesn’t work with me. The court is supposed to butt into the democratic process. That’s the point. They interfere with what the legislatures have created when they deem it unconstitutional in some form.