Gay Marriage in Mass.. - a Twist

[vroom]

Boston,

The idea of discrimination is one that has caused a lot of conflict in the US for quite some period of time.

The issue is really whether the courts will decide that people can be denied basic government recognition or services due to issues such as race, sex or even sexual orientation.

I’ll admit that things can get quite convoluted, but that is really what it is all boiling down to.

If gay people can be denied marriage, is there any reason they can’t be denied anything else we wish to deny them of? Is the next course of action to create a segregated society?

I’m not suggesting anyone is trying to do such a thing, but rights and freedoms are not things to violate lightly. At the very least I think it’s clear that constitutionally valid legislation is required.

EDIT: By the way, I think the courts see a huge difference between not participating in various programs (e.g. merit based scholarships) and the denial of constitutionally guaranteed rights and freedoms.

EDIT2: By the way again, these principles are very much in play, to this very day. It is indeed the foundation to which such questions will fall to. I’ll agree we don’t get to that point very often, because the government does have so much say in our lives, but it’s still true.

[BostonBarrister]

[quote]vroom wrote:
…
The issue is really whether the courts will decide that people can be denied basic government recognition or services due to issues such as race, sex or even sexual orientation.

I’ll admit that things can get quite convoluted, but that is really what it is all boiling down to.

…[/quote]

You put your finger on it here. Constitutionally, the government has the least power to give preferential treatment – which is just another way of saying to discriminate against – based upon race. Under USSC doctrine, this gets “strict scrutiny” review from the courts, which basically means it’s going to fail most of the time because any program that engages in racial discrimination must be entered into for a compelling purpose, and narrowly tailored to avoid any unecessary racial discrimination. The reason this category is the most protected is that it is specifically enumerated in the Constitution – the 14th Amendment is the usual justification.

With regard to gender, the standard is intermediate scrutiny. To pass review on intermediate scrutiny standards, government discrimination based on gender must serve important governmental objectives, and must be substantially related to achievement of those objectives. This is why the government can ban women from combat – there is less of a block on the government’s general power to hand out benefits any way it wants to. I believe national origin may also fall under intermediate scrutiny, but I forget.

Almost all other categories, including sexual orientation, get “rational basis” scrutiny. This is a highly deferential standard to the legislatures, which allows the government to discriminate if it is rationally related to some government purpose. For instance, the government can give welfare payments, because even though they discriminate against the employed they are rationally related to the government’s purpose of fighting poverty. Essentially, if a category is in “rational basis” scrutiny the government can constitutionally discriminate against that category for any reason it wants. Even “rational basis” is an overstatement of the scrutiny – it essentially means that for a court to hold it unconstitutional there cannot be a way for it to possibly be rational.

That’s for the government benefits side of things.

As for recognition, there is no right to any social recognition under the Constitution. The government doesn’t owe anyone any recognition at all.

Remember, the Constitution isn’t about enforcing your morals, or even society’s morals – not everything immoral is unconstutitional. For instance, murder is not unconstituional – it’s illegal based on statutory law. A Constitution is about enshrining certain principles in the law in such a manner as to require a supermajority to change those principles.

[vroom]

Boston,

I’ve seen you enumerate this before, but I don’t think it is completely cut and dried.

There still needs to be reasons to discriminate. I also suspect that sex and sexual orientation are difficult to separate in some cases.

Perhaps one could argue that sex implies, in the general sense, genetic issues or normal biological differences between people.

Why? Because while original documents may say that all men are created equal, we certainly do extend that nowadays to mean other then purely males of the species. So, men can mean both men and women. Wow, how shocking!

Oh oh, don’t look now but we are opening the door to interpretation by the courts due to a changing society. Precisely what the courts do when society changes, gaining greater understanding of various issues or technologies, and what the founders planned for with the systems in place.

If we don’t like how things go down, then we can enact laws that take into account the changes that have taken place, as long as they are created in a constitutionally valid way – recognizing that the constitution may have been expanded to incorporate a wider general understanding than previously.

This is where conservatives scream and cry and try to resist change while generally liberals adopt the new wider interpretations much earlier…

EDIT: I am the edit master today. By the way, what if a straight person were to marry someone of the same gender in order to test this issue in the courts? It would not be an issue of “sexual preference” but one of “sex”. Oh oh!

[endgamer711]

[quote]thunderbolt23 wrote:
Now, given that constraint - someone has to decide. Should it be judges? Or should it be elected representatives? [/quote]

As phrased, your question is specious. Clearly, both will play a role in the decision. The legislature will decide what is to be legislated and when, and the courts will decide whether what has already been legislated and its application by the executive is consistent with the Constitution.

In this case a court has told a legislature that there is a problem in existing law that requires either a legislative or Constitutional fix. The court then volunteered to slow the processes of justice long enough for the legislature to take action. Beyond that point, further cases will have to be decided in the context of the legislature’s inaction, is all.

If you are saying that the courts should have no role in the decision process, you are basically saying that there is no need for a Constitution.

As for the legislature, in this instance it has so far decided not to act. To this moment it has made its decision. Perhaps it will change its mind later. Indeed, today’s news is that a constitutional amendment is now making progress there:

Massachusetts Considers Gay Marriage Ban (Published 2007)

The point is, the legislature has made a decision about gay marriage, may make a different decision soon, and it is free to make further decisions. Its course of action has not in any sense been dictated by the court.

So what’s your beef?

[vroom]

[quote]endgamer711 wrote:
So what’s your beef?[/quote]

Gay marriage?

[Headhunter]

[quote]thunderbolt23 wrote:
The point is who decides? Should gay marriage emanate from legislation via the people’s preferences? Or should it come from judges sitting as an oligarchy? [/quote]

This is a brilliant summation and should put the issue to rest.

[vroom]

[quote]Headhunter wrote:
This is a brilliant summation and should put the issue to rest.
[/quote]

Ahahahahaha! Troll!

[thunderbolt23]

[quote]vroom wrote:

No, you are missing the point. From your explanation above, the lack of recognition of gay marriage is a violation of existing law. If the legislature does not pass a constitutional adjustment allowing such an exclusion then gay marriage must, by current law, be allowed.

The legislature can do whatever the fuck it wants to about this situation. If it chooses to do nothing, then it accepts the fact that not allowing gay marriage violates the law.[/quote]

Yes, exactly - and that is exactly what the pro-gay marriage advocates are worried about. Without the legislature ‘doing something about it’, it simply is a paper tiger: the court said it, but there are no legal consequences to not recognizing gay marriage.

The only reason any of this is complex or exciting is because you are trying so hard to find a way to avoid having to allow gay marriage.

Actually, no, though you keep going to the well on this. I don’t like the idea that judges feel the need to substitute their will for the legislature. I have used this example before - I would be just as upset if a court decided that the Equal Protection clause mandated a flat tax. Though I would like that politically, it would be wrong for a court to declare it as a constitutional right.

What you fail to realize is that rarely do these judicially created rights go the way of non-liberal political preferences, but if they did, I’d argue just the same.

If the next state legislature, angry at the court, passes no such legislation, the entire institution of judicial review is rendered a nullity, and the judicial check against the legislature is gone.

LOL! It’s the same idea. If the constitution requires equal protection and the actions of the government do not support equal protection, then the courts make that determination.

Truly. But courts must observe limits. You, as one who has paid lip service to fearing arbitrary government, should be concerned about such boundaries.

[quote]You miss the whole thing.

I’m saying that it’s wonderful that the court said the state legislature “had to fix it” but that’s not the way things work. It’s readily apparent that the court does not have the power to do more than apply laws and execute the remedies afforded to them.

What the fuck is so confusing about this to you?[/quote]

This is positively entertaining - you do realize that if a court in a tripartite system that relies on judical review as a check no longer enjoys having its rulings be authoritative as a matter of law, you have on your hands a constitutional crisis?

If a court mandates gay marriage and a legislature never responds, there is no gay marriage.

Get it now? What checks a legislature if a judiciary doesn’t? What happens if Congress decides that the First Amendment doesn’t apply to Islam and judicial review is not respected? No big deal to you - remember that.

[quote]At times they have power, and at times they don’t, so in essence, in this case the courts have suggested the appropriate outcome to the situation… and the legislature is treating it as such.

People are bitching and whining because the issue is gay marriage, not because of the situation itself. That is the part you seem to be missing…[/quote]

No, I get it - you keep forcing that as if it is the answer. It’s not - the problem is the court has undermined its own authority by mandating in one case and throwing up its hands in another. That sets a bad precedent for future lawmaking on the subject.

Legislatures and executive branches usually observe a level of deference to its constitutional co-partner. When the court rules, the other lawmaking bodies respect the decision and acts accordingly (typically). Changing that - which the Massachusetts court is daring its state legislature to do - is the stuff of real problems.

You seem to be awfully cavalier about a legislature ignoring a court ruling on a subject. No problem, but your sentiment is not shared. That would essentially be the end of judicial review.

As an extreme example, under your theory, it wouldn’t be a big deal for legislatures to segregate schools all over again? After all, it is no big deal and Brown v. Board of Education was merely persuasive?

And, people like yourself really want the legislature to find a way to outlaw gay marriage and you’d really like the courts suggestion to be enacted. Big fat hairy deal. Vote in somebody that is willing to do so.

Get over this. I have no particular ax to grind over gay marriage. Though I oppose it, I don’t have a particular crusade on behalf of it. Try and focus on the real issues and stop inventing ulterior motives on my part.

[thunderbolt23]

[quote]vroom wrote:

When the legislature makes laws that don’t violate their own constitution, then you’ll have the legislature making the decisions.[/quote]

But this is circular - if the judiciary can’t check the legislature, no law will ever violate the constitution in fact: the legislature can do whatever it wants.

That’s the proper path around court interpretations you do not like. It isn’t the courts fault that the legislature writes conflicting laws and puts rights into constitutions.

What conflicting laws were written here?

Perhaps you can have the legislature remove all rights for gay people, if it would make you happier. Maybe you could ship them all to GITMO for good measure? Good luck!

Now you are just getting emotional in lieu of using reason. You don’t care how rights are created, as long as they all agree with your political viewpoint - a dangerous recipe. You haven’t considered the issue seriously. You like judicial activism (for lack of a better term) when it achieves political results you like and you decry it when it achieves results you don’t. That isn’t a legitimate position.

[Beowolf]

[quote]Headhunter wrote:
thunderbolt23 wrote:
The point is who decides? Should gay marriage emanate from legislation via the people’s preferences? Or should it come from judges sitting as an oligarchy?

This is a brilliant summation and should put the issue to rest.

[/quote]

Neither.

Gay marriage does not hurt anybody. Period.

Therefore, the people (any people) have no right to ban it or deny it.

If they want to vote to call it something different, good for them. But the rights should be the same and equal, a la Constitution.

The people have no right to stop two people from getting their marriage rights if both are consenting adults.

It is not a matter of court vs popular sovreignty (spelling?), it’s a matter of what the government and the people have the right to do in the first place.

[thunderbolt23]

[quote]endgamer711 wrote:

As phrased, your question is specious. Clearly, both will play a role in the decision. The legislature will decide what is to be legislated and when, and the courts will decide whether what has already been legislated and its application by the executive is consistent with the Constitution.[/quote]

So what happens when a court says ‘this must be done in accordance with the constitution’ and then goes on to say that the court can’t command anyone to do it?

[quote]In this case a court has told a legislature that there is a problem in existing law that requires either a legislative or Constitutional fix. The court then volunteered to slow the processes of justice long enough for the legislature to take action. Beyond that point, further cases will have to be decided in the context of the legislature’s inaction, is all.

If you are saying that the courts should have no role in the decision process, you are basically saying that there is no need for a Constitution.[/quote]

No, you have it exactly backwards - I think courts absolutely have a role. But what has happened here is that the court is picking and choosing favorites. The legislature had a constitutional duty to take up the citizen petition - and the court conveniently reminded the legislature that it couldn’t really be made to do it. Sound like even-handed justice to you? Nope, it is democracy denied - despite the fact that the anti-gay marriage advocates were completely legitimate, the court essentially encouraged the legislature to ignore their constititionally approved referendum action. Again, sound like impartial justice to you? Think of what the next legislature will do with that precedent.

[quote]The point is, the legislature has made a decision about gay marriage, may make a different decision soon, and it is free to make further decisions. Its course of action has not in any sense been dictated by the court.

So what’s your beef?[/quote]

My beef? Two separate issues - we were discussing judicial creation of a right to gay marriage (which I oppose) and whether the Massachusetts court has acted stupidly and problematic(which I think it has).

And it is hypocritical to on one hand invoke the Massachusetts state constitution to defend the right to gay marriage only to ignore the constitution when citizen-petitioners want to advance their law.

Lawmakers wound up voting on the petition, so it became a moot point. But the discussion remains, especially as it relates back to the initial question of whether judges should invent a right of gay marriage (or polygamist marriage, etc.) or leave such a question to the legislative branch.

[thunderbolt23]

[quote]Beowolf wrote:

Gay marriage does not hurt anybody. Period. [/quote]

Fantastic political argument. Go convince a majority of people in your area and pass a law. Other people may disagree with you. If that be the case, and there is no prevailing law that prevents marriage from being exclusive, it is a political question, and someone will win and someone will lose in the democratic arena.

Therefore, the people (any people) have no right to ban it or deny it.

Yes, they do - and ‘the people’ have had this right since the birth of the republic. The Constitution has never, ever prevented public morality laws, so stop pretending it has. ‘Harm’ is not merely defined as physical harm, and it never has. The people can pass all kinds of laws in this respect.

If they want to vote to call it something different, good for them. But the rights should be the same and equal, a la Constitution.

You mean the Constitution says that welfare benefits - paid under a written law - must be paid to both rich and poor alike? The right to welfare can’t be divided among economic lines, according to your theory. Right?

The people have no right to stop two people from getting their marriage rights if both are consenting adults.

There is no basis for this, other than personal preference - but tell me, can the people prevent three consenting people from getting married? Five? Twenty, all consenting?

It is not a matter of court vs popular sovreignty (spelling?), it’s a matter of what the government and the people have the right to do in the first place.

If that be true, go research your constitutional history. The people have always had the power to pass the kinds of laws you say they can’t - the Constitution hasn’t changed: what has?

You think that your political preferences equate to force of constitutional law just because you think they are ‘right’. You couldn’t be more wrong.

[thunderbolt23]

[quote]Headhunter wrote:

This is a brilliant summation and should put the issue to rest.[/quote]

Headhunter, don’t confuse the issue for those for gay marriage - this is simply a case of the forces of ‘good’ (gay marriage) against the forces of ‘evil’ (traditional marriage by itself bad) and it doesn’t matter where the law comes from as long as it is ‘good’.

That is, even though the republic was created with that value-neutral problem - where the law comes from - as its central concern.

[endgamer711]

[quote]thunderbolt23 wrote:
My beef? Two separate issues - we were discussing judicial creation of a right to gay marriage (which I oppose) and whether the Massachusetts court has acted stupidly and problematic(which I think it has).[/quote]

In either case, you’re tilting at windmills. In the first place, the court merely said the right was already there, inherent in the existing Constitution. By accusing them of judicial activism you ask us to accept you as the greater authority on constitutional law. I think not, pardon me.

In the second place the court only said that beyond six months it would be forced to construe on these unsettled matters according to existing law, i.e. its interpretation of the constitution. In so doing, the court sought to avoid activism, urging the legislature to fill the vacuum before it should be obliged to leave its own mark on the matter.

The questions you raise are not merely moot, they are pure phantoms.

By contrast, the inability of the legislature to act on the amendment points to a real problem, but it is a problem in the legislature, not the judiciary.

[thunderbolt23]

[quote]endgamer711 wrote:

In either case, you’re tilting at windmills. In the first place, the court merely said the right was already there, inherent in the existing Constitution. By accusing them of judicial activism you ask us to accept you as the greater authority on constitutional law. I think not, pardon me.[/quote]

No, again you miss it - the judiciary shouldn’t listen to me, they should punt the ball completely for the legislature to decide wholly as a political question. If the legislature decides that, yes, gay marriage shall be law, suits me just fine.

That is the difference between a political question and a legal question. I like my version of policy just fine, but that is irrelevant. The legislature should simply be deciding the question no matter which way they go.

And, let me head you off - when a court rules, it is not done so in an advisory fashion. Therefore, saying that ‘that’s all the court did here’ is wrong - it didn’t render an advisory opinion on what it thought constitutional for the legislature to take under advisement; it said the right exists as a matter of law and the legislature must create it. Big difference.

The questions you raise are not merely moot, they are pure phantoms.

Nonsense - the judiciary doesn’t have the power to make laws as they see fit. A judiciary can only decide a matter as it comes before the court as a case or controversy - it can’t just make policy. There has to be a dispute. Once they rule on a dispute, the court doesn’t get to play around with policy after the fact. My God, would you want such a thing?

By contrast, the inability of the legislature to act on the amendment points to a real problem, but it is a problem in the legislature, not the judiciary.

Not when the judiciary sends its stamp of approval on the legislature’s refusal to exercise its constititional duties.

[endgamer711]

[quote]thunderbolt23 wrote:
Not when the judiciary sends its stamp of approval on the legislature’s refusal to exercise its constititional duties.
[/quote]
Let’s see, the court abjures the legislature to act, and you see this as somehow putting a stamp of approval on its inaction? I have an adjective to describe your theory: cockamamie.

[Zap_Branigan]

Kind of funny to see people rationalize this just because they are pro-gay marriage.

If the people want to amend their constitution it is their right to try. The legislature should do its job.

The courts should not help the legislature to obstruct this action. To deny that they have the power to compel the legislature is ludicrous. It is the very definition of checks and balances. As if the courts cannot compel people to follow the law!

It just shows me that the courts were practicing judicial activism. If it were strictly a constitutional issue they would not be enabling the legislature to dodge its duty. They are letting the legislature break the law because they are in agreement on the gay marriage issue and do not want the constitution amended.

Pure activism with no regard for the law. There is no other interpretation.

Put it to a vote as the law requires. Let the people try to amend the constitution, it is their right!

If you believe in gay marriage campaign and vote against the amendment that defines marriage as a union between a man and a woman.

[Zap_Branigan]

[quote]endgamer711 wrote:
thunderbolt23 wrote:
Not when the judiciary sends its stamp of approval on the legislature’s refusal to exercise its constititional duties.

Let’s see, the court abjures the legislature to act, and you see this as somehow putting a stamp of approval on its inaction? I have an adjective to describe your theory: cockamamie.[/quote]

Their failure to compel the legislature to act is certainly a stamp of approval.

Anything else they said was done with a wink and a nod. They certainly support the inaction or else they would stop it.

[nephorm]

One has to learn to separate the mechanics of government from their philosophical underpinnings.

The Framers understood that, especially Madison. It is all well and good to make a libertarian argument for gay marriage or to argue however you like that something is a natural right or an illegitimate state interest.

But these judgments are not mathematical… I cannot conceive of a political problem, plug it into some sort of massively self-consistent constitutional computer, and get a neat output that I can apply without additional human interpretation.

As such, we have legislators, judges, juries, and executives who have balanced roles to craft, interpret, and administer the law. All of whom are subject to the same intellectual frailties as the rest of us. And while you argue that something is a “basic human right,” someone else is busy disagreeing with you, possibly on the same grounds. Who wins?

[BostonBarrister]

[quote]vroom wrote:
Boston,

I’ve seen you enumerate this before, but I don’t think it is completely cut and dried.

There still needs to be reasons to discriminate. I also suspect that sex and sexual orientation are difficult to separate in some cases.

Perhaps one could argue that sex implies, in the general sense, genetic issues or normal biological differences between people.[/quote]

This is all well and good, but it misses the overall framework – the framework is that the government can attach conditions to its benefits unless there is a specific Constitutional prohibition on the government attaching such conditions.

This is what you [generally, not you in specific – you obviously weren’t passing the New Deal] get when you argue that the government has general powers to take actions that you like, such as the power to tax for redistribution or to prohibit private actors from taking actions (such as freedome of association) based on categories you don’t like – you get greatly expanded governmental powers over what the Constitution originally intended. A bit of an extension from the present situation, but very relevant if you think about it from a historical progression and a logical progression – which is what the precedent system of Constitutional jurisprudence is…

[quote]vroom wrote:
Why? Because while original documents may say that all men are created equal, we certainly do extend that nowadays to mean other then purely males of the species. So, men can mean both men and women. Wow, how shocking![/quote]

Actually, the Declaration of Independence* doesn’t extend to any specific rights, and per my explanation above our understanding of the Constitution specifically allows for gender discrimination because all are not actually created equal. Remember the women in combat example. And because laws need to address generalities, it doesn’t do any good to point out specific instances in which the assumption is incorrect, e.g. that one buff chick who would make a better soldier than that one obese dude.

*Note - Edited to fix my historical malapropism. Where are editors when you need them? =-)

[quote]vroom wrote:
Oh oh, don’t look now but we are opening the door to interpretation by the courts due to a changing society. Precisely what the courts do when society changes, gaining greater understanding of various issues or technologies, and what the founders planned for with the systems in place.[/quote]

This is precisely what a written constitution is supposed to guard against – if society is really changing, then amend the Constitution. If you allow the Courts to change the plain meaning of what was meant when it was passed (original intent), then you are simply submitting to judicial oligarchy – and I do mean submit, because the Constitution is the supreme law of the land, and requires supermajorities in the legislature and among the voters to override any mistakes by 9 old folks in glorified smocks.

[quote]vroom wrote:
If we don’t like how things go down, then we can enact laws that take into account the changes that have taken place, as long as they are created in a constitutionally valid way – recognizing that the constitution may have been expanded to incorporate a wider general understanding than previously.[/quote]

Actually, that is what the people of Massachusetts are attempting to do in this instance – to overturn a judicial decision with which they disagree via an amendment to the state’s constitution.

Of course, that wouldn’t be necessary if the Mass. court hadn’t tried to change the historical definition, but that’s another point. Suffice it to say you’re arguing exactly against your previous point - the legislature’s refusal to follow its constitutional duties to try to frustrate a popular vote attempt to amend the constitution is entirely outside the design of the system – and of the idea of retained power of the people.

[quote]vroom wrote:
This is where conservatives scream and cry and try to resist change while generally liberals adopt the new wider interpretations much earlier… [/quote]

Yeah, there’s that whole validity of the Constitution thing… the reason it’s written and subject to supermajority approvals. It’s so annoying when you know how society should be run, and those darn plebians just won’t do as they’re told, isn’t it?

[quote]vroom wrote:
EDIT: I am the edit master today. By the way, what if a straight person were to marry someone of the same gender in order to test this issue in the courts? It would not be an issue of “sexual preference” but one of “sex”. Oh oh![/quote]

Immaterial. The “discrimination” involved would still involve not allowing two people of the same gender have the benefits allowed to two people of differing genders. But, as I pointed out, no person is actually banned from getting said benefits by entering into the marriage relationship with someone of the opposite gender, so it’s a matter of a choice of action (Note: I used choice on purpose, but it’s not related to whether there is innate attraction or not – it’s a choice of action to get married or not get married – in other words, it’s a choice to follow the government’s prescription to attain a package of benefits or to not follow that prescription. Society’s approval or other messages are completely different from government benefits – and can’t be mandated at any rate…).