Gay Marriage in Mass.. - a Twist

Off Topic Politics & World Issues
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[quote]endgamer711 wrote:

What emptiness here. Of course the court’s rulings have the force of law, but those are rulings on legislation, not compulsion of a legislature to act.[/quote]

Nonsense, and quit hiding behind sophistry. When the Supreme Court in Brown v. BOE commanded that states “integrate with all deliberate speed”, you are telling me the Court really didn’t expect a compulsion to act? That integration was just a recommendation?

Moreover, there is no groundswell of popular support to afford the likes of Hamdi with Geneva protections. If this be true, why is the Bush administration changing policy to comport with the Supreme Court’s ruling?

Good, then let’s look at Massachusetts. No amendment is passed reversing the gay marriage ruling. Another crop of legislators come in and never provide any details as to gay marriage - they never enact in into law.

Fine - the court’s ruling was meaningless. There is no gay marriage. A gay couple goes before the court again and the court says “you have a right to be married” - does the court also go to the state’s tax collector to make sure a gay couple gets their due benefits? Will the court dance on over to the Social Security office and make sure the gay spouses get money?

I agree the proper compulsion comes from voters - but now you are talking about the only check against the legislature being the political process and the executive veto. The judiciary no enjoys no check.

You can live with that, no problem. And, should Mississippi decide to segregate schools next week, you have nothing to complain about as long as the voters of Mississippi wanted it.

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[quote]endgamer711 wrote:

But this is exactly what the court sought to avoid. It made an advisory ruling without force of precedent, and urged the legislature to act. And, far from working with whole cloth, it was working from the state constitution.[/quote]

How naive - the court didn’t want to avoid anything. Massachusetts courts can issue advisory opinions, but this is precisely why federal courts can’t - if given the power, courts will drive legislation according to policy preferences. That is what has happened here - and the court was within its powers to issue the opinion, but it was the interpretation that smacks of activism.

Pretending as though the court didn’t have a policy agenda just shows you won’t examine in good faith. Of course they were driving legislation. The point is that courts should utilize self-restraint for all the reasons listed above, even if they are given the power to advise.

After all, what other squirrely rights are tucked away in there? An invitation to arbitrariness - but that only worries you if it is a Republican judge at the helm, I assume?

Praytell, then what is an act of judicial activism? I am curious - there must be some boundary a judiciary must observe as a matter of checks and balances. What is it? Where is it? I think judicial activism is when a court substitutes its policy preferences for that of another, more appropriate branch of government. What is yours? Should be interesting.

As for my disagreement with the court, sure - but that is why this is called a…wait for it…discussion board. But really, more than anything, my focus was not on a general discussion of gay marriage being instituted by courts, but rather the court’s two-faced approach in this particular case. The naked political desire of the court has made a possible mess out of the situation.

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[quote]endgamer711 wrote:
Zap Branigan wrote:
endgamer711 wrote:
thunderbolt23 wrote:
If a court takes all kinds of actions, all within its proper role, that isn’t judicial activism.

Oh, good. I’m glad we’re past that. So you agree the court has not indulged in judicial activism.

You are being obtuse. The court is not taking actions within their proper role, otherwise they would be acting to force the legislature to take the vote.

It certainly looks like judicial activism.

Nah, just your idiocy again. Has it ever occurred to you that, for the legislature to be “compelled”, the Governor would have to act by prosecuting? Another check and balance you don’t seem to understand.

So go ahead and shit on Romney for his apathy, I won’t disagree. If that’s the best you can do for a charge of judicial activism, sorry it doesn’t make the grade.[/quote]

While I don’t have a complete handle on the workings of the Mass. courts, how could they hear the case to reprimand the legislature but not be able to do act on it?

When does the governor have to get involved?

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[quote]thunderbolt23 wrote:
Nonsense, and quit hiding behind sophistry. When the Supreme Court in Brown v. BOE commanded that states “integrate with all deliberate speed”, you are telling me the Court really didn’t expect a compulsion to act? That integration was just a recommendation?[/quote]

What sophistry? The court commanded the executive branches of the state governments. It did not compel their legislatures. Of this it had no need, since its own ruling already had the force of law.

Duh!

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[quote]Zap Branigan wrote:
While I don’t have a complete handle on the workings of the Mass. courts, how could they hear the case to reprimand the legislature but not be able to do act on it?

When does the governor have to get involved?[/quote]

Well that’s it exactly, there has to be a case. The governor would have to initiate an action in order for there to be a case. Then the court could rule, presumably in favor of action - that is, in accordance with the state constitution. The court could use a writ of mandamus to pull the matter into its own lap immediately, avoiding multiple tiers of litigation. Or it could rely on a lower court to decide the matter. Either way, if the legislature remained obdurate, probably the next step would be contempt of court rulings.

It would be to the Massachusetts department of justice to take the first step.

It is all nonsense anyway. A needless constitutional crisis, as current events in the legislature show.

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[quote]endgamer711 wrote:

What sophistry? The court commanded the executive branches of the state governments. It did not compel their legislatures. Of this it had no need, since its own ruling already had the force of law.

Duh![/quote]

Wait, wait, wait - so now you are saying that courts can’t compel legislatures to act, but courts can compel members of the executive branch?

This is fantastic entertainment.

So - the Supreme Court says “integrate”. The state governor of Mississippi has to “integrate” as a matter of compulsion but the Mississippi legislature does not have to “integrate” - it can if it feels like it.

This is great! How does this work again exactly?

I am fairly certain that every branch of government is beholden to the Constitution - where does the notion that one branch can be compelled but the other cannot come from?

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[quote]thunderbolt23 wrote:
where does the notion that one branch can be compelled but the other cannot come from?[/quote]

The situation is inherently asymmetric. A court has no need to compel a legislature to do anything, because its own rulings already have the force of law. The court needn’t compel the legislature, because it trumps the legislature.

Following something like Brown vs. BOE, it really doesn’t matter to the court whether the legislature repairs the mess in existing legislation or not. Any cases that come up will be decided according to the court’s ruling, no matter what the legislature does. Typically the legislature passes laws to either fix the conflict with the constitution, or to mitigate the effects of the court’s ruling on its preferred policies.

The executive branch, on the other hand, controls the day to day application of the law, and may need to be compelled. In most cases, a mere court order is sufficient. It is usually something of a political liability for the executive to be perceived as acting against the law.

If need be, however, there are always the marshalls and the jail house.

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[quote]endgamer711 wrote:

The situation is inherently asymmetric. A court has no need to compel a legislature to do anything, because its own rulings already have the force of law.

Following something like Brown vs. BOE, it really doesn’t matter to the court whether the legislature repairs the mess in existing legislation or not. Any cases that come up will be decided according to the court’s ruling, no matter what the legislature does. Typically the legislature passes laws to either fix the conflict with the constitution, or to mitigate the effects of the court’s ruling on its preferred policies.[/quote]

But legislators take their oath to the Constitution the same as executives. They are both bound - one is just as ‘compelled’ as the other.

But here you have muddied up the issue - you are focused on whether the compulsion actually need to be used, not whether it exists. That is a separate question.

But back to the original problem - it is not the anti-gay marriage advocates worried about the court’s admission that they can’t make the legislature do its job - the primary concern is of the pro-gay marriage advocates, who think very much that the court’s ruling compels a law be passed. And now, they fear a precedent that can be used against them - the court originally mandated that the legislature provide for gay marriage within 6 months; clearly a time frame attached means that the court expects legislation would be passed. The pro-gay marriage crowd now has wondered aloud that the express language of “we can’t compel anything” will be cited repeatedly to forestall any gay marriage legislation, making the 6 month window - or any window - meaningless.

And back to the original point - in a cutting its nose off to spite its face moment, the Massachusetts court’s desire to be political has now possibly set back its social agenda.

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[quote]thunderbolt23 wrote:
Praytell, then what is an act of judicial activism? I am curious - there must be some boundary a judiciary must observe as a matter of checks and balances. What is it? Where is it?[/quote]

The boundary you’re seeking is the law itself, including the constitution. If necessary, the people can change either thing, and that completely circumscribes the judiciary. Also, judges can be impeached in cases of actual misconduct. In most cases, they can also fail of reelection if their perception of the law is too far out of tune with the electorate’s.

Judicial activism is a charge that is often leveled but seldom substantiated. I’m not saying it never happens; there is a good argument that Roe vs. Wade was over the line.

What I am saying is that in this case, judicial activism is a ridiculous charge.

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[quote]thunderbolt23 wrote:
the Massachusetts court’s desire to be political has now possibly set back its social agenda.[/quote]

See, that’s where you go all cockamamie. The court has its hands full just keeping the law consistent with the constitution. The social agenda of a judge is justice. Your insinuation that there is more to it than that in this case is unsubstantiated bunkum.

The court urged the legislature to act, in the presumed absence of a constitutional amendment. It sought - very hard - to avoid activism, while dealing with a constitutional problem that was obviously politically charged.

You didn’t like how the court interpreted the Massachusetts constitution. That’s really all you’ve got.

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[quote]thunderbolt23 wrote:
But legislators take their oath to the Constitution the same as executives. They are both bound - one is just as ‘compelled’ as the other.[/quote]

Yeah, well I explained to Zap there is a case in which the executive and the judiciary could act in concert to compel the legislature to obey the constitution. But that is not a solo act by the judiciary: the first step is prosecution by the executive.

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[quote]endgamer711 wrote:

The boundary you’re seeking is the law itself, including the constitution.[/quote]

Clearly it isn’t, because under a liberal (new meaning) theory, the judges get an amazing amount of power to say what the law is. In theory that would be fantastic - but to use your own example, did the Constitution protect us from Roe v. Wade?

Yes, the boundary should be the law - but when we give over the power to judges to make it up as they go along, the law doesn’t serve as the boundary anymore.

These aren’t examples of judicial activism - they are examples of what to do after an act of activism has occurred.

And curiously, you choose Roe v. Wade - but after all, the right to abortion, found nowhere in our nation’s history or law, was invented by a gaggle of judges in the name of ‘progress’. The right to a gay marriage is precisely the same event - no history, no tradition supporting it, no text, just the decision of some judges to invent something that wasn’t there before. Both centered on the denial of being able to freely do something they should otherwise be able to do - on one case women, on the other case homosexuals. Same principle.

Exactly the same thing - but you say one is judicial activism but the other is not. Curious.

Back to Roe v. Wade - the invention of a brand new right by a court. Not the protection of an old right, but the wholesale creation of a new right, giving a new ‘freedom’ never before being privileged in law (at that level, of course).

And this is different than creating the new right of gay marriage? With the convergence of Due Process or Equal Protection as the means of wholesale lawmaking?

Same principle at work.

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[quote]endgamer711 wrote:

See, that’s where you go all cockamamie. The court has its hands full just keeping the law consistent with the constitution. The social agenda of a judge is justice. Your insinuation that there is more to it than that in this case is unsubstantiated bunkum.[/quote]

Don’t be so naive. The court could have easily said “at no point has our constitution required gay marriage. If you want it, legislature, nothing either compels nor prohbits you from creating it. Do what you will.”

Instead, the court didn’t play it neutral and invented a policy outcome out of thin air.

Listen, your claims that this wasn’t activism are falling on deaf ears - by virtue of reading the reaction to the original case. Plenty of people who like the decision are happy to report that the Massachusetts court engaged in activism, and that was fine with them, as courts should be agents of social change (see Justice Breyer’s Active Liberty). That is not a new position among the Left, even though it is one I happen to disagree with.

But don’t try and pass off that the Massachusetts court - by inventing a right that has no basis in history, law, tradition, or culture - wasn’t trying to advance some ‘active liberty’ of their own. That is precisely why the Left likes it - the court is advancing the ball of ‘progress’ rather than being an old-fashioned umpire. The Left got exactly what it wanted, and now you want to try and convince everyone that the court was just being a disinterested referee?

Please. To suggest otherwise is intellectually dishonest.

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[quote]thunderbolt23 wrote:
Exactly the same thing - but you say one is judicial activism but the other is not. Curious.[/quote]

Two different laws, and two different constitutions. But everything is exactly the same? Bushwa.

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[quote]thunderbolt23 wrote:
Don’t be so naive. The court could have easily said "at no point has our constitution required gay marriage.[/quote]

Yes they could have said that, but they found differently. They found that not affording for gay marriage violated the state constitution. That doesn’t prove they had an improper social agenda. They had a problem headed their way, and they tried to get the legislature to act first. Which is the exact opposite of activism.

Always this talk of judicial activism, but the real problem is a general reluctance to change constitutions. The courts are just the messengers.

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[quote]thunderbolt23 wrote:
To suggest otherwise is intellectually dishonest.[/quote]

And to suggest the above is sheer thuggery, never mind dishonesty.

You didn’t like the court’s decision. BFD.

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[quote]endgamer711 wrote:

Two different laws, and two different constitutions. But everything is exactly the same? Bushwa.[/quote]

You telling me they can’t be compared on the basis of a court inventing a new right where one did not exist before?

I see. Run along then.