[quote]Zap Branigan wrote:
entheogens wrote:
Zap Branigan wrote:
Gay people have always been allowed to marry. The courts logic is flawed and now they are trying to redefine marriage based on flawed logic.
Excuse me, but I must be misunderstanding the above. I have gay friends who were married here in San Francisco when Mayor Gavin Newsome opended up that possibility. It was subsequently annulled due to the legal changes. Where, besides Mass., have gay people been able to get married?
Marriage is defined as a union between a man and a woman. Sexual preference has nothing to do with it. A gay man can marry a woman. The court seeks to redefine marriage, not open it to an oppressed group.[/quote]
I am undecided on the whole gay marriage issue. But where is marriage defined that way? Show me an authoritative legal source. [not a religious one since we are talking about legal rights and benefits and not morality or religious issues]
[quote]BostonBarrister wrote:
vroom wrote:
You guys still don’t get that the judiciary is the proper place to INTERPRET laws, as written, until new laws are written to reflect changing conditions and times?
Things become much clearer, and simpler, if you stop looking for a vast left-wing conspiracy everywhere.
The answer is simple. Change the constitution, at either the national or state level to reflect issues currently in contention.
Crying over interpretations you disagree with is futile… and misguided.
The problem is the judiciary changing the meaning of the Constitution - it’s a matter of degree, but at a certain point it becomes obvious that the judiciary has stopped interpreting the law and started enacting new law.[/quote]
What Constitutional rights for homosexuals were violated by banning their marriage? Were they denied due process? Were they denied free speech? Was they prevented from owning guns? I don’t get it. I’m sympathetic to the argument of protecting the minority, as that is how our Constitution has been set up. I just don’t see how they were harmed, except under the tax codes.
In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential “rational basis” standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review – “strict scrutiny” – is applied when the distinction drawn by a statute rests upon a so-called “suspect classification” or impinges upon a fundamental right… we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents – like gender, race and religion – a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
And later…
Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest.
Which leads to…
Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying the differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes – the interest in retaining the traditional and well-established definition of marriage – cannot properly be viewed as a compelling for purposes of the equal protection clause, or as necessary to serve such an interest.
So, in English, due to the nature of the intended discrimination, certain standards of analysis were required for the law to be valid. These standards were not met so the discrimination was deemed unconstitutional.
Edit: I’m 50 pages in… it’s a fascinating read! From page 69…
Thus, just as this court recognized in Perez that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior, and in Sail’er Inn that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men, we now similarly recognize that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.
Folks, this is what civil rights and freedoms is all about. It’s the power and beauty of the constitution (at federal and state levels) at work bringing about justice even though many do not like what it entails.
The privacy and due process provisions of our state constitution – in declaring that all people… have the inalienable right of privacy and that no person may be deprived of liberty without due process of law – do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions.
This is going to provide a lot of grist for the mill in years to come… as other courts will surely look at this analysis and consider similar issues – though there will certainly be constitutional variations.
[quote]bigflamer wrote:
lixy wrote:
bigflamer wrote:
Are you actually saying that you would have no issue with the herding of muslims and suspicious people of ME descent into camps, if it was passed by referendum?
Yes.
Wow. I wouldn’t have thought that you would go on record as supporting a government action which crushes an individuals rights, so long as it was passed by referendum. You’re weird.
I get the feeling that you have no idea what you’re talking about. Just a hunch…
[/quote]
I may be talking out of my ass here,but is Islam not predicated on submission?
Some nice analysis of when a characteristic is suspect (page 99)…
Instead, our decisions make clear that the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subject to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual’s ability to perform or contribute to society. Thus, courts must look closely at classifications based on the characteristic less outdated social stereotypes result in invidious laws and practices.
Pages 103 and 104…
… the United States Supreme Court finding inadequate a state’s creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School, and a state’s founding of a separate military program for women rather than admitting women to the Virginia Military Institute. As plaintiffs maintain, these high court decisions demonstrate that even when the state grants ostensibly equal benefits to a previously excluded class through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant.
Hmm, it does smack of apartheid or segregation doesn’t it? Hey, a shout out to Canada too…
[i]As the Canada Supreme Court observed in an analogous context: “One factor that may demonstrate that legislation that treats a claimant differently has the effect of demeaning a claimants dignity is the existence of pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue… ‘… It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization and will have a more severe impact upon them, since they are already vulnerable.’”
Page 109…
Although, as noted at the outset of this opinion (ante, at pp. 4-5), we agree with the Attorney General and the Governor that the separation-of-powers doctrine precludes a court from “redefining” marriage on the basis of the court�??s view that public policy or the public interest would be better served by such a revision, we disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-of powers doctrine precludes a court from determining that constitutional question. On the contrary, under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve” (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53), a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.[/i]
And, in light of all the whining that court decisions engender…
As noted generally by Professor Jesse Choper, “the Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience.” (Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980) p. 167.)
Other feel good stuff on page 113…
As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One�??s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
I’d also be curious to see how the dissenting opinion in this case compares to any dissenting opinion in previous cases mentioned above… as it sounds a tad emotional.
In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential “rational basis” standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review – “strict scrutiny” – is applied when the distinction drawn by a statute rests upon a so-called “suspect classification” or impinges upon a fundamental right… we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents – like gender, race and religion – a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
And later…
Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest.
Which leads to…
Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying the differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes – the interest in retaining the traditional and well-established definition of marriage – cannot properly be viewed as a compelling for purposes of the equal protection clause, or as necessary to serve such an interest.
So, in English, due to the nature of the intended discrimination, certain standards of analysis were required for the law to be valid. These standards were not met so the discrimination was deemed unconstitutional.[/quote]
In English, the problem is that your selected quotes don’t shed much light on the issue - it merely lays out traditional Equal Protection thresholds and says that not allowing gay marriage doesn’t meet those thresholds.
That isn’t particularly elucidating, because the quotes you selected basically conclude with the premise of what we are debating here.
The damning key is the fact that the court decides that a state’s desire to preserve traditional binary heterosexual marriage is no longer a compelling state interest. Two radical things took place with that: (1) the state no longer can have a “rational basis” for preserving traditional marriage, now the state must provide a “compelling reason”, essentially the same justification a state would need to have legislation that treats ethnicities different (harsh, strict scrutiny), and (2) the preservation of traditional marriage isn’t even a compelling reason to sustain the law. That is pure judicial invention.
Why the shift? Why move homosexuals into a protected class essentially equivalent to race? The court just makes it so, the will of the people and the history of the law be damned.
Actually, it is not - you are happy with an activist judiciary that advances policy you like. This is the sole basis of your approval of the decision. But policy driven justice isn’t justice. Courts are supposed to protect existing civil rights, not create new ones.
Would you be happy with an activist judge that advanced a policy you didn’t like? Certainly not, but that requires looking down the road at unintended consequences.
And, interestingly, the constitution doesn’t “work to bring justice” - the constitution isn’t doing the work, judges interested in visiting their policy preferences on an electorate are doing the work. Constitutions are written to resist change, not encourage it - that is why constitutions typically have so few provisions: it takes away a small group of rights out of the democratic arena and then allows democracy to make the hard decisions like gay marriage. Constitutional law is not common law.
Plus, how does a court, under this rationale, explain why homosexual binary unions are protected by the constitution but polygamous heterosexual arrangements are not? It can’t except by a naked appeal to policy preferences.
That said, I disagree with the reasoning of the court, but a California court can do whatever it wants. But under the guise of being an agent of “progressive” change, the court indulges in one of the dangers the Framers warned of - a court that has “will”, and not “judgment”.
How you achieve rights in society are often just as important as what rights you achieve - but this lesson is lost on the modern “progressives” who don’t care how their policy preferences become law, as long as they do.
[quote]bigflamer wrote:
Wow. I wouldn’t have thought that you would go on record as supporting a government action which crushes an individuals rights, so long as it was passed by referendum. You’re weird. [/quote]
I never said anything about any support. All I’m saying is that I can live with such government. Don’t like what the majority thinks? Move elsewhere.
There’s nothing weird about my position. I firmly believe in the inherent good nature of people and I don’t doubt that the disgraceful Japanese internment would have never happened had the people been heard.
[quote]lixy wrote:
bigflamer wrote:
Wow. I wouldn’t have thought that you would go on record as supporting a government action which crushes an individuals rights, so long as it was passed by referendum. You’re weird.
I never said anything about any support. All I’m saying is that I can live with such government. Don’t like what the majority thinks? Move elsewhere.
There’s nothing weird about my position. I firmly believe in the inherent good nature of people and I don’t doubt that the disgraceful Japanese internment would have never happened had the people been heard.[/quote]
[quote]thunderbolt23 wrote:
Actually, it is not - you are happy with an activist judiciary that advances policy you like. This is the sole basis of your approval of the decision. But policy driven justice isn’t justice. Courts are supposed to protect existing civil rights, not create new ones.
[/quote]
You need to be careful about how you ascribe peoples opinions and actions.
I have no dog in the race with respect to gay rights. I do however feel that rights in general are important to protect, and that the courts chose appropriate interpretations of the situation. The right to marriage is at issue and that gay people have been subjected to discrimination and disadvantage, means that they do need more protection – via strict scrutiny when laws are created to segregate them.
[quote]Would you be happy with an activist judge that advanced a policy you didn’t like? Certainly not, but that requires looking down the road at unintended consequences.
[/quote]
If I agreed with the logic used in determining the decision, and it followed the constitution, then it isn’t so important that I like the results.
Ever the pedant. The constitution is being referred to, interpreted, as some disagreements are being analyzed. Use of the constitution in this way is what I refer to. Don’t be silly.
However, we can certainly discuss whether interracial marriage was a case of the courts overstepping their bounds on an issue that should have been decided by democratic means. Okay, the point is that when segregations are made, whether they were previous accepted or not, that constitutional protections may apply – which protect a minority from the tyranny of a majority… regardless of prior custom.
You don’t feel it is so in this case. It doesn’t mean the judges are activists if they find that sexual orientation, which has previously been a cause for discrimination, in fact should require a strict scrutiny with respect to legislative constitutionality.
Here, you may be right or wrong. However, again, it may eventually come down to the concept of welfare of children and the family unit. It will also depend on whether there will be damage that such statutes intend to prevent. It is quite possible to argue damages to society from polygamous relationships in a very different manner that homosexual relationships. I know, your next argument will be that we’ll have marriage across species, right?
However, I have no doubt that the populace would happily enact modifications to the constitution to ensure that such restrictions remain in place in the event that current habits are eventually deemed unsupported by existing legislation.
[quote]That said, I disagree with the reasoning of the court, but a California court can do whatever it wants. But under the guise of being an agent of “progressive” change, the court indulges in one of the dangers the Framers warned of - a court that has “will”, and not “judgment”.
How you achieve rights in society are often just as important as what rights you achieve - but this lesson is lost on the modern “progressives” who don’t care how their policy preferences become law, as long as they do.[/quote]
Yes, too bad that women are equal and that black and white couples can marry. That should have been subjected to a democratic vote, shouldn’t it?
Look, I can understand your view that this is a poor decision, but I’d rather you found something within the logic itself to complain about. The fact you aren’t, instead complaining about the fact it goes against tradition, makes it appear you don’t like the decision and are simply falling back on the political rhetoric of the day with respect to purported judicial legislation.
Also, there is no need to slant my agreement with their logic as an insult or blind agreement with a decision due to cause, as you have no understanding of my thinking. Hell, I just read through more than 150 pages, including the dissenting opinion, so give me a small amount of credit.
[quote]thunderbolt23 wrote:
The damning key is the fact that the court decides that a state’s desire to preserve traditional binary heterosexual marriage is no longer a compelling state interest. Two radical things took place with that: (1) the state no longer can have a “rational basis” for preserving traditional marriage, now the state must provide a “compelling reason”, essentially the same justification a state would need to have legislation that treats ethnicities different (harsh, strict scrutiny), and (2) the preservation of traditional marriage isn’t even a compelling reason to sustain the law. That is pure judicial invention.
Why the shift? Why move homosexuals into a protected class essentially equivalent to race? The court just makes it so, the will of the people and the history of the law be damned.
[/quote]
Anyhow, with respect to this potentially substantive complaint, the creation of a separate but equal institution causes a change in the nature of the situation.
This causes gay people to be treated analogously to groups that have been discriminated against in the past – in an illuminating way. It should be an eye opener. They are the same but different.
While we are at it, why don’t we have gay people sit at the back of the bus, use different washrooms and go to different schools? The court can now see this, clearly, as newer laws make it clear that such discrimination is currently in effect.
We can argue about whether there appears to be a compelling reason to support such discrimination, without resorting to insults because we disagree.
You need to be careful about how you ascribe peoples opinions and actions.
I have no dog in the race with respect to gay rights. I do however feel that rights in general are important to protect, and that the courts chose appropriate interpretations of the situation. The right to marriage is at issue and that gay people have been subjected to discrimination and disadvantage, means that they do need more protection – via strict scrutiny when laws are created to segregate them.[/quote]
If a judge invented a new concept of rights heretofore never recognized that you didn’t like, I reliably believe you would not be such a fan of “interpreting” new rights into existence.
Moreover, gay people have not been subjected to discrimination and disadvantage in the field of marriage - the institution has never existed, and nothing is holding them back from convincing a majority to create it via law.
I can’t marry two women I love - so by your rationale, polygamists have been discriminated against. Taken further, any person who doesn’t get some civil privilege they want is facing discrimination, based on that threshold. Seventeen year olds have been discriminated against for purposes of suffrage, as have felons.
Can you make a principled distinction via the Equal Protection principles and “discrimination” from the above categories of people treated differently under law?
Not getting a preferred policy is not discrimination
The problem, of course, is that it didn’t follow the constitution - it followed the result the judges wanted to achieve.
It isn’t pedantic to distinguish the point of a constitution versus the point of ordinary legislation, a distinction that you aren’t adequately addressing.
Actually, no, because the Equal Protection clause(s) were written expressly to deal with race-based classifications. We had a Civil War and Reconstruction Amendments - the point of Equal Protection was to ensure civil rights.
That said, Equal Protection extends to other classifications as well, but courts have always made sure that as long as legislatures had a “rational basis” in treating different citizens differently based on classification (except race, for obvious reasons). The reason? So as not to violate separation-of-powers principles. Such actions are antidemocratic.
Setting aside the “discrimination” homosexuals faced - which I don’t think existed as you suggest - under the federal constitution, gender isn’t even afforded strict scrutiny.
California judges moved homosexuals into a protected class for no other reason than, well, they wanted to. And that is fine, for their purposes - but let’s not pretend it is sober, sound, dispassionate justice.
Even taking your assumption as correct that homosexuals experienced systematic “discrimination”, they certainly do not anymore, and crystal clear evidence of that is the existence of the California laws in question. They afford gays a level of rights - proof gays have political access to change the shape of the legislation that affects them.
Now, with the swish of a magic wand, the California Supreme Court has taken those issues being fairly debated and compromised upon and removed them from the democratic arena
The problem, of course, is that the Court has no principled way of adding ever new “protected classes”. For example, nudists have always been discriminated against, but I doubt a California court would treat them as a protected class and strike down public nudity statutes.
This is the problem with investing in the courts the activist license to expand the coverage of the Equal Protection clause outside of “rational basis” (excluding race) - to repeat, there is no principled way of saying yes to one, but no to another. It would be based on personal preferences, which is what we see here.
Nope, my argument is that you just made my argument for me. These are hard questions of policy that involve applications of hard science, social sciences, religion, morality, cultural practices - an entire stew of factors, similar to what you mentioned above.
As such, given the complexities, a legislature - representing the will of the people via its representatives - are the proper government body to solve these messes. One main reason - they don’t have to follow the classifications to logical conclusions. They may grant gays full marriage rights, but not to polygamists. A judiciary does it - granting constitutional “rights” - those choices can’t be made legitimately. Like you suggested, a legislature may find gay couples ok for kids, but not bigamous households. Let them. It is not a court’s decision to make in a republic.
Constitutions are supposed to be hard to amend, purposely - this idea you keep suggesting, that people should just “amend the constitution” to override judicial decisions of policy they don’t like, completely retards the point of how a constitution, a judiciary, and a legislature are supposed to interact.
This is an irrelevant throwaway line, because race is unlike any other classification.
And more besides, if you compare every classification to “interracial marriage”, what category of people can’t use that analogy? Rich people who pay a higher tax percentage? Teenagers who can’t vote?
Race is unique - it provided the genesis for Equal Protection concerns.
You should also note - black and female equality was initiated, you guessed it, by legislative means, not judicial. Women, for example, didn’t get the right to vote because the Supreme Court found it in the constitution - they got it because legislatures voted it into existence. Blacks got equal protection of the law not because a court found it, but because Amendments were added to the Constitution via a legislative process emanating from the people.
This seems an odd claim and a sign you didn’t read my post - my entire complaint has everything to do with the logic of the decision. That is all I have focused on.
Not once have I made a policy claim - that gay marriage was bad for society or bad for kids or whatever.
My entire attack has been against the logic of the court’s decision. The court has a covenant with the people (see the dissent) not render judgment, not will. There is no logic in infringing on the important separation-of-powers we rely upon. Instead of logic, the court did the opposite - it saw itself as an agent of change, ready to advance the ball of fairness at the expense of the majority’s rights.
The court wants to “fix” a part of the constitution it thinks inadequate - finding constitutional gay rights when there were none before - but it doesn’t do so out of any responsibility, but rather as a policy choice.
A false and uneducated charge, since I haven’t made a policy argument against gay marriage. Anyone reading my posts could discern my objection is based on the court’s error in applying the law.
I don’t need to slant it - you inserted your own editorial not about the soundness of the decision on constitutional grounds, but rather on “this is how civil rights and freedoms get advanced”. That demonstrates to me not an appreciation of the decision for its merits - certainly not an appreciation for problems its presents to the courts to answer other Equal Protection claims w/r/t new classifications - but rather excitement that a court did what you think is “good for society” in advancing certain rights you think need to be enacted.
Anyhow, with respect to this potentially substantive complaint, the creation of a separate but equal institution causes a change in the nature of the situation.
This causes gay people to be treated analogously to groups that have been discriminated against in the past – in an illuminating way. It should be an eye opener. They are the same but different.[/quote]
The problem with “discrimination” as you describe it is nothing more than being a loser in a democratic format. Gays have every power to get their marriage policy enacted via the legislature - they simply don’t have the public on their side to the degree they want.
That is not discrimination. That California had such “progressive” laws in place to the degree they did is proof there is no discrimination. The laws have changed over time, the legislative route is working.
The problem is - “progress” isn’t happening fast enough. So a court eager to see “progress” yesterday takes over where it thinks the legislature has stumbled.
This is many things - discrimination against gays it certainly is not.
This belies your claim above that you are merely interested in the “logic” of the decision and have no “dog in the fight” on gay marriage. Sure you do. You want to see this right realized. You are emotionally invested in the decision for those reasons, else you wouldn’t make such ludicrous analogies to segregation.
Again, the problem is who decides who gets extra protection as a class of citizens and who does not. The court can’t do it in a fair way that isn’t naked policymaking, and in the past, most courts recognized that conundrum and deferred to the legislature as long as it had a “rational basis”. Smartly so.
I haven’t leveled a single insult and I don’t plan to.
As for the substance, there is a “rational basis” for protecting traditional marriage, let alone “compelling reasons”. Even had the court shifted homosexuals to a protected class (first mistake), the court had the audacity to say that protecting traditional marriage wasn’t even supported by “compelling reasons”. This is dreadful judicial activism, invading a province of state and local law that predates the Union.
More than anything, this decision remains good evidence that “progressives” are, despite the rhetoric, much more antidemocratic in spirit than their counterparts. More and more, they want policy choices to be visited from the top down, rather than the bottom up.
[quote]thunderbolt23 wrote:
If a judge invented a new concept of rights heretofore never recognized that you didn’t like, I reliably believe you would not be such a fan of “interpreting” new rights into existence.
[/quote]
Again? Why is it so necessary for you to believe you can predict other people’s thought processes?
Okay, you have no real interest in discussing the issues do you? I did not in any way refer to advancing anything. I referred to justice.
If you want to paint a comic book caricature and think it represents my opinions… knock yourself out.
You might remember that I basically contend that rights and freedoms are inherent, and that they should be protected from usurpation by the state. Only when there is a good reason should we allow the state to impede peoples actions.
From my view, inherent rights have been recognized as trampled and subsequently restored. This, in general, is the purpose that rights and freedoms are granted in various constitutions. To keep the state from getting involved in, amongst other things, discriminatory practices due to popularity contests. Such rights and freedoms, in my opinion, are the most important components of such documents – keeping the operation of democracies fundamentally protected from dictatorship of views or popular tyranny.
[quote]thunderbolt23 wrote:
The problem with “discrimination” as you describe it is nothing more than being a loser in a democratic format. Gays have every power to get their marriage policy enacted via the legislature - they simply don’t have the public on their side to the degree they want.
That is not discrimination. That California had such “progressive” laws in place to the degree they did is proof there is no discrimination. The laws have changed over time, the legislative route is working.
The problem is - “progress” isn’t happening fast enough. So a court eager to see “progress” yesterday takes over where it thinks the legislature has stumbled.
This is many things - discrimination against gays it certainly is not.[/quote]
I do not agree that the ability to access legislative powers is a good measure of discrimination by the state. Neither do the existence of such laws prove that there is no discrimination.
However, there are other examples of discrimination. The historic inability of gay individuals to serve in the military is an example. The fact that many social stereotypes exist concerning their danger to children and society. Homosexuals have been routinely discriminated against in the past.
The fact that laws were enacted to create a “separate but equal” situation for gay individuals is a huge red flag that has been thrown out for all to see.
We can see that similar processes were followed during past discriminatory events. The logic that was followed by the courts in the past to restore access to rights that should have been available via the constitution can theoretically also be applied in this case.
[quote]While we are at it, why don’t we have gay people sit at the back of the bus, use different washrooms and go to different schools? The court can now see this, clearly, as newer laws make it clear that such discrimination is currently in effect.
This belies your claim above that you are merely interested in the “logic” of the decision and have no “dog in the fight” on gay marriage. Sure you do. You want to see this right realized. You are emotionally invested in the decision for those reasons, else you wouldn’t make such ludicrous analogies to segregation.[/quote]
Again, not accurate. The fact that the underlying issue is sexual preference does not make the analogies ludicrous. Your assertion that assertions based on sexual preference are ludicrous would probably serve to show that you want to see gay marriage denied. Look, we can both play that silly game… and it’s pointless.
[quote]Again, the problem is who decides who gets extra protection as a class of citizens and who does not. The court can’t do it in a fair way that isn’t naked policymaking, and in the past, most courts recognized that conundrum and deferred to the legislature as long as it had a “rational basis”. Smartly so.
As for the substance, there is a “rational basis” for protecting traditional marriage, let alone “compelling reasons”. Even had the court shifted homosexuals to a protected class (first mistake), the court had the audacity to say that protecting traditional marriage wasn’t even supported by “compelling reasons”. This is dreadful judicial activism, invading a province of state and local law that predates the Union.[/quote]
Various constitutions and their prior application decide who gets protection and why when rights are being considered. Now, I understand you don’t like the fact that gay families are now recognized in society. However, the fact it is so, even as civil unions, and that they have basically all the same rights and obligations as hetero familes is significant.
This has not been the case until recently… so the issue has never had to be considered within these circumstances before. It greatly changes the nature of the analysis.
As for compelling reasons to protect traditional marriage, I think we interpret that differently. Given that gay couples are able to marry but call it a civil union how can you argue that marriage needs protection? It’s very difficult to say that it’s in danger due to the name you apply to gay marriage… isn’t it?
What is the compelling reason to call marriage by gay people something other than marriage? Your personal preference? Tradition? Those are not compelling reasons. Those don’t imply any danger to marriage due to non-traditional family units.
Not at all. Some people feel that protections afforded within the constitution should be applied liberally to the populace. Others feel that traditions and personal beliefs should be legislated upon others.
[quote]orion wrote:
lixy wrote:
bigflamer wrote:
Wow. I wouldn’t have thought that you would go on record as supporting a government action which crushes an individuals rights, so long as it was passed by referendum. You’re weird.
I never said anything about any support. All I’m saying is that I can live with such government. Don’t like what the majority thinks? Move elsewhere.
There’s nothing weird about my position. I firmly believe in the inherent good nature of people and I don’t doubt that the disgraceful Japanese internment would have never happened had the people been heard.
You plead youth? [/quote]
Nah. I plead against bourgeois democracy which this Californian case illustrates.
Again? Why is it so necessary for you to believe you can predict other people’s thought processes?[/quote]
Because I think it is the basis for your argument, rather than logic, etc. Is it not true?
I just posted a (too) long reply doing nothing but discussing the legal issues: many of them, notably the judicial conundrum of trying to decide which classifications deserve heightened protection and which ones do not.
That is the hardest part of the decision - and yet, you never addressed any those.
I painted no such caricature - you haven’t answered the hard questions. How can a court decide “new” classifications deserve heightened protection in a way that doesn’t seem arbitrary or personally motivated? Why protect gays with strict scrutiny, but bigamists with rational basis?
This is the toughest question - if judges can’t do it in a principled way, then the judges aren’t doing the job of “justice” as in “equal justice before the law” - they are picking winners and losers based on something other than fairness.
Outside of some recognized rights, this Rousseau-ian approach to government is completely anathema to our system of government. You may like it, you may want this, but this is not what we have. Any judge that goes in with this mentality - legislation that restricts freedoms is presumptively suspect until proven otherwise - is engaging in dereliction of duty.
Your problem is that is the Constitution of your fantasy - not the real one(s). American Constitutions do not have these blanket prescription of rights - they reserves some, and otherwise let the people legislate at will. Discriminatory practices visited on the minority come in all shapes and sizes, and are the basis of most of our morals legislation.
As a result, the “inherent rights” extended to the degree you prefer aren’t in “such documents” - you want them to be, but in America, that doesn’t exist. Majorities have rights in the spaces provided by them under the constitution.
Again, your approach is results-based - you are ok with finding things in the Constitution so long as they advance more and more freedoms that you think are worthwhile. But that isn’t our model - Courts are constrained by the actual words and provisions of a constitution and are bound to defer to legislature in areas where the legislature gets to roam.
And now we see your problem - you envision a government and a judiciary in a way that advances a political theory you like: the Rousseau-ian model. That is fine, but your problem is we don’t have that system. Never have.
We have never had a “the constitution is skeptical of legislation that restricts freedom” - in fact, we have the exact opposite for the bulk of legislation: a presumption the legislation is valid. And judges deciding that it’s their job to take us steps closer to that Rousseau-ian model are acting outside of the responsibilities given to them by the people.
I do not agree that the ability to access legislative powers is a good measure of discrimination by the state. Neither do the existence of such laws prove that there is no discrimination.
However, there are other examples of discrimination. The historic inability of gay individuals to serve in the military is an example. The fact that many social stereotypes exist concerning their danger to children and society. Homosexuals have been routinely discriminated against in the past.[/quote]
This simply isn’t discrimination. The combat example is a popular one, but doesn’t measure up - in the tense real time of combat, there may be all kind of reasons a military commander may not want gays to serve. I suspect it has a lot to do with the cultural attitudes of the people fighting the war, but, you see, that is a rational reason, even of you don’t like the reason.
That is the measure of rational basis - not “do I think it is a good idea”, but rather “could a reasonable person believe that, even if I don’t like it”. And, by all means, a few civil activists in robes won’t poke their nose into trying to decide the best plan to win wars.
As for the other examples, if that amounts to discrimination, then what classification of people can’t claim “discrimination”? Stereotypes are a threshold? Impossible to manage, and that has no basis in our law.
But it isn’t a “red flag” - it is a legislative compromise, not the machinations of a mean-spirited majority. The legislative approach is working - when you are getting what you want in a legislature, even by metes and bounds, you aren’t being discriminated against.
The point is trying to compare segregation of blacks stemming from their historical disadvantage of being chattel slavery isn’t the same as not getting everything you want policy-wise out of majoritarian politics. The comparison is unfavorable and silly.
I have no problem with that at all - if gay families are recognized in society to the degree you suggest, then that means social norms are beginning to accept that arrangement. No problem - if what you say is true, then the legislature is the perfect place to recognize that shift in attitudes. The constitution hasn’t changed - but state laws can and do to reflect new attitudes.
Your example is proof this issue need be fixed in the legislature.
You miss the point of deciding “compelling interest” - the question is not whether you personally thin it is a compelling interest, it is whether a reasonable person could think that. A court shouldn’t decide based on its own preferences, but rather “could a duly elected legislature decide that there are compelling reasons to protect traditional marriage, even if I disagree with them?”
You confound the issue by making your argument. That won’t do.
If those protections aren’t in the constitution, and never have been in over 200 year of existence, that means “those protections” are brand new.
If new law is created not by the will of the people through legislative means but by a bench on high telling people they must abide by a law they didn’t create or that goes against their policy preferences, that isn’t democracy at all - it’s antidemocratic.
Interestingly, that is policy-neutral. It doesn’t matter if the court’s “new law” tilts toward right-wing or left-wing policy preferences - it’s antidemocratic. Period.
Such is the new “progressivism”. I think it is bad government, regardless of the policy outcomes, even if I am the one getting all the new laws to my benefit.
California voters�??not unelected judges�??should decide the future of gay marriage
Steve Chapman | May 19, 2008
In the old story, a preacher gives an inspiring sermon, which he concludes by asking his congregants to stand up if they want to go to heaven. Everyone rises except one nervous-looking fellow. “Brother,” asks the incredulous pastor, “don’t you want to ascend to paradise when you die?” Says the holdout: “When I die? Sure! I thought you were getting up a group to go right now.”
That’s pretty much how I feel about the California Supreme Court’s decision granting the right of same-sex couples to marry. The destination is a good one. I just wish the court weren’t in such a hurry to get there.
In recent years, the country has been moving at a steady pace to affirm a once-unthinkable concept�??namely that as a matter of both individual rights and social good, gays should be free to make the same commitments as heterosexuals. According to a 2007 CBS News/New York Times poll, 60 percent of Americans now support allowing same-sex couples to enter into civil unions or marriage.
Radical changes don’t happen overnight. But the speed of this one has been impressive. It’s been only 22 years since the U.S. Supreme Court said states may criminalize homosexual conduct. It’s been only 15 years since the Supreme Court of Hawaii shocked the country by ruling that gays might have a constitutional right to marry.
It’s been only eight years since Vermont became the first state to admit same-sex couples to the rights and responsibilities of matrimony through civil unions. It’s been only three years since California followed suit by letting gays enter into domestic partnerships.
But all of a sudden, the justices have discovered that their state constitution not only allows but requires that marriage include homosexual couples�??even though in 2000, 61 percent of the state’s voters rejected that option.
The majority is not always right, and in that instance, I thought the majority was wrong. But democracy doesn’t say the people will always be right. It merely says they have the right to decide most matters of public policy. Here, by contrast, the California Supreme Court says the citizenry has no right to define marriage the way it has been defined by custom and law for eons.
At stake was not whether gay couples may acquire the rights and duties of marriage in a state-sanctioned framework. As the court acknowledged, they can already do so under the domestic partnership law. But it’s not enough for them to get the substance of marriage. The court said they must also get the same terminology.
It reached this conclusion through a lot of philosophizing about “the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to other officially recognized family relationships.” But the state constitution (like the federal one) does not traffic in mushy terms like “dignity” and “stature.” When a court puts such heavy reliance on amorphous concepts, it telegraphs that it will not be tied down by the actual words of the state charter.
For further proof, consider that while the California constitution forbids discrimination on the basis of “sex, race, creed, color, or national or ethnic origin,” it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.
Prudence and caution, which are virtues in the executive and the legislative branch, are no sin in the judiciary, either. What those attributes dictated here is that the court give civil unions a fair interval to show their merits or flaws in practice, rather than rushing in to pronounce them inadequate.
The justices would have been wise to mark time while the people of California continued on their path toward full equality for gays. Instead, the court has practically exhorted them to stop the journey. Opponents of gay rights have mounted a drive to put a constitutional amendment on the ballot in November, which stands a good chance of passing.
The exercise may end up not only overturning the Supreme Court’s presumptuous decree but hardening public attitudes against the whole idea for years to come. In time, Californians would probably be inclined to embrace gay marriage. But if you insist they go there today, don’t be surprised if they refuse.[/i]