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08/05/2010 09:46:08 PM · #5001 |
Originally posted by DrAchoo:
The two sentences are, of course, quite different. The first ("The will of the people cannot take away fundamental liberties. That's the way the constitution operates, and the courts of the land are supposed to follow suit.") is a general principle and one I agree with. The second, ("No matter how overwhelming the majority, voters do not have the right to prohibit a class of people (blacks, gays, asians...) from marrying.") is a specific application of that principle and one that is up for debate until the SCOTUS officially rules. |
If marriage is a fundamental liberty, then it may not be taken away by majority vote per the first point you claim to agree with. "14 Supreme Court decisions dating back to 1888 establish marriage as a fundamental right protected by the Constitution, Olson said, and every American should have the right to marry the person of his or her choice." Given that marriage is a fundamental right and "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals," the legal conclusion is obvious.
Arguing a "traditional definition of marriage" is a doomed approach that was trounced at the end of day 1/beginning of day 2 (it didn't work when race was the issue either). Marriage is a legal status— a civil contract between two consenting adults— and subject to the same laws against discrimination as any other contract. The important point from this ruling is that, regardless of how you personally want to define it, the state has no interest in prohibiting a group from marrying (the rational basis requirement):
"Recognizing the paucity of their own case, the Prop 8 defenders of anti-gay discrimination went as far as to assert during closing arguments that they "don't have to have evidence" — a shocking assertion in any case, especially one that's weighing direct injury to thousands of couples and the constitutional guarantee of equal protection. Equally shocking, and revealing, was the Prop 8 crowd's own admission in pretrial proceedings that they had no explanation for why the freedom to marry is undesirable. When Judge Walker asked their lead lawyer Charles Cooper, "What would be the harm of permitting gay men and lesbians to marry?" Cooper, replied, "Your Honor, my answer is: I don't know ... I don't know."" |
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08/05/2010 09:49:57 PM · #5002 |
Originally posted by yanko:
What troubles me is you seem so willing to just accept anything so long as it's an appointed authority doing the talking. I know you said you're not a legal expert as your reason in this case but you seem to bulk the responsibility in other areas as well, IMO. Sometimes in these threads it feels like CS Lewis, Hume, is posting using your account rather than you Jason. Granted I get that impression from many others here as well. I think Shannon's middle name is Wiki. In fact I'm pretty sure of that. Now I'm certainly no exception but the fact that I can acknowledge it means I can change it. These debates only go on for so long because like you say people are talking past each other. Few are listen and even fewer are thinking for themselves. |
Well, I'll take that under consideration. Personally I think I'm something of the antithesis and it's curious that you have this impression of me. As far as authority goes, there is excellent reason to not constantly reinvent the wheel. Many of these questions have been, at least in general, grappled with for millenia. Listening and understanding the arguments of the authorities is a very important activity. Clearly it's what a "classical education" is all about. But I don't quite get why you don't see me using authority to bolster and defend my own arguments?
I'm also curious to hear you say that the SCOTUS could "get it wrong". If you mean legally or constitutionally, then that is paradoxical since the SCOTUS, by definition, gets it right all the time because it is the constitutionally appointed body for interpreting the constitution. |
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08/05/2010 09:53:25 PM · #5003 |
Originally posted by scalvert:
Cooper, replied, "Your Honor, my answer is: I don't know ... I don't know." |
They really did get slaughtered at the courts, didn't they? Absolutely SLAUGHTERED.
I posted about this a while ago... the Prop 8 supporters contributed almost as many reasons to invalidate the amendment as the people trying to get it struck down. It was practically a farce. A shameful display of arrogance and a phenomenal waste of money. Oh well... sucks to be them! |
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08/05/2010 09:55:21 PM · #5004 |
| Also... I snagged comment 5000! Do I win something (besides a court case)? |
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08/05/2010 09:58:59 PM · #5005 |
Originally posted by yanko:
I think Shannon's middle name is Wiki. In fact I'm pretty sure of that. |
Just trying to provide verifiable facts rather than mere opinion and belief. My "opponents" frequently referred to Wiki before I started, so I must assume they accept the source as reasonably impartial. |
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08/05/2010 10:39:51 PM · #5006 |
Originally posted by DrAchoo:
Originally posted by yanko:
What troubles me is you seem so willing to just accept anything so long as it's an appointed authority doing the talking. I know you said you're not a legal expert as your reason in this case but you seem to bulk the responsibility in other areas as well, IMO. Sometimes in these threads it feels like CS Lewis, Hume, is posting using your account rather than you Jason. Granted I get that impression from many others here as well. I think Shannon's middle name is Wiki. In fact I'm pretty sure of that. Now I'm certainly no exception but the fact that I can acknowledge it means I can change it. These debates only go on for so long because like you say people are talking past each other. Few are listen and even fewer are thinking for themselves. |
Well, I'll take that under consideration. Personally I think I'm something of the antithesis and it's curious that you have this impression of me. As far as authority goes, there is excellent reason to not constantly reinvent the wheel. Many of these questions have been, at least in general, grappled with for millenia. Listening and understanding the arguments of the authorities is a very important activity. Clearly it's what a "classical education" is all about. But I don't quite get why you don't see me using authority to bolster and defend my own arguments?
I'm also curious to hear you say that the SCOTUS could "get it wrong". If you mean legally or constitutionally, then that is paradoxical since the SCOTUS, by definition, gets it right all the time because it is the constitutionally appointed body for interpreting the constitution. |
I'm not saying you do it all the time. It's just sometimes you rely on authorities too much, IMO. A good argument should be able to stand on it's own two feet without the need for one. Now, that's not to say authorities aren't important.
I guess what I'm saying is sometimes there is value in reinventing the wheel. It's the only way we learn. As a society we are so dependent upon our authorities for our knowledge facts that we're losing the ability to think for ourselves.
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08/05/2010 11:13:52 PM · #5007 |
Originally posted by DrAchoo:
I'm also curious to hear you say that the SCOTUS could "get it wrong". If you mean legally or constitutionally, then that is paradoxical since the SCOTUS, by definition, gets it right all the time because it is the constitutionally appointed body for interpreting the constitution. |
Their decision, whatever it is, will be legally binding. My point is they could still get it wrong as far as their interpretation of the Constitution. It's not like this hasn't happened before. Decisions can and have been overturned before. These are not superhuman beings breed from birth. They are just as fallible and corruptable as the rest of us.
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08/05/2010 11:22:14 PM · #5008 |
Originally posted by yanko:
Originally posted by DrAchoo:
I'm also curious to hear you say that the SCOTUS could "get it wrong". If you mean legally or constitutionally, then that is paradoxical since the SCOTUS, by definition, gets it right all the time because it is the constitutionally appointed body for interpreting the constitution. |
Their decision, whatever it is, will be legally binding. My point is they could still get it wrong as far as their interpretation of the Constitution. It's not like this hasn't happened before. Decisions can and have been overturned before. These are not superhuman beings breed from birth. They are just as fallible and corruptable as the rest of us. |
But here's the rub. What is the standard used to judge whether they "get it right"? Wouldn't your answer be "the constitution" which is at worst circular and at best paradoxical since the constitution itself, as I mentioned, says the Supreme Court has the last word in interpretation. So even terribly immoral decisions like Dred Scott were "right" as far as the constitution was concerned until it was overturned and then became "wrong". Semantics, I know. |
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08/09/2010 05:48:16 PM · #5009 |
I never thought I'd refer anyone to a Fox News clip, but...
Ted Olson Interview |
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08/09/2010 09:21:02 PM · #5010 |
Originally posted by Judith Polakoff:
I never thought I'd refer anyone to a Fox News clip, but...
Ted Olson Interview |
Thank god for smart people. |
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08/09/2010 09:58:48 PM · #5011 |
The gay marriage thing. I keep coming back to just how much money was spent in the state of Calfornia (and often by other than Californians) to campaign against gay marriage. On the grounds that "God (or gods) declared marriage to be between a man and a woman." OK. God (or gods) also declared that "what God has put together let no man put asunder" or however that goes. So why isn't money being spent trying to illegalize divorce? We certainly can't be letting the State issue divorces! Heresy! Blasphemy! Or whatever. And by the way, divorce affects a MUCH bigger part of the population, and pretty much makes quite the mockery of "the sanctity of marriage", does it not? So why no money, no campaigns to make divorce illegal?
Just think of the ways that money could be spent to help the kids whose parents have divorced, perhaps. Or maybe been used to fund marriage camps aimed at keeping people and families together. Or something just a wee bit more useful to society. I really do not understand the reasoning behind that huge outlay of cash. |
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08/09/2010 10:28:24 PM · #5012 |
| Reason rarely interferes with matters of ideology. |
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08/10/2010 01:07:52 AM · #5013 |
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08/10/2010 10:49:44 AM · #5014 |
Originally posted by Melethia:
No one? |
Because it's not about marriage. It's not about divorce. It's about throwing your heart and soul into finding a constitutionally acceptable way of reminding the homosexuals that they are flawed creatures, second-class citizens, and not deserving of society's protection. The homophobes have seen their position eroding over the past decades, as SCOTUS affirms that constitutional protection covers alternative sexual orientations, and this is their last attempt at a rear-guard action.
That's how I read it anyway...
R.
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08/10/2010 12:57:49 PM · #5015 |
| I think the reason so much effort has gone into California is because laws passed in California tend to trickle down to other states (except Texas, they're in another world). I don't think the SCOTUS can ignore this one. |
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08/10/2010 12:59:24 PM · #5016 |
Originally posted by Bear_Music:
Because it's not about marriage. It's not about divorce. It's about throwing your heart and soul into finding a constitutionally acceptable way of reminding the homosexuals that they are flawed creatures, second-class citizens, and not deserving of society's protection. The homophobes have seen their position eroding over the past decades, as SCOTUS affirms that constitutional protection covers alternative sexual orientations, and this is their last attempt at a rear-guard action.
That's how I read it anyway...
R. |
*Like*
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08/10/2010 09:43:51 PM · #5017 |
Now this is fascinating...
The non-governmental defendants in the Prop 8 case might not even have the right to appeal, because neither the Governor or the AG (the state being the actual defendant in the case Perry V. Schwarzenegger) want to appeal, and have asked for the temporary stay to be lifted so the decision can go into effect immediately.
What's Next: Can the Prop 8 Decision Be Appealed?
It's a cool read, spelling out a multitude of ways the case could be decided. If you like legal and political machinations, take a peek! |
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08/10/2010 10:33:25 PM · #5018 |
Originally posted by Mousie:
Now this is fascinating...
The non-governmental defendants in the Prop 8 case might not even have the right to appeal, because neither the Governor or the AG (the state being the actual defendant in the case Perry V. Schwarzenegger) want to appeal, and have asked for the temporary stay to be lifted so the decision can go into effect immediately.
What's Next: Can the Prop 8 Decision Be Appealed?
It's a cool read, spelling out a multitude of ways the case could be decided. If you like legal and political machinations, take a peek! |
An honest question, but wouldn't the pro-marriage camp actually want an appeal to get it to the SCOTUS and perhaps make some really broad changes? Or would it be a case of taking what you can get?
Whatever the actual merits of either side, I think everybody can agree that the defense was run by a bunch of incompetents. |
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08/10/2010 10:51:17 PM · #5019 |
Originally posted by DrAchoo:
Originally posted by Mousie:
Now this is fascinating...
The non-governmental defendants in the Prop 8 case might not even have the right to appeal, because neither the Governor or the AG (the state being the actual defendant in the case Perry V. Schwarzenegger) want to appeal, and have asked for the temporary stay to be lifted so the decision can go into effect immediately.
What's Next: Can the Prop 8 Decision Be Appealed?
It's a cool read, spelling out a multitude of ways the case could be decided. If you like legal and political machinations, take a peek! |
An honest question, but wouldn't the pro-marriage camp actually want an appeal to get it to the SCOTUS and perhaps make some really broad changes? Or would it be a case of taking what you can get?
Whatever the actual merits of either side, I think everybody can agree that the defense was run by a bunch of incompetents. |
Hard to run a defense competently when the defense ITSELF is incompetent. |
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08/11/2010 09:34:17 AM · #5020 |
Originally posted by DrAchoo:
An honest question, but wouldn't the pro-marriage camp actually want an appeal to get it to the SCOTUS and perhaps make some really broad changes? Or would it be a case of taking what you can get?
Whatever the actual merits of either side, I think everybody can agree that the defense was run by a bunch of incompetents. |
An appeal is only desirable if it has a good chance of losing. Not everyone believes that the SCOTUS will rule in our favor, so an appeal is risky at best. |
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08/13/2010 05:45:14 PM · #5021 |
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08/13/2010 09:54:56 PM · #5022 |
Saw this today and thought it was funny... hope it wasnt already posted:
Gay Marriage Graph |
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08/14/2010 10:56:10 AM · #5023 |
Excerpt from "Hiding in Plain Sight" by Linda Greenhouse in New York Times Online.
Originally posted by Linda Greenhouse:
Gay couples began going to court to claim a right to marry at almost exactly the same time that women began turning to the courts to claim a right to abortion. The student body president of the University of Minnesota Law School brought a marriage case in the Minnesota state courts in 1970, after he and his partner were denied a marriage license by the local county clerk. In a dismissive two-page opinion, the Minnesota Supreme Court observed that the 14th Amendment’s due process clause was “not a charter for restructuring” the “historic institution” of marriage “by judicial legislation.” The United States Supreme Court dismissed the appeal. Numerous other cases followed, in California and other states, throughout the 1970s. The lawsuits were not successful, but that’s not my point. The point is that these cases, and the claims on the Constitution that they presented, were hiding in plain sight. Few people outside the gay community — or more precisely, outside a well-informed subset of that community — were even aware of their existence. I know I wasn’t. The notion of legally sanctioned same-sex marriage seemed too far-fetched to ponder, until it didn’t.
Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails. “Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines” until recently, he said. “Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.”
Judge Walker cited the advent of no-fault divorce (which New York is about to become the 50th state to adopt) as a marker of how the legal system no long prescribes roles for marriage partners based on their sex. Evidence at the trial, he said, showed “the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles.” As a result, the judge continued, “gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents,” and “gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
Judge Walker’s conclusion was that Proposition 8, the state constitutional amendment confining marriage to opposite-sex couples, “thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civil life.” Proposition 8 “mandates that men and women be treated differently based only on antiquated and discredited notions of gender.”
There is much more to Judge Walker’s analysis, but it seems to me that this revelation is the heart of it: that while we have been fussing about same-sex marriage, marriage itself has undergone profound change as the result of forces completely independent of federal judges. Judge Walker is saying basically that he is not “redefining marriage” — the charge instantly leveled by critics of the opinion. We, collectively, in California and elsewhere in today’s United States, have done the job ourselves. |
Message edited by author 2010-08-14 10:56:52.
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08/14/2010 06:19:00 PM · #5024 |
An interesting post, Bear. I had previously emailed Deb and told her that a battle had already been fought and lost with the onset of "no-fault" divorce. Walker is an insightful person.
It all makes me ask two questions to myself. First, if we have no-fault divorce, what IS the marriage contract? Why even have it at all? A contract usually spells out the obligations each party carries. If one party is free to walk away for any reason, what is the point?
Second, could it be that progressives look at a situation and ask "What can be gained?" while conservatives look and ask "What can be lost?" No-fault divorce supposedly allowed a gained freedom from specific gender roles (though I don't quite understand this argument), but the cost was high by evicerating the security of what it meant to be married. |
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08/14/2010 08:29:32 PM · #5025 |
Originally posted by DrAchoo:
Second, could it be that progressives look at a situation and ask "What can be gained?" while conservatives look and ask "What can be lost?" |
Right. In regards to gay marriage, progressives say equality is gained and conservatives say the sanctity of marriage is lost (to put it gently). Since the country still isn't a theology based on the Bible it should come as no surprise which side is winning yet again.
To put it another way, progessives are the Harlem Globetrotters and conservatives, the Washington Generals.
Message edited by author 2010-08-14 20:30:22.
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