quote:Originally posted by Darth_Mauve: One other point on the Morality As The Basis of Law--its one thing to base a moral law on something that limits your own self, and another to create a moral law who's only limitations is on others. For a man to say "Morally speaking, women should not vote" is not fair or moral. This is a law constructed by straight folks limiting the rights of homosexuals. That I find highly immoral.
There are plenty of immoral and discriminatory laws out there. You can argue for or against a law, but if you want to bring morality into it then it begins to be a slippery slope.
A person or group may have a different view of morality than another. In this case, a majority though it was immoral to give the homosexual community the ability to marry. Others thought that it was immoral to KEEP them from having the ability to marry. Who makes the final decision on what is moral and what isn't?
If it is immoral to define marriage as being only between a man and a woman, wouldn't it also be immoral to have marriage laws against other types of marriages?
Aren't all laws based on morality? Murder, pedophilia, theft, drug use, immigration, and even welfare are based on morality. Who decides what is moral and what isn't? Who decides if there should be a law based on those morals? We have seen that the majority does not make the decision, so who is it?
From my perspective, the judge DID practice judicial activism. The judge made his decision based on his understanding of morality and not the morality of the majority.
I've been outspoken on the subject in the past. I'm not trying to get into it with others here, it would be beating a dead horse. What I am asking is how you define morality, and who decides what is moral and what isn't?
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quote:If it is immoral to define marriage as being only between a man and a woman, wouldn't it also be immoral to have marriage laws against other types of marriages?
It's not immoral so much as arbitrary. What is the difference between a same sex and different sex marriage, besides the fact that it is a same sex instead of a different sex marriage?
I'd have to work to formulate an airtight response to your question on morality. My immediate response is something like
1) Laws should only be built on moral axioms that are nearly universally accepted. So very basic ones, like "harm is bad," "health is good," and so on. Exceptions for minor laws, so maybe something like "the more effect a law would have, the higher the threshold for how universally accepted its axioms must be."
2) People who would be affected more by a policy should have more of a say in how it's formulated and carried out (to avoid tyranny of the majority and maintain minority rights).
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I agree with Geraine insofar as all laws are morality, so making a distinction for "moral laws" is silly. The issue is not legislating morality. The issue is that the US already has legislated, at the constitutional level, a moral tenet that says "everyone has equal protection under the law." The only way to argue that denying marriage to a group of people ISN'T violating that is to say that marriage isn't a fundamentally ingrained part of our society. And if you really believed that, you wouldn't be motivated to deny it to some random group of people to start with.
Everyone knows (or almost uniformly believes, which in this case makes it true) that marriage IS important, and telling a group of people they can't have it violates a constitutional amendment. That's not judicial activism. That's the judicial branch doing exactly what its supposed to do.
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quote:Originally posted by Geraine: From my perspective, the judge DID practice judicial activism. The judge made his decision based on his understanding of morality and not the morality of the majority.
I've been outspoken on the subject in the past. I'm not trying to get into it with others here, it would be beating a dead horse. What I am asking is how you define morality, and who decides what is moral and what isn't?
You absolutely need to read the entirety of the text I posted explaining the moral v. rational justification. It responds to this comprehensively.
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"From my perspective, the judge DID practice judicial activism. The judge made his decision based on his understanding of morality and not the morality of the majority."
No, he made his decision based on constitutional principles. If he'd made his decision based on the morality of the majority, THAT would have been judicial activism.
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quote:Originally posted by MattP: On a more serious note, have you read the transcripts? The defense absolutely crumbled. One of the defense witnesses eventually agreed with the major points argued by the prosecution during cross-examination, effectively becoming a witness for the prosecution.
I can't find the quote right now, but I recall David Boise commenting in an interview that the defense was so easy to take down because they aren't accustomed to actually defending their position. They take their various arguments against SSM as self-evident facts which don't actually need to be justified. They tend to go before a series of friendly audiences regurgitating their talking points. Boise said something along the lines of "When you give a speech you aren't subject to cross examination."
quote:A person or group may have a different view of morality than another. In this case, a majority though it was immoral to give the homosexual community the ability to marry. Others thought that it was immoral to KEEP them from having the ability to marry. Who makes the final decision on what is moral and what isn't?
In this case, someone who asked both sides to defend their position with actual facts. One side did.
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quote:Originally posted by Chris Bridges: In this case, someone who asked both sides to defend their position with actual facts. One side did.
Right, and I am fine with that. My argument is that if you are going to bring morality into the argument, then facts are usually thrown out the window. I'm not arguing that the judge made the right or wrong decision. I'm arguing that those people that see it as a moral issue (be they for or against it) aren't looking at it from a rational standpoint. From a moral standpoint, the majority decided what was moral, and they decided against allowing gay marriage. From a rational standpoint, it can be argued that there is discrimination taking place.
The SCOTUS is going to be challenged on this one. Facts aside, they need to determine if marriage is a right given by the Constitution. There isn't any language in the Constitution that specifically mentions marriage, so they will have to make that call. It's a tough one. You realize that this may go to the SCOTUS and they may have to give a federal definition of what marriage is and who is extended the opportunity. If and when this happens, you will see other groups of people that take part in other non traditional marriage types coming forward demanding they be extended the same rights.
No matter what the outcome, I find this whole thing fascinating. I can't wait to see how it plays out.
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quote: There isn't any language in the Constitution that specifically mentions marriage, so they will have to make that call.
re-iterating that you need to read the article I quoted in here. On page one.
What matters is the test of discrimination. The government can't, for instance, not let gay people drive while letting straight people drive, regardless as to whether or not the constitution specifically mentions cars.
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That is the difference between law and politics. In politics, you can set facts aside to make your case. I the law, facts have a definitive importance.
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posted
and of course, the most hilarious organization/front group of them all, the National Organization of Marriage, chimes in with the best reactionary scare-tactic quote so far.
quote:If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.
Those in power will call it tolerance, they will call it pluralism, but in truth same-sex marriage is a government takeover of an institution the government did not make, cannot in justice redefine, and ought to respect and protect as essential to the common good.
SOVIET STYLE
Ah, but here comes a member of the american family association to up the ante!
quote:Judge Vaughn Walker’s ruling yesterday, in which he trampled on the will of seven million Californians, is a monstrous, egregious, reprehensible expression of judicial activism and tyranny.
According to Judge Walker, it is not longer “We the People,” it is now “I the Judge.”
Although almost no other organizations other than the American Family Association are making an issue of this, Judge Walker should have recused himself from this case since he is a practicing homosexual. This created a clear conflict of interest, and he had no business issuing a ruling on a matter on which he had such a huge personal and private interest.
His own personal sexual proclitivies utterly compromised his ability to make an impartial ruling in this case. After all, the bottom line issue is whether homosexual behavior, with all its threats to psychological and physical health, is behavior that should be promoted in any rational society.
Judge Walker has already decided this issue for himself, and has no business putting himself in a place where his own personal value judgments could be substituted for the express will of the people of California.
He is Exhibit A as to why homosexuals should be disqualified from public office. Character is an important qualification for public service, and what an individual does in his private sexual life is a critical component of character. A man who ignores time-honored standards of sexual behavior simply cannot be trusted with the power of public office.
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Would AFA have suggested that a married "practicing heterosexual" also has a conflict of interest, as the defense of Prop 8 is to defend heterosexual marriage?
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Laws are based upon morality, but certain morals are held to more strongly than others. Constitutionally, the default moral standard is based on three unalienable human rights - life, liberty, pursuit of happiness. Pitting the moral belief that gay marriage shouldn't happen just because - taking the defense's argument of .. well .. nothing - against the moral belief that we have the unalienable right to pursuit of happiness (which marriage falls under even though the right to marriage isn't explicitly mentioned in the constitution) AND the overwhelming factual case that gay marriage doesn't hurt anyone else AND the related case that banning gay marriage hurts people, the defense loses out.
Sorry. Not all morals are created equal. And not all morals are going to be judged equally under law either.
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posted
If they had honestly thought getting a non-gay judge was something they had the legal grounds to do and was legit, why didn't they ask the judge to recuse himself at the beginning? Maybe cause there is no way you can argue that one with a straight face in a legal situation? Though soundbites are wonderful cause you can say the stuupidest things and be taken seriously.
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quote:Originally posted by scholarette: If they had honestly thought getting a non-gay judge was something they had the legal grounds to do and was legit, why didn't they ask the judge to recuse himself at the beginning? Maybe cause there is no way you can argue that one with a straight face in a legal situation? Though soundbites are wonderful cause you can say the stuupidest things and be taken seriously.
A lawyer addressed this exactly:
quote:I really, really hate – as in, this is extra special slimy, even for them – the fact that only now, since the Prop 8 proponents have lost, is the whole "he's gay, should he have recused himself" meme starting to take hold. Folks, if you think your judge should recuse himself, you put on your big boy or girl pants and you file the damn motion. 22 years ago I did a jury trial for a client who was charged with molesting his kid. The judge originally assigned had handled the civil restraining order, and I felt that created bias, so I filed a motion to recuse, which he granted. (By the way, with a different judge, the jury acquitted in 55 minutes.) About a week later, I ran into that judge and started to apologize for the motion. He cut me off before I could finish and he said, "You should never, ever apologize for doing your job. Ever." The point is this: if you are a good lawyer, and you've got grounds, you file that motion. And if you don't file it, either a) you're not a good lawyer, or b) you got no grounds in the first place, and you know it.
And the Prop 8 proponents knew it. And didn't file it. Because there was nothing to file. It's no more bias to be gay in this case than it would to be African American, Latino, Jewish or female in a discrimination case. This is a smear. And a cowardly smear at that. Nothing less.
quote:Originally posted by Amberkitty: Laws are based upon morality, but certain morals are held to more strongly than others. Constitutionally, the default moral standard is based on three unalienable human rights - life, liberty, pursuit of happiness. Pitting the moral belief that gay marriage shouldn't happen just because - taking the defense's argument of .. well .. nothing - against the moral belief that we have the unalienable right to pursuit of happiness (which marriage falls under even though the right to marriage isn't explicitly mentioned in the constitution) AND the overwhelming factual case that gay marriage doesn't hurt anyone else AND the related case that banning gay marriage hurts people, the defense loses out.
This doesn't hold. "If it makes you happy and doesn't harm anyone, its ok!" is not a valid argument.
The phrase was in the Declaration of Independence, not the Constitution. The Bill of Rights does not even include the "Pursuit of Happiness". The 5th amendment mentions that someone cannot be deprived of life, liberty, or property, but does not mention the pursuit of happiness at all.
Even though it is not set forth in the Federal Constitution there are many STATE Constitutions that include this phrase.
I REALLY don't think the SCOTUS is going to uphold the ruling. They will most likely refer it back to the state and the ban will go into effect. Since marriage has been considered a state issue in the past I can't see them changing that. It would open up a can of worms that would have all of the people that practice other types of marriages such as polygyny ,polyandry, group marriages, and cousin marriages coming out of the wood works.
Wasn't there a lawsuit in Massachusettes regarding SSM as well? I heard that the MA lawsuit would probably make it to the SCOTUS before the California case. Does anyone have any information regarding that lawsuit?
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quote:This doesn't hold. "If it makes you happy and doesn't harm anyone, its ok!" is not a valid argument.
Um, what? Why?
I DO have a feeling that the Supreme Court would find a way to sidestep this similar to how they sidestepped the Pledge of Allegiance "Under God" thing.
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Though given what was presented during the trial, i.e. no defense vs the government really has no interest in upholding this ban, I don't disagree with logic of the ruling. And the argument that legal enforcement of certain morals is acceptable SIMPLY because they are morals is still invalid.
quote: I REALLY don't think the SCOTUS is going to uphold the ruling. They will most likely refer it back to the state and the ban will go into effect. Since marriage has been considered a state issue in the past I can't see them changing that.
Most legal scholars right now seem to be saying that it is a close decision. The articles I have read have mostly agreed that the court is split down liberal/conservative lines 4-4 on this one with Kennedy being the swing vote. Which way Kennedy will go is open for a lot of debate. Personally, I see Kennedy having a hard time ruling in favor of prop 8. He has already stated in Lawrence V Texas(a case about sodomy laws) that morality alone is not a reason to ban a behavior and that public opinion on an act was not sufficient grounds to ban it.
This is certainly likely to be a case that the SC rules on. It is absolutely within their purview. It is almost identical in nature to Loving vs Virginia which ruled that banning interracial marraige was a violation of the equal protection clause and was not bannable by states. While marriage itself has been run by the state, the conflict with prop 8 is with the federal constitutions equal protection clause which would put it decidedly in the federal arena. I can see the court wanting to narrowly tailor their decision as much as possible to avoid having far reaching effects but it seems likely to be difficult for them. If they determine that homosexuals are a protected class for example, it will have far reaching consequences.
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quote:Originally posted by Geraine: The SCOTUS is going to be challenged on this one. Facts aside, they need to determine if marriage is a right given by the Constitution. There isn't any language in the Constitution that specifically mentions marriage, so they will have to make that call.
quote: I think it's really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we're talking about, by the United States Supreme Court. The Supreme Court -- the freedom to marry, the freedom to make the choice to marry.
The Supreme Court has said in -- I counted 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is. And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it.
The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.
Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.
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I have to admit that the National Organization for Marriage once deeply, deeply annoyed me, but that was before I realized the whole thing was elaborate satire intended to make opponents of gay marriage look like idiots.
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Gallagher: This biased judge made that conclusion but I will tell you ..
Cooper: Why do you think he's biased?
Gallagher: .. That the majority of courts and the majority ..
Cooper: Why do you think he's biased?
Gallagher: .. Of Americans have rejected the idea that same-sex union .. same sex marriage is a civil right and I think in the end we will win this ..
Cooper: Why .. why do you think he's biased?
Gallagher: .. In the court of law, and the court .. why? .. I don't know why he's biased ..
(hint: she had already said on NOM's site that he's biased because he's gay.)
The utter pathos of the opposition to civil rights in this country is comforting at times. I guess it should be disturbing how inanely stupid they can be, and that they "represent" some kind of near majority, but honestly, you have to laugh at the lameness of their arguments in latter days.
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quote:Constitutionally, the default moral standard is based on three unalienable human rights - life, liberty, pursuit of happiness....
News to me...
Come on now. The actual line is in the Declaration, sure, but the Constitution is based, in a sense, on the Declaration. The founders said so, the Supreme Court has said so. You know: The Declaration is the thought and the spirit, the Constitution is the body and the letter.
So you may be technically correct (and, as the bureaucrat on Futurama said, that is the best kind of correct.) But isn't it kind of quibbling to give someone a hard time about it?
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Not really. Considering how poor an understanding of the philosophy of their own country and constitution most Americans seem to have, I'd say we should be sticklers for accuracy and clarity.
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You should always strive to show someone that they are wrong, when their being wrong encourages and supports a hurtful state of being.
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I wasn't intending to give Amberkitty a hard time so much as to point out, somewhat dryly, "That isn't actually in the Constitution," and I'm sorry if I came across harsher than that.
quote:Come on now. The actual line is in the Declaration, sure, but the Constitution is based, in a sense, on the Declaration. The founders said so, the Supreme Court has said so. You know: The Declaration is the thought and the spirit, the Constitution is the body and the letter.
It's just that my opinion is that when dealing with such an enormously powerful document as the US Constitution, it's actually pretty vital to have (among other things) the ideals espoused in the Declaration guide its ongoing creation and interpretation, but for the document itself, well, technicalities are as important as its built-in allowance for change.
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quote:Originally posted by Samprimary: in this case it's an acknowledged slip
quote:Originally posted by Amberkitty: MY BAD.
so
I'm confused, were they saying their bad was about the origin of the phrase "life, liberty and the pursuit of happiness?" I took the statement of their badness to be more relevant to the actual discussion they were having, about the court ruling, but perhaps I misread.
And in terms of understanding the philosophy and constitution of our country... the morality expressed the constitution is based on the ideas laid out in the Declaration of Independence. Not solely, certainly, but the documents are not unrelated.
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quote:Originally posted by Rakeesh: I wasn't intending to give Amberkitty a hard time so much as to point out, somewhat dryly, "That isn't actually in the Constitution," and I'm sorry if I came across harsher than that.
quote:Come on now. The actual line is in the Declaration, sure, but the Constitution is based, in a sense, on the Declaration. The founders said so, the Supreme Court has said so. You know: The Declaration is the thought and the spirit, the Constitution is the body and the letter.
It's just that my opinion is that when dealing with such an enormously powerful document as the US Constitution, it's actually pretty vital to have (among other things) the ideals espoused in the Declaration guide its ongoing creation and interpretation, but for the document itself, well, technicalities are as important as its built-in allowance for change.
I'm pretty much in total agreement then. Posts: 3580 | Registered: Aug 2005
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quote:Originally posted by Rakeesh: I wasn't intending to give Amberkitty a hard time so much as to point out, somewhat dryly, "That isn't actually in the Constitution," and I'm sorry if I came across harsher than that.
It's just that my opinion is that when dealing with such an enormously powerful document as the US Constitution, it's actually pretty vital to have (among other things) the ideals espoused in the Declaration guide its ongoing creation and interpretation, but for the document itself, well, technicalities are as important as its built-in allowance for change.
We're in agreement.
I believe that at the very least one should make accurate statements from which logical arguments can follow. That line isn't in the Constitution, but I said that it was, so that was my mistake.
So no harm done. And I'm a big girl. I only cry over things like ruining a newly done manicure.
posted
Here's a surprising twist on the appeals process for Prop 8.
Since Gov. Schwarzenegger and the CA Attorney General Jerry Brown support Judge Walker's decision to strike down Prop 8, they refuse to appeal it. As they are the official defendants, it appears possible that the courtroom defenders of Prop 8 may not have the standing to appeal the ruling.
quote:A private group that opposes same-sex marriage, ProtectMarriage.com, defended Proposition 8 during the trial Walker held earlier this year. The group wants to appeal but may lack legal standing to do so.
To have standing in federal court, a party must show that it has suffered an actual injury, and Walker said no evidence suggests that the campaign would meet that test.
...
Chapman University law professor John Eastman, who has been critical of Walker, said ProtectMarriage.com and its allies could try to prove standing by pointing to the fact that the California Supreme Court had given it authority to defend Proposition 8 in state court.
But UC Irvine Law School Dean Erwin Chemerinsky said the effort may be difficult. "Their injury is ideological, and there is a century of precedent that ideological injury is not enough for standing. I think this lets the 9th Circuit and the Supreme Court follow well-established law and avoid the hard constitutional ruling."
Ironically, the rules on standing have been toughened considerably over the last generation by conservative judges as a way to limit the types of cases that can be brought in federal court.
posted
Lol, that's good. Because the more impotent the defenders are at actually getting this to the SCOTUS, the more liberal the SCOTUS is going to be by the time this gets to their doors. Meaning that we move from the likelihood of tortured conclusions which don't make it unconstitutional everywhere, to a nationwide mandate that gay marriage be legal.
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quote:Because the more impotent the defenders are at actually getting this to the SCOTUS, the more liberal the SCOTUS is going to be by the time this gets to their doors.
I wouldn't count on that.
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Slate has a story asking if we really want gay marriage ok'd in CA on a technicality. The problem I see is that this technicality has been in place for a while. Environmental groups have been told they lack standing to bring up the cases they care about to the supreme court. So, yeah, maybe it would be nice for the challenge to be made and have a decisive ruling, but it seems like following the rules is important too. Now, if this is going to lead to a change in those rules for everyone (like Greenpeace gets standing to challenge a ruling on an environmental issue) that is a whole other situation.
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quote:Because the more impotent the defenders are at actually getting this to the SCOTUS, the more liberal the SCOTUS is going to be by the time this gets to their doors.
I wouldn't count on that.
Which justices do you think are plausibly going to retire or die in the time between here and 2016?
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quote:Originally posted by scholarette: Slate has a story asking if we really want gay marriage ok'd in CA on a technicality.
This is not a mere technicality, this is a real constitutional issue. As for the grounds to appeal, would you prefer the normal requirements be waived in favor of the defense in this case? We should allow people to defend even if they have no standing? Why? That's a horrible precedent.
Politics and the courts, these things do not mix well.
quote: So, yeah, maybe it would be nice for the challenge to be made and have a decisive ruling, but it seems like following the rules is important too.
I'm not getting you here. This *is* following the rules. If you have a case to made in court that a decision is constitutional, and the court agrees, you are following the rules, and so are they. It was the proposition that was unconstitutional, not the court ruling. Everyone is following the rules here, that's the point, the rules are complicated, but nobody has broken them.
And yes, I would absolutely settle for a decision in the courts where the people have trampled on a minority's rights. There is absolutely no sense in waiting to be given rights you already deserve.
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My post was disagreeing with the Slate article. technicality perhaps should be put in scare quotes. It would be nice to have this be a the SC decision though because then it is national, not just for CA, but you can't simply bypass the rules we have established for the court regarding standing just because this time it is a conservative who is lacking standing. There is a part of me that would like for a larger view of what is standing though. I read somewhere a fairly large list of people who lacked standing and some of those cases, I thought it was a bit unfair that the groups could not actually defend their interests in court. So, I can see how conservatives are upset, but I would want the standing rules in general to be broadened, to apply to these other groups as well- not an exception for this one case.
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quote: It would be nice to have this be a the SC decision though because then it is national, not just for CA.
This seems to be assuming that the SC would rule the same way. I personally am not eager for this to go to the SC, since a ruling that upholds Prop 8 is scary to consider.
California and its 37 million people are a huge victory.
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Though actually, the SC case I think would be the most defining for the movement would be if the SC upheld the ruling that DOMA denies state rights. Tossing out DOMA would extend a lot of rights and benefits to people at the federal level and is in some ways a very conservative, Constitutional ruling- it is preserving state's rights and seems to be in line with established precedence. The standing in that case seems undeniable. If you had the anti-DOMA and then the CA case upheld, I think that would pretty much guarantee gay marriage for everyone in the US. If DOMA is struck down, even if prop8 is allowed, I think overall it would still be a victory- just a little slower. But if DOMA is upheld, that really, really sucks.
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