quote:Originally posted by Brother Carlotta: If, as Javert claims, the majority of Californians are now in favor of gay marriage, they should have been allowed to overturn their referendum banning gay marriage by another referendum permitting it. The legislature should have had no problem passing the law then.
I claimed no such thing. I think you have me confused with another poster.
That being said, I don't think it matters whether the majority of Californians are for or against gay marriage. The fact is that it should be allowed.
The majority of people in the country would probably want Fred Phelps to never be allowed to open his mouth to speak again. But that doesn't matter. He has the right to free speech, and the public opinion should have no effect on it.
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Where do you get the idea that the courts are "super-powerful" or that the "helped pass a law."
California is a state based on its constitution.
A law is passed.
The judges were selected to decide if that law was in accordance with the constitution.
They decided it was not.
They did not create a law. They do not enforce a law. The just make sure that the law is, well, legal.
When the Cherokee Nation went to the Supreme Court to stop President Jackson's taking of their land and property, the Supreme Court said, "STOP. That is unconstitutional."
Andrew Jackson, and his soldiers, simply ignored them.
If these judges demand something that is truly outrageous, the Executive branch need merely ignore them.
If these judges proclaim take power from the legislative branch, the legislative branch can take away their money.
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Blue Wizard, thank you for your analysis. I think you beg the question when you write:
quote:As I have said in the other thread on gay marriage, this is not about your personal beliefs. It is not about the will of the majority or the will of the legislature. It is about whether it is right or wrong for society to select an otherwise law abiding group of people, and diminish their rights simply because you don't like them.
Just as the CA Supreme Court, you assume that there is a "right to marry". I think that assertion presents two questions:
1. If there is a right to marry, where did it come from?
2. What does "marry" mean, and how do you know?
I know my answer to those questions, but I would be interested in hearing yours, Blue Wizard.
Well, there are rights and there are Rights, the two being similar but not the same. In this sense we are using the word 'rights' in a common conversational sense.
But more formally,
Right - 6. Something that is due to a person or governmental body by law, tradition, or nature: “Certain rights can never be granted to the government, but must be kept in the hands of the people”(Eleanor Roosevelt). American Heritage 3rd Ed.
Marriage is a legal contract which assigns general rights and responsibilities to two people who are co-habituating under this legal contract.
This legal co-habitation of a couple exists in such a way as to form a 'family unit'.
A similar statement was added to the discussion by Javert in response to your questions -
"The legal status or relationship that results from a contract by which two citizens promise to live together as spouses for life, or until the legal termination of the relationship.
Laws and access to law in the form of a legal contracts must be granted in a fair and unbiased manner, and in a way that does no real harm to individuals or society.
I added that last part about 'harm' because all rights have limits. Your right to free speech ends when you ponder shouting 'fire' in a crowded theater or similar.
So, again, society by means of law and legal contract grants the privileges and responsibilities of marriage to couples, but by what force of law are they able to deny these contracts and accompanying privileges to certain couples?
For couples which do not harm society, as would brother and sister marrying, how can you justify denying a select group simply because you don't like them?
So, in a sense, it is not the 'right to marry' that is in question, it is the right to fair and reasonable access to legal contracts and state recognitions along with companying privileges and responsibilities that are granted to others in similar situations.
So, my first comment is that you are trying to avoid or obfuscate the issue by dancing around the definition of 'rights'.
Next, to answer your questions -
1. If there is a right to marry, where did it come from?
The right of access to legal marriage comes from societies need to legally insure the responsibilities of couples forming families. In legally insuring those responsibilities, society, by law, also grants certain privileges.
2. What does "marry" mean, and how do you know?
It means to legally form a family unit, and to accept the legal responsibilities that come with forming such a family unit.
How do I know? Well, I'm not blind or dead; I see the world around me. I see people getting married. I see people getting divorced. I see people arguing over financial responsibility for children that are a result of that legal family unit. Though admittedly there is also a legal responsibility for children that arise outside of a legal family unit.
I see people getting and being denied access to loved ones in hospitals, and to medical decisions relating to the care of those loved ones. I see people in functional family units being denied rights afforded to those in legal family units, and frequently to the detriment of the involved loved ones.
And why? Because certain functional family units are denied access to the status of 'legal' family unit.
But what is that denial based on, other than 'we don't like you'?
Law and access to legal status must be fair, uniform, and unbiased within reason. I don't think denial of gay marriage is fair, uniform, or unbiased.
EDITED: So, rather than dance around definitions, this is a question of 'equal justice under the law' and about fair application of 'due process of a law'.
quote:Originally posted by kmbboots: Don't care. Don't like it. So there.
The irony of that particular comment in this particular thread -- and from you in particular -- is making me !
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quote:Originally posted by Brother Carlotta: Javert, are you comfortable allowing the government to define words for you?
This is such a non-sequitor. Government doesn't define marriage, the word. They define a legal construct they call marriage. Specifically they outline procedures to enter into and exit from such a legal construct, and what sorts of government rights/responsibilities are incorporated in such a legal construct.
Of course, I doubt you'll even respond to this, like you haven't responded to others, which is rather poor form.
You seem to argue that a democratically elected government is the goal. It is the judicial tyrants that are the problem. If a democratically elected government defines something wrong, we can always elect new people to define it correctly.
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quote:Originally posted by Dan_raven: Besides Brother Carlotta,
You seem to argue that a democratically elected government is the goal. It is the judicial tyrants that are the problem. If a democratically elected government defines something wrong, we can always elect new people to define it correctly.
But what if the people or the legislature 'define' something is such a way that prevents us from removing them from office. I mean really, that is what Tyrants do.
If they attempt to pass law that is counter to maintaining a free and FAIR society, we need the power of the courts to slap them down. Neither the majority nor the Legislature is always right.
Again, the courts simply said the method used was unconstitutional, and in doing so, outlined the correct method from accomplishing the same thing.
Now the question is, will the citizen in general allow other citizen to modify the Constitution in a way that makes clear discrimination legally enshrined?
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quote:Originally posted by Brother Carlotta: In California, the CA Supreme Court intervened in the legislative process, to help pass a law that the majority of CA's citizens had expressed opposition to via referendum.
On the contrary. They passed that referendum 8 years ago. They more recently elected legislators who passed laws legalizing same-sex marriage. Given the fact that we live in a republic with representational democracy, this means that a majority of CA's citizens more recently expressed support for it.
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quote: This is such a non-sequitor. Government doesn't define marriage, the word. They define a legal construct they call marriage. Specifically they outline procedures to enter into and exit from such a legal construct, and what sorts of government rights/responsibilities are incorporated in such a legal construct.
Of course, I doubt you'll even respond to this, like you haven't responded to others, which is rather poor form.
Bokonon, please don't be vague. I've taken the time to reply to a number of individual responses. But in the spirit of civil discourse, let's continue...
I'm starting with your first post on this thread. You said:
quote: A) You know that the California Supreme Court ruled based on the CA state constitution, not the US constitution?
B) What do you say about the gov. of CA vetoing several attempts of the legislature to pass a law extending marriage to same-sex couples in prior years?
BTW, does this mean that we should decry justices from overturning Roe v. Wade, since that is the current law, and to do so is unfair judicial review?
-Bok
Let me start with your last point first. You asked whether we should decry justices were they to overturn Roe v Wade. Of course, if I argue that we should not decry such justices, you will use that as proof that I'm just picking and choosing where judicial review is ok (namely, when I agree with the verdict), and where it is wrong (namely, when I disagree with the verdict).
Unfortunately, Roe v. Wade was also a case of judicial activism--it struck down existing state laws based on a capricious interpretation of the emanations and penumbras of the constitution (as that same court said in justifiying its decision in Lawrence v. Texas). So it's difficult to say whether a court should be allowed to undo its own judicial activism by more judicial activism.
Let me give you a hypothetical, though. Let's say that in 1901, Minnesota's legislature introduced a very progressive law that legalized abortion. Now, ask me if I think the MN supreme court should be able to overturn that law for its unconstitutionality. Go ahead...
No. Although in some people's minds good would be accomplished by such a decision, it is the WRONG branch of government to make that decision.
But unfortunately, I think I am dreaming of a pre Marbury v. Madison country, when we are living in a country that has already gotten in bed with Judicial review. Perhaps there is no middle ground, as your questions seems to suggest, between unlimited power of judicial review and no power of review whatsoever.
But, for further reading, let me point you to an article I read in the Yale Law Journal. It's a bit long (44 pages online; the pdf is much longer, but if you ignore the footnotes, it's the same as the online version).
This is my way of copping out of answering your remaining questions directly. If you decide to read the Yale article, I think you will find the theory behind your questions addressed.
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I'm not, but I'm wondering if he/she (Are you a chick or a dude?) is a plant from my side. Given the weakness of BC's arguments anyway...
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The court ruled that the referendum was overruled by the State Constitution, which has more force of law (this has been covered several times by other posters in this thread). In other words, even if it is the will of the people, they can't violate their own Constitution. If that many of them really feel that strongly about it, they need to change their state constitution, at which point it is put above the reach of the courts, and they will have to enforce it, like many other states have done.
I really don't get the big deal. If they don't support it, get a Constitutional amendment passed. If the courts aren't allowed to partake in Jucidial Review, then what part of checks and balances are they serving? It would seem that Congress could pretty much do whatever they want so long as they can outvote a veto, even violate the Constitution. Surely you aren't arguing that, or what point is there in even having such a document?
The system we have in place really is a good one. If the legislature, or a referendum from the people that has the same power as a legislated law, is against the laws of the Constitution, the courts will strike it down, but that's not the end of the story, they can still get a Constitutional amendment passed.
Do I think judicial review as it is often practiced today is always right? No. But from the very start, two people have been able to look at the Constitution and have two differing points of view as to what it means, and that hasn't changed. But I still think that even with a system that gets it wrong from time to time, it's necessary to have that check over the Executive and Legislative branches to guarantee our freedom.
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The phrase "great news" has lost its meaning if it can be applied to the California Supreme Court's decision to overturn a law that was passed by the people of California. How is it great news that the people had their power circumvented by judges who are appointed--not elected, nor accountable in any way to the people of California?
Your introduction reveals your ignorance of the underpinnings of our entire constitutional system. The CA supreme court is in place to provide a check against the law. That means, we pass a law, and it can be challenged in court against our constitution. That judgment, based on the interpretation of our constitution, is supreme. That is why if you want to ban gay marriage in California, (an act of such gravity that it should require a constitutional amendment to pass, according to the courts) then you must ammend the constitution. The people DO have the final say. Those judges are appointed according to our laws, and those laws we can vote on.
I'm sorry for jumping in late with a response to the OP, but the deep ignorance displayed here is appalling. No matter your personal beliefs, you don't understand the law, you don't understand the constitution, and you should.
As for Judicial review, this process is also adressed by our STATE constitution. Your arguments about federal law do not apply to matters of the state.
quote: Why does it matter whether the Courts or the Congress decides, as long as they make the right decision? In a word, Democracy. We pledge allegiance to "the Republic", a representative form of Democracy. "We the People" chose that form of government, in retaliation to a tyrant monarch who demanded unquestioned allegiance. We do not pledge allegiance to "the Oligarchy" (rule by a few), and thank God that we don't!
And finally. We live in a limited constitutional republic. We do not live in a pure democracy. Your argument, ironically, works better against your point than for it. Your interpretation of the social and political history of the United States is deeply flawed. In fact, we began the adventure of nationhood because of the actions of a very select few, in a very non-democratic fashion. We have never, as a nation, maintained such an illusion that we rule ourselves democratically in all matters. If we did, then civil rights legislation, the end of slavery, the repeal of anti-miscegenation laws, would never have been passed, as they were, in all cases, enacted against the will of unified groups of Americans, and carried out consciously in the name of universal human rights.
posted
Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
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quote:Originally posted by Brother Carlotta: Originally said by Bokonon:
quote: This is such a non-sequitor. Government doesn't define marriage, the word. They define a legal construct they call marriage. Specifically they outline procedures to enter into and exit from such a legal construct, and what sorts of government rights/responsibilities are incorporated in such a legal construct.
Of course, I doubt you'll even respond to this, like you haven't responded to others, which is rather poor form.
Bokonon, please don't be vague. I've taken the time to reply to a number of individual responses. But in the spirit of civil discourse, let's continue...
I don't believe I was vague at all. Thank you for responding though.
quote: I'm starting with your first post on this thread. You said:
quote: A) You know that the California Supreme Court ruled based on the CA state constitution, not the US constitution?
B) What do you say about the gov. of CA vetoing several attempts of the legislature to pass a law extending marriage to same-sex couples in prior years?
BTW, does this mean that we should decry justices from overturning Roe v. Wade, since that is the current law, and to do so is unfair judicial review?
-Bok
Let me start with your last point first. You asked whether we should decry justices were they to overturn Roe v Wade. Of course, if I argue that we should not decry such justices, you will use that as proof that I'm just picking and choosing where judicial review is ok (namely, when I agree with the verdict), and where it is wrong (namely, when I disagree with the verdict).
Unfortunately, Roe v. Wade was also a case of judicial activism--it struck down existing state laws based on a capricious interpretation of the emanations and penumbras of the constitution (as that same court said in justifiying its decision in Lawrence v. Texas). So it's difficult to say whether a court should be allowed to undo its own judicial activism by more judicial activism.
Let me give you a hypothetical, though. Let's say that in 1901, Minnesota's legislature introduced a very progressive law that legalized abortion. Now, ask me if I think the MN supreme court should be able to overturn that law for its unconstitutionality. Go ahead...
No. Although in some people's minds good would be accomplished by such a decision, it is the WRONG branch of government to make that decision.
But unfortunately, I think I am dreaming of a pre Marbury v. Madison country, when we are living in a country that has already gotten in bed with Judicial review. Perhaps there is no middle ground, as your questions seems to suggest, between unlimited power of judicial review and no power of review whatsoever.
But, for further reading, let me point you to an article I read in the Yale Law Journal. It's a bit long (44 pages online; the pdf is much longer, but if you ignore the footnotes, it's the same as the online version).
This is my way of copping out of answering your remaining questions directly. If you decide to read the Yale article, I think you will find the theory behind your questions addressed.
Fair enough, I'll check it out at some point. That said, I further on withdrew my Roe v. Wade example, realizing that it didn't make the point I was trying to make.
quote:Originally posted by Orincoro: Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
You mean the California Supreme Court was established over a hundred years ago specifically to guard against the gay marriage law?
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Thank you Bokonon! Whenever there is a book exchange, there is love. Now I just need your book. :-)
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I would have liked the court to have mentioned the difference in ability to procreate between heterosexual couples and homosexual couples- even if it was to dismiss it. For example, just tossing in a line that due to the number of adoptions and in vitro fertilization, a gay couple can still have a child and therefore rights based on providing a stable household for potential children should apply equally to them as well. I just would like to feel like they had looked at that difference and then discounted it. Other then that, I'm fine with the decision. Though I am pretty cool with activist judges in general- things like brown v board are good for society.
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scholarette: Their argument wasn't related to any capabilities of marriage, but about discrimination protections in the California constitution. No matter how much being able to provide a stable household for potential children might be possible for gay couples, that is not something for the courts to decide to grant the right to marry based on.
I mean, there are lots of combinations of people that would provide stable households for potential children that aren't allowed to marry, and lots of people who can't provide stable households for potential children who marry (frequently, in some cases).
It would definitely be an argument I would expect to (and know has) come up in legislative arguments on the topics of marriage and adoption, but, again, it isn't even vaguely in the realm of things a court would or should consider when deciding if same sex couples have marriage rights.
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hmm interesting argument against the "Marriage = Produce Kids" argument.
Sue and Sally are a couple. Sally gets pregnant. How? In-vitro or cabana boy after one too many Margaritas. (Sally is Bi) It does not matter to Sue, who loves Sally and will help raise the child as her own.
Joe and Lucy are a couple. Lucy gets pregnant. How? In-Vitro or cabana boy after one too many Margaritas. It does not matter to Joe, who loves Lucy and will help raise the child as her own.
Does the fact that Joe is not the biological father disqualify the marriage of him and Lucy? No.
So why should it disqualify the marriage of Sue and Sally?
And if you let two women get married, isn't it a violation of equal rights not to also let two men get married?
I mean Bill and Peter are a couple, but Peter is bi and a cabana boy. He may have children to bring home too.
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quote:Originally posted by Orincoro: Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
You mean the California Supreme Court was established over a hundred years ago specifically to guard against the gay marriage law?
Do you mean to be obtuse?
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quote:The CA supreme court is in place to provide a check against the law.
quote:Originally posted by Orincoro: Thanks for clarifying, I meant to refer to "the law" in the singular, as in, this specific law, and its precedence over other already existing laws and statutes.
=
The CA supreme court is in place to provide a check against this specific law, and its precedence over other already existing laws and statutes.
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posted
Total sillines. You can't actually imagine that's what Orincoro meant, so let's not split hairs and play gotcha while there are substantive discussions to be had.
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