To play devil's advocate, the spirit and original intent of of the 14th Amendment was to stop racial discrimination. Also, do we really want our courts to be making the law when there is no explicit language in the Constitution discussing the issue of marriage? In Roth, for example, the court chose to interpret a law loosely that is written absolutely. In Roe, they fashioned a right that they acknowledged wasn't in the spirit or intent of the Fourteenth Amendment, but claimed it was in the periphery. Do we really want to go through the courts and encourage judicial activism when there are legislative mechanisms in place to change the Constitution? Is it a good thing to leave a decision like this in the hands of a few people rather than to leave it to popular vote and officials who were elected by popular vote?
The evolution of equal protection is an example of the "living document" interpretation of the Constitution. You're right in that you won't find any specific language in the original text of the 14th Amendment that specifically extends any sort of specific protection to any specific minority. It does, however, require that states provide equal protection under the law to all people in the state. The cases have evolved to the point where the Court applies three different levels of scrutiny to state action based on whether the action affects a suspect class. I wouldn't be surprised at all if, when this case is reviewed by the Supreme Court, they will find that sexual orientation is a suspect class like race or national origin and use strict scrutiny to review Prop 8, under which scrutiny it would most certainly fail.
The thing that really gets me about the California Supreme Court decision is that, while it appears to protect the status of the marriages that took place between the first decision and the passage of Prop 8, it doesn't say anything at all about what would happen if one of those couples decided to get divorced. Could they then remarry someone else of the same sex or are they banned under Prop 8? What if they divorced and then wanted to remarry the same person? Would that be okay? The decision doesn't give any guidance whatsoever.
I understand your point about the possible greater desirability of this type of thing being left wholly to the electorate. The problem is that the majority is not always right. As Nuri said, if the solution to the Civil Rights crisis in the 60s were to leave it up to the electorates in Mississippi, Alabama, Arkansas, and places like that, there's no question that we'd still have state enforced segregation to this day. Also, majorities can change. It's easy to imagine how a majority of, say, ethnically Italian people in State A could pass a law discriminating against the ethnically Irish; but, through the passage of time, see their majority status pass from them as the result of immigration, birth rate, etc., only to have a new Irish majority reverse the law and write a new one that discriminates against the old Italian Majority. Does that sound like good government?
There is the right of the partner to see/care for/be responsible for the children, to have access to their medical and government files, to be legal guardians and stewards of the children's possessions and estates, to be liable for legal damages caused by the children, to be held culpable for providing necessities to the children, to be proponents of the child's legal rights, to have the right to discipline a child....
Absolutely true. There are things like inheritance to take into account as well. How do you prove that you have a right to part of an intestate decedent's estate? If you were born during the decedent's marriage, you're golden. If you weren't, you're going to have a significant proof problem even assuming that your state allows for such succession.
Proof and the ease thereof would be at least one answer I'd give to Mrs. MacRoss and Apreche. Even if there is a law that allows for, say, a natural father to see his child's school records, how are you going to prove that this person is the natural father? Of course it's much, much easier to prove paternity through DNA testing these days, but it's still non-trivial while proof or marriage is trivial. I can go see my spouse in the ER if she's injured and all I have to do is say that she's my spouse. If I had to prove that she's my "significant other", it would be a lot more difficult.
I don't think we're in any danger at all of the right to marry proving to be too "antiquated" a concept. If we were at that stage, then people wouldn't be fighting so hard to have that right.
Why is "marriage" a legal contract? Shouldn't everything be civil unions and only religious institutions can recognize or sanctify a marriage?.
Yes. This. The only reason it's not like this right now is tradition. It's much more of a pain in the ass to CHANGE our laws and practices than it is to make new ones. Legal benefits should be attached to the government contract, which should be the same for all. Religions can put whatever vestiges they want on top of that contract, but the religious status should not confer legal rights.
@Joe: Let's not forget that biological paternity does not always equal legal guardianship. Adoption would fuck that system right up.
@Joe: Let's not forget that biological paternity does not always equal legal guardianship. Adoption would fuck that system right up.
I didn't say that it did. I said
Even if there is a law that allows for, say, a natural father to see his child's school records, how are you going to prove that this person is the natural father? Of course it's much, much easier to prove paternity through DNA testing these days, but it's still non-trivial while proof or marriage is trivial.
It was a hypothetical about a hypothetical law that allowed for a natural father to see his child's school records. I didn't say that this is the actual reality in any state.
Please forgive me if you think this is too trivial or pedantic. I just don't want anyone to think that I meant to imply in any way that paternity = guardianship in real life.
As far as adoption goes, have you ever done one? That process is REALLY non-trivial. Marriage makes it so, so much easier. A child born during the marriage is presumed to be the husband's child. Done. It's so simple.
I wasn't arguing with you; I was just adding that it's another reason that DNA paternity tests wouldn't be a good method for determining inheritance. I was AGREEING with you.
Many of my friends have adopted and several of my family members have as well. I personally, being single, 24, and about to resume school, have not. I know it's a pain in the ass. Especially when you have 4 kids already, you adopt 4 more...and then the government freezes your company for 2 years to audit it and your crazy wife leaves you. But I think that's a specialized circumstance. I have a somewhat bitter perspective on adoption.
He figured that if banning gay marriage would protect marriage people should also want to ban divorce.
I guess the murder rate will go up in California if it passes. *chirp chirp*
Pardon my sense of humor. I'm terrible at telling jokes. What good will this do? There are genuine cases for divorce. Are people so short-sighted that they show no concern for victims of abuse, male or female?
He figured that if banning gay marriage would protect marriage people should also want to ban divorce.
I guess the murder rate will go up in California if it passes. *chirp chirp*
Pardon my sense of humor. I'm terrible at telling jokes. What good will this do? There are genuine cases for divorce. Are people so short-sighted that they show no concern for victims of abuse, male or female?
Your sense of humor needs electric shock treatment. Go look at his website, and then re-evaluate how you have totally missed the point.
"What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?"
"Since when do Constitutional rights rest on the proof of no harm?" Walker parried, adding the First Amendment right to free speech protects activities that many find offensive, "but we tolerate those in a free society."
Walker pressed on, asking again for specific "adverse consequences" that could follow expanding marriage to include same-sex couples. Cooper cited a study from the Netherlands, where gay marriage is legal, showing that straight couples were increasingly opting to become domestic partners instead of getting married.
"Has that been harmful to children in the Netherlands? What is the adverse effect?" Walker asked.
It's looking like good old Prop 8 is very likely going to be overturned by the end of all this.
Oh, is that the good old 9th Circuit Court? We should really just replace the supreme court with them. Heck, replace all courts with them and let them pick the judges for all the lower courts. Heck, I wish some judges from there would run for president or something.
Some one may have already posted it but... Where is it printed on paper in legal language that marriage is a right? I see everyone hung up on how it's a right; and yet, I fail to see anything printed about marriage in the US constitution.
EDIT: I also fail to see where any court has the right to overturn the will of the people.
Some one may have already posted it but... Where is it printed on paper in legal language that marriage is a right? I see everyone hung up on how it's a right; and yet, I fail to see anything printed about marriage in the US constitution.
EDIT: I also fail to see whereanycourt has the right to overturn the will of the people.
Marriage isn't a right, but equal protection is.
If you make a law that grants benefits and privileges to two adults who agree to sign a legal contract, you have to allow any two adults. To limit by gender, race, or even religion, is not equal protection.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
When they wrote the bill of rights, they made 9 amendments that gave people nine sets of rights. But by listing rights in such a way, it could be assumed that people only have the rights that are listed, and don't have any rights that are not listed. Thus, the tenth amendment basically says that the states and the people have more rights than just the ones that are listed in the Bill of Rights and/or the constitution. Do not assume just because they did not explicitly list a right in the constitution or its amendments that the right does not exist.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If it's reserved to the people then the people have spoken.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If it's reserved to the people then the people have spoken.
That same argument could have (and was!) employed against civil rights for women and black folks. What's popular is not always right, and that's what the Supreme Court (and in this case State Supreme Courts) are there for.
If it's reserved to the people then the people have spoken.
Or the state, which will be decided by a judge. Also, majority rules, minority rights. Even if everyone in the country voted to take free speech away from say, Jews, that wouldn't fly.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If it's reserved to the people then the people have spoken.
That same argument could have (and was!) employed against civil rights for women and black folks. What's popular is not always right, and that's what the Supreme Court (and in this case State Supreme Courts) are there for.
And those same arguments were addressed via a Constitutional amendment not a court.
Nothing beats a constitutional amendment except another constitutional amendment. The newest amendment always "wins" if it conflicts with an older one.
Nothing beats a constitutional amendment except another constitutional amendment. The newest amendment always "wins" if it conflicts with an older one.
Are CA propositions analogous to Constitutional amendments?
Comments
The thing that really gets me about the California Supreme Court decision is that, while it appears to protect the status of the marriages that took place between the first decision and the passage of Prop 8, it doesn't say anything at all about what would happen if one of those couples decided to get divorced. Could they then remarry someone else of the same sex or are they banned under Prop 8? What if they divorced and then wanted to remarry the same person? Would that be okay? The decision doesn't give any guidance whatsoever.
I understand your point about the possible greater desirability of this type of thing being left wholly to the electorate. The problem is that the majority is not always right. As Nuri said, if the solution to the Civil Rights crisis in the 60s were to leave it up to the electorates in Mississippi, Alabama, Arkansas, and places like that, there's no question that we'd still have state enforced segregation to this day. Also, majorities can change. It's easy to imagine how a majority of, say, ethnically Italian people in State A could pass a law discriminating against the ethnically Irish; but, through the passage of time, see their majority status pass from them as the result of immigration, birth rate, etc., only to have a new Irish majority reverse the law and write a new one that discriminates against the old Italian Majority. Does that sound like good government? Absolutely true. There are things like inheritance to take into account as well. How do you prove that you have a right to part of an intestate decedent's estate? If you were born during the decedent's marriage, you're golden. If you weren't, you're going to have a significant proof problem even assuming that your state allows for such succession.
Proof and the ease thereof would be at least one answer I'd give to Mrs. MacRoss and Apreche. Even if there is a law that allows for, say, a natural father to see his child's school records, how are you going to prove that this person is the natural father? Of course it's much, much easier to prove paternity through DNA testing these days, but it's still non-trivial while proof or marriage is trivial. I can go see my spouse in the ER if she's injured and all I have to do is say that she's my spouse. If I had to prove that she's my "significant other", it would be a lot more difficult.
I don't think we're in any danger at all of the right to marry proving to be too "antiquated" a concept. If we were at that stage, then people wouldn't be fighting so hard to have that right.
@Joe: Let's not forget that biological paternity does not always equal legal guardianship. Adoption would fuck that system right up.
Please forgive me if you think this is too trivial or pedantic. I just don't want anyone to think that I meant to imply in any way that paternity = guardianship in real life.
As far as adoption goes, have you ever done one? That process is REALLY non-trivial. Marriage makes it so, so much easier. A child born during the marriage is presumed to be the husband's child. Done. It's so simple.
Many of my friends have adopted and several of my family members have as well. I personally, being single, 24, and about to resume school, have not. I know it's a pain in the ass. Especially when you have 4 kids already, you adopt 4 more...and then the government freezes your company for 2 years to audit it and your crazy wife leaves you. But I think that's a specialized circumstance. I have a somewhat bitter perspective on adoption.
British Government issues official apology for the treatment of Alan Turing
He figured that if banning gay marriage would protect marriage people should also want to ban divorce.
*chirp chirp*
Pardon my sense of humor. I'm terrible at telling jokes. What good will this do? There are genuine cases for divorce. Are people so short-sighted that they show no concern for victims of abuse, male or female?
http://www.fark.com/cgi/comments.pl?IDLink=4701067
From the article: It's looking like good old Prop 8 is very likely going to be overturned by the end of all this.
EDIT: I also fail to see where any court has the right to overturn the will of the people.
If you make a law that grants benefits and privileges to two adults who agree to sign a legal contract, you have to allow any two adults. To limit by gender, race, or even religion, is not equal protection.
Can SCOTUS overturn a Constitutional amendment?