I agree fully. When the Supreme Court decides that it will become a political branch, it loses its right to say that it is not political. Whether gays should be permitted to marry, abortion should be legal, the death penalty is a permissible punishment for child rapists, or whether 17 year olds should be sentenced to life imprisonment and for what crimes are all issue which should be fought in state legislatures across the country.
There is simply no sound constitutional basis upon which to rest decisions on these issues, either for or against. To view the Fourteenth Amendment as broadly as some view it simply relegates every question to these nine lawyers. If they think the law is good, then it does not violate the 14 part test that we ourselves made up. If the think the law is bad, then whomever the law disfavors is not granted “equal protection” of the law because those people cannot do what they want when others can.
Judicial activism makes the Court political, and as you said, if they are going to be political, then the other branches have every right to get members of their side appointed.
We kind of did this one to death in the various SSM threads.
Mixed race marriages are marriage, by the legal definition of marriage (as it existed in the common law, before the judicial activism that changed the law by fiat). Same sex “marriages” are not.
I think this comes down to a misunderstanding of the nature of the Constitution. The Constitution does not establish all the rights of the people. It enumerates those of the rights of the people that are under the protection of the federal government. The rest of the rights are established by the states, or the people themselves. See the Tenth Amendment where it says so.
The right to marriage is not created or established under the Constitution. It exists because the law establishes it. The law that establishes marriage defined it and of what it consisted. See Loving v. Virginia, where it states that marriage is “the union of one man and one woman” within limits of consanguinity. So marriage by definition excludes SSM. SSM is not what “marriage” means.
The Equal Protection clause states that the law may not be applied so as to deny protection to one kind of person (certeris paribus). No person was denied the equal protection of marrage laws before SSM was established, mostly by judicial activism, because no one was denied the right to enter into the union of one man and one woman. There was, by and large, no law that established the right to the union of two men or two women, and therefore no one was being denied to enter into such a union. So no equal protection was being denied.
What happened was that the Supreme Court changed the law so as to define marriage so that it was no longer the union of one man and one woman, but of two men or two women, and to claim that a right to marriage however they chose to define it existed. Courts are not there to change laws or make up rights. That power is assigned by the Constitution to the states or the people. And as mentioned, many states very explicitly held referenda to make it clear that the people of that state did not choose to change the law. The decision to impose SSM was thus clearly illicit.
The Supreme Court has said that they are the master. That’s all.
It isn’t about a constitutional right to marriage - and yes, we have gone over that to death, but you persist on misunderstanding it - it’s about a right to equal protection of the laws. That’s it. That’s all. Nobody is redefining anything.
Just to be clear, the constitution does not enumerate those rights. It enumerates some of those rights. As I’m sure you know, one of the main objections to the BoR was that it would be seen as an exhaustive list. And, a further nitpick… the constitution does not “establish rights”. It recognizes rights that exist, constitution or no.
I think it’s important to not fall into the kind of thinking where the constitution grants us rights, and if they aren’t “granted”, then we don’ have them.
Actually, the current politicization of SCOTUS is largely a recent occurrence. Beginning in 1956, the ABA began rating nominees and the Senate largely took its cues from the ABA. Over time, Republicans began to see the ABA as biased and GOP senators stopped listening to it; eventually, the Bush (II) Administration stopped cooperating with it entirely on its nominations. There is probably some truth to the suggestion that the ABA rating committee was biased, for whatever it’s worth.
Presumably you disagreed with SCOTUS when it found a constitutional right to self-defense that is not mentioned anywhere in the Constitution? Though I don’t remember you doing that.
It’s had many definitions over many generations and over our many cultures. That’s something else we’ve done to death, and which you also persist in misunderstanding.
The right of all persons to *equal *protection of the laws has been codified in the US Constitution for a century and half, and the right to due process of law has been there even longer. We continue to realize, periodically, however, that those rights has been suppressed for specific groups of persons without a rational basis, and we therefore realize that that suppression of those rights must cease. That’s what’s happened here. This is just another in a long series of such realizations, and it won’t be the last, either, although we someday yet meet the principle we set for ourselves.
That means nothing without a mechanism to protect them, making it one of the roles of government. That does indeed count as “establishing rights” in the real world.
It depends on what you mean by “quite recently”. It was the definition under English common law, throughout the whole history of the US, especially when Utah was admitted as a state, and at the point when Loving v. Virginia was decided, DOMA was passd, etc.
The question being, who changed the definition, and did they have the authority to do so? If you believe saying that “one man and one woman” means “two men, or two women” is interpretation, then it is pretty much meaningless to say that the Constitution says anything at all.
One man and one woman means two men, up is down, black means white, war is peace, and, especially, ignorance is strength.
Society did. Or the majority of it, with some holdouts. And yes.
It *does *say “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” *Any *person. How is that a persistent problem for you?
If by “society” you mean “the courts”, then you are right. But the courts, as explained, don’t have that power.
It isn’t a problem for me. It is a problem for those who claim that there was some law whose equal protection was being denied to citizens. Who was being denied the opportunity to enter into a union of one man and one woman?
You don’t seem to understand what a filibuster is. It is an attempt to block a vote on a nominee. 25 Senate Democrats voted against taking a vote on Alito’s nomination. That is not generally giving a nominee grief, that is preventing a vote. There is nothing in the constitution about giving a nominee hearings and for the first hundred years of our country there were no hearing on the nominees. There is no real difference between not holding hearings on a nominee and filibustering the confirmation vote. Both are attempts to prevent a vote on a nominee and to keep a nominee off the court. Obama, Hillary, and Biden all voted to prevent the Senate from taking a vote. There is no way to pretend that Democrats are any different or if the shoe was on the other vote would act in any different way.
The Supreme Court was meant to defend the constitution not the minority position, there is nothing in the 14th amendment about gay marriage.
The definition of the word marriage changed (or expanded, really) because, in language, usage defines definition. If lots of people include gay couples when they use the word “marriage”, which really has happened over the last several years, then the definition of the word in the English language has changed. The dictionaries have, rightly, noted this change.
The law excluded an entire class of people solely because of that class. Marriage is not just a religious/romantic endeavour, it also comes with significant legal privileges. The definition of marriage that you quoted highlights that problem. That law had a definition of marriage that excluded a large swath of American citizens, which violates the Equal Protection Clause.*
But, honestly, we’re veering off thread’s topic here.
*Obviously the Court’s reasoning was more complicated (a huge factor in the majority’s EPC analysis was the evolution of gays as a suspect class. Plus we’re not even discussing their invocation of substantive due process.
