“The will of the people is that there be no same-sex marriage!”
“Oh, yeah? Well, the Fourteenth Amendment says otherwise, pal!”
“No, it doesn’t! Do you honestly think that if the Fourteenth Amendment had been proposed including the explicit words, ‘…and no state shall deny any two person the right to marry on the basis of their both being the same sex…’ that it would have passed? Of course not! The Fourteenth Amendment never meant that, because the people that passed it didn’t mean that, so same-sex marriage is NOT the will of the people!”
[ul][li]California law restricts marriage to man/woman.[/li][li]Aggrieved California gay couples ask courts to overturn law, claiming it violates state constitution.[/li][li]California courts overturn law, saying that the California state constitution provides for equal protection, so that law is invalid.[/li][li]California voters say, “No, that’s NOT what the California Constitution says. Here, I’ll make it crystal clear. No gay marriage.”[/li][/ul]
At that point, the courts in California are stuck, they can interpret their own constitution broadly, but not so broadly as to erase the plain command of a just-passed amendment.
So now the attention is turned to the federal courts: [ul]
[li]Aggrieved California gay couples ask federal court to erase California constitutional provision because the federal constitution forbids it.[/li][li]Federal court does so.[/li][li]Aggrieved opposition appeals, asking higher federal court to undo decision.[/li][/ul]
Marriage is a public act. The idea is to force the government to recognize same-sex marriages.
Gay people can live together, marry each other in churches or temples or synagogues, etc. But that has no force of law. The propoents of SSM are saying that the government has to issue marriage licenses to gay couples, pay the survivor Social Security benefits, make them go thru divorce court and abide by community property when they split up, and so forth.
No, just the opposite. The people of the state of California want the government to do nothing to recognize or establish gay marriage.
If you are favor of limited government, and the people tell the government “Don’t do this” and the government goes ahead and does it anyway, then you no longer have limited government.
A citizen can do whatever he likes if it’s not illegal.
But this doesn’t involve citizens. Any two citizens may hold a ceremony and declare to themselves they are married. Any ten citizens may do likewise.
This is a law about what the government may do. The government needs a law before it can do things. To marry anyone, the government needs a law authorizing it to do so.
First the law, then the court decision overturning the law, then Prop 8. Please try to keep up. The impetus to passing Prop 8 was the California courts’ ruling that same-sex marriage was required by the state constiution.
If I’m reading you right here, you don’t merely have a problem with the merits of the case, you don’t think the federal courts explictly have the power to be the final arbiter in determining whether the people of California are correctly interpreting federal law. If so, your beef isn’t with the current decision - it’s with Martin v. Hunter’s Lessee, 14 U.S. 304 (1816).
In a Republic, all citizens should receive Equal Protection under the law, regardless of whatever sub-classification they fall into, unless those rights/protections have been stripped from them due to cause, and only after due process.
That means that gays should have every right to marriage (or “civil unions” which provide all the same material benefits of a classic man/woman marriage) under the law, without some special law/amendment essentially saying, “Yes, that means gays, too.”
I’d still like to know if any proponent of Prop 8 seriously thinks SSM isn’t 100% slam-dunk inevitable on a nationwide basis? That this will eventually come to be, and that history will look upon them the way we look those who fought for “racial purity” when trying to prevent interracial marriage? Everyone does know this by now, correct?
[ul]
[li]The American People adopt the US Constitution, including Due Process under the 5th Amendment[/li][li]The US doctrines regarding judicial review are solidified by law[/li][li]California adopts a California constitution[/li][li]California becomes a state, subject to the US Constitution[/li][li]The American People adopt the US 14th Amendment, applying due process and equal protection to feds and states. At this point, SSM is a federal right, enshrined in the US Constitution.[/li][li]California scraps its state constitution in favor of a new one, which includes California due process, California equal protection, and California judicial review. At this point, SSM is a California right, enshrined in the California Constitution.[/li][li]New California law restricts marriage to man/woman in an effort to remove a constitutional right to SSM.[/li][li]Aggrieved California gay couples ask courts to overturn law, claiming it violates state constitution.[/li][li]California courts overturn law, saying that the California state constitution provides for equal protection, so that law is invalid.[/li][li]California voters say, “We don’t like what our California Constitution says, so we’ll amend it to strip people of their constitutional right to SSM.”[/li][li]The SCOCA says the people of California have the right to “amend” the state constitution to do that. [/li][li]Aggrieved California gay couples ask federal court to strike California constitutional provision because the federal constitution forbids it.[/li][li]Federal court does so.[/li][li]Aggrieved opposition appeals, asking higher federal court to undo decision.[/li][/ul]
The only way you can say you are for limited government in this situation is to want the government out of all marriages altogether. You want the government getting involved in who can and can’t get married- that’s bigger government.
You also want the government to have the power to kill its citizens and tell women what they can and can’t do with their bodies. Everybody uses the “smaller government” argument to apply only to things they disagree with. If it’s something they want, they’re all for it.
This looks like we will turn it into an endless “the chicken or the egg” thing, unless we agree to stop right here.
I should find that old quote about one of the functions of the constitution (and the law in general) being one of protecting minorities from the “opression of the majority”. One of my big beefs with Prop 8, aside from the usual and probably expected reasons, was that it got its strongest and most effective support from Utah Mormons.
It was pushed by PEOPLE FROM ANOTHER STATE
and it was pushed FOR RELIGIOUS REASONS.
They should stay in their own shit hole and mind their own damn business.
What the fuck. A phony cult started by a convicted swindler, based on some new book only he ever saw, readable only with magic lenses or something, and given by an angel no one had heard of before. What the fuck.
Yes, I am in favor of the death penalty. Roe v. Wade was another example of the federal government seizing the right to regulate abortion, instaad of leaving it to the states or the people, as the Tenth Amendment demands.
You dumb bitch.
The notion that “equal protection” means “gays have the right to marriage” is an example of people reading something into the text that isn’t there. The laws about marriage whose protection people are complaining about not having do not now, nor have they ever, meant gay marriage. That is a different kettle of fish.
If you want to establish gay marriage, you have to pass a law (or amend the Constitution and get it ratified). That’s how you establish something new.
You do not do it by having some judge make it up and stick it in the law. That is not what judges are for.
IANAL, and I am not really arguing that the people of California should be the ones interpreting the US Constitution. I was taking Bearflag’s assertion for granted and arguing based on that.
But let’s be honest here - the idea that the Fourteenth Amendment refers to gay marriage is not interpretation, it is interpolation. No federal law, no California state law, nothing in the English common law on which our common law was founded, ever made any suggestion that gay marriage was included in the laws about marriage. That is something the proponents of SSM made up and put in. Sure, they got some fool in a black robe to go along with it, in the teeth of the expressed wishes of the voters of California. That doesn’t make it legitimate.
I strongly disagree with you here. Please, let them crazify all over the TV screen. I feel that there are folks who are on the fence over SSM. On the one hand, they understand at some level the discrimination inherent in the system. On the other hand, their upbringing lets them justify the discrimination to themselves. I feel that showing them the sorts of people they’re allied with can sometimes give them a kick in the pants.
Hey, if the only thing you can say about gay marriage is that it makes big government, then fuck yeah, let the government get all big and huge and fat.
Because it is a better, more equal, more just government that is big and can enforce fairness on all people than a small, weak government that’s unintrusive for the sole sake of being unintrusive
I love big government when it can tell the shitheads to bend over and take some gay marriage up their ass! That’s my kind of government!
Not always. The argument can be that something is legal, it is allowed, precisely BECAUSE it was not forbidden, and that is a reasonable argument, UNLESS someone has a stronger argument.
The Constitution and Bill Of Rights is not all inclusive. It never was, it never will be, it can’t be. Same for all the constitutions and amendments of all the states. I understand that some of the Founders resisted the very idea of such a “Bill”, for fear that some might say ONLY those rights were protected. So, again, it is a reasonable and maybe a smart tactic to claim a thing is legal and allowed UNLESS it was expressly forbidden. So, it becomes a case of NOT reading something that isn’t there, is exactly what “gives permission”. You seem to be saying we can’t allow something by not reading what isn’t there. That would mean almost everything is illegal unless a law is written to allow it.
You don’t need a law on the books to tell you you’re allowed to go to a baseball game for example.
Here’s a simple example. Lots of people used to think, and some still do, that drinking is icky. It’s The Devil.
But, to stop it, a law (Volstead Act) had to be enacted. Shitty law, but whatever. According to your argument here, drinking would have already been illegal, and people would have to pass “the antiVolstead” in order to start drinking.
