At the time the 4th Amendment was adopted, there was no federal, state, or common law saying search & seizure protections apply to the trunk of an automobile, yet the general principles of the 4th Amendment have been interpreted to so apply well after the 4th Amendment was adopted.
I understand that position - no joke, I really do. It’s legally defensible. Nevertheless, I still take the contrary view, strongly, and strongly disagree that the Judge was a fool to rule as he did. By the same token as saying nothing in the law previously contemplated gay marriage, there is nothing to indicate that desegregated schools or interracial marriage was ever contemplated in the law prior to Brown and Loving, and much to indicate that it very much was not. There’s even a argument that there was nothing in the law to ever indicate that the Equal Protection clause applied in any way to anyone other that freed slaves and their immediate descendants. Flogging and branding wasn’t considered cruel and unusual punishment early in the history of the United States, but few would argue that it hasn’t come to be considered so through evolving standards or decency.
I firmly support a Constitutional amendment stating that no person will ever be forced into a gay marriage. If that’s the sticking point, I think we can put your mind at ease.
I shudder to think what other rights “the people” would gleefully strip away, and from whom, given the chance to vote on it.
By the way, I feel a bit bad you felt you had to include the IANAL part. I would never want to throw my degree around or thump my chest with it, I just misunderstood your position. So long as you come correct with the law, I honestly don’t care if you’re a lawyer or not.
Does the government not already have a law authorizing it to marry people?
No new law is necessary is it?
The court simply said you (California govt.) cannot further your reach by selecting who you will apply the existing law to - but I’m obviously not a lawyer so tell me where I’m off track here.
Well yes. But. It matters how you describe things here. If I hop into a handy time machine and transport myself back to the congressional proceedings which passed the 14th Amendment and poll congressmen on whether they thought that it establishes a right for sodomites to marry each other, I would expect them to be aghast that I would even ask such a thing.
However, if I were to poll them on whether they thought that the 14th forbids the government from denying marital status to an unpopular minority who want nothing more than to establish families in the same fashion that the majority take for granted, then I would expect a somewhat different response. 19th century legislators would have universally held factually incorrect views regarding the nature of homosexuality. Surely we ought to understand the will of the people who passed the 14th Amendment in terms of the principle they were seeking to enshrine rather than their false beliefs about human psychology.
Saying that a shipping trunk is protected against unreasonable searches and an automobile trunk is as well is applying a general principle to two virtually identical cases. This is because the definition of “trunk” is the same in both. The definition of “marriage” does not include same-sex marriage. For that reason this -
is incorrect. The definition of marriage that Loving used as definitive says explicitly that marriage is the union of one woman and one man. That’s what the word “marriage” means. Therefore, that’s what all the statutes about marriage are about, and why gay marriage is not an equal protection issue.
There is no law establishing gay marriage, and therefore no one is being denied the equal protection of the laws.
Your statement does you honor, but I never got the impression that anything like this was the case.
See what I said earlier - marriage is a public act, and the push for SSM is a push to get government to recognize SSM.
The Constitution is a restriction on the scope and activity of government. For government, it is as you describe - “whatever is not mandatory is forbidden”. Not for citizens - they can do anything they want. The government is empowered to protect certain of our rights - those specifically mentioned in the Constitution. This does not disparage other rights - the government may not act either to assist or restrict those rights. You have the right, as you say, to go to a baseball game. The government may neither stop you from going, nor buy you season tickets. The government takes no action in that case, because the Constitution says nothing about baseball. (You have the right not to be robbed or kidnapped by other citizens, so they can act if someone tries to stop you from going to baseball games, but that is not about a fundamental right to baseball.)
As we’ve seen, there is no law on the books establishing SSM. The “right to marry” specifically excludes SSM. Therefore, the government may not act either to assist or restrict SSM - they cannot restrict it if a gay couple wants to live together, marry in a church, etc. Government may also not assist it by issuing marriage licenses, paying SS benefits to survivors, etc.
The way to properly establish SSM is set up in the Tenth Amendment, which reserves all powers not explicitly assigned to the federal government to the states or the people. That means (to me) that the people either amend the Constitution, pass a referendum, or have their elected representatives pass laws establishing SSM. The federal government properly does nothing. It merely waits until the Constitution is amended, or acts to enforce the federal law, or (in the case of state action) does nothing.
It is perfectly legitimate for the states or the people to establish SSM if they want to. Unfortunately, that means it is also legitimate for the states or the people to act to prevent its establishment, which is what happened with prop 8.
It is not legitimate for the courts to stick SSM into the Constitution. It isn’t there, and it never was. Only the states or the people get to put it there.
Regards,
Shodan
Not a big supporter of the 9th Amendment, are you?
I’m pretty much resigned that gay marriage is going to happen on a widespread, if not
national level. My idea pragmatic preference is that ‘marriage’ be a religious &/or private ceremonial rite while the government only authorized civil unions/domestic partnerships. But even then, the following situations have arisen &/or will arise…
A church owns a piece of property that it rents out for various functions, not always religious. When it refuses to rent it out for a gay wedding, the church is sued for discrimination… successfully. (Had indeed happened).
Some Christians open a photography business. They turn down a request to rent their services for a gay wedding. They are sued for discrimination… successfully. (Also has happened).
Religious schools, radio/TV stations, bookstores, any sort of businesses or institutions which are religious in nature but not actual churches are going to be more liable for discrimation suits for either not hiring gays at all or not offering spousal insurance benefits to them.
The widespread legalization of gay marriage will inevitable be reflected in public education- sex ed, social studies, even down to elementary school storybooks. When
gay marriage is public policy, then Daddy’s Roommate and Heather Has Two Mommies will just be par for the course. Then, the long-threatened religious conservative pull-out from public schools may just happen, along with their time, effort & finances. ATLAS SHRUGGED may just play out in that realm first.
And that is how gay marriage may just impose on people who oppose it.
I am very much a supporter of the Ninth Amendment.
The Ninth makes it clear that there can be other rights not included in the Constitution. The Tenth makes it clear who has the power to bring those rights under the protection of the federal government. And it is not any of the branches of the federal government.
Regards,
Shodan
That’s not exactly what happened. Nobody was sued. A complaint was brought against the group to the New Jersey Division of Civil Rights because the group violated the law forbidding discrimination against gays and lesbians. And that was because the pavilion was a public accommodation. The church let anyone who wanted to use the pavilion use it. They even, in the past, took money from the state by saying that they were a public accommodation open to everyone who wanted to use it.
Again, that wasn’t a lawsuit, but a complaint against the New Mexico Human Rights Commission. And again, New Mexico has a law that says that businesses that offer service to the public can’t discriminate against people based on their sexual orientation, which that photography business did.
And in both those cases, the fact that commitment ceremonies were involved (not marriages, because neither New Mexico or New Jersey allow gay marriages) was incidental. If I tried to host my nephew’s birthday party on the pavilion and wanted to hire the New Mexico photographers to photograph it, and the two places said “Sorry, we don’t want you as a customer/having the birthday party there, because you’re gay”, they’d be equally in violation.
In all seriousness, Shodan, does anyone besides you advocate that this is precisely what the Ninth Amendment means?
I know there’s a school of thought that believes the Ninth Amendment was included to ensure that the enumerated rights would not be taken to mean that states could not guarantee other rights in thier own sovereign judgment. But that peculiar constriction put on the Ninth and Tenth together is something I’ve never seen from anyone but yourself.
This is not snark, by the way – I’m genuinely willing to learn that you know of learned writers I’m not familiar with who do advocate this view. That’s why I’m asking.
How about the right to a trial and a jury of your peers, the right to know the charges against you and the right to confront your accusers?
Have some secret court issue a secret arrest order for terrorism, go to GITMO, undergo a secret military tribunal, and then tell me about how fast The People will sell off YOUR rights (but not theirs).
Or how about the real idiots who want to “take back their white christian America”? Their kind of white, and their kind of christian.
There’s some scary shit out there. That’s The People. I may bitch about “the law”, but without the law there is only the mob.
Thanks for the clarification about these being complaints to state agencies, rather than lawsuits. I think my main point stands, though.
Actually, I think DCMS might have a point. Having seperate systems for straight and gay people does seem to me to be gifting more power to government than having one system. You’re giving them the power to say no to an entire group of people. So far at least as the limited government argument works, isn’t a simpler system with less ability for the government to control preferable?
I don’t know if it does, because these complaints/incidents all happened without gay marriage. So this isn’t gay marriage imposiing on people who oppose it. This is anti-discrimination laws imposing on people who want to discriminate. But that’s what anti-discrimination laws are designed to do; impose on people who discriminate and force them to stop discriminating.
My point tho is that with the spread of gay marriage, we’re going to see a lot more “gay rights vs. religious rights” conflicts & I’m afraid that the latter may take a beating.
Hey, wait a minute, let’s not get all carried away here! You really want to take away my Constitutional right to force people into gay marriages? That’s just … un-American!
You Communist. 