TeaElle- Upon further review…
The majority enforce the Constitution via thier elected officials and the laws that are passed through interpretation of the Constitution. This extends loosely all the way down the political ladder right on down to the judges that are appointed/elected and the the officers who swear to uphold the law. They are not direct roles of the majority but are direct results of all the smaller actions that take place.
Mangetout - the reason I included that paragraph was to get a response such as yours. I originally had left it out of the OP. I wanted comment on that piece because I suspected it might be interpreted your way.
Every human being has certain rights, and we have these rights by virtue of the fact that we are human beings. A government (or the people it represents) does not “extend” or create or give or grant rights, nor can it take them away; it can only protect or violate them.
My partner and I have the right to marry. We’ve had that right since we became partners. This is not changed by the fact that our government and the majority of people refuse to acknowledge that right. People’s rights are not at the mercy of a government or “the will of the people.”
Even the U.S. Constitution doesn’t **give **people rights; it simply acknowledges and describes the rights we already have.
Except that, judging from your “I am NOT condemning the act of Gay Marriage, merely the process with which it has become law” you don’t realize this. As the laws are written, gays have the right to marry under massachusett’s law.
Or rather if the law were at all ambiguous the largely white anglo saxon protestant heterosexual male judges would take the easy way out so the law must be a slam dunk for gay marriage as it’s written.
Which has nothing to do with the judiciary’s intepretation of the law. The judiciary is not subject to polling. If you want it to be illegal then go make your ammendment.
This is a non-argument, there’s always a first ruling and this is a relatively new issue and it has been in issue in other states before (Vt and Hi, I think).
I hope you won’t mind me taking a stab at your post Polycarp seeing as I am in the minority with Whuckfistle.
** Majority rule doesn’t suppose the majority is always right. It supposes that the majority has the right to bind the minority. I am all for gay marriage but I think it should be enacted democratically. I’ll take your gay marriage and raise you child labor. At the beginning of the last century courts were overturning popular child labor laws as unconstitutional.
Majority rule does not require that everyone agree that the majority is right nor does judicial review ensure that minority rights are always protected. America has had the latter since Marbury v Madison. Has no minority had their rights stomped on in all that time?
However, I live in the market that that man has been doing his afternoon talk show now for thirteen+ years, and I have never had the slightest feeling that he is bigoted (There has not once been community pressure on him due to his views). Narrow minded, maybe. Too far right, maybe. Too conservative, maybe. I think hes expressing his thoughts accurately and consistently with what Ive heard in the past. I think he genuinely is concerned with the means with which this and similar legislation is handled.
I would think the same if I were in your shoes.
BTW - He has substituted for Rush on numerous occasions. At least a half dozen times in recent months. They cherry pick the subs so as not to select someone who may offend a great number of people on the air.
To be against gay marriage is to be bigotted, whuckfistle. There is no way to be against the status quo anti-gay marriage reality, or for the Federal Marriage Amendment, without being an anti-gay bigot.
That he’s not viewed as an extremist is not a validation of his position, merely a conviction of the poor character of the average American.
I may be missing the point, but isn’t that process what we’re going through? Note: for the record, I’m for marriages between any two consenting adults that love each other, but I’m following the OP’s request that this be restricted to how laws get interpreted.
There’s a dispute over interpretation of a law. That gets reviewed and the judicial branch says X. The legislative branch says, “No, we really meant Y” and passes a clarification of the law. The judicial branch says “Well, law Y conflicts with law Z.” The legislature passes a repeal of law Z, and the judges say, “OK, you finally got it right” and the law continues with the intended effect. The reason that judges aren’t elected officials is precisly because they’re suppose to look at how the law gets interpreted, not be boholden to the public.
We’re just at the beginning of that stage. Checks and balances.
I’m not so sure that the difference can be dismissed that easily. Current marriage law does not not discriminate between gay and straight either – anyone of any sexual orientation can go down to the courthouse today and get married. The catch is, of course, that marriage (for now) means the union of two people of opposite sexes; not really an attractive option for gay people.
What you’re wanting to do is expand the definition of marriage – instead of the union of a man and a woman, change it to the union of two people.
If that’s what we’re doing then, it’s not a stretch to say the definition could be broadened further. Why only two people? Why not three or five?
You can’t say that current marriage laws are discrimintory and anti-polygamy laws are not because there are absolutely no laws preventing a gay or lesbian person from entering into a marriage contract. And, the laws preventing two members of the same sex from marrying each other apply to straight people as well as gay.
I’m not coming out (pardon the pun) for or against gay marriage; I’m just disputing the allegation that the current law is somehow discriminatory. It isn’t, it applies equally to all individuals.
Let`s use an example getting something everyone is in favor of but using the wrong technique.
Miller Park (Brewers Baseball Park) is a good example. Four counties in the Milwaukee area passed a referendum that included a sales tax of .1% to cover the building costs.
Most people are in favor of the new park.
Many people were in favor of the tax.
Almost as many people were not.
The people that were not in favor of the tax still love and enjoy the park. As do the people that were in favor of the tax.
The means to which the park was funded was the issue at hand, not the actual park itself.
Same with this issue. I didnt have a problem with the park itself, just as I dont have a problem with what two consenting adults do.
The problem I have with the tax is that I don`t think it will ever go away (as it stands it is supposed to last for ten years), I think some new ways to spend the money are going to be put forth and the tax will last forever. I was a bit confused as to why the courts had to make a decision on same sex marriage if it was as clearly allowed in the constitution as some here would suggest.
As usual, I am open to input from others and I have been known to change my views. Thats why I offered this up as an OP, I was interested in input from others here to help me understand the challenges of this issue. I didnt do it to be bigoted or to be assaulted, or to assault others.
You`ll notice that in the OP I said that if the following viewpoint is mostly true than I believe … using the words “if” and “mostly” and “then” on purpose.
I would like to see a more detailed response from one of the posters here as to why they think the Constitution allows (or doesn`t forbid) for same sex marriage and what had to be done to get Mass. to legalize it.
These are exactly the points that I was making earlier about how the majority has control over society.
By your own admission, you have acknowledged that those in control (WASP`s) can swing things in their favor, regardless of how obvious the Constitution may make it seem.
If it takes a ruling by a specific and maybe obscure court then the actual idea that is being considered is probably not as mainstream and accepted as one might think.
Why hasn`t the SC tossed this one around yet? Or is that the next step?
When equality is enshrined in the Constitution of a government, the legislature cannot, short of amending the Constitution, create inequality – even if there were 90% support for such inequality among the people. The desire of the majority for discrimination does not overrule the protection of the minority from discrimination when such protection is Constitutionally codified. So if the Legislature enacts the majority will in favor of discrimination, that act is not Constitutionally valid, no matter how broadly supported, and it is the proper role of the Court to strike down such legislation.
Sometimes laws that were not seen to abrogate the equality of a minority in the past come to be seen to do so as society progresses, thus leading the Courts to strike laws even though they’ve been on the books for decades. This is how a Constitutional Republic works.
The Constitution of Massachusetts enshrines and protects the equality of all persons. The laws of Massachusetts, however, did not reflect this equality in their discrimination against gays. In response to this disparity, it is the Court’s responsibility to determine what, if any, action is required to ensure that the Constitutional, not the Legislative, principle is properly enacted. In this case, that entailed striking the anti-gay laws and requiring the Legislature to pass new laws that are in agreement with the Constitutional principle. This is entirely proper.
Since this is an issue of the State Constitution, the Supreme Judicial Court should be the final stop.
The majority only has as much control over society as the Constitution of that society allows them to have. If you have a Constitution which says you cannot discriminate against people on the basis of, say, race, it doesn’t matter if 99% of the people want to discriminate on the basis of race – they can’t. Not unless they amend the Constitution.
If a law is passed enacting the will of that 99%, it will be struck by the Courts, rightly and properly, for violating the Constitution, which is supreme in all cases over the public will, no matter how unified and passionate.
Excellent post. I agree 100%. George Will has an Op Ed piece out in the SJ Merc today that makes pretty much the same argument. The point he was making is that gay marriage is being justified as being necessary for the fullfulment of the individual, which should apply just as well to followers of pluaral marriage as it does to gays.
Although I’m not certain it’s true in the MA case, there has been a law passed in most states, as well as at the national level (defining marriage as being between a man and woman only).
The massachusetts court decide that the Massachusetts ban on gay marriage violated its own constitution. The court wasn’t creating new law just ruling on the constitutionality of existing law.
Of course, who said otherwise? I am simply dubious that should the judges have upheld “tradition” in marriage that the outcry would have still been the same from the same people, ie that we need to clarify it in law.
Certainly the attempt will probably be made here in MA to get such a law passed. Here’s to hoping that the huge number of colleges in the area can amass enough political force to counter it.
Doubtful it would impact the rest of the country. Oh well. I know if I was married, the love I have for my wife would be completely worthless now. Good thing I’m single!
spectrum answered this better than I could, but for clarification, the Mass. state constitution “forbids the creation of second-class citizens,” and the Mass. Supreme Judicial Court judged that refusing same-sex marriages ran contrary to this position. For what had to be done, well, someone needed to ask for clarification of this practice, in terms of filing a suit. That suit was rejected by lower courts, and eventually went to the SJC.
I’d hardly call the Supreme Judicial Court a “obscure court.” In their jurisdiction, they are the second highest court in the land. As for “specific,” well, they really don’t have any peers in their jurisdiction. You can’t just round up all the SJCs in the state - you’ll never get a quorum. The Supreme Court could hear the case, but since this involves the state (and the other reasons they choose to hear or not hear a case), they chose not to.
