The instances I have in mind are those where there is no explicit reference for jurists to read, and hence they must speculate as to what is inferred. I, personally, am not convinced any State, nor the Federal Constitution contains enough information to decode what the authors must have implied vis. the subject of gay marriage. I rather doubt the notion even occurred to them. Hence, it’s impossible to determine with any certainty what was meant by a particular clause, when nothing of explicit relevance is said in a particular clause. Arguments on either side have struck me as equally specious, quite frankly, and I’m content to be agnostic on the subject. If only jurists could do the same. When the MA SJC punted, there is no doubt in my mind now that it was a disingenuous gesture, as they made amply clear nothing short of a MA Constitutional amendment would change their oppinion, which was an impossible thing to achieve given the deadline they imposed on the State Legislature. If such behavior isn’t political strategy, what is it? And if conservatives in MA (there are more than many appreciate) rally their cause and get the amendment the MA SJC has now made a requisite to protect traditional “marriage”, we will not be faced with a progression from civil unions to full recognition of gay marriage, but rather the need to repeal a constitutional amendment, which is a much more difficult hurdle to surmount. As it is, this hurdle has now been erected in other states, by citizens fearing the consequences of similar jurist action. The damage done now could take generations to undo. I’m sorry, but the MA SJC had an arguable case either way, or the ruling would never have been needed. A more moderate response (which was entirely possible), a compromise, if you will, would have served better.
I do not disagree. My understanding of the “four exclusions” in Mr. Kennedy’s Lawrence majority opinion was to define more clearly precisely what he was saying, not to impose dicta unrelated to the case at hand. Messrs. Lawrence and Garner did not claim to be married, were neither underage, were not performing sexual acts in public, etc. Mr. Kennedy specified that his ruling was that a law could not under the constitution prohibit relationships involving sexual acts performed in private by adults; he was carefully distinguishing what the Court had not been asked to decide from what it was in fact deciding.
We have numerous rulings that indicate that great quantities of the Bill of Rights are extended to the states by application of the Fourteenth Amendment. What about the rights not so extended by extant rulings? Are they in fact so extended? Are they not extended? The answer is quite simply that we do not and will not know for sure until cases dealing with them come up. Can the governor of a state acting in an emergency quarter members of the National Guard in a private home against the will of the homeowner? We don’t know and we won’t know until somebody sues to get the answer one way or the other.
Likewise, Lawrence’s application to the issue of gay marriage is precisely as important as McCulloch v. Maryland or Pollock v. Farmers Trust and Loan – viz, none. The only way in which it ever addressed the issue was in a dictum stating that it was not intended to address the issue.
Your argument is overbroad. If this is actually your principle of governance, then marriage is not a subject for the legislature at all. Which may be a perfectly good principle, but certainly doesn’t get you to the point where the state must recognize same-sex marriages.
Also, given that a number of state constitutions now expressly prohibit same-sex marriages, doesn’t that pretty much make the legislative aspect moot in those states? After all, the federal constitution certainly doesn’t give Congress or anybody else the authority to govern marriage laws.
Please remember, I’m very much in favor of gay marriage and/or civil unions. But I’d like to see a better legal basis for it than bare assertions that it’s a basic human right or whatever.
John Mace: Since gay marriage wasn’t in front of the Court in Lawrence, the majority’s stated skepticism about it is only non-binding dicta. The question of whether there is a Due Process or Equal Protection right to same-sex marriage could still be determined by the federal courts. But one suspects that, for at least the foreseeable future, the Supreme Court’s dicta on the issue is likely to be taken as highly persuasive by the lower federal courts, which is one of many reasons why the isn’t likely to make its way to the Supremes anytime soon.
Not according to the Tenth Amendment, which reserves the right to create new rights to “the states, and the people”. Not the courts.
No, that’s begging the question.
Of course, if I assume you are right, then your position is valid. But the burden of proof that the legislature has to act in some way or other (and make no mistake, instituting SSM is to force the state and the populace to start doing something, not merely to stop doing something and sit still) lies on those proposing the change.
So, the two positions are equivalent, and you can simply turn the argument around. Simply asserting a position does not establish it. At least, apparently not in the eyes of the people of Lousiana.
I agree with this, and would prefer that therefore the courts take no steps as regards the issue.
Leave the creation of new rights to the states, and the people, where it belongs.
Regards,
Shodan
That’s the most absurd statement since FriendOfGod left us. Including the collected works of Lolo and JackDeanTyler.
What in the Name of All that’s Holy do you think the courts are? Perhaps one of the 13-year-olds here could explain to you about the three branches of government in the American system.
In addition to which, show me where in the Tenth Amendment one word is said about rights. The Ninth Amendment governs unenumerated rights; the Tenth, powers. I rather think that James Madison and the First Congress and the State legislatures of 1788-89 had a passable acquaintance with the English language that included the differences in meaning between those two words – granted that much of the political-arguing public doesn’t seem to have grasped it yet.
Geez, Louise! I have no objection to your taking a different point of view than I – but I do expect that you either argue from common ground, like the text of the Constitution, or redefine what words you plan on going Humpty Dumpty about.
:mad:
Exactly what, pray tell, is it forcing the people to do? Would you be compelled to marry a man? No. It only forces the Government of the People to treat all people equally. You as a private individual would not be forced to do jack.
Shodan
Perhaps this helps:
Amendment IX (1791)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X (1791)
The powers not delegated to the United States by the Constitutino, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
From the Loving decision, I read it as being a settled matter that the right to marry is a fundamental right inherent in the right to “life, liberty and the pursuit of happiness” and, as such, does not need to be “created.”
A friendly question - what the hell crawled up your butt?
We are disagreeing about the role of the Court and the Constitution. If that constitutes “the most absurd statement” blah blah blah, then you are way behind on your reading of the SDMB. If you want to have a civilized discussion, lighten up. I expect this shit from spectrum, but I hope for better from you.
It isn’t a question of what they are, but what they aren’t. They aren’t bodies for the creation of new rights or new legislation.
And maybe your thirteen year old could also cover the notion of “checks and balance” that I mentioned earlier. What exactly do you see as the check on the unbridled power of the Supreme Court to create new rights out of whole cloth?
Fine then - the “power” to create new “rights” is reserved to the states and the people. Better?
Are you arguing for original intent here?
Well, gee, thanks ever so much. :rolleyes:
Look, if you can’t have a rational debate until after the election and all the “woe is me - Bush won and the world is coming to a messy end” threads are out of the way, I can drop out and let you collect yourself.
Sheesh, Poly - get a grip!
Regards,
Shodan
Or as it would appear,MY view is enlightened,YOUR view is stupid bigotry. :o
If it was another issue where your view was in the majority,would you feel the same?You can never have full equality.Otherwise you’d have people wanting to marry children,animals,more than one spouse etc… wandering up to the courts.The majority in those cases would claim they shouldn’t be allowed to.Would you support the minority who claimed they were being discriminated against?
I’m for allowing consenting adults to do as they please. Children and animals, obviously, can’t give meaningful consent. If the polyamorous want marriage, then I’m not opposed. But they gotta do the work and come up with a plan for implementation.
Is the animal in question…you know…cute?
Ouch, since when do the state or other people create my rights? They may affirm them, they may abridge them, but they do not create them.
We’re all pretty far afield here if some of us are arguing from a position that suggests that they have some role in creating rights for others.
No, not really. Please see plnnr’s post. The rights are retained by the people. They aren’t created, they already exist and they can’t be denied or disparaged. The states and the people can exercise powers not delegated to the Government or denied them by the states. Note that there’s nothing in there about creating powers.
I am not sure of your point. If you are arguing from a “natural law” standpoint, where rights exist because they are granted by God, that does no more than change the phrasing or the issue.
Instead of “creating” new rights, you have to decide who is going to “recognize” newly discovered rights. Same issue, and I contend the ones responsible are still the states, and the people, Whether you want to call it “discovering” or “creating” or “imposing” or “revealing” or whatever - the states and the people are the ones with the power to do this. Not the courts.
The first eight amendments in the Bill of Rights list some of the rights guaranteed by the Constitution - freedom of speech, freedom of religion and the press, the right of the people to keep and bear arms, etc. Then the Ninth makes it clear that this is not an exhaustive list, that there could be other rights. And the Tenth makes it clear that it is the states and the people who recognize/create/dream up/whatever you like to call it those new rights.
It is certainly possible to argue that there is an inalienable right to abortion, or same-sex marriage, or wearing green on Thursdays. But, unless the right is clearly established by the plain text of the Constitution, and/or by original intent, the ones deciding if it is or isn’t an inalienable right is not the Supreme Court, who are empowered only to interpret the Constitution, not to add to it or subtract from it. IMO, several recent decisions go beyond that limit, and abrogate the power of the states, and the people, to find or create the new rights for themselves.
The appropriate method of establishing a new right to same-sex marriage is by amending the Constitution, or a state (or national) referendum. This allows the states and the people to do their thing and either find this new right, or reject it.
Which is what happened in Louisiana. And the fact that it didn’t turn out as the SDMB would wish does not illegitimize the process, or hand over the right to establish new rights to the Court.
Regards,
Shodan
[Moderator Hat ON]
Shodan, Poly, take it to the Pit. (Never thought I’d be saying that.)
[Moderator Hat ON]
I always thought that the difference between the American constitution and the, say, soviet or french ones, was that the concept of a ‘right’ is not ‘that which is granted by the state’, but ‘that which we all have, until we surrender it to the state as part of the social contract.’
Shodan:
What about logic? What about fairness? The may not be legal principles, but damn straight they’re “general” principles.
Here’s where I have a problem with the “right to marry” position:
Surely, we each have the right to live with, have sex with whomever we want, and have our unions sanctified (or not) in whatever chruch we choose (consenting adults, assumed throughout). Surely we have the right to designate whomever we want to be our heir or power of attorney, etc.
But marriage has also become a grab bag of goodies (tax breaks, company sponsored health coverage, etc), and it’s not at all clear to me that we have a “right” to access this grab bag. I’m not saying that we don’t, just that a really good argument needs to be made that we do. And it’s an entirely different argument than one makes for what I included in the paragraph above.
I prefer to start with the premise that we all have equal rights. From this premise, it proceeds that you must give a compelling reason to infringe upon that equality. Can you give a compelling reason why two men who wish to marry shouldn’t be allowed the same tax breaks as a man and woman?
The government always discriminates whenever it gives out goodies. I’d be happy if this NEVER happend, but the fact is, it does. For example, the government gives special treatment to women and minorities in business loans. The government has decided that race and/or gender can be used as part of the criteria for acceptance to state sponsored schools.
I’m not sure what your politics are, but those on the left who support SSM, are still willing to discriminate in other ways, per the above paragraph. I find that hypocritical.
And that’s why I like to seperate this discussion between those things which people should be freely able to do, and those things which the government is handing out (the grab bag of goodies).
If you asked me, the government should never be able to grant special status to any individual adult. Marriage would be stripped to only it’s civil parts (no goodies), and then there wouldn’t be any issue to begin with because all we’d be left with are those things which free people should be able to engage in under any circumstances.