The “separation of church and state” is not the law in the US. See e.g. Walz v. Tax Commissioner, 397 U.S. 664, 676 (1970); Lemmon v. Kurtzman, 403 U.S. 602 (1971). The Constitution prohibits “law[s] respecting the establishment of religion, or prohibiting the free exercise thereof.” All Bush did here was use a word with potentially religious connotations. Presidents throughout history have done the same, as has just about everyone else in the world. That does not amount to a “law respecting the establishment of religion.”
Not really. Religious precepts underly many of our laws (although they need to have a secular purpose, and can’t be primarily aimed at serving their religious purposes). For example, I believe the American prohibition on polygamy is based on the religious notion that a marriage should be between one man and one woman. As far as I know, that law hasn’t been struck down (even in Vermont!). [NB: As a small government conservative, I oppose polygamy laws, too. I guess that puts me in the 2% minty was talking about.]
You should read the Mass Supreme Court’s decision. First, the establishment clause had nothing to do with their decision. Second, Mass advanced a number of purely secular interests in the traditional definition of marriage. I’m not saying that I think they were good reasons, but they were certainly the type of reasons that had survived a “rational basis” analysis in the past.
Irrelevant. You claim that “new rights” have been “discovered” and that this is somehow “wrong”. I say that no “new rights” have been “discovered”. The Framers of the Constitution recognized that it is possible for rights to exist that are not enumerated in the Constitution. You, obviously, are not aware of this and pretend that the ninth Amendment does not exist–otherwise, you could not honestly claim that “new rights” have been “discovered”. You are in error to say that “new rights” have been “discovered”, but you must be ignorant of the 9th Amendment to be honestly in error and not inentionally ignoring the very Constitution that admits to the existence of rights that are not specifically enumerated therein.
Why do the leftist fascists always want to throw away the First and Second Amendments and rightwing fascists always want to throw away the First and Ninth Amendments?
Please quote the SPECIFIC Article of the Constitution that states “Only those rights enumerated in the Constitution exist.”
The state should NOT RECOGNIZE MARRIAGE AT ALL. Let them have a “license of domestic union”, but it is not marriage. The problem is that there is this travesty of “marriage” perpetrated by the state, which has no business in dictating what is and is not “marriage”. Thus, there is all this controversy.
Eliminate “marriage” as a legal construct. For legal purposes, use a “domestic union” with all the emotional impact and ritual of getting of a dog license.
I’m not in error to say that new rights have been discovered. If they didn’t exist in law before a certain date, and they did after that date, then they were discovered. The question is, was the discovery process valid or invalid? If the Ninth Amendment has the force and meaning you suggest, that doesn’t mean new rights were not discovered - it just means that there was a constituional basis for the discovery.
I agree that no such sentence exists. Nor did I claim that it did.
But how are we to determine what rights exist?
For example, let’s consider the rights granted under the Miranda decision - an arrestee must be warned of his right to remain silent and his right to have an attorney present. Did those rights exist in 1910? If they did, how is it that people were convicted and jailed without such warnings given? And if they didn’t, at what point were they discovered?
Suppose I come along and say that I have a Constitutional right to smoke marijuana. When the police come to arrest me, I point out the Ninth Amendment exists, and the Constituion doesn’t say I DON’T have the right to smoke pot.
What method of analysis should we use to discover if something is a constitutional right? We can’t simply read the words to the constitution, according to you, since the Ninth Amendment clearly says that the Constitution doesn’t list all my rights. So what should our approach be?
If it helps – and I’ve little doubt it does not – I agree with you, too. I don’t see how you can argue that a right is not “new” when courts have been asked to recognize it many times before, but they’ve always rejected it . . . until now. Was it in hibernation? Or did all the Justices over the Court’s first 200 years overlook it?
David, you’re right that civil unions or whatever the hell you want to call them have to have their legal ramifications spelled out. But those are already defined under “Marriage”, so it could be just a cut-and-paste job under a new title. You’re certainly also right that it won’t be a cakewalk politically to figleaf in enough of a factual difference to let them say it isn’t the M-word after all.
Bricker, perhaps you have me on Ignore, but I did answer your assertion about “discovering” new rights. What you say here is incorrect: "If they didn’t exist in law before a certain date, and they did after that date, then they were discovered. " That is not the case here. The ruling found that these rights do exist, and have existed since the Mass. Constitution was enacted, but that the Commonwealth had improperly suppressed them and can no longer do so. That is not discovery or creation of rights, but affirmation of them. Get the difference?
As to your reply to Dogface, the default case if a right’s existence is in question is that yes, it exists. The 9th just affirms that rights can exist without being defined in the text of the Constitution. It does NOT mean that no laws defining or restricting any rights are illegitimate; that would be absurd. The 9th thereby affirms the legitimacy of “discovering” new rights, to which you object for some reason, even though that isn’t relevant to this discussion anyway.
But I believe it’s a specious argument, since I am reasonably sure you’d agree that had the Massachusetts Supreme Court been asked this question in 1900, they would have authoratively and definitively decided that there was no such right.
Claiming that the right existed ab initio seems a wilful avoidance of the reality that it did not - that, practically speaking, the Court announced it now, and it had no life before now.
In any event, it seems “discovery” is still an appropriate word to use - “This right existed all along, but we have only now discovered it.”
That doesn’t answer my question. What process of analysis shall we use to determine a right’s existence? My example involved smoking pot: is it a right guaranteed under the federal constitution? How can we tell?
Bricker; “I am reasonably sure you’d agree that had the Massachusetts Supreme Court been asked this question in 1900, they would have authoratively and definitively decided that there was no such right.” Perhaps so, since the SJC then as now was composed of humans whose judgment was shaped by their environment and experience. But they’d still have been wrong, since there would be no valid grounds for them to rule that way.
Your claim that these rights were “discovered” is now, I see, reduced to being based only on the practical point that they had indeed been suppressed, and not on any analysis of constitutional or legal principle. It isn’t wilful avoidance at all, it’s willfully facing the principles for the first time instead of hoping not to deal with them, or finding ways to get around them, as had been the case historically.
What process of analysis do we use to determine a right’s existence? Please. The process includes such things as case law, precedent, legislation, other court rulings, everything that has accumulated under centuries of English/American law. Sometimes common threads emerge, and can be verbalized, and help guide future court actions. At least that’s what I gather from watching lawyer shows on TV - perhaps they explain things differently to you in real law schools.
Dogface: While the 9th Amendment recognizes that other rights do exist, it is not the source of any rights. The source of yesterday’s Massachusetts ruling is the due process clause of the Massachusetts constitution.
So if the judges in 1900 could be completely convinced that there was no such right and be utterly wrong, what makes us think that the judges in 2003 are correct? For that matter, why should we give any weight to any legal decision?
Although I don’t agree with the thrust of Bricker’s argument, he’s quite right about this point: without using logical standards to determine what our legal documents actually mean, we can interpret them to signify anything and everything.
'Cause today’s SJC has an argument, which nobody AFAIK has been able to call wrong. 1900’s SJC’s contrary argument is hypothetical - but you’re welcome to try if you like. What legal argument could you formulate to support a conclusion that gays do not have a right to legal marriage?
Why should we give any weight to legal decisions, you ask? What does anything really mean, you think Bricker is asking? Objection, argumentative. Not to mention obstinate. That was covered in sophomore Philosophy 101. Let’s stick to the real world, please.
This is pointless. We can’t debate whether the current process of interpreting what the Constitution does and should say is a valid one that should be accepted if you won’t even consider the mechanisms by which those interpretations are reached.
We’re discussing a particular court ruling and its constitutional basis, not the epistemology of law. If you want to be that pointlessly argumentative, please take it elsewhere - but I’m not following. Please stick to the thread topic, or at least to the real world. That goes for you too, Bricker.
Elvis: The only reason I got dragged into the “epistemology of law” is the rather astonishing insistence from Dogface that the Ninth Amendment is the source of rights. It was to him that my “what is the process” arguments were directed.
There is no reasonable question that a majority of the Massachusetts Supremes have ruled, definitively, on what the Massachusetts constitution requires insofar as marriage. They are not wrong, by definition. Others may quibble with them, but the power to define it belongs to them, and they have spoken.
I absolutely accept that the Massachusetts constitution requires the state to issue marriage licenses to same-sex couples.
Spina is basing that argument on the concept that a homosexual “chooses” to be that way, and can “choose” an opposite-sex mate to marry. That is factually incorrect, and an argument based on that falsehood fails.
The dissenting opinions all say essentially that ,and that it’s a practice of long standing (which isn’t the issue), and that it’s the Legislature’s responsibility to address, simply ducking the issue. There are smatterings of the specious purposes-of-procreation argument and children-need-a-father-and-a-mother argument, too, but those are hardly constitutional principles even if you agree with them. Bullshit is bullshit even when dressed in black robes.
OK, let me try this phrasing: Nobody has been able to call it wrong with an argument that withstands even cursory scrutiny. OK? Got anything else to offer?
Please, please, please pay attention to this Dogface: the Leader of the Evil Forces of Darkness is telling you you’re wrong.
There isn’t much constitution-wise that minty, Bricker and I agree on, but this is one of them.
It bears repeating: the Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights of the kind used in Massachusetts yesterday). It prevents, say, opponents of the Massachusetts decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights.
The funny thing, Dogface, is that I posted most of that list awhile back in a thread you started on precisely the topic of the 9th amendment: US Constitution, Constructionism and the 9th Amendment. You never returned to that thread. I wonder why.
The need for stability and predictability in the law dictates against revisiting an established rule, even if that rule is arguably wrong. Stare decisis isn’t a talisman, of course; some decisions are so wrong that they deserve revisiting. But it is an important principle nevertheless.
It’s not worth it to continue this, because it’s a matter of settled law. You are right: the Massachusetts constitution forbids the state from refusing to marry gay couples. The supreme authority on the meaning of the Massachusetts constitution has spoken. Any argument to the contrary may be refuted by reference to the holding in Goodridge et al v. Department of Public Health.
Of course, I hope you’ll concede that, should the legislature and electorate amend the constitution to define marriage as solely between a man and a woman, it will then say something different, and Goodridge will no longer be good law.
I think the need for justice is more important than the need for predictability. What’s the point in being certain that the system will hand down the wrong decision?
