Massachusetts court strikes gay marriage ban: Finds "no rational basis" for law.

Great Debates
121

S’OK this once. But don’t let it get to be a habit.

And the idea that the courts or “the government” has to create new rights is ludicrous on its face.

I think it is a hangover from the days when the ruler was assumed to have been anointed by God and had to give subjects whatever rights they had.

Our government is based on a brand new idea. It is a creation of the people who are to be governed. It is silly to think that the people who establish the government have to give themselves rights and list them in the laws or in the founding document in order for those rights to exist. What is in the original Constitution without the amendments is the nuts and bolts of the governmental structure plus the limitations to some of the peoples’ rights that are forgone in the interest of the common defence, general welfare, domestic tranquility and all those neat things. That is a much shorter list.

Otherwise, in my opinion, we should be free to do as we please. And if any government restricts us it is an illegimate restriction unless exercising is shown to clearly violate the national good.

I know this isn’t the way things have developed. Wilson argued against the addition of a Bill of Rights because of the danger that such inclusion would give strength to the idea that people didn’t have a right that wasn’t positively affirmed somewhere in writing. And he was right because that is exactly what has happened.

122

It was understood, say, 100 years ago, that permitting homosexual marriage was detrimental to the national good.

Now some advocates contend that this was never so, or, if it was, that it’s no longer so.

What process are we to use to determine the truth, David Simmons?

123

Correction: It argues against it, but does not dictate it. If the rule is seriously wrong, slavish adherence to stare decisis is wrong too - otherwise Dred Scott and Plessy would still be the law, eh? And so would the ban on gay marriage in Massachusetts.

Bricker, it’s hard to give you credit for wanting to explore the subject instead of simply enjoying arguing. I’ve tried to keep you on topic by asking for a constitutional, factual argument that could produce the opposite result but you’ve refused. You and TVAA are welcome to explore each other’s navels further if you like, though.

124

Well, yes; that’s why the very next sentence I wrote after the one you quoted read:

In the future, please do try to read my whole post before giving an asinine retort.

125

The consensus on contemporary mores. It was thought, 200 years ago that slavery was OK and at the time of the writing of the Constitution it was politically inexpedient to disturb that system.

The same process that established the thinking on homosexuality that you cite can also undo it over time. Furthermore, I don’t think there is any need to worry about rapid and constant flux in the norms. These changes take a long time but I see no great moral value in being forever bound by the general opinions of the relatively distant past.

126

Because it allows people to have some certainty in how the law will handle a given situation, rather than having every action be a gamble. It allows people to understand, and thus reasonably control, the legal risk inherent to a given action.

127

And another thing: is this true? I admit I haven’t yet had a chance to read through the opinion, but I would have assumed this was a matter of first impression for the Massachusetts court. I would be very surprised if the Massachusetts court had at some earlier time specifically decided their state constitution didn’t require gay marriage, and that the current case invalidated that earlier opinion.

128

Suppose I come along, David, and assert that there is no sea change in contemporary mores with respect to gay marriage – that the majority of the country, or more relevantly of the state of Massachusetts, is opposed?

DCU: According to the opinion, it IS a matter of first impression in Massachusetts.

  • Rick
129

True, there was no consensus that slavery was wrong 200 years ago, so the drafters of the Constitution did not incorporate a prohibition on slavery into its text (although there was al least one attempt to do so).

BUT, after the Civil War the prohibition on slavery was added to the text BY THE PROCESS OF CONSTITUTIONAL AMENDMENT. This history does not support your argument regarding an “evolving consensus”.

A simple majority vote in both houses of the Massachusetts General Assembly and the signature of the governor is all it would take to enable gay marriage. No one could question the legitimacy of such an action. People will be arguing the legitimacy of the court’s actions for years.

(Similarly, state legislatures were already well on the way to legalizing abortion in most parts of the country in 1973, and there was little fanfare about it. By imposing a right to abortion by judicial fiat, the Supreme Court kicked off a firestorm that continues to this day.)

130

Well, if what you assert is actually the fact of the matter then gay “marriages” will not be accepted in Mass no matter what the court says. I don’t think you can indefinitely enforce a something that runs counter to the general opinion without using tyrannical methods and that won’t fly for long. We have an example in the prohibition of the sale of alcoholic beverages, not to mention the latter stages of the war in Vietnam. And, I think the war in Vietnam wasn’t even counter to the wishes of the majority of the people, but there was a large enough minority opposed that it just became untenable.

Sure, but constitutional amendments are not the only method of change. I oppose such amendments dealing with social behavior. I think that they should be reserved for correcting proven structural defects in the operation of the government or the banning of such things as slavery that are really destructive. I don’t see gay marriage, or flag burning, or removal of the Decalogue from a courthouse in that category.

131

Wow, so a court’s job is simply to take polls, determine what the “contemporary mores” are, and rule accordingly. That’s so simple, why don’t they do it? It would be so much easier than wading through all that constitutional principle stuff and all those case law citations. Bricker, you really aren’t taking this seriously at all, are you?

Dewey, I took exception to your use of the word “dictate”. It isn’t that strict.

132

Again, you’re missing the point: I’m disputing the claim that predictability and consistency has a value that can be compared with that of justice.

A legal system that was unpredictably just – or even just only some of the time on a random basis – is preferable to one that is consistently wrong.

And of course you’re missing the even greater point – the system should be consistently just. Not that our current system is capable of that, of course…

133

In the long haul that is exactly what is done, assinine jibes aside. Some areas of the law, such as that of property rights, change a lot slower than the the laws concerning behavior. If you haven’t noticed that the interpretation of laws is different now than it was in the 15th century then you really are out of place in this discussion.

And are you really suggesting that equal rights in medical care, property distribution etc. for a long-term, same-sex relationships violates some fundamental constitutional principle?

134

Wrong question. It’s not the claim that a constitutional principle is violated by extending these rights – it’s the claim that the constitution mandates these rights.

If Massachusetts passed a law permitted same-sex marriages, no one could credibly claim the law was unconstitutional. The question is: does the constitution REQUIRE such a law?

135

Good point. As I understand it the court said that the existing law outlawing same-sex marriages violated the Mass constitution. Did it also say that no conceivable, future law of that nature would pass muster?

136

All the while ignoring the next sentence which clearly indicated I meant “dictate” in the sense of “prescribes,” not in the sense of “absolutely commands.” Your comment was stupid; it ignored context which made my meaning crystal clear.

And “justice” means…what, exactly? That’s a nebulous term that can be invoked for pretty much any position on any issue – it’s not unlike saying God is on your side.

But more to the point, consistency and predictability does have value.

Consider the doctrine of comparative negligence, the notion in tort law that, in a negligence suit, a plaintiff is not barred from recovery if he was also negligent, but rather will have his award reduced by the percentage of fault attributed to him. There is a competing doctrine, contributory negligence, in which any amount of negligence, however slight, on the part of the plaintiff acts as a total bar to recovery.

Some states use comparative negligence. A handful use contributory. Some use a hybrid where a plaintiff can’t recover if his negligence exceeds a certain threshold (typically 50%).

Some states have set up their negligence scheme by statute, but others have done it via the organic process of common law, e.g., by hewing to rules established in prior cases. In short, their negligence schemes are the product of stare decisis.

Now I make no claims to know which of these systems is the most metaphysically just. But I do know that it would be marvelously inefficient if every time a tort case arose, the question of how to handle the plaintiff’s liability had to be answered tabula rasa. **

This presumes our legal system is “consistently wrong,” which is a highly debatable proposition in and of itself. **

I’d love to hear an alternative in concrete terms. Emphasis on the last three words.

137

The law changes in response to mores, but courts do not have that much leeway (impertinent remarks about asininity aside). They have to use existing principles and laws, not opinion polls.

Hell, no, just the opposite, as I’d thought I’d made very clear throughout this thread. You must have me confused with somebody else - Bricker, apparently.

On preview, it appears Dewey, you do too - except that you’re quoting the inexplicable TVAA under my name, except for an impertinent remark using personally insulting language to respond to me about a comment about your choice of words).

What the hell is the matter today, people? Clean up your acts.

138

Pretty damn obviously not. The constitution does not require a law either establishing, limiting, or banning the institution of marriage. It only requires that any such law comply with due process, equal protection, and any other principles that the constitution defines. The majority and concurring opinions, which you had better have read if you’ve gotten this far, were pretty clear about explaining that point so that even I got it.

139

You keep using that word. I do not think it means what you think it means.

140

David Simmons:
“…If you haven’t noticed that the interpretation of laws is different now than it was in the 15th century then you really are out of place in this discussion.”

Now David, you sound a touch bitchy. What the yuck was that suppose to mean? I dunno David, maybe you can find a extant law that was written in the 15th century that had the same wording then as it does today and we could speculate on the interpretations.

Meanwhile…** Bricker **, buddy, I’m with youuuuu! **[ kiss] ** :slight_smile: