Of course not! A same sex civil union that conferred all the privileges and responsibility of marriage without using that sacred word would do nothing to rot the moral underpinnings of American society! Mebst! Mebst! Unacceptable!
Umm, you read the part where I said I agreed more with the concurrences by Stevens and Marshall in Cleburne, right? I’d also apply Romer, Cleburne, and Plyler for the proper “rational basis” analysis. It ain’t “palming a card” it’s applying precedent. Precedent you personally may not agree with, but still precedent. Unless, of course, you are advocating a return to pre-Lochner constitutional interpretation. Then, of course, you may be correct.
Would you prefer I say I’m using Bricker’s rational basis test and actually apply rational basis with bite or would you prefer I be honest about my judicial philosphy?
Why not indeed?
What is the point of asking a rhetorical question like that? Do you have any doubt in your mind how I would answer that question? Do you have any doubt in your mind how YOU would answer that question? I think we can both agree it would be a bad result. But turning the blame away from the people who actually support the amendment and trying to place it on the judicial branch is sheer idiocy.
And thank you for your response in post 176 regarding when you are willing to forsake your reliance on process. I fear we will disagree on that issue forever, and you are wrong, of course, but I respect your honesty.
I appreciate the honesty, of course. And I even agree with you that a “rational basis with bite” test would likely not sustain SSM restrictions.
It’s not just Lochner (which was an SDP case, not an EP case anyway). It’s the willingness to say, “I don’t care what the words on the paper are; I know what the legislature MEANT to write.” So if I can pick a place to start turning back the clock, it would probably be with Holy Trinity Church v. U.S., 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892).
Before we got sophisticated enough to start exploring the vast array of rights hidden in the due process clause, we had Holy Trinity: yes, the law says X, but the legislature didn’t mean X, so we will construe the law as not meaning X.
All these nicities of the law don’t apply when the law is unjust and egregious. Laws forbidding gay people to marry one another have no basis other than the disdain in which they are held by the majority. The state has no valid interest in such things, the law but serves to oppress a harmless minority because of a condition they are powerless to modify.
Presumably a judge takes on oath to uphold the law, but he takes a more important oath to serve justice. In one sense, we all do. For instance, if a judge should take an oath swearing to impose a death sentence where applicable while knowing he would never do any such thing, I would not call his oath criminal, I would stamp, whistle and cheer.
If it takes civil disobedience to oppose injustice, so be it. However, its hard to see how such an action can be taken in this circumstance. How would a gay couple perform such civil disobedience, shop for drapes together regardless?
If a judge abrogate the formal conventions of the law to offer to gay citizens that which never should have been denied them in the first case, he is acting as our conscience and our censor, his actions are worthy, they are patriotic in the truest sense, they are Constitutional in the truest sense: they serve the justice and equality that the Constitution strives to embody.
Remedies are at hand for an aggrieved majority. To our enduring shame, those remedies are being applied even as we speak. The matter is being taken out of the hands of miscreant “activist” judges, as the majority demand injustice and prejudice. That is their privilege. And I am heartily ashamed of them.
Presumably, we appoint/elect judges because they are wise, lo, wiser even than attorneys! Who better to point out to us the error of our ways? Not the legislature, they are bound to reflect our will, not the executive, they are bound to manifest that will. Only the judiciary is in a position to scold us. And I hold them duty bound to do so.
And how about the judge who takes the oath knowing that what he really wants is to establish Christ’s justice on earth? Or the justice of Yahweh, of the Old Testament? There are plenty who would stamp, whistle and cheer for that judge. But of course, your version of justive is the correct one, so that’s OK.
How about filing joint tax returns and challenging the tax law in court? It’s not that hard to think of actions of civil disobedience to bring attention to this issue.
Constitutional in the truest sense? What does that mean, other than what you personally wish was in the constitution, but in fact isn’t?
Whatever happened to government of the people, by the people, and for the people? I guess that’s fine unless the people disagree with you, then call in the judges.
What you are advocating is an end run around the will of the people. It’s not judges that you think are wise, but you yourself. It’s tempting, very tempting to assume that what we really need is a wise and just overlord to bring true justice to us. Just remember, though, that the next 1, 2 maybe 3 Supreme Court Justices will be appointed but George W. Bush. Are you sure you want to set those justices up as the conscience of the country for the rest of their lives? Do you want them to point out the error of our ways? Of course, in your proposed system they would do much more than just “point out” the error of our ways. No thanks. I’ll trust the will of the people. It’s not perfect, but it’s the best system overall.
What, “activist judges” are half-Godzilla, half Jehovah? By supporting them, I have signed on to a Stalinist system of gulags, with 70% of the population dragged away to re-education camps? What, the activist judges gonna call in thier black helicopters?
The will of the people isn’t thwarted or crushed beneath my jackboot. At most, that will is postponed but slightly.
Heck of an image though, UN stormtroopers marching into City Hall with automatic weapons drawn, forcing the clerks at Licenses to issue marriage document or be gunned down like dogs.
So, gay marriage is the only issue you want the enlightened judges to show us the error of our ways on? Oh, and do you want a little fire for that straw(man) you threw up there? It even had a hint of Godwin in it. A two-fer!
Oh, come off it! You start chewing the scenery about government by the people, etc., then have the nerve to start tossing around “straw men” implications? C’mon, get real. And “Godwin”? By Og’s hairy 'nads, I’d expect better from you if you had OD’d on barbiturates!
Judges cannot thwart the will of the people, it simply can’t be done. The power still resides where it should, even when that power is ill-used. But the power of the majority will is perhaps the only source of power in our system that lacks a reliable check-and-balance. If roughly 51% of the population becomes wholly committed to the persecution of left-handed redheads, my son is toast.
Does that strike you as silly? Why? He has no more control over those aspects of his being than I can decide to be homosexual or not. Those aspects of his being do not negatively affect his fellow citizens, he does not afflict them. (Well, not unless he chews through his straps and escapes…).
Our best hope for justice lies with the rulership of the people. But if it is unjust, it makes no difference whether the injustice issues from an elite cadre of effete snobs or from OzzienHarriett. It still unjust, and demands to be resisted. In this instance, that resistance is almost entirely symbolic, no actual violence is done to the people’s will, your Lincolnesque effusions notwithstanding.
Adn what if it worked? What if these activist judges actually provoked a re-thinking? Americans see gay people getting married and go “Hey, they aren’t so scary, that guy looks like my Cousin Frank…hey, wait a minute…”. What if thousands and thousands of gay people get married in Massachussetts and nothing happens? Maybe we can construct some polite compromise around civil unions and “the sanctity of marriage” and move on to some issues that fucking matter!
I submit to you that, under those circumstances, our “activist judges” would have rendered noble service to the Republic. And since they haven’t the power to thwart the will of the people anyway, what’s the harm in trying.?
THIS is what you’re arguing for… and it’s not a crazy point of view either; much of our law derives, as I said above, from the common-law system, where judges essentially did what you propose: as representatives of the King, they imposed Just solutions on their cases.
I have two problems with it. I believe that by handing such power to judges, we create a dangerous precedent to follow; and I believe that it ill-become these shining examples of our Conscience and Censor, and their defenders, to not forthrightly acknowledge that this is what they’re doing. It took you long enough to come out with it in this thread, and I appreciate your doing so. But much more often than not, they are doing what Hamlet alluded to people doing above: applying a “with bite” test but not acknowledging it.
And that’s dangerous because it, too, creates a bad precedent.
Why are these precedents so dangerous?
John Mace hit the nail on the head. Right now, you’re cheering the Conscience of the Nation as the judiciary.
George Bush will appoint the next couple of Supreme Court justices, and scores of federal circuit court judges and district court judges. Right now he’s locked in a fight in the Senate, because the Democrats wish to ensure he doesn’t appoint zealots. But he’s going to win that fight, and not only swing the balance of the Court to the right, but populate the lower courts with like-minded folks. Even if the Democrats take back the White House, the candidates for any future appointments come largely from the federal circuits; Bush will have colored the water in that well significantly.
My point is obvious: what happens to you when the Court, relying on your endorsement as the Conscience of the nation, repeals Roe v. Wade? It’s not follwoing stare decisis, of course, but all these nicities of the law don’t apply when the law is unjust and egregious. Right? What happens when Jose Padilla, Round II, happens, and the Court rules that the president’s determinations, or the attorney general’s determinations, are absolutely unreviewable - or, worse, that they ARE reviewable… and they agree with the review?
If we don’t like what Congress is doing, we can re-elect them; each one of those guys has a two-year contract. Senate - we can fire a third of them every two years if we want. We can boot the President in four years. Our state governors and legislatures are on similarly short leashes. It’s only the judges that we cannot reign in.
So what, you say? The judges have no real power.
But we are a nation of laws, not men. As long as we accept that and act accordingly, judges have great power. When we view Rehnquist’s lack of a regiment of artillery as a reason to say, “Let’s ignore him this time,” we have simply broken our government… and I fear the consequences will be much worse than a bunch of Indians marched out of Georgia. And that was pretty bad, itself.
Kind of a fuuny pun, but unintentional at the time.
Rein. Rein in.
You’re comparing apples and orangutans.
Marriage, in ths context, is an entirely technical state: our bent brethren and sistren are married so long as the judges ruling still holds. That marriage dissolves when that judge is overruled. Net result: diddly squat.
When the Scalia Court (now there’s a phrase to chill the very soul!) slouches towards D.C. to be born, and sets about dismantling Roe Vs. Wade, there will be very real consequences. Not to the wealthy, of course, these sorts of vexations hardly ever are visited on those with the means to evade them. But the poorer women amongst us will have no option but recourse to an underground, illegal, and hence unregulated, abortion. And some of them will die.
We have largely forgotten this, save for those of us who are as long in years as we are in wisdom. But there are undoubtedly health care workers amongst us who do remember death by septicemia as the bullet in the Russian roulette gun of illegal abortion. It happened then, and it will happen again. Young women will die as a result of that ruling. And with all due fear and loathing, I believe that is precisely what is going to happen. I am a pessimist, and I am seldom surprised.
No such comparison is worthy of serious consideration.
The trouble being, you are simply defining the courts as being “the 143rd division of gay paratroopers” and then your objection drops away. And your last statement is begging the question. As I mentioned, you need to point out where in the Constitution it gives judges the power to define new rights.
Such is not their “constitutional power”. That power is reserved to the states or the people, quite clearly and explicitly.
Then we are in agreement, and all that remains is for you to point out where in the Constitution it says that “equal protection” means gay marriage.
Again, please point out where in the Constitution it says that rights can be defined by the courts.
And I don’t find it odd at all that the courts have found that they can do what they want. This tendency to increase your own power is a natural human one, common to all three branches of government. Our system of checks and balances is meant to rein in that tendency. The check in this case, I believe, is the actual text and process as set forth in the Constitution. Judges should be limited to do only what the Constitution says they can do. The Constitution does not say that they can establish gay marriage as a right. Ergo, they cannot do so. The states or the people can.
But you seem to want to remove to a large degree that check from the courts. It does not seem to matter that the Constitution does not give judges the right to establish gay marriage (or any other new right). Yet you seem to want them to go ahead and do so anyway. What check then remains on the power of the court? Their own discretion?
No, not really - you are trying to interpret the Constitution without being strictly bound by what it actually says, or any limits it actually imposes.
Again, please quote from the Constitution where it gives the Court the power to recognize new rights.
Well, no - damn those people for trying to establish new rights the wrong way.
And it doesn’t seem that those who oppose gay marriage are in the minority, or SSM proponents would not be trying to make an end run around the Constitution process.
Very little is below me.
Also, the ones attempting to redefine the Constitution are on the other side. They are trying, mostly thru repetition, to redefine “equal protection” to mean “gay marriage”, based, apparently, on nothing more than a fervent desire that it be so. And can suggest very little by way of checks on judicial power, once their pet projects have been forced on the rest of society.
Put it this way. Suppose you have been successful in establishing your new Constitutional duty for the courts to establish whatever they approve of. And, as a result, there is a backlash, and the Senate removes the filibuster on judicial appointments. And they then approve packing the Supreme Court with as many clones of Judge Roy Moore as they can.
You now have a five or six Justice majority of folks like that. And their notions of what is a good idea differs markedly from the status quo. So they get busy.
What do you suggest be done if they rule that the Constitution outlaws gay marriage, and mandates the Ten Commandments on every courthouse lawn, and “under God” in the Pledge of Allegiance, and protection for the rights of the fetus as a citizen, and basically takes exactly the opposite of every new right you have been at such pains to ensure could be established by judicial fiat?
What do you do, in other words, when you rely solely on the wisdom and discretion of nine philospher kings - and it turns out they disagree with you?
Regards,
Shodan
For that matter, where does it say in the Constitution that the Supreme Court can perform any of the functions it usurped in the days of Czar Madison?
You say we ask that rights be “created”, as if the Constitution were prised apart and a new right hammered into the breach. We say that human rights exist, and that the Constitution recognizes a goodly number of them explicitly, and a larger number implicitly.
The Constituion is not Holy Writ, nor is it wholly written.
Bullshit. That is not the argument, and you damn well know it.
Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
You go on to argue that a right does not exist unless granted by the Constitution. 'Tain’t so. The default case is that the right exists. To continue:
Amendment 14: …nor deny to any person within its jurisdiction the equal protection of the laws.
*Any * person. No exceptions noted, for gay marriage or otherwise. But then you know that too.
Welcome aboard.
I don’t follow. Are you saying that it won’t happen, and therefore the comparison shouldn’t be made?
Or that it WILL happen, and the consequences are far graver than same-sex marriage’s demise? If so… you’re arguing MY side. I agree it may well happen, and with potentially grave consequences such as you describe. But that’s a reason to NOT place unfettered power in the judiciary - right. If the Scalia court, with new Justices Pickering and Brown replacing Ginsburg and Stevens, suddenly finds a 5-4 or 6-3 majority to overrule Roe, finding that the Due Process clause protects the life of the unborn, what will your argument be? You have advised us to place that power, unquestioned, in the courts’ hands; what will you say when they do something you don’t like - something that has grave consequences?
Wait. I thought we dispposed of that argument a few pages ago.
If it’s any person, why doesn’t my ten-year-old nephew get to drive a car and vote? It says “any person.” No exceptions noted, for age or otherwise.
Yup, that’s the argument all right. Hamlet has apparently rejected this argument. I assume you are doing the same. Well and good - now you need to go on and do what is necessary to show that your ideas on SSM are explicitly put forth in the Constitution. Unfortunately -
Note the absence of the words “and shall be establsihed by the Court at their sole discretion” in the above.
Nope, wrong again. You are arguing that rights exist as soon as the courts establish them. This is specifically contradicted by the Tenth Amendment.
I suspect you don’t know that “all along”, since any idea not your own seems to find no place in your skull, but it is the case nonetheless.
Now all you need to do is what was requested all along - point to the text in the Constitution where it is made clear that “equal protection” means “gay marriage”.
Regards,
Shodan
Bricker: We disposed of *that * one a while back. But, since you either didn’t notice or (more likely for you) refused to get it: There are other rights at play, too. I can certainly enumerate rights held by other people that would be infringed by allowing children to drive. But there are no rights held by other people that would be infringed by recognizing the right to marriage to be held by all persons. No “legitimate purpose” for discrimination means it isn’t permitted under *any * standard, and there’s no purpose that can even be articulated much less considered legitimate.
But perhaps you knew that, too, and your avowed amoralism let you say the contrary just for the fun of arguing.
Got anything left to complain about ?
Incidentally,
More wishful thinking combined with factual inaccuracy on your part. The proposed amendment would not “ban gay marriage”, it would guarantee it, albeit under the name “civil union”. Even so, it just barely passed, after some compromise in which legislators who feared backlash joined with genuinely anti-rights ones who needed some cover. Since then, several anti-rights legislators have lost, more than the margin, and there’s a new Speaker who’s opposed to even bringing the bill up again. Furthermore, the climate has changed. The sky over Massachusetts hasn’t fallen, we haven’t been visited by the wrath of a vengeful God (at least not more so than other states), and voters who had misgivings have been able to get used to the sight of the nice young men down the street wearing rings now. It is not realistic to think this amendment would pass, and even if it did, only the name would change. It’s over. Get used to it.
Please. You know better, too. That isn’t “his version” of justice, it’s the Constitution’s.
Shodan, you’re being even more ridiculous than usual. What part of “The default case is that the right exists” is giving you trouble?
The part where you have quoted the Constitution showing that “equal protection” means “gay marriage”.
Regards,
Shodan