Sorry, guys, looks like you're back to living in sin

[Bricker]

@SolGrundy

If the sex of the participants is the crucial definition of the “right,” then how does that apply to women’s suffrage? Traditionally, women were denied the right to vote based solely on their sex. Did the 19th Amendment suddenly make up a new right and suddenly grant it to women?

Yes! That’s EXACTLY what the Nineteenth Amendment did! And very appropriately, I might add: the courts were not asked to read the Fourteenth Amendment and discover in its text a right for women to vote. Instead, our elected representatives ratified an amendment to the Constitution to secure that right.

If so, then why is the wording of the amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” Sounds to me as if they’d always had that right by virtue of the “all men are created equal” philosophy, and the amendment was necessary to prevent the states from removing that right?

No, that’s the standard language. The Fifteenth Amendment says the same thing about the vote for blacks: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Yet it’s clear that they had not “always” had that right. The phrase is simply directatory: it establishes the right and forbids the US or any state from denying or abridging it.

Would it have been part of the normal judicial process to create a secondary voting status for women? That bestows all the same voting privileges as a “real” vote, but isn’t called as such? Would it have been acceptable to leave it to the states to decide, creating a situation where some states allow women to vote but others deny it because of the will of the people?

Sure. That’s exactly the way it was for a while: some states permitted women the vote and others did not. And fashioning a judicial solution to that based on the Fourteenth Amendment would have been wrong.

And since this post is sounding too much like a Great Debates post and not a Pit post: How much longer are people going to keep fucking arguing semantics and precedent and tradition and family values and “these things time,” to try and distance themselves from the core issue and admit that there’s an injustice here?

Who’s arguing the presence of the injustice? Not I. I am arguing over the correct means to fix it.

(By “injustice” I mean the unequal access to the rights and privileges available to opposite-sex couples through marriage. I do not concede that the very word “marriage” being unavailable to same-sex couples represents an injustice. As long as there is an equivalent state under the law, I have no problem with it… indeed, I have proposed before that government remove itself completely form ‘marriage’ and grant civil unions to ALL couples, with ‘marriage’ to be left to individual religious traditions.)

[SolGrundy]

@Bricker

Who’s arguing the presence of the injustice? Not I. I am arguing over the correct means to fix it.

(By “injustice” I mean the unequal access to the rights and privileges available to opposite-sex couples through marriage. I do not concede that the very word “marriage” being unavailable to same-sex couples represents an injustice. As long as there is an equivalent state under the law, I have no problem with it… indeed, I have proposed before that government remove itself completely form ‘marriage’ and grant civil unions to ALL couples, with ‘marriage’ to be left to individual religious traditions.)

Well, I obviously don’t agree with you about the “source” of human rights, but that’s just an academic argument that’s not really doing anybody any good.

The word “marriage” being reserved for same-sex couples definitely does represent an injustice. It reinforces the idea that the government and by extension society does not recognize same-sex partnerships as being as valid as heterosexual ones. It’s as simple as that. When two consenting, monogamous adults make a lifelong pledge of commitment, love, and honor to each other, what is that if not “marriage?” Saying otherwise is obstinate and insulting. And the hypocrisy of people who claim that the union of a loving homosexual couple is an “insult” to their own marriage, is simply unbelievable.

And what good can come from having the government “get out of the business of marriage” entirely? That’s an insult to everyone. It tells heterosexuals that their unions are somehow no longer the same. That they have to suffer now because the homos are gettin’ all uppity.

And why? Because people just refuse to accept that two people of the same sex could possibly want to be together, and that their love is as real as anyone else’s. It’s worded to sound like reasoned compromise, but at its core it really is nothing more than homophobia (and believe it or not, I don’t throw that word around lightly). It’s exclusionary, it’s “separate but equal,” and I can’t believe that people are honestly promoting it after all we as a society have supposedly learned over the past hundred years about what’s right and what’s wrong.

[Miller]

@Bricker

There are many differences between marriage and a generic civil contract. Contracts must have a definite duration; marriage is agreed to in perpetuity. Contracts must spell out all their terms; marriage confers rights and obligations that cannot be changed – unless, of course, a separate contract is entered into. Marriage is a legal status which requires the approval of the state; contracts do not.

I’m not sure I see why those differences make a difference. None of them are related to gender, so I’m not sure why the generally accepted practice of allowing any two people of any gender to enter into a contract wouldn’t apply to marriage.

Is marriage the only civil contract that has unique features to it? Is there any basis for forbidding two people of the same gender from entering into one of those contracts?

[sturmhauke]

@John Mace

How long have you been following election results? It passed by a lot more than “a few percent”:

Sorry to take so long to reply, I was out of town. I guess I underestimated the narrowmindedness of my fellow Californians.

[Polycarp]

Jesus Christ, Bricker!! I can respect anybody’s theory of constitutional explication, including your “original intent” ideas – but quite bluntly, you’re throwing out decisions dating back to Chief Justice White about what the 14th Amendment means. And if it is so fucking obvious that the intent was to bar discrimination on the basis of race, why in the name of all that’s holy did it take SCOTUS from 1867 until 1948 to discover that fact?

And with regard to Lawrence, I’ve read Justice Kennedy’s opinion, and I’ve read your interpretation of it. I prefer Tony Kennedy’s thinking and his prose.

There are terms for people learned in the law who use their skills to restrict people’s rights. I’m fairly certain you don’t wish to be called by any of them, even in the Pit.

So how about taking a stand for constitutional law as it’s been interpreted for 80 years or so? Maybe it needs changing, but I think it deserves respect. What you’re saying is somewhere to the right of Justice Scalia, for Pete’s sake!

[Bricker]

@Polycarp

So how about taking a stand for constitutional law as it’s been interpreted for 80 years or so? Maybe it needs changing, but I think it deserves respect. What you’re saying is somewhere to the right of Justice Scalia, for Pete’s sake!

Calm down there.

I am not advocating the complete demise of stare decisis. Flawed as I believe the method of substantive due process is, I agree it has shaped our case law for so long that to ignore or overturn every decision so based would create turmoil.

What I am saying, however, is that merely because the error has been made for so long is no reason to continue it. The water from the past is already under the bridge; I am simply advocating that we do not continue to let it rush.

And if it is so fucking obvious that the intent was to bar discrimination on the basis of race, why in the name of all that’s holy did it take SCOTUS from 1867 until 1948 to discover that fact?

That’s not quite what happened. Back in 1896, the Supreme Court acknowledged that the Fourteenth Amendment forbid racial discrimination - just not separation of races by law; as long as the facilities provided were equal:

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.

It was the “as long as” part of the view that changed in 1948 with the correct (and overdue) recognition that the racial separation arrangement could not, as a matter of law, ever provide equality.

But there was never any confusion concerning the Fourteenth Amendment’s primary applicability to race.

And with regard to Lawrence, I’ve read Justice Kennedy’s opinion, and I’ve read your interpretation of it. I prefer Tony Kennedy’s thinking and his prose.

So did a majority of the Court. That’s why it’s the law now, as ill-advised as I might think it was. Where was your vaunted support for stare decisis during the pendancy of that decision, by the way?

There are terms for people learned in the law who use their skills to restrict people’s rights. I’m fairly certain you don’t wish to be called by any of them, even in the Pit.

“Patriot”? “Fan of the Republic”?

Look, the right that I value the most as an American citizen is my right of self-governance: to elect, with equal voice as my neighbors, the leaders that will enact and enforce the laws under which we all agree to be governed. If a polygamist, for example, were to point at me and wail that I am using my knowledge of the law to restrict his right to have multiple wives, I would be content in that description… because what’s being expressed in such restriction is the consent and will of the majority of my neighbors.

As things now stand, the homosexual that seeks to marry another of the same sex is similarly situated. I would solve his problem at the legislature, not through the courts.

• Rick

[SolGrundy]

@Bricker

“Patriot”? “Fan of the Republic”?

Look, the right that I value the most as an American citizen is my right of self-governance: to elect, with equal voice as my neighbors, the leaders that will enact and enforce the laws under which we all agree to be governed. If a polygamist, for example, were to point at me and wail that I am using my knowledge of the law to restrict his right to have multiple wives, I would be content in that description… because what’s being expressed in such restriction is the consent and will of the majority of my neighbors.

Seems to me that if you trully believed in self-governance, you would recognize the injustice in having the majority of my neighbors telling me that I don’t deserve to be married, when my marriage would have absolutely no impact on them whatsoever.

I wasn’t under the impression that being a Patriot and a Fan of the Republic meant taking court decisions that re-inforced the idea that couples’ love for each other was “invalid” in the eyes of the state, and rubbing their noses in it and saying “See, this is proof that America Works!”

But then, what do I know? I’m just another one of those “wailing” homosexuals, apparently.

I hope you are able to remain so content in your feelings that the will of the majority rules above all, and that you’re never placed in a situation where the closed-mindedness of others actually affects you personally. Because believe me, it sucks. And having to listen to people disguise their bigotry and ignorance with words of “the will of the people” and “the way it’s always been” is pretty fucking frustrating.

[Dead_Badger]

@Bricker

Look, the right that I value the most as an American citizen is my right of self-governance: to elect, with equal voice as my neighbors, the leaders that will enact and enforce the laws under which we all agree to be governed. If a polygamist, for example, were to point at me and wail that I am using my knowledge of the law to restrict his right to have multiple wives, I would be content in that description… because what’s being expressed in such restriction is the consent and will of the majority of my neighbors.

Are there any areas which you believe should be immune to legislation? Are you happy with any stricture as long as it represents the will of the majority? Fundamentally, is there no aspect of people’s personal lives that you do not feel the majority should get to dictate?

Personally, the right I would value most is the right to live my life as I choose, providing I do not adversely affect the rights of others. The “right” to have any aspect of my life determined by consensus seems rather pale by comparison.

[Polycarp]

Then we don’t need a Constitution or judicial review.

Or, most especially, all those fancy terms and legal fictions like “corporate persons” and “due process” that serve to make money for the legal profession.

Why not an initiative banning the practice of legal representation for compensation? That doesn’t even violate any constitutional right.

Hey, if we can pass laws that say some people can marry each other and others can’t, how about ones that say that (a) only clergymen ordained by a bishop in the Apostolic Succession can officiate at marriages, (b) you may not say that something is a sin, under penalty of law, © the only dog that may legally be kept as a pet is a golden retriever, (d) everyone shall wear matching outfits selected by a fashion consultant, (e) the killing of people who practice hate speech is not murder but perfectly legal. Don’t those sound like good laws? And if a legislature passes them, and courts cannot decide that they don’t fit the constitutional guarantees, then they’re perfectly good laws.

I used to have great respect for the law, but lately I’m beginning to agree with Bumble.

[Bricker]

@Dead Badger

Are there any areas which you believe should be immune to legislation? Are you happy with any stricture as long as it represents the will of the majority? Fundamentally, is there no aspect of people’s personal lives that you do not feel the majority should get to dictate?

Personally, the right I would value most is the right to live my life as I choose, providing I do not adversely affect the rights of others. The “right” to have any aspect of my life determined by consensus seems rather pale by comparison.

What PROCESS, what METHOD, do you propose, Dead Badger, for analysis when I contend that your choices have adversely affected me and my rights?

You take heroin - you claim that affects only you, and does not affect others’ rights. I claim that the clear and compelling evidence is that heroin causes addicition and crime in order to feed the addiction. Who decides?

You listen to Fox News - you claim this choice affects only you, and does not adversely affect others’ rights. I claim that by listening to Fox News, you are given deliberately distorted pictures of the world and events as they occur, and you are thus unable to conduct your life in a properly informed fashion, which adversely affects me. Who decides?

It’s all well and good to say propose your principle. But what, specifically, is the METHOD by which it is implemented?

[Dead_Badger]

@Bricker

It’s all well and good to say propose your principle. But what, specifically, is the METHOD by which it is implemented?

Indeed, I believe it is (does this mean you agree with the fundamental principle?). I believe it’s a much better principle than yours of “anything we can vote on, we can do.”

As for method; I’m not a lawyer. I’m not going to try and enter a debate with you in legalese, because you will surely rip to shreds any standard I try to propose. I find it worrying, however, that you seem to believe that there is essentially no way to enshrine limits on governmental behaviour into law. It’s funny, because I believe there are several such limits already in the constitution. I don’t see why personal freedom is more difficult to enshrine than the right to carry guns or right to freedom of religion, but then I’m not a lawyer, and lack understanding of such prime concepts as METHOD and PROCESS. Instead of just capitalising the words to make them seem scarier, however, perhaps you could explain why personal freedom is such a tricky concept in this context, when freedom of religion is not?

To specifically address your heroin argument, I would counter that the crime and stigma is the very product of the oppressive laws that remove our personal freedom to choose what we do with our bodies. And you may come back, and so on. One of us may prevail. If I show that unlegislated heroin harms no-one, then no law may be passed to restrict its use. And if you make a compelling case that my taking heroin does in fact infringe the rights of others, then that’s marvellous, and legislating heroin will be entirely compatible with my ideals. I don’t see why this represents a problem, conceptually. I believe that the higher courts resolve such questions of interpretation on a fairly regular basis, although here again I could well be wrong.

Personally, I believe the reason you keep resorting to heroin analogies, and polygamists, is that you can plainly see that a compelling case for the infringement of third parties’ rights simply does not exist in the context of SSM.

The situation we have at the moment, ignoring the more personal state recognition / legitimacy aspects of marriage, is that straight people are, in effect, voting themselves the money of gay people, saying that they do not deserve it simply because they are gay. This is a direct result of your “most valued right as an American citizen.” Are you happy that this is the case?

[Bricker]

@Dead Badger

To specifically address your heroin argument, I would counter that the crime and stigma is the very product of the oppressive laws that remove our personal freedom to choose what we do with our bodies. And you may come back, and so on. One of us may prevail. If I show that unlegislated heroin harms no-one, then no law may be passed to restrict its use. And if you make a compelling case that my taking heroin does in fact infringe the rights of others, then that’s marvellous, and legislating heroin will be entirely compatible with my ideals.

“If you show…” who?

If I make a compelling case… to who?

[Liberal]

I’m just glad that I lived long enough to witness Poly’s epiphany. I love you, man.