I just realized it last night, that we are dealing with some homophobes here who wish to make it appear to us all that their homophobia is all quite rational and legal by sugar-coating it with a lot of legalese nonsense. :rolleyes:
Since at a fundamental level - that gays don’t even have a right to marry - we can’t even agree, I don’t even know why I’m bothering with them.
They’ve made it quite clear (to ME, at least) that they do not accept that gays have a human, civil right to marry, and, surprise, they never will accept it. In fact, the courts and most of society will accept that idea before they do. So, don’t even waste your time.
Oh, heavens, no. You see, thankfully we have a judicial branch to correct such egregious harms as you and yours would like to see inflicted.
Look, Shodan. Imagine that I and a bunch of System Shock fans were of a large enough majority to get the Shodan Cannot Marry Anyone law passed in your home state, which declared you unable to marry anyone. Would it occur to you that given the fact that the people writing the laws were idiots, it would be a damn good thing to have people around to keep the foolish laws to a minimum?
Also, I will assume charitably that you missed Homebrew’s response. Do you have a counterpoint?
Well oddly enough, I’m pretty sure it is and if you had understood the following paragraph you would have noticed the reasons why I meant that.
You are missing the point, any amendment means that the Constitution does now address this right and that means making a choice that the states should have that power, but why should they? Apparently you are of the view that no more rights should ever be protected by the constitution:
So you would have also been against the 13th, 14th, 15th and 19th amendments before they were passed since at that time those human rights weren’t established by the Constitution or by the states, or by the people?
If most new appointees don’t want to protect the Constitution then that would be true.
But you have been arguing that if SCOTUS decides there is such a right, then an amendment is necessary? I’ll quote what I wrote in that segment: “I never said that any of the amendments state that gays should not have equal rights, the amendments explicitly say that the Constitution does not secure equal rights for gay people.”
Clearly, it does not address gay rights specifically, but I do not agree that it does not cover them.
Now you’re against any amendment? Since when is SCOTUS and it’s judgements not open to the public?
I’d guess they’re getting desperate, quoting all these facts and cites and quotations and cases and principles and … :rolleyes:
I mean, don’t get me wrong, that’s important, but you know what I mean… They sound kind of frantic. That’s encouraging.
They know that The Netherlands and Belgium and Canada now have SSM, MA will soon, maybe New Jersey, other states (Hawaii? CT, maybe?), and eventually, it will be as normal as marriage between heterosexuals. A fringe benefit will be (among other things) that it will be a step towards making homophobia seem as evil as anti-Semitism or racism.
And for good measure, the article also sneers at folks like Bricker who foolishly, laughably believe that a state-by-state solution, or civil unions, will preserve marriage. And you wonder where people got the impression that all conservatives are flatly against any legalization of gay marriage?
Actually, Shodan wouldn’t even have to turn to the Bill of Rights or to the Civil War Amendments on that one. Since the law singles him out by name, it is a bill of attainder and thus forbidden by the text of the main body of the constitution.
Fuck you. I mean, really, fuck you. Christ, are you an asshole. In this thread and others I have repeatedly pledged my support for the legislative enactment of civil unions and for the repeal of sodomy laws. Just because I don’t think these things should come about by judicial fiat does not mean I think I think gays ought not have the right to marry.
Yes, imagine in a discussion about law and the courts we’d actually have the temerity to bring up what the law actually says. The mind boggles. :rolleyes:
As for Homebrew and Otto and the Romer decision, I’ll just incorporate Bricker’s last few posts in reply. Why you guys can’t seem to understand this simple point is quite perplexing. “Rational basis” essentially asks two things: (1) is there a rational interest at stake, and (2) does the challenged law bear a sufficient nexus to addressing that interest? Romer found the Colorado law unconstitutional on plank #2, not plank #1.
Yes, when I start, you know… quoting the law, and stuff… it’s a sure sign I’m on the ropes.
Or maybe I’m addressing a legal point with legal reasoning.
You make the call.
Oh, good grief. Have you read my posts?
I am not fighting legal recognition of same-sex marriage in this thread. If Kansas, Nebraska, and South Dakota wish to legalize same-sex marriage, I have no real objections.
Please re-read my commentary above, nisobar, and let’s play a game. Please put yourself in my rhetorical shoes for a moment, and provide a good-faith, honest recap of my argument. Re-read everything I’ve said in this thread. Do I really have any heartburn with any actions in this area that, say, North Carolina may wish to take?
Rick
*Incidentally, New Jersey may not be leaning the way you wish: see Lewis v. Harris, just recently decided. Nor would I point to Hawaii in support of your view. There, the Hawaii Supreme Court decided that the state constitution required the state to sanction same-sex marriage, and the voters of the state quickly ratified a constitutional amendment clarifying the fact that the state constitution did NOT require such recognition. I’m just sayin’, is all.
It’s very funny that you would do this, since I seriously considered incorporating by reference YOUR last post instead of trying to explain it again. Heh.
Instead, I tried to explain the issue in simpler language, hoping that this would bridge the conceptual gap.
It ain’t working.
There are legitimate arguments to be made for federal recognition of same-sex marriage, but asserting that Lawrence was an equal protection case (or that Romer found no rational interest) are not among them. I don’t know how to explain it any better, except to note that the opposition in this discussion has repeatedly tried to steer the discussion away from the “legal bullshit” and towards the simple waters of “me like, it’s good, you no like, you no good,” as though it was completely unimportant HOW we get there.
Yes, and of course, it’s all perfectly rational and reasonable to see that the US Constitution, neither in letter nor in spirit, protects the right of gays and lesbians to engage in the same civil contract which is a right extended to heterosexuals, and additionally, to imply that it’s gays and lesbians who are looking to hijack the Constitution and radicalize it for their own selfish reasons. I’m sorry, but that’s simply wrong and a homophobic interpretation. I don’t believe for a minute that the Constitution was intended to be used to advance prejudice. Maybe you aren’t a homophobe as such, but that interpretation is, IMO.
Anyway, there isn’t any point in my continued participation here. I can’t agree with your arguments even from the get-go. I’ve said my bit. Thanks.
THE FEDERAL CONSTITUTION IS NOT THE MORAL GUIDE OF THE LAND.
If someone believed that the Constitution should be limited with respect to gays, but in all other ways endorsed a far-reaching, fluid, interpretive approach, then I would agree that this could be considered homophobic.
But the approach being offered here is not motivated in the slightest by homphobia. If it were, why would both Dewey and I have repeatedly voiced support for legal sanction for same-sex couples - just at the state, not the federal, level? And why have we repeatedly taken similar positions in other threads on matters unrelated to sexual preference?
I suppose it’s possible to conclude that we are wily in our homphobia, carefully selecting areas in which we feel we can win. But given our vociferous support of an interpretive model which assigns to the states a great deal more than is currently in judicial vogue – support which substantially predates the present debate – isn’t it far more likely to conclude that the way we feel about federal vs. state powers has no particular grounding in how we feel about homosexuality?
This is similar to the tactic used by the Michael Jacksons of the world: anyone who seeks to prosecute Michael, suggests this line of reasoning, must be a racist. After all, Michael is black, the prosecution of Michael is clearly inimical to his interests, so, therefore, anyone prosecuting Michael must be inimical to the interests of blacks. It’s a flawed argument. It’s Affirming the Consequent to start, with a bit of Ad Hominem thrown in for flavor.
It seems nisobar won’t be posting any more. That’s fine. But for everyone else still in this: stop tossing accusations of homophobia around. Apart from being offensive, they are irrelevant. Either the argument can be addressed on its merits, or it cannot.
It ain’t working because you’re both wrong, despite your patting each other on the back. As my last post shows using quotes from the Supreme Court opinion, Romer failed the rational basis test, not because it was over-broad but because it lacks “rational relationship to legitimate state interests”. Likewise Lawrence explicitly mentions Equal Protection. Plain and simple. Your hand-waving does not make it go away.
I’m still waiting for you to answer my challenge by the way.
No, you are mistaken. The states and the people have the power now. An amendment is thought to be necessary because the Court, by making an arbitrary ruling not based on the text of the Constitution, may attempt to overrule that power. IOW, why should the states, or the people, have that power? Because that is what the Constitution (in the Ninth and Tenth Amendments) say that they do. Why should the Court not attempt to abrogate that power? Because the Constitution does not give them the power to make new law, which interpreting the Constitution as saying “anything that a liberal thinks is a good idea” would do.
No, I am of the view that new rights ought to be established “by the states, or the people”, as explicitly set forth in the Constitution.
Don’t be silly. Amending the Constitution is a very different process from allowing federal judges to make new provisions up as they go along. By definition, amending the Constitution involves the states and the people.
Right. And if old appointees don’t want to protect the Constitution, and would rather read their own preferences into it as law, it would be true as well, and is what this amendment is meant to forestall.
I am reluctant to amend the Constitution generally, but I am even more reluctant to abandon the process of amendment altogether in favor of a panel of judges deciding that whatever they feel like is what the rest of us have to do.
And perhaps you noticed that the Supreme Court is not elected (or re-elected), not subject to review by a higher court, its deliberations are in secret, and the only method of appeal from its decisions is Constitutional amendment - which amendment is also subject to Supreme Court “interpretation” past the point where it would have any meaning.
So suppose an amendment passes that explicitly says that the states may determine who may or may not marry, and such decisions are not subject to review by the Supreme Court. So the Court, dominated by liberals determined to impose their vision on society, rules that gay unions are not marriage, and must be recognized by all states. So we pass another amendment saying that gay unions are marriage. And the Supremes rule that any union of two gays is not a gay union, but a Voluntary Family Grouping, and is mandatory on all states. They can play that game forever.
Which is why I was (at least originally) reluctant to amend the Constitution to address the issue. That is, I was reluctant until some in this thread said, in essence, “I expect to be given what I want, and I refuse to consider the consequences or admit that they might be unintended”.
I do not wish to amend the Constitution to address gay marriage, either to outlaw it or to try to move the locus of decision to the states. I believe, under the Ninth and Tenth Amendments, that decision is already up to the states, or to the people, and thus the decision ought to be made either by Congress or the states’ legislatures. I do not want the federal judiciary to further distort the plain text of the Constitution to make it say what it does not say.
As Bricker keeps pointing out, and as I firmly agree, how we arrive at a decision regarding rights in America is nearly as important as what the decision is. If we trust judges to rule over us, we had better be aware that this is not a bell that can be un-rung. Perhaps today the Court will be 5-4 in favor of something we want. Perhaps tomorrow, not so much.
Again, it wasn’t the proffered state interest that was insufficient, but rather the relationship between the statute and that interest that was found wanting. Which is what we’ve been saying all along. This is not a complex point. Why you fail to grasp it is quite baffling – you quote and paraphrase language that supports our reading, yet still remained married to the idea that it was the interests proffered, rather than their relationship to the statute, that were deemed insufficient.
Your ability to pick individual words without regard to context is eclipsed only by your lack of reading comprehension. Lawrence was decided on substantive due process grounds, not equal protection grounds. Let me ask you this: if this is not the case, why did O’Conner write a concurring opinion? If the majority adopted her rationale for overturning the Texas law, why wouldn’t she just join in that opinion?
The principle, dumbfuck, the the guarantee of equal protection under the law enshrined in the Fourteenth Amendment of the United States Constitution. I have said this repeatedly. Is there something about it that confuses you? Is it beyond your ability to comprehend? Should I have it translated into some other language for your convenience?
I really couldn’t care less if you change your view of marriage at this point. You’re as far as I can see a hopeless case. more interested in the idea of sisters getting it on with each other than the inequalities currently embedded in the laws of the land of the free.
To say it again. I am not discussing sibling marriage or multiple marriage or any other permutation of marriage other than SSM. My concern is whether or not SCOTUS will eventually recognize its own precedent that marriage is a fundamental right and apply it in accordance with the Fourteenth Amendment. It is not my concern what those who wish to marry their siblings do, so long as it is not my brother who is popping the question.
I find it increasingly hard to believe you have a mind, much less one that can be changed.
Your intellectual dishonesty soars to ever-new heights. Opponents of SSM do not say “the United States has never recognized SSM.” Nor do I dispute the correctness of that statement, which they don’t actually make. No, opponents of SSM make statements like “Never in the history of the world has same-sex marriage been recognized” and “3,000 years of recorded history (although sometimes it’s “5,000 years” or even “6,000 years,” indicating that anti-SSM forces didn’t do very well in history class) offer no support to the notion of same-sex marriage being recognized.” These statements are the ones to which I was referring and it is these statements which are lies.
Bricker, rather than open up another post on this hamster-straining thread, I will just piggyback onto this one a hearty “fuck you, you hypocrite” for your position that marriage is a state matter while not simultaneously calling for the repeal of all federal benefits that apply to married couples.
Ahh wrong tense, switch ‘will’ for ‘does’ in “any amendment means that the Constitution does now address this right”
Although the context is clear from the paragraph that you were replying to: "Even if SCOTUS errs in taking away that power and the issue should have been addressed by the states (since it was not originally covered by the Constitution),* any amendment will now be addressing it."***
Methinks you did not understand what I wrote.
In response to my statement that the only possible answer as to why an amendment should allow states the power to discriminate against homosexuals also requires that you “support giving states the power to abridge every other human right.” you said "Every other human right that isn’t established by the Constitution or by the states, or by the people - you bet your life I support that. This is exactly what I am arguing in favor of."
Since the entire question assumed there was an amendment, the only way to read your statement is that states should have the power to abridge every human right that is not already protected by the Constitution or by the states or by the people. That can also be said of the rights provided by the amendments I mentioned before they applied. Assuming it actually was a mistake, and not you just dodging, I’ll ask again: why should the amendment allow the states the power to discriminate against gays?
Is that a yes or a yes unless SCOTUS makes a decision requiring one? You did say that they are misguided attempts to re-establish the rights of the states, which could only occur after a decision by SCOTUS, so I’m guessing it’s the former.
**I’ll just restate the main aspects of what I am trying to say with respect to states’ rights and an amendment: **
The Constitution does not address gay rights, per amendment 10 the states have the power to discriminate on the basis of sexual orientation by default.
SCOTUS (in error) finds a gay right to marriage (or right to equality regardless of sexual orientation) in the Constitution.
An amendment to allow the states to choose whether or not to allow gay marriage is proposed in response to (2).
If/When the Constitution did not address gay marriage, the power defaults to the states per amendment 10.
Once the amendment in (3) is ratified, it will address gay marriage.
Since the amendment will explicitly address gay marriage, amendment 10 does not apply, there is no default and the Constitution is what you make of it.
The amendment would allow the states the power to abridge the right and the question is: why do the states need that power?
The answer to that question cannot be grounded in amendment 10, since it doesn’t apply (6).
If the states should have the power but don’t need it (eg. limited government) then the same can be said about securing any rights.
The position in (9) is against any new rights being secured by the Constitution and possibly all rights that are already protected.
So do you have another answer or do you not support any amendment?
Dewey, you continue to misrepresent my position. I think it is intentional. Reviewing this thread I see that you and Bricker both claim I’m denying Lawrence was decided on Due Process and Romer was decided on Equal Protection. Those are givens. I contend that these cases were decided on these issues, as well as others.
I have never contended that Lawrence was not decided on Due Process Grounds. My contention is that it failed both Due Process AND Equal Protection. My position is supported by the text of the opinion. For some reason you and Bricker seem obsessed with the Syllabus rather than the Text of the Opinion. It is true that the Syllabus in Lawrence notes that the law failed on Due Process. However, the full text of the opinion says
It is clear from the text that law failed the Equal Protection test as well as Due Process. The Court decided that protecting Due Process in this case also advanced the cause of Equal Protection.
Likewise the decision in Romer is not limited to a single deficiency. As with Lawrence the Syllabus mentions the finding aruged by the petitioners. “Amendment 2 violates the Equal Protection Clause” I’ve never held that the Romer wasn’t an Equal Protection case. However, the full text of the Opinion expands upon the myriad of ways the law failed to pass muster. These failures include not meeting a “rational relationship to a legitimate state interest.”
BTW, I’m still waiting for your explanation of why Homosexuals shouldn’t have Equal Rights and be protected by a Strict Strutiny standard. Also, what is a rational reason for limiting SSM?
You poor, poor deluded soul. Can you not read the very text you posted? It basically says “OK, plaintiffs have, in addition to their due process argument, also advanced an equal protection argument; that argument may or may not be valid, but we don’t have to decide that because we’ve already decided the matter on substantive due process grounds.”
Indeed, the paragraph immediately preceding the text you quoted makes this clear:
I’m not sure I can be any clearer than that. The court explicitly stated that it was not finding the Texas law unconstitutional on the basis of the Equal protection clause. Why you persist in proclaiming this fiction is quite a mystery.
Again, you are mistaken. The rational basis test (literally defined as a “rational relationship to a legitimate state interest”) is part of equal protection jurisprudence. Finding that something fails rational basis is the same as saying it fails under equal protection. That is not an “expansion on the ways the law failed to pass muster.” It is part and parcel of judicial review under the equal protection clause.
Because that degree of scrutiny is limited to matters of race, because that was the problem addressed by the passage of the Fourteenth Amendment. Respect for the democratic processes that led to that amendment argue against its further expansion into other spheres.
Again: almost any reason. I don’t particularly agree with notions that gay marriage would necessarily weaken the institution, or that it impermissibly infringes on traditional notions of morality, or that society should be preserving particular traditions as if in amber, but the fact is that these are all reasons sufficient for purposes of the rational basis test. The only question is whether the law in question bears a sufficient nexus to those reasons as to survive judicial scrutiny. The law in Romer did not. However, the connection between the proffered reasons and the restriction of marriage to heterosexuals is much clearer and more direct than the Colorado statute at issue in Romer.
(Underlining added to forestall future accusations of homophobia.)
Re my quote reference – I realized after posting that I quoted the same part of the opinion you did, except you tacked on the first sentence of the next paragraph. Because of that, when I was reading this in the opinion, I mentally thought of what I wanted to quote as “the next paragraph up” from what you posted. I should have instead noted I was quoting from the same text you were quoting. My apologies for any confusion.
