USA Today - California's Prop. 8 ban on same-sex marriage ruled unconstitutional

[aREDSKIN]

In 2010, the value Judge Walker saw in the Jehovah's Witness case was how Justice Robert Jackson in 1943 addressed the "tyranny of the majority," a problem that's been around since at least 1835 when Alexis de Tocqueville first wrote the phrase in his book, Democracy in America.

The 1940 Supreme Court used "national unity" to justify forcing kids to salute the flag. It also said the threat of being expelled from school was a good way to achieve compliance. If anyone felt put out, the court said, he could seek remedy at the ballot box by asking the majority to see it his way.

When Justice Jackson got the chance to reverse the 1940 ruling, he tackled the ballot box notion head-on. He wrote that the "very purpose" of the Bill of Rights was to protect some issues from the volatility of politics and "place them beyond the reach of majorities."

"One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly," Jackson said, "may not be submitted to vote."

Rights trump elections

Judge Walker used Jackson's line in striking down the 52% majority vote that had taken away the fundamental right of gay and lesbian couples to marry in California.

http://www.usatoday.com/news/opinion/forum/2010-08-06-engardio05_ST_N.htm

I'm sorry where is gay marriage mention in here??

[Burgold]

Why do you think Bork was a good choice? What made him a good candidate?

[DRSmith]

I'm sorry where is gay marriage mention in here??

If you had gone to the link you would have seen that this was what the ruling from judge Walker was based on.

[rdsknbill]

I thought this whole thing was about Homo's getting married. Who the hell is Bork

[Burgold]

I thought this whole thing was about Homo's getting married. Who the hell is Bork

You're right. Sorry for letting myself get sidetracked. I just thought it was odd that he started talking about how Borking did this and then couldn't name anyone who'd gotten Borked... well, besides, Bork.

[twa]

If you had gone to the link you would have seen that this was what the ruling from judge Walker was based on.

If you read the actual ruling it is based on many different platforms and attempted justifications....that one not being paramount

he was rather far ranging and effusive,dare I even say erudite?

[rdsknbill]

You're right. Sorry for letting myself get sidetracked. I just thought it was odd that he started talking about how Borking did this and then couldn't name anyone who'd gotten Borked... well, besides, Bork.

Did you like the Archie Bunker reference? I was just trying to lighten the mood a little

[Burgold]

No, meathead. I do not!

Yeah, it was perfect.

[Madison Redskin]

Would someone direct me to an instance in which the courts or a legislative body extended civil rights to a group that has historically been discriminated against and it turned out poorly? It seems like social conservatives, who frequently rant that the extension of civil rights to groups that have been discriminated against will lead to the moral corruption of our nation, are consistently on the wrong side of history (e.g., slavery, discriminatory immigration policies, segregation, voting rights, interracial marriage, women's rights). When, exactly, were they proven right?

[rdsknbill]

Would someone direct me to an instance in which the courts or a legislative body extended civil rights to a group that has historically been discriminated against and it turned out poorly? It seems like social conservatives, who frequently rant that the extension of civil rights to groups that have been discriminated against will lead to the moral corruption of our nation, are consistently on the wrong side of history (e.g., slavery, discriminatory immigration policies, segregation, voting rights, interracial marriage, women's rights). When, exactly, were they proven right?

Try google ya tree hugger! Kidding of course

[twa]

Try google ya tree hugger! Kidding of course

Why google?.... everyone remembers giving women the vote :evilg:

[Larry]

Been over this before...people can and are treated differently(unequally) under our laws...Deny that if ya can:evilg:

Sure they are.

When society has a valid, clear, compelling reason why a citizen's rights must be restricted to protect the rights of someone else.

What's that got to do with "because we don't like their kind"?

[Larry]

You made a point about the importance of the constitutionality of a law (nobody has mentioned the Constitution WAHHHH)......I made the point that its not as credible as you like to think

You again ignored the Constitution, and brought up something completely unrelated.

(Gee, I wonder why you seem so determined to avoid talking about the Constitution? Couldn't possibly because it's absolutely clear or anything, could it?)

And are continuing to do so.

Bush v Gore, now?

What's your next "Ignore the Constitution! Let's talk about this other thing!" topic going to be?

[Larry]

That is if you accept his reasoning that SSM IS a fundamental right that is not subject to restriction.

That is, if you accept the utter myth that a document which says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

and

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

actually means

Any aspect of the citizen's lives, which are not specifically mentioned in this document, may be limited by the government in any manner whatsoever, for any reason, or none.

[Stugein]

Stugein,

I can understand that, but what if the people are wrong?

What if in the 90's with all the AIDs fear a community voted by popular vote that no homosexual will be allowed to have a medical licence and that all currently having medical licences will not be allowed to practice because gay people touching you will give you AIDS?

Should a court not have a say in that?

Jim Crow laws were hugely popular and I bet if you had states voting in the '60's and even 70's desegregation would have been hugely unpopular. Should they through popular vote be able to institute white only neighborhoods, businesses, waterfountains, schools, etc?

Just because it's popular doesn't mean it's reasonable or right. Much of the time the majority does things that are smart and just, but not always. I mean seriously look how many Cowboy and Eagles fans there are in the world. Sometimes, they are ruled by fear, prejudice, or hate. That's why we need an impartial court to review the fairness of all laws.

At least that's the way I view it.

I hear you. And part of me agrees. Yeah, that would've sucked. But in both examples I would hope that the enacting of those laws wouldn't have completely halted social progress or stopped further research into the matter as the case may be. More people would see the injustices. New research would show what the risks actually were. I would like to think that, while it may have brought about or extended a wrong, that the social consciousness would've eventually progressed enough that a new vote on the matter would overturn the law on the will of the people. This is similar to how I would've have liked to see the repealing of Prop 8...after debate and discussion and after hopefully progress in the sentiment of the larger population of California, get it back on the ballot. If it truly is right and it really really is what the people want, then let it be overturned by them.

[Larry]

I hear you. And part of me agrees. Yeah, that would've sucked. But in both examples I would hope that the enacting of those laws wouldn't have completely halted social progress or stopped further research into the matter as the case may be. More people would see the injustices. New research would show what the risks actually were. I would like to think that, while it may have brought about or extended a wrong, that the social consciousness would've eventually progressed enough that a new vote on the matter would overturn the law on the will of the people. This is similar to how I would've have liked to see the repealing of Prop 8...after debate and discussion and after hopefully progress in the sentiment of the larger population of California, get it back on the ballot. If it truly is right and it really really is what the people want, then let it be overturned by them.

You do realize that the position you're arguing is "The Constitution is useless, now that we're all enlightened, and all, and should be replaced with "whatever the people or their representatives vote for, goes"?

You're arguing that there's no need for the Constitution to say that Mississippi can't forbid blacks from voting, because they'd never pass such a law, today.

Let's take a more recent example: Does DC have the right to ban all guns, if the voters want to? Were the courts wrong to say that the US Constitution says that they can't?

And I'm not asking "did that court (in your opinion) correctly interpret the Second Amendment?" I'm asking "Do you believe that the Second Amendment is irrelevant to the DC gun ban, and should have been ignored, no matter what it said, because the will of the people was more important?"

[DRSmith]

Bush v Gore, now?

Ironic that the two laywers from that case are now working together arguing for gay marriage

[twa]

Sure they are.

When society has a valid, clear, compelling reason why a citizen's rights must be restricted to protect the rights of someone else.

What's that got to do with "because we don't like their kind"?

Explain allowing different age and parental consent laws

or banning polygamy...or the drinking age...or public nudity..or

These are not necessary to protect 'someone' elses rights,you are starting from a bad foundation.

[elkabong82]

you can't discriminate based on sexual orientation, and that is what bans on SSM do.

saying someone can't get married, in a LEGAL union (government, not religion) because they are gay is similar to rights violations under "separate but equal" doctrine once upon a time. And those against the change still use the same style of arguments and closet bigotry to try and justify why another group can't enjoy all the same rights they do. Gov't has as much right to say who can and cannot get married as they did telling black people where they could sit on the bus and which park they could go to, which is they have NO right to do so.

[twa]

you can't discriminate based on sexual orientation, and that is what bans on SSM do.

.

If it is as clear as you state why are bans allowed?

Things are not as simple as either side wishes to claim

As Rall would say confirmation bias is rampant:)

I'll practice some of it now;)

http://deanesmay.com/2010/08/04/perry-v-schwarzenegger/

Given that the state has decided to define and register marriages, I am a strong supporter of defining marriage to include same-sex couples. I voted against Prop 8, and I would vote to repeal it. I’ve argued in favor of fundamentally revising the federal Defense of Marriage Act. But I am not overjoyed by today’s ruling, for a number of reasons.

First and most importantly, I don’t think it’s unconstitutional for a state to continue to use the traditional common law definition of marriage, and I don’t think it’s wise or proper for a court to invalidate bad law that isn’t unconstitutional. In our system of government, policy questions belong to legislators and voters, and judges are supposed to be limited to legal questions. Based on what I’ve read so far of today’s ruling, Judge Walker appears to make some fundamental mistakes in interpreting precedent (I’ve read some the precedents he cites for the existance of a fundamental right to marriage, and those precendents specifically argue that there’s a right to marriage because obstructing a couple from marriage interferes with their fundamental right to reproduce; this reasoning does not translate well to same-sex couples), and he also appears to be ruling that Prop 8 is unconstitutional because he disagrees with the correctness of the state’s reasons for thinking Prop 8 was a good idea. I disagree with those reasons, too, but it appears the court is trespassing on turf rightly reserved for the democratic process.

Second, today’s ruling doesn’t actually accomplish anything. The decision has been temporarily stayed pending oral arguments on a stay pending appeal, and it seems very likely that the stay pending appeal will be granted. If the stay is granted, this ruling will be appealed to either a Circuit Court or directly to the Supreme Court, which will likely reexamine all the issues in the case, and Prop 8 will remain in effect until the appeal is complete. Even if the decision is not stayed pending appeal, District Court rulings on constitutional questions are limited in reach; until a higher court weighs in, other District Courts can and will interpret the constitutional questions differently.

Third, I think this case is a bad strategic move in the fight for marriage equality. The fight will be won or lost based on public acceptance of openly gay couples in general and of the idea that the word “marriage” can properly apply to same-sex couples in particular. That’s a fight of cultural persuasion that in broad strokes, we’re winning. But by taking the fight through the courts, we’re telling people that their views on the question don’t matter, and that we’ll go around them if they disagree with us by having courts rule that their concerns are illegitimate and nothing but bigotry. Insulting people is a bad way to persuade them. ...more @ link

[Larry]

Explain allowing different age and parental consent laws

or banning polygamy...or the drinking age...or public nudity..or

These are not necessary to protect 'someone' elses rights,you are starting from a bad foundation.

Every one of which has a societal justification behind it. (Although I'll agree with you if you said that some of the justifications are questionable. For example, what's the justification behind banning public nudity, other than 'I don't want to see it?')

(IMO, if you really wanted to pick an example of existing laws which don't have a "it infringes on other people's rights" justification, you should have picked the "victimless crimes" category: Prostitution, porn, drugs.)

Although I'll point out that even those examples are attempts to punish "people who do X" by making it a crime to "do X".

"Making gay sex illegal" has more of a logical justification that "well, we can't make it illegal, so we'll make it illegal for them to do something else".

[twa]

Every one of which has a societal justification behind it. (Although I'll agree with you if you said that some of the justifications are questionable. For example, what's the justification behind banning public nudity, other than 'I don't want to see it?')

(IMO, if you really wanted to pick an example of existing laws which don't have a "it infringes on other people's rights" justification, you should have picked the "victimless crimes" category: Prostitution, porn, drugs.)

Although I'll point out that even those examples are attempts to punish "people who do X" by making it a crime to "do X".

"Making gay sex illegal" has more of a logical justification that "well, we can't make it illegal, so we'll make it illegal for them to do something else".

There exists societal justification(questionable of course) against SSM

Goes back to how ya define marriage.

Still pitching the illegal falsehood?:beatdeadhorse: thats even less relevant than the equality issue ,which hinges on justification and of course harm

What are your feelings on the constitutionality of the Violence against women act?...discriminatory?...Justifiable?:saber:

[Larry]

(I’ve read some the precedents he [Walker] cites for the existance of a fundamental right to marriage, and those precendents specifically argue that there’s a right to marriage because obstructing a couple from marriage interferes with their fundamental right to reproduce; this reasoning does not translate well to same-sex couples)

Funny, I've just re-read the entire decision in Loving v. Virginia, (It's only a couple of pages), in which the USSC unanimously ruled that "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.", and which ruled that the 14th Amendment did guarantee all citizens equal rights to marry.

And it doesn't mention reproduction once. Not anywhere in the entire decision. (Although it does reference lots of other decisions. I suppose that it's possible that Loving references some other decision which makes the claimed assertion.)

(Although I do observe that, while Loving never explicitly says so anywhere, there are several statements which seem to simply take for granted that the 14th demands that the courts demand a higher justification when dealing with criminal laws, involving race. My counter argument to the argument I'm pointing out is that, while I think we can agree that the 14th was passed for the purpose of preventing racial discrimination, that what it actually says is "All persons" and "All citizens". It doesn't say "race" once.)

----------

I will also point out that, while many people certainly prefer to be married before conceiving children, that we all know that it certainly isn't required. No doubt many ES posters can personally attest to the fact that conception without marriage is certainly possible.

In fact, I would assert that if marriage were outlawed entirely, the Human species would still reproduce, anyway.

[PF Chang]

Would someone direct me to an instance in which the courts or a legislative body extended civil rights to a group that has historically been discriminated against and it turned out poorly? It seems like social conservatives, who frequently rant that the extension of civil rights to groups that have been discriminated against will lead to the moral corruption of our nation, are consistently on the wrong side of history (e.g., slavery, discriminatory immigration policies, segregation, voting rights, interracial marriage, women's rights). When, exactly, were they proven right?

Great post. What more needs to be said? Most people look back at those who opposed all of the things you mentioned as fools. Twenty years from now, the same thinking will likely apply here.

In a way, this debate is far more stupid than the discriminatory debates of the past. Horrible as it is, at least slavery provided a benefit to some people. Those against gay marriage can't even say that. It's just plain discrimination for the sake of discrimination.

[Larry]

What are your feelings on the constitutionality of the Violence against women act?

Complete ignorance.