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

[Madison Redskin]

It was a exercise in judicial maximism

How so? If a court determines that a law violates the Constitution, it's the court's duty to strike it down.

[robotfire]

That's EXACTLY their job. They must ensure that laws comport with the U.S. Constitution. No scholar of the legal history of the United States or the Founding Fathers would argue otherwise. Do you really think that the Founding Fathers intended that no law could ever be subject to judicial review? If so, what is the point of the Constitution? Is it really nothing more to you than a document that sets forth a bunch of guidelines?

We are not a nation governed by mob rule. We are a Constitutional Republic and our laws are subject to review by the courts to ensure that they comply with the Constitution.

Their job is not to CREATE laws. It is to interpret and apply them. Of course they are supposed to make sure that laws are constitutional and strike down laws that are not, but my argument is that this law has nothing to do with equality.

[twa]

And what right did this judge create?

The right to SSM ,,,where was it before?

He is also attempting to usurp the states role,which despite Loving, it is less than clear they are in error.

To do so you must change the established definition and justifications for marriage in a fundamental fashion.

We shall see

[twa]

How so? If a court determines that a law violates the Constitution, it's the court's duty to strike it down.

Is that what you read in his ruling?..honestly?

He went as far as he could beyond that

[Madison Redskin]

Their job is not to CREATE laws. It is to interpret and apply them. Of course they are supposed to make sure that laws are constitutional and strike down laws that are not, but my argument is that this law has nothing to do with equality.

What law did this court create? It ruled that a law violates the Constitution. The court didn't create a law just because you disagree with its rationale.

BTW, the argument that you made above has been rejected by the courts on numerous occasions. For example, in Loving v. Virginia, the State of Virginia argued that their laws prohibiting didn't violate the Equal Protection Clause because blacks were free to marry other blacks and whites were free to marry other whites, they just couldn't marry one another. Thus, the law prohibiting interracial marriage applied to blacks and whites equally. The liberal and conservative justices unanimously rejected that argument.

[robotfire]

Well, there you have it, folks. Gay marriage is to hetero marriage as cannibalism is to non-cannibalism. And no one would argue with the cannibalism law, because for a cannibal to eat someone, he has to kill that person, which we all agree is Very Bad. Similarly, for a gay couple to get married, they have to kill a straight couple, which we all agree is Very Bad. It's basic logic.

Can you show me the law that this judge created?

It's my view that the judge is attempting to legalize gay marriage in California, even though it is currently not legal. He hasn't technically succeeded yet, but that is the law I'm referring to.

You don't have to kill a person to eat one. I don't kill cows personally. Somebody else does it. Also, sometimes people die of natural causes and are then eaten. I don't understand your bigotry towards cannibals.

On a serious note, I don't really want to fight about this. I really disagree with the argument that it's a matter of equality, and I think I made my point.

[twa]

Madison , Care to expound on how this situation is fundamentally different than Loving?...or is that inconvenient?

[Madison Redskin]

The right to SSM ,,,where was it before?

He is also attempting to usurp the states role,which despite Loving, it is less than clear they are in error.

To do so you must change the established definition and justifications for marriage in a fundamental fashion.

We shall see

Do you think that courts should strike down laws which deny citizens fundamental rights? My guess is that you would answer yes, you just don't agree with the court's interpretation of the Equal Protection Clause and prior case law. If that's the case, I don't think you should believe that the court was overstepping its bounds, you should just disagree with its reasoning and conclusion.

[Hubbs]

The right to SSM ,,,where was it before?

Strange, then, that he never once said that a "right" to get married or to get a marriage license existed, for gay couples or straight couples. You'd think he would have mentioned it somewhere, seeing as he supposedly "created" that right. It's awfully hard to create a right without ever saying what the right is. I hope he plans on filling us in on some of the details - maybe he created two rights, or even three rights, that he never described. I might have a right I don't even know about.

He is also attempting to usurp the states role,which despite Loving, it is less than clear they are in error.

To do so you must change the established definition and justifications for marriage in a fundamental fashion.

We shall see

He did all of that too? What part of his ruling, exactly?

[robotfire]

That's exactly the same argument the State of Virginia made in Loving v. Virginia. Suffice it to say, the Courts disagreed.

That's EXACTLY their job. They must ensure that laws comport with the U.S. Constitution. No scholar of the legal history of the United States or the Founding Fathers would argue otherwise. Do you really think that the Founding Fathers intended that no law could ever be subject to judicial review? If so, what is the point of the Constitution? Is it really nothing more to you than a document that sets forth a bunch of guidelines?

We are not a nation governed by mob rule. We are a Constitutional Republic and our laws are subject to review by the courts to ensure that they comply with the Constitution.

They are to INTERPRET the constitution. They are NOT to create their own laws. Article One, Section One of the Constitution says that all legislative authority is vested in the Congress. It is the judicial system's job to INTERPRET laws, not create them. My whole argument is that prop 8 is not unconstitutional, as it is not a matter of equality. If I am right, then this judge is reaching past his authority to strike it down. If I am wrong (which you apparently think I am), then my point is obviously moot.

EDIT: I looked up the Loving V Virginia case (not a law expert, but I did remember it after reading). I believe the argument is not the same because race is different than who a person sleeps with. Race is how you are created. When a black man is created, he is equal to a white man.

I know your next move, and I agree that some men are born with homosexual tendencies. Likewise, some men are born with strong work ethics. Some men are born with a desire to be dishonest. Some men are born with high intelligence. No matter what struggles or advantages you are born with, your actions are still yours to control. The man born with the desire to work hard can still sit around doing nothing. The man who wants to lie can tell the truth. The man who is attracted to other men can abstain from sleeping with them. But no matter how hard he tries, the black man cannot choose to abstain from being black.

[Madison Redskin]

Madison , Care to expound on how this situation is fundamentally different than Loving?...or is that inconvenient?

I don't think that Loving should or will control the outcome of this case, but it's highly instructive and will certainly be at the heart of the SCOTUS' analysis of the case. So, I'm not going to expound on how it's fundamentally different from Loving; that's something you should do as it's your position. Do your own work.

[twa]

Strange, then, that he never once said that a "right" to get married or to get a marriage license existed, for gay couples or straight couples. You'd think he would have mentioned it somewhere, seeing as he supposedly "created" that right. It's awfully hard to create a right without ever saying what the right is. I hope he plans on filling us in on some of the details - maybe he created two rights, or even three rights, that he never described. I might have a right I don't even know about.

He did all of that too? What part of his ruling, exactly?

In the findings, sorry but I ain't playing with a pdf file tonight...not even for you:)

[Madison Redskin]

They are to INTERPRET the constitution. They are NOT to create their own laws. Article One, Section One of the Constitution says that all legislative authority is vested in the Congress. It is the judicial system's job to INTERPRET laws, not create them. My whole argument is that prop 8 is not unconstitutional, as it is not a matter of equality. If I am right, then this judge is reaching past his authority to strike it down. If I am wrong (which you apparently think I am), then my point is obviously moot.

So, apparently, you think that any time a court interprets the Constitution and rules that a law is unconstitutional (as the court did here), it has "created" a law. If that's the case, what is the role of the SCOTUS? To review laws, interpret the Constitution, and determine whether the laws violate the Constitution? What if they conclude the laws violate the Constitution? Should they simply say, "We think this law is unconstitutional, but we're not going to strike it down. Instead, we'll let this unconstitutional law stand, since to do otherwise would result in us 'creating' a law?"

What you are proposing is to strip the courts of the power of "judicial review" (i.e., the power to review the constitutionality of laws and strike down unconstitutional laws). The Founding Fathers would have a problem with that proposition, as would EVERY U.S. Supreme Court.

[Hubbs]

It's my view that the judge is attempting to legalize gay marriage in California, even though it is currently not legal. He hasn't technically succeeded yet, but that is the law I'm referring to.

The judge said that the 14th amendment trumped state law. Where is gay marriage, or any form of marriage, mentioned in the 14th amendment? And how does one use an amendment to create a new law?

You don't have to kill a person to eat one. I don't kill cows personally. Somebody else does it. Also, sometimes people die of natural causes and are then eaten. I don't understand your bigotry towards cannibals.

Well, taking out a hit is illegal. So is mutilating a corpse. But if a person goes jumps through all the legal hoops necessary to explicitly give you permission to eat his flesh after he dies? I think you'd actually have a pretty hard time finding a law that prohibits that.

On a serious note, I don't really want to fight about this. I really disagree with the argument that it's a matter of equality, and I think I made my point.

*shrug*

You can never click on the thread again if you like. You can donate your body to your cannibal of choice if you like, too.

[Hubbs]

They are to INTERPRET the constitution. They are NOT to create their own laws. Article One, Section One of the Constitution says that all legislative authority is vested in the Congress. It is the judicial system's job to INTERPRET laws, not create them. My whole argument is that prop 8 is not unconstitutional, as it is not a matter of equality. If I am right, then this judge is reaching past his authority to strike it down. If I am wrong (which you apparently think I am), then my point is obviously moot.

I challenge you to find one instance in the history of the United States in which a judge has created a law. I'll even give you a hint - you'll find a record of such instances in the same place you'll find the exchange rate of Schrute Bucks to Stanley Nickels.

[Hubbs]

In the findings, sorry but I ain't playing with a pdf file tonight...not even for you:)

I've read much of the ruling, especially the extra-special parts. If you're looking for a "right to marriage" of any type, I'd absolutely never suggest that you spend even a moment digging through that PDF file, because you won't find that "right" anywhere.

[twa]

I've read much of the ruling, especially the extra-special parts. If you're looking for a "right to marriage" of any type, I'd absolutely never suggest that you spend even a moment digging through that PDF file, because you won't find that "right" anywhere.

You expecting those exact words?

Does freedom to marry work better for you?

oops?

The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.

added

http://joshblackman.com/blog/?p=4961

Walker also rejects the notion that the plaintiffs are seeking a “new right.”

To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

This argument only works because Walker broadly defines marriage without reference to gender:

sorry, I'm lazy and a bit lit.

[PF Chang]

I just don't see how this is a case for the courts. A gay man has the right to marry. He just doesn't have the right to marry another man. A straight man also has the right to marry. But a man and his sister can't marry, no matter how consenting and in love they are. The rule of equality is held up - we all have the same right to marry. It just so happens that most men don't want to marry another man. It also turns out that most of us don't want to marry our sisters. Children, horses, corpses, and inanimate objects are also off limits. We all have those same limitations and same rights.

Children, horses, corpses, and inanimate objects can't legally consent to marriage (or anything, really). Nobody's arguing for person-corpse rights.

Marrying one's sister has serious, genetic drawbacks if the couple were to have a child. We ban it for a good reason.

Or you could go with the interracial approach. Not so long ago, a black man had the right to marry. He just didn't have the right to marry a white woman.

[twa]

Marrying one's sister has serious, genetic drawbacks if the couple were to have a child. We ban it for a good reason.

Whats your excuse if they are sterile?, ya know since procreation ain't got nothing to do with marriage;)

added

there is also the option of choice...kids no problem

[GhostofSparta]

Whats your excuse if they are sterile?, ya know since procreation ain't got nothing to do with marriage;)

And you don't have to be married to have sex and have a kid either. And I honestly don't know, is incest actually illegal or still just a social taboo without any legal repercussions?

[PF Chang]

I think incest is illegal to varying degrees in every state. Probably because of the biological problems relating to it. OK, so extend my point to incest being even more unrelated to the marriage argument by saying these people shouldn't even have sex, much less get married. This doesn't contradict what I said.

To twa, I suppose I wouldn't have an excuse in your scenario. Then again, I don't exactly hear much in the vein of pro-incest rallies or something, and if I did, there would be a solid scientific reason to deny those people. Based on pure logic though, and this does disgust me, I would have to accept a sterile brother/sister union. They can't do anything directly to hurt me or society. Definitely a horrible thought though and I guess you sort of have me here.

Yet based on your sterile argument, what if a man and a woman are sterile? Clearly they should be allowed to marry but if marriage is about procreation then why? I am sure you accept marriage as being about more than just procreation but it's a thought I guess.

[Hubbs]

You expecting those exact words?

Does freedom to marry work better for you?

oops?

The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.

added

http://joshblackman.com/blog/?p=4961

Walker also rejects the notion that the plaintiffs are seeking a “new right.”

To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

This argument only works because Walker broadly defines marriage without reference to gender:

sorry, I'm lazy and a bit lit.

Ugh. You're right, I got too caught up in the application of constitutional law when reading and only focused on how that aspect was defined. He did refer to a "right to marry"; my point, however, was that this "right" only exists in the sense that A) the 14th amendment allows it to exist, and the legal creation of a recognition of marriage in the form of a marriage license establishes a government-endorsed form of what is otherwise a personal relationship. There is no such thing as a "right" to be a husband or a wife any more than there is a "right" to be a girlfriend or an ex or a "friend with benefits" - unless a government, be it federal, state, or local, creates a legal designation that comes with certain benefits, responsibilities, and liabilities. Since various levels of government have created a legal status of "being married," the "right" to enter into this status is considered to be part of the 14th amendment. That is the only way that the "right" to get married exists. There is no "right" to be recognized as married by a church. There is no "right" to be referred to as a "spouse". There is no "right" to have a bride and groom, or bride and bride, or groom and groom, on top of a cake. There is no "right" to get married at all, unless the government has first created a special label that it will then bestow upon those it deems qualified. This judge didn't create the "right" to gay marriage any more than he could create the "right" to unemployment insurance. None exists unless the government decides that it wants to declare who is married, or who should receive a check after being fired.

The "right" to marry is only relevant so long as the government is in the practice of applying the label. That was what I was trying to get at with my admittedly misguided questions. There is no "right" to use a particular word to describe a relationship. There is only a "right" to qualify for a legal status created with the sole purpose of describing a relationship.

Now I'll go mutter to myself for a few minutes.

[Smoot Point Really]

Again... What is wrong with choosing another word to define all government licensing of this nature and being done with it. Call everything a civil union... The Government never had the authority to marry anyone anyway, since it is a religious ceremony and requires religious authority.

[robotfire]

So, apparently, you think that any time a court interprets the Constitution and rules that a law is unconstitutional (as the court did here), it has "created" a law.

When the constitution has nothing to do with the ruling (as is the case here), the court is creating a law. http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution <- show me the place in this amendment that has anything to do with this ruling.

EDIT: Don't show me. I don't really care. This thread takes way more energy than I've got.

[robotfire]

*shrug*

You can never click on the thread again if you like. You can donate your body to your cannibal of choice if you like, too.

Well played At the end of the day, this is a Redskins message board. I love my gay, straight, cannibal, and vegetarian Redskin brethren. I think I'm done, because honestly I just don't care enough to keep hanging out in this thread. But I still want McNabb to throw a million touchdowns this year.

:helmet: