SCOTUS on gay marriage: DOMA falls, no standing on Prop 8

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several kinds of nonsense.
'States Rights" was just a justification for slavery.
But thats beside the point.

No state is going to secede over same sex marriage.

It IS like the slavery issue -but not in that it will cause a civil war-- but in that it creates a host of practical problems because folks move around between the states.

Those problems all stemming from the fact that now you can be married (and recognized as such) in one state, but not in the other.

Just like the fact that it was legal to own other human beings in one state, but not legal in others- and how that created a host of practical problems in the years leading up to the civil war. The results of which were crazy contradictory laws such as: if your slave escaped your estate and fled to a free state-the free state was obliged to extradite that slave and return him to you, but if you brought that same slave WITH you as a servant on business trip to that same free state- you lost him- because he would become free. So with both same sex marriage and slavery 'states rights' is just too impractical to work. So the whole nation pretty much has to decide one way or the other. Same sex marriage pretty much has to be either all states or none to work.

Untrue that slavery was never brought up till two years into the war. The Confederacy from the very beginning made it clear the point of secession was the preservation of slavery, and that blacks were racially inferior to whites.
It was the Union that had not made any mention of slavery for two years - officially. But men like Thadeus Stevens from the very beginning saw the war as a means of ending slavery, while Lincoln had always harbored anti-slavery feelings, but kept them close to the vest till it was politically expedient to act on it.

-Bill, otherwise known as Kraichgauer

Lincon was interviewed before becoming president and said he wasn't going to mess with that issue. However the idea of Something being right or wrong was not the issue. it was that it was a states right to succeed. they did it and were no longer bound by the Constitution. The north was making laws that hurt the south but not the industrial north. the south was a different place and needed to be led differently.
Exactly the same thing that the usa did from the English. Most people in the south did not like slavery but until a solution was found it needed to continue. Hell look at the problems that happened because the south was not able to work that issue out independently? we are just now recovering. even after the war people of color were treated like dirt because even though a law changed nothing changed for people of color. they couldn't vote or anything.

But it think we are off topic so i am going to drop this line of conversation im sorry to the OP

I said Lincoln was playing the subject of slavery close to the vest for political expediency. But that didn't mean he hadn't harbored anti-slavery feelings, because he did.
As far as the Confederacy being a separate country - not according to the U.S. government they weren't. Lincoln considered every part of the Confederacy to be part of the union, but under the control of an illegal rebellion.
As for black Americans still having been treated like dirt, despite being freed - ex-slaves made it clear, nothing was as bad as living in bondage. In fact, their fight for civil rights would not have been possible without the freedom Lincoln gave them.
But if you want to end discussion of the subject, that's your choice.

-Bill, otherwise known as Kraichgauer

*choke*
*snort*

This is in such contradiction with present reality, not just history, that I'm guessing that it must be a Poe. Well done, sir; I'm just glad that I had no coffee in my mouth when I read it.

Last edited by LKL on 28 Jun 2013, 3:39 am, edited 1 time in total.

Not sure if my sarcasm failed... or won... Anyway, I obviously need to work on it...

Well, this is a forum for people with Asperger's syndrome. I have a hard time understanding when people are joking unless it's accompanied by a dramatic change in tone of voice.

Fwiw, I meant to cite Poe rather than Godwin; I will change it in the original post.
http://en.wikipedia.org/wiki/Poe's_law

So while leftists are voting for the issues they feel are important, you are happy to change your hypothetical vote based on what other people are voting for?

At the time the Civil War started slavery was legal in all the States of the Union. And so was the Fugitive Slave law.

ruveyn

Thank your for your well-written and thought out response.

I can understand that. I should clarify that what I mean is that we know same-sex unions (and homosexual behavior itself) was not only NOT accepted, it was CRIMINAL for all the time the this nation has stood up to the most recent Constitutional amendment. Hence, you can't infer a right to same-sex marriage based on the HISTORY behind the document that purports to uphold it.

When there is ambiguity in what the law says, courts look to evidence that illuminates the INTENTION of those who crafted the law for guidance. You can't find anything supporting same-sex marriage in the history of the U.S. Constitution. Hence, to add same-sex marriage as a "right," an amendment is the proper way to establish it...not to create it out of thin air.



I would contend that if that was true for same-sex marriage, then the District Court would have ruled on a 9th and 10th Amendment ground and not a 14th Amendment (which only works if the right is pre-existing in the Constitution). The 9th and 10th Amendment says that just because it's not in the Constitution doesn't mean it does not exist, but it is not enumerated at the federal level and therefore resides as the prerogative of the individual states.



Mere support of 50.1% is more than enough for an amendment. Congress would pass the proposed amendment. The President would sign it, and you certainly could get the required number of states to vote to ratify it. If the public support is there, it would happen.

Again, this is to enshrine the right to marry someone of the same gender at the FEDERAL level and not require state-by-state creation/recognition of same-sex marriage as a right.

I don't think any "rights" have been trampled here. Same sex marriage was never the norm in the USA. It is a very recent creation, mostly buy liberal judges thinking the right should exist in a few states. It is not openly accepted and runs contrary to strong moral convictions to the contrary.

Just because I want to do something doesn't mean I have a "right" to do it. A nudist cannot walk around in public nude...even though arguably it wouldn't really harm anyone once you get used to seeing it. Society routinely mandates limits on your choices, and your wanting to do it doesn't convey any substance to it.



Your duty as a state official is to DEFEND your laws/constitution IN SPITE OF how you personally feel about it. A lawyer can be disbarred for not zealously advocating for his client. The state constitution is sacrosanct until ruled to the contrary in the federal court system at the end of the appeals process. California's politicians didn't like Prop 8 and wanted it to fail, so they committed dereliction of duty based not on the final word of the federal appeals process, but internal interpretation rendered NULL AND VOID by amendment of the state constitution.

I do agree that I don't know if the state AG could be trusted to do his duty if he wants to see his case fold, but that's a separate issue.



As I've posted elsewhere, the problem is that if you wait for a Prop 8 supporter who is a "victim" to show up to have standing, how long will same-sex marriage be in place? How many couples? Do you rule their marriages invalid? Do you just stop the practice? The longer the practice goes on, the more it is legitimized as a "right." The courts constantly take on cases with no identified victim or damage because the POTENTIAL for harm is too obvious to wait for them to show up. I can assure you that by the time a Prop 8 supporter "victim" shows up, the court will refuse to hear the case not for lack of standing or ripeness, but because it will be moot. The court will have no remedy to offer to fix what has happened.

The time to review the heart of the issue is HERE AND NOW, not later when it'd be too messy to fix if we say it is impermissible.

It means if they vote for something I want I'll reciprocate in kind.
Are you that dense?

Last time I checked, the Constitution itself is silent on the matter of constitutional interpretation.

Wrong.

I didnt say that the fugitive slave act was did not apply to the whole nation.

So please- return to the first grade and learn to read.

And then redo the eigth grade and learn your country's history.

By the time of the civil War there had been decades of bickering between "Free states" and the "slave states" over whether each new state admitted would be 'free' or 'slave' because- WHY? Because there were free and there were slave states!

You know- Slave states- which were so called because they ALLOWED slavery.

As distinct from "free states"-which were so called because they did not allow slavery!

Ever heard of that?

There were two kinds of states already in conflict in congress.

And in the territory of kansas - it became a literal shooting war on the ground among the settlers over which kind of state the territory would become.


Slavery had ceased to be legal in every state north of the ohio river for decades by the time lincoln took office.

When Lincoln took office slavery was legal in all of the southern states that would secede and would join the confederacy. It was legal in the border states (missouri, maryland, Delaware) that would stay in the Union despite being slave states, and owning slaves was legal (but public slave markets were illegal) in the District of Columbia. Slavey was ILLEGAL in the rest of the nation long before Fort Sumter.

As part of the Missouri Compromise - Missouri was allowed to join the union as a slave state- BUT- the Northern States then (and only then) had to treat escaped slaves as criminals who had to be extradicted back to their owners home state in the south .

I guess you never heard of the 'underground railroad'. They would smuggle slaves out of slave states and into free states ( if there had been no 'free states' there would have been no point).

And after the Missouri compromise it was suddenly no longer enough to smuggle folks north of the Mason-Dixon line. They had to smuggle them all of the way to Canada.

So humans could not be property in a free state- but an escaped human still had to be treated as the property of someone in another state ( a bit of a disconnect).

One day a southern planter took his manservent with him out of the south to the Free territory of Nebraska on a business trip- and because they found themselves in a free juristiction (ie slavery being outlawed) the butler sued for his freedom- and it went all the way to the supreme court. The slave's name was Dred Scott.

He might have won- but the wrong justice cast the deciding vote, by arguing that "No Negro has any rights that any White man need respect".

Not the most shinning moment in the history of the SCOTUS.

But the point is what I said above- the nation was divided by a basic difference in state law that was so profound that it created these practical problems- like extradition and the dread scott question.

Firstly, "norms" are irrelevant. This gets back to the whole "tradition" argument - that we can never deviate from what has or has not been done in the past. Moral convictions and morality are not the law, they do not trump the law.

But rights have been trampled. It is an equal protection thing. Strictly speaking, no one under the U.S. Constitution directly has the "right" to marry anyone else. Marriage comes about only indirectly under the U.S. Constitution, in that the states have used the fact that powers not reserved for the federal government are their own, and have chosen to exercise that power in order to recognize marriage. And thus marriage is not a U.S. constitutional "right" - it might not even be considered a "right" at the state level, but rather a privilege. But even if a privilege, due to the 5th and 14 amendments, you cannot extend a privilege to one class of people and deny it to another class of people, unless (as I believe the courts have ruled in the past) there is some overriding legitimate purpose for the government to do so - for instance driving is a privilege that the blind are not allowed to partake in, as the government obviously has the overriding issue of public safety to consider before extending that privilege to the blind. It is therefore a right, per the 5th and 14th amendment, to have the law apply equally to you. That is the right being violated n this case. And a power granted to the states by the U.S. constitution, such as the power to define marriage, cannot be exercised by the states with absolute carte blanche where they can do absolutely anything they chose - the manner in which they exercise these powers must also be consistent with the rest of the U.S constitution and otherwise be constitutional. California, for instance, could pass a law defining marriage as being only between a man and a woman who do not own firearms. Yes, this would be exercising the state's power to define marriage, but in a way that would violate the 2nd amendment.



Of course there is a difference between your desire to do something and your "right" to do it. But the point is that rights or privileges cannot be extended to some people and not to others unless there is some sort of overriding interest.



What you may not realize here is that your argument is unintentionally circular - yes "your duty as a state official is to DEFEND your laws/constitution" is correct. But even if you believe that a state official's first duty is to his own state's constitution, you must realize two things - first, the U.S. constitution declares itself to be the supreme law of the land - its supremacy clause (article 6, clause 2) states that "This Constitution ... shall be the supreme law of the land; ... anything in the constitution or laws of any state to the contrary notwithstanding." Second, the California State constitution itself declares that it is subordinate to the U.S. Constitution (article 3, section 1 of the California Constitution states that "...the United States Constitution is the supreme law of the land.") So even if a California state official's loyalty were to be first and foremost to the California constitution, it can not be by the very nature of the California Constitution, as this very document subordinates itself to the U.S. Constitution. One cannot be loyal to the California Constitution without first being loyal to the U.S. Constitution, and one must give priority to the latter in any instance where they contradict one-another.

And a lawyer can be disbarred for not zealously advocating for his client, correct. However a lawyer is generally not forced to take on a client whose cause they do not believe in.



Interesting opinion piece at the LA Times today on this aspect of the case - the author posits (and I agree) that to avoid this type of situation in the future, each ballot initiative should have a court-appointed special counsel who will defend the initiative in court if it passes, separately and independently from the rest of the state government, but still as an actual representative of the state. Obviously such a thing would need to be enacted at a federal level or state by state (probably the latter) but its the type of thing that can help to avoid this situation in the future - and the truth is that this type of situation with defending an initiative and the uncertainty of who has standing to do so is a bad situation. As someone who is against prop 8, in this situation the governor and attorney general's refusal to defend it was convenient for me, but I fully realize it cuts both ways - some point down the road something similar may happen with a law or ballot initiative that I am heavily in favor of. Even in this case its not really that good since it lead to a partial result and a non-answer from the Supreme Court despite years of legal wrangling.

You're absolutely right. Of all the things America has done, it is letting homogays get married that will bring down His divine judgement. Never mind driving native Americans off their land in what we would now call "ethnic cleansing" or "forced resettlement". Never mind slavery, child labor, the starving and forgotten multitudes. None of those things matter. What matters is making sure that the homogays cannot be treated equally because it says so in the Bible and particularly the Book of Leviticus. Everything else in Leviticus doesn't matter. I will grow my facial hair and get tattoos if I want. However, on those homogays, Gods word is the last word. Amen.

at the time of the Civil War the property rights of a slave owner in his slave could not be nullified by local anti-slavery ordinances. That was the point of the Dredd Scot decisions. A slave owner could take his property anywhere in the United States and it would still remain his property. And the Fugitive Slave law was a -Federal Law- and was in effect everywhere in the United States.

It might not have been legal to buy and sell slaves in Massachussetts but it was legal to own a slave in Massachussetts and remained so until 1865.

ruveyn