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

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Let's see. Genocide against aboriginals wasn't enough to bring God's Judgement down? Slavery wasn't enough to bring God's Judgement down. Wholesale corruption and bribe taking isn't enough to bring God's Judgement down, but letting gays file joint tax return WILL bring God's Judgement down?

You are truly a sad case. And I thought Jesus was all about love. I guess not.

Christ II: The Second Coming!! !! The Next Time He is not turning the other cheek!

ruveyn

SW, you seem to not get the point. The "norms" are relevant. Same-sex marriage HAS NEVER (and I do tire of having to constantly point this out) been the law of the land. There is no existing right to be protected under any Amendment or Constitution.

WHEN THIS IS THE CASE, the effort to craft a new right requires more than the wave of a judge's pen on paper. This is why the US Constitution can be amended. It is not a quick or easy process, but that is so society does not radically change over short-term trends. A serious change in social consciousness and resolve must occur to say, "Yes, we want ____ to NOW be a right for all people."

Moral convictions and morality ARE the law. Law flows from the moral convictions of a people. You can not have one without the other, and you can not prove the contrary by logic.

If you think same-sex marriage should be codified into the law, that is YOUR morality, and what you want to do is impose YOUR morality upon others just as you might accuse me of imposing MY morality upon others.

The simple truth is that ALL RIGHTS and ALL LAWS must flow from PRECEDENT. There is no legal precedent for same-sex marriage. A state could create a new right (by legislation or public referendum or state constitutional amendment), but it can't be done by judicial fiat. Such a change must come from a consensus of society that a NEW concept should be adopted as the norm.

All this 14th Amendment BS being slung about is fixated on the flawed premise that same-sex marriage was a sociological norm that is now being denied when it was never a sociological norm to start with.



And not to rehash needlessly, but same-sex marriage is not a "right" or a "privilege." Marriage has always been deemed legal only between one man and one woman. This trend might be changing in the eyes of society, but it is up to society as a whole to deem that a new standard be created and the right EXTENDED to two people of the same gender. This is not something a person wearing a black robe can create on his own because he or she thinks it is how the world should be. No one person can be allowed to exercise that kind of power to change the nature of law and custom for everyone else.



Sadly, what you just wrote was very circular itself.

Supremacy clause is irrelevant. It only applies where there is a conflict in clearly enumerated powers and rights. A good example is gun control laws which blatantly violate the 2nd Amendment. Illinois and California are chief offenders in this, and it's only now ruling have come down from the federal courts saying many gun control laws violate the protections upheld in the US Constitution. Not once did you see either state back down from defending their right to do as they saw fit with gun control laws.

As marriage is not an enumerated right protected under the US Constitution, the issue becomes one of if marriage is a right protected under the US Constitution, and that was only upheld under the 14th Amendment when Virgina tried to outlaw opposite-sex interracial marriage...a practice that was common for many, many years before the attempt to criminalize it.

Same-sex marriage has no such history. It is a new creature with its own legal ramifications.

The subservience of any state constitution to the US Constitution is that you can't deprive your people rights guaranteed in the US Constitution. If the US Constitution guaranteed marital rights for all people, you might have a case for your line of reasoning, but it doesn't.

More so, IT IS NOT YOUR PLACE OR RIGHT to decide what is correct at the federal level. As counsel for the state, your job is to zealously defend your state's right to it's position. The court will decide if it agrees or not and why, and if the court rules against you, you are to appeal that as far as you can until the highest court that can or will weigh in does so. YOUR JOB IS TO ADVOCATE, NOT TO DECIDE before the trial and appeals ever take place.



Once a lawyer has a client, he must be excused by the court if he cannot proceed with the case. It is a disbarment offense to go into court and choose to NOT do his duty absent being excused.

By being the state AG, the duty is clear. The AG could resign, but the AG cannot refuse to do his job. The OFFICE has the DUTY, and the office holder is obligated to perform that duty.



Thank you for that. I think we both agree that we would rather have an disagreeable "final" verdict from the Supreme Court on this issue than what we got. This is a dangerous precedence the Supreme Court has created. Right now, a single judge could choose to craft a new right out of thin air and so long as the state won't challenge it, a weak 14th Amendment argument could make it an ensconced "right."

***

I know many don't agree, but "rights" can't just appear out of nowhere. When the proposal goes against the norms of society up to current day, that proposal must be carried by a wave of popular support within society.

America is at a cross road. Right now, the Executive Branch is almost all-powerful when it was created to be the WEAKEST of all three branches of government. There have never been three "co-equal" branches of government. Legislative is the most powerful. Judicial is the second most powerful. Executive is the weakest. WHY? It is because the more power vested in one man's hands, the less power you want granted. Congress has great power, but they must have consensus to act. The courts have significant power, but limited scope. The Executive is out of control with self-appointed power and a lack of accountability.

There are defined and clear means to change the laws and customs of the individual states and the nation. They are complex to protect the nation from radical changes being promoted by short-lived interests. Letting a JUDGE (or even a panel of judges) impose radical change is dangerous. The more radical the change, the more it needs consensus. We've gotten away from that, and you might cheer for it when it favors your interest, but as you point out, what's to stop it from being to your detriment tomorrow?

Of course there is such an existing right. Gay people have the right to equal protection under the law. The law cannot extend the right or privlege of marriage to straight people without extending it to gay people as well. The fact that gay people have had this right historically oppressed is irrelevant, and your argument again comes down to the idea that it is correct and proper to deny people rights that they have always had because such rights have been suppressed in the past. How could such a thing be true?

Equal protection is not a new right. No constitutional amendment is required. Deny yourselves the right to marry (which merely requires modifying the laws of the several states, not modifying the Constitution) and you do not have to extend the right to gay people. Grant yourselves the right to marry, and you do have to extend them this right.

Even if laws flow from morality, only those morals that have been properly codified in the law are the law. Other morals do not carry the force of law.

If gay people are allowed to marry, no one's morality has been imposed upon you. You have not been forced to marry someone of the same sex against your morals. You have not been forced to do something against your morals. I'm sure that there are large numbers of people in this country that do things every day that offend your sense of morality, many of them perfectly legal, but that doesn't mean that they've imposed their morals onto you.


Rights are not created by judicial "fiat", they are simply clarified and affirmed by judicial ruling. A right that has always been there but that has been improperly suppressed is not a new right created by fiat. Again, we come back to this logic - you've always had this right, but we've always improperly suppressed this right, therefore there is no precedent that you ever had this right, and therefore you have no such right. The improper denial of the legitimate right in the past becomes the justification for denying the right in the future. Past illegal behavior is rewarded.


Not true. Norms are irrelevant. Rights are relevant. The right to marry is there, plain as day, but only for some people. The right to marry cannot be granted only to some people. That is why the 14th amendment applies. At one time inter-racial marriage was not the norm, and in fact was an improperly suppressed right. It has always been a right.


Marriage is not a right or a privilege? Then when a man and a woman get married, they are not exercising a right or a privilege? What are they doing then, exactly? Exercising some power that falls within the constitution but outside of the 14th amendment? Doing something that they are allowed to do that is not a right or a privilege (which then seems to contradict the definition of those words).



No, its not irrelevant, because...




And there is clearly such a conflict in this case. Proposition 8 amended the California Constitution such that marriage was only allowed between men and women. A direct conflict with the 14th amendment that denied gay people the equal protection of the law.



I'm not sure what the point is here. If the 2nd amendment has been violated, the courts will eventually rule that way. If not, then not. This is not related to the issue at hand.



This line of reasoning makes no sense. Its basically saying that if a group of people don't actively exercise a right - either because they chose not to or because they are prevented from doing so - they've therefore forfeited that right for all eternity. If I'm mute, do I give up my right to freedom of speech? If I'm an atheist, do I give up my right to become a born-again-christian in the future? If I've never owned a gun, have I given up my right to own one in the future?



But I do. The Constitution does not guarantee marital rights. But it does guarantee equal rights for all people. One group cannot have marital rights without all groups having such rights. Remember, a state's power to allow marriages derives from the Constitution. The Constitution grants states the right to define marriage, but it does not grant them the right to define marriage in any way that they please - it places certain constraints about how marriage is defined, including that it may not be defined in a way that excludes any group of people.



If I've taken an oath that requires me to uphold the Constitution of the United States, which California officials are required to take upon entering office, then how can I uphold my oath if I blindly take actions without evaluating if those actions conform to the Constitution, or not?

It had already been (for all practical purposes) against the law to own slaves in Massechusettes since 1780.
The northern eastern seaboard states had all gradually outlawed owning slaves by local ordinance by the early 1800s.

Northern states west of the appalachians but east of the mississippi didnt exist in 1787 but were all part of the "Northwest territories"- which the Feds decided would be free of slavey in the 1787 Northwest Ordnance. When Ohio, Indianna, and Illinois, were all created out of that territory they each included outlawing slavery in their constitutions. So owning slaves was forbidden in the northern half of the country long before the civil war.

The two main 'whole points' of the Dred Scott Decision were (a) the feds cant regulate slavery in a territory created after the nation was set up ( they did it with the northwest territories back in the day when they set up the country in the first place- but they cant do it now in the new territories on the then new lands farther west), and that (b) Blacks (even free blacks) arent citizens. I havent uncovered evidence that it even addressed (what one would think would be) the central issue of the case- that being "does the property rights of the slave owner become overridden by local antislavery law' if they move to a new state? It was about whether the Territories declared "free" should have been declared free, and about whether a black man has the right to sue about anything (slavery or anything else) in the first place.

But even if "the whole point of the dred scott decision was preseving the property rights of the slave owner against local laws" your contradicting the rest of what you said. You said that there were NO local laws against owning slaves. If there were no local laws against slavery then Dred Scott would never have sued in the first place. According to you there were no state laws for the dred scott decision to protect against. So which way was it?


But Im glad that you finnally learned to read and comprehend English and finnally understand what I said several times: that the fugitive slave act was a federal law that applied to the whole nation.

You dont need to keep informing me that you understand what I said. I get it already.
Im proud of you already!

So runalong now and watch Barney whydoncha?

I did say the fugitive slave law was part of the Missouri compromise. That was a mistake- it was part of the later 1850 Kansas-Nebraska Compromise.

SW, your position simple makes no sense whatsoever.

WHERE DO RIGHTS COME FROM? Answer that, please.

You say that the "right" to same-sex marriage always existed and has been unconstitutionally suppressed.

Prove that.

Marriage throughout US history has been reserved for one man and one woman. No multiple spouses. No siblings. Not your own parent or child. This has been upheld time and time and time again. Not once has the idea that a select class been denied an existing right held any legal credibility.

Rights flow from the concept that there is a hierarchy of right and wrong. The idea that a man should be free. That every person has a right to life, liberty and the right to own property. This is often referred to as "natural law" which is higher than man-made law.

Marriage was about two people coming together to start a family. Same-sex unions cannot do this without medical intervention. Never was same-sex relationships considered in the equation of what constitutes "marriage."

You keep insisting on saying something was always there when it never was. You have not one bit of legal rationale to stand upon other than your interpretation of how the law should be read.

Indeed the most recent ruling over Prop 8 by the district court judge really has to argue the denial of equal protection AFTER a judge created the so-called "right" from the bench. It was NOT a right under California law until that very moment.

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

But you could still claim to own a slave in a northern state and have them recognised as your property and have them returned to your home state. The division between slave and non-salve states was not clean cut, especially after Dred Scott.

"They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit." - Chief Justice Taney

Essentially at this point, slavery was legal just about everywhere. The Missouri Compromise was ruled unconstitutional and slaves taken to northern states were still slaves.



It was reinforced in that compromise but there was a fugitive slave clause already in the 13th Amendment.

Slavery was not abolished in the Massachussetts Constitution of 1780 nor was there any statute in Massachussetts prohibiting any one from bringing a slave into the Commonwealth. Slavery was highly disapproved of in the Commonwealth but no Massachussets law forbade anyone from bringing a slave into Massachussets. And the Federal law, the Fugitive Slave act was still the law in Massachussets as all Federal laws trump State laws.

Justice Taney made it definite in the Dredd-Scott decision. According to his ruling Negroes did not have any rights a white citizen was bound to respect.

Civil War was the only way Slavery was going to be ended.


ruveyn

Zero, rights are an artifact of law. Where there is no law, there are no rights, merely privileges backed by force.

Now, let's turn to the law, specifically the 14th Amendment to the Constitution of the United States - the "supreme law of the land".

You may note that the amendment does not say "unless someone thinks these citizens are icky"; it says that EVERYBODY gets equal protection under the law. If there are laws regarding marriage (and there are), they must extend to ALL citizens, not merely heterosexual citizens.

Now, under the provisions of the First Amendment, you are free, if you wish, to condemn these people as "sinners"; heaven knows enough people said that about myself and my wife, simply because of our drastically differing skin tones. However, you are NOT permitted to enshrine your religious beliefs in the law, again because of that First Amendment.

And hey, as long as we're bringing religion into it, specifically Christianity (as the Jews don't seem to want to get involved, and I haven't seen you espousing Sharia law):


So, if the Supreme Court says it's okay, then anyone who claims to live by the principles of the Bible is bound to agree and obey, yes?

I disagree. There are natural laws. Law is neither a necessary nor a sufficient cause for the existence of rights. Even though, in our culture, they are necessary for our present practice of discussing rights within a legal social contract. Intestinally the US framers specifically reject that interpretation of the function of natural law rights, instead preferring the view of the inalienability of natural law rights and the legality of others.


"Whenever I consider the origin of this war and the necessities of our position, I have a sure confidence that this day, and this union of yours, will be the beginning of freedom to the whole of Britain. To all of us slavery is a thing unknown; there are no lands beyond us, and even the sea is not safe, menaced as we are by a Roman fleet. And thus in war and battle, in which the brave find glory, even the coward will find safety. Former contests, in which, with varying fortune, the Romans were resisted, still left in us a last hope of succour, inasmuch as being the most renowned nation of Britain, dwelling in the very heart of the country, and out of sight of the shores of the conquered, we could keep even our eyes unpolluted by the contagion of slavery. To us who dwell on the uttermost confines of the earth and of freedom, this remote sanctuary of Britain's glory has up to this time been a defence. Now, however, the furthest limits of Britain are thrown open, and the unknown always passes for the marvellous. But there are no tribes beyond us, nothing indeed but waves and rocks, and the yet more terrible Romans, from whose oppression escape is vainly sought by obedience and submission. Robbers of the world, having by their universal plunder exhausted the land, they rifle the deep. If the enemy be rich, they are rapacious; if he be poor, they lust for dominion; neither the east nor the west has been able to satisfy them. Alone among men they covet with equal eagerness poverty and riches. To robbery, slaughter, plunder, they give the lying name of empire; they make a desert and call it peace"
-Tacitus writing for Calgacus

If a law is natural, it is universal under similar circumstances. Can you name any 'right' derived from a 'natural law' that is universal? Ie, one that is respected not only by other humans, but by all of nature?

I cried happily so many times that day. My mother cried when she saw a picture of a gay couple accompanying the news story because there was so much love in the photo. Now my friends cam get married and the feds will count it. They matter.

I am not sure what you mean by 'all of nature'? Both you and I know, that my own particular preference for grounding the objectively good is the same as that put forward by the framers of your Declaration of Independence. I see them as being endowed, thus, even in a case where they were trampled on. Say for example we lived in a word where the only government was that of North Korea's and we had only known such a government throughout history, it will still be the case that tyranny was wrong and that we had a right to something better. A right need not be respected universally to be considered a right, it exists, of its own accord. The fact that rights are trampled upon does not stand as evidence against their existence. Rather, if they were easy to acknowledge, then we would never have to fight for them and then what would they be worth to us?

If you wish to find evidence of the existence of these rights, talk to political prisoners. Removed from this setting, where I sit in the comfort of a dorm full of appliances and with a great many privileges, the natural rights of man can seem quite far away. It seems to me to be ironic that awareness of one's rights becomes more evident the closer one gets to poverty and to oppression. My primary field of study is international relations and I have met people who hiked over the Himalayas to escape tyranny. I have met others who crossed minefields and China to escape the DPRK. Tell those people that their rights are not natural but are contingent on some the localised agreement of some social contract or that they are just culturally specific. Many are enshrined in law yes, but it took no laws to give them a sense of injustice, they get that for free. Having met 4 Nobel Peace Prize winners in the last twelve months, none of whom was a westerner and two were women, I can tell you that the desire for freedom is not limited by culture but is universal. The fact that someone would question the existence of universal human rights, at this point in human development, especially an American, is just sad.

[youtube]http://www.youtube.com/watch?v=EZFr4VLPW9Q[/youtube]

A good point, but one rejected by the Founding Fathers who felt some rights were inalienable.



But, how does same-sex marriage, which has NEVER been legal since the day of the USA's formation to the most recent constitutional amendment, suddenly go from being prohibited to being a "right" being discriminated against? Does the same reasoning apply to marrying your parent or child or sibling?

You, and others, seem to keep avoiding this issue.

My honest take on the judge's position is that the judge thinks the rationale (which is never really discussed) that upholds marrying a sibling as not a protected class is not the same rationale that advocates blocking same-sex unions. However, I don't see this being fleshed out in legal opinions, and indeed is why the Supreme Court needed to render a ruling for all time rather than leave it unanswered.



Agreed, but NATURAL LAW indicates that two men or two women cannot produce a family without medical intervention (and a 3rd party). Marriage was for the formation of family units and propagation of the species. Natural Law is above man-made law, and if natural law says something isn't so, then to create something contrary requires man-made law instituting it through a formal act of right creation.



Ah, wrong again.

When man's law contradicts God's law, it is de facto invalid. A Christian is commanded to obey God when there is a conflict.

Simple.



You and I have previously agreed that the right, privilege, or whatever terminology you want to use for it - to marry someone - derives from laws passed by the various states.

The 14th amendment requires that the laws apply to everyone equally. The 14th amendment was ratified in 1868. At any point in time after that, any law in any state that explicitly allowed for straight marriage but prohibited gay marriage was unconstitutional. Any law that allowed for marriage but did not specifically define the genders of the parties involved would have thus been in compliance with the 14th amendment by allowing marriage between any two people. The ability for some people to marry, and the requirement for all people to be given that ability equally, was in place in each state at the first moment that the ratified 14th amendment and the state's marriage law existed at the same time.



Of course if that were true we probably wouldn't be having this discussion. The US District Court in Perry v Schwarzenegger ruled exactly that. I'd say that a ruling by a federal district court has plenty of credibility. In fact, it is that decision which has lead directly to the situation on the ground today, as it was upheld, de facto, in the absence of the prop 8 supporters having standing to appeal to the Federal Appellate Court or the Supreme Court.



This argument has been debunked time and time again, its barely worth repeating this, but the bottom line is this - there is no legal requirement for opposite sex couples to enter into marriage with the intention of having children. There's no legal requirement that opposite sex couples do have children once married. There is no legal requirement that they even have to try and have children once they are married. There is therefore no legal basis for preventing ANY couple from marrying simply because such a union could not lead directly to children. I know, I know, its that pain-in-the-ass equal protection think again that you are having such a difficult time wrapping your head around, but there it is.

Okay, I'm with you on this so far....



I would contend that since day one "marriage" was EXPRESSLY UNDERSTOOD to mean one man and one woman. Not marrying a parent, a sibling or your own child.

While certainly there is NOW a political movement to challenge this definition of "marriage," the law rested on what was always understood to be "marriage." Otherwise, people wanting to marry any number of consenting partners would have successfully challenged state drafted marriage prohibitions on the basis of the 14th Amendment.

***

What I don't grasp is how you either....

A. Insist that "marriage" ALWAYS included every possible variant from day one (which history shows to be untrue), or

B. Show when and how "marriage" changed in its definition to include variants that NOW enjoy 14th Amendment protection when they did not before.