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

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Zero, the law addresses individuals and marriage. Restricting it by sexual preference denies to one class of citizens a privilege extended to other classes, which clearly violates the 14th Amendment.

As for "traditional" marriage - "traditionally", marriage has followed every conceivable pattern. There have historically been societies that sanctified homosexual marriage (the Spartan Brotherhoods, certain rites of the early Church), polygyny (reread the Old Testament sometime, for example - how many wives did David, that "holiest of men", have? Or Solomon, renowned for his wisdom?), polyandry (certain Tibetan groups), even marriages that we today would reject as incestuous (try tracing the lines of descent and intermarriage among European noble families during the Renaissance, for example). "Traditionally", for that matter, marriage was a matter for the rich, as its main raison d'etre was ensuring lines of inheritance. (The Church actually rejected having anything to do with marriage until the 14th Century - it was regarded as a "worldly matter", not proper for the Church to deal with, for 1400 years.)

As I said before, I'm amazed by the number of people who appeal to "tradition" and "history" without studying either one...

It's also interesting to learn that you believe you know more about the relation of God's law and Man's law than Paul of Tarsus, author of the Epistles. So, are you telling me that we don't need to follow the word of the Bible as written? And if we don't, then why are we bound by this one particular passage?

(For that matter, why is gay sex bad because it's forbidden by a passage in Leviticus, but cotton/wool blend clothing and crop rotation are okay even though they're also forbidden in the same book?)

I do not think he shares your interpretation of the 14th Amendment. If the equal-protection clause is the sledge-hammer you think it is then pro-lifers would love to work out a compromise with you.

Edit: fixed spelling

That is a conclusion, not an argument. Not to nit-pick, but I don't think you grasp that my issue is that people (such as yourself) argue a personal conclusive interpretation of the 14th Amendment and work backwards where the law requires that any conclusion come from the end of reasoned argument based on germane facts.

I contend (correctly) that in US history (and the history of western civilization leading up to the USA's creation), same-sex marriage never existed and was not accepted as legitimate. Hence, the 14th Amendment doesn't apply until you can establish that the drafters of the Constitution INTENDED for "marriage" to include every possible form that might exist.

The only way your reasoning works is if you claim marriage is nothing more than a contractual arrangement and that it's denying the freedom to contract, but as "marriage" is more than just a contractual relationship (all the bits and pieces that get dragged in from other areas of law), I doubt that argument works as cleanly as some might wish it to.



I do not dispute that this history exists, but it was NEVER the dominant history and custom of "marriage" in western civilization for the 18th through 20th centuries. Hence, they do not fit the understood legal framework of "marriage."



To keep it bone-simple....rules upheld in the New Testament still apply. Much of Leviticus was about sanctification...setting Jews apart from other cultures. Jesus calls all believers to be sanctified as a person and not by rituals. However, homosexual conduct was condemned (as was adultery) in the New Testament.

People think Jesus abolished the law. That is wrong. Jesus fulfilled the law.

I don't understand why so many people are against same-sex marriage. Unless you are homosexual, it doesn't really affect you either way. So why not give gay people the choice of getting married? Same-sex marriage was introduced in the Netherlands more than 10 years ago, and it hasn't affected me at all.

As I have pointed out *twice* in this thread so far, the constitution itself is silent on the matter of constitutional interpretation.

On what basis can you then claim that "original intent" is the "correct" approach to interpreting the constitution?

Please apply *this* statement:


... to your own posts.

So far, your favourite tactic has been hitting the "CAPS LOCK" button. And last time I checked, The Supreme Court wholly rejected your method of interpretation.

Look at it from this standpoint - a half century or a century ago, no one in their right mind would admit to being gay in public - at least no one who valued their own social standing or even their own safety. And certainly no one was going to go down to city hall and request a marriage license on the public record declaring themselves and their partner to be gay. At the same time, the applicable laws and the applicable parts of the constitution have not changed. Simply because in the past no one sought to exercise a right does not mean it wasn't there for them in the law had they sought to take advantage of it. What's changed is that now people are seeking to exercise this right that's always been there. Maybe its never been explicitly declared to be a right by the courts, but that's to do with the fact that the courts do not rule on issues that aren't brought before the courts, than the fact that the right was always there in the law.

Depends how you define Western Civilisation. Certainly there have been cultures where homosexual relationships have been thought to have the same or greater legitimacy than heterosexual ones, and I would define some of them as "Western".

I don't dispute that much.



This I do dispute. If a same-sex couple tried even 10 years ago to get a marriage license, they would have been denied. The LAW was clear in what was understood when one wanted a license to get married. This is why the initial push for same-sex unions did not use the word "marriage" but rather the term "civil unions."

If it was always there, all of that would not be the case.

Rather, what you are seeing is an effort, by a minority, to get society at large to fundamentally rethink a social institution that has most always excluded them.

If such a change is to happen, it is properly done by public referendum, by act of law, by amendment of the constitution to add it as an enumerated right protected by law. It is utterly improper to have a single person (or a small panel) decide for everyone what will be the law when changes of this magnitude are to take place.

The proposal that the "right was always there" is the OPINION of a select few who choose to promote it. History does not support that statement.

But this is what's wrong with that.

A law can be on the books, and can be enforced, without the law being constitutional. Typically, when a law is passed that is not constitutional, it remains in force for years while the issue makes its way through the courts, until there's a final ruling. In the mean time, for practical purposes,it is the law since it is what's being enforced. But that doesn't mean that the law was ever constitutional to begin with. So then people come along and argue that because something has been the law, it should continue to be the law, seems to make little sense if the law should have been considered invalid from the onset. Especially considering that the only reasons that the law was on the books for as long as it was are a) we do not have in this country a review of laws for constitutionality before they go into effect and b) the courts move excruciatingly slow. Basically the situation ends up being that one injustice (an unconstitutional law being considered valid and being enforced for years while litigation to disqualify it is pending) is used to justify a further injustice, in that it no longer matters if something is right or wrong, or constitutional, or not - it only matters that its always been done that way. It rewards those who fight for something that is unconstitutional by giving them more and more of an (illegitimate) argument the longer they can keep it from being overturned.



The problem with this is that it seeks to invalidate the 9th amendment, and declares that for rights to exist, they must be enumerated in the Constitution or in the law. Thus all rights must now be enumerated. Any rights we forget to specifically call out don't exist, and the rights that are declared are open to interpretation as to what they mean and who they include, and not in a good way. If I said that when we declared all men were created equal, it was obvious we couldn't have meant black people, or Asians, or gay people, do we now need separate laws or constitutional amendments stating that yes, blacks, Asians and gay people are equal too? Lacking such separate laws or amendments, then would gays and blacks and Asians not be equal? If I say as the 14th amendment does that the law must protect everyone equally, do we need to start enumerating who must be protected and the ways in which they must be protected? Isn't it enough to say that the law protects everyone equally, and then to make sure that laws actually do protect everyone equally? Why do I need some special law or amendment to make sure that the 14th amendment actually applies to gay people? Must I think of every conceivable group or class of people and pass a law declaring that they're equal too instead of just saying "hey, everyone's equal, period" and having it mean what it says?



I do apologize but to me this seems like a cop-out.

First, its obstructionist. We've seen the gridlock that happens when relatively large numbers of people get together to decide matters of law (see congress). Nothing gets decided and nothing changes, or at least that is the tendency. Its a great way to keep things as they are in perpetuity.

Second, any given change is either allowed by the existing rules (laws, constitution) or not. Its not a case where "a single person (or a small panel) decide for everyone what will be the law" - its a case where such a group would decide for everyone what the previously agreed to laws actually are, not what they will be.

Third, make any such group large enough, and suddenly what was originally agreed to (laws/constitution) is meaningless - if everyone who initially agreed to a law participates as a judge in such a group that seeks to resolve disputes about the law, then the resolution becomes less about interpretation of what was agreed to, and more about renegotiation of a new agreement. Thus laws and constitutions become completely fluid and and I never have to obey them because no law is valid beyond the point in time where its first violated.

I would say that the desire for rights is a human universal, but it is not a 'universal' in the sense of existing outside of humans. If there existed, for example, some sort of cosmic 'right to life' for humans, then lions wouldn't kill and eat humans. They would recognize that humans have a universal right to live.

Okay, let's take that at face value. SLAVERY was CONSTITUTIONAL. When they wanted to end it, Lincoln did one thing under the war powers he held during the civil war, but he knew it would mean NOTHING once the war ended, so he pushed (along with the Abolitionists) to enter a constitutional amendment forever ending the practice.

IT WAS NOT THE ROLE OF A JUDGE TO FUNDAMENTALLY END THE PRACTICE. I'm sure any number of like-minded justice could have ruled slavery as a practice contrary to the US Constitution, but the proper means of imposing such society-wide change was to amended the US Constitution.



Utterly, utterly, utterly incorrect.

The 9th and 10th Amendment leaves all matters not expressly enumerated under the US Constitution to the states and the people to decide.

Hence, a state can choose via state constitution or legislation to create a right to same-sex marriage (or in your proposition...to declare prohibiting same-sex marriage contrary to protections guaranteed under the STATE constitution).

Remember, the state may offer MORE protections and liberties than the US Constitution, but the state can never offer less.

As marriage is not a "right" enumerated in the US Constitution, it is improper to rule on the issue and cite a constitutional provision that really does not exist. If you want to add marriage (same sex or otherwise) to the U.S. Constitution, you must CREATE it via constitutional amendment. Loving v. Virginia didn't have to do that because it was about same-sex, interracial marriage, which was a long-standing existing practice at the time Virginia tried to criminalize it. If same-sex marriage was a long-standing state right (not short-lived and highly contested) and then you tried to criminalize it, the reasoning in Loving would be more directly applicable.



This is where the legally uneducated fail so often in understanding how and why society operates the way it does. YOU CAN NOT CODIFY EVERYTHING OR THE LAW BECOMES UNWORKABLE. Every state in the nation had "common law." It was the morals and practices that society knew to abide by. Legal cases (criminal and civil) were decided at common law. The biggest drawback to common law is that right and wrong had to be determined in framework of what was understood to be right and wrong.

More and more states moved on to STATUTORY LAW. This means if they don't make a law against, it, no matter how wrong it is, there is no "crime." This was an improvement on one level, but it produces a tyranny of statutory law that no man can keep track of.

Under common law, same-sex marriage was never accepted. Under statutory law, same-sex marriage was never codified as permissible.

Hence, to change what is a permissible marriage, you must change the law, not just say it's something new because one or more judges think it's time to change it.

In all this time, what was not defined followed what was understood to be the norms of society...the common sense standards of right and wrong. Same-sex marriage was never accepted, hence it was never a "right." As such, no violation of equal protection under the law.



Do you understand WHY our government is set up that way? TO ENSURE STABILITY. If you want to let society morph based on the prevailing opinion of a group of people, YOU GET CHAOS. You might as well just encourage violent revolutions in the street.

In the USA, we avoid violence because we have an electoral process, a law making process, a constitutional amendment process to enact change without violence. It is designed to be slow and cumbersome to prevent change ABSENT majority support for change.

You might not agree with how well it works when you want changes made, but it has done better than most every system that's come before to ensure political stability and PEACEFUL transition on political and social issues.

***

My beef over the whole Prop 8 issue is (1) the US Supreme Court evaded the heart and soul of the issue (is same-sex marriage now a "right" under federal law), and it essentially allowed a very flawed lowest court ruling to stand all because they held the defenders of Prop 8 had no standing to defend the law. Enacting social change by judicial fiat rather than through the proper means of legislation or constitutional amendment.

JUDGES ARE ONLY SUPPOSED TO INTERPRET THE LAW. THEY ARE NOT SUPPOSED TO CREATE NEW LAW. When someone asks for something that historically does not exist, the judge must rule against them, and they are free to admonish that if the litigant wants their view made into law, they must get the law changed.

ONLY WHEN A LAW CLEARLY CONFLICTS WITH A HIGHER LAW ALREADY ON THE BOOKS, can a judge say the law is in violation. They are not supposed to make that ruling because they can magically divine such a conflict through confabulated legal reasoning and selective examination of historical facts.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..."

zer0netgain, I have repeatedly pointed out that you have failed to provide a legal justification (based on the Constitution itself or stare decisis) for your specific interpretation of the constitution. If you are legally educated, such justification should be easy to provide...

I am left with an assumption that you are just drawing on Scalia dissents without reflecting upon them. I would be grateful if you could provide evidence that would disprove this assumption.

Oh, and one more thing... If slavery was constitutional (it was, according to Dred Scott vs. Sandford), then why should one respect the constitution?

Oh, and will you please stop being *this* guy?
http://redwing.hutman.net/~mreed/warrio ... llcaps.htm

Now I think we're comparing apples to oranges. We have the constitution, and we have laws. If a judge rules in a way that is completely inconsistent with the constitution and the laws, especially to advance his/her own agenda, it is a clear abuse of power and the judge is, in effect, making new laws on his own, which is wholly improper.

In the case of slavery, it was, at that time, clearly constitutional, no matter how wrong it was. No judge could properly declare slavery to be unconstitutional. No ordinary law could be passed to end slavery since it too would have been unconstitutional. Therefore an amendment was required to end slavery.

If, on the other hand, a judge interprets the constitution and the laws to allow some right that was previously not allowed to be exercised, or to deny some right that is prohibited in the Constitution, so long as the ruling is actually consistent with the constitution, the judge has not done anything improper, and has not invented or enacted a new law on his/her own. They've clarified an existing law and the powers / rights that it grants.

In the case of gay marriage, I contend that gay marriage is not unconstitutional. The constitution does not explicitly mention marriage. It does not specifically prohibit gay marriage. As we've agreed, it grants the power to define marriage to the states. A state could define marriage in such a way that allows marriage for both straights and gays. To define it in a way that only allows marriage for opposite sex couples is unconstitutional. So for a judge to declare that the right exists under the current constitution and laws, or to declare that laws prohibiting gay marriage but allowing for opposite-sex marriage are unconstitutional, I contend would be wholly proper - the judge would not be enacting new laws, he would be properly interpreting existing laws and the existing constitution and invalidating laws that are unconstitutional. This is not inventing a new law. Thus to allow gay marriage, a constitutional amendment is not required.



10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people."

Does a state have the right to define marriage? Yes, because it is not elsewhere granted to the federal government in the Constitution. Does a state have the right to violate other parts of the constitution when defining marriage? No - this is clear from the portion of the 10th Amendment that I placed in bold above. The 14th amendment prohibits states from denying anyone equal protection of the laws. Thus the power to define marriage in a way that does not provide for equal protection to all people's is a power prohibited to the states by the Constitution. Thus having opposite sex marriage without same sex marriage is unconstitutional.

Thus the idea that a constitutional amendment to explicitly grant the right to gay marriage is unnecessary.



Not exactly true. A state may obviously not grant a right that the Constitution prohibits. All other rights are granted to the people per the 9th amendment. Thus the source of all rights is the Constitution, not the states. The state can grant additional privileges or protections, and by this reasoning the ability to marry is a privilege, or something other than an outright right, since the State is granting it. But the 14 amendment still prohibits the state from extending a privilege or a protection to one class of people rather than to all classes of people.





Obviously, marriage can be allowed under the existing Constitution by the states regulating it per the 10th amendment. Unless we want the federal government to have the power to regulate it, no further amendment is necessary. That still does not mean that under the 10th amendment, the states are granted an absolute free-for-all to do whatever they please. Its simply not the case. Everything that the states do must still be consistent with the remainder of the Constitution, including the 14th amendment.



The 14th amendment does not differentiate between statutory and common law. Whatever type of law it is that you claim historically prohibited gay marriage is irrelevant because the 14th amendment prohibits any law, statutory or common, that does not protect everyone equally. Again, if we have some law that prohibits gay marriage, but a judge finds this law to violate the 14th amendment, the judge has not changed the law - the judge has properly determined that the higher law (the supreme law - the Constitution) trumps the subordinate law when the two conflict. Its not making new law, its invalidating existing laws that are, well, invalid.



I do not disagree, but there needs to be a balance. Make change too tough, nothing ever changes. Make it too easy, things are not stable. Is it too easy for things to be changed right now via the courts? I suspect we'll disagree (fair enough) but it doesn't seem that easy to me - on most legal matters of significance, you need to make your way through a couple levels of state court, and 3 levels of federal court, through a process that takes years. Along the way you're going to encounter judges with all manner of judicial and political philosophies - conservatives, liberals, federalists, etc. At many of these levels you are not dealing with a single judge, but a panel of judges. And many of these judges don't just appoint themselves king - they are checked by the other branches of government via the appointment and confirmation process, and ultimately, if necessary, via the impeachment process, so its not as if the courts can run wild, completely unchecked.



But no court has declared that same sex marriage is a right under federal law. They've declared that states do not have the right to discriminate in their marriage laws. Again, if California wanted to stop allowing all new marriages, it would be perfectly within its power to do so. Its simply not within its power to stop gay marriages while allowing straight ones. Prop 8 should not have been ultimately decided on the standing technicality but once the parties that showed up at the Supreme Court were the ones who showed up, I believe the court had no choice - but that problem is ultimately traced back to the fact that there is no satisfactory mechanism for defending a law when state officials decline to. I've repeated at least one suggestion that I thought was good which I read in the LA Times for addressing this problem in a previous post.



But this is more or less what happened. The federal district court deemed that Prop 8 (the lower law) conflicted with the higher law (the 14th amendment). Ultimately it is this ruling which the higher courts allowed to stand. I think its safe to say that you do not think that Prop 8 and the 14th amendment clearly conflicted one-another, but disagreeing with a ruling is one thing, dismissing it as having been "magically divine[d] ... through confabulated legal reasoning and selective examination of historical facts" simply because you disagree with it is quite another. I would suggest that if you haven't already done so, you read the Federal district court's ruling in this case. I wasn't there at the hearing, so I don't know if the judge went through and cherry-picked the evidence, but the ruling to me seems quite well reasoned and addresses the evidence that the judge says was presented,

I have read the district court opinion. I find it fatally flawed for the fact that the judge appears to begin with the premise that "marriage" includes all variants as an inalienable "right." Um, no. Same-sex marriage was illegal (and remains so) for much of the USA today and only recently in our history is getting momentum to be legalized. Marrying your sibling, parent or child remains illegal. Marrying more than one consenting partner remains illegal.

I do not see one sentence in that judge's opinion where he goes from same-sex marriage NEVER being legal or a "right" in history to suddenly being a group of people being discriminated against. In that way, I feel he "divined" his way to the ruling he made.

Had California had same-sex marriage for a few years and then Prop 8 was proposed, I could accept his 14th Amendment reasoning. THIS IS NOT THE CASE. Same-sex marriage was "created" by a single judge's opinion. A law was promptly passed. The California Supreme Court sided in favor of same-sex marriage. Then Prop 8 came and was passed. During this time, same-sex marriage was in hiatus until the process determined what was to be the law. It was not a long standing practice or "right." It was an aberration.

This is why the Supreme Court should have addressed the meat and potatoes of the case and not sought to avoid it. By doing so, they allowed a potentially flawed lower court ruling to remain unchallenged, and as each month passes with same-sex marriage being the practice in California, the less likely the issue will ever be revisited. Not because it isn't ripe or there is lack of standing, but because it will be MOOT. The courts will be unwilling to create a double-standard on who has martial rights (those married before ruling in favor of Prop 8 and those who didn't get married before ruling in favor of Prop 8 ), or having to invalidate all the same-sex marriages that took place from day one to the upholding of Prop 8. Indeed, the Supreme Court did a great disservice to the judicial process by avoiding the issue as far as ensuring all sides were fairly heard.

That is out of the Declaration of Independence, which (while a very important document in the historical canon) is NOT the 'Law of the Land' and has no legal force whatsoever.