How Prop 8 was struck down

[WaltM]

Can anybody tell me why this guy is wrong?

Put aside all my biases on this issue, I can't believe the decision reads so easily as if the court has ONLY common sense and NO other agenda (I hope it's just an illusion so I can go back to believing it's just a gay judge ruling in favor of gays)

YouTube - How Proposition 8 Went Down (Part 1 of 2) (http://www.youtube.com/watch?v=bV3fkpR74Ak)

YouTube - How Proposition 8 Went Down (Part 2 of 2) (http://www.youtube.com/watch?v=fZNUo62N_mY)

I'm sympathetic and understanding to people who admit "we don't believe in equality and gays have no rights", but I don't get people who claim gays are equal, but can't tell us why gays don't have a the same rights to marriage (despite it being a privilege rather than a right).

Likewise, I can understand people who believe in majority rule, which makes Prop 8 justified. But if you do not hold such a view, do you only support Prop 8 because it happens to agree with you (I think even admitting that is much more honest than dancing around).

[Stary Hickory]

How about first acknowledgeing that they do have the same rights to an almost equal extent in (Domestic Partnership)Lets start there and quit misrepresenting what is happening in CA.

Also acknowledge the fact that the gay community is simply using government to attack the instituion of marriage. This is where there is conflict, if gays simply wanted equal rights there would be no battle, but to try and use government to force your lifestyle on those who choose not to be associated with it is immoral and ought to be opposed at every turn

If you cannot be honest about what is really going on over there then there can be no debate. This is not about equal rights it's about forcing acceptance of a lifestyle that many dislike and choose not to be around or be involved with. This is not a legitimate use of government force.

The Gay community is more concerned with attacking the idea of marriage than any kind of rights. In CA they have equal rights with whatever small exceptions exist under Domestic Parnterships. I wholeheartedly support eliminating any differences under the law that still exist in CA however I will never support these people as long as they try to use the government to attack marriage and those who live a different lifestyle and choose not to associate with the gay community for whatever reason.

[jmdrake]

1) There is supreme court precedence that disputes the idea that marriage is a "fundamental right". Take polygamy laws for instance. Can you think of any compelling governmental 3 people can't marry? I've seen BS reasons thrown own. (Polygamy supposedly subjugates women. Who get to make the final decision when 1 out of 3 spouses is incapacitated and other nonsense.) None of these reasons make any sense. (No reason why a woman can't have two husbands. And if someone has voluntarily been subjegated, who cares? Also a single person with two kids has the same issue of "who gets final say". It's the oldest child. In a plural marriage the first spouse would get final say if not specified by contract.) Also what compelling reason is there against gay siblings getting married? Straight incest is supposedly a problem for genetic reasons. But gay incest isn't such a problem. (And it certainly happens). Should the government discriminate in favor of gay incest against straight incest?

2) So called "fundamental rights" are not always held to "strict scrutiny". For example there are quite a few instances where the first amendment right to speak is not held to strict scrutiny. (Fighting words, true threats, obscenity, "government" speech etc.) So the author is flat out wrong to claim otherwise. Further the whole "strict scrutiny / rational basis" regime is totally made up by the supreme court and found nowhere in the constitution! Rights that were enumerated in the bill of rights are sometimes held to rational basis. (freedom of religion, speech etc.) Rights that were "discovered" by the courts are sometimes held to strict scrutiny. (abortion and now marriage). It's quite arbitrary.

I've only watched part one. I had to wade through so much ad hominem on the front end by the author that I'm too weary to look at part two. But he's clearly oversimplifying the issue and trying to pull the wool over your eyes.

[WaltM]

How about first acknowledgeing that they do have the same rights to an almost equal extent in (Domestic Partnership)Lets start there and quit misrepresenting what is happening in CA.

Also acknowledge the fact that the gay community is simply using government to attack the instituion of marriage.


what's to attack if they had the same rights? oh, sorry, this is the exception?



This is where there is conflict, if gays simply wanted equal rights there would be no battle, but to try and use government to force your lifestyle on those who choose not to be associated with it


please explain to me how gays are forcing anybody their lifestyle.

who is forced to associate with them by gays, via government?




is immoral and ought to be opposed at every turn


I'm against force, I'm just not seeing it here.




If you cannot be honest about what is really going on over there then there can be no debate. This is not about equal rights it's about forcing acceptance of a lifestyle that many dislike and choose not to be around or be involved with. This is not a legitimate use of government force.


Yes, we indeed can't be having a discussion without being honest first.

I seriously can't see how this is a non-equal rights issue, and a 'force others to accept this' issue.

Please tell me how it is.




The Gay community is more concerned with attacking the idea of marriage than any kind of rights.


so you mean, if gays can destroy marriage, they'd not ask for any rights and privileges afforded to married couples?



In CA they have equal rights with whatever small exceptions exist under Domestic Parnterships. I wholeheartedly support eliminating any differences


no you don't, or else you'd not have a problem calling gay marriage gay marriage.



under the law that still exist in CA however I will never support these people as long as they try to use the government to attack marriage and those who live a different lifestyle and choose not to associate with the gay community for whatever reason.

what should they use? rather than government?

[WaltM]

1) There is supreme court precedence that disputes the idea that marriage is a "fundamental right". Take polygamy laws for instance. Can you think of any compelling governmental 3 people can't marry?


Nope. I seriously can't.

At least not legally, at least not under the same logic that any 2 people can be married.

I can at best, think of a reason why close relatives can't marriage if there's any sign they'd intend to procreate, and that's based on my bias in science and genetics (and eugenics).



I've seen BS reasons thrown own. (Polygamy supposedly subjugates women. Who get to make the final decision when 1 out of 3 spouses is incapacitated and other nonsense.) None of these reasons make any sense. (No reason why a woman can't have two husbands. And if someone has voluntarily been subjegated, who cares? Also a single person with two kids has the same issue of "who gets final say". It's the oldest child. In a plural marriage the first spouse would get final say if not specified by contract.) Also what compelling reason is there against gay siblings getting married? Straight incest is supposedly a problem for genetic reasons. But gay incest isn't such a problem. (And it certainly happens). Should the government discriminate in favor of gay incest against straight incest?


Yes, the government should discriminate against straight incest and almost nothing else.

That includes allowing gay incest marriages. As you've said above (and I completely agree), this is based on genetics (or eugenics if you wish to call it that).




2) So called "fundamental rights" are not always held to "strict scrutiny". For example there are quite a few instances where the first amendment right to speak is not held to strict scrutiny. (Fighting words, true threats, obscenity, "government" speech etc.) So the author is flat out wrong to claim otherwise


I didn't know that, thanks.



. Further the whole "strict scrutiny / rational basis" regime is totally made up by the supreme court and found nowhere in the constitution!


of course it isn't in the Constitution.

But is it then completely made up just now? Or is it based on traditional, and prescedent, in which case, if it worked, they can use it until it doesn't?

I know, it's circular reasoning, the supreme court deciding what is right for themselves, but at least THAT is in the Constitution.

Is our Constitution not designed to give Judicial branch SOME of this abuse?



Rights that were enumerated in the bill of rights are sometimes held to rational basis. (freedom of religion, speech etc.) Rights that were "discovered" by the courts are sometimes held to strict scrutiny. (abortion and now marriage). It's quite arbitrary.

I've only watched part one. I had to wade through so much ad hominem on the front end by the author that I'm too weary to look at part two. But he's clearly oversimplifying the issue and trying to pull the wool over your eyes.

I know he's simplifying it, so I wanted an legal expert to help decipher it :)

[amy31416]

Why do you care, Walt?

[TonySutton]

I know he's simplifying it, so I wanted an legal expert to help decipher it :)

Walt, you should read the ruling. It is a long read but it is plain english and pretty easy to understand. It is also interesting to see some of the supporting cases used.

http://www.goodasyou.org/good_as_you/2010/08/eek-the-prop8-decision-is-here.html

[jmdrake]

Nope. I seriously can't.

At least not legally, at least not under the same logic that any 2 people can be married.

I can at best, think of a reason why close relatives can't marriage if there's any sign they'd intend to procreate, and that's based on my bias in science and genetics (and eugenics).

Yes, the government should discriminate against straight incest and almost nothing else.


Well with your knowledge of science you should know that two siblings could now do genetic testing to see if there is any chance of passing on any known genetic diseases. Now you might have two people who are not at all related, but who are almost guaranteed to pass some debilitating genetic disorder to their children. Maybe they met at a sickle cell anemia support group. Would you deny a marriage license to the two siblings without any known genetic problems while granting one to two non relatives who will likely pass on a genetic disorder? Or do you start discriminating against people with genetic disorders? Say if the two siblings present documentation that they both have been sterilized?



I didn't know that, thanks.


You're welcome.



of course it isn't in the Constitution.

But is it then completely made up just now? Or is it based on traditional, and prescedent, in which case, if it worked, they can use it until it doesn't?


Sure it's based on precedent. But there is such a thing as bad precedent. (Think "Dread Scott" or "Pleasey v. Ferguson" or a whole host of other supreme court cases that have since been totally repudiated.)



I know, it's circular reasoning, the supreme court deciding what is right for themselves, but at least THAT is in the Constitution.

Is our Constitution not designed to give Judicial branch SOME of this abuse?


I'm pretty sure that's NOT in the constitution. Basically in Marbury v. Madison, justice Marshall "declared" that the supreme court had the power of judicial review. So it's more circular than you think. ;) Further the constitution never envisioned "abuse" by the judicial system. A major thrust of the constitution was to limit the power of the federal government to prevent abuse. The problem is this. If the supreme court and reinterpret the constitution anyway it wants and there is no recourse then where is the limit on their power? Say if a constitutional amendment passed saying "The congress shall pass no law restricting any person from putting any substance into his or her own body". Pretty clear right? Well say if some court said "While we affirm this right, we are going to interpret this under rational basis, so as long as the government can come up with any reason no matter how shaky to pass such a law it can." Then what?

Anyway, more on Marbury v. Madison here:

http://en.wikipedia.org/wiki/Marbury_v._Madison

Sure it's Wikipedia, but it's pretty solid.




I know he's simplifying it, so I wanted an legal expert to help decipher it :)

I'm not a legal expert. I just play one on the internet. ;)

[Stary Hickory]

what's to attack if they had the same rights? oh, sorry, this is the exception?



please explain to me how gays are forcing anybody their lifestyle.

who is forced to associate with them by gays, via government?




I'm against force, I'm just not seeing it here.




Yes, we indeed can't be having a discussion without being honest first.

I seriously can't see how this is a non-equal rights issue, and a 'force others to accept this' issue.

Please tell me how it is.




so you mean, if gays can destroy marriage, they'd not ask for any rights and privileges afforded to married couples?



no you don't, or else you'd not have a problem calling gay marriage gay marriage.


what should they use? rather than government?

Oh please drop the rights bs...it's not about rights. It never has been. Are you even familiar with domestic partnerships? Probably not. Because there is virtually no difference under CA law as it is now.

So my god until you half way educate yourself on the issue it we behoove you not to try and argue with people. You do not get one damn about hetero couples and any rights they may have. Your ONLY valid position is to argue for equal rights, not to have the state redefine (USING FORCE) a term in order to inflict damage on traditional marriages.

Marriage does not belong to the state, it is not for the state to define, and the state is not to be used as some sick weapon to attack the institution of marriage which has deep religious and cultural significance to millions of Americans. The gay community in CA has lost my support fully and will not regain it until they concentrate on rights only and not on attacking the "other" side using a corrupt political system.

OH and BTW do not put words into my mouth I can call gay marriage whatever I like....it's a personal choice...the difference between you and I is I recognize the state has no business telling me how it is. We have an established term Marriage (man and woman) it has been established after thousands of years.

This is exactly why the gay community is attacking this term,...because of it's significance to heterosexual couples. Otherwise they would be more than happy with equal rights under the law.

[jmdrake]

Walt, you should read the ruling. It is a long read but it is plain english and pretty easy to understand. It is also interesting to see some of the supporting cases used.

http://www.goodasyou.org/good_as_you/2010/08/eek-the-prop8-decision-is-here.html

I haven't read the entire opinion, but lines 24 - 26 are not true and somewhat self contradictory. First by limiting marriage to one man and one woman, heterosexuals are not necessarily allowed to marry a person of their own choosing. They can only get married if they are single or divorced. So the judge is incorrect in making that assertion. And his 2nd assertion contradicts the first. In the second assertion he says that gays and lesbians are prevented from marrying at all. But in the first assertion he made the correct point that they are barred from marrying someone "of their own choosing". Famed feminist and lesbian activist Andrea Dworkin was married to a gay man. Maybe that wasn't her first choice, but she and the gay man were both allowed to marry. Yes I'm being "nitpicky", but law is a nitpicky thing. ;)

[Stary Hickory]

Here is a novel idea, drop the attacks on the "term" marriage and demand equal rights under ANY other term.....this would be over and done with in no time at all.

But we can see what the gay community is really up to over there by their refusal to do this.

[jmdrake]

Here's my prediction. This ruling will likely be struck down on appeal and not be granted cert to the U.S. Supreme Court. If it makes it to the court it will be struck down 5 - 4. If it doesn't get struck down then it will breath new life into the "federal marriage amendment" and calls for a con-con, neither of which I want.

[Stary Hickory]

As long as people realize what is really going on is social engineering and the redefining of a term. The rights issue is BS and just a smoke screen. If you want to support this then question what it is exactly you are supporting.

Equal rights yes, social engineering no.

[TonySutton]

I haven't read the entire opinion, but lines 24 - 26 are not true

On which page? There are lines 24-26 on every page :confused:

[WaltM]

Here is a novel idea, drop the attacks on the "term" marriage and demand equal rights under ANY other term.....this would be over and done with in no time at all.

But we can see what the gay community is really up to over there by their refusal to do this.

I have no practical objection to this, but this is the same old "separate but equal" argument.

That blacks can be given the same rights as whites, but they must still legally be black, and not simply "people".

That women should have the same right to work and vote, but they should always be asked and noted as to what they are, not simply "citizens".

Why should there be any separate term unless you intend to treat 2 groups differently?

[WaltM]

As long as people realize what is really going on is social engineering and the redefining of a term.


as if that's wrong.

as if we've not done the same for gays and blacks already.



The rights issue is BS and just a smoke screen. If you want to support this then question what it is exactly you are supporting.

Equal rights yes, social engineering no.

social engineering is just your paranoid objection to people adopting to a new social norm and acceptance of different lifestyles.

[Stary Hickory]

as if that's wrong.

as if we've not done the same for gays and blacks already.



social engineering is just your paranoid objection to people adopting to a new social norm and acceptance of different lifestyles.

You draw parallels which baffle me. This is in no way related to the things you just listed. In fact let us continue down your absurd line of reasoning.

Did Blacks asked to be called whites? Did they demand the term white mean black?

Did women demand that the word man mean man and woman?

In both cases they asked for EQUAL rights for different defined terms.

Your arguments are full of complete and utter fail.

[WaltM]

Well with your knowledge of science you should know that two siblings could now do genetic testing to see if there is any chance of passing on any known genetic diseases. Now you might have two people who are not at all related, but who are almost guaranteed to pass some debilitating genetic disorder to their children. Maybe they met at a sickle cell anemia support group. Would you deny a marriage license to the two siblings without any known genetic problems while granting one to two non relatives who will likely pass on a genetic disorder?


yes I would.

That's the only consistent way to uphold and defend the rule that genetics matter.

However, you and I may disagree on what's an acceptable way of finding out whether 2 people have any chance or procreating a defective child. But if it's known, beyond reasonable doubt, then their marriage should be denied, or at least, their procreation rights should be (if that's not acceptable, they should waive their child's rights to any health care benefits).



Or do you start discriminating against people with genetic disorders?


yes, I do.



Say if the two siblings present documentation that they both have been sterilized?


that would be a good way to exempt them from the marriage ban.

In other words, I'm consistently FOR all marriages that don't produce defective children, and AGAINST all marriages that do.





You're welcome.

Sure it's based on precedent. But there is such a thing as bad precedent. (Think "Dread Scott" or "Pleasey v. Ferguson" or a whole host of other supreme court cases that have since been totally repudiated.)

I'm pretty sure that's NOT in the constitution. Basically in Marbury v. Madison, justice Marshall "declared" that the supreme court had the power of judicial review. So it's more circular than you think. ;)


fair enough.

what then IS the Constitutional role of the SC, and if nothing was done about it since, what else is it?



Further the constitution never envisioned "abuse" by the judicial system.


No shit, huh?



A major thrust of the constitution was to limit the power of the federal government to prevent abuse. The problem is this.


I think the word "abuse" is used in a different context here.

I was talking about abuse amongst 3 branches against each other, obviously, all on the federal level.

What you're talking about now is, the federal government abuse against the people or States.



If the supreme court and reinterpret the constitution anyway it wants and there is no recourse then where is the limit on their power?


Good question.

What is the non-arbitrary, legal, thing to do?



Say if a constitutional amendment passed saying "The congress shall pass no law restricting any person from putting any substance into his or her own body". Pretty clear right? Well say if some court said "While we affirm this right, we are going to interpret this under rational basis, so as long as the government can come up with any reason no matter how shaky to pass such a law it can." Then what?

Anyway, more on Marbury v. Madison here:

http://en.wikipedia.org/wiki/Marbury_v._Madison

Sure it's Wikipedia, but it's pretty solid.




I'm not a legal expert. I just play one on the internet. ;)

you're more of an expert than I'll be for many years. Better than most people on here.

[WaltM]

You draw parallels which baffle me. This is in no way related to the things you just listed. In fact let us continue down your absurd line of reasoning.


how convenient, you simply deny the similarity to deny the conclusion that you're inconsistent.




Did Blacks asked to be called whites? Did they demand the term white mean black?


Nope, blacks demanded to be called people, as whites are legally.

Whites were not legally called whites, they were called people.

They did not demand a legal term white to mean black, and gays did not demand straight marriage to mean gay marriage (or even include it), they demand marriage to be inclusive to any 2 persons. The same way the word "person" be inclusive to blacks, whites, and women, without qualification.



Did women demand that the word man mean man and woman?


No, and gays are not asking to be called normal or straight.

Women demanded to be called citizens, as men are. Without description.

Gays demand the right, privilege and legal status of marriage, as it currently applies to married couples.

If legally, all married couples were renamed civil unions, gays would demand that they too get civil unions.

There's no reason gays should settle for "civil unions" while straights are legally a different name. (or is there? tell me).



In both cases they asked for EQUAL rights for different defined terms.

Your arguments are full of complete and utter fail.

saying I fail doesn't make it so, try addressing my response.

In all cases, the minority party asked for equal rights AND an ALL INCLUSIVE TERM FOR ALL PARTIES. (and NOT a separate but equal term).

[TonySutton]

@Star Hickory: Your comments suggest you agree with having blacks sit in the back of the bus and drink from different water fountains. Am I reading your words correctly if not feel free to clarify it your position.

[WaltM]

@Star Hickory: Your comments suggest you agree with having blacks sit in the back of the bus and drink from different water fountains. Am I reading your words correctly if not feel free to clarify it your position.

yeah, seriously.

he believes it's possible to give blacks equal rights, even though they're legally called blacks, rather than people, men, citizens.

[jmdrake]

On which page? There are lines 24-26 on every page :confused:

Sorry. Page 7 of the PDF (page 5 by the page numbers). :o Anyway, I'll freely admit it's an extremely nitpicky point.

[jmdrake]

yes I would.

That's the only consistent way to uphold and defend the rule that genetics matter.

However, you and I may disagree on what's an acceptable way of finding out whether 2 people have any chance or procreating a defective child. But if it's known, beyond reasonable doubt, then their marriage should be denied, or at least, their procreation rights should be (if that's not acceptable, they should waive their child's rights to any health care benefits).

yes, I do.

that would be a good way to exempt them from the marriage ban.

In other words, I'm consistently FOR all marriages that don't produce defective children, and AGAINST all marriages that do.


Per some of our earlier conversations I'm not surprised. (That's not meant as a slam or anything. Just my personal observation of seeming view of science uber alles.) That said, the current state of the law is in your view irrational (if I'm reading you right) since some marriage which can clearly produce defects are not banned based on dated scientific knowledge and some marriages that cannot likely produce defects are banned. So based on your own understanding of what should be, the current heterosexual restrictions on marriage do not pass strict scrutiny and may not even pass rational basis. Oh, and the reason I went with this argument is that I saw a constitutional law professor question a student on this very subject with this argument. So it's something that actually gets batted around.




fair enough.

what then IS the Constitutional role of the SC, and if nothing was done about it since, what else is it?


In my view? I agree with the John Roberts analogy of "calling balls and strikes". The court should be able to decide if a law fits within the "strike zone" of being constitutional, but should not be able to alter the "strike zone" themselves. Now maybe a previous umpire misinterpreted the "strike zone" and I think the court should be able to correct that. But I'm concerned when the "strike zone" becomes so ill defined that it bears little resemblance to the original definition.

Of course Elena Kagan disagrees with the "strike zone" analogy. But she also thinks that if the federal government decided to pass a law saying everyone had to eat broccoli 3 times a day that such a law would be constitutional. But that's because she interprets the interstate commerce clause in the most extreme way. Her statement on that should have killed her nomination right then and there.



I think the word "abuse" is used in a different context here.

I was talking about abuse amongst 3 branches against each other, obviously, all on the federal level.

What you're talking about now is, the federal government abuse against the people or States.


Ah. I see your point. Except I think abuse of different branches indirectly leads to abuse against the people or states. The biggest problem we have now resulting in the so called "war on terrorism" is that the executive branch has taken far to much power. Warrantless wiretapping, ridiculous definitions of "torture" etc all come from the idea of the "unitary executive". Or take the whole RFRA debate (religious freedom restoration act). Congress specifically passed that because it felt the supreme court had granted too much power to the states to abuse the right of the people to free exercise of religion. But the court said "No no no! Only we get to decide what is truly deserving of "strict scrutiny", congress and the text of the constitution be damned." So I'm worried about one type of abuse leading to another type.



Good question.

What is the non-arbitrary, legal, thing to do?


Well Ron Paul has proposed the "We the people" act.

http://www.govtrack.us/congress/billtext.xpd?bill=h111-539

While I agree with this in principle, I'm not sure if the language of the bill goes too far or not.



you're more of an expert than I'll be for many years. Better than most people on here.

Thanks. I try. :o

[jmdrake]

@Star Hickory: Your comments suggest you agree with having blacks sit in the back of the bus and drink from different water fountains. Am I reading your words correctly if not feel free to clarify it your position.

I don't think so. Being forced to sit in the back of the bus or drink from a colored water fountain fundamentally restricts what you can do. Having to get a "domestic partner" license as opposed to a "marriage license", if everything else is the same, only changes what the state calls what you do. Totally different.

If you wanted an accurate analogy look at the anti-miscegenation laws and the "Loving v. Virginia" case. But even that case doesn't totally help your argument because a big part of the decision was based on all of the supposed "benefits" of marriage. Also realize that the Loving case involved an actual ban on interracial marriage, whereas Prop 8 involved a restriction on state recognition of gay marriage. What's the difference? Mr. Loving and his wife were arrested and deported from Virginia for being married. When's the last time anybody anywhere in the U.S. has been arrested for participating in a gay marriage ceremony?

If all of the supposed "benefits" of marriage were removed such as tax "benefits" (although sometimes marriage is a net tax penalty), insurance and pension benefits etc then the issue would largely go away, at least in the mind of the court. If we're ever successful in getting rid of the income tax there goes the tax issue. Health insurance and to some degree "defined benefit" pension plans largely come from the tax system. For those with defined contribution pensions, marriage is no issue because you can give your benefit to whoever you want. If we decoupled the tax benefit for health insurance from employment, so that your employer just paid you more money and you bought whatever insurance you wanted, marriage would no longer be an issue for health insurance either. Most everything else (hospital visitation, end of life decisions, alimony, inheritance, child custody and support issues etc) could be handled by standard form contract without government involvement at all. In fact there are several cases in family law that suggest that very thing.

[WaltM]

Per some of our earlier conversations I'm not surprised. (That's not meant as a slam or anything. Just my personal observation of seeming view of science uber alles.) That said, the current state of the law is in your view irrational (if I'm reading you right) since some marriage which can clearly produce defects are not banned based on dated scientific knowledge and some marriages that cannot likely produce defects are banned.


it's inconsistent and hypocritical from my view.

You are right, if "it's for the children" was the point and problem logically we should enforce it consistently, but since it isn't (or it doesn't seem to be), gay marriage needs to be banned for a better reason (and not this one).





So based on your own understanding of what should be, the current heterosexual restrictions on marriage do not pass strict scrutiny and may not even pass rational basis. Oh, and the reason I went with this argument is that I saw a constitutional law professor question a student on this very subject with this argument. So it's something that actually gets batted around.


sounds about right.

if the state and society has ANY INTEREST AT ALL in preventing defective children from being born, they should do it. But if not, they should not pretend like that's an excuse to bar gays from getting the same privileges (including calling it marriage)




In my view? I agree with the John Roberts analogy of "calling balls and strikes". The court should be able to decide if a law fits within the "strike zone" of being constitutional, but should not be able to alter the "strike zone" themselves. Now maybe a previous umpire misinterpreted the "strike zone" and I think the court should be able to correct that. But I'm concerned when the "strike zone" becomes so ill defined that it bears little resemblance to the original definition.

Of course Elena Kagan disagrees with the "strike zone" analogy. But she also thinks that if the federal government decided to pass a law saying everyone had to eat broccoli 3 times a day that such a law would be constitutional. But that's because she interprets the interstate commerce clause in the most extreme way. Her statement on that should have killed her nomination right then and there.


I see. I'll have to digest this a little.



Ah. I see your point. Except I think abuse of different branches indirectly leads to abuse against the people or states. The biggest problem we have now resulting in the so called "war on terrorism" is that the executive branch has taken far to much power.


and in my view, judicial activism or congressional tyranny is an acceptable way to fix the problem for short term. (even knowing that it's illegal).

I try to separate what's right and what's legal.



Warrantless wiretapping, ridiculous definitions of "torture" etc all come from the idea of the "unitary executive". Or take the whole RFRA debate (religious freedom restoration act). Congress specifically passed that because it felt the supreme court had granted too much power to the states to abuse the right of the people to free exercise of religion. But the court said "No no no! Only we get to decide what is truly deserving of "strict scrutiny", congress and the text of the constitution be damned." So I'm worried about one type of abuse leading to another type.


fair enough.




Well Ron Paul has proposed the "We the people" act.

http://www.govtrack.us/congress/billtext.xpd?bill=h111-539

While I agree with this in principle, I'm not sure if the language of the bill goes too far or not.

Thanks. I try. :o

thanks again!

[WaltM]

I don't think so. Being forced to sit in the back of the bus or drink from a colored water fountain fundamentally restricts what you can do. Having to get a "domestic partner" license as opposed to a "marriage license", if everything else is the same, only changes what the state calls what you do. Totally different.


I'm sorry, I have a hard time believing that there's a point in printing a different titled paper if everything else is the same.

We're not talking about "driver license" with simply "M" rather than "F" and "everything else is the same" are we?





If you wanted an accurate analogy look at the anti-miscegenation laws and the "Loving v. Virginia" case. But even that case doesn't totally help your argument because a big part of the decision was based on all of the supposed "benefits" of marriage. Also realize that the Loving case involved an actual ban on interracial marriage, whereas Prop 8 involved a restriction on state recognition of gay marriage. What's the difference? Mr. Loving and his wife were arrested and deported from Virginia for being married. When's the last time anybody anywhere in the U.S. has been arrested for participating in a gay marriage ceremony?


I agree, nobody has been arrested or deported for performing or exercising an illegal or fraudulent marriage for a long time.

But is there any reason back then, that interracial couples had to be given an equal right to marry?

Can't they settle for "civil unions" or "cohabitation"? Couldn't we have given them "separate but equal" licenses, perhaps called "interracial union" license, rather than a plain old "marriage license"?




If all of the supposed "benefits" of marriage were removed such as tax "benefits" (although sometimes marriage is a net tax penalty), insurance and pension benefits etc then the issue would largely go away, at least in the mind of the court.


I agree. While I hear many people say "marriage shouldn't be a state's decision" or "just abolish marriage and we'll stop complaining", I don't know too many straight couples that really wish to give up the (legal, financial) privileges they have under marriage.



If we're ever successful in getting rid of the income tax there goes the tax issue. Health insurance and to some degree "defined benefit" pension plans largely come from the tax system. For those with defined contribution pensions, marriage is no issue because you can give your benefit to whoever you want. If we decoupled the tax benefit for health insurance from employment, so that your employer just paid you more money and you bought whatever insurance you wanted, marriage would no longer be an issue for health insurance either. Most everything else (hospital visitation, end of life decisions, alimony, inheritance, child custody and support issues etc) could be handled by standard form contract without government involvement at all. In fact there are several cases in family law that suggest that very thing.

I think you're right.

Sadly though, don't you think more Americans are willing to settle the gay marriage issue on its own, rather than level the playing field for tax, legal, hospital visitation....etc?

This is akin to "if we got rid of welfare, we won't complain about illegal immigrants", while very true, isn't it easier and more comfortable to settle the immigration problem on its own, rather than address the underlying issue of equality, role of government, which would compromise the cohesion, cooperation and pride of our society?

[QueenB4Liberty]

Oh please drop the rights bs...it's not about rights. It never has been. Are you even familiar with domestic partnerships? Probably not. Because there is virtually no difference under CA law as it is now.

So my god until you half way educate yourself on the issue it we behoove you not to try and argue with people. You do not get one damn about hetero couples and any rights they may have. Your ONLY valid position is to argue for equal rights, not to have the state redefine (USING FORCE) a term in order to inflict damage on traditional marriages.

Marriage does not belong to the state, it is not for the state to define, and the state is not to be used as some sick weapon to attack the institution of marriage which has deep religious and cultural significance to millions of Americans. The gay community in CA has lost my support fully and will not regain it until they concentrate on rights only and not on attacking the "other" side using a corrupt political system.

OH and BTW do not put words into my mouth I can call gay marriage whatever I like....it's a personal choice...the difference between you and I is I recognize the state has no business telling me how it is. We have an established term Marriage (man and woman) it has been established after thousands of years.

This is exactly why the gay community is attacking this term,...because of it's significance to heterosexual couples. Otherwise they would be more than happy with equal rights under the law.

http://gaylife.about.com/od/samesexmarriage/a/domesticpartner.htm

Ok according to all the things I'm finding there are many more benefits given to heterosexuals in marriage then there are to homosexuals in domestic partnerships. There are over 1,000 benefits given with a marriage license. It's astounding to me actually.

[WaltM]

http://gaylife.about.com/od/samesexmarriage/a/domesticpartner.htm

Ok according to all the things I'm finding there are many more benefits given to heterosexuals in marriage then there are to homosexuals in domestic partnerships. There are over 1,000 benefits given with a marriage license. It's astounding to me actually.

and if they were exactly the same, why should they be called anything different?