johnwk
08-22-2014, 09:15 PM
U.S. District Judge Robert L. Hinkle begins his opinion (https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0CGsQFjAJ&url=https%3A%2F%2Faclufl.org%2Fresources%2Fmarriag e-recognition-lawsuit-motion-for-preliminary-injunction%2F2014-04-25-acluflmarriagerecognitionmotionforpi%2F&ei=n_X3U5nLCemL8QGL1YGYCg&usg=AFQjCNFcearbwPHmt90O1eM_QvqRGrwzhQ) by establishing it is a fundamental right to marry. What Hinkle ignores is the “fundamental right” to “marry” within a legal sense applies to one male and one female in Florida. Keep in mind that words or terms used in legislation, being dependent upon approval by a legislature adopting the legislation, must be understood in the sense most obvious to the common understanding at the time of the legislation's adoption…! The legal definition of marriage in Florida has always been defined as a union between one man and one woman. And so, the fundamental right mentioned by Judge Hinkle, unless altered by a legislative act or constitutional amendment applies to one male and one female and not a same sex couple.
Hinkle goes on to make an astounding assertion: “A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest.” This idea, that fundamental rights may be denied if there is a “compelling state interest” involved is traced to a despotic test invented by our Supreme Court and was unknown to our founding fathers. Since its creation it has been used by our courts to impose their whims and fancies under the rubric that a “compelling state interest” is or is not involved and is used to totally ignore specific provisions and rights spelled out in our Constitution.
The idea that that constitutional guarantees and fundamental rights may not be enforced if a State can show denying the right "furthers some substantial state interest" is an absurdity and such a theory if allowed to stand would allow our judges and Justices to arbitrarily negate every guaranteed right by simply saying it "furthers some substantial state interest"!
Our Constitution was not written with such latitude being placed in the Court’s hands. But there are a number of constitutions which do give the Court this very despotic authority, e.g., under Israel’s Basic Law: “Human Dignity and Liberty” (http://www.mfa.gov.il/MFA/MFA-Archive/1992/Pages/Basic Law- Human Dignity and Liberty-.aspx) we find a number of rights listed and secured. But then, under No.8, “Violation of rights” we find:
”There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
This in effect makes the previous rights listed in Israel’s Basic Law meaningless and subject to the mere discretion and whims and fancies of those who hold government power! Hinkle’s reliance on a “compelling state interest” test which allows the Court to enforce or deny guaranteed constitutional and/or fundamental rights exhibits an onerous type of judicial tyranny in that our judges and Justices assume an authority which appears in Israel’s Basic Law, but is not granted in our own Constitution! Our constitutions, federal and state, and rights established therein, are not mere suggestions which are mutable and subject to Hinkle’s or the Court’s whims, fancies.
Judge Hinkle goes on to offer the long winded pros and cons and morality or immorality of marriage, and a same sex couple who want to be viewed as being “married”. But these arguments touted by Hinkle are totally irrelevant in a discussion concerning the rule of law and a State refusing to issue a marriage license to a same sex couple. The only issue at hand is whether or not doing so violates the State’s or Federal Constitution! Hinkle incorrectly asserts: ”The right to marry is as fundamental for the plaintiffs in the cases at bar as for any other person wishing to enter a marriage or have it recognized.” The inaccuracy comes from the assertion that the legal definition of marriage is met and applies to a same sex couple [the plaintiffs]. It can only apply to each of the plaintiffs if they choose to marry a person of the opposite sex which then fulfills the legal definition of marriage, or if a State chooses to amend its Constitution and/or laws to accommodate a new definition of marriage. What the plaintiffs in this case are desirous of is something far different from ‘marriage” as the term has been understood in the State of Florida for hundreds of years and the Court is not free to change the definition of words to its own liking!
In regard to the notion that the 14th Amendment’s legislative intent is to forbid a State from only issuing marriage licenses to couples consisting of one male and one female, and that such an idea is "discriminatory" and violates the equal protection of a State’s laws, that notion is totally without foundation and is a fabrication of the true intent and meaning of the 14th Amendment! And just what is the true intent and meaning of the 14th Amendment? It was summarized as follows by one of its supporters:
“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)
So, as it turns out, the 14th Amendment was not intended to forbid states from only issuing marriage licenses to couples consisting of one male and one female, nor intended to be a bar to every imaginable type of discrimination. And to allow charlatans such as Judge Hinkle who use their office of public trust to erode our Constitution and supplant their whims and fancies as being within the meaning of our Constitution, is to submit to the very tyranny and despotism which our written Constitution was designed to protect us from.
Now, a word about our federal Constitution’s "Full Faith and Credit” clause which Hinkle seems to not understand.
Article IV was adopted to establish a universal rule by which one state may be required to verify and acknowledge the records of another state during a legal proceeding between contesting parties, such as in the collection of a debt. For example, a child support judgment handed down by a court in New York against a party who has moved to Florida to escape making payment may be presented to a court in Florida which is then to take judicial notice of and enforce the judgment. However, the laws of New York under which the judgment arose are not made applicable to residents living in Florida. Likewise, applying Article IV to say the driving laws of one state which may issue a permit under specified conditions cannot be enforced in another state under the full faith and credit provision. One state is not obligated to recognize the driving permit issued by another state. A Number of States do not accept any out of state learner’s permit. Last time I checked, one may not drive in New York State if they are under 16, even if they are licensed in another state!
And so, if two people of the same sex are married in a State where same sex marriage is constitutional and they move to Florida, Article V is not intended to require the State of Florida to recognize the couple as being a married couple under its laws.
Hopefully that clears up any misconceptions Judge Hinkle may have had regarding Article V and its legislative intent regarding "Full Faith and Credit”.
JWK
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___ Chancellor James Kent, in his Commentaries on American Law (1858)
Hinkle goes on to make an astounding assertion: “A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest.” This idea, that fundamental rights may be denied if there is a “compelling state interest” involved is traced to a despotic test invented by our Supreme Court and was unknown to our founding fathers. Since its creation it has been used by our courts to impose their whims and fancies under the rubric that a “compelling state interest” is or is not involved and is used to totally ignore specific provisions and rights spelled out in our Constitution.
The idea that that constitutional guarantees and fundamental rights may not be enforced if a State can show denying the right "furthers some substantial state interest" is an absurdity and such a theory if allowed to stand would allow our judges and Justices to arbitrarily negate every guaranteed right by simply saying it "furthers some substantial state interest"!
Our Constitution was not written with such latitude being placed in the Court’s hands. But there are a number of constitutions which do give the Court this very despotic authority, e.g., under Israel’s Basic Law: “Human Dignity and Liberty” (http://www.mfa.gov.il/MFA/MFA-Archive/1992/Pages/Basic Law- Human Dignity and Liberty-.aspx) we find a number of rights listed and secured. But then, under No.8, “Violation of rights” we find:
”There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
This in effect makes the previous rights listed in Israel’s Basic Law meaningless and subject to the mere discretion and whims and fancies of those who hold government power! Hinkle’s reliance on a “compelling state interest” test which allows the Court to enforce or deny guaranteed constitutional and/or fundamental rights exhibits an onerous type of judicial tyranny in that our judges and Justices assume an authority which appears in Israel’s Basic Law, but is not granted in our own Constitution! Our constitutions, federal and state, and rights established therein, are not mere suggestions which are mutable and subject to Hinkle’s or the Court’s whims, fancies.
Judge Hinkle goes on to offer the long winded pros and cons and morality or immorality of marriage, and a same sex couple who want to be viewed as being “married”. But these arguments touted by Hinkle are totally irrelevant in a discussion concerning the rule of law and a State refusing to issue a marriage license to a same sex couple. The only issue at hand is whether or not doing so violates the State’s or Federal Constitution! Hinkle incorrectly asserts: ”The right to marry is as fundamental for the plaintiffs in the cases at bar as for any other person wishing to enter a marriage or have it recognized.” The inaccuracy comes from the assertion that the legal definition of marriage is met and applies to a same sex couple [the plaintiffs]. It can only apply to each of the plaintiffs if they choose to marry a person of the opposite sex which then fulfills the legal definition of marriage, or if a State chooses to amend its Constitution and/or laws to accommodate a new definition of marriage. What the plaintiffs in this case are desirous of is something far different from ‘marriage” as the term has been understood in the State of Florida for hundreds of years and the Court is not free to change the definition of words to its own liking!
In regard to the notion that the 14th Amendment’s legislative intent is to forbid a State from only issuing marriage licenses to couples consisting of one male and one female, and that such an idea is "discriminatory" and violates the equal protection of a State’s laws, that notion is totally without foundation and is a fabrication of the true intent and meaning of the 14th Amendment! And just what is the true intent and meaning of the 14th Amendment? It was summarized as follows by one of its supporters:
“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=334)
So, as it turns out, the 14th Amendment was not intended to forbid states from only issuing marriage licenses to couples consisting of one male and one female, nor intended to be a bar to every imaginable type of discrimination. And to allow charlatans such as Judge Hinkle who use their office of public trust to erode our Constitution and supplant their whims and fancies as being within the meaning of our Constitution, is to submit to the very tyranny and despotism which our written Constitution was designed to protect us from.
Now, a word about our federal Constitution’s "Full Faith and Credit” clause which Hinkle seems to not understand.
Article IV was adopted to establish a universal rule by which one state may be required to verify and acknowledge the records of another state during a legal proceeding between contesting parties, such as in the collection of a debt. For example, a child support judgment handed down by a court in New York against a party who has moved to Florida to escape making payment may be presented to a court in Florida which is then to take judicial notice of and enforce the judgment. However, the laws of New York under which the judgment arose are not made applicable to residents living in Florida. Likewise, applying Article IV to say the driving laws of one state which may issue a permit under specified conditions cannot be enforced in another state under the full faith and credit provision. One state is not obligated to recognize the driving permit issued by another state. A Number of States do not accept any out of state learner’s permit. Last time I checked, one may not drive in New York State if they are under 16, even if they are licensed in another state!
And so, if two people of the same sex are married in a State where same sex marriage is constitutional and they move to Florida, Article V is not intended to require the State of Florida to recognize the couple as being a married couple under its laws.
Hopefully that clears up any misconceptions Judge Hinkle may have had regarding Article V and its legislative intent regarding "Full Faith and Credit”.
JWK
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___ Chancellor James Kent, in his Commentaries on American Law (1858)