Napolitano doubles down on his living document view of the Constitution

[erowe1]

Today on LRC

Kentucky law requires that applicants for marriage licenses be unmarried, residents of Kentucky and at least 18 years of age. As a county clerk, Davis cannot add to these requirements another requirement — namely, that the applicants be of the opposite sex. She cannot do that because the Supreme Court has ruled that marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state.

https://www.lewrockwell.com/2015/09/andrew-p-napolitano/the-christian-right-is-wrong-2/

One problem: that's obviously false.

Here's the definition of marriage according to Kentucky law:

As used and recognized in the law of the Commonwealth, "marriage" refers only to the
civil status, condition, or relation of one (1) man and one (1) woman united in law for
life, for the discharge to each other and the community of the duties legally incumbent
upon those whose association is founded on the distinction of sex.
http://www.lrc.ky.gov/Statutes/statute.aspx?id=36464

And here's what the Kentucky Constitution says:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

Another problem: if it's true that "marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state," then so what? Kim Davis did nothing that interfered with anyone's right to choose a same-sex marriage mate or exercise any liberty they have. All she did was refuse to give them a piece of paper, pursuant to her oath of office to uphold the US and Kentucky Constitutions (the latter of which prohibits her from giving them that piece of paper).

[Christian Liberty]

*sigh* Judge Nap.

I like him, but there's no way I'd ever vote for him at this point (even leaving aside the fact that I probably would not vote for a Roman Catholic.) He's really OK with using the Feds here? Because that seems like that's what he's saying. And if he's saying that, however "Rothbardian" he may be in his ideal world, he's anti-liberty.

Not holding my breath for the Catholic Church to actually enforce its views on same-sex marriage and excommunicate him...

[Sonny Tufts]

All she did was refuse to give them a piece of paper, pursuant to her oath of office to uphold the US and Kentucky Constitutions (the latter of which prohibits her from giving them that piece of paper).

Of the two constitutions, guess which takes precedent?

[erowe1]

Of the two constitutions, guess which takes precedent?

In this case it doesn't matter, since neither one requires Kentucky to give same-sex couples marriage licenses.

[oyarde]

In this case it doesn't matter, since neither one requires Kentucky to give same-sex couples marriage licenses.
That is what I think .

[Ender]

Today on LRC

https://www.lewrockwell.com/2015/09/andrew-p-napolitano/the-christian-right-is-wrong-2/

One problem: that's obviously false.

Here's the definition of marriage according to Kentucky law:

http://www.lrc.ky.gov/Statutes/statute.aspx?id=36464

And here's what the Kentucky Constitution says:


Another problem: if it's true that "marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state," then so what? Kim Davis did nothing that interfered with anyone's right to choose a same-sex marriage mate or exercise any liberty they have. All she did was refuse to give them a piece of paper, pursuant to her oath of office to uphold the US and Kentucky Constitutions (the latter of which prohibits her from giving them that piece of paper).

I like you erowe1 but you've got some serious reconsidering to do.

According to your POV it was OK for the gov to refuse marriage to racially-mixed couples because the current law said so.

Also- if "marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state," then a gov employee has NO right to interfere with anyone's ability to be married. Especially, they do not have the right to stop their deputies for doing so, if the act is repugnant to them. Don't like it Davis? get another job.

The Judge is spot on.

Marriage IS a fundamental liberty and the government should NEVER have been involved in the first place- BUT because they are, which seems to be OK with a lot of people on this forum until gays enter the picture, then the same basic "rights" that the gov has grabbed should be available to all. A gov issued license gives couples tax advantages, health insurance advantages, inheritance advantages etc that are not available w/o the license.

The answer?

Get .gov OUT of marriage.
Let consenting adults marry whom they will.
Those who disagree with who marries who are not obliged to be involved.

[VIDEODROME]

and get Government out of Religion

[Sonny Tufts]

In this case it doesn't matter, since neither one requires Kentucky to give same-sex couples marriage licenses.

The 14th Amendment prohibits a state from granting licenses to hetero couples and denying licenses to same-sex couples. Since the state will continue to issue licenses, it must issue them to gays.

[TaftFan]

Between this and birthright citizenship, I feel like Napolitano is losing his way.

As a libertarian, he should know the difference between rights and government stamps of approval.

[erowe1]

I like you erowe1 but you've got some serious reconsidering to do.

According to your POV it was OK for the gov to refuse marriage to racially-mixed couples because the current law said so.

Also- if "marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state," then a gov employee has NO right to interfere with anyone's ability to be married. Especially, they do not have the right to stop their deputies for doing so, if the act is repugnant to them. Don't like it Davis? get another job.

The Judge is spot on.

Marriage IS a fundamental liberty and the government should NEVER have been involved in the first place- BUT because they are, which seems to be OK with a lot of people on this forum until gays enter the picture, then the same basic "rights" that the gov has grabbed should be available to all. A gov issued license gives couples tax advantages, health insurance advantages, inheritance advantages etc that are not available w/o the license.

The answer?

Get .gov OUT of marriage.
Let consenting adults marry whom they will.
Those who disagree with who marries who are not obliged to be involved.

I never said anything about anything being OK.

But even with miscegenation laws, it was never SCOTUS's place to legislate on the matter. After they gave their ruling, it should have then been up to the state legislatures to respond. And if the state legislatures failed to do so, it should have been up to Congress to pass legislation forcing them to change, and that's only if Congress agreed with SCOTUS's ruling.

See the final clause of the 14th Amendment.

[erowe1]

The 14th Amendment prohibits a state from granting licenses to hetero couples and denying licenses to same-sex couples. Since the state will continue to issue licenses, it must issue them to gays.

No. The 14th Amendment doesn't say anything of the sort.

You could make a case that the 14th Amendment prohibits any state from categorizing people into two groups: married and unmarried. But if you allow for that distinction within the law, then moving around the boundary that divides the one group from the other does nothing to ameliorate the distinction that still exists.

Furthermore, even if what you say is true, there would be two ways for Kentucky to fix that, one would be to give out licenses to same-sex couples, and the other would be to stop giving them out to anyone. And the court would have no right to force Kentucky to choose one of those options over the other, as it has done in the present case.

[William Tell]

The 14th Amendment prohibits a state from granting licenses to hetero couples and denying licenses to same-sex couples. Since the state will continue to issue licenses, it must issue them to gays.

That's a laughable interpretation of the 14th amendment. Homosexual acts at the time of the adoption of the 14th amendment were criminal. Its just the way it was, the 14th didn't change that.

[Sonny Tufts]

That's a laughable interpretation of the 14th amendment. Homosexual acts at the time of the adoption of the 14th amendment were criminal. Its just the way it was, the 14th didn't change that.

At the time of the adoption of 14th, in many states married women couldn't own property or enter into a contract. Are you suggesting that such an arrangement would be constitutional today?

[Weston White]

Of the two constitutions, guess which takes precedent?

This is entirely dependent on the enumerated grant of constitutional powers--hence, the institution of marriage, as well as law enforcement, as well as health care, and even social justice in general, reside solely within control of the Union of the several states. Thus, the supremacy of national powers is just not applicable here--being in no way, shape, or form a federal question--and SCOTUS hath greatly overreached its powers, yet again, as was strenuously objected to by an ever-wise Justice, Scalia (including a lesser-wise Chief Justice Roberts).

It was a sovereign Union of the several states that called for a national government, not a sovereign national government that called for a Union of states.

[ZENemy]

https://www.youtube.com/watch?v=dWESql2dXoc&feature=youtu.be

[Weston White]

The 14th Amendment prohibits a state from granting licenses to hetero couples and denying licenses to same-sex couples. Since the state will continue to issue licenses, it must issue them to gays.

This is an abuse of the 14th Amendment, its framing had only slavery in mind. Yet another prime example of decades of federal abuse under the guise of mission-creep.

Further, this is flawed logic, because under it, states cannot deny marriage on the grounds of polygamy, incest, beastiality, age of majority, protective court orders, or even lack of citizenship.

[Weston White]

At the time of the adoption of 14th, in many states married women couldn't own property or enter into a contract. Are you suggesting that such an arrangement would be constitutional today?

Not so fast there cubby. The Women’s Rights Movement began 20-years earlier in 1848 lasting up through the Roaring Twenties.

Still, if such is to be the case, then what was the need for the 19th Amendment, having been passed nearly six-decades later?


Nevertheless, fortified by the constitutional victory of suffrage reformers in 1920, the handful of new women in Congress embarked on what would become a century-long odyssey to broaden women’s role in government, so that in Catt’s words, they might “score advantage to their ideals.”

http://history.house.gov/Exhibitions-and-Publications/WIC/Historical-Essays/No-Lady/Womens-Rights/

[Weston White]

If her personal religious views could trump her obligations under the law when she is in a ministerial and not a discretionary government job, and other government officials similarly situated could do the same, then we’d lack the rule of law in America, and we would live instead under the discretion of bureaucrats.

...But...is this not already our reality...is this not was the USSC has done? Time and time again, relieving social stigmas by constitutional fiat.

[erowe1]

At the time of the adoption of 14th, in many states married women couldn't own property or enter into a contract. Are you suggesting that such an arrangement would be constitutional today?

According to the 14th Amendment, that's for Congress to decide, not the Supreme Court.

[Sonny Tufts]

According to the 14th Amendment, that's for Congress to decide, not the Supreme Court.

Hardly. While Congress may enforce the 14th Amendment through legislation, this in no way eliminates SCOTUS's authority to declare laws unconstitutional.

[Sonny Tufts]

This is an abuse of the 14th Amendment, its framing had only slavery in mind.

Yet its text isn't confined to former slaves -- it prohibits States from depriving "any person" of life, liberty, or property without due process or denying to "any person within its jurisdiction" equal protection.


Further, this is flawed logic, because under it, states cannot deny marriage on the grounds of polygamy, incest, beastiality, age of majority, protective court orders, or even lack of citizenship.

Nonsense. There are valid grounds to deny marriage in such situations, whereas there are none with respect to gay marriage.

[GunnyFreedom]

Of the two constitutions, guess which takes precedent?

Under original intent? The State Constitution takes precedence over all matters not explicitly delegated or denied by the US Constitution.

[GunnyFreedom]

Yet its text isn't confined to former slaves -- it prohibits States from depriving "any person" of life, liberty, or property without due process or denying to "any person within its jurisdiction" equal protection.



Nonsense. There are valid grounds to deny marriage in such situations, whereas there are none with respect to gay marriage.

Under original intent, no passage of law or constitution can mean anything other than what the people who wrote it intended for it to mean. If the people who wrote the 14th Amendment did not intend for it to legalize same sex marriage, then it cannot be construed to do so.

[William Tell]

Under original intent? The State Constitution takes precedence over all matters not explicitly delegated or denied by the US Constitution.

In b4 Sonny says that's racist.... again.

[Ender]

Key Clauses of the 14th Amendment
Four principles were asserted in the text of the 14th amendment. They were:

State and federal citizenship for all persons regardless of race both born or naturalized in the United States was reaffirmed.
No state would be allowed to abridge the "privileges and immunities" of citizens.
No person was allowed to be deprived of life, liberty,or property without "due process of law."
No person could be denied "equal protection of the laws."

Over time, numerous lawsuits have arisen that have referenced the 14th amendment. The fact that the amendment uses the word state in the Privileges and Immunities clause along with interpretation of the Due Process Clause has meant that state as well as federal power is subject to the Bill of Rights.

The Judge is correct.

The 14th Amendment rises above any "state" law. No state can: be allowed to abridge the "privileges and immunities" of citizens.

Remember that this amendment as after the War Between the States. That war ended any "states rights".

[jonhowe]

That's a laughable interpretation of the 14th amendment. Homosexual acts at the time of the adoption of the 14th amendment were criminal. Its just the way it was, the 14th didn't change that.

Does everyone here really not understand the common law system?

[GunnyFreedom]

Does everyone here really not understand the common law system?

Common Law cannot override statutory or Constitutional laws. Common law is only applicable where the Constitution or statutes are silent.

[TheTexan]

Supreme court is Supreme... What they say is the final and ultimate law of the land, without doubt or question.

The Supreme Court decided that so, a looooong time ago. You should listen to them.

[erowe1]

Hardly. While Congress may enforce the 14th Amendment through legislation, this in no way eliminates SCOTUS's authority to declare laws unconstitutional.

It doesn't eliminate that authority. But that authority only extends as far as the degree to which they are correct in their interpretation and capable of winning over the other branches. When SCOTUS goes against the Constitution, the oaths of office taken by members of the other branches obligate them to side with the Constitution itself, and not SCOTUS's attempt to rewrite it. If Congress does not pass legislation to enforce what SCOTUS claims is in the 14th Amendment, SCOTUS have no constitutional authority to do so themselves.

[erowe1]

Over time, numerous lawsuits have arisen that have referenced the 14th amendment. The fact that the amendment uses the word state in the Privileges and Immunities clause along with interpretation of the Due Process Clause has meant that state as well as federal power is subject to the Bill of Rights.



That can't possibly be true. If it is, then the effect is actually to overturn the Bill of Rights. The 1st Amendment explicitly protects the rights of the states to have established religions, and prohibits Congress from writing any laws that have anything to do with that. What you're saying is that the 14th Amendment positively forces Congress to write laws respecting (having to do with) the establishment of religion, so as to be able to prohibit states from having established religions.

[Ender]

That can't possibly be true. If it is, then the effect is actually to overturn the Bill of Rights. The 1st Amendment explicitly protects the rights of the states to have established religions, and prohibits Congress from writing any laws that have anything to do with that. What you're saying is that the 14th Amendment positively forces Congress to write laws respecting (having to do with) the establishment of religion, so as to be able to prohibit states from having established religions.

14th Amendment



1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
http://www.usconstitution.net/xconst_Am14.html

Interpretation
AnnenbergClassroom.org

Because many states continued to pass laws that restricted the rights of former slaves, on June 13, 1866, Congress passed and sent to the states for ratification, Amendment XIV. Ratified on July 9, 1868, the amendment granted U.S. citizenship to former slaves and specifically changed the rule in Article 1, Section 2 that slaves be counted only as three-fifths of a person for purposes of representation in Congress. It also contained three new limits on state power: a state shall not violate a citizen’s privileges or immunities; shall not deprive any person of life, liberty, or property without due process of law; and must guarantee all persons equal protection of the laws.

These limitations on state power dramatically expanded the protections of the Constitution. Prior to the adoption of the Fourteenth Amendment, the protections in the Bill of Rights limited only the actions of the federal government, unless the provision specifically stated otherwise. The Supreme Court, in what is called “the doctrine of incorporation” has since interpreted the Fourteenth Amendment to apply most provisions in the Bill of Rights against state and local governments as well. This has meant that the Fourteenth Amendment has been used more frequently in modern court cases than any other constitutional provision.

The 14th amendment provides a broad definition of national citizenship, overturning the Dred Scott case, which excluded African Americans. It requires the states to provide equal protection under the law to all persons (not only to citizens) within their jurisdictions, and was used in the mid-20th century to dismantle legal segregation, as in Brown v. Board of Education. Its Due Process Clause has driven much important and controversial case law regarding privacy rights, abortion (see Roe v. Wade), and other issues.

The first section formally defines citizenship and requires the states to provide civil rights.
The second section establishes rules for establishing the number of representatives in Congress to states, essentially counting all residents for apportionment and reducing apportionment if a state wrongfully denies a person's right to vote.

https://answers.yahoo.com/question/index?qid=20071007114340AApbyMq

Due Process Clause – the due process clause protects the 1st amendment rights of the people and prevents those rights from being taken away by any government without “due process.” Due process is a trial by jury for all people accused of wrongdoing. Although you may think the 1st amendment already protects these rights, the 14th amendment specially enforces the Bill of Rights on the states, to make sure that they can never limit the rights of Americans without fairness. There were also a number of rights that are protected for those that are accused of a crime but have not been proven to do anything wrong yet.

Equal Protection Clause – This part of the fourteenth amendment states that there may be no discrimination against them by the law. The federal government enforces this protection on the states, ensuring that they do not. Remember that the Bill of Rights protects some rights for Americans. The equal protection clause extended this protection to the state governments. This clause of the 14th amendment would later be used to end discrimination and segregation in the South.
http://kids.laws.com/14th-amendment

The U.S. Constitution's Fourteenth Amendment
By Michael Arnheim from U.S. Constitution For Dummies
The Fourteenth Amendment, ratified in 1868, is one of the most important — and one of the most controversial — parts of the Constitution. It’s a meaty amendment, dealing with some pretty weighty topics. These include:
• The definition of citizenship
• The obligation of the states to uphold the privileges and immunities of United States citizens
• Due process
• The obligation of the states not to deny “the equal protection of the laws”
• How representation in Congress is calculated
• Disqualification from holding office
• Denial of any obligation to compensate former slave owners for the emancipation of their slaves
http://www.dummies.com/how-to/content/the-us-constitutions-fourteenth-amendment.html

The 14th Amendment was passed after the American Civil War, and was designed to prevent states from denying due process and equal protection under the law to their citizens.

First, it provides a broad definition of U.S. citizenship, saying that all persons "born or naturalized" in the United States are citizens, and must be treated as such. This overturned the Supreme Court's notorious ruling in "Dredd Scott v. Sandford"

Second, it requires states to give everyone under their jurisdiction equal protection of the law - this was designed to prevent states from passing laws that were overtly discriminatory, especially based on race.

Third, it prohibited states from depriving persons of life, liberty, or property without due process of law. This provision in the 14th Amendment has probably had the most wide-reaching effects. As the Bill of Rights (the first 10 Amendments to the Constitution) is written, it only applies to the federal government, and for more than 100 years, was held not to apply to the states.

The 14th Amendment changed all of this - the Due Process clause of the 14th Amendment has been read by the Supreme Court, beginning in the early 20th century, to apply most of the bill of rights to the states. Because the phrases "liberty" and "due process" are not defined in the constitution, it is up to the federal courts to give them meaning. In determining if a given state action violated this clause of the 14th Amendment, the Supreme Court began looking to other rights guaranteed in the constitution to determine which rights are considered "fundamental" in American Jurisprudence.

By the middle of the 20th Century, almost every amendment in the bill of rights had been incorporated against the states. The exceptions are the 3rd Amendment, which prohibits the government from quartering troops in private residences (but that amendment hasn't been relevant since the Civil War), the 2nd Amendment right to bear arms (though the Supreme Court did just recently hold that this amendment does confer an individual right to own guns for self-defense, and it's very possible that it could be incorporated in the next few years), the 5th Amendment's requirement of indictment by grand jury for felonies, the 7th Amendment right to a jury trial in civil cases, and the 8th Amendment's protection against excessive bail.
http://www.answers.com/Q/What_is_the_14th_amendment_in_simple_terms


Of course, there are some who say that the 14th Amendment didn't free the slaves- it made all US citizens slaves. ;)

[erowe1]

Of course, there are some who say that the 14th Amendment didn't free the slaves- it made all US citizens slaves. ;)

The Constitution itself made all citizens slaves. And the 14th Amendment did make it worse.

But I don't see what point you mean to make here in your copy and paste job from some poster on the aptly named website yahoo answers. Are you saying that the 14th Amendment really did overturn the 1st? If so, then in ratifying the 14th do you think the states intended to overturn the 1st Amendment, or was that an unintended consequence? If it was an unintended consequence, then can a contract really bind people to things other than what the parties of the contract intended?

Also, I still don't see the relevance of this to the same-sex marriage issue. If you think any states abrogating any freedoms of gay people by not giving them these pieces of paper, then they are not doing that any more than they are to every other unmarried person. So giving these pieces of paper to same sex couples doesn't do anything to ameliorate that problem.

[Ender]

The Constitution itself made all citizens slaves. And the 14th Amendment did make it worse.

But I don't see what point you mean to make here in your copy and paste job from some poster on the aptly named website yahoo answers. Are you saying that the 14th Amendment really did overturn the 1st? If so, then in ratifying the 14th do you think the states intended to overturn the 1st Amendment, or was that an unintended consequence? If it was an unintended consequence, then can a contract really bind people to things other than what the parties of the contract intended?

There are several links, if you bother to read. The 14th Amendment gives the Fed jurisdiction over the states in rights and privileges.

The Supreme Court, in what is called “the doctrine of incorporation” has since interpreted the Fourteenth Amendment to apply most provisions in the Bill of Rights against state and local governments as well.

[erowe1]

There are several links, if you bother to read. The 14th Amendment gives the Fed jurisdiction over the states in rights and privileges.

The Supreme Court, in what is called “the doctrine of incorporation” has since interpreted the Fourteenth Amendment to apply most provisions in the Bill of Rights against state and local governments as well.



But you have to accept the Supreme Court's opinion on that a authoritative in order to make the point, which is circular, since the authority of SCOTUS to rewrite the Constitution is one of the points in dispute here in the first place.

Also, yes the 14th does give the federal government that authority, but it also delegates that authority specifically to Congress (see the final clause). It is not something SCOTUS is authorized to do without Congress.

[Ender]

But you have to accept the Supreme Court's opinion on that a authoritative in order to make the point, which is circular, since the authority of SCOTUS to rewrite the Constitution is one of the points in dispute here in the first place.

Also, yes the 14th does give the federal government that authority, but it also delegates that authority specifically to Congress (see the final clause). It is not something SCOTUS is authorized to do without Congress.

Not exactly:


City of Boerne v. Flores
Posted on October 23, 2012 | Constitutional Law | Tags: Constitutional Law Case Brief

Facts
Congress passed the Religious Freedom Restoration Act of 1993. The law provided a “strict scrutiny” standard of evaluation for whether a state law is narrowly tailored enough to effectively solve a compelling governmental purpose such that it can burden or outweigh the free exercise of religion. The Act required the court not to consider the intent behind the state regulation in its strict evaluation.

In this instant case, Flores applied for a building permit to expand his church. However, the building was located within a historic district as classified by the city. The city zoning board denied the expansion due to their policy against expansion within historic districts. Flores contended that his congregation was growing and the ordinance was a law which should be evaluated based on the RFRA.

Issue
Whether the RFRA is unconstitutional based on the 14th amendment, such that the local ordinance cannot be cited as the basis for invalidating the relevant city ordinance.

Holding/Analysis
Yes, RFRA is unconstitutional. Congress has sought to define what a constitutional right is. In passing this legislation, Congress has redefined what the freedom of religion is. There is a very particular constitutional amendment process for doing this. Congress has not undertaken such a process. Only the supreme court has the power to define “substantive rights guaranteed by the fourteenth amendment.”

The court specifically stated that the role of Congress is passing legislation is to enact “remedial” legislation to guarantee rights that are not specifically aligned with the court’s defined rights. In so doing, the legislature may do so only to “prevent, deter, or correct” the abrogation of such rights.
http://www.casebriefsummary.com/city-of-boerne-v-flores/



One specific purpose of the Fourteenth Amendment when it was passed in 1866 was to ensure that Congress had adequate power to adopt the Civil Rights Act of that year, of which current 42 U.S.C. § 1981 is a descendant. That act prohibited state legislation—specifically, the notorious "Black Codes"—that denied blacks certain rights afforded to whites, including the power to make and enforce contracts.

A significant limitation in the text of Section 5 is that Congress is authorized only to "enforce, by appropriate legislation" the provisions of the Fourteenth Amendment. Justice William J. Brennan, Jr.'s opinion in Katzenbach v. Morgan (1966) suggested that Section 5 might also give Congress authority to define the substantive scope of the rest of the Fourteenth Amendment, but this interpretation seems at odds with the text and history of Section 5, and more recent opinions of the Supreme Court have rejected it.

In City of Boerne, the Supreme Court declared that there must be a "proportionality" and "congruence" between the statute "and the legitimate end to be achieved." It follows that, before Congress invokes its Section 5 authority, it must ascertain that the actions it is concerned about are in fact violative of the protections within the Fourteenth Amendment and that legislation remedying such violations has a "proportionality" and a "congruence" in accomplishing the remedy. This, in turn, requires a careful analysis of the rest of the Fourteenth Amendment and the scope of its guarantees.
http://www.heritage.org/constitution/#!/amendments/14/essays/175/enforcement-clause

[Weston White]

Yet its text isn't confined to former slaves -- it prohibits States from depriving "any person" of life, liberty, or property without due process or denying to "any person within its jurisdiction" equal protection.

And yet clearly its legislative history is. However, if you are wanting to go that route then neither is its text prohibitive towards others wanting to marry multiple spouses, their own relatives, juveniles, their own animals, protected parties, or non-citizens.


Nonsense. There are valid grounds to deny marriage in such situations, whereas there are none with respect to gay marriage.

The hypothetical is not nonsense to any degree. There are no less valid grounds for sanctioning polygamy, incest, beastiality, age of majority, or non-citizens than there are for gay marriage.

1. Since the advent of paternity testing there is no longer any valid reason for prohibiting it; as well elsewhere (e.g., Muslims or under Sharia) men are permitted to have multiple spouses so it is only fair that multiple husbands may share in a single wife and the same applies to same sex marriages or really whatever gender combination of the aforementioned.

2. Royalty and the extremely wealthy have married into their own families for generations, so why not the plebs as well? Certainly marrying one's own relative is no stranger than marrying another of the same gender or transgender. Moreover, if it is a matter concerning corruption of gene structures then what of cases where one marries a relative also of the same gender? In any case animals frequently procreate from within their own group without realizing much concern so why no humans at least for a set number of successive generations?

3. Certainly marrying one's own cat, dog, or bird is no more odd than marrying another of the same gender or who is transgender. If a horse can be made a senator (by Caligula), or a groundhog determine the length of winter, or a dog perform law enforcement, so can they qualify as legal spouse.

4. The 14th Amendment makes no mention of ages, and certainly juveniles quality as being "any person"; so, making it unconstitutional to deny them equal access to such stipulated rights. Further, the marriage to or such arrangements being made for those not yet reaching adulthood is or has been commonly practiced in other cultures throughout history (e.g., Mid-East, Mexican, Latin, Asian, Africa) and is even legal to a degree in most states (e.g., 16-17 years of age) or through legal processes such as emancipation. The practice of child marriages was common in Ancient Rome. And interestingly enough (from Wikipedia):


The American colonies followed the English tradition, but the law was more of a guide. For example, Mary Hathaway (Virginia, 1689) was only 9 when she was married to William Williams. Sir Edward Coke (England, 17th century) made it clear that "the marriage of girls under 12 was normal, and the age at which a girl who was a wife was eligible for a dower from her husband's estate was 9 even though her husband be only four years old". ... Additionally, 20th- and 21st-century historians have sometimes shown reluctance to accept data regarding a young age of marriage, and would instead explain the data away as a misreading by a later copier of the records.

In France, until the French Revolution, the marriageable age was 12 years for girls and 14 for boys. Revolutionary legislation in 1792 increased the age to 13 years for girls and 15 for boys. Under the Napoleonic Code in 1804, the marriageable age was set at 15 years for girls and 18 for boys. In 2006, the marriageable age for girls was increased to 18, the same as for boys.

5. How can one within such jurisdiction, having every right to marry another of the same gender then be denied their right to marry a foreigner regardless of gender? How can their right be forfeited due to the nationality of those they associate with? Logically then it cannot be, less we are making things up as we go along to make all appear nice and when when in fact nothing could be farther from the truth. Such as completely redefining the historically accepted definition of the term marriage. Even ancient Greeks and Romans had good enough sense to keep their gay escapades separate from their nuclear families.

Ultimately, in opting to bastardize the context of what is intended under the phrase of "equal protection" we are rendering all legal definitions malleable to the social decadence's of a fleeting ochlocracy--this is confused progressivism.

The resulting end game in all this will be an entirely new branch of lawyerism as a myriad of new legal concerns are going to crop up in the coming decades--from dealing with the right of gays to clone their own children and being permitted to compensate the opposite sex to continue their progeny; to dealing with the rights of transgenders to conceal their true gender from those they engage in intimate relationships with; to assuming the gender-role state of their persona, be it male only professions such as the NFL, or being a supermodel or in U.S. Special Forces, receiving government benefits and the protection of specially legislated statuses; and the like. (The reality of the "Gamer" movie immediately springs to my mind.)

[Danke]

And yet clearly its legislative history is. However, if you are wanting to go that route then neither is its text prohibitive towards others wanting to marry multiple spouses, their own relatives, juveniles, their own animals, protected parties, or non-citizens.



The hypothetical is not nonsense to any degree. There are no less valid grounds for sanctioning polygamy, incest, beastiality, age of majority, or non-citizens than there are for gay marriage.

1. Since the advent of paternity testing there is no longer any valid reason for prohibiting it; as well elsewhere (e.g., Muslims or under Sharia) men are permitted to have multiple spouses so it is only fair that multiple husbands may share in a single wife and the same applies to same sex marriages or really whatever gender combination of the aforementioned.

2. Royalty and the extremely wealthy have married into their own families for generations, so why not the plebs as well? Certainly marrying one's own relative is no stranger than marrying another of the same gender or transgender. Moreover, if it is a matter concerning corruption of gene structures then what of cases where one marries a relative also of the same gender? In any case animals frequently procreate from within their own group without realizing much concern so why no humans at least for a set number of successive generations?

3. Certainly marrying one's own cat, dog, or bird is no more odd than marrying another of the same gender or who is transgender. If a horse can be made a senator (by Caligula), or a groundhog determine the length of winter, or a dog perform law enforcement, so can they qualify as legal spouse.

4. The 14th Amendment makes no mention of ages, and certainly juveniles quality as being "any person"; so, making it unconstitutional to deny them equal access to such stipulated rights. Further, the marriage to or such arrangements being made for those not yet reaching adulthood is or has been commonly practiced in other cultures throughout history (e.g., Mid-East, Mexican, Latin, Asian, Africa) and is even legal to a degree in most states (e.g., 16-17 years of age) or through legal processes such as emancipation. The practice of child marriages was common in Ancient Rome. And interestingly enough (from Wikipedia):



5. How can one within such jurisdiction, having every right to marry another of the same gender then be denied their right to marry a foreigner regardless of gender? How can their right be forfeited due to the nationality of those they associate with? Logically then it cannot be, less we are making things up as we go along to make all appear nice and when when in fact nothing could be farther from the truth. Such as completely redefining the historically accepted definition of the term marriage. Even ancient Greeks and Romans had good enough sense to keep their gay escapades separate from their nuclear families.

Ultimately, in opting to bastardize the context of what is intended under the phrase of "equal protection" we are rendering all legal definitions malleable to the social decadence's of a fleeting ochlocracy--this is confused progressivism.

The resulting end game in all this will be an entirely new branch of lawyerism as a myriad of new legal concerns are going to crop up in the coming decades--from dealing with the right of gays to clone their own children and being permitted to compensate the opposite sex to continue their progeny; to dealing with the rights of transgenders to conceal their true gender from those they engage in intimate relationships with; to assuming the gender-role state of their persona, be it male only professions such as the NFL, or being a supermodel or in U.S. Special Forces, receiving government benefits and the protection of specially legislated statuses; and the like. (The reality of the "Gamer" movie immediately springs to my mind.)


You must spread some Reputation around before giving it to Weston White again.

[erowe1]

Not exactly:

You're almost as bad as Ronin Truth. In your own words, what is the point of all your copy and pasting?

[TheCount]

The hypothetical is not nonsense to any degree. There are no less valid grounds for sanctioning polygamy, incest, beastiality, age of majority, or non-citizens than there are for gay marriage.

I'll take "What is contract law" for $500 please, Alex.

[Ender]

You're almost as bad as Ronin Truth. In your own words, what is the point of all your copy and pasting?

So maybe you will READ?

[erowe1]

So maybe you will READ?

I would be more likely to read if I knew the point. My impression is that you yourself are adopting a living document view of the Constitution and the only reasons you have for your interpretations of it are court cases making decisions you agree with.

[Traditionalist]

*sigh* Judge Nap.

I like him, but there's no way I'd ever vote for him at this point (even leaving aside the fact that I probably would not vote for a Roman Catholic.) He's really OK with using the Feds here? Because that seems like that's what he's saying. And if he's saying that, however "Rothbardian" he may be in his ideal world, he's anti-liberty.

Not holding my breath for the Catholic Church to actually enforce its views on same-sex marriage and excommunicate him...

I don't get when this forum became infested with evangelical bible-thumping hicks. Guess times have changed.

[erowe1]

I don't get when this forum became infested with evangelical bible-thumping hicks. Guess times have changed.

Your join date is February of this year.

[Ender]

I would be more likely to read if I knew the point. My impression is that you yourself are adopting a living document view of the Constitution and the only reasons you have for your interpretations of it are court cases making decisions you agree with.

I don't agree with any of it- I believe that gov should be OUT of private lives and definitely OUT of marriage- nevertheless, the 14th amendment is in the hands of SCOTUS.

[erowe1]

I don't agree with any of it- I believe that gov should be OUT of private lives and definitely OUT of marriage- nevertheless, the 14th amendment is in the hands of SCOTUS.

Then you can see my confusion about your copying and pasting of things that don't support that point.

[Ender]

Then you can see my confusion about your copying and pasting of things that don't support that point.

Because the 14th Amendment doesn't support that point either. Lottsa complaints about how SCOTUS has violated the 14th when it has done no such thing. As I have said before, there are some in the US who say that the 14th made slaves of all of us.

[Sonny Tufts]

When SCOTUS goes against the Constitution, the oaths of office taken by members of the other branches obligate them to side with the Constitution itself, and not SCOTUS's attempt to rewrite it.

You mean that when SCOTUS goes against what Congress or the Executive thinks the Constitution means, they can ignore the Court and go about their merry way, thereby making Congress and the Executive the arbiters of the constitutionality of their own actions. In such a scenario, what's the purpose of having a Bill of Rights?

[erowe1]

Because the 14th Amendment doesn't support that point either. Lottsa complaints about how SCOTUS has violated the 14th when it has done no such thing. As I have said before, there are some in the US who say that the 14th made slaves of all of us.

The 14th Amendment does not give SCOTUS the power to compel states to give out same sex marriage licenses. SCOTUS violated the Constitution by doing something the Constitution doesn't authorize it to do.

[erowe1]

You mean that when SCOTUS goes against what Congress or the Executive thinks the Constitution means, they can ignore the Court and go about their merry way, thereby making Congress and the Executive the arbiters of the constitutionality of their own actions. In such a scenario, what's the purpose of having a Bill of Rights?

Yes. That was clearly the original intent of the separation of powers in the Constitution. The judiciary was to have neither sword nor purse, only judgment.

The purpose of the Bill of Rights is in that they have to take oaths to uphold it. Having SCOTUS tell them they don't have to doesn't provide them with any loopholes. Their oaths are not to uphold what the courts say, but what the Constitution says.

[ZENemy]

Your join date is February of this year.

Lol

[Ender]

Yes. That was clearly the original intent of the separation of powers in the Constitution. The judiciary was to have neither sword nor purse, only judgment.

The purpose of the Bill of Rights is in that they have to take oaths to uphold it. Having SCOTUS tell them they don't have to doesn't provide them with any loopholes. Their oaths are not to uphold what the courts say, but what the Constitution says.

So..... when was the last time any of the branches performed in a Constitutional manner?

[GunnyFreedom]

So..... when was the last time any of the branches performed in a Constitutional manner?

SCOTUS, 1803. Congress and Exec, 1913.

[Weston White]

Yes. That was clearly the original intent of the separation of powers in the Constitution. The judiciary was to have neither sword nor purse, only judgment.

The purpose of the Bill of Rights is in that they have to take oaths to uphold it. Having SCOTUS tell them they don't have to doesn't provide them with any loopholes. Their oaths are not to uphold what the courts say, but what the Constitution says.

Yes, and when appropriate for the states and people thereof to tell them all to go fly a kite, Amendments IX and X. FTW!

[Weston White]

The 14th Amendment does not give SCOTUS the power to compel states to give out same sex marriage licenses. SCOTUS violated the Constitution by doing something the Constitution doesn't authorize it to do.

You know based on the context of this USSC finding, does it not consequently make all federal and state anti-discrimination laws unconstitutional, on the basis that such laws intentionally excludes like protection and remedy for non-elderly Caucasian males and all children—regardless of the circumstances?

[heavenlyboy34]

So..... when was the last time any of the branches performed in a Constitutional manner?

Circa 1788.

[Traditionalist]

Your join date is February of this year.


Obviously I've been on before and have been active in Ron Paul communities. Apparently once the Paul-worship died down all that was left were rabid evangelicals from economically undeveloped regions of this country.

[Danke]

Obviously I've been on before and have been active in Ron Paul communities. Apparently once the Paul-worship died down all that was left were rabid evangelicals from economically undeveloped regions of this country.

Never judge a book by its cover?

[erowe1]

So..... when was the last time any of the branches performed in a Constitutional manner?

Never.

[erowe1]

Obviously I've been on before and have been active in Ron Paul communities. Apparently once the Paul-worship died down all that was left were rabid evangelicals from economically undeveloped regions of this country.

It's not at all obvious to me that you have. You seem to be pretty unaware of what this website is or ever has been about. Ron Paul himself is an evangelical Christian. And what regions do you have in mind?

[oyarde]

This is an abuse of the 14th Amendment, its framing had only slavery in mind. Yet another prime example of decades of federal abuse under the guise of mission-creep.

Further, this is flawed logic, because under it, states cannot deny marriage on the grounds of polygamy, incest, beastiality, age of majority, protective court orders, or even lack of citizenship.

I am expecting increases in beasty .

[Sonny Tufts]

The 14th Amendment does not give SCOTUS the power to compel states to give out same sex marriage licenses. SCOTUS violated the Constitution by doing something the Constitution doesn't authorize it to do.

SCOTUS has the authority to declare federal and state laws unconstitutional. Enforcement of its rulings is in the hands of the executive. Eisenhower needed no Congressional action to nationalize the Arkansas National Guard and enforce Brown v. Board of Education.

[erowe1]

SCOTUS has the authority to declare federal and state laws unconstitutional. Enforcement of its rulings is in the hands of the executive. Eisenhower needed no Congressional action to nationalize the Arkansas National Guard and enforce Brown v. Board of Education.

Yes he did. Eisenhower couldn't have done that without some kind of blanket authorization. If they had followed the Constitution, there would have been no National Guard.

And in the case of Kim Davis, neither the executive nor the legislative branches of either state or federal governments were involved. It was purely the judiciary doing something it had no authority to do.

[Sonny Tufts]

Yes he did. Eisenhower couldn't have done that without some kind of blanket authorization. If they had followed the Constitution, there would have been no National Guard.

Technically, you are correct. The President was delegated the authority to call out the militia by a law enacted in 1795, which is now found in 10 USC §322:


Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

But the point was that he needed nothing that Congress might enact pursuant to §5 of the 14th Amendment. Moreover, Eisenhower also ordered elements of the 101st Airborne Division to Little Rock, something he had authority to do as commander-in-chief.


And in the case of Kim Davis, neither the executive nor the legislative branches of either state or federal governments were involved. It was purely the judiciary doing something it had no authority to do.

The judiciary has every authority to decide cases and issue orders to enforce its rulings.

[erowe1]

But the point was that he needed nothing that Congress might enact pursuant to §5 of the 14th Amendment. Moreover, Eisenhower also ordered elements of the 101st Airborne Division to Little Rock, something he had authority to do as commander-in-chief.


As you just pointed out, yes he did.



The judiciary has every authority to decide cases and issue orders to enforce its rulings.

No it doesn't. The only way it can is by an authority delegated to it by the judiciary, which in so doing shirked its own constitutional duties. This is doubly unconstitutional when the judiciary's rulings violate the Constitution. Kentucky should arrest the judge who had Kim Davis jailed, as well as the US Marshals who violated their oaths of office in obeying his unconstitutional order and try them for false imprisonment.

[Sonny Tufts]

No it doesn't. The only way it can is by an authority delegated to it by the judiciary, which in so doing shirked its own constitutional duties.[

I suggest you read Article III of the Constitution, as you clearly don't know what you're talking about.


This is doubly unconstitutional when the judiciary's rulings violate the Constitution. Kentucky should arrest the judge who had Kim Davis jailed, as well as the US Marshals who violated their oaths of office in obeying his unconstitutional order and try them for false imprisonment.

The officials of Kentucky have too much respect for the rule of law to try to do something so stupid. When SCOTUS or the 6th Circuit declares Judge Bunning's rulings unconstitutional, you will have an argument. Until then, you're simply being emotional and displaying a total lack of understanding of the law.

[TaftFan]

Disappointed that Napolitano wrongly said a ban on Muslim immigration would be unconstitutional.

It has nothing to do with the First Amendment and he knows it. In fact, he said that religion could be A factor, but not the ONLY factor. His opinion, nothing more.

So take that in conjunction with his birthright citizenship and marriage views, and he has either gone off the rail or is simply reciting case law consensus.

Edit-Was just reminded he said states could not block refugees.

[H. E. Panqui]

....ah yes...the endless stinking republicrat quibble...

...the goddamned fool liberal democreeps claim the stinking 'feds' dictate marriage license issuance...the goddamned fool conservative republicreeps claim the stinking 'state' dictates marriage license issuance...

....the nearly extinct libertarians understand that 'marriage' is a private contract and granting or denying 'marriage' is not a legitimate function of 'government'...

...(btw, where's jwk? ...he'll know exactly what is or isn't CONstitutional...) :rolleyes:

...goddamned. republicrat. fools.

[Sonny Tufts]

'marriage' is a private contract and granting or denying 'marriage' is not a legitimate function of 'government'...

Yet for centuries some contracts have been deemed unenforceable on public policy grounds. Should the government enforce a marriage contract between more than two persons? Between a man and his daughter or a mother and her son? Between siblings?

[Anti Federalist]

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

And that's all you mundanes need to know.

Move the fuck along now.

[Pericles]

Under original intent, no passage of law or constitution can mean anything other than what the people who wrote it intended for it to mean. If the people who wrote the 14th Amendment did not intend for it to legalize same sex marriage, then it cannot be construed to do so.



That^ The other thing missing in this argument is that in a classic sense a right can not be dependent on the actions of another person. My rights are mine alone. Marriage is not a traditional right because the act depend on the actions of another. I can not marry the person of my choice as a right, because that depends on the actions of another. Marriage is thus a privilege.

[H. E. Panqui]

sonny writes: "Should the government enforce a marriage contract between more than two persons? Between a man and his daughter or a mother and her son? Between siblings?"

:(

...hopefully i can make it clear to you that it is not a legitimate function of 'the government' to grant, deny, encourage, discourage, etc. 'marriage'...

[Sonny Tufts]

sonny writes: "Should the government enforce a marriage contract between more than two persons? Between a man and his daughter or a mother and her son? Between siblings?"

:(

...hopefully i can make it clear to you that it is not a legitimate function of 'the government' to grant, deny, encourage, discourage, etc. 'marriage'...

Is it a legitimate government function to enforce contracts? If so, are all contracts enforceable or are there some that should not be?

Let me give an example of how this might arise. I've yet to hear an answer from ultra-libertarians to the question of who should get a decedent's property where there is no will. It's no answer to say that people should have wills, because while that is obviously true it is also true that some people never get around to writing one. So who gets the estate in such a case?

In the real world, there are statutes that in many States provide that the surviving spouse gets the decedent's property. So if the decedent had married his sibling, who now claims the property, should the probate court enforce the marriage contract and award the estate to the sibling?

There are many other instances in which it is necessary for the government to decide who someone's spouse is. In such instances, should it recognize the legitimacy of a marriage contract between, say, a father and his daughter?

[H. E. Panqui]

sonny asks: "In the real world, there are statutes that in many States provide that the surviving spouse gets the decedent's property. So if the decedent had married his sibling, who now claims the property, should the probate court enforce the marriage contract and award the estate to the sibling?"

:confused:

...yes...and i'm curious who you think should 'get it'...

[Sonny Tufts]

sonny asks: "In the real world, there are statutes that in many States provide that the surviving spouse gets the decedent's property. So if the decedent had married his sibling, who now claims the property, should the probate court enforce the marriage contract and award the estate to the sibling?"

:confused:

...yes...and i'm curious who you think should 'get it'...

Suppose the marriage contract was between a father and his 8 year old daughter. Should it be enforced?

[heavenlyboy34]

Is it a legitimate government function to enforce contracts? If so, are all contracts enforceable or are there some that should not be?

Let me give an example of how this might arise. I've yet to hear an answer from ultra-libertarians to the question of who should get a decedent's property where there is no will. It's no answer to say that people should have wills, because while that is obviously true it is also true that some people never get around to writing one. So who gets the estate in such a case?

In the real world, there are statutes that in many States provide that the surviving spouse gets the decedent's property. So if the decedent had married his sibling, who now claims the property, should the probate court enforce the marriage contract and award the estate to the sibling?

There are many other instances in which it is necessary for the government to decide who someone's spouse is. In such instances, should it recognize the legitimacy of a marriage contract between, say, a father and his daughter?
Depends which libertarian you ask. Natural Lawyers (like Rothbardians) would probably say next of kin or nearest relative. Disputes settled by 3rd party arbitrators.

[amartin315]

I like you erowe1 but you've got some serious reconsidering to do.

According to your POV it was OK for the gov to refuse marriage to racially-mixed couples because the current law said so.

Also- if "marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state," then a gov employee has NO right to interfere with anyone's ability to be married. Especially, they do not have the right to stop their deputies for doing so, if the act is repugnant to them. Don't like it Davis? get another job.

The Judge is spot on.

Marriage IS a fundamental liberty and the government should NEVER have been involved in the first place- BUT because they are, which seems to be OK with a lot of people on this forum until gays enter the picture, then the same basic "rights" that the gov has grabbed should be available to all. A gov issued license gives couples tax advantages, health insurance advantages, inheritance advantages etc that are not available w/o the license.

The answer?

Get .gov OUT of marriage.
Let consenting adults marry whom they will.
Those who disagree with who marries who are not obliged to be involved.

There is no good answer. The problem is, you can't get government out of marriage because marriage will always have elements in common law. Unless you privatize the courts, the government will always at some level want to define a marriage for certain cases and purposes. Defining marriage in statute is a convenient way to tell the courts what to think on a matter. But even if we don't define a marriage, cases and controversies will invariably arise between persons and the court may have to rule on the nature of an interpersonal relationship in order to rule equitably. Would you rather the courts define marriage or the legislature?

[amartin315]

Is it a legitimate government function to enforce contracts? If so, are all contracts enforceable or are there some that should not be?

Let me give an example of how this might arise. I've yet to hear an answer from ultra-libertarians to the question of who should get a decedent's property where there is no will. It's no answer to say that people should have wills, because while that is obviously true it is also true that some people never get around to writing one. So who gets the estate in such a case?

In the real world, there are statutes that in many States provide that the surviving spouse gets the decedent's property. So if the decedent had married his sibling, who now claims the property, should the probate court enforce the marriage contract and award the estate to the sibling?

There are many other instances in which it is necessary for the government to decide who someone's spouse is. In such instances, should it recognize the legitimacy of a marriage contract between, say, a father and his daughter?

To try to answer the question who would get the dead guys stuff...

If I were a judge and i didn't have a will on which to base my decision, the test for me would be "what would the dead person have wanted if he could still testify what he wanted?"

And numerous people might try to make a claim. A best friend might testify that he knew the deceased for years and that he would have wanted his sister to have his stuff. A son might testify that the deceased would have wanted him to have the stuff. Evidence would be weighed and a decision would be made on what is the most convincing answer.

If the evidence presented makes the choice arbitrary, then the judge may choose arbitrarily. Start with, say, siblings. If there are no siblings, go to children. If there are no children go to friends, choosing sexual partners before other friends. If there are no friends, go to auction and give the proceeds to the state

[H. E. Panqui]

sonny stretches: Suppose the marriage contract was between a father and his 8 year old daughter. Should it be enforced?

:eek:

...yikes!...is this a common problem in your neighborhood?...

...first, if the father was having sex with the 8 year-old he was committing rape..(see 'contracts with children')

...let's stop playing the endless, stinking 'what if' games republicrats like to play...your bizarre 'what if' scenarios may account for one in 50,000 cases...

...let's write our laws keeping in mind the 49,999 cases and figure out a way to justly arbitrate/settle the one bizarre case in 50,000...as opposed to doing it the opposite (republicrat) way...

[Sonny Tufts]

...let's write our laws keeping in mind the 49,999 cases and figure out a way to justly arbitrate/settle the one bizarre case in 50,000...as opposed to doing it the opposite (republicrat) way...

Well, the obvious point is that generalizations like "the government shouldn't be involved in marriage" aren't entirely accurate because there will be instances in which it will be necessary for the government to determine (a) whether there was a marriage, and (b) whether it should be recognized. The intestacy scenario was just one example.

[Sonny Tufts]

Depends which libertarian you ask. Natural Lawyers (like Rothbardians) would probably say next of kin or nearest relative. Disputes settled by 3rd party arbitrators.

In a truly libertarian society, where do the arbitrators get their authority to decide?

[H. E. Panqui]

sonny asserts: "Well, the obvious point is that generalizations like "the government shouldn't be involved in marriage" aren't entirely accurate because there will be instances in which it will be necessary for the government to determine (a) whether there was a marriage, and (b) whether it should be recognized."

:confused:

...there may indeed be some rare RARE 'instances'...although i will note you haven't conjured one yet...all you've conjured is what to do with some dead incest rapist's stuff..

[The Free Hornet]

Where is the evidence that "Napolitano doubles down on his living document view of the Constitution"?

The thread title appears to be libel.

The only evidence I could find was this very forum thread on Duck search:

https://duckduckgo.com/?q=Napolitano+living+view+of+constitution

Here is the article the libeling1 doesn't want you to read:


Shortly before the Labor Day weekend, a federal judge in Kentucky ordered the Rowan County clerk incarcerated for violating his orders. Five days later, he released her.

Davis argued that she was following her conscience, which is grounded in a well-known Christian antipathy to same-sex marriages, which, in turn, is protected by the Free Exercise Clause of the First Amendment.

After Davis refused to comply with two of his orders to issue applications to those who comply with Kentucky law and not to add her own requirement, a federal trial judge found that she was in a state of civil contempt, and he incarcerated her.

Civil contempt is not a crime. Hence she was not sentenced to a jail term. The purpose of her incarceration was not punishment; rather, it was coercion. The courts have limited resources with which to coerce reluctant litigants to comply with court orders, and incarceration is one of them.

The court properly interpreted its duties under the Constitution, but was wrong to incarcerate her.

She is free to believe as she wishes and to practice her beliefs, is free to impose her beliefs on her children and family, and is free to attempt to persuade others of the salvific value of her beliefs.

If her personal religious views could trump her obligations under the law when she is in a ministerial and not a discretionary government job, and other government officials similarly situated could do the same, then we’d lack the rule of law in America, and we would live instead under the discretion of bureaucrats.

But she should not have been sent to jail. Judges must do all possible to resist the temptation to incarcerate defiant litigants, because incarceration should be the last resort. Judges should enforce their rulings using the least force necessary, not the most force available. And history teaches that for those who conscientiously defy the law — particularly for religious-based reasons — incarceration is often fruitless.

The Free Exercise Clause guarantees individuals the lawful ability to practice their religion free from government interference.[sentences were removed without note but every word above is accurate, in the correct order - posted without attribution ... obviously]

The main issue I would have with the Judge is that he affirms, "the Constitution, the final interpreter of which is the Supreme Court." I don't believe SCOTUS has a greater right than the people when it comes to fucking up the constitution.

The Judge makes a powerful argument that - despite disagreeing with the actions of Davis - she should not be punished for a refusal to comply with court orders.

Rights derive from what we can do (peacefully), not what the law allows. People - even gay ones - couldn't fly planes in 1868 or film 4K video yet the 14th could be seen as protecting those rights from state interference. Yeah, it takes a long ass time to get even partial relief from a burdensome government (McDonald vs Chicago). Therefore, I don't agree with exalting SCOTUS in any manner. They suck.

It takes a long time to affirm rights which is why I disagree with erowe1 that we have to seek permission from government to take action and do things like fly unregistered ten-ounce drones that are never mentioned as protected in the constitution.

Erowe1 may want to live under the thumb of petty bureaucrats like Kim Davis or the FAA but I don't want that and neither does the Judge.

[misterx]

Today on LRC


Kentucky law requires that applicants for marriage licenses be unmarried, residents of Kentucky and at least 18 years of age. As a county clerk, Davis cannot add to these requirements another requirement — namely, that the applicants be of the opposite sex. She cannot do that because the Supreme Court has ruled that marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state.
https://www.lewrockwell.com/2015/09/andrew-p-napolitano/the-christian-right-is-wrong-2/


..

[Iowa]

I did not really follow this that much. Didn't Davis just object to having her name on the licenses? If that's the case, then why not have someone else in the office sign/stamp them? It could be a deputy clerk. Does it even have to be signed? People get religious accommodation for all kinds of things. Seems this is not an undue burden on the employer, in this case the government.

Seems to me people made a big deal out of something that could have been easily resolved. Looks like the usual government-against-government power tripping. That power tripping is not just for you Johnny Punch Clocks any more!

[Ender]

I did not really follow this that much. Didn't Davis just object to having her name on the licenses? If that's the case, then why not have someone else in the office sign/stamp them? It could be a deputy clerk. Does it even have to be signed? People get religious accommodation for all kinds of things. Seems this is not an undue burden on the employer, in this case the government.

Seems to me people made a big deal out of something that could have been easily resolved. Looks like the usual government-against-government power tripping. That power tripping is not just for you Johnny Punch Clocks any more!

Davis wouldn't allow her clerks to sign it.

[Iowa]

Davis wouldn't allow her clerks to sign it.

Okay, thanks. So I researched it some, and the one of the recent articles I read said the licenses are now being issued by a notary public because of a federal court order. Is that your understanding? The outgoing governor said that even though the licenses don't conform to the Kentucky statute, they should still be recognized as valid. His reason is because of the long tradition of marriage and the presumption of such.

I also looked at the Rowan County website, but did not see a section on getting a license. I did not find any recent news beyond what the governor said last month. If they're now issued by a notary, then why did they not just bypass all the drama in the first place? Did I missing something?