Legal Recognition of Same Sex Marriage Slippery Slope Fallacy

[WorldWatcher]

And when something is NOT mentioned in the consitution, then States can legislate it with impunity.

Premise:
If something is not mentioned in the Federal Constitution, States can legislate it with impunity.

Fact:
A. The 14th Amendment bans states from infringing on the privileges and immunities of it's citizens, denying them due process under the law, and denying them the equal protection under the law without a compelling government interest.
B. In 1967 (IIRC) 16 States barred Civil Marriage between whites and coloreds.
C. The Lovings challenged the law of the Commonwealth of Virginia.

Result:
The law was struck down because the treatment of the couple was unconstitutional.

Conclusion:
States can establish laws concerning Civil Marriage, but only if those laws are Constitutional, States cannot apply unconstitutional laws to it's citizens denying them the privileges and immunities of it's citizens, denying them due process under the law, and denying them the equal protection under the law without a compelling government interest.



Sorry Marty, that is reality.


>>>>

Loving was proper as it was a CRIMINAL ban on mixed race marriage, and because it was a heterosexual marriage, there is no difference between a mixed race and a same race heterosexual marriage. Same sex marriage is not, and thats where we differ.

The privlidges and immunities of citizens of the US are only the ones mandated in the constituion. We can add to those, but only via amendment.

You said the States could legislate it with impunity, whether they made it a criminal ban or a civil ban makes no difference.

The State legislated it and it was found unconstitutional, therefore the States could not legislate it with impunity.

And no the rights of citizens need not be enumerated in the Constitution for them to exist. The Constitution says so itself.


You are correct though, we can respectfully disagree. Some can think of the Constitution as a list of rights, they are wrong though as rights are not listed in the Constitution - they are held by the people. However one of the rights that is listed is that we the people cannot have rights taken away be the government and we are all due equal treatment under the law unless the government can provide a compelling government interest is the restriction of those rights.


>>>>

 

[martybegan]

Premise:
If something is not mentioned in the Federal Constitution, States can legislate it with impunity.

Fact:
A. The 14th Amendment bans states from infringing on the privileges and immunities of it's citizens, denying them due process under the law, and denying them the equal protection under the law without a compelling government interest.
B. In 1967 (IIRC) 16 States barred Civil Marriage between whites and coloreds.
C. The Lovings challenged the law of the Commonwealth of Virginia.

Result:
The law was struck down because the treatment of the couple was unconstitutional.

Conclusion:
States can establish laws concerning Civil Marriage, but only if those laws are Constitutional, States cannot apply unconstitutional laws to it's citizens denying them the privileges and immunities of it's citizens, denying them due process under the law, and denying them the equal protection under the law without a compelling government interest.



Sorry Marty, that is reality.


>>>>

Loving was proper as it was a CRIMINAL ban on mixed race marriage, and because it was a heterosexual marriage, there is no difference between a mixed race and a same race heterosexual marriage. Same sex marriage is not, and thats where we differ.

The privlidges and immunities of citizens of the US are only the ones mandated in the constituion. We can add to those, but only via amendment.

You said the States could legislate it with impunity, whether they made it a criminal ban or a civil ban makes no difference.

The State legislated it and it was found unconstitutional, therefore the States could not legislate it with impunity.

And no the rights of citizens need not be enumerated in the Constitution for them to exist. The Constitution says so itself.


You are correct though, we can respectfully disagree. Some can think of the Constitution as a list of rights, they are wrong though as rights are not listed in the Constitution - they are held by the people. However one of the rights that is listed is that we the people cannot have rights taken away be the government and we are all due equal treatment under the law unless the government can provide a compelling government interest is the restriction of those rights.


>>>>

I did add the qualifier that they have to follow the consitution via the 14th and 15 amendments, and yes thier own consitutions as well.

And yes, rights are not limited by the consitution, however consitutional PROTECTION of those rights is limited to what the constiution explicitly says, in my opinion. IF that were the case I can decide that murder is a right. (argumentum absurdum, i know).

To me courts can not go and create "rights" If people think a right is inherent they have to amend the consitution to make it immune from legislative action.

 

[WorldWatcher]

Loving was proper as it was a CRIMINAL ban on mixed race marriage, and because it was a heterosexual marriage, there is no difference between a mixed race and a same race heterosexual marriage. Same sex marriage is not, and thats where we differ.

The privlidges and immunities of citizens of the US are only the ones mandated in the constituion. We can add to those, but only via amendment.

You said the States could legislate it with impunity, whether they made it a criminal ban or a civil ban makes no difference.

The State legislated it and it was found unconstitutional, therefore the States could not legislate it with impunity.

And no the rights of citizens need not be enumerated in the Constitution for them to exist. The Constitution says so itself.


You are correct though, we can respectfully disagree. Some can think of the Constitution as a list of rights, they are wrong though as rights are not listed in the Constitution - they are held by the people. However one of the rights that is listed is that we the people cannot have rights taken away be the government and we are all due equal treatment under the law unless the government can provide a compelling government interest is the restriction of those rights.


>>>>

I did add the qualifier that they have to follow the consitution via the 14th and 15 amendments, and yes thier own consitutions as well.

And yes, rights are not limited by the consitution, however consitutional PROTECTION of those rights is limited to what the constiution explicitly says, in my opinion. IF that were the case I can decide that murder is a right. (argumentum absurdum, i know).

To me courts can not go and create "rights" If people think a right is inherent they have to amend the consitution to make it immune from legislative action.

The Constitution explicitly says that no State shall deny it's citizens of due process and equal protection under the law. Anti-interracial Civil Marriage was found unconstitutional because they denied a group of citizen equal treatment under the law for no compelling government reason.




>>>>

 

[martybegan]

You said the States could legislate it with impunity, whether they made it a criminal ban or a civil ban makes no difference.

The State legislated it and it was found unconstitutional, therefore the States could not legislate it with impunity.

And no the rights of citizens need not be enumerated in the Constitution for them to exist. The Constitution says so itself.


You are correct though, we can respectfully disagree. Some can think of the Constitution as a list of rights, they are wrong though as rights are not listed in the Constitution - they are held by the people. However one of the rights that is listed is that we the people cannot have rights taken away be the government and we are all due equal treatment under the law unless the government can provide a compelling government interest is the restriction of those rights.


>>>>

I did add the qualifier that they have to follow the consitution via the 14th and 15 amendments, and yes thier own consitutions as well.

And yes, rights are not limited by the consitution, however consitutional PROTECTION of those rights is limited to what the constiution explicitly says, in my opinion. IF that were the case I can decide that murder is a right. (argumentum absurdum, i know).

To me courts can not go and create "rights" If people think a right is inherent they have to amend the consitution to make it immune from legislative action.

The Constitution explicitly says that no State shall deny it's citizens of due process and equal protection under the law. Anti-interracial Civil Marriage was found unconstitutional because they denied a group of citizen equal treatment under the law for no compelling government reason.




>>>>

And here is the crux where we disagree. Race is not enough of a difference to limit equal protection when it comes to marriage. Sex and number of people is. There is zero precedent of marriage ever being a contract between same sexed people, unless it was polygamy, and there the people of the same sex were married to the person of the opposite sex, not each other. If people want to modify the contract it should be done via the legislatures of the states, and yes that will take time, and be an inconvinence to some. The courts should not have the ability to dictate to the legislatures how they regulate said contract unless it falls foul of the 14th and 15th amendments. interracial marriage does, same sex does not.

 

[PratchettFan]

Plagarism is a civil matter between two parties, not a criminal offense, and thus really isnt covered by the consitution.

You're wrong. Infringement of copyright laws can carry a 5 year prison sentence and up to $250,000 fine per offense. It is a criminal offense and yet still is not mentioned in the Constitution.

When was the last time someone was accused, or better yet, convicted of that that didnt involve movie copying for viewing, and not claiming work as your own?

And when something is NOT mentioned in the consitution, then States can legislate it with impunity.

I have no idea when someone was last accused. The point is that it is not just a civil matter, as you suggested. It is criminal.

Freedom of speech is listed in the Constitution and the law dealing with copyrights is federal.

We seem to have gotten off on a tagent dealing with an example I gave, rather than my point. Which is that no matter what the basis for a law might be, it does not exist in a vacuum. Laws and how they are applied reflect the society. As the society changes, so do the laws. The Constitution is no different.

 

[PratchettFan]

I did add the qualifier that they have to follow the consitution via the 14th and 15 amendments, and yes thier own consitutions as well.

And yes, rights are not limited by the consitution, however consitutional PROTECTION of those rights is limited to what the constiution explicitly says, in my opinion. IF that were the case I can decide that murder is a right. (argumentum absurdum, i know).

To me courts can not go and create "rights" If people think a right is inherent they have to amend the consitution to make it immune from legislative action.

The Constitution explicitly says that no State shall deny it's citizens of due process and equal protection under the law. Anti-interracial Civil Marriage was found unconstitutional because they denied a group of citizen equal treatment under the law for no compelling government reason.




>>>>

And here is the crux where we disagree. Race is not enough of a difference to limit equal protection when it comes to marriage. Sex and number of people is. There is zero precedent of marriage ever being a contract between same sexed people, unless it was polygamy, and there the people of the same sex were married to the person of the opposite sex, not each other. If people want to modify the contract it should be done via the legislatures of the states, and yes that will take time, and be an inconvinence to some. The courts should not have the ability to dictate to the legislatures how they regulate said contract unless it falls foul of the 14th and 15th amendments. interracial marriage does, same sex does not.

However, the argument you are making was the very same argument made when it was interracial marriage. Today we don't even question that the prohibition of interracial marriage was a violation of the 14th amendment. I predict (and you can hold me to this) that 20 years from now we will not question that same sex marriage prohibition was equally a violation.

Still, I do agree with you. I don't think the courts are the proper venue for this - at this time.

 

[PratchettFan]

And when something is NOT mentioned in the consitution, then States can legislate it with impunity.

Premise:
If something is not mentioned in the Federal Constitution, States can legislate it with impunity.

Fact:
A. The 14th Amendment bans states from infringing on the privileges and immunities of it's citizens, denying them due process under the law, and denying them the equal protection under the law without a compelling government interest.
B. In 1967 (IIRC) 16 States barred Civil Marriage between whites and coloreds.
C. The Lovings challenged the law of the Commonwealth of Virginia.

Result:
The law was struck down because the treatment of the couple was unconstitutional.

Conclusion:
States can establish laws concerning Civil Marriage, but only if those laws are Constitutional, States cannot apply unconstitutional laws to it's citizens denying them the privileges and immunities of it's citizens, denying them due process under the law, and denying them the equal protection under the law without a compelling government interest.



Sorry Marty, that is reality.


>>>>

Loving was proper as it was a CRIMINAL ban on mixed race marriage, and because it was a heterosexual marriage, there is no difference between a mixed race and a same race heterosexual marriage. Same sex marriage is not, and thats where we differ.

The privlidges and immunities of citizens of the US are only the ones mandated in the constituion. We can add to those, but only via amendment.

Marriage is not a privilege or immunity mandated in the Constitution. It exists as a right only because the courts found that it did. As to your argument same race marriage and mixed race marriage is the same thing, that was definitely not the opinion of US citizens in 1920. Which is why it was illegal at the time. If Loving had been brought to the courts in 1920, it would not have gotten a hearing. If you had argued that the criminalization of it was a violation of the 14th at that time, you would have been ridiculed or worse.

 

[martybegan]

The Constitution explicitly says that no State shall deny it's citizens of due process and equal protection under the law. Anti-interracial Civil Marriage was found unconstitutional because they denied a group of citizen equal treatment under the law for no compelling government reason.




>>>>

And here is the crux where we disagree. Race is not enough of a difference to limit equal protection when it comes to marriage. Sex and number of people is. There is zero precedent of marriage ever being a contract between same sexed people, unless it was polygamy, and there the people of the same sex were married to the person of the opposite sex, not each other. If people want to modify the contract it should be done via the legislatures of the states, and yes that will take time, and be an inconvinence to some. The courts should not have the ability to dictate to the legislatures how they regulate said contract unless it falls foul of the 14th and 15th amendments. interracial marriage does, same sex does not.

However, the argument you are making was the very same argument made when it was interracial marriage. Today we don't even question that the prohibition of interracial marriage was a violation of the 14th amendment. I predict (and you can hold me to this) that 20 years from now we will not question that same sex marriage prohibition was equally a violation.

Still, I do agree with you. I don't think the courts are the proper venue for this - at this time.

If same sex marriage came up for a vote, I would vote for it. I have no issue with the States doing this as they see fit. In fact, I see DOMA being struck down, because States control the marriage contract, and the Feds have always recognized all State marriages.

I am a pathway critic, not a concept critic. To me the difference between same sex and heterosexual unions is different enough to not warrant equal protection. Mixed race marriages never had the same level of difference, and thus fall under equal protection, particularly so because miscogenation was a crime, not just not granted.

 

[Underhill]

This gets down to a basic question, what is wrong limiting marriage to an institution that encourages heterosexuals (that can reproduce the race) to create a healthy environment for their offspring? I still don't grasp how gays think they can equate themselves to heterosexuals. Both groups love and lust. Great! Homos AREN'T "like" Hetros, and the reason why is obvious. Instead of marriage, perhaps they get a pat on the back and a Happy Face sticker. I refuse to accept that homosexuality is NOT a mental illness or aberrant behavior, despite all the current popular claims otherwise. We in this culture are so knowledgeable when it comes to attending to all forms of mental illness, ADD in kids to Schizophrenia to Munchausen's syndrome by proxy to whatever. But NOW we blithely accept Homosexuality as the new normal without question? Something isn't adding up here. Mutual consent in a sex act, especially when those people share the same sexual/mental dysfunction, isn't an excuse to open the definition of marriage to people with the same perversion in my opinion. This more an issue about mass psychology and why gay marrige is so popular now rather than logic.

Without question? Seriously? It was argued in the mental health community for decades. But the question always boils down to this. Is it harmful? And the obvious answer is no. So even if it is considered abnormal behavior, it is not in the same category as these illnesses. More like someone who happens to be left handed.

But why would it matter. So long as they aren't hurting anyone, why should it be illegal? Why should same sex couples not be allowed the same rights under the law? If you believe it is against gods laws, then so be it. The church doesn't have to recognize the marriage. But the government should not be making a distinction on such grounds.

 

[WorldWatcher]

I did add the qualifier that they have to follow the consitution via the 14th and 15 amendments, and yes thier own consitutions as well.

And yes, rights are not limited by the consitution, however consitutional PROTECTION of those rights is limited to what the constiution explicitly says, in my opinion. IF that were the case I can decide that murder is a right. (argumentum absurdum, i know).

To me courts can not go and create "rights" If people think a right is inherent they have to amend the consitution to make it immune from legislative action.

The Constitution explicitly says that no State shall deny it's citizens of due process and equal protection under the law. Anti-interracial Civil Marriage was found unconstitutional because they denied a group of citizen equal treatment under the law for no compelling government reason.




>>>>

And here is the crux where we disagree. Race is not enough of a difference to limit equal protection when it comes to marriage. Sex and number of people is. There is zero precedent of marriage ever being a contract between same sexed people, unless it was polygamy, and there the people of the same sex were married to the person of the opposite sex, not each other. If people want to modify the contract it should be done via the legislatures of the states, and yes that will take time, and be an inconvinence to some. The courts should not have the ability to dictate to the legislatures how they regulate said contract unless it falls foul of the 14th and 15th amendments. interracial marriage does, same sex does not.

1. "Tradition" is not a compelling government interest for continued discrimination.

2. The majority of legal entities that recognize Same-sex Civil Marriage have done it though the legislature and trough General Election initiatives at the ballot box. As a matter of fact the case before the SCOTUS about the federal government recognizeing Same-sex Civil Marriage entered into under State law was done by the legislature and the federal government is ignoring that legal Civil Marriage. The DOMA case ill not result in national Same-sex Civil Marriage, it might though return us to the status where State Civil Marriage are recognized equally be the Fed's.

3. Philosophically, I agree - I'd much rather see this handled through the States. By the time the Loving decision came down in 1967 there were only about 16 states that still denied marriage to interracial couples. I think there would be a much greater strategic advance in letting the state repeal their own laws over the next 10-15 years instead of having the court do it for them.

4. My philosophical view is what I would like to see happen, which can be different then an logical analysis of the law and what will happen. However, I think the SCOTUS will do everything in it's power to stay away from a sweeping national decision for a number of years yet to give the issue more time to - ah - mature. The current Prop 8 and DOMA cases will not be the cases they choose for such a decision. (And yes you can bookmark that as a prediction.)



>>>>

 

[martybegan]

The Constitution explicitly says that no State shall deny it's citizens of due process and equal protection under the law. Anti-interracial Civil Marriage was found unconstitutional because they denied a group of citizen equal treatment under the law for no compelling government reason.




>>>>

And here is the crux where we disagree. Race is not enough of a difference to limit equal protection when it comes to marriage. Sex and number of people is. There is zero precedent of marriage ever being a contract between same sexed people, unless it was polygamy, and there the people of the same sex were married to the person of the opposite sex, not each other. If people want to modify the contract it should be done via the legislatures of the states, and yes that will take time, and be an inconvinence to some. The courts should not have the ability to dictate to the legislatures how they regulate said contract unless it falls foul of the 14th and 15th amendments. interracial marriage does, same sex does not.

1. "Tradition" is not a compelling government interest for continued discrimination.

2. The majority of legal entities that recognize Same-sex Civil Marriage have done it though the legislature and trough General Election initiatives at the ballot box. As a matter of fact the case before the SCOTUS about the federal government recognizeing Same-sex Civil Marriage entered into under State law was done by the legislature and the federal government is ignoring that legal Civil Marriage. The DOMA case ill not result in national Same-sex Civil Marriage, it might though return us to the status where State Civil Marriage are recognized equally be the Fed's.

3. Philosophically, I agree - I'd much rather see this handled through the States. By the time the Loving decision came down in 1967 there were only about 16 states that still denied marriage to interracial couples. I think there would be a much greater strategic advance in letting the state repeal their own laws over the next 10-15 years instead of having the court do it for them.

4. My philosophical view is what I would like to see happen, which can be different then an logical analysis of the law and what will happen. However, I think the SCOTUS will do everything in it's power to stay away from a sweeping national decision for a number of years yet to give the issue more time to - ah - mature. The current Prop 8 and DOMA cases will not be the cases they choose for such a decision. (And yes you can bookmark that as a prediction.)



>>>>

Lack of precedent of the contract ever being used for the purpose currently being proposed is good enough reason not to modify the contract via the whims of the courts. In particular when said contract is defined by legislative law.

 

[Ravi]

And here is the crux where we disagree. Race is not enough of a difference to limit equal protection when it comes to marriage. Sex and number of people is. There is zero precedent of marriage ever being a contract between same sexed people, unless it was polygamy, and there the people of the same sex were married to the person of the opposite sex, not each other. If people want to modify the contract it should be done via the legislatures of the states, and yes that will take time, and be an inconvinence to some. The courts should not have the ability to dictate to the legislatures how they regulate said contract unless it falls foul of the 14th and 15th amendments. interracial marriage does, same sex does not.

However, the argument you are making was the very same argument made when it was interracial marriage. Today we don't even question that the prohibition of interracial marriage was a violation of the 14th amendment. I predict (and you can hold me to this) that 20 years from now we will not question that same sex marriage prohibition was equally a violation.

Still, I do agree with you. I don't think the courts are the proper venue for this - at this time.

If same sex marriage came up for a vote, I would vote for it. I have no issue with the States doing this as they see fit. In fact, I see DOMA being struck down, because States control the marriage contract, and the Feds have always recognized all State marriages.

I am a pathway critic, not a concept critic. To me the difference between same sex and heterosexual unions is different enough to not warrant equal protection. Mixed race marriages never had the same level of difference, and thus fall under equal protection, particularly so because miscogenation was a crime, not just not granted.

Rights aren't meant to be up to popular vote in America.

 

[martybegan]

However, the argument you are making was the very same argument made when it was interracial marriage. Today we don't even question that the prohibition of interracial marriage was a violation of the 14th amendment. I predict (and you can hold me to this) that 20 years from now we will not question that same sex marriage prohibition was equally a violation.

Still, I do agree with you. I don't think the courts are the proper venue for this - at this time.

If same sex marriage came up for a vote, I would vote for it. I have no issue with the States doing this as they see fit. In fact, I see DOMA being struck down, because States control the marriage contract, and the Feds have always recognized all State marriages.

I am a pathway critic, not a concept critic. To me the difference between same sex and heterosexual unions is different enough to not warrant equal protection. Mixed race marriages never had the same level of difference, and thus fall under equal protection, particularly so because miscogenation was a crime, not just not granted.

Rights aren't meant to be up to popular vote in America.

To protect them from popular vote, rights have to be enshrined in the constituion, which provides the mechanism to protect said right from the tyranny of the majority.

Using the courts to create rights leads to the ability of the courts to destroy rights, which is what is being done with the 2nd amendment right now.

 

[WorldWatcher]

And here is the crux where we disagree. Race is not enough of a difference to limit equal protection when it comes to marriage. Sex and number of people is. There is zero precedent of marriage ever being a contract between same sexed people, unless it was polygamy, and there the people of the same sex were married to the person of the opposite sex, not each other. If people want to modify the contract it should be done via the legislatures of the states, and yes that will take time, and be an inconvinence to some. The courts should not have the ability to dictate to the legislatures how they regulate said contract unless it falls foul of the 14th and 15th amendments. interracial marriage does, same sex does not.

1. "Tradition" is not a compelling government interest for continued discrimination.

2. The majority of legal entities that recognize Same-sex Civil Marriage have done it though the legislature and trough General Election initiatives at the ballot box. As a matter of fact the case before the SCOTUS about the federal government recognizeing Same-sex Civil Marriage entered into under State law was done by the legislature and the federal government is ignoring that legal Civil Marriage. The DOMA case ill not result in national Same-sex Civil Marriage, it might though return us to the status where State Civil Marriage are recognized equally be the Fed's.

3. Philosophically, I agree - I'd much rather see this handled through the States. By the time the Loving decision came down in 1967 there were only about 16 states that still denied marriage to interracial couples. I think there would be a much greater strategic advance in letting the state repeal their own laws over the next 10-15 years instead of having the court do it for them.

4. My philosophical view is what I would like to see happen, which can be different then an logical analysis of the law and what will happen. However, I think the SCOTUS will do everything in it's power to stay away from a sweeping national decision for a number of years yet to give the issue more time to - ah - mature. The current Prop 8 and DOMA cases will not be the cases they choose for such a decision. (And yes you can bookmark that as a prediction.)



>>>>

Lack of precedent of the contract ever being used for the purpose currently being proposed is good enough reason not to modify the contract via the whims of the courts. In particular when said contract is defined by legislative law.

The majority of Same-sex Civil Marriage entities have done it through the legislative process.

The case of Windsor v. United States is about a woman that was married under the law and who resided in a state which recognized, through the legislative process, her legal Civil Marriage.


>>>>

 

[Ravi]

If same sex marriage came up for a vote, I would vote for it. I have no issue with the States doing this as they see fit. In fact, I see DOMA being struck down, because States control the marriage contract, and the Feds have always recognized all State marriages.

I am a pathway critic, not a concept critic. To me the difference between same sex and heterosexual unions is different enough to not warrant equal protection. Mixed race marriages never had the same level of difference, and thus fall under equal protection, particularly so because miscogenation was a crime, not just not granted.

Rights aren't meant to be up to popular vote in America.

To protect them from popular vote, rights have to be enshrined in the constituion, which provides the mechanism to protect said right from the tyranny of the majority.

Using the courts to create rights leads to the ability of the courts to destroy rights, which is what is being done with the 2nd amendment right now.

Disagree. All rights are already enshrined in the constitution. Limiting a right can only be done with a compelling reason.

Not sure what you are talking about in your second sentence.

 

[The Irish Ram]

I would tend to agree that courts are probably not the best venue for this issue, at this time. Eventually, it will be. The courts do not exist in a social vacuum.

I do understand equal protection and it is obvious to me that it is not being applied equally. However, the law also does not exist in a vacuum. Laws which reach beyond the willingness of the society are simply not viable. Which is why we are seeing those laws change now but did not see them change a couple of decades ago. We will eventually reach the point where the states which prohibit SSM will be in the minority and that is when I expect we will see a final move by the courts to complete the process. Just as happened with interracial marriage.

I've said for a number of years now that the Prop 8 challenge, IMHO, was a tactical mistake in it's attempt to reach a strategic goal. Take for example Prop 8 (California, 2008) and Question 1 (Maine, 2009). In both cases Same-sex Civil Marriage lost at the polls, but the reaction and plan to repeal took two separate courses. Many at the time cautioned the pro-marriage equality supporters that the demonstrations and reactions to Prop 8 in the weeks following it's passage would have a negative impact. There was a split in the supporters on how to proceed - some felt that the court challenge was the way to go, other cautioned against that and instead recommended working toward a repeal.

The Prop 8 challenge in the courts was a roll of the dice and it was known ahead of time that ultimately and legal challenge was going to take years, which has been true. Prop 8 was passed in November 2008 and it is now before the SCOTUS and it's 2013. But even then, a ruling for Prop 8 at the SCOTUS level, would have devastating impact for the marriage equality movement for years and years, at least a generation. As the application of upholding Prop 8 by the SCOTUS would mean they would justify all States that had barred equal treatment under the law for same-sex couples. On the other side of the coin, even if Prop 8 were overturned, there would be negative reaction from the public (in a lot of circles) with the cry of "activist judges". Many though counseled to refrain from taking the court challenge route and look to the future and to repeal Prop 8 at the ballot box in 2010 or 2012. Their voice was drowned out in the demonstrations and in the court challenge.

Now take Question 1 in Maine, passed in 2009. Both it and Prop 8 passed by very narrow margins. The marriage equality supporters though didn't hold large protests (not that there are enough people in Maine to hold one anyway razz. But what they did was accept the will of the people with honor, not "accept" as agree, but accept as in the process functioned correctly. What they did do then is start a grassroots campaign of conversations throughout the State to change the minds of those that were willing to listen so that they understood the impact of their vote. As a result, 3 years later the repeal of Question 1 was again on the ballot and marriage equality is now a reality in Maine.

I use the term "political capital" to describe the degree of positive impact. The political capital of repealing Prop 8 in the same way that Question 1 was repealed would have been politically HUGE in terms of overall perception. California has the largest state population of any state, passage of Same-sex Civil Marriage there at the ballot box would have expanded it in one fell swoop to over 10% of the population of the United States. Doing it by initiative would have had a long lasting positive impact. Doing it through the courts will only increase resentment by those who oppose marriage equality with more cries of "activist judges".

Not saying there wouldn't have been a point in the future when a court challenge might not have been more productive, I just don't see it as producing the desired results. Remember the first anti-miscegenation law was overturned by the CA Supreme Court in (IIRC) 1948, but it wasn't until 19 years later that the SCOTUS finally drove the last nail, but only after the number of states with anti-miscegenation had dropped to around 16.


>>>>

There is certainly at lot of back and forth on this, which is always going to create political maneuvering. However, I see everything you are describing as just the ripples on the surface of the pond. They are just a reflection of the true changes which are happening in our society. Ultimately, it won't be activist judges or politicians which will create this change. It will be everyday people willing to come out of the closet and give a face to the people involved. IMO, "Will and Grace" has had a far greater impact upon this change than the SC ever will.

It's changing because for a growing percentage of the population it is no longer about "those queers" but it is about John in accounting - and he's a good guy. It's about realizing that your sister is gay, or your cousin, or your uncle. As people become real, they become people and not just some joke no one has to actually worry about. And with that change, the laws change. It is inevitable.

Either that or the politicians are pandering to/ building a voting block, ( Billary )
just like they are changing our laws to perpetuate/build a voting block of illegals aliens, ( Obama ) by calling them Americans that aren't documented yet.

 

[martybegan]

Rights aren't meant to be up to popular vote in America.

To protect them from popular vote, rights have to be enshrined in the constituion, which provides the mechanism to protect said right from the tyranny of the majority.

Using the courts to create rights leads to the ability of the courts to destroy rights, which is what is being done with the 2nd amendment right now.

Disagree. All rights are already enshrined in the constitution. Limiting a right can only be done with a compelling reason.

Not sure what you are talking about in your second sentence.

I decide I have the right to murder someone every tuesday. Since I think its a right, and all rights are already enshrined in the consitution you now have to come up with a compelling reason to deny me said right.

My point is that if we give consitutional protection to anything we think is a "right" without actually importing it into the document via amendment, we make the document so pliable that the courts can pretty much then say, "well, we dont like amendment X, so we are going to rule against it using this, this and that."

 

[WorldWatcher]

To protect them from popular vote, rights have to be enshrined in the constituion, which provides the mechanism to protect said right from the tyranny of the majority.

Using the courts to create rights leads to the ability of the courts to destroy rights, which is what is being done with the 2nd amendment right now.

Disagree. All rights are already enshrined in the constitution. Limiting a right can only be done with a compelling reason.

Not sure what you are talking about in your second sentence.

I decide I have the right to murder someone every tuesday. Since I think its a right, and all rights are already enshrined in the consitution you now have to come up with a compelling reason to deny me said right.

Laws against murdering another human being have never been found unconstitutional, the right to end another human being's life is not a right that you possess.

While not serious of course, you could go murder someone and then make that claim in court - doubt it would work, but you could try.

My point is that if we give consitutional protection to anything we think is a "right" without actually importing it into the document via amendment, we make the document so pliable that the courts can pretty much then say, "well, we dont like amendment X, so we are going to rule against it using this, this and that."

The Constitution explicitly says that people have the right to equal treatment under the law, it's embodied in the 14th Amendment.


>>>>

 

[martybegan]

Disagree. All rights are already enshrined in the constitution. Limiting a right can only be done with a compelling reason.

Not sure what you are talking about in your second sentence.

I decide I have the right to murder someone every tuesday. Since I think its a right, and all rights are already enshrined in the consitution you now have to come up with a compelling reason to deny me said right.

Laws against murdering another human being have never been found unconstitutional, the right to end another human being's life is not a right that you possess.

While not serious of course, you could go murder someone and then make that claim in court - doubt it would work, but you could try.

My point is that if we give consitutional protection to anything we think is a "right" without actually importing it into the document via amendment, we make the document so pliable that the courts can pretty much then say, "well, we dont like amendment X, so we are going to rule against it using this, this and that."

The Constitution explicitly says that people have the right to equal treatment under the law, it's embodied in the 14th Amendment.


>>>>

I know I was using argumentum ad absurdum, but the point is someone may think something is a right, but it becomes a constitutional right only when enshrined in the document. Without that you leave it to the tyranny of the legislative majority and/or the potential tyranny of an out of control court.

While the constitution says people have equal protection under the law, the argument becomes what consists of equal. If we go the argumentum ad absurdum route again all drinking age laws, driving age laws, and anything else relying on a certain level of maturity would be unconsititutional, because people are supposed to be "equal"

 

[Ravi]

To protect them from popular vote, rights have to be enshrined in the constituion, which provides the mechanism to protect said right from the tyranny of the majority.

Using the courts to create rights leads to the ability of the courts to destroy rights, which is what is being done with the 2nd amendment right now.

Disagree. All rights are already enshrined in the constitution. Limiting a right can only be done with a compelling reason.

Not sure what you are talking about in your second sentence.

I decide I have the right to murder someone every tuesday. Since I think its a right, and all rights are already enshrined in the consitution you now have to come up with a compelling reason to deny me said right.

My point is that if we give consitutional protection to anything we think is a "right" without actually importing it into the document via amendment, we make the document so pliable that the courts can pretty much then say, "well, we dont like amendment X, so we are going to rule against it using this, this and that."

Rights are funny in that they don't mean you can infringe on someone other person's rights without a compelling reason. Your scenario would certainly do that and therefore is invalid.