Well, California did pass such legislation but one man with a big cigar decided by himself that it shouldn't become law...
Posts: 10751 | Registered: May 2003
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"I was going to ask when will this finally be done the right way, democratically, by a legislature instead of a few men in black robes deciding for themselves a new interpretation of an old law. "
Allow me to cheat for a moment, and quote from the Iowa SC decision.
"As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the statute."
One of the "right ways" in the American system of law is to bring your greivance before the courts. Saying its NOT a "right way" is ignoring the US Constitution, and US history.
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It's one way, but it's certainly not as clear cut as having the legislature do it. That way at least you can't have people standing on constructionist, original interpretations of the Constitution to decry the outrage of it all.
This is more like it.
We'll agree to disagree I think on activist judges subverting the Constitution to their political agenda and personal whim, or perhaps we can disagree to disagree. But I think a lot of us can agree, even OSC, that deciding this in a legislature is a much better way, more conclusive, much more democratic, means to this particular ends.
Using the "logic" of the Iowa judges, the U.S. Constitution also demands that gay people have the right to marry. Now, what if the Supreme Court decides it doesn't? Does that mean the Iowa judges were wrong too? The point is it's too subjective.
Having a legislature do it this way is better. Of course, the best way would be for Iowa to rewrite their Constitution so that it emphatically, specifically grants marriage rights to gay people. Maybe that's coming. But having a few judges twist the intention of the writers of the Iowa Constitution was just wrong, at least in my book. I'm sure it was right in a lot of other books. That's cool.
As far as ignoring the U.S. Constitution, and U.S. history, declaring that gay marriage is protected by either one of them just doesn't stand up to originalist scrutiny.
What does stand up to scrutiny of every kind is if people don't like a law, if they are unsure of what is meant by the words of a Constitution, or if they want to interpret those words according to current whims, there is no need for any harsh feelings about it. There is a process to change laws, to amend Constitutions. That's the "right" way to get this all done.
At least then you won't have to worry about a referendum or a drive for a Constitutional Amendment banning gay marriage as was done in California, just throwing everything into disarray. Do it right the first time, then we don't have to do it over and over again.
Anyway, just my two cents. Iím sure a lot of people donít think itís even worth that.
I canít wait for polygamy though. Itís going to be quite amusing watching some of the same people pushing for their definition of equal treatment under the law all of a sudden determining where the line in the sand gets drawn, which is right behind them as they step across leaving a lot of other people choking in the dust.
Posts: 7675 | Registered: Mar 2007
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"Do it right the first time, then we don't have to do it over and over again."
THe problem is, that if you take that approach, it might not get done at all. E.G. It wasn't until decades after loving v virginia that more than half the population, in many states, agreed that inter-racial marriages should be legal. Does that shift even occur if the courts hadn't ruled that mixed race couples had a right to marry each other? Maybe, maybe not.
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Good point. The ball is in my court, and I concede the match.
I'm not going to pretend that I'm all that pleased with the way things are going, but I will say that I'm honestly happy that so many other people are so happy with these turns of events. Congratulations!
Posts: 7675 | Registered: Mar 2007
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I was going to thank you for your "remarkable grace" also, but since Tom has covered this compliment I will thank you for extending such singular magnanimity on a divisive issue.
Posts: 2147 | Registered: Nov 2004
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I love to see the dawn of civil protections via equal access to civil instruments.
It means good things for our society including better security and thus prosperity in the endeavors of life. I think of one poster here who has a gay father, and think- if his family had been better protected by the law- less able to be fired/evicted/whateverthehell some goon thinks up, that person might have had fewer hardships as a child. He's a pretty good egg but there isn't any acceptable level of persecution that children should be subject to if it is preventable by civil protection by equal access to legal instruments, in my book.
Yes, Mitt said, "all kids should have a mom and a dad" and I like that except that God has never been that picky. He drops babies everywhere.
And all that is reductionist anyway. There is no reason that my civil agreement - my own relationship with another human - is about our children. My relationship with my spouse is about my relationship with my spouse, and we protect the relationship in order to protect 1. ourselves and 2. our children.
I don't think the CA courts will be able to rule to hold back the tide. I really doubt Barney Fife will be arguing the cases anymore.
Equal Access to the instruments of Civil Protection (that which is recognized by the civil law, suffers its regulation and enjoys its protection) is the new watch-phrase of the day.
quote:cherrypoptart wrote: I was going to ask when will this finally be done the right way, democratically, by a legislature instead of a few men in black robes deciding for themselves a new interpretation of an old law.
That's exactly what I was thinking. The worst way is to have the courts decide it. And not because they shouldn't decide such things. Rather, because when such a decision is thrown to the courts, it means we have failed as a people to do our job, or that our elected officials have done a terrible job representing us. However one feels about Dredd Scott, Roe v. Wade, etc., there is no denying that leaving these kinds of decisions to the courts costs us a ridiculous amount of time, money, aggravation, and political fighting for a very long time.
Second, the executive branch: in this case, I heard the governor vetoed the original bill. I'm actually glad he did, precisely because law such as this shouldn't be made unless it is very clearly supported by the people as a whole, bringing us to...
Third, the legislature actually did it. They got a super-majority. Congratulations! And I truly mean that. I can't think of a better, clearer, and more stable way of legalizing SSM.
It will make a HUGE difference in a number of ways. First, it will make a great positive difference in the Virginia public's long-term acceptance of the law. Second, it will keep this issue from driving the two parties to their moronic political extremes where only complete idiots can get elected. Third and most importantly, it shows a great example to the rest of the country of how a government based on liberty is supposed to work: BY CONSENSUS. Where there isn't consensus, patience and persuasion should rule, understanding that a perceived good is not worth having it imposed.
Personally, I require a very high standard for any attempt to limit the voice of the people. The rights being protected must overwhelmingly outweigh the right of a people to self-determination and self-rule, which is in my opinion the most sacred right of all.
P.S. - ...which is precisely why, in retrospect, I consider the Bush Administration generally (and Dick Cheney specifically) to be unequivocally evil. Shame on them. I almost hope ó almost, mind you ó that Republican languish for 40 years in the desert of powerlessness if it will teach them to never trample the Constitution like that again. We are not defined by the human rights we enjoy, but by the human rights we respect.
Sorry, drewmie, by your standards, my aunt and uncle would never have been able to get married. I don't buy into your perspective at all. While consensus on an issue is being reached, people suffer. The majority never has the right to impose unconstitutional laws on the minority. Even if it is the majority doing it.
quote:Originally posted by Everard: Sorry, drewmie, by your standards, my aunt and uncle would never have been able to get married. I don't buy into your perspective at all. While consensus on an issue is being reached, people suffer. The majority never has the right to impose unconstitutional laws on the minority. Even if it is the majority doing it.
If I'm reading drewmie properly, there's no disagreement there, just a statement that when such happens, we have already failed as a whole in our responsibility to proper freedom.
If the courts have to step in as a last resort, however necessary it will be, it means that there's still enough contention that there will be backlash.
It's not that it took 50 years after Loving vs VA for people to finally come around, it's that people people weren't able to put aside their personal prejudices and do what was right up front.
But such is also far easier to say in hindsight, now that the perspective has been normalized. Some times you need to punt, but punting means you've failed to achieve what your actual goal was.
Posts: 11997 | Registered: Oct 2005
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It's a good question. We've "sactified the concepts of self-determination and self-rule" because even the noblest ends too often become corrupt and evil when they are forced on people against their will. Because we believe in respecting people, not just getting results. That's why I find it so ironic at best (hypocritical at worst) for so many justifications of SSM rammed through the courts to be justified by "civil rights" arguments. From a favorite film of mine:
quote:Dr. Guy Luthan: Those men upstairs, maybe there isn't much point to their lives. Maybe they are doing a great thing for the world. Maybe they are heroes. But they didn't choose to be. You chose for them. And you can't do that, because you're a doctor, and you took an oath. I don't care if you find a cure for every disease on the planet! You tortured and murdered those men upstairs, and that makes you a disgrace to your profession!
If we didn't think self-rule should be respected even in the face of horrible alternatives, then holding doctors to such standards would make absolutely no sense.
If sacrificing a lot to avoid trampling on even bad people's rights weren't worth the cost, then the Bush administration would be right in rationalizing away our Constitution. Perish the thought.
Admittedly, plenty of people haven't wanted self-determination. My favorite quote on that comes from one of the best nonfiction books ever written (and it's quite short), Eric Hoffer's The True Believer: Thoughts on the Nature of Mass Movements (1951).
quote:Unless a man has the talents to make something of himself, freedom is an irksome burden.... We join a mass movement to escape from individual responsibility, or, in the words of an ardent young Nazi, "to be free from freedom." It was not sheer hypocrisy when the rank-and-file Nazis declared themselves not guilty of all the enormities they had committed. They considered themselves cheated and maligned when made to shoulder responsibility for obeying orders. Had they not joined the Nazi movement in order to be free from responsibility?
It's one reason I find it pathetic that we absolve people for following orders, effectively absolving people for being sheep. No thank you.
Now this is fantastic news. Finally, a victory which cannot be called a tyranny of the courts. This is what the SSM cause has needed most of all: a democratic approval of SSM.
Posts: 166 | Registered: Mar 2007
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That's what I was looking for, drewmie. America, great experiment in evolving egalitarian self-rule, consistently has problems selling tickets to the citizen involvement show.
I do believe in aristocracy. Not inherited aristocracy, although there is certainly some good in that tradition. But bootstrap aristocracy. getting involved, making things happen, becoming a miniature king among mini-kings.
Also, when militarists lecture us for not sufficiently aPPRECIATING THAT(oops) they risk their lives to defend our freedom, my response tends to be: "It's a free country. You want to fight to preserve my freedom, you go for it. Me, I fight to protect my own. Go away."
Posts: 23297 | Registered: Jan 2005
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Sorry I misunderstood you, drewmie.
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Ev, don't sweat it, especially since I think you're concerns are very valid, namely:
quote:While consensus on an issue is being reached, people suffer.
I agree. But that doesn't settle the issue. It simply means that the alternative must be worse in order to justify that suffering. After all, there are good reasons Winston Churchill called democracy "the worst form of government, except for all the others."
quote:The majority never has the right to impose unconstitutional laws on the minority. Even if it is the majority doing it.
Again, I agree. But the question is to what extent we want the government imposing anything on anybody when something's very constitutionality is in question. It may seem clear to you. But it isn't clear to "We the People." In the end, that really needs to be the deciding factor. Otherwise, whose Constitution is it?
P.S.- To be clear, I believe this means that when the clear majority of America believes that the Constitution requires marriage law to include SSM, then it does. It means that when we say it means that.
From my perspective, the whole point of the bill of rights, and the rights protected/granted/created by amendments such as the 14th, is to make sure that your viewpoint of how the constitution should be looked at should not considered valid.
Essentially, what you are arguing is that the majority has the right to strip a minority of constitutionally protected rights, as long as the majority says that the minority does not HAVE constitutionally protected rights.
I get the generic concern that you have. But I think its a fear based concern, not a justice or rule of law or morality based concern. And I think fear based concerns lead us to make tragic mistakes.
And, again, its worth looking to Loving v Virginia, and the lead up to that decision, and its aftermath. It would have taken decades longer for mixed race couples to marry if we'd used your reasoning.
Ultimately, the point of the bill of rights and later amendments is to protect whats unpopular. We don't need those amendments if we say that the constitution only protects what is popular.
I think we may be talking about two different things. I'm talking about the general principles as held in the Constitution being considered a statement of "We the People," and how its power is in its ability to truly represent our ideals.
In terms of individual situations, the Constitution protects minorities and unpopular people and causes from being trampled by the majority. And it should, because Americans overwhelmingly believe that. It is the overwhelming view of the majority that our law should do just that.
Loving v. Virginia is a good example of the popular general principle in the Constitution ó namely, that the races are not different in any way that should make a legal difference ó being upheld against a lot of people. But that doesn't change the fact that the general principle was widely held even then.
Contrast that with gender differentiation, which has a lot more physiological basis that racial differentiation, and a whole lot more public acceptance than racism did even then.
Of course, in addition to overall Constitutional meaning and Constitutional application, there is the strictly moral or normative question. In other words, what would people with the best intentions and desires have the Constitution mean? Obviously, we can all have different opinions on this. However, I consider this a separate matter from how the Constitution should be interpreted by judges. Regardless of the "best" decision, a judge must apply the law as given to him by the legislature and precedent. Otherwise, they completely undermine the very intent of our Constitutionally established separation of powers. Such recklessness is akin to the equally dangerous executive branch position of Nixon and Cheney that "if the President does it, it's not illegal."
A good example is Justice Thurgood Marshall who opposed capital punishment on the basis that if the American people truly understood it, they'd agree with him. What arrogance! Americans may be childish, stupid, and bigoted at times. But for heaven's sake, it's either our country or it's not. Being saved from ourselves by even great men like Marshall is completely unacceptable. It amounts to tyranny.
P.S.- ... and I agree with him on capital punishment.