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Author Topic: Defending the Constitution
Scooter
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Just wanted to chime in and say I thought it was a provocative essay. I'm sure it will be dismissed by most here as fear mongering, claim some legal/political explanation is factually incorrect, yada yada yada. One can always find a nitpick here and there and then dismiss the whole thing, but the thrust of his point is interesting nonetheless.

I appreciate the thoughts about what means of recourse citizens who are concerned about how these rulings are made and the rulings themselves. Obviously this is a complex issue, and many just talk past each other on it because they in part interpret marriage so differently. It seems that most folks these days think only about marriage as a private, personal relationship and miss the profound elements of it as a social institution. Thus, those who are cautious about passing gay marriage have a difficult task convincing others of the need for caution because most don't really think about marriage on that level anymore. It is frankly a tough sell, and more challenging to defend than the other side which can throw out words like "fairness" that most humans can relate to and value regardless of how they feel about gay marriage.

Anyway, it is interesting that many of those voices who complained about being stifled 50 years ago are the very voices stifling opposition today. It is really all about who has the power to push their agenda and less about true freedom of expression for all. Once one is in power, unfortunately, the tendency it to shut down the opposition. We've seen it by the more conservative "establishment" and the "hippies" alike. The difference is that the hippies always claimed to be about freedom for all, I'm not so sure their polar counterparts had done the same with any comparable vigor.

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Funean
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They tie/d it to memes like "The [only] American Way" and "Patriotism," so I do think the counterpoint is just as strong if not stronger, but I don't disagree with your final point. People are, after all, people, no matter what side of the aisle they screech from.
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TomDavidson
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quote:
it is interesting that many of those voices who complained about being stifled 50 years ago are the very voices stifling opposition today
It is interesting and yet also completely untrue. [Smile] I don't see any signs that people whining about homosexuality have been "stifled." Do you?
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Duke Leto
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Here's a fun fact:

By the stict interpretation of the constitution OSC advocates in this article, Proposition 8 is unconstitutional.

It is in violation of the framers clearly stated intentions that the Guarantee Clause of Article IV Section 4 ensure that all state laws were passed by representative "Republican Governments" rather than direct democracies (or monarchies.) Madison explained this in the Federalist Papers and the intention of precluding all Direct Democracy and therefore all ballot initiatives can't be ignored if you are going to maintain an "as the framers intended" stance.

I frankly don't buy this whole can of worms of Judicial Review being the usurption of legislative provilege. None of the cases in question have "made" law, they have simply destroyed it. If the majority can dictate whatever it likes ignoring the rights of the minority than we do not have any freedom.

As far as I'm concerned, the solution to this absurdity is for governments to stop recognizing marriages at all, and shift what few privileges and rights should be accorded by law to married couples to common law domestic partnerships and have well and done with the matter.

The precedent for civilly recognized "marriages" with no religious blessing is long standing.

I fully intend to live monogomously with whatever woman ultimately decides it will be good idea to reproduce with me, but I certainly have no intention of letting one of Mr. Ratzinger's cross dressing child rapists officiate at the ceremony, or any other witch doctor.

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munga
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By a strict interpretation of the constitution, making prostitution illegal is an unconstitutional supression of the pursuit of property.

I can hardly bare to read OSC more than 20 words, anymore.

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kenmeer livermaile
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Twenty? You one tough broad. I can't five down my eye stalks.
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Finvarra
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Tom -
"It is interesting and yet also completely untrue. [Smile] I don't see any signs that people whining about homosexuality have been "stifled." Do you?"

I think he was referring to the fact that certain states have legalized gay marriage despite the fact that the majority of the state is against this. The liberal justices are stifling the voices of peopel against it by not following the normal democratic process that ammending the constitution entails. He is not saying that the whining is being stifled, but their say in the democratic process is.

(I don't know what the majority opinion on gay marriage is in Cali, Mass, or CT, just saying what I think he meant.)

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Finvarra
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Munga-
"By a strict interpretation of the constitution, making prostitution illegal is an unconstitutional supression of the pursuit of property.

I can hardly bare to read OSC more than 20 words, anymore."

I personally can't stand to read the article either, since I happen to agree with his opinion on interpreting the constitution and don't like to be aligned with the "side" that objects on principle to gay marriage, and while I wont speculate as to the motives of people on this board, the side that often coaches homophobic arguments under a more politically correct cover.

That being said, any argument that says the constitution should not be interpreted a certain way because of the effect the interpretation would have on a specific issue kinda misses the point. Determining the constitutionality of a law has absolutely nothing to do with your ideological position on it, but what the constitution says.

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Jesse
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83% of whites opposed the Loving V Virginia ruling in 1967.

Given Cards Admited support for Wallace...well, I'll let that one lay where it is.

Really....who cares what a majority thinks. The purposes of bills of rights is to protect minorities from majorities.

To answer the question, though, it's a very near thing in California, close to a 50/50 split.

Neither position has broken 50% support in a credible poll this month.

[ October 22, 2008, 03:45 AM: Message edited by: Jesse ]

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RickyB
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Card admits to voting for Wallace? [Smile]
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kenmeer livermaile
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"Given Cards Admited support for Wallace...well, I'll let that one lay where it is."

Well, in Card's -- not defense but -- explanatory contextualization, Wallace was probably the only strong Democratic candidate in 72 and 76 who wasn't a liberal. And you know how Orson feels about liberals.

Orson likes to say he's a Truman Democrat. Truman basically commenced the fight for Civil Rights by pushing to make lynching a federal crime.

quote:
After World War II, the federal government began to take its first productive actions against lynching.

In 1946, the Civil Rights Section of the Justice Department gained its first successful prosecution against a lyncher. Florida constable Tom Crews was sentenced to a $1,000 fine and one year in prison for civil rights violations in the killing of an African-American farm worker.

In 1946, a mob of white men shot and killed two young African-American couples near Moore's Ford Bridge in Walton County, Georgia 60 miles east of Atlanta. This lynching of the four young sharecroppers, one a WWII veteran, shocked the nation and was a key factor in President Harry Truman's making civil rights a priority. Although the FBI was involved in investigating the crime, they were unable to prosecute. It was the last mass lynching.[37]

In 1947, the Truman Administration published a report titled To Secure These Rights, which advocated making lynching a federal crime, among other civil rights reforms. Southern senators and congressmen continued to block such legislation.

In 1924 Truman had paid a $10 membership fee to join the Ku Klux Klan (when it promoted itself as a fraternal organization). When a Klan officer demanded that Truman pledge not to hire any Catholics if he was reelected as county judge, however, Truman refused. Truman had commanded many men who were Catholic in World War I and personally knew their worth. His membership fee was returned and he never joined the KKK.[38] In the 1940s the Klan openly criticized Truman for his efforts in promoting civil rights.

Attention to the Moore's Ford Bridge case was reopened in 1992 when a witness Clinton Adams testified to the FBI on events which he had seen as a 10-year-old child. This was given major coverage by the Atlanta Constitution, and five years later, by other papers. In 1997, a biracial Moore's Ford Bridge Memorial Committee was formed to recognize these deaths and work for racial reconciliation. Among other activities, they restored cemeteries where victims were buried, had tombstones erected, and have established education scholarships in memory of the people who died.[39] In 2001 then-Gov. Roy Barnes reopened the investigation with the Georgia Bureau of Investigation.

In April 2006, the FBI confirmed that it had an investigation in progress relating to the 1946 Moore's Ford case.[40]

The investigation was continuing in 2008 with material recovered from a Walton County farm.

[edit] Lynching and the Cold War

See also: And you are lynching Negroes

With the beginning of the Cold War after WWII, the Soviet Union criticized the United States for the frequency of lynchings of black people. In a meeting with President Harry Truman in 1946, Paul Robeson urged him to take action against lynching. Soon afterward the mainstream white press attacked Robeson for his sympathies toward the Soviet Union.

In 1951, the Civil Rights Congress (CRC) spoke to the United Nations in a presentation entitled "We Charge Genocide", in which they argued that because the US government failed to act against lynching, it was guilty of genocide under Article II of the UN Genocide Convention.

Although there were some funny nuances (nuance is my Word of the Week, in honor of the near total absence of it in the media at present):

quote:
In the postwar years, some U.S. politicians and appointed officials appeared more worried about possible communist connections among anti-lynching groups than about the lynching crimes. The FBI branded Albert Einstein a communist sympathizer for joining Paul Robeson's American Crusade Against Lynching.[41] J. Edgar Hoover, head of the FBI for decades, directed more attention to investigations of civil rights groups for communist connections than to investigating Ku Klux Klan activities against them.
I don't know what kind of Truman Democrat Orson supposedly is, but Truman was NOT a Wallace Democrat.

[ October 22, 2008, 11:56 AM: Message edited by: kenmeer livermaile ]

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Finvarra
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Jesse -

I agree that stifling what are mostly homophobic views is not the same thing as stifling anti-war, anti-segregation voices of the 60s-70s etc, and that even if the majority of America wants to enact unfair legislation, its still unfair and we should protect minorities from the tyranny of the majority. But the courts dont get to make a unilateral decision concerning what is fair, or what should be a right but isn't found in the constitution.

"the purposes of bills of rights is to protect minorities from majorities."

Agreed. Which is why it is harder to change the constitution than a simple majority. And certainly harder than a 5:4 vote.

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Aris Katsaris
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Is there any Democrat *other* than Wallace that we know Card has supported?

He certainly didn't support Johnson or Carter or Clinton or Gore or Kerry. He was too young to support Kennedy (and he doesn't like Kennedy anyway) He voted for Reagan in 1984, so that means he didn't support Mondale either. Did he vote for Dukakis?

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JoshuaD
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Aris: Are you sure he didn't support clinton in 92?
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Aris Katsaris
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Hmm, now that you mention it, I don't remember a clear statement by him regarding 1992, no. But wouldn't OSC have mentioned it if he had, even if only to beat himself up over his past stupidity?
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TomDavidson
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He's said elsewhere that he disliked Clinton "from the first."
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kenmeer livermaile
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OSC: either a little d Republican or a little r Democrat? Seems the former.

[ October 22, 2008, 07:56 PM: Message edited by: kenmeer livermaile ]

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Jesse
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"stifling"?

No, denouncing and arguing against and ridiculing.

After all, most religious folks take more offense at being told their mythology is "silly" than at being told it's evil, destructive, and hurting families.

"Ridicule is the only weapon which can be used against unintelligible propositions." - Thomas Jefferson

And Ricky, Card supported Wallace in 68, before he was old enough to vote, according to him. While Wallace was still publicly and loudly opposed to Loving V Virginia and using the same arguments against Card is now recycling to attack RE : Marriage Cases.

Finvarra - You Realize our Judges are actually elected in CA, right? That we entrusted them to make the decision they made? That we can vote them out?

You believe that Brown V Board and Loving V Virginia were "Judicial Activism"? Should we have subjected them to a National Popular Vote?

Again, I offer a simple majority vote in Alabama to determine whether or not Mormons should be allowed to marry, or teach in Alabama public schools, or even serve on juries.

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Jesse
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quote:

Let me point out my own sorry example. The election of 1968. Nixon vs. Humphrey -- but with George Wallace spoiling things by mounting the most important third-party challenge in my lifetime (I was born in 1951).

Fall of 1968, I had just turned seventeen. Definitely not a senior. I was a white kid raised in communities where I never saw black people, and while I had been aware of George Wallace as a segregationist governor of Alabama, I was ignorant of what that really meant in people's lives.

Segregation was over, I figured -- the Civil Rights and Voting Rights acts had determined that -- and now Wallace himself was declaring that he was no longer in favor of segregation, implying that he'd just been doing what the people of Alabama elected him to do. So in my youth and ignorance, all I saw was a populist candidate running a third-party challenge.

Here's the thing - in 1968 Wallace was loudly opposed to Loving V Virginia. According to Card, he still qualified as "no longer in favor of segregation".

What more needs saying? Card has no ability to move faster than the Salt Lake Taliban tells him too. He's never advanced an argument against same-sex marriage that he didn't get straight from the drooling senile Mullahs and that hate-monger Packer.

I see no evidence he *CAN* think for himself.

If he lays off the burgers and ice cream, and stops allowing his "selfishness" to cause him to give in to that particular "mechanical defect", I expect he just might live long enough to give the same sort of half-assed appology (excusing him off all real responsibility, of course) for his current support for infringing on the civil rights of others.

He'll have to live at least 20 years though, because he's not enough of a man to change his mind before his Mullahs give him permission.

[ October 23, 2008, 04:58 AM: Message edited by: Jesse ]

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TomDavidson
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Jesse, I think that's unnecessarily hateful.
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Jesse
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I think it's less than is neccessary.

At least the damn Catholics can manage to eventually offer real appologies that aren't loaded down with caveats and excuses.

Packer is a Hate Monger. He has advocated hate crimes against gays in print. He has not apologized for it.

All of Cards arguments so far HAVE been official "talking points" from his church.

He DID support a guy ranting about Miscegination and backed by the John Birch Society.

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Evergreen78
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Maybe I'm missing the point, but way up at the beginning of this piece, Mr. Card defines gay marriage as a "reproductively and socially irrelevant 'bond.'" Well, I can't have children, so my (heterosexual) relationships are "reproductively irrelevant," too. Does that mean I shouldn't be allowed to get married?

P.S. I lived in Montgomery, AL, from 1966-72, kindergarten through 5th grade, so take this as the memory of a child, but I was under the impression that George Wallace was elected and RE-elected (more than once) by people of ALL colors. I apologize in advance if that is incorrect.

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Jesse
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He got elected and re-elected with a majority of the vote.

He didn't get much of the african-american vote untill his 82' campaign and a major renunciation of his previous views.

Remember, in the 60's, most black people Alabama were still Republicans...and not a whole lot of them got to vote in '62.

Me...well...I think Wallace was about 80% theater and bull---- both ways. His first failed campaign in 58, he ran against the Klan as a "race moderate" and tried to attract black voters to cross over. He lost huge in the Primary.

Four years later...he espoused some very different views. He won big.

And so on.

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scifibum
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LDS people take it as an article of faith that their leaders will not tell them wrong...that even the MANY seeming mistakes and misjudgments of the LDS leaders in the past were the Lord's will at the time, despite however much suffering and death they led to. There are no democratic mechanisms in the church policy creation process.

So no, Card can't change his own mind on gay marriage without renouncing the core of his identity. I can't really fault him for that, though. It's beyond the ability of most people. (I personally left that church but I don't claim special strength because of that...to the contrary. For ME it was the easier option, for others I think it is beyond consideration.)

But, Jesse, maybe TomD has a point: you take your gloves off, you're going to draw some blood, but I'm not sure you'll get anybody new to sit in your corner. At least not those you're punching.

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Evergreen78
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Jesse: Thanks for that clarification. Like I said, I was a kid at the time.

What I don't understand TODAY, though - and I apologize if this is off-topic for Defending the Constitution - is why even the NAME "George Wallace" is practically a curse word, but Jeremiah Wright, Louis Farrakhan, etc., are all treated as HEROES. Isn't this a double standard or something?

I am a technological DINOSAUR, & have only recently started "surfing the 'Net," if people even still use that phrase. Today is my first day here at Ornery, & I can already tell I'm going to learn a LOT! This is VERY exciting!

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Jesse
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They can't change, as you just said.

Well, Card can't. Some can.

The dishonest Ads have really pissed me off more than anything. They've caused very real harm to people I care a lot about.

On the other hand, I'm starting to realize that what's going on here is largely an attempt to externalize some internal problems.


Some Mormons are actually doing the right thing

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Adam Masterman
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quote:
One can always find a nitpick here and there and then dismiss the whole thing, but the thrust of his point is interesting nonetheless.

Correct me if I'm wrong, but the main thrust of the essay was that

1. "Judicial activism" has turned our democracy into a dictatorship.

2. People should oppose this through strikes and non-violent resistance.

While there is plenty to nit-pick here, these main points are utterly vacuous and easy enough to rebut.

1. The basic logical fallacy here is thinking that any act of government which contrast the will of the majority means that that government is not democratic. In a direct democracy, this is true, though a direct democracy of 300 million isn't even remotely possible. As most high school freshmen learn, we live in a (constitutional) democratic republic, in which there are many situations where the will of the majority is contradicted by design. Google "founding fathers" and "mob rule" for some eloquent discussions of this distinction.
Card goes even further, saying that, not only are we not a democracy, we are a dictatorship. This is just extreme hyperbole, which is a standard rhetorical device (especially for Card [Big Grin] ), except, Card treats it like a fact in the rest of his essay, using it as justification for the actions he endorses. Its like he's unaware that calling the United States a dictatorship is anything other than a plain fact.

2. I'm a big fan of non-violent resistance. Elsewhere, I've described Satyagraha as the most important political idea of the 20th century. Not that everything card endorsed qualifies as Satyagraha, but at least he's not telling people to stock up on Kalishnakovs. My only problem with the second point is that its a massively extreme reaction. The kind of strikes Card describes here have crippled Nepal, making a once (relatively) prosperous 3rd world nation into a nearly failed state. Considering our much more significant position in the world, economically and strategically, such a result for us would plunge the entire world into chaos. To prevent gay marriage? Wow.
Not that it'll ever happen. Card is deluding himself about the popular opposition to SSM. There are about 5 percent on either side that really care, if that, and most everyone else can be swayed based on how the question is asked. If Card thinks that, because he can find a poll saying that 70 percent of American oppose gay marriage, then he can get 70 percent of us to participate in massive, crippling strikes, he deluded (which, by the way, he is).

Anyway, I also found the essay "interesting", but probably not in the same way. Hopefully I've addressed the meat of the essay, as you saw it, instead of dismissing it based on technicalities. As I hope I've shown, its still a pretty dumb essay.

Adam

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Jesse
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Luis Farrahkahn and Jerimiah Wright don't really belong in the same sentence, frankly.

Not a lot of folks consider Farrakahn a "hero" outside of the NOI...and the NOI has gotten a lot smaller under him.

The truth is, he's done a lot to reform criminal and support addicts in recovery. That doesn't excuse his hate speech, which is absolutely vile.

Wright might be an angry guy, and a bit of a nut, but he's not a Racist - he's convinced his GOVERNMENT is racist. He's a conspiracy nut.

He's not lumping all white folks into a pile labled "Blue-Eyed Devils" or claiming jews are a hybrid of pigs and monkeys - he's spouting of kooky disproven conspiracy theories.

Accusing an institution, even the US government, of being Racist and buying into bad science and conspiracy theories doesn't actually make you Racist - it makes you paranoid.

The guy actually, at the same time he's a complete kook, has had some very deep and wise stuff to say. Sept. 11th seems to have somehow popped his friggin cork.

Which is kinda why his congregation pressured the heck out of him to please name a replacement and retire....


The audio here might show you why some considered him (past tense) a Hero...it's worth the listen.

Audio Link

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Jesse
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BTW - Cards poll there? It's totally irrelevant to the issue at hand.

Public opinion-wise, 45-47% of Californians believe that right of same sex couples to marry should be preserved. 47-50% believe they should not. It depends on the poll. I'm talking pure public opinion polls, not likely voter models.

Only one poll counts, though. That happens November 4th.

Will Card rediscover his allegiance to those founding fathers if a State engages in a completely legitimate exercise of it's Rights and votes to retain equal access to marriage for all?

There's about 70% chance we'll find out in a month.

[ October 23, 2008, 02:31 PM: Message edited by: Jesse ]

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scifibum
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quote:
Originally posted by Jesse:
They can't change, as you just said.

Well, Card can't. Some can.

The dishonest Ads have really pissed me off more than anything. They've caused very real harm to people I care a lot about.

On the other hand, I'm starting to realize that what's going on here is largely an attempt to externalize some internal problems.


Some Mormons are actually doing the right thing

I'm glad to see that response to the reactionary and misleading claims about the effects of recognizing gay marriage. Really, really glad.

If nothing else, in the future the General Authorities will have to consider what happens when they instruct their imperfect membership to support a cause: some of them will go overboard and make the entire church look worse than it really is (at least worse than it would be if the church didn't send them on such crusades).

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tuxmask3
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I don't know how many times I've had to tell my fellow California Mormons that the Church will not be forced to perform gay marriages or forced to allow gay marriages to be performed in our buildings.
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Jesse
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I'm not really ticked about the honest -

"But...I don't know what to do when my Joshua comes home and says a girl in his class has two dads and they're married, and asks me how two men can get married..."

I mean, I get it. It's different. It's scary.

But Joshua is going to be comming home from school talking about his classmate with two daddies anyway. There is absolutely no way to stop that which is in *any* way in accord with the values of 95% of the Mormons I've ever known.

Really, to little Joshua, the two daddies thing is probably going to require a heck of a lot more awkward explaining than the "married" thing would.

Schools will teach kids that same sex couples can get married...because that will be the law and our schools aren't supposed to lie about *everything*. They'll also teach kids that they need to treat married same sex couples with tolerance and respect.

Currently, Church teaching is essentially tolerance and respect without "condoning" isn't it? Well, the schools aren't going to tell kids what they do or do not have to "condone".

Mostly, the argument seems to be that if gay marriage is legal then gay marriage will be legal and that's bad because gay marriage will be legal.

Well, I get the fear of change. I get the fear of having even more of ones own beliefs considered "marginal" or "odd". I get that all groups of people tend to have more fear of those they aren't familiar with...and that not all that many LDS families have been to a lesbian couples house for a game of scrabble and a bar-b-q.

I get all of that, but it just doesn't excuse resorting to distortion and fear-mongering.

Whether or not the law changes...Josh is still comming home one day and asking why is classmate has two married Dads - the only choice presented by Prop 8 is whether he'll be talking about civilly recognized marriage or not. I doubt that's going to make all that much difference in the conversation, which is going to go something like =

"Some Churches think it's ok for two men or two women to get married, but our Church doesn't, because we believe that marriage has a special purpose, and that our Heavenly Father created it especially just for Mothers and Fathers to raise children together, and that he intended for every marriage to have one mother, and one father, not two fathers or two mothers."

Tagging on "But son, we won a ballot initiative, and those other churches marriages don't really count because we made sure the law said so" is not going to provide little Joshua much help in making sense of his world.

I don't think having that to tag on at the end of that conversation with him justifies in any way running dishonest, misleading, and frankly hurtfull ads.

I don't think that when a bunch of parents in Oakland who really like their kids teacher get together and organize a trip for their kids to go throw rose petals at her wedding...that it's a very pretty thing to try to twist that into "children forced to go on a field trip to a gay wedding".

I'm serious about a redundant ammendment that re-stated clearly existing rights of religions in regard to this issue, though. I would have voted for one.

[ October 23, 2008, 06:56 PM: Message edited by: Jesse ]

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kenmeer livermaile
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Mama, there's a Mormon at school. He says that HIS Mom and Daddy love each other so much that they married for FOREVER. You know, like after you die.

Why don't you love each other that much?

Later, in conversation with his 17-year old rebellious-ass brother who currently despises Dad. Older bro says:

'Yeah dude, and your friend's grandfather had, like 15 wives and shagged 'em all every night. I bet Mom and Dad do it maybe once a week.'

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Finvarra
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Jesse -

"Finvarra - You Realize our Judges are actually elected in CA, right? That we entrusted them to make the decision they made? That we can vote them out?"

No. You entrust the judges to interpret the constitution, not to change it. As you already pointed out earlier, part of the reason we have a constitution is to protect minorities from the majority. I personally empathize more with gay people that have been marginalized by society in various ways than people who don't like gay marriage for religious or homophobic reasons, but they have the same right to have their voices heard.

What the polls say in regards to where people stand on the issue is more relevant for legislative issues, but says very little about whether or not the constitution protects the right to gay marriage. It's just kinda in there or not. Scooter said in his post that the voices of those who oppose the legalization of gay marriage are being stifled. TomDavidson said this is not true, as we constantly hear people whining and complaining about it, and I was pointing out that this is not what Scooter meant by stifled. Judges should not changed the constitution just because they think something should be a right, or even just because 51 percent of the population think something should be a right. If they do, the voices of those who disagree are being stifled.

I think you would agree with this, and disagree that the judges are just changing constitution.

I personally dont think there are any good arguments against legalizing gay marriage. But when it comes to whether or not it is a protected constitutional right, I think its pretty clear that the writers of the constitution did not mean to include homosexual couples in any point regarding marriage.

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Finvarra
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Adam -

"1. The basic logical fallacy here is thinking that any act of government which contrast the will of the majority means that that government is not democratic. In a direct democracy, this is true, though a direct democracy of 300 million isn't even remotely possible. As most high school freshmen learn, we live in a (constitutional) democratic republic, in which there are many situations where the will of the majority is contradicted by design"

I think the argument that the majority of a state is against gay marriage has detracted from overall argument. It brings to mind ideas of protecting minorities from the "tyranny of the majority," homosexuals are minorities, pretty straight forward. But the point is that, yes, this is a constitutional republic, and it should be harder to change the constitution than regular legislation. It should take more than a majority. At the moment, it is the opposition to gay marriage that is being denied rights because they should be protected from changes to the constitution that they dont agree with unless the hard ammendment process is undertaken and is successful.

If you disagree that the court bypassed the usual process necessary to change the constitution, that is a debate to be had, but Card is clearly not saying that it is undemocratic to enact a law contrasting with the will of the majority.

I agree that Card got a bit silly at the end by calling for a mass strike, but I do think he is right that the courts are overstepping their bounds.


I don't think Card is right that this is just as much of a danger for liberals, though it is an issue. In general, since conservatives like the status quo and liberals like more progressive change, a liberal interpretation of the constitution is going to favor liberals much more.

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Jesse
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Eh, by the same logic the Perez decision was an over-reach.

We disagree as to whether the Judicial Decision "changed" the constitution, or recognized what was there.

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jimskater
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quote:
Originally posted by Finvarra:
...At the moment, it is the opposition to gay marriage that is being denied rights because they should be protected from changes to the constitution that they don't agree with unless the hard ammendment process is undertaken and is successful.

If you disagree that the court bypassed the usual process necessary to change the constitution, that is a debate to be had, but Card is clearly not saying that it is undemocratic to enact a law contrasting with the will of the majority.


Finvarra,

The courts didn't bypass any process, they acted on a case that was brought before them. In re Marriages went through the CA court system, as outlined in the CA constitution--Superior Court, Court of Appeals & then the Supreme Court.

Note also that the California legislature acted on multiple occasions to legalize SSM, twice passing bills that made it to the governor's desk.

From the California Independent Voter Project:

quote:
There’s something the proponents of Prop 8 haven’t told you, or would rather have you forget: The California Legislature voted to extend the right to marriage to same-sex couples twice, before the State Supreme Court ruled to overturn the now eight-year old Prop 22. The most recent bill would have “amended state law to define marriage as a civil contract between two persons.”

The bills died on the desk of Gov. Arnold Schwarzenegger, who said the courts should decide on the matter.

Link: Prop 8 "destroys" the Judicial Process

So what happened was Prop 22 (as has been noted by Jesse) was pushed by its supporters as a way to allow Californians to decide the future of ssm in California. Then the legislature acted to try to enact SSM. Then the vetoes. Then the court cases, which resulted in legalization of SSM & the overturn of Prop 22. Now we have Prop 8.

Just what part of the "process" was missed? [Roll Eyes] I think the "will of the people" as expressed by the proponents of Prop 8 is more than a little self-serving. Remember, these are the same guys who sold us Prop 22. Yes, it ended up in the courts--at the invitation of the Governor.

On the other hand, a constitutional amendment should take substantially more than 50% of the vote to pass.

=====

I'm getting a little tired for some reason (I think I forgot to take my blood pressure meds this morning.) So forgive me if none of the above makes any sense.

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Finvarra
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Jim -

"The courts didn't bypass any process, they acted on a case that was brought before them. In re Marriages went through the CA court system, as outlined in the CA constitution--Superior Court, Court of Appeals & then the Supreme Court. "

The process for changing the constitution in the state of California, as outline in the CA constitution:

ARTICLE X.

Mode of Amending and Revising the Constitution.

Sec. 1. Any amendment, or amendments to this Constitution, may be proposed in the Senate or Assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendments, shall be entered on their journals, with the yeas and nays taken thereon, and referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if, in the Legislature next chosen as aforesaid, such proposed amendment of amendments, shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such proposed amendment of amendments to the people, in such manner, and at such time as the Legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the Legislature, voting thereon, such amendment of amendments, shall become part of the Constitution.

Sec. 2. And if, at any time two-thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors, at the next election for members of the Legislature, to vote for or against the convention ; and if it shall appear that a majority of the electors voting at such election have voted in favor of calling a convention, the Legislature shall, at its next session, provide by law for calling a convention, to be holden within six months after the passage of such law; and such convention shall consist of a number of members not less than that of both branches of the Legislature.


I'm not pretending to be more informed than I am regarding the issue in Cali. My understanding is that the ammendment process has not taken place, and that the court declared proposition 22 (and another law as well? I forget exactly) to be unconstitutional because it violated the constitutional "right to marry" the person of their choice, and the discrimination based on gender violated an equal rights type of ammendment.

If when the constitution was drafted Marriage meant the union of a man and a woman, I think an ammendment is needed to change this. It doesn't make sense for the constitution to change just because we understand specific words differently now.

"Just what part of the "process" was missed? [Roll Eyes]"

The part where there was an ammendment.


"There’s something the proponents of Prop 8 haven’t told you, or would rather have you forget: The California Legislature voted to extend the right to marriage to same-sex couples twice, before the State Supreme Court ruled to overturn the now eight-year old Prop 22. The most recent bill would have “amended state law to define marriage as a civil contract between two persons.”

The bills died on the desk of Gov. Arnold Schwarzenegger, who said the courts should decide on the matter.

While I disagree with his decision, Arnold was allowed to veto the bills, and you cant just declare a law to be unconstitutional because you couldn't pass a law changing it. It is however funny that he said its a court issue. If the bill was just changing the legislation, and not talking about the constitutionality of it, I don't see how that makes any sense. OTOH, even if I disagree with his decision, he was not overstepping his bounds to veto the bills.

I'm not arguing that gay couples should be content to have civil unions and just call it something different, but if marriage meant a union of a man and a woman when the drafters wrote the constitution then while I agree that homosexual couples should have the right to marry whoever they want, if its not in the constitution its not a constitutional right.

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Funean
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Finvarra, does that then mean you believe that the Constitution speaks to the rights of men only? Since, you know, women aren't mentioned therein.

I'm not being snarky at you, btw. The question of what the framers intended versus what we understand their terms to include isn't exactly a new or dead issue.

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jimskater
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Finvarra,

The legislature attempted to pass laws that would allow SSM, and thereby change Prop 22 (which wasn't an amendment). To clarify: Governor Schwarzenegger vetoed those bills--and responded with a statement that the Courts should decide whether SSM are allowable under the State constitution. Here's a most relevant question: why was an amendment to the Constitution banning SSM necessary, given that that marriage laws are just that, "laws"?

[ October 27, 2008, 12:29 AM: Message edited by: jimskater ]

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