[doG]

Severian said:

If you do not want to follow the decision of a democratic vote, then your representative democracy should not ask the electorate to vote on the issue.

This is exactly the point. The majority decided it didn't like the court's interpretation of the law so they put the issue on the ballot so they could use mob rule to oppress the minority the court ruled in favor of. What next? Maybe all the poor people will get a measure on the ballot calling for a 100% tax on all assets over $10000 so the government can send free checks to the poor. We all belong to one or more minorities. Where does it stop?

[iNow]

Pangloss said:

Yes. But like I said before, if the people want it enough to make a constitutional amendment to enforce it, no court in the land can do anything about that. The amendment could later be rejected, but that also would be an act of the people.

Ah, yes and no. As I mentioned before, the federal constitution takes precendance over a state constitution as outlined by the Supremecy Clause in Article VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

From wiki:

http://en.wikipedia....upremacy_clause

The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land." The Constitution is the highest form of law in the American legal system. State judges are required to uphold it, even if state laws or constitutions conflict with it.

I think you will notice that I've been arguing primarily from a federal level on these points. This means that any amendments to the state constitution can still be overturned by SCOTUS. That would be the "no" part of my response to your point.

For the "yes" part, you would, of course, be correct if we amended the federal constitution in this way. I see that as much less likely, but indeed possible. If the country as a whole (the majority against whose tyranny the minority has been maximally protected) chose to amend the federal constitution to disallow two people of the same gender from marrying, then they could certainly do so.

There is, however, a caveat in that the new amendment must not conflict with existing amendments, nor create ambiguity in application of any previously existing law or provisions. The constitution (and, perhaps more appropriately, those sworn to protect it) cannot allow provisions that are mutually inconsistent and irreconcilable to exist simultaneously. For these reasons, I see an amendment of this sort at the federal level as very unlikely to happen, since such a provision would, in fact, appear to conflict with the aforementioned Establishment Clause and the Equal Protections Clause.

So, the odds are against such an amendment making it into the federal constitution, but I grant you that it is, in theory, at least possible, just at an incredibly low order of probability. Additionally, if such an amendment were successfully passed, it could later be reversed as you suggest by a new amendment from the people, much like the 21st amendment reversed the 18th amendment, which prohibited the possession and sale of alcohol.

Pangloss said:

Like I said, we need to focus on hearts and minds, not legislating from the bench.

TBH, I'm not at all swayed by this "legislating from the bench" nonsense. It's the same stupid argument that the whackos who think a clump of undifferentiated cells deserve the same rights as a fully developed and grown human being, or folks who want to see creationism taught in the classrooms alongside evolution (do they want to teach the stork theory of childbirth, too?). It's a farse and a smoke screen to hide the fact that they don't have a meritorious argument in support of their position.

The purpose of the supreme court is to rule on the intent of the law and uphold the constitution. That's what is going on here, and trying to cast the justices in the dim and derogatory shadow of "activism" is weak, wrong, and completely hypocritical considering your repeated reminders about the need to win "hearts and minds."

This post has been edited by iNow: 21 November 2008 - 06:17 AM

[Pangloss]

Yes, I was talking about an amendment to the US constitution.

iNow said:

There is, however, a caveat in that the new amendment must not conflict with existing amendments, nor create ambiguity in application of any previously existing law or constitutional amendment. I also see this as unlikely to happen, since such a ruling would, in fact, appear to conflict with the aforementioned Establishment Clause and the Equal Protections Clause.

No, those are broad definitions and this would be a specific one, so it wouldn't be open to interpretation. No matter how contrary it is to the concept behind the above, there would be nothing the Supreme Court could do about it.

Is it likely? It doesn't appear so, but my point was that with virtually every national politician opposed to gay marriage, pushing harder doesn't sound like a good idea.

Quote

TBH, I'm not at all swayed by this "legislating from the bench" nonsense. It's the same stupid argument that the whackos who think a clump of undifferentiated cells deserve the same rights as a fully developed and grown human being, or folks who want to see creationism taught in the classrooms alongside evolution (do they want to teach the stork theory of childbirth, too?). It's a farse and a smoke screen to hide the fact that they don't have a meritorious argument in support of their position.

Judicial restraint is not a stupid argument, and it works in your favor as often as it does to your detriment. I wonder if you realize you're riding a popular bandwagon just like the people you're railing about. You just rejected my hearts-and-minds argument in favor of legally forcing other people to do things your way. Right or wrong, do you really think that's the best way to win this fight?

That's what gets the left in trouble with the right more than anything else, this notion that if you just fix all the laws the way they're supposed to be, and make that the new status quo, the right will relax and, over time, come around to proper way of thinking.

That's a stupid argument. And it's one that has consistently failed, not only unsuccessful in winning over any hearts and minds, but single-handedly giving voice and footing to the very thing it hoped to stamp out, in the form of conservative talk radio, Fox News, etc.

There are now 23.5 months until the mid-term election. Do you think it would be better to use them to continue the gradual progress that has already been made on this issue (as reflected in poll after poll), or do you think it would be better to swing for the fences and hope to knock one out of the park, knowing that the fence is a good 600 feet away and the pitcher just put his hand to his mouth while the umpire was looking the other way?

[iNow]

Pangloss said:

That's what gets the left in trouble with the right more than anything else, this notion that if you just fix all the laws the way they're supposed to be, and make that the new status quo, the right will relax and, over time, come around to proper way of thinking.

That's a stupid argument.

Sure is a good thing that's not the argument I was making then, isn't it? Also, you were not talking about "judicial restraint." You explicitly said "legislating from the bench," which is what prompted my comments on that topic.

[Pangloss]

I was talking about judicial restraint. I said we shouldn't be legislating from the bench (which is judicial activism, the counterpart of restraint, falling under the same general subject), and you replied that you considered the activism argument "stupid" because their case does not have a "meritorious argument". But judicial restraint has nothing to do with whether the issue under consideration is meritorious -- in fact it is often applied even when it is crystal clear that judicial action is warranted. The judiciary prefers to allow lawmakers the power and flexibility they need to make proper laws, only intervening when absolutely necessary. This is a good thing.

So you see it as righting an obvious wrong, and they see it as "legislating from the bench." That's politics for you. I think we should focus on education instead of orders and demands. We should accept California's decision, watch public acceptance continue to grow, and by ignoring the offer of battle, eventually win the war.

But hey, that's just my two bits on it.

This post has been edited by Pangloss: 21 November 2008 - 07:53 AM

[iNow]

Pangloss said:

I think we should focus on education instead of orders and demands. We should accept California's decision, watch public acceptance continue to grow, and by ignoring the offer of battle, eventually win the war.

We may just have to disagree then, as I simply cannot fathom how anyone would argue in favor of accepting a state level constitutional amendment which is inconsistent and irreconcilable with the federal constitution, especially since the federal constitution represents the supreme law of the land per the Supremecy Clause in Article VI.

Problems don't often fix themselves, they must be tackled head on. Ignoring the issue and sticking your head in the sand like ostriches are not viable solutions (unless you're a top executive in Detroit). ;)

[Mr Skeptic]

Education is one way to tackle a problem head on, and probably a better solution than ramming your superior ideas down their ignorant throats.

[iNow]

Mr Skeptic said:

Education is one way to tackle a problem head on, and probably a better solution than ramming your superior ideas down their ignorant throats.

Please be so kind as to clarify for all of us precisely which part of my argument on the constitutionality of all of this you are summarily dismissing as "superior ideas" being forced "down their ignorant throats."

[Mr Skeptic]

If the courts find it to be unconstitutional, they had better strike it down. But you could easily end up with it going the other way around, with the federal constitution also being amended (not by the court, of course), which is probably 100% opposite of what you want. Republic or not, the will of the people will be heard, and you are better off getting them to agree with you.

[iNow]

Mr Skeptic said:

If the courts find it to be unconstitutional, they had better strike it down. But you could easily end up with it going the other way around, with the federal constitution also being amended (not by the court, of course), which is probably 100% opposite of what you want. Republic or not, the will of the people will be heard, and you are better off getting them to agree with you.

Yes, I completely agree, and that's almost verbatim what I said in post #42 above.

Where's the issue again? Also, are you going to clarify where it was you think I was cramming my "superior ideas" down the throats of the "ignorant?"

[Pangloss]

He's just saying the same thing I was saying. You want the problem tackled "head on", and we want it done over the long term through education. If you want to agree to disagree, then let's move on.

[iNow]

I'm not quite clear on why you two are suggesting I'm against education on this topic, as that's not the case at all. Education is hugely important, and I think my posts demonstrate a sincere desire for learning and sharing knowledge.

The issue is whether or not the state level amendment is constitutional at the federal level. I posit that it's not. I have laid out evidence in support of this position, and I have yet to see a relevant counter argument offered by anyone.

[Pangloss]

So... you're not willing to just agree to disagree on this, then? You actually want me to respond on the issue of whether my argument is relevant?

[ParanoiA]

It seems we're doomed to repeat the previous thread on this topic. I know Skeptic is holding his tongue...or his wrist I suppose.

[Mr Skeptic]

ParanoiA said:

It seems we're doomed to repeat the previous thread on this topic. I know Skeptic is holding his tongue...or his wrist I suppose.

My guess is that the court will reach a decision before we do :D

[iNow]

ParanoiA said:

It seems we're doomed to repeat the previous thread on this topic. I know Skeptic is holding his tongue...or his wrist I suppose.

I must concede that I truly don't understand the responses to this thread.

I have openly stipulated that I am biased on this issue, but that I would like to hear quality arguments which demonstrate constitutional relevance.
I have focussed all of my arguments at the level of the federal constitution, and described how these state level constitutional changes are inconsistent and irreconciliable with the articles and clauses of the federal constitution.
I have openly stated how a change to the federal constitution is a possibility which would allow the banning of two people of the same gender to be legally recognized by the states.
I have described why I think "waiting another 50 years while hearts and minds are won" is an approach counter to our presently existing legal structure and constitutional arrangement, as well as the setup of our "dual sovereignty with federal level supremancy" governance.
Mr Skeptic has accused my focus on the federal and state constitutions in this thread as "ramming my superior ideas down their ignorant throats," and yet he's been awarded the description of "biting his tongue."

Again, I truly don't understand the responses to this thread, neither why nor how I'm somehow supposed to be the "bad guy" here.

I honestly await a relevant constitutionally based counter argument to any of the points I've made, or an explanation of why/how the supreme court could find in favor of allowing Prop 8 without a federal level constitutional amendment. I am looking for help to understand any reason why such a ban at the state level should be allowed given our legal and constitutional setup.

This post has been edited by iNow: 22 November 2008 - 04:49 PM

[ParanoiA]

Because when someone makes a valid, clinical argument on the specifics of the laws and how they are negotiated or to be interpreted, you reply back as if they are a bigot and support suppressing homosexual unions. That's what happened to Skeptic. He was trying to argue the details of the laws and rights and how they may or may not be applied in various forms - but he was interpreted as making arguments against homosexual unions.

And further, most others in that thread made the same mistake in judgement, even Pangloss. Just my opinion of course.

It seems a better argument for the courts. They, most certainly, will be acclimated to the nature of law and how rights are specifically applied and restricted and not as susceptible to infering value judgements from clinical arguments.

[iNow]

I'm asking specifically about this thread, though. I changed my tack, as you're right, it the other thread I focussed too much on emotive charges and labels of bigotry.

I'm asking specifically about this thread, though.

[jackson33]

iNow said:

Ah, yes and no. As I mentioned before, the federal constitution takes precendance over a state constitution as outlined by the Supremecy Clause in Article VI:

I think you will notice that I've been arguing primarily from a federal level on these points. This means that any amendments to the state constitution can still be overturned by SCOTUS. That would be the "no" part of my response to your point.

TBH, I'm not at all swayed by this "legislating from the bench" nonsense. It's the same stupid argument that the whackos who think a clump of undifferentiated cells deserve the same rights as a fully developed and grown human being, or folks who want to see creationism taught in the classrooms alongside evolution (do they want to teach the stork theory of childbirth, too?). It's a farse and a smoke screen to hide the fact that they don't have a meritorious argument in support of their position.

The purpose of the supreme court is to rule on the intent of the law and uphold the constitution. That's what is going on here, and trying to cast the justices in the dim and derogatory shadow of "activism" is weak, wrong, and completely hypocritical considering your repeated reminders about the need to win "hearts and minds."

Having been unable to show reason, how a State can achieve law through the populace, where the Federal has no such means (referendum) and the process for governing States and the Federal are not only different, but have completely different purposes, your opening comment in post 56 is understandable. Both side on this thread are addressing State laws, which by no other way, are interpretations of the Federal Constitution and/or law.

Congress, however remains the last step to what law can become. Even if the SC rules pro/con any issue, Congress can simply re-establish some intent and through the process change the original intent. Federal laws today, say nothing about gay marriages, only that for recognition any union must be by one man and one woman. Pro-issue advocates, and some Judges have interpreted the 14th A, to include 'sexual orientation' which is found nowhere in Federal Law, including the Code (law) for recognition.

The SC, then IMO, could not make a judgment either direction on prop 8, but for lack of jurisdiction. That is that Court has no authority over what any State constitutes as a Union/Marriage, with out the mention of specific rights or what rights are being denied, which would be under recognition. A State can give rights, financial to legal, so long as other Federal Laws are not compromised, such as WAS sodomy, long ago ruled on. If Prop 8, had mentioned, even implied, or the California SC or their legislatures had included (none did) the rights of individuals would include Federal Rights or that other States would be forced into recognizing their law, the SC would have heard this case in 2000 or before.

States, have the authority to maintain rights in there State, short of Federal Law, which no other State is obliged to grant or honor. Your trying to imply Federal Law, which any law is subject to all States (In Constitution) as being equal to State Law being accepted/honored by all States in the same manner.
There is nothing uniform today between any State, including a good many rights given in one State or another. The uniformity mentioned in the Constitutions pertains to States trying to circumvent Federal Law or even another State and of course any Federal Law.

[ParanoiA]

iNow said:

I'm asking specifically about this thread, though. I changed my tack, as you're right, it the other thread I focussed too much on emotive charges and labels of bigotry.

I'm asking specifically about this thread, though.

Well, in that case, I can only speak for myself. You've done a terrific job on this, quoting Articles and Clauses to support your arguments and they're well made. I don't think I'm equal to your challenge, and I have my own reservations and thoughts I'm still working out as well.

My remark though about Skeptic biting his tongue had to do with his arguments about the law being applied equally to everyone. Certainly not cut and dry, but entirely fascinating. The equal protection clause, as I understand it anyway, has to do with applying a law to one person, but then not applying it to another. That's different than a law that effects one person's choice, but doesn't effect another person's choice.

In the latter statement the law is still being applied, it just effectively doesn't matter since that person's choice doesn't violate the law. In other words, if I want to marry a woman, the gay marriage ban doesn't effect me, but it still applies to me.

There are plenty of laws on the books that apply to everyone, but don't effect everyone. Like requiring a license to pilot an aircraft. It doesn't effect me since I don't care about piloting in the first place.

But, to be clear, I'm not strong enough on the particulars of Equal Protection to be confident in all that, it's still preliminary for me.