More Fun on the Prop 8 Front

[prisonchaplain]

I am leary and suspicious of court rulings that what has been standard practice for many decades is suddenly unconstitutional. Perhaps it is in the spirit of that reality that questions are raised about why courts are overturning two citizen's propositions that simply attempted to maintain the status quo.

[HEthePrimate]

I am leary and suspicious of court rulings that what has been standard practice for many decades is suddenly unconstitutional. Perhaps it is in the spirit of that reality that questions are raised about why courts are overturning two citizen's propositions that simply attempted to maintain the status quo.

Same sex marriage was not recognized until recently, but if it was against the law, then why did they have to pass a law in order to render it illegal? In any case, to be declared constitutional or unconstitutional, the issue has to come before the courts, which it hasn't, until recently.

By your logic, shouldn't slavery still be allowed in the southern states, because a majority there supported the institution "for many decades?"

Majorities are not always right. More to the point, if they don't like what the courts do, they can change the Constitution, rather than try to illegally circumvent it.

Edited February 9, 2012 by HEthePrimate

[Guest]

Same sex marriage was not recognized until recently, but if it was against the law, then why did they have to pass a law in order to render it illegal? In any case, to be declared constitutional or unconstitutional, the issue has to come before the courts, which it hasn't, until recently.

By your logic, shouldn't slavery still be allowed in the southern states, because a majority there supported the institution "for many decades?"

Majorities are not always right. More to the point, if they don't like what the courts do, they can change the Constitution, rather than try to illegally circumvent it.

Okay HEP, go back to your civics class. Before Prop 8, the California State Constitution DID NOT define what constitutes a marriage. It assumes that the people know what marriage means. Therefore, Proposition 8 was passed as a ballot proposition AMMENDING THE CALIFORNIA STATE CONSTITUTION to DEFINE what constitutes a marriage.

Majorities are not always right, that's true - we are not a popular vote majority, we are a rule of law. BUT the law is decided by the people in a democratic vote with the proviso that IT DOES NOT CONTRADICT an existing law. And in this case, the people went through the proper channels to make it so. It is unfortunate that APPOINTED judges (non-elected position) can stretch the meaning of existing law super thin to nix a constitutional ammendment. It skews the balance of power that gives voice to the people. Might as well live in an oligarchy - there's not much difference.

And to your thing about slavery - a very different case. That was a FEDERAL ruling, not STATE. And that's how you got yourself in a Civil War. It was STATES RIGHTS versus FEDERAL LAW... as much as you want to make it about slavery, it was a lot more wide-reaching than that as it changed the balance of power in the United States.

Edited February 9, 2012 by anatess

[jerome1232]

I wanted to re-emphasize, prop 8 was an amendment to state constitution, to define what was previously assumed and is now being ruled as unconstitutional based on the bill of rights

ie we are trying to patch up an unintentional loophole.

[Juan_P]

I'm part of the minority that is glad about this decision, as while I'm heterosexual, I'm secure enough in my sexuality to support the right of homosexuals to get married.

Is there a 'right' to marry in the constitution? Problem in CA was that the court bestowed this right on gays but I can't see it anywhere in the constitution as an unalienable right unless you consider marriage as a pursuit of happiness, right?

[Juan_P]

Majorities are not always right. More to the point, if they don't like what the courts do, they can change the Constitution, rather than try to illegally circumvent it.

California did change its constitution to include the definition of marriage and the CA supreme court upheld that but the gay lobby went to a gay federal judge and now two democrats and a republican judge (hence the 2-1 ruling) to get it overturned.

It will probably end up in the supreme court and all we need to do is just count the democrats to GOP judges to know what the ruling will be.

It can't be more political than it currently is.

[slamjet]

If prop 8 is held as unconstitutional by the U.S. Supreme Court, I'm going to marry my computer. I'll get an annulment when a newer, shinier model comes out. If it complains, I'll unplug it.

Seems like there may be a benefit to all this after all.

[Just_A_Guy]

Is there a 'right' to marry in the constitution? Problem in CA was that the court bestowed this right on gays but I can't see it anywhere in the constitution as an unalienable right unless you consider marriage as a pursuit of happiness, right?

I generally get really uncomfortable with the idea that we only have rights that the constitution expressly bestows on us. I don't subscribe to a well-defined philosophy here, but it strikes me that inalienable rights are our rights because of some kind of state-of-nature thing; not because we needed the framers to tell us what kinds of behaviors we should or shouldn't be allowed to engage in in order to pursue happiness (a phrase, by the way, which is in the Declaration of Independence but not in the Constitution).

That said: I wouldn't consider marriage (i.e. the right to have all of society recognize a particular domestic relationship, and compel government and private entities to give you material goods/benefits in recognition of said relationship) a natural, inalienable right. But I think there is a natural right to establish one's own domestic relationships and associations, allocate one's property as one wishes, and quite possibly to engage in sexual intercourse with the consenting adult of one's choice.

[Guest]

and quite possibly to engage in sexual intercourse with the consenting adult of one's choice.

Which, we all know, has certain prohibitions written into law for the "good" of progeny such as - you can't have sex with your blood-related daughter.

[prisonchaplain]

Same sex marriage was not recognized until recently, but if it was against the law, then why did they have to pass a law in order to render it illegal? In any case, to be declared constitutional or unconstitutional, the issue has to come before the courts, which it hasn't, until recently.

We're dancing quite eloquently around the reality that the authors of the Constitution, as well as generations of judges afterward would never have imagined same-sex marriage being legislated in this land, much less that the writings they authored and protected would REQUIRE that such "marriages" be recognized.

By your logic, shouldn't slavery still be allowed in the southern states, because a majority there supported the institution "for many decades?"

I believed I raised this very issue in a recent post. The argument for "progressive" interpretation of the Constitution is that it can overthrow slavery. True enough. It can also legalize abortion. Sweeping change becomes fast and furious at the hands of five out of nine judges.

Is that what we want? Are we so weary of democracy that we will allow five elites to create our laws and alter our culture?

We can play "what if" on the history of slavery, but it's a dangerous game to argue that five justices should have the power to create legislation from the bench. The same guys that can grant same sex marriage can make decisions you may not like at all.

Having our judges stick to what the Constitution said and meant, without dynamic reinterpretations may mean a slower, more plodding course to changes--but it will protect us from judicial mayhem as well. Power really does corrupt.

Ruth Bader Ginsburg Trashes Constitution; Should She Be Impeached? - Yahoo! News

Majorities are not always right. More to the point, if they don't like what the courts do, they can change the Constitution, rather than try to illegally circumvent it.

Of course, I'd throw that argument back at you. Really, those favoring same-sex marriage should continue their efforts to win over the society, rather than forcing their way through judicial fiat. Likewise with the pro-choice folk. Some pro-choicers have even admitted the error. Roe v. Wade so poisoned the waters, that 40 years later, the battle is still bitter.

Old Time Catholic Blog Blog Archive Most Pro-Choice Scholars and Journalists Would Admit Roe vs. Wade Was a Mistake

So indeed--if you don't like the Constitution, change it--rather than placing judges willing to ignore it.

Edited February 9, 2012 by prisonchaplain
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[Soulsearcher]

What a week for my PC to die, i hadn't even heard of the ruling til i got it back up and running tonight.