Landmark Poll On Same Sex Marriage

[JohnStOnge]

BTW, Article III neither gives the Judiciary exclusive power to determine what the Constitution says nor does it indicate that the Supreme Court is free to substitute its own views of what Constitution should mean for an honest effort to assess what it was intended and/or understood to mean by those involved in crafting and/or ratifying it. It says "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." That is not saying the Court is to control the Constitution rather than the Constitution controlling the Court.

And when you put it in context of what The Federalist has to say about the Judiciary it is clear that what is going on now is not intended. It was supposed to be the weakest branch of government. It was not supposed to be involved in setting social policy or making law. It was supposed to reflect what was established by the other branches in INDIVIDUAL cases. It was not supposed to do things like suddenly create a "Constitutional" prohibition on prayer in public schools where none existed before and clearly does not actually exist in the Constitution.

[JohnStOnge]

And this reasoning is a great example of why I could never subscribe to an "Originalist" thoery.

Which to me means you embrace the idea of oligarchy as a form of government because you agree with some of the changes unaccountable officials have made. It's an "ends justify means" outlook.

So, in your world view, why do we even have a Constitution? Why don't we just drop the pretense and say we have a council of 9 wise sages who will make the rules for us? Why put them through the trouble of crafting elaborate BS to put the stamp of "Constitution" on their personal views about what is best for the society?

[danefan]

BTW, Article III neither gives the Judiciary exclusive power to determine what the Constitution says nor does it indicate that the Supreme Court is free to substitute its own views of what Constitution should mean for an honest effort to assess what it was intended and/or understood to mean by those involved in crafting and/or ratifying it. It says "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." That is not saying the Court is to control the Constitution rather than the Constitution controlling the Court.

And when you put it in context of what The Federalist has to say about the Judiciary it is clear that what is going on now is not intended. It was supposed to be the weakest branch of government. It was not supposed to be involved in setting social policy or making law. It was supposed to reflect what was established by the other branches in INDIVIDUAL cases. It was not supposed to do things like suddenly create a "Constitutional" prohibition on prayer in public schools where none existed before and clearly does not actually exist in the Constitution.

Whether Article III provides the power is indeed a question, but that issue has been decided. If the citizens of this country really have a problem with it, there is, as you say, the Amendment process. And a situation like that is a situation in which the Amendment process is well-suited to make a correction - if the Nation believed it so.

With that being said, I truly believe that Marbury v. Madison completely changed the path of this country and for the better.

[danefan]

And this reasoning is a great example of why I could never subscribe to an "Originalist" thoery.

Which to me means you embrace the idea of oligarchy as a form of government because you agree with some of the changes unaccountable officials have made. It's an "ends justify means" outlook.

So, in your world view, why do we even have a Constitution? Why don't we just drop the pretense and say we have a council of 9 wise sages who will make the rules for us? Why put them through the trouble of crafting elaborate BS to put the stamp of "Constitution" on their personal views about what is best for the society?

You've got it backwards my man. The Amendment process provides the accountability for the Supreme Court. Popular vote (or close to it) is the ultimate check and balance of the people.

Don't like the President? Vote him out - version of a popular vote
Don't like Congress? Vote him out - popular vote
Don't like the Supreme Court's decision? Vote to overturn it - Amendment

The beauty of the Constitution is not lost from my point of view. Its enhanced.

[01lugrad]

Not to sidetrack completely (even though that's what we like to do around here), but what percentage of the population is gay, anyway? Not that a percentage has anything to do with the law, but it would be interesting to know. If we go on what TV shows would tell us, about 25% of adults and teens are homosexual. I tend to believe this is on the high side.

Quick note: I personally believe homosexuality is wrong, but I don't see how the Constitution can be interpreted to keep homosexuals from marrying one another.

[danefan]

Not to sidetrack completely (even though that's what we like to do around here), but what percentage of the population is gay, anyway? Not that a percentage has anything to do with the law, but it would be interesting to know. If we go on what TV shows would tell us, about 25% of adults and teens are homosexual. I tend to believe this is on the high side.

Quick note: I personally believe homosexuality is wrong, but I don't see how the Constitution can be interpreted to keep homosexuals from marrying one another.

I don't think you can ever get an accurate figure on the % of gay Americans for a couple reasons, including the fact that a large number of them aren't out of the closet and an even larger percentage won't even admit to themselves that they are gay.

[dbackjon]

Not to sidetrack completely (even though that's what we like to do around here), but what percentage of the population is gay, anyway? Not that a percentage has anything to do with the law, but it would be interesting to know. If we go on what TV shows would tell us, about 25% of adults and teens are homosexual. I tend to believe this is on the high side.

Quick note: I personally believe homosexuality is wrong, but I don't see how the Constitution can be interpreted to keep homosexuals from marrying one another.

I think a fair estimate would be between 5 and 10 percent. As danefan said, it is difficult to get an accurate number because of the stigma gays and lesbians still feel.

And what channels do you watch? HGTV and the Design Channel? The major networks have very, very few gay characters. And no, we don't claim Ryan Sechrest.

Quick note on your quick note: I can live with that.

[JoltinJoe]

Your analysis could be politically sound, OL FU, but yosef1969 hits the nail on the head. Logically, gay marriage opens the door to polygamy and other changes never intended.

"Substantial political desire" is important but should never be the sole determining factor. That's why we have a Consitution and a nation of LAWS.

I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

Yes, you are correct.

But as you recognize, since this court has essentially held that an individual has a right to marry according to his or her preference, it must logically follow that a polygamist has the right to marry in accordance with his preference, and that laws outlawing polygamy are unconstitutional.

Yet (again, as you recognize), courts will not go so far. They will deny polygamsists the right to marry in accordance with their preference, and uphold laws outlawing polygamy, even though this holding would be inconsistent with the holding allowing marriage in accordance with your personal preference.

All of which establishes (again, as you recognize), that the courts are behaving as legislatures do on this issue. Which, in the end, simply proves beyond any doubt that the courts are usurping legislative authority on this issue.

Legislatures have the right to draw these types of lines based on perceptions of public policy, i.e., allowing gay marriage but oulawing polygamy. Courts do not. When they state a holding, it is equally applicable to all.

[dbackjon]

While not advocating one way or other on Polygamy, polygamy opens up an entirely different set of LEGAL issues that Gay Marriage does not.

The current framework for marriage from a legal standpoint is based on two consenting adults entering into a legal contract. Whether it is two men, two women, or a man or a woman is irrelevant to the set up. Introducing a third or more part(ies) adds a layer of complexity.

If a man takes a second wife, does he need permission from the first wife? Are the two wives married as well? What is their LEGAL relationship? Could the first wife also have a second husband? If there is a divorce, do all relationship end at once? If a man divorces one of three wives, does the wife still get half, or a quarter? When the man or woman dies, do they all get survivor benefits from Social Security, or just one designated heir, or the same amount as anyone else, just divided equally among the survivors.

[OL FU]

As GSUalumeagle stated, it is good to see an intelligent disucssion of an important issue. And one of my favorites too although I am woefully inadequate in arguing the points. I do hope to get back to it. But I have now received my third job (all carried out at the same time) with the same company so reading long and thought ful posts just isn't possible right now.

On a different subject, maybe this is why we are having unemployment problems in this country. Dumbasses like me are willing to work three jobs for half a salary

[danefan]

I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

Yes, you are correct.

But as you recognize, since this court has essentially held that an individual has a right to marry according to his or her preference, it must logically follow that a polygamist has the right to marry in accordance with his preference, and that laws outlawing polygamy are unconstitutional.

Yet (again, as you recognize), courts will not go so far. They will deny polygamsists the right to marry in accordance with their preference, and uphold laws outlawing polygamy, even though this holding would be inconsistent with the holding allowing marriage in accordance with your personal preference.

All of which establishes (again, as you recognize), that the courts are behaving as legislatures do on this issue. Which, in the end, simply proves beyond any doubt that the courts are usurping legislative authority on this issue.

Legislatures have the right to draw these types of lines based on perceptions of public policy, i.e., allowing gay marriage but oulawing polygamy. Courts do not. When they state a holding, it is equally applicable to all.

I don't know if you can carry it that far Joe. I understand the argument, but I think its pretty easy to say that because of the potential for abuse that is historically present in polygamous marriages, a State would have a rational basis in limiting marriage to be between two consenting adults. Isn't the Judge here just saying that the only reason California is preventing same-sex marriage is because of a bias towards gays? And that bias isn't a means to any legitimate end?

And as far as the legislature drawing lines, I agree to an extent. The difference I see here is that the Courts have to be able to limit the distinctions within the bounds of the Constitution. There has to be a place for the Courts somewhere to check the limits of the legislature. I'm not necesssarily sure this isn't the place for them.

[native]

As GSUalumeagle stated, it is good to see an intelligent disucssion of an important issue. And one of my favorites too although I am woefully inadequate in arguing the points. I do hope to get back to it. But I have now received my third job (all carried out at the same time) with the same company so reading long and thought ful posts just isn't possible right now.

On a different subject, maybe this is why we are having unemployment problems in this country. Dumbasses like me are willing to work three jobs for half a salary

1. You do pretty damn good, OL FU.

2. You are a hero and a patriot for working three jobs!

[native]

I agree that the polygamy argument shows inconsistencies of this ruling and the problem of using "harm" instead of constitutional intent as the appropriate measure. But his question was does it open the door, and, in my opinion, the answer is a big no.

Yes, you are correct.

But as you recognize, since this court has essentially held that an individual has a right to marry according to his or her preference, it must logically follow that a polygamist has the right to marry in accordance with his preference, and that laws outlawing polygamy are unconstitutional.

Yet (again, as you recognize), courts will not go so far. They will deny polygamsists the right to marry in accordance with their preference, and uphold laws outlawing polygamy, even though this holding would be inconsistent with the holding allowing marriage in accordance with your personal preference.

All of which establishes (again, as you recognize), that the courts are behaving as legislatures do on this issue. Which, in the end, simply proves beyond any doubt that the courts are usurping legislative authority on this issue.

Legislatures have the right to draw these types of lines based on perceptions of public policy, i.e., allowing gay marriage but oulawing polygamy. Courts do not. When they state a holding, it is equally applicable to all.

Nice analysis, Joe!

[JoltinJoe]

Yes, you are correct.

But as you recognize, since this court has essentially held that an individual has a right to marry according to his or her preference, it must logically follow that a polygamist has the right to marry in accordance with his preference, and that laws outlawing polygamy are unconstitutional.

Yet (again, as you recognize), courts will not go so far. They will deny polygamsists the right to marry in accordance with their preference, and uphold laws outlawing polygamy, even though this holding would be inconsistent with the holding allowing marriage in accordance with your personal preference.

All of which establishes (again, as you recognize), that the courts are behaving as legislatures do on this issue. Which, in the end, simply proves beyond any doubt that the courts are usurping legislative authority on this issue.

Legislatures have the right to draw these types of lines based on perceptions of public policy, i.e., allowing gay marriage but oulawing polygamy. Courts do not. When they state a holding, it is equally applicable to all.

I don't know if you can carry it that far Joe. I understand the argument, but I think its pretty easy to say that because of the potential for abuse that is historically present in polygamous marriages, a State would have a rational basis in limiting marriage to be between two consenting adults. Isn't the Judge here just saying that the only reason California is preventing same-sex marriage is because of a bias towards gays? And that bias isn't a means to any legitimate end?

And as far as the legislature drawing lines, I agree to an extent. The difference I see here is that the Courts have to be able to limit the distinctions within the bounds of the Constitution. There has to be a place for the Courts somewhere to check the limits of the legislature. I'm not necesssarily sure this isn't the place for them.

All I can say is God help us all if courts start routinely throwing out laws under claims that a law lacks a "rational basis." If that becomes common practice, judges will begin routinely substituting their individual preferences for those preferences expressed by legislatures (or in the case, a majority of voters) by casting away laws which the judges deem irrational, in their personal perceptions. That would result in a dangerous swing of power from democratically controlled processes to the judiciary. (Many would say that this has already happened).

I know that this judge "ruled" that Proposition 8 was based on bias toward gays, and purportedly built a record to support that "factual finding" in reaching the holding that the law served no rational purpose. Of course, to accuse all opponents of gay marriage of being bigots (and by inference to suggest that the majority of California voters acted out of bigotry), as this Court has done, is patently irrational in and of itself. I have little doubt that the Supreme Court will pay that "factual finding" little heed.

That the law may have been supported by some bigots is no indication of whether the law can be sustained under a rational test. This judge got it backwards. Under the rational basis test, a law is not struck down simply because it can be, or has been, supported by some irrational arguments.

Under a rational basis test, any rational basis sustains the law. Thus, if the legislature or the people, in their judgment, prefer heterosexual marriages because, again in their judgment, heterosexual unions advance the public policy of supporting a stable family unit in which children are preferably raised by a mother and a father, there is nothing irrational or unconstitutional about that choice.

Similarly, if a legislature were to sanction gay marriage because, in its judgment, gay marriage advances a public policy of promoting stable gay relationships and discouraging risky gay conduct, that's rational too. In this way, a legislature may legally discriminate in favor of gays and against polygamists.

A court has no license to discriminate as a legislature may. A court's holding that you have a right to marry in accordance with your preference (which is what the California court has done) logically opens floodgates that we would prefer to keep closed. I have little doubts that, given this holding, courts will act illogically to continue to approve laws outlawing polygamy. But this would be the necessary result of the court's creation of a "right" to marry as one chooses.

[GSUAlumniEagle]

BTW, Article III neither gives the Judiciary exclusive power to determine what the Constitution says nor does it indicate that the Supreme Court is free to substitute its own views of what Constitution should mean for an honest effort to assess what it was intended and/or understood to mean by those involved in crafting and/or ratifying it. It says "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." That is not saying the Court is to control the Constitution rather than the Constitution controlling the Court.

And when you put it in context of what The Federalist has to say about the Judiciary it is clear that what is going on now is not intended. It was supposed to be the weakest branch of government. It was not supposed to be involved in setting social policy or making law. It was supposed to reflect what was established by the other branches in INDIVIDUAL cases. It was not supposed to do things like suddenly create a "Constitutional" prohibition on prayer in public schools where none existed before and clearly does not actually exist in the Constitution.

Using that logic, there would be virtually no protection of an American citizen that his Constitutional rights would be protected. Under your strict and literal reading of the Constitution, nowhere is ANY court -- up to and including SCOTUS -- given the right to strike down any law or statute based on the fact that it violates the Constitutional right of an American citizen.

So I ask you this question: The first Amendment says that Congress shall make no law prohibiting the free exercise of religion. If I'm a Catholic, and Congress was to pass a law that says Catholicism is wrong and illegal, what can I do? The law is in clear violation of the First Amendment. But under a strict and literal reading of the Constitution, I'm given no recourse. Article Three doesn't mention anything about the Judiciary striking down laws, right?

But early on we learned that Congress would try to push the boundaries. They would try to find the line of what violates a Constitutional right and what did not. Often times these lines weren't so easy to distinguish, so someone had to be in charge of drawing the line. It's clear from the intent of Article Three that this responsibility falls upon the Judiciary. They're the only branch that isn't actively involved in creating a law, so they're the only branch that can be trusted to be fair and just in this process.

I would agree that the Judiciary perhaps has too much power. Currently, outside a Constitutional Amendment, there is no recourse should the Judiciary make completely incomprehensible decisions. SCOTUS could strike down every law today and there's very little any branch can do about it. That's why I wouldn't be opposed to giving Congress the right to reverse a SCOTUS decision with something like a 2/3 vote of both chambers. The Judiciary is the only branch that doesn't have real meaningful oversight outside of an Amendment or impeachment -- but at that point the damage would have been done.

But until that time, Judiciary Review is the only real protection I have that Congress or the State of Georgia won't just create whatever law that they want irregardless of my Constitutional rights. Without the Judiciary to ensure our rights are protected, the Constitution is really nothing more than a piece of parchment.