Gay Marriage Question (Legal)

(reposted from the OG)

The whole argument that the Californians are making is that gays are being denied their equal treatment under the law because they are supposedly being prevented from marrying the same as straight people are.

BUT, gay men have the right to marry women, the same as straight men. And gay women have the right to marry men, the same as straight women. Its not legal for straight men or women to marry people of the same sex either.

So how is it unequal treatment under the law? Seriously, could someone tell me, cause this seems really simple to me

since heteros have shown america how well marriage works, why let anyone else try it.

i just don't understand how gays have kids.


that's how the system was setup. do you think that, in 1776, they had a 100% voting rate?


(1) The Declaration of Independence really has no legal effect in U.S. government or jurisprudence. I'm not sure why thirdleg brought it up.

(2) Jason Hornbuckle raises a valid point, however, the same rule can be interpreted to mean that, since women have the right to marry men, men should be afforded the same right (to marry men). I think reasonable minds can differ on this determination.

(3) goku, I agree with you in principle, however, the Constitution needs to be there in order to assure that the majority does not oppress the minority. That's really what this dispute is about.

There are a couple ways this could be resolved:

(a)No Constituional violation found...meaning that states could determine for themselves whether gays could marry. States must give full legal effect to valid marriages entered into in another state. This will be a major issue, given that the Federal Defense of Marriage Act seems to state that this rule is ineffective for gay marriage. I imagine that this law will eventually be struck down.

(b)Gay marriage is a (Federal) Constitutionally protected right..meaning that all states must permit equal marriage rights for gays.

(c)A Constituional amendment is drafted which states that marriage is between a man and a woman. This, to me, is the worst possible outcome.

Lots of correctness in the last post.

To me, the argument that the SCOTUS has gone beyond the Constitution has never flown. Remember that the Constitution itself says that the SCOTUS is the ultimate arbiter of its meaning. You can't place the paper on a higher pedestal than the interpretation given to it by those empowered to do so.

the justices have completely liberated themselves from the text and can bascially render judgments anyway they see fit without any coherent rhyme or reason... This is also not true. Without question, the SCOTUS has rendered bad decisions and has used bad reasoning, but you are contending that they are utterly arbitrary and that their decisions are governed by nothing more than whim. This is not correct. There would be massive public unrest if it were true.

But, again, the Constitution itself anticipates that individuals will be called on to interpret the law, including the Constitution itself. You can't state that the language of the Constitution is absolute without including that language.

The Constitution was written to be a living document.

"ut i just fear the day the justice's politics render a decision that we do not like or is detrmiental to society"

If the Constitution only defended things that we "like", we wouldn't need it.

(1) Yes, it does defend the things we like. However, it must also protect unpopular things, or else the democratic process would be sufficient, and there would be no need to have a Constitution.

(2) You appear to be confusing powers and rights, or using them interchangeably. This is not correct. The Constitution states that those POWERS not reserved to the Fed are granted to the states and the people. However, no one, not the Fed, the states or the people may eliminate a RIGHT. Rights are limitations on powers.

(3) The nine justices are empowered by the Constitution to issue the final interpretation of the laws of this country, including the Constitution itself. Constituional purists commonly (and conveniently) ignore this part of the Constitution.

I find it ironic that you are accusing me of getting so caught up in the language that I miss the point, when that is exactly what you are suggesting the Supreme Court should do.

In answer to the "separate but equal" issue, this is exactly what I mean by the Constitution as a living document. The Constitution is designed to be interpreted by men. As you suggest, these men are fallible. However, the system is set up to try to get the most qualified people into that position...much like the rest of our governmental system.

Your third paragraph, although phrased to be pejorative, is exactly counter to the way the framers drafted the Constitution. It IS meant to limit the powers of the government (majority rule), and it is meant to do so in the manner established by the justices.

To continue the semantic portion of our debate, you are incorrect that a right can be a power and vice versa. Powers are held by the government, rights by the people. An example of a "right", just to be as offensive to your sensibilities as possible, is the right to privacy, which is present in the "penumbras and emanations" of the Constitution. The government cannot make a law (regardless of the power used) that impinges on this right.

When you ask whether these rights are "inherent", what do you mean? They are present in the Constitution. Obviously, the rights are not absolute, they are drafted broadly, and subject to interpretation, as intended by the framers. Also as intended by the framers, the interpretation to which they are subject is that of the justices of the Supreme Court.


The obvious answer to your first question is "Roe v. Wade". That, of course, is begging the question. (Please note that I have used this phrase appropriately here.) Again, the Constitution itself anticipates that (1) there are rights not explicitly included which are reserved and (2) the SCOTUS is empowered to interpret those rights. This seems crystal clear, and dispositive of our issue.

The "crafty lawyer" comment is interesting, but note that our adversarial system ensures that each side will have a crafty, preferably Jewish, advocate using all of their legal tricks and wiles to convince the judges of their side.

As for the judges themselves, well, you said yourself that the system is the way it is, regardless of whether you like it or not. Judges are appointed through what I consider an extension of the democratic process (elected representatives invovled at all stages).

This statement: "the role of the judiciary is one of limited power to interpret the laws and policies CREATED by the people vs. congress." is true BUT it leaves out the last three words: "AND THE CONSTITUTION". This is the crux of our argument. In some ways, the Judiciary is superior to Congress, in that laws enacted by Congree may be stricken if they violate the COnstitution. This is an intentional and necessary part of the checks and balances inherent in our system of government. The will of the people is NOT superior to the Constitution. Justices are not only not required to leave certain decisions up to the people, but they are required to take those decisions away when warranted by the Constitution.

I understand your hostility towards the seeming appointment of Judges as Philosopher Kings that seems inherent in this, but remember again the appointment process. These justices are vetted more than any other position in our system. We can only hope that the system works and the right people are appointed.

You seem to have a fundamental misunderstanding of the court's role.

Your hypothetical situation would require a lot before it ever got to that stage. Lets take a walk through the life of a Supreme Court issue, shall we?

First, in order to make it to the Federal courts, there must be a "case or controversy". This means that the courts (including the SCOTUS) will not decide hypothetical situations (with certain, very limited exceptions not germane here). The upshot of this is that Congress, or a state, would need to act in a manner that brought this issue forward.

To use your example, there would need to be a law passed, through the democratic process of which you are so fond, that permitted all prisoners to be killed and harvested for organs. Once this law was passed, someone with an interest in the law (presumably, someone who was about to be killed and harvested) would need to challenge the Constitutionality of the statute. I can think of many stronger challenges than the commerce clause, but so be it.

The case would go to a lower level court first. Assuming it made it to the SCOTUS (remember-the SCOTUS has discretion on which cases it hears), and a majority of nine justices agreed on the Constitutionality of the statute, it would stand. The SCOTUS is the ultimate arbiter, after all.

But look at all the checks on their power which appear in this situation: (1) The Democratic process acts first. The law has to exist before the SCOTUS can act. (2) The lower courts act as well, weighing in on the situation. It has to get appealed at least twice to get to the SCOTUS, and must be approved for that last level of appeal. (3) The vetting of the justices acts as a check. Remember, these individuals go through a grueling appointment process. They are not installed like kings, they are put there for merit.

In short, you seem to think that the SCOTUS makes laws. It doesn't. Congress does. The SCOTUS tells Congress what laws it may and may not make. THis appears to be your misunderstanding.

I don't think you've put anything to rest. You haven't addressed the point of my previous post.

However, to continue your game, prisoner harvesting as the norm would still represent state action. The judicial power here doesn't require a check, it IS the check, just as it was with Congress in the previous example. To put it another way, it would not be judicial power creating the problem. The democratic process could act to prevent these untoward actions towards prisoners (by passing a law which prohibited such action, or by taking out of office officials who perpetuated such actions.) The role the Court would serve would be to determine if the actions ALREADY BEING TAKEN by the state violated the Constitution.

Again, I think I need to state that the Constitution does not determine what is legal. It determines what is Constitutional. There is a very important distinction.

On to your specific question:

You seem to have a problem with the SCOTUS having the last word. To be blunt, someone has to. The ultimate checks on the justices are the other justices. Your parade of horribles notwithstanding, the system is set up to prevent one justice from interpreting "anything he wants" into the COnstitution or the law. Also, I should point out that the Constitution DOES provide for impeachment of the justices.

lol this kicks butt

"I simply do not believe these checks are effective in any way shape or form"

Then you disagree with the framers. This, of course, is fine, but you have pointed to them in the past, so I thought it appropriate to point out that your ideal system of government is deifferent than the one they created.

You seem to be stuck that something must be explicitly in the Constitution to be protected by the Constitution. This simply does not make sense. It is belied by both practical analysis, and by the language of the Constitution itself (See Amendment IX, which, incidentally, was a big part of the Roe v. Wade analysis). Before I go any further with this, I should point out that I am pro-life. However, whether I think something was "wrongly" decided has no more bearing on the law than the opinion of someone who thinks that Gore won the election.

Again, I feel it necessary to point out that the SCOTUS is a check on the democratic process, not the other way around. That is the way the system is designed. If you wish to argue the philosophy of government, and feel that your construct is a better way of running a country, I think you've made a fairly good case. However, it is disingenuous to point to the framers for authority in disparaging the very system they designed.

"I need an explanation of WHY they were right"

To boil it down as simply as possible, they were right because the Constitution says they were.

"this check has some basis in the rule of law, as opposed to yours which is solely grounded on what the justice personally feels is "right". "

No, it is based on what the justices feel is in the law. Granted, they bring their personal beliefs into the interpretation of the law, but I feel that is appropriate. It is also why multiple judges are involved in each decision.

Whether framers had specific interpretations in mind when they drafted the Constitution is, IMO, far less important than the fact that they had a specific PROCESS in mind. That process is followed when the SCOTUS makes a decision based on its interpretation of the Constitution.