How Astute of You to Notice that, California Supreme Court
Value Judgments are for Voters, Hmmkay?
By Leon H Wolf Posted in Culture | Judicial Activism — Comments (345) / Email this page » / Leave a comment »
I spent a little time last night reading the California Supreme Court's opinion (.pdf) in the gay marriage case. To be honest, I didn't make it all the way through (it's quite lengthy - 172 pages, in fact), primarily because I found the money shot relatively early on. You see, one of the arguments raised by the State was, "Look, Supreme Court, the way the law is set up here in California, gay couples already get all the civil benefits of marriage. Literally the only thing they are denied is the right to use the word 'married.' Therefore, there's absolutely no potential harm that comes to gay people based on the way the law is set up." This argument elicited the following response from the court:
Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.
More below...
And now at last we see the argument laid bare. For all the high-minded talk about constitutional rights, what informs the Court's decision is a value judgment that all sexual choices are equal. This is, of course, what motivates all activists on this issue, since it is logically and legally nonsensical to insist upon "equal rights" when the defining thing that separates one class of persons from another is not some innate visual characteristic but rather a behavior. All people are equal under the law. This is the meaning of the phrase "equal rights." No serious person argues that all actions are equal under the law - and even if they did, this would not be called "equal rights." It would be called instead "anarchy."
It is often argued (although never proven) that there is a biological basis for homosexuality. For a moment, I will concede the point. Those who argue along this line generally also accept that there are biological bases for alcoholism, drug addiction, and a whole host of other behavioral tendencies. This does not lead to the conclusion under the rubric of "equal rights" that the alcoholic and drug addict may not be held accountable for the fruits of their biologically-based addiction. This illustrates with clarity that "equal rights" is not the driving force behind the gay marriage movement; it is instead a desire to impose the value judgment that homosexual sexual activity is a value-neutral choice, akin to the choice between Pepsi and Coke (all sane people will of course choose Coke, but that is beside the point).
Of course, the decision as to whether this is a value-neutral choice is inherently a value judgment, not a legal one. In other words, it is for the voters to decide this question, not the courts. Inevitably, some earnest person will respond, "Yes, but Leon, what if the voters of your state outlawed Coke? Shouldn't the Court step in?" Of course, the very laughability of the question illustrates the breathtaking arrogance of the California Supreme Court. One simply couldn't imagine any realistic scenario in which the majority of voters in a given state outlawed Coca-Cola; it is positively outside the bounds of plausibility. And yet, voters across the country (and indeed in the State of California, whose laws the California Supreme Court claims to follow) have, by overwhelming margins, gone to polls and made value judgments that homosexual relationships are not, in fact, entitled to the same stature as the institution of marriage, which has stood for millenia of human history as an institution involving man and woman.
Four Justices of the California Supreme Court disagree with this value judgment, and because they are allegedly brilliant lawyers, the value judgments of millions of Californian voters are swept aside with the carelessness of a pen stroke. California no longer lives under the rule of law - it lives under the rule of lawyers. And the California Supreme Court understands what it is doing - it is attempting to force the hoi polloi of California to adopt their enlightened standards concerning the value of homosexual sex, despite the fact that less than five years ago, those "enlightened standards" were rejected by large margins. It is at least refreshing that they had the stones to flat-out declare that the judgments of the voters must be rejected as unenlightened because it has forced us as a citizenry once again to increase our resolve that we will use whatever means are necessary to prevent men and women who possess this level of arrogance and disrespect for the law from taking the bench - especially in our nation's Supreme Court.
Thanks for the reminder, California Supreme Court. We needed it.
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Proudly supporting John S. McCain for President (McCain/Romney?)
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
And the Lord upon the Golden Horn is laughing in the sun.
Even if you're in favor of gay marriage (and, while I can't call myself a supporter, I think it's a stupid issue to go to the mat over), this is the WRONG way to do it.
Every time in US history that the court has taken it upon itself to enforce a change in attitude on the nation, the result has been a disaster. Slavery, school bussing, abortion, even when it's the right thing to do, you can't just expect that nine learned men and women can decree that we will all love and respect one another BECAUSE IT'S THE LAW, and expect anything other than a backlash.
I just really, REALLY hope that this doesn't become a central issue in this election. There's much more important things to worry about (and that's coming from an expert worrier; my family comes from Italy).
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"You can't save the Earth unless you're willing to make other people sacrifice" - Scott Adams (speaking through Dogbert)
Gay marriage did pass through the legislature. The governor vetoed it, deferring the issue to the courts.
He's just a girly man. He should have vetoed it because it was wrong, period.
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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater
He said yesterday that he would support the court's decision.
And that's the kind of man he is. He wanted to take a swing at marriage, but passed the buck to his fellow leftists on the Supreme Court.
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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater
He's always been so.
I thought the Supreme Court in CA was primarily Republican appointed?
True, only 1 of the seven judges was appointed by a Democrat (By Gray Davis) 2 of the 3 judges appointed by Pete Wilson favored the majority (including the chief justice) 1 of the 2 Judges appointed by George Deukmejian voted with the majority, and Schwarzenegger's lone appointee was among the dissenters.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/05/15/BA3G10N325.D...
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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater
Judges need to be held accountable. It's obvious that voting for Republican governors here in the Golden State has not protected us from having liberal, pro-gay judges on the State Supreme Court.
Perhaps we need a ballot initiative to make bad judges more easily recalled.
Proudly supporting John S. McCain for President (McCain/Romney?)
The dems in Sacramento knew that Arnold was running for re-election in 2006 and that he has gay friends from his Hollywood days.
Which is precisely why they approved the SSM measure for Arnold that they wouldn't approve when it was one of their own (Grey Davis) in the gov's mansion.
Arnold did the right thing for the wrong reason. He should have vetoed the measure because it is wrong for the state to encourage unhealthy lifestyles by condoning SSM, not because "the courts" are the proper venue for determining the issue.
This idea of deferring all important social issues to the courts is the #1 problem in America today. If we're going to give judges more power than elected officials, let's force judges to run for re-election every 2-4 years. Then they can be held accountable just like legislators and other elected officials.
Proudly supporting John S. McCain for President (McCain/Romney?)
I'm against gay marriage and I'd put money on the argument that gay marriage will still be illegal in at least 30 states in 15 years.
The only thing that can force Alabama, Utah, Texas, Arkansas, Ohio, Michigan, West Virginia, and Mississippi to start solemnizing gay unions is a couple more liberal judges on the U.S. Supreme Court. As long as liberal Democrats keep pushing gay marriage on the rest of us, the issue will remain alive.
Proudly supporting John S. McCain for President (McCain/Romney?)
Instead it is based on a strict constructionist approach to the Californina Constitution. I could try to explain myself, but this Blog post from Prof Arthur Leonard is much more detailed and eloquent than I could ever be.
http://newyorklawschool.typepad.com/leonardlink/2008/05/california-supr....
The court used Perez vs Sharp as a precident which stuck down the interracial marriage ban in California from the 1940s.
If Californians want to make same-sex marriage explicitly illegal, they have that chance by amending their constitution.
Just because the court can't tell the difference between an innate characteristic and a behavior doesn't mean that the difference doesn't exist.
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You are insistent that homosexuality is a behavior and not an innate characteristic. I don't think we are going to change each other's minds on that issue.
However, I think we may be able to eventually agree that the voters of California have an opportunity to define marriage in their constitution if they wish. I don't think it will happen, but I don't live in California and I defend their right to try.
Just the same as I didn't say any such thing about alcoholism or drug addiction. I granted that it might have a biological basis.
What I contend, and what is actually beyond question, is that homosexual sex is a behavior, just like drinking is a behavior and taking drugs is a behavior. You argue against this proposition at the risk (certainty) of beclowning yourself.
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Is heterosexual sex a behavior?
If the answer is no, I would *LOVE* to hear the explanation why.
Man is free at the moment he wishes to be. --Voltaire
Now I would love to hear the point you're attempting to make here.
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The statement "homosexual sex is a behavior" is true, but uninteresting.
Man is free at the moment he wishes to be. --Voltaire
constrained to repeat even uninteresting facts, and repeat them strenuously in the face of more interesting falsehoods.
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And the Lord upon the Golden Horn is laughing in the sun.
"Lawrence v. Texas was decided correctly"?
"The State has the right to 50% of the net worth of a dead homosexual in a life partnership despite a will giving everything to his partner"?
"Griswold v. Connecticut does not infringe on society's right to sustainability"?
Man is free at the moment he wishes to be. --Voltaire
that a man may marry another man, or a woman another woman. No matter what out judicial oligarchs say, it is a falsehood.
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And the Lord upon the Golden Horn is laughing in the sun.
I don't see how this is self-evidently true.
Man is free at the moment he wishes to be. --Voltaire
All people are equal before the law. All behaviors are not. This observation undermines the entirety of the court's opinion.
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Or is it about two dudes sharing some measure of civic protection?
While I am lucky enough to be able to tell this joke, Rodney Dangerfield, rest his soul, said something about not assuming sexual relations are part of a marriage. It was funny, I recall. Probably the delivery, now that I think about it.
Man is free at the moment he wishes to be. --Voltaire
As I gather the movie "I Now Pronounce you Chuck and Larry" (or whatever it was called; I didn't see it) was intended to show, "two dudes sharing some measure of civic protection" is not, in fact, what the push for gay marriage is all about. No one is agitating for the idea that a guy should be able to carry his male best friend on his health insurance. The entire point is the attempt to force the public to bless a sexual relationship between two men, and to elevate that relationship into equal standing in society as that of a marriage.
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As I understand it, doesn't say "society must bless sex between two guys!" but merely "you know what, it's none of society's business".
Marriage, as far as society is concerned, is nothing more than a handful of privileges extended.
Tax breaks (in some cases). Inheritance rights. Hospital visitation.
Society doesn't have the competence to give, or take away, much more than that.
Individuals, of course, can offer their approval or disapproval...
But we're back to Loving v. Virginia and the echoes found in the counter-arguments again.
Man is free at the moment he wishes to be. --Voltaire
said is that the people of Texas, acting through their duly-elected representatives, are not capable of governing themselves. They must be lead by their betters.
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And the Lord upon the Golden Horn is laughing in the sun.
and today's opinion. You are correct that Lawrence did not say that society must bless a sexual union between two guys - today's opinion did.
Quite properly, Lawrence also did not say that it's none of society's business, as there are many alleged constitutional (generally court-created) "rights" that are properly the subject of a great deal of regulation. But we're wandering afield.
But we're back to Loving v. Virginia and the echoes found in the counter-arguments again.
We're back to disregarding the difference between states of being and behaviors again? I thought we had moved past that.
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I'm not comparing being gay to being black.
I am, however, comparing counter arguments to gay marriage to counter arguments to "interracial" marriage.
And there *ARE* echoes.
Man is free at the moment he wishes to be. --Voltaire
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is a state of being. But falling in love with someone of a different race is a behavior. Nobody NEEDS to marry someone of a different race. People make that choice, though, presumably in the pursuit of happiness.
What a concept.
What you say about marriage is incredibly small-viewed.
Society views marriage in VASTLY larger, more significant, and more nuanced than you suggest.
is nothing more than a handful of privileges extended.
Baloney. And I don't mean fried Oscar Meyer baloney dipped in mayo. That's a delicacy in the parts I hail from. I just mean stinking store-brand baloney unfit to serve my dog.
Unfair. Unbalanced. Unmedicated. -- IMAO
"Society views marriage in VASTLY larger, more significant, and more nuanced than you suggest."
I'm not certain that's true, looking at the numbers.
Looking at the numbers, it seems that the rates of divorce within the church are the same as without.
It seems to me that society sees Marriage as divorced from its procreative functions, divorced from its unitive functions, and is a handful of civic protections given to people who like sleeping together but merely haven't divorced yet.
Man is free at the moment he wishes to be. --Voltaire
You said 'no more significant than a handful of privileges extended'. I said no, it's HIGHLY significant. Now you are saying 'hey look at the divorce rate' in church people.
Nah. Not flying dude. Why then do we have large, expensive ceremonies then, for an insignificant exchange of privileges? Why then do about 50% of married couples NEVER divorce?
That last paragraph has nothing whatsoever with what I said.
Unfair. Unbalanced. Unmedicated. -- IMAO
There are two things that people mean when they say "marriage".
The first is "Marriage In The Eyes Of God" (henceforth "MEG").
The second is "Marriage In The Eyes Of The State" (henceforth "MES").
MEG is what many people talk about when they talk about "Defending Marriage". Generally, when they make a mention of marriage at all, they're talking about MEG.
The State, however, doesn't have the competence to deal with MEG. All it is capable of dealing with is MES.
What MES is, is a handful of civil protections. Inheritance rights, hospital visitation rights, lawyer stuff, manilla envelope stuff.
Now, it is very possible for a couple of guys to go to a Unitarian Church and have a ceremony in the basement and proclaim, henceforth, that they have a MEG. Of course, there are a handful of people that explain that they do not, in fact, have a MEG.
Which brings us to MES. When enough people get together to explain that these two people do not, in fact, have a MEG, they pass laws explaining that a MES should be denied them as well.
As such, any discussion of Marriage jumps back and forth between MEGs and MESes.
I have both a MEG and a MES.
There are homosexuals out there who have a MEG as well. I, personally, think that they are entitled to a MES. I know of a great many heterosexual couples who had MESes but nothing even close to a MEG.
I also think that denying MESes to people who have MEGs is exactly what is going on with Loving v Virginia.
And it was wrong.
And what is going on now is wrong too.
(exhale)
Man is free at the moment he wishes to be. --Voltaire
Bird, that's an interesting essay, that I would agree certainly with portions of, not so much in toto. But completely not responsive to what we are arguing over.
You said marriage, in a societal sense, was an insignificant swapping of a few privileges. I said NO, highly significant societally. Nothing you've said in two reaponses seems to attack that point -- while meanwhile I've buttressed it by pointing out that (1) people spend tons of money on extravagant ceremonies to inaugurate these "insignificant swapping of privileges", and (2) 50% of people who get married never divorce.
I'll add to it. In a societal sense, it is considered "cheating" to share some of those privileges with someone other than the one who married.
I repeat: highly significant in a societal sense. Either surrender, or drop the argument, or give me SOMETHING to refute it, but PLEASE do not run on and on matters not germane to the argument.
Unfair. Unbalanced. Unmedicated. -- IMAO
"You said marriage, in a societal sense, was an insignificant swapping of a few privileges."
Allow me to rephrase, then.
The only thing that society has the ability to do is extend or withhold privileges. If two people are married in the Eyes of God, there is *NOTHING* that society could possibly do to make them be unmarried. Moreover, any attempt to make two people married in the Eyes of God be unmarried (see Loving v. Virginia) is deeply, deeply immoral.
As for your argument that: "(1) people spend tons of money on extravagant ceremonies to inaugurate these "insignificant swapping of privileges"", I will point out that this is due to the cheapening of marriage as a whole.
Once upon a time, two teenagers could go find themselves a boat captain, hold a small ceremony... and change their lives forever. Until Death.
Now... well, there's a 50% shot that you'll get divorced. How to communicate that your marriage is a big deal? Well... you can throw a big party! You can invite a million friends! You can have 14 bridesmaids! I have an acquaintance whose older sister got married. The planning for the wedding took longer than the marriage ended up lasting.
Why is this? I argue it's not because marriage is considered such a big deal by society. It's because people think that they ought to consider it a big deal, but don't know how to communicate that... and throwing a big party is a lot easier than changing one's life.
Once upon a time, two teenagers could go find a ship captain and change their lives.
"50% of people who get married never divorce."
Do these people want a medal? That's what marriage is supposed to do. I think that we need to argue that marriage is something for two people to do and do forever. It's important. Until death. Don't do it lightly.
I think that gay people are more than capable of entering into such a covenant.
I'd like to hear an argument as to why they cannot that does not rely on special knowledge of the Mind of God.
Man is free at the moment he wishes to be. --Voltaire
"What MES is, is a handful of civil protections. Inheritance rights, hospital visitation rights, lawyer stuff, manila envelope stuff."
Your right we as a society have extended certain privileges to protect and strengthen the traditional families within our society. What you and others want to do is redefine what constitutes a traditional family. Can you not see the Pandora’s Box that will be opened once the traditional family unit is redefined to be inclusive of homosexuals? All other forms and types of families will solicit the government for the same rights to be extended to them, and it want stop there, all types of sexual orientations will as well. It makes no sense to me how you can not see the societal damage that all of this will lead too. Look at the backlash that this has already caused in our society, and you think you have the solution that will remedy it. Your solution will only make it more complex, which in turn will lead to the need for more government solutions. I’m sorry you feel these people are being deprived of something that you think they have a right too, but they knew it when they entered into the relationship.
I'll ask you how your argument does not apply to that.
Then I'll ask you why I should see an argument that applies fully well to Loving v. Virginia being wrong as particularly persuasive.
Man is free at the moment he wishes to be. --Voltaire
in the California constitution.
bird, you don't like this answer, but this is the answer.
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
Homosexual acts between consenting adults are already legal, so aren't we dealing exclusively with the people?
Last time I checked, homosexual sex, in and of itself, didn't carry with it the problems the other possible genetic predisposition behaviors you mentioned carry.
Membership in a religion is also a behavior, protected as a suspect classification, despite the fact it is not an immutable characteristic, and certainly without biological component.
Interesting to note the legislature of California has voted twice since the referendum to legalize gay marriage. It's not as if this happened in Nebraska.
Still, points to team red. One wonders what our good blue collar white voters in the rustbelt and south will make of this, and how Obama will handle it. Sigh.
but homosexuality is an innate characteristic. Also by comparing homosexual sex to alcohol or drug abuse, you are making clear that you oppose same sex marriage on a moral and not legal basis. The California constitution requires that the state have a compelling reason (strict scrutiny) for denying marriage rights to same sex couples. That's the same criteria used in the Perez case. The court was following the law as written in the California Constitution and the precedent of Perez.
you are making clear that you oppose same sex marriage on a moral... basis
More or less the point of the entire post, shooflyguy68. Nice of you to finally catch on.
The California constitution requires that the state have a compelling reason (strict scrutiny) for denying marriage rights to same sex couples.
I read the poorly-reasoned opinion as well.
That's the same criteria used in the Perez case.
I have already explained twice why the ruling in Perez was inapposite and easily distinguished on the fact (ditto Loving). I won't waste my time doing it again.
The court was following the law as written in the California Constitution and the precedent of Perez.
I have also already explained twice why this is malarkey. Or rather, it is false unless you accept the premise that the Supreme Court was "following the precedent" of Griswold when it decided Roe v. Wade. In which case, we are simply never going to see eye to eye because you are apparently of the belief that lawyers should be able to make law, as long as they have made a previous law that is within spitting distance of the one they are currently making.
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individuals do. that the Supreme Court conflated the two without batting an eye is striking and starts us down the path towards group rights.
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Power Wolves Beset Your Door, Hear Them Stalking.
Those who argue that society has the right to deny marriage to couples who they don't think ought to be married.
Man is free at the moment he wishes to be. --Voltaire
We do live in the US of A, right? I thought corporations already had rights here - we're so far down the path of group rights that many people consider it a bit crazy to suggest that corporations deserve very few and very limited rights.
When I hear arguments against gay marriage, I am reminded of the arguments against (pardon the vile term) "interracial" marriage.
This is, of course, not saying that being gay is anything like being black.
But the arguments given against both are familiar to the point where... well. I'm repeating myself.
Society is more resilient than you think, Leon.
The vile, immoral things going on in society may not be the things you think they are.
Man is free at the moment he wishes to be. --Voltaire
"impose appreciable harm on same-sex couples and their children." Uh, last time I checked, homosexuals are incapable of procreating, which is how families are created. Did they really think through what they wrote?
Now, you could argue that with modern technology anything is possible, however, because this is a choice they make, not a right, then we must deny "such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples."
They are purely not operating at the same level as heterosexuals.
books. Homosexuals are not incapable of procreation. While it's true that homosexual couples cannot create a baby that is a genetic offspring of both of them. However, they can adopt, they can have a baby from a previous heterosexual union or they can have children through a surrogate or IVF process. Gay folks have children.
You just lectured someone to consult 5th grade biology for the proposition that adopting a child and/or having a child from a previous union constitues "procreation," and I don't respond to clowns.
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See my response to Dan below. I was simply supplying a sarcastic answer to what seemed to me a purposefully ignorant post. Of course homosexual couples cannot procreate. However, they can have children (in several different ways as I noted) and they raise children.
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I assumed he meant that homosexuals could not have or raise children. I think we all know that homosexual couples cannot procreate but then, neither can senior citizens who get married nor can some young heterosexual couples in which one or both parties are infertile.
which is rather a significant distinction, if one starts from the premise that the public interest in marriage is mainly - not exclusively, but mainly - about its role in bearing, begetting and raising the next generation.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
and I tried to make that clear in my snarky post above. However, in my defense, El Hombre either misread or purposefully mischaracterized the court's comment about the children of homosexuals. Homosexuals do have children. And since they do, I think that including them in this traditional child-friendly, government protected institution is a good idea.
It doesn't matter if they have children or not. Because they are not able to genetically create their own children, they are not equal to heterosexual unions/marriage. Now if you want to say that marriage is only the government's blessing of your sexual choice, then I guess I'm wrong and apologize.
My Grandmother was unable to get pregnant for many years. Doctors told her that it was not possible. She ended up adopting my Mother. Now my question is should my Grandparents marriage license be torn up since she was not genetically able to create her own children?
If the argument for marriage is based strictly on whether someone is able to create a child, it would only seem fair that those who can't would be treated the same as homosexuals. That would include those with genetic defects or over the age of being able to procreate.
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Is that $60 piece of paper I got from the State of Colorado "allowing me" to get married. Yep, my marriage would be for nothing if it weren't for the government. Thank God government was there with me - in the church, before God, in the presence of my friends and all my family.
I just wouldn't have felt like I was really "married" without that piece of paper.
Okay, (removes tongue from cheek) why don't we agree that the government (at any level) has absolutely no business involving itself in the institution of marriage? Marriage is a religious ritual. It is significant (to me) because, before God and in the presence of my family and friends I swore to love, honor and cherish my wife. Amen.
All the other implications of "marriage" from the state's point of view are simply questions of bad policy, arising from generations of governments involving themselves in things which are none of their d@mn business. Examples: inheritance, tax policy, heath care benefits etc.
I can live with a woman, love, honor and cherish a woman - have children with a woman - all without being "married." I can also get heath care for my non-spouse, leave my worldly posessions to my non-spouse, my non-spouse can legally change her name to match mine etc etc. If none of THOSE things are any of the state's business (which they apparently aren't since they are all legal) then why, suddenly, do I need a license to enter a CHURCH and add the word: "married" to this arrangement?
It's absurd. And, frankly, so are the arguments from so many so-called conservatives that the government should not be forcing moral judgements on its citizens - unless it's the moral judgement that I like.
Wonder why our party is losing seats in Congress and has a high probability of losing the white house as well? You are looking at it.
If two homosexuals want to call themselves "married." Fine. I don't care. Doesn't affect my marriage or life in the slightest. Neither does your bad marriage, or anyone elses (since 50% of them end in divorce anyway.) I know my church will not "marry" two homosexuals, they aren't "married" in my eyes and beyond that I don't care.
If homosexuality is a choice that you don't agree with and find repugnant - then you and I are on the same page. However, you are projecting harm on yourself from the actions of others that simply doesn't exist.
Go get a job with the EPA, I hear they are trying to blame possible future polar bear deaths on cow-flatulence.
OBTW - life long Republican. Small govermnment, Jeffersonian Republican. Will some of you please switch sides so we can get the party back on track?
Government is best that governs least...
why don't we agree that the government (at any level) has absolutely no business involving itself in the institution of marriage?
We cannot agree on that, because it is implausible in the extreme that government of the size and scope that we have, could ever disentangle itself from so public an institution as marriage.
Wonder why our party is losing seats in Congress and has a high probability of losing the white house as well? You are looking at it.
Total nonsense. Few legislative actions have been more popular over the past five years or so than gay marriage bans. They have carried overwhelming support in the South, Midwest and Southwest, and strong majority support in such bastions of Conservatism as Oregon and California.
government should not be forcing moral judgements on its citizens
Again, it is utopian folly to imagine that government so large and extensive as the modern nation-state can stay out of moral judgments. It is hardly possible to write a law that does not impose moral judgments.
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And the Lord upon the Golden Horn is laughing in the sun.
Previous generations of Americans have changed the world - but apparently, attempting to hold our government accountable to the limited government principles the founders intended is just "too hard" isn't it?
Well, the party of "it's too hard" begins with a "D" and they are accepting applications.
The going in position for a conservative, when asked "should the government fix this 'problem' should not be: 'no'"
It should be: "HELL NO."
Few legislative actions have solved a bigger non-problem than these. Again, explain to me how you have been harmed by 2 homosexuals being married? They have been married in Massachusetts for a couple years now.
Please - explain to me how you were harmed and your rights violated. Then you can convince me that the government has a compelling interest.
Government is best that governs least...
will bring enforcement actions to make insurance companies, employers, organizations etc. recognize same sex spousal partners... oooo I think so. The day government allows me, my company, my neighborhood and my grocery store to refuse to serve gays because their gay...is the day they can have legal status as married individuals. Until then your smoking some serious crazy if you think a decision like this somehow creates an environment with "less" government intervention.
Again, my basic argument was that government has no business in marriage - period. The only arguments anyone ever presents as to why government should involve itself in marriage are - as I previously mentioned - simply examples of bad government policy, and none are a good excuse for the government's involvement in marriage.
Rattling off a list of bad government policies isn't going to change my mind. Sorry.
Government is best that governs least...
When you ask for the legal definition of marriage to be changed from the current state you are calling for more government intervention -- not less -- Doesn't sound particularly libertarian to me.
First of all, even atheists get married. By a Justice of the Peace.
Secondly, it's possible for a couple to marry, even if one or the other is a member of a church that bans marriage outside that religion.
Thirdly, if the State didn't help define rules for inheritance, property settlement, etc., what does society do to adjudicate disputes between people of different religions?
"Thirdly, if the State didn't help define rules for inheritance, property settlement, etc., what does society do to adjudicate disputes between people of different religions?"
They do have rules - it's called a "last will and testament" which last I checked had nothing to do with marriage. Single people have these as well (so I'm told.)
Second - my wife and I are from different religions. If the Catholic church had not agreed to marry us (and they have a variety of reasons for not doing so) - then we would have been married in the Baptist church. If both churches refused - then I would have found a new church. That's just as stupid as my church refusing to perform a bi-racial marriage, I wouldn't stand for that.
Finally, yes athiests get "married" by a JOP, but they aren't "married" in my eyes either. The state has sanctioned the union but it doesn't make it a marriage. I'm not disparaging them - I'm sure they love and care for each other just as much as I love and care for my wife, but it's not a marriage anymore than a homosexual marriage is. Sorry. I already told you that marriage is a promise made to your spouse and God (IMO.) If you don't believe in God, then you have yourself a civil union which is just a promise to your significant other.
If people choose to be athiest - I don't care. If atheists choose to "marry" by the JOP I also don't care. Neither of these things harms me or my marriage in any way.
Ergo, they are not the providence of the government at any level.
Government is best that governs least...
"Finally, yes athiests get "married" by a JOP, but they aren't "married" in my eyes either."
As an atheist married by a JOP, I'll ask you to please look up what Cheney said to Pat Lehey on the Senate Floor in 2004.
Man is free at the moment he wishes to be. --Voltaire
Well, sorry you feel that way. Actually, not. I really could care less.
I believe "marriage" is an religious ritual. I don't remember saying (or even alluding) that your relationship is any different, or somehow inferior to mine - other than the use of the word "marriage".
However, I'm not going to consider you baptized if a JOP dunks you under water either.
Government is best that governs least...
If you two are going to go at each other's necks, take it off here. We don't need this threadjack.
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I'm going to ditto what birdmojo said.
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First of all, since when does a 'small govt, Jeffersonian Republican' support judicial activism? We always hear this from people like John Danforth when they are telling us how the evil Religious Right has destroyed the GOP. They tell us that they want to get the GOP back to what it used to be, and in doing so they always put the blame for the divisisve Culture Wars on social conservatives, never on those who really deserve it; i.e. the Left and the Courts.
But anyway, how does having a few judges hijack and set social policy fit in with small govt? How does a 'Jeffersonian' person support the very type of judicial supremacy that Thomas Jefferson feared and warned us was to come?
How is someone who rails against the 'govt forcing moral judgments' okay with the judicial branch doing it? I mean, which is a worse imposition of values; when the people and/or their elected legislatures enact a definition of marriage that reflects the values of most in the society, or when a just few judges substitute their will for sound judgment?
The bottom line is that there is absolutely no Constitutional right for homosexuals to have their relationships recognized by the state. The decision of society to grant public recognition to traditional marriage may or may not be a good thing, but doing so in no way compels the state to do the same (or similar) for homosexuals. Therefore, the courts should play no role whatsoever in setting policy.
You want to end the national Culture War as it relates to federal elections? Then you should support reigning in our black-robed masters.
If the government had never involved itself in marriage to begin with - there would be no reason to have this discussion.
I don't support judicial activism, and I don't remember saying that in my post.
Here's a better question - do you believe the government should recognize your baptism? Should you have to pay $60 to get a baptism license? If you lose your faith and decide to leave the church - or join another - should you have to go before a judge and explain why?
And, since I'm rapidly becoming a pariah here - I'll ask again: can any of you explain how some stranger's marriage has negatively impacted yours? Can any of you explain how the homosexuals who have become "married" in Taxachussets have impacted your marriage?
Show me real harm - some way in which your natural/ God-given/ Constitutionally protected rights have been infringed by a homosexual marriage (or a heterosexual marriage) and then I'll acknowledge that the government has a role here.
Until then I guess you'll just have to be p.o.'d at me.
Government is best that governs least...
The first point is that California has already provided a parallel relational structure for two people who want to have a committed relationship, called domestic partnership. And in creating domestic partnership, the state has given equal treatment in terms of legal rights that it gives to marriage.
The only difference is that one is called domestic partnership and the other is called marriage. What the court has done is to go beyond legal equality of rights and state that a certain value system must be imposed on the citizens of the state by judicial edict against an election process. It's values because of the language of "dignity" and "their relationship not being valued equally" and the only way to remedy this is to force the state to title domestic partnerships as marriage.
The slippery slope is the set of emanations and penumbras that ensue once the judiciary has apporinted itself as the governmental agent that alone can define subjective values such as dignity and respect detached from the legislative process (except the one-way logic of relying on favorable statues [such as established domestic partnership] as the foundation for defining the societal values and thereby creating a constitutional right for these values while denying any validity to statutes that express a opposite societal value, one which that the court disagrees with.)
Having set up the state as the arbitrer and defender of certain values, the problem is that there is no logical or legal basis to prevent the court restricting individual rights to sanction opposing values when such action(s) challenge certain protected individuals "dignity" or these other values. To say that every court mandate can only be overturned by constitutional initiative becomes an undue burden - and (in terms of legal reasoning) what about states that don't have an initiative process to amend the state constitution.
* * * * * * * * * * * * *
In other words, to turn your argument the other way, if indeed the state's interest in intimate relationships has to do with regulating contractural elements of those relationships (e.g. inheritance, property ownership), once the state provided equivalent structures for the rights with domestic partnership, why should the court go further beyond regulating the legal rights and demand as a matter of fundamental, constitutional rights that domestic partnership has to be called marriage.
No additional legal right ensue from this decision; rather the impact is that people will feel more dignity, will feel more approval. But why should one insist on government imprimature of approval - unless it is to ostracize those whose beliefs are different. What business does the court to act as a self-appointed vanguard of the public morals?
I am not a big fan of the court's decision in this case. However, I still believe that we are reaping what we have sown.
If the government had not seen fit to involve itself in marriage, domestic partnership, civil unionship etc - then the courts would have no leg to stand on would they?
This is exactly why mixing government and religion is a bad thing. Now, I am not talking about banning religion from the public square or "separation of church and state" - those are fallacies promoted by the left.
However, the founders realized that government and religion each have their own "lanes" - sometimes those lanes overlap, and sometimes they do not. However, as soon as you open the door to mixing the two - like government defining marriage, for example - you invited the courts into the mix.
My example above about the state recongnizing your baptism was tongue-in-cheek, of course, but no sane Christian would want the state to sanction or regulate baptism. Pretty soon you might have 51% (or 75%) of Californians saying that homosexuals shouldn't be baptized. Maybe people who aren't US citizens shouldn't be allowed to be baptized in CA? How far down into your religious beliefs would you like the government to delve?
Although I disagree with the court's decision, and its reasoning - I submit that there are places and times where the "will of the people" can and should be overturned by the courts. We are not a democracy; democracy is two wolves and one sheep voting about what's for dinner.
Reading many of the posts above I perceived (and I may be wrong) an undercurrent of: "what right do the courts have to overturn the will of the people?" The court got it wrong in this case, but if 51% of the people of CA voted that black people must sit on the back of the bus - you'd expect a court to overturn the law, correct?
But, again, back to my point - the government should have never involved itself in marriage.
Government is best that governs least...
First of all, I didn't make the 'will of the people' vs judges argument.
For me it is simple as it comes down to how one interprets the Constitution. I support Originalist interpretation; it is vastly superior in part because it actually compels judges to restrain themselves.
So for me it is simply a question of whether any part of the Constitution was ever conceived of and passed with the intent, and most importantly with the understanding, that it in anyway requires the state to grant homosexual unions the same or similar (or any) recogntion that it grants to heterosexual marriages. The answer is cleary 'No', therefore any decision by the Court imposing such recogntion is judicial activism.
The will of the people only comes into play after this consideration (though I don't believe that the other two branches must obey the Sup Court). Since there is no legitimate Constitutional claim for gay unions to be given the status accorded to traditional marriage, then yes, it is entirely a matter for the people and/or their elected legislatures.
The most disturbing part of that ruling is that they declared the "right to dignity" an overwhelming fundamental right ... and that that right eminates from government action.
This means that individual rights can be trampled by these faux rights because these faux rights have to do with shaping society...and that societyought to be shaped.
Very chilling indeed.
Getting married is a behavior, protected by law.
Gender, sexual orientation, are both innate characteristics.
Now, where was this line of thought going?
"The partisan, when he is engaged in a dispute, cares nothing about the rights of the question, but is anxious only to convince his hearers of his own assertions." - Plato
Folks in the long run (well the medium run) this decision is a very good thing for the conservative movement.
Firstly, the sodomites' victory is merely ephemeral. There are ballot initiatives banning homosexual marriage in November. Conservatives and evangelicals are extremely dissatisifed with the poor choice of candidates on offer.
However, these ballot measures will draw social conservatives to the polls in droves.
In 2004, I am not convinced that President Bush would have beaten Joh Kerry (who served in Vietnam) were it not for these pro-family ballot initiaves. They drew social conservatives to the polls. They came to vote infavor the the homosexual marriage bans, and wilst there they oh by the way voted for W while at the pols.
I see a repeat in 2008. I know the seven geniuses on the California SC who think they know more than the people of California did not intended this. However, there is the law of unintended consequences. Thank you California Supreme Court.
Bush supported a Federal Marriage Amendment; McCain does not. (BTW, Fred Thompson did not either, on similar grounds--it's a violation of federalism.)
McCain isn't going to be of much help to the opponents of same-sex marriage.
The Federalism argument only goes so far because Federal law allows (I think insists)the laws of one state to apply to another. That's why proponents of the Family Marriage amendment thought it was required.
by showing once again their collective disdain for the will of the people.
May Allah, in all his wisdom, move all the wild hogs from east Texas to Iran.
You make these front-page postings and deny me the pleasure of recommending your diaries. Bummer.
Excellent, and recommended anyway!
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