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The California Marriage Decision and Basic Civics
The Brookings Institutions' Ben Wittes has an article in The New Republic decrying the decision of the California Supreme Court striking down that state's discriminatory marriage law. Wittes' criticism of the decision reflects the standard attack on the California Supreme Court, an attack that relies upon what can only be described as profound ignorance about how our system of government works.
Wittes' principal objection is that the California court's ruling was wrong because it is contrary to evolving democratic efforts to forge a "compromise" on the issue of gay marriage and because a large majority supports the law (h/t Andrew Sullivan):
Another cost is that slow drip-by-drip accretion of power to courts, that steady undermining of the right of people to govern themselves. In California, the deprivation of that right is exquisitely on display, for the compromise the court upset involved decades of negotiation and movement. The nucleus of California's domestic partnership law dates from the late 1970s. Over time, it has grown more generous, by 2006 including all of the rights and obligations of marriage. In 2000, however, the people of California voted overwhelmingly to limit marriage itself to opposite-sex unions. The legislature has twice voted to extend marriage to gay couples -- and Governor Schwarzenegger has twice vetoed the bill. The current arrangement, in short, reflects a series of evolving compromises set against the backdrop of a quickly developing social consensus concerning the value and honor of same-sex relationships -- a process that the court treated as just so much bother on the way to a self-evident truth. Once upon a time, this bother had a name. We called it democracy.
This reasoning -- that it undermines "democracy" and constitutes judicial tyranny when a court strikes down a popular law -- is so pervasive every time there is a controversial court decision. But it is as woefully misinformed as it is common. That a law invalidated by a court is supported by a large majority is not an argument supporting the conclusion that the court's decision was wrong. Central to our system of government is the premise that there are laws which even the largest majorities are prohibited from enacting because such laws violate the constitutional rights of minorities. Thus, the percentage of people who support the law in question, and how lengthy and painstaking the process was that led to the law's enactment, is totally irrelevant in assessing the propriety of a court decision striking down that law on constitutional grounds.
Contrary to Wittes' extremely confused argument, a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That's because, strictly speaking, the U.S. is not a "democracy" as much as it a "constitutional republic," precisely because constitutional guarantees trump democratic majorities. This is all just seventh-grade civics, something that the Brookings scholar and those condemning the California court's decision on similar grounds seem to have forgotten.
The duty -- the central obligation -- of judges faithfully applying the law and fulfilling their core duties is to strike down laws that violate the Constitution, without regard to what percentage of the population supports that law, and without regard to whether it would be "better" in some political sense if democratic majorities some day got around to changing their minds about it. It's perfectly appropriate for, say, marriage equality advocates or political candidates to take into account whether it would be preferable, in some political or strategic sense, to achieve gay marriage incrementally or legislatively, only once there is majority support for it. But that is a completely inappropriate factor for a judge to consider, because the judge's sole consideration is whether the law is consistent with Constitutional protections.
Alexander Hamilton, in defining the core function of federal judges in Federalist 78, explained this as clearly as it could be explained (though apparently not clearly enough for Wittes):
wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
When -- to use Hamilton's formulation -- judges "disregard" a "particular statute" in favor of constitutional guarantees, they aren't undermining our system of government. They're upholding it. The principal purpose of the Constitution is to prohibit the enactment of rights-abridging laws which, by definition (given that they are being democratically enacted), are supported by majorities. Anyone who argues that a court is acting improperly solely by virtue of the fact that it is striking down a popular law is someone who doesn't believe in the American system of government created by the Founders. None of this is to deny that there are reasonable grounds for objecting to the California court's decision. A court acts improperly when it strikes down a law which no constitutional provision prohibits -- in exactly the same way, and to exactly the same extent, as it acts improperly when it upholds a law that does abridge a guaranteed constitutional protection. The only relevant question is whether the law abridges rights secured by the Constitution. Thus, one can coherently criticize the California court's decision by arguing that it misapprehended and misapplied the rights guaranteed by that state's Constitution as defined by binding California precedents interpreting those provisions.
But Wittes -- along with most of those objecting to this decision -- doesn't bother with any of that. The Brookings scholar never analyzes any provision of the California State Constitution, nor does he reference a single prior ruling from the California Supreme Court which defines the scope and meaning of those provisions. Instead, his attack on the court's decision rests on the fact that a majority in California liked this law; that California's marriage law is more "progressive" than those in most other states; and that the statute was the by-product of a long, evolving democratic negotiation. That isn't a constitutional or legal analysis. It's just ignorant demagoguery.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
© Salon.com
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Show AllAs a California native; born and raised ~ I always found it curious why the high court there had a penchant for overturning the will of the voters. Not just this issue, but many issues. How is it that we've accepted that a group of supposedly learned judges can subvert that which the public decrees as their will? Plenty of things I haven't supported personally have been voted in by the public and I've viewed them as such, and accepted the fact that a majority of voters wanted that, so it was decided by majority. Now we have a situation where the people have a majority opinion in one direction, and the high court has a opinion in the other ~ and they win? I guess I'm just too logical to understand the reasoning behind this. In this day and age I'm supportive of majority rules in all societal issues; otherwise the vocal few will govern the silent many.
Marriage is a civilly granted function in the United States and, therefore, should be recognized as a basic civil right available to all to exercise under the due process and "faith and credit" clauses of the Constitution. Marriage is NOT specifically for procreation for there are no guarantees that even a heterosexual couple will bear children nor is it for the accumulation of wealth and property, as those are always subject to economic, educational and distributive processes of society. Marriage is simply the recognized and solemnized union of two people whose only guarantee they have in life is that they will have each other to bond with. Religions and faiths can "ritualize" these unions and give blessing and council to them but the ultimate, and beautiful aspect of this in the United States is that the State recognizes their existence. In many ways this is simply a follow up to the civil rights and women's rights movements of the past. Civil processes exist in this Republic to be available to ALL people, without regard to race, creed, color, sexual orientation or any other impediment real or imagined trhown up by the likes of Wittes and the Brookings Institution.
pdf,
You obviously didn't bother to read Mr. Greenwald's article. He explains, in great detail, the "reasoning" behind judicial rulings, which overturn majority opinion.
Please read the above article. It should answer your questions.
There was a time when the majority believed african americans were less than a person. It was deemed unconstitutional.
There was a time when the majority felt women had no place in politics or the workplace. It was deemed unconstitutional.
There was a time when the majority felt people from different races or faiths shouldn't be allowed to marry each other. It was deemed unconstitutional.
The examples are numerous. Essentially, an important part of the Constitution is to protect the minority from the majority.
Mr. Greenwald rightly points out the ignorance of those who cling to the "majority opinion" argument.
PDF:
Sorry, you're just wrong. If majority ruled in all societal issues, we'd all be forced to live under christian laws (even more than we do) and blacks and women would still be second class citizens and all sorts of other discriminations and injustices would still exist that once held broad popular support and often took a judge acting ahead of popular opinion to force change. The court system was put in place precisely to avoid "tyranny of the majority" from running roughshod over the rights of individuals and minorities and to enforce tolerance and respect of rights.
The majority and the popular don't need legal protection. Groups that are well liked aren't harassed or oppressed or discriminated against, and popular words aren't censored. Mainstream religious views aren't called heresy and bring down the wrath of the so-called righteous. The majority brings safety and it also brings power. To have a free society, those fewer and weaker than they MUST be protected.
It's really sad that so many people fail to get that.
Thanks to tommybones and kitty_tc for clear thoughtful posts.
With respect to gays, it's estimated that 3% -5% of all people everywhere in creation (a not-accidental word in this context) have the male-male or female-female tendency. Religions aside, that means that 95% - 97% are heterosexual and can easily misinterpret that somehow their (our) feelings are the only ones that are somehow "natural" or "correct".
This is why voters will always vote against gay marriage. 95% is bigger than 5%, and those ratios aren't going to change in "creation" or in legislatures.
So as homosexuality becomes more recognized in educated societies as simply part of creation (as opposed to the "sin" it's called in some religions) we need the constitutional courts to protect those so situated from the prejudice of the majority---mostly as a matter of our laws not reflecting "an establishment of religion" from someone's demand---even the majority's demand.
I, for one, prefer the idea of gays seeking and having permanent blissful commitment (and legally protected from the discriminatory disdain of critics), just as others do.
State Courts can best do this some places, but now not at the federal Supreme Court level for years or decades yet to come---because the unfortunate "establishment" of religion there is our five Catholics (Thomas, Scalia, Roberts, Alito, Kennedy) who aren't going away anytime soon.
Well, previous commenters have given the makeup civics lesson pdf missed or skipped at school, but I can't resist joining the chorus.
The difference between a democracy and a constitutional republican democracy is that the latter recognizes that there are natural and inalienable rights that must be protected by constitutional guarantees against the tyranny of the majority, which will always seek to encroach upon, diminish, and extinguish minority rights.
It's not that pdf is being "too logical", as if [pronoun] were a Vulcan mysteriously beamed into Amerikan society. It's that pdf's logic is premised on the precept that "majority rules" is the correct standard. Thus, the canard of "activist judges" who function like pranksters to upset the apple cart of the greatest good by deliberately subverting the will of We the People.
In fact, although the judiciary is indeed subject to corruption and misfeasance (e.g., the SCOTUS), the judiciary is the referee which blows the whistle and calls penalties when the majority oversteps its constitutional authority. There is invariably consternation, contentiousness, and turmoil when a judicial body shatters, or even merely cracks, an inequitable status quo. But that's an unavoidable symptom of a healthy republican democracy.
Thus, after a little while-- a year, a decade, a couple of centuries-- it becomes perfectly normal that nigras count for a full vote, and not just three-fifths of a vote. Now the process has taken a quantum leap to ensure gay rights, and there's a welcome spark of daylight way, way at the end of a long tunnel.
And it's not the headlight of a runaway activist judiciary.
I've tried to explain to pdf in another article, that the Judiciary is a separate branch of government, to act as a check on the others. They do not exist to simply rubber stamp the will of the majority - either propositions passed by the voters, or laws passed by the judiciary.
Their sole function is to determine if a proposition or a law is compatible with consitutional principles. If so, they uphold that law. If not, they strike it down.
You say, "In this day and age I'm supportive of majority rules..." We have never been a democracy. We have never been a majority rule society. Even in Congress, most laws take 2/3 of a majority to pass. We are a nation of laws, the most basic of which are embedded in constitutions. Majority rule cannot simply erease constitutionally guaranteed rights.
Another term for majority rule is 'mobocracy.' Thank god we have never been a democracy. And how unfortunate it is that soooooooo many people are sooooooo ignorant of the basic way our government was set up to function.
btw pdf. I had to laugh. The author of the article explains all this in great detail. When you come on with the first comment and state that you just don't understand how the judges could overturn the will of the majority - you proved to all of us that you did not even read the article.
It is those who do not take the time to read (whether in 7th grade civics class or later in life) who end up the ones who cannot understand the realities we live with.
To Daniel David..
I know this is off the subject - and that the debate over how much of the population is gay is old...
But... it still grates my nerves to see people use the 3-5% figure. That has never been a valid figure. 10-14% is the appropriate number. About that many are deemed exclusively heterosexual as well. The vast majority in the middle are biologically bisexual, but most marry and identify as straight.
The 3-5% figure that so many people throw around (especially those on the right who try to rationalize that b/c we only make up 3% of the population our injustice isn't worth the bother to correct)... came from a study about 15 years ago. I believe it was from a university in Chicago, but I am too tired to dig out the old articles.
What they found was that 3-5% of the population were homosexually oriented, and sexually active. Another 5+% were homosexually oriented but celibate - for whateve reason. The media then had a heyday that only 3-5% of the population was gay.. A lie. Just because someone isn't having sex doesn't mean they aren't gay..
Just an fyi.... food for thought..
Majority rules with minority rights. Otherwise we eventually get to concentration camps.
Remember miscegenation laws? Jim Crow? Selective law enforcement and protection under the law? Jail populations that grew in time for harvest season/convict labor use?
aquietman,
Perhaps gay people indeed do make up a larger percentage of the population. I don't know and wasn't trying to minimize it. But even if it's 85% to 15%, straight to gay, there is still a majority vote problem that suggests we need the courts' constitutional protection of the minority.
The problem with marriage laws is that they are founded on Christian writings which declared homosexuality a crime against god punishable by death ! It's time to get religion, which is archaic, hate-filled, patriarchal, and misogynist, out of government ! Rewrite the marriage laws. I propose that we update our gender classifications. There aren't 2, there are 4.
Actually, atheist, there are 5.
The "constitutional republic" trumps "democracy" argument disturbingly breaks down when one considers the reality of ballot initiatives to amend state constitutions - in fact, the very thing that will be tried this year, perhaps successfully, in response to this CA SC ruling.
Constitution-amending initiatives DO reflect the triumph of majority will, at a snapshot moment in time, over the permanence and justice of constitutional law, by coopting the very scheme of constitutional law.
I haven't done a comprehensive survey, but my gut feeling is that most state constitutional amendments passed by voter will - at least the ones regarding social justice issues - are tyrannical junk, based on fear and the other drek of human behavior and thought.
Therefore, I don't think we can say we have a constitutional democracy until this ill-conceived voter initiative process at the state level is ended.
pdf certainly got this off track. It just shows what's wrong with the state of America. And why we moved to Canada.
I would like to address the issue of marriage. It is not about love, or as Chrisdutch says, two people bonding. It is, however, about legal issues relating to property and other financial matters as regulated by law, about obligations under the law, and legal rights under the law.
Certain benefits of the state accrue to married couples and if marriage is only available to heterosexual couples, these benefits are denied to homosexual couples. That is why denying marriage to gays is unconstitutional.
The alternative solution to gay marriage is to eliminate marriage recognition by the state entirely. Let the churches marry people, but give no extra rights to married couples.
Many of the benefits ought by rights to be given to every individual anyway. Every individual ought to receive health care; that would do away with one of the major benefits to being married. As for taxes, if you compare carefully, as some have done, there is a "marriage penalty" and two individuals pay less than a married couple.
atheist and nellemason,
I either count 8 or 10.
mathematician8:
As for taxes, there IS a marriage penalty, which is why some straight folks, not planning on having children, just live together and never marry. Gay people requiring marriage just like the church are defying God, who ordained marriage in the Jewish and Christian religions, originally for population of the earth, as there are NO INDIVIDUAL MARRIAGES IN HEAVEN -- Matthew 22:30. God will have the "Marriage Supper of the Lamb", Rev. 19:6-9 -- when Jesus is finally married to His Church, His wife, which is; whether gays know it or not, the ONE and ONLY reason gays feel the need to pervert "marriage" by being married the same as the church, because the name "marriage" definitely doesn't save the gay person any money, as "civil unions" give gays everything necessary for their unions, other than the name "marriage".
Since, homosexuality is a defiance of God; then, it is God and not man who will punish the gay. It is not the business of man to punish gay people, but God only, and not by the hand of man in any way. Until God determines the time of punishment, which is to be like the destruction of Sodom and Gomorrah; it is the Christian's duty to not hurt or take any vengeance against the gay person, as Christians erroneously do.
There is a good probability that that judge who ruled that gays have a constitutional right to "form a family" is himself a closeted gay, as no gay can actually "form a family", except as a cuckold.
BTW, I am not a REPUBLICAN.
oh boy...
My own God, the flying spaghetti monster, has no problems with homosexuality. I KNOW this.
mathematician8,
I assume since you are such a biblical scholar that you are aware there are many different meanings of the Hebrew word for sodomy? One of them (and more likely to be the intended meaning of the word in the story of Sodom and Gomorrah) referring to people who are inhospitable to strangers. If a homeless man that you have never met knocks on your door, will you invite him into your home and show him courtesy? Based on your statements, and the likely meaning of the Hebrew word in that context, if you do not you will be punished by God in a similar way to the inhabitants of Sodom and Gomorrah. Have you ever turned away a door-to-door salesman?
Do you believe that it should be illegal for anyone to marry in a civil ceremony (or in any place of worship that is not Judeo-Christian)? Are Hindus, for example, perverting marriage when they marry? Would you take away the rights of non-religious heterosexual individuals to marry, if you could?
You may not be a republican (which really has nothing to do with this discussion as there are many gay and straight republicans that believe gay people should be allowed to marry), but you are obviously a bigot.
So God ordained marriage in the Christian and jewish religions? The institution of marriage predates Judaism and Christianity. Greeks who worshipped Zeus got married, Scandinavians who worshipped Odin got married, Pagans got married, peoples in China and Japan got married, the Aboriginals of North and South America got married.
Marriage does not have as its origins Judaism or Christianity.
Your own courts recognize that marriage is not a religous union. If a couple can legally be recognized by a Church wedding as a couple and garner all the benefits legal and other wise of a married couple, then it only follows that the Church on its own can declare any wedding or marriage null and void.
If the Pope suddenly claimed that the Church would no longer recognize any marriage of White man to Black woman , would those who claim its origins the Church then suggest that the state recognizing such couples as married are defying God?
Who is anyone to claim they speak on Gods behalf?
The proper punishment for homosexual behavior is marriage.
Earl Simmons: you must be a poet, for you can put so many ideas into such a short, coherent sentence!
MarthA says, "BTW, I am not a REPUBLICAN."
That's right... I have another description in mind..
Call me crazy, but killing 1 million Iraqis is much more defiant of "God's laws" than two men or women wanting to get married. I'm pretty sure one of those 10 commandments is Thou shall not kill. Oh, right, it's just that some of those wacky Christians are just "mistaken", but it's the gays who are defying God? Talk about selective citations.
There is a word for this pattern of blaming someone else for misfortunes we ourselves created, it is called scapegoating.
It's clear to me that there are many people, especially those who call themselves Christian, who ARE the tyranny of the majority. I'd venture a guess that most of these people, were they to spend even a second as a minority of any kind, would very quickly re-evaluate their views. But of course it is so much easier - and pleasurable (for them) - to bash the less powerful when in a position of power, and a member of the majority. But it takes real strength to defend the weak from the powerful, which probably explains why we see so little of this type of behavior these days...
yohocoma -- please don't totally dismiss the 'ill-concieved voter initiative process at state level' !
how else are we ever going to get reasonable marijuana 'laws' in most states ? take away the voter initiative process and all hope is gone ! of course it can be 'misused' (depending on interpretation), but it is a necessary part of the system and in my opinion sadly underutilized . . .
i will of course get slammed (again) for saying this, but there is one fundamental difference between marriage between same-sex couples and opposite-sex couples and that is the consideration of whether intimate relationships between the partners 'matter' in the deepest sense of the word. . . in opposite-sex couples, whether intimate relations 'matter' in actuality or not, they do 'matter' in potentiality. . .
we call that 'mattering' (derived from the latin 'mater' for mother) children. . . this is not biologically possible in same-sex couples altho it may soon be but will always require hi-tech interventions . . .
there is a lot of deep anger from some posters on this forum and i have been called many names for respectfully stating certain specific concerns (for example, gay male couples adopting surrogate - delivered newborns -- because i felt that newborns still need a strong maternal presence for at least the first three months),
i have not called anyone any names and was surprised at the vituperative responses my concerns triggered,
there was certainly a very superior attitude expressed by responders without much attempt at real communication but that is not my problem . . .
mathematician8 is right, civil rights should not be linked to marriage and marriage should be a covenant, not a state regulated function . . .
now about those marijuana laws . . .
alaskamaid, if a husband's wife dies in childbirth (this happened to a friend of mine) would you have a problem with that father raising his child? Just asking.
mathematician8,the discussion has been dancing around the issue of what "makes" a family. It seems a defining argument has been based on the reproductive issue ie. being able to have children "naturally". Does that mean a hetero couple that is infertile could never be a family? Or a family that has chosen to adopt children rather than procreate is not a family?
alaskamaid: you should not be especially surprised that those arguing for restricted rights will generate hostility. You think we have what rights we have because we asked nicely for them? If so, you don't know your history. Some of the rights involved in marriage relate to things like having the legal right to visit a partner in the hospital. According to the GAO, there are well over a thousand rights granted to opposite sex couples that are being withheld from same-sex couples. The anti-gay marriage folks look like they're trying every bogus justification under the sun to try to withhold rights, and then they seem offended when they are called bigots. Too bad.
As to your argument, I fail to see the point, since you seem to be arguing based on maternal bonding arguments, which don't have anything to do with marriage. It seems entirely a non-sequitur. Since 1 in 10 couples are unable to conceive, should they then have all those marriage rights withheld also? If potential to conceive is the prerequisite to marriage, then many people will not meet that standard, even if they are a "man" and a "woman."
I use the quotes, because there are of course transsexual people who also do not have the ability to conceive after surgery, but who do have the legal right to marry - in the hetero manner. It's just in this case the gender is legally changed, and so overnight they can go from a state of being forbidden to marry to a state of being permitted to marry, with the only difference being a medical procedure. This creates all sorts of problems for people who want to discriminate on the basis of gender, because we can often get around these proscriptive rules one way or another. It turns the system on its head, by highlighting the internal contradictions of the rules.
Personally, I couldn't care less about marriage per se, but I have big problems with having a restricted set of rights without any constitutional justification behind it.
nellemason -- i didn't say anything about the long term, just the first three months, and in the tragic circumstance you relate (fortunately much less common than in the past) i would think that usually female relatives would step in to help for a little while . . . the gay male couple i was referring to had engaged a surrogate who surrendered her infant twin daughters at birth and one of the men was the 'mother' and all
i asked was if anyone found this disturbing . . . my bad, apparently !
so, okay, i do have issues with some of the gay male scene -- because my husband as a young teen was in a man-boy love relationship with a man who was at the same time in a relationship with my husband's (married) father . . . this has naturally caused him tremendous conflict and acting out and resulted in him infecting me with HIV while i was pregnant with our daughter . . .
but of course i'm just supposed to stay in my own closet so as to not discomfit the 'i'm out, i'm loud and i'm proud' people who have taken great glee in calling me many harsh names for asking the wrong question . . .
check out the responses to other recent articles posted to common dreams about the court ruling and see who is really acting like a bigot . . .
when we have more of an understanding of the energetic aspects of conception i think there will be less confusion between sex that may 'matter' and sex that can not. . . of course historically that has been the big attraction of same-sex relations, is that the sex can not 'matter' and in that sense was 'safe' . . .
also i would argue that the ultimate minority which judicial rulings protect is the judiciaries themselves . . .
Legalize same sex marrages perminatly and watch the churches and homophobes that remain in the dark ages squirm.
There is no issue about same sex marrage or relationships to slightly educated and rational people anyway.
I'm not so thin skinned as to shy away from flames; it's all about communication and understanding, right? Open and free exchange of ideas. Try not to get caught up in the argument so much that you ignore and disrespect the views of others. These are just mine, OK?
For clarification, I did read and understand the article and it's message. I simply didn't agree with all its points, that's all. My commentary has nothing to do with homosexual marriage. In a democracy, people vote to express their opinions on topics of consequence. Their votes ultimately determine the course of that democracy, right? There has been plenty of voter decisions that I've personally disagreed with, yet accepted because the majority of voters thought differently than me. I accept the concept that the many should determine the path of society and not the few.
All I'm saying is that if you have a preponderance of the electorate that says "A" shall be the law of the land, then I'm loath to have a small group of people decree "B" shall happen because they happen to think otherwise. To my thinking, that process subverts democracy and does not further it.
Note, I'm arguing the process and not the issue here. The majority of Americans don't want to see gays jailed, right? If this small clutch of robed and anointed lawyers decided that, against the will of the majority of voters, that homosexuality is now a crime, punishable by imprisonment; would you be so quick to support their ability to ignore the populous and overturn that which the voters have demanded? They could do this not because the voters have demanded it; but because these few judges think it is the "right thing" to do.
That, to me, is a scary prospect.
pdf,
what exactly do you disagree with? the constitution? I don't understand. Do you not see the value in protecting the minority from the will of the majority, if that will infringes upon the minorities civil rights? I've already given several historical examples of what this protection means. Here they are again:
There was a time when the majority believed african americans were less than a person. It was deemed unconstitutional.
There was a time when the majority felt women had no place in politics or the workplace. It was deemed unconstitutional.
There was a time when the majority felt people from different races or faiths shouldn't be allowed to marry each other. It was deemed unconstitutional.
Get it? Majority can certainly rule AS LONG AS THAT MAJORITY DOESN'T INFRINGE UPON THE CIVIL RIGHTS OF THE MINORITY. That's the hurdle in a constitutional republic. Otherwise, minorities can be abused. Just look at the "democracy" of Israel for a great example of the majority infringing upon the rates of minorities.
pdf,
...additionally, your example ("If this small clutch of robed and anointed lawyers decided that, against the will of the majority of voters, that homosexuality is now a crime, punishable by imprisonment; would you be so quick to support their ability to ignore the populous and overturn that which the voters have demanded?") is not relevant because it doesn't satisfy the requirements set forth in the Constitution. Your example would be an example of the minority (in this case, it's the judges) infringing upon the rights of another minority. It would be unconstitutional. So no, we would not support it. Get it?
pdf... the points you disagree with are in fact the reality our system of government is based on. If you disagree with it, then you disagree with the American system of government.
Once again... We are not a democracy. It's not the job of the judiciary to rubber stamp the will of the people or the will of a legislature if that will is contrary to constitutional principle. That is elementary level civics. Why can't you grasp that simple concept?
If the judiciary ruled that gays who marry would go to jail, they would first have to find a constitutional basis for it.
Alaskamaid said:
"so, okay, i do have issues with some of the gay male scene — because my husband as a young teen was in a man-boy love relationship with a man who was at the same time in a relationship with my husband's (married) father . . . this has naturally caused him tremendous conflict and acting out and resulted in him infecting me with HIV while i was pregnant with our daughter . . . "
Give me a break! I feel for your husband, as I would any child in a man-boy or man-girl or woman-boy relationship. Do you have a problem with heterosexual relationships because there have been men who have been sexually involved with girls, or women (many female teachers is seems of late) who are sexually intimate with boys? Does that make any sense?
I feel for you having been infected because of this crime. But using your tragic experience to somehow try and legitimize some of the arguments you have made, I can't accept.
And a question... I have not seen anyone call you any names. I have only seen people disagree with you and challenge your ideas. I admit I likely have not seen all of your posts or the articles you have participated in, but of the ones I've seen... I do not see any namecalling.
I think your arguments are well thought out, but you are coming to your conclusions from preconceived notions (your husband's experience for example) of what gay relationships are all about.
Are infants who are breast fed better off than those who aren't? I don't know. I've read that they are. I've also read that butter and eggs are bad for you (in the 70s), then new research said they were natural and therefore better for you (in the 80s). Then they went bad for you again... And now, the consensus is that they are good for you again. Same with milk. Milk was the big culprit in a host of illnesses. Now, as long as it's organic... drink up. Research is meaningless unless it sticks through decades. Observation is also important. I was not breast fed, and many of my generation were not. We don't seem any worse off than those who were.
It is a myth that women are more nurturing than men. Traditionally they just have had more of an opportunity as they were the ones staying home with the children. Today as women work, they are no more or less nurturing than men. I make one hell of a grandpa (I am not their biological grandpa, but took on the role a few years ago, and the children have long forgotten that I am not their 'real' grandpa). I am their real grandpa in the most important sense of the word real. Their father always comments on how nurturing I am to them. If they have a problem or need a shoulder to cry on, or need their bum wiped, or need a booboo kissed... it is me they come to. And I play with them. Moster, hide and seek.. games children like. Or they color or we do play-do. Or we make cookies. They prefer me over either parent. When their father comes up to get them (they live in an apartment downstairs), they hide, thinking that may help them stay longer with grandpa. I live in the same house so I am always available to them. I just don't believe any woman can do it better. BTW, I'm a better cook than most women too.
As for the 'mattering' argument. It is an archaic idea that has been debunked with basic logic numerous times. My brother and his wife could not conceive children. By your 'mattering' their union wouldn't matter. But it does. They were for more than a decade a family of two, and that did matter. They eventually ended up adopting a child and are now a family of 3, but gay couples can do the same.
My grandmother was widowed at 68 (this was in the 80s, they are gone now). Two years later she married a widower. Both were far beyond the childbearing age. According to you, their union didn't 'matter' b/c children weren't part of the equation.
I have a friend who married a woman in large part because she shares his disdain for children. Neither want children. Neither like children. He has been 'fixed' to ensure they don't have children. According to your theory, their family of 2 doesn't 'matter.'
Newsflash: Marriage is primarily about companionship. That alone makes all of the above matter. It is what makes it matter in gay relationships as well. When people take the marriage vows, there is NOTHING in those vows that says anything about having children. It is not part of the ceremony. That heterosexuals largely have children as a by-product of heterosexual sex has nothing whatever to do with forming a legal union - a family of 2. And since gay people have several ways in which to have children, your point is moot to begin with.
All I know is that in my younger years, I feared growing old alone. I realized in my 40s that was exactly what my fate was to be. I was raised in a very conservative and religious environment where homosexuality was considered the '2nd most serious sin after murder.' What kind of acceptance do you think I was offered in that environment? None. I lost everything. Friends, family.. church (and to the last I can only say, thank god). I was older before I was able to accept myself and learn the truth about homoexuality being a natural part of human sexuality. But I resent that I did not have the options before me to form a happy family (if even a family of 2), that my brothers did. I was discriminated against, pure and simple. I'm okay with being alone now (in a companionship way). My life is full of being grandpa, and I cherish every moment of it. But I often feel a sadness of 'what might of been.'
Moreover, I want - more than anything, to see the gay youth of today having the same opportunites as their brothers and sisters to form family unions so they can have the greatest sense of joy possible.
I understand that this ability is an inalienable right (as the California court has correctly identifed the right to marry as a civil right). Inalienable rights are those rights to life, liberty and the pursuit of happiness. Legally recognized family is the most important way to happiness.
I don't agree that the 'will of the people' should matter when it comes to recognizing the basic civil rights of any group of people in this country. Liberty and justice for all is not the meaningless slogan for those of us in any minority who have been denied liberty and justice - as it has become for those who pledge it, then work to undermine equal treatment for whatever group they don't like. That kind of hypocricy is such a threat to the values true Americans hold sacred.
Californians can vote for this shameful amendment to overturn the courts attempt to provide a minority liberty and justice. If they do, it will eventually be regarded as a most shameful part of that state's history. It will eventually be overturned by the people themselves (how far in the future I can't say). But in time it will. And the people of that day will look upon the people of our time and shake their heads with bewilderment at how they could do such a shameful thing.
atheist, your handle suggests recognition of the very belief system you seem not to believe. how about using rationalist, or some other equivalent, instead? just a supportive suggestion as i find atheist to be more of a derogatory term used by mythologists to slander those that do not buy into their views of faith. have a nice day.
Men who like women
Women who like men
Men who like men
Women who like women
Men who like both
Women who like both
Men who feel they are women and like men
Women who feel they are men and like women
Men who feel they are women and like both
Men who feel they are women but like women
Women who feel they are women and like women
Men and women who have no interest in sex
More are possible
Let me consider your examples:
"There was a time when the majority believed African americans were less than a person. It was deemed unconstitutional."
Only 8% of American families held slaves; the abolishion movement started quickly and was immediately supported in all of the northern states at least, and had there been a national referendum on slavery; it almost certainly would have been rendered illegal; but that wasn't given a chance. The civil war broke out over this and other issues, and the majority decided that slavery was indeed wrong. There's probably even now a few twisted souls who would reinstate this horror; but luckily, they don't sit on the bench.
Ref: http://en.wikipedia.org/wiki/Slavery_in_the_United_States
"There was a time when the majority felt women had no place in politics or the workplace. It was deemed unconstitutional."
I don't know that it was deemed "unconstitutional" or that it was an antiquated hold-over from the feudal patriarcial system that all of human history handed to America at it's beginnings. Granted, it too far too long to come into being, but when put to a constitutional vote, it passed.
Ref: http://en.wikipedia.org/wiki/History_of_women%27s_suffrage_in_the_United_States
"There was a time when the majority felt people from different races or faiths shouldn't be allowed to marry each other. It was deemed unconstitutional."
This appears to have been a local and/or states rights issue, and not a constitutional one; at least from what I've read up on. I see no amendment to the US constitution that dealt with this issue.
Ref: http://en.wikipedia.org/wiki/Interracial_marriage#Legality_of_interracial_marriage
Also, I believe my theoretical example was perfectly relevant because if you believe like I do that it is the will of the people which should direct the laws that make up our society, and if the judiciary takes it upon themselves to set aside that will to take their own course; it is to our detriment.
I can respectfully agree to disagree with anyone who reads this; but it is my considered opinion that if a government that purportedly serves the people ignores the will of those people; it ceases to be a legitimate government.
Look beyond this singular issue; and see if you can't find some commonality with my beliefs.
pdf
The judiciary haven't "taken it upon themselves to set aside that will." They are respecting their constitutional obligations. They are charged with upholding the laws of the land based on the Constitution, not the "will of the majority." If their rulings ignored the Constitution, as you would apparently have it, in deference to the whim of the majority, then we might as well throw the Constitution in the garbage can and call it a day. We are either a Constitutional Republic or we aren't.
Your "defense" to my examples completely ignores the spine of the argument. Let's look at it another way. Using your standards, if the majority of citizens believes being gay (or black, or non-Christian, or red headed etc) is a capital offense, then it should be made law and the "offender" should be tried and, if found guilty of the "crime", be put to death. Right? See the inherent problem? Is this an extreme example? Sure. But where would the line be drawn and who would decide where that line lies?
aquietman -- maybe you should give me a break, you think i have not lived with an anally addicted male for the last 30+ years without learning ANYTHING about the dark side of gay male behavior ? Sorry, won't wash.
(And I do think that being called a 'big stupid homophobic bigoted troll' counts as name calling.)
obviously no one here thinks someone like me, who has been violated in very specific ways and specifically by the gay male culture, should speak up and suggest that my civil rights have been disregarded . . . mine and many other women (the wife of the New Jersey governor who bragged about getting it on with his boyfriend while she was in labor comes to mind) . . . oh no, you're all too busy arguing about your civil rights and the father figures in black robes whose job it is to protect you . . . from yourselves i guess . . .
pdf said:
"Only 8% of American families held slaves; the abolishion movement started quickly and was immediately supported in all of the northern states at least, and had there been a national referendum on slavery; it almost certainly would have been rendered illegal; but that wasn't given a chance. The civil war broke out over this and other issues, and the majority decided that slavery was indeed wrong. There's probably even now a few twisted souls who would reinstate this horror; but luckily, they don't sit on the bench."
This just is not true. As a history major I can tell you it is blatantly false.
Slavery was constitutional. The institution had to be included in the constitution in order to get the southern colonies to ratify it. There had been numerous rulings on it's legality prior to the civil war, so your assertion that "it almost certainly would have been rendered illegal; but that wasn't given a chance," is laughable.
Lincoln did not start out to end slavery. His original emancipation offered freedom only to those slaves residing in southern states that had seceded. Those slave owning states who did not rebel were not to be affected. That changed eventually, but that was the original goal of emancipation.
Few in the northern states supported freeing the slaves. Lincoln was widely unpopular in the north because of his moves toward emancipation. In fact, most analysts at the time did not think he could even secure being renominated by his party for president. At the time, not only had he upset everyone in the north by trying to free some slaves - but the war was going badly for the north, and he was weakened politically b/c of it.
The idea that the northern people would have voted away slavery is nonsense. It took another 100 years before blacks gained basic civil rights.
Finally, after the war turned around and Lincoln was re-elected, he had a change of heart and not only emancipated all of the slaves, but he knew his emancipation orders were unconstitutional. That the constitution would have to be amended. So he passed the 14th and 15th amendments outlawing slavery. The northern states passed it. The southern states which had returned to 'colony' status had to ratify the amendment before they would be allowed to become states again.
That is accurate history. What you typed was fantasy conjured up to support your argument. It is no more valid than your idea of how American government runs.
Alaskamaid….. maybe I should give you a break. But maybe not. You seem quite upset about your situation, which is totally understandable. But WHY? Why if you are unhappy living with an anally addicted male for the last 30+ years have you been with him for 30+ years? There is a thing called divorce…
There is a dark side to everything – even heterosexual male behavior. Even heterosexual female behavior can be negative. Sexuality in general has a dark side. And people either indulge in it or don't. Where you err is that you then see everyone who is gay in a dark way. I hope someday you can encounter gay people in a positive way.
If somebody called you a 'big stupid homophobic bigoted troll,' then I think that is unfortunate. Perhaps they were responding to comments you made without knowing your personal history, which you only recently revealed. It's understandable that you feel pain, and thus some hostility. Perhaps they would have been more tolerant if they had known beforehand.
The gay male culture did not violate you. Your husband did. And he himself was the victim of a crime at a very young age. By an individual. The whole story is tragic.
I don't know what civil rights of yours have been disregarded? You can vote. You can marry. Which rights are you speaking of?
I agree. We are busy arguing about our civil rights which are being violated. This is true. The comments are in connection to the article, which was written due to the court ruling. You make it sound like we are being selfish because we are taking the time to argue our position. If you truly had a civil right that was being denied you, you would not think of it as 'selfish' by putting your energies to use to overcome it.
There are many women, like you, who married gay males without knowing it (although the NJ governor's wife apparently did. She allegedly had threesomes with him and another man). If you saw the movie Brokeback mountain, one of it's messages was what can happen to women due the prejudice pressuring gay men to marry and appear 'normal' to society. The prejudice then not only victimizes the gay man, but his wife and children. Because those relationships don't last. Homes and hearts are broken. So many people point to the wife and blame the gay man. But the point of the movie was that none of it would have happened if the gay man hadn't been victimized to begin with, by a society that is awash with fear and hatred of homosexuality.
Please get the book, "Goodbye I love you," by Carol Lynn Pearson. She is a famous poet who found she was married to a gay man, and who cared for him as he died from AIDS. Perhaps the book can help you.
aquietman ~
I stand by my statement and reference; please bring to the conversation something beyond; "I'm a history major.." and some verifiable data.
My view is that the few (slaveholders and plantation owners) imposed their will upon the many (free and slave alike) and forced the continuation of slavery. The majority eventually rose up and said it was wrong, and it was defeated.
Now think of a court decision that you DISAGREED with that overturned the will of the people. How about the 2000 election? Were you pretty charged up and in agreement with THAT travesty? Still excited about the court tossing aside YOUR decision?
pdf,
I hardly think my contributions to the subject are based on the statement of my being a history major.
Everything I stated is verifiable. Just open a book or go to Wikpedia.
The "majority" did not defeat slavery. A president did, and then he amended the constitution so that the majority (and at that time a majority of all americans were racist) could not bring it back.
When a court decision is based on constitutional principle it is legitimate whether I like it or not. And whether you like it or not (as apparently is the case with the California ruling). The court's intervention in the 2000 election was not based on a constitutional principle, and they usurped the decision from the Florida supreme court, which was the proper authority to make the decision on recounts. Thus the ruling of the 2000 election deserves our disdain and criticism (regardless of whether we liked the outcome or not). It was not based on the consitution so it was an abuse of power.
The ruling in California was based on consitutional principle, so it was not an abuse of power.
The two do not compare.
pdf:
The 2000 Supreme Court decision has been universally panned as a blatantly unconstitutional, partisan decision. If you were to argue that the California decision was incorrect, based on Constitutional statutes (as many lawyers and Constitutional scholars have in the 2000 case), then you'd have some support in here. But your opinion is based on the premise that the whim of the majority should trump the Constitution, which essentially renders the Constitution and Bill of Rights meaningless.
You can continue to obfuscate or you can stick to the very simple and direct point of this entire argument. Do you, or do you not believe the Constitution and Bill of Rights should be the law of the land? Or do you think the whim of the majority should render them meaningless? There's no middle ground, as you can clearly see, when a modicum of logic is applied. Judges are charged with being the voice of the Constitution, so when you claim they are the ones overriding the will of the people, you need to prove that their ruling itself was unconstitutional. Otherwise, it's just short-sighted sour grapes.
The message is; "Be careful what you wish for", because if you are personally willing to abdicate your societal right of self-determination to an appointed bunch of lawyers; you do so at your peril. Not all of their decisions will be paletable.
Consider not my stance, but the stance of others:
http://www.nationaljournal.com/njmagazine/print_friendly.php?ID=or_20080524_4694
Supreme court justices are not just 'lawyers.' They do not argue the merits of a case one way or the other. It is argued to them. They judge the merits and make the decision. Thus I am not abdicating my rights to a 'bunch of lawyers.'
Just what do you think judges exist for?
Charging us with being willing to "abdicate our societal right of self-determination to an appointed bunch of lawyers," tells me that you haven't understood a thing we have written. More obfuscation.
We've reached an impasse. You think the majority should be able to bully the minority and infringe upon their civil rights, like the Nazi regime did to the Jews and like the current situation in Israel, where Israeli Jews are treated as 1st class citizens while Israeli Arabs are treated as 2nd class citizens. This flies in the face of the intent of the founding fathers of the United States. The system you prefer is not in keeping with a Constitutional Republic. Your issue is with the Constitution and not "appointed lawyers."
Using your standards, if the majority of citizens believes being gay (or black, or non-Christian, or red headed etc) is a capital offense, then it should be made law and the "offender" should be tried and, if found guilty of the "crime", be put to death. Right? See the inherent problem? Is this an extreme example? Sure. But where would the line be drawn and who would decide where that line lies? Answer the question.
"Using your standards, if the majority of citizens believes being gay (or black, or non-Christian, or red headed etc) is a capital offense, then it should be made law and the "offender" should be tried and, if found guilty of the "crime", be put to death. Right? See the inherent problem? Is this an extreme example? Sure. But where would the line be drawn and who would decide where that line lies? Answer the question."
I'll give it a go...
What would it take for a mathematical majority of voting citizens to forward and accept an idea? Would it be preposterous? Would it be "fringe"? By definition, if a majority of people feel that way, then it couldn't be fringe, then could it?
I put it to you that if 51% of a population decided that only orange popsicles should be sold, then in my opinion, that's the way it should be! Would this happen? The answer is NO. Why? Because it would be preposterous, that's why!
But what CAN happen; as evidenced by some state's clearly activist judiciary, is that a few anointed and robed LAWYERS (sorry, that is what they are, and I despise lawyers) ponder a vote of the public and deem it unworthy, and then THEY decide that only orange popsicles should be sold, regardless of what the will of the voters had determined. Just accept that some judges will toss out what you LIKE and not just that which you disagree with.
So yes, we have in fact reached an impasse and I'd like to thank you for at least taking the time to read and consider my stance. I don't demand that you agree with it, but it's constructive that we've discussed it and considered all viewpoints.
Enjoy your day....
pdf -- thanks for the link, the last sentence is applicable where Scalia is quoted as saying that justices actually enforce not the Constitution but rather 'the views and values of the lawyer class from which the Court is drawn' . . .
tommybones -- sorry, but the 'intent of the founding fathers of the United States' was to consider everyone except white male landowners as at least second-class (or third or fourth class) 'citizens' (or not) and things really haven't changed all that much . . .
aquietman -- since man-boy 'love' relationships are an integral part of the the gay male lifestyle, I do feel that I was not violated by an individual but by a value system which seeks to appear to be something it is not . . . the hypocritical denial by gays of this system is just another violation . . . please realize that the type of circular thinking which gays habitually engage in is crazy-making for the rest of us . . . for example, gay men are 'victimized' but let's not notice that they are also 'victimizers' . . . or if we do happen to notice, let's blame society . . . this is a very self-centered perspective which in the long run goes nowhere . . .
Alaskamaid - man-boy love relationships are NOT an intregal part of the gay male lifestyle. There is no such thing as THE gay male lifestyle. There are as many and as varied lifestyles as there are for any other group. Thus we have religious gays, athiest gays, conservative gays, liberal gays, etc. and etc.
If you truly believe that man-boy love relationships are an intregal part of being gay, then you are truly truly ignorant and need to come out of the 40s mindset you are stuck in.
Neither you nor pdf are dealing in reality when it comes to this issue I'm afraid.
I never once said that gay men aren't victimizers. Show me where I said that. I acknowledged that the women who marry gay men have been victimized (thus the gay men are victimizers). I only pointed out that both are victims. Society should be blamed for it's blatant and inexcusable hypocricy.
It is apparent from your accusations that you do not truly want to have an honest discussion on this issue. You have an agenda. I don't have the time for that.
If it is true that your history is as you said... then I truly hope you find a good therapist to learn how to deal with it in a better way than merely relegating an entire class of people to 'the dark side' because of what you have experienced.