Breaking News - Gay Marriage Ruling

[cdowis]

cdowis, please do some research on the the HUGE difference between a marriage license (marriage being a fundamental right) and a drivers license (drivers license being a privilege).

Can a man marry his daughter, or a brother marry his sister. If it is a fundamental right, then the courts must allow such marriages.

May I suggest that YOU do the research and see what are the *fundamental* rights, and not blow hot air.

[frankenstein]

Can a man marry his daughter, or a brother marry his sister. If it is a fundamental right, then the courts must allow such marriages.

May I suggest that YOU do the research and see what are the *fundamental* rights, and not blow hot air.

your willful ignorance is getting tiresome. Look up "fundamental rights" even look it up on wikipedia, and you will get a basic understanding.

Your comments indicate that you do not even have the slightest understanding of privileges, rights, or fundamental rights.

If you had even a basic understanding of fundamental rights you would NEVER have stated "If [marriage] is a fundamental right, then the courts must allow ... ."

[TAO]

your willful ignorance is getting tiresome. Look up "fundamental rights" even look it up on wikipedia, and you will get a basic understanding.

Your comments indicate that you do not even have the slightest understanding of privileges, rights, or fundamental rights.

If you had even a basic understanding of fundamental rights you would NEVER have stated "If [marriage] is a fundamental right, then the courts must allow ... ."

My friend, fundamental rights are based on opinion =/.

[frankenstein]

Tao, I don't quite understand your comment.

In the United States there are fundamental rights that are recognized by the courts and being fundamental, which means the courts will apply strict scrutiny in determining whether a law is valid when that law affects a fundamental right. cdowis, clearly does not understand the difference between a privilege and a fundamental right, cdowis also does not understand what fundamental right means - as if cdowis did understand cdowis would not have stated that the court must let something happen because of a fundamental right.

[cdowis]

If you had even a basic understanding of fundamental rights you would NEVER have stated "If [marriage] is a fundamental right, then the courts must allow ... ."

]

Can I assume that you are not going to answer my question.

The right of free speech, a fundamental right, is not curtailed a priori. Someone is not arrested for wanting to yell "fire" in a crowded theater BEFORE he does it. His punishment comes after the event. Same thing with slander.

A speech does not require a license, except to be allowed to give it in *certain locations*. The speech itself is not subject to a license.

But a man cannot marry his daughter, and this is prevented **prior** to the marriage, through the marriage license process. Marriage is subject to a license, and the conditions of that license.

Why do you have such a problem wrapping your mind around that concept?

I have a right to ask that question, and my freedom of speech has allowed me to do so, regardless of how irritating you find it. You can now answer my question, or not... It is your right.

But you do not have a right to marry your parent.

[Zeta-Flux]

Thanks for clarifying your position for me. I think I understand it better. BTW, your link doesn't work. And like you point out, rulings are rarely unaminous. So even judges disagree with what a ruling should be.

Remove the period at the end of the link and it will work.

I might be wrong on this, but I don't think a judge could have granted relief to a couple without it being on the basis of prop 8 being unconstitutional. He has to base his decision on some reason for granting the relief. So I think ruling prop 8 unconstitutional would be the only way to rule in favor of the plantiff. But hey, I am not a lawyer nor an expert. Maybe you could tell me what the ruling could have been short of declaring prop 8 unconstitutional.

That is correct. The law was found constitutional by the state, so the only way to grant relief was to find it in conflict with the Federal Constitution. However, that wasn't the issue I raised. It was the broadness of the ruling. Quoting from the appeal motion of the proponents:

If this Court concludes that Proponents and the Imperial Intervenors lack standing to appeal, the judgment below must nevertheless be vacated. At a bare minimum, the district court exceeded its jurisdiction to the extent its judgment ex- tends beyond the four Plaintiffs who were before the court. Because no class has been certified in this case, this Court “must vacate and remand,” for “the injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs.”Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983).10

In Zepeda, a group of Mexican-American citizens and Mexican aliens legally in the United States brought a class action complaint and sought a preliminary injunction against the federal Immigration and Naturalization Service (“INS”) and several of its officers alleging statutory and Fourth Amendment violations during INS enforcement operations.Id. at 722. After denying the class certification

motion without prejudice,id., the district court issued a preliminary injunction barring the INS and officers from engaging in the challenged practices “not only against the individual plaintiffs before the court, but also against such other individuals who are not before the court.”Id. at 728-29 n.1. This Court held that, absent class certification, extending the injunction to benefit individuals who were not before the court exceeded the district court’s jurisdiction: “A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter

jurisdiction over the claim; it may not attempt to determine the rights persons not before the court.”Id. at 727; see also Meinhold v. United States Dep’t of Defense, 10 Indeed, the court below likely lacked jurisdiction altogether (and its judgment must therefore be vacated) because the Attorney General agreed that Proposition 8 was unconstitutional.See GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 383 (1980) (“there is no Art. III case or controversy when the parties desire ‘precisely the same result’ ” (quoting Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam)); League of Women Voters of California v. FCC, 489 F. Supp. 517, 520 (C.D. Cal. 1980) (dismissing constitutional challenge to federal statute for lack of case or controversy where defendant FCC declined to defend because it “agrees that the statute is un- constitutional”). 34 F.3d 1469, 1480 (9th Cir. 1994) (vacating permanent injunction prohibiting the Defense Department from discharging any person from the service based on sexual orientation where action was not brought as a class action “except to the extent it enjoins DOD from discharging Meinhold”); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) (“injunctive relief generally should

be limited to apply only to named plaintiffs where there is no class certification”).

Here, no class was certified. Accordingly, the court below likewise exceeded its jurisdiction by extending relief beyond the four plaintiffs before it to benefit all same-sex couples in California who wish to marry. To be sure, the significance of this failure to observe jurisdictional limits will likely be de minimis if the Court agrees that either Proponents or the Imperial Intervenors has standing and therefore adjudicates the merits, for in that event, this Court’s ruling will govern throughout California (and the rest of the Circuit) as a matter of precedent. If, however, the Court concludes that both Proponents and the Imperial Intervenors lack standing to appeal, the district court’s failure to abide by the limits of its power must be corrected by vacatur, as required by Zepeda, in order to prevent the injunction from improperly applying throughout California even though no state-wide class was certified.

I hope you see the problem here. No class was certified (which, from what I understand, the plaintiffs were brought to task for, by one of the appelate judges). If a class had been certified, then that class would have possibly included the Walker (unless he certified he had no interest in marrying his partner). Walker would have been a party to the proceedings. His ruling, in effect (if not in fact) certified a class for which he could be a party.

[TAO]

Tao, I don't quite understand your comment.

In the United States there are fundamental rights that are recognized by the courts and being fundamental

But these fundamental rights change clearly over time, and are not the same in one country compared to another. Therefore, they are not fundamental; they are not unalienable. They are based on opinion, and they can be changed via vote just as can nearly every 'right' that exists.

which means the courts will apply strict scrutiny in determining whether a law is valid when that law affects a fundamental right.

Doesn't matter. As I said, fundamental rights aren't 'absolute' - they can be changed. They aren't universal. If they have a vote to change some of those rights, they might not exist anymore. That's why I was a bit 'iffy' with your statement... you were like 'do you know what fundamental rights are?' when they aren't as 'absolute' as they sound.

cdowis, clearly does not understand the difference between a privilege and a fundamental right

Fundamental rights are privileges - just privileges that seem to be much more permanent than regular privileges. However, that doesn't mean they are absolute.

cdowis also does not understand what fundamental right means - as if cdowis did understand cdowis would not have stated that the court must let something happen because of a fundamental right.

Frank..... do you know what a right is? I mean 'practically' speaking... not 'pride in the USA' style of speaking, if you know what I mean. =P

A right... is a privelage that has been granted by the government. It may be removed at any time the government (in this case, the people) decide to remove it. Fundamental Rights are a bit stronger because they are taught strongly in education, but they still can be removed if the populus decides to do so. That is why cdowis's point has valid use, imo.

Best Wishes,

unoffensively,

TAO

[california boy]

Remove the period at the end of the link and it will work.

That is correct. The law was found constitutional by the state, so the only way to grant relief was to find it in conflict with the Federal Constitution. However, that wasn't the issue I raised. It was the broadness of the ruling. Quoting from the appeal motion of the proponents:

I hope you see the problem here. No class was certified (which, from what I understand, the plaintiffs were brought to task for, by one of the appelate judges). If a class had been certified, then that class would have possibly included the Walker (unless he certified he had no interest in marrying his partner). Walker would have been a party to the proceedings. His ruling, in effect (if not in fact) certified a class for which he could be a party.

Interesting argument. Personally I think it is a long stretch that the 9th district will agree with the reasoning to limit the action, but I guess they could. We will just have to wait until the judges rule. Both sides present their case using case law to make their case. It is how the judges in the 9th circuit interput the law that really counts.

It seems I remember the prop 8 lawyers arguing with judge Walker about a point of law. When asked what case law they had to assert this opinion, they responded "We are hoping this case will become the case law." When you got nothing to base your argument on from past cases, then you try and make your case soley on the argument itself. But it generally makes a very weak case. If the plaintiffs have nothing to support their assertions, they will find themselves in the same tight spot and the judges will rule accordingly. I honestly don't know what if any case law the plantiffs used to support their assertion. Perhaps someone else knows.

I have learned a lot about how the legal system in this country works following this case. Maybe I will go for a law degree when this is all over. lol.

[frankenstein]

Tao,

cdowis, is wrong, it is just that simple. someone who understands fundamentals rights would know how absolutely wrong cdowis is with the following statement:

"Can a man marry his daughter, or a brother marry his sister. If it is a fundamental right, then the courts must allow such marriages."

cdowis statements shows the he/she does not understand the legal ramifications/application/analysis of fundamental rights.

[cdowis]

cdowis, is wrong, it is just that simple. someone who understands fundamentals rights would know how absolutely wrong cdowis is with the following statement:

"Can a man marry his daughter, or a brother marry his sister. If it is a fundamental right, then the courts must allow such marriages."

OK, I was wrong. The courts can restrict a fundamental right == the right of free speech has restraints, marriage has restrictions.

We both agree that fundamental rights are not unlimited, is that not so? I think we are in agreement.

[TAO]

cdowis, is wrong, it is just that simple. someone who understands fundamentals rights would know how absolutely wrong cdowis is with the following statement:

Frank, this is a blanket statement. Just because a right is fundamental doesn't mean it is permanent, as I pointed out. You need to answer cwodis's point with something other than 'it's a fundamental right', because it may not be 'a fundamental right' in the future.

cdowis statements shows the he/she does not understand the legal ramifications/application/analysis of fundamental rights.

My friend, as I have pointed out, fundamental rights change from country to country, and can even change in the same country over time. You need to base your point on something more solid than a fundamental right, imo. =/

To be quite honest... it seems as if you missed the point of my other post... in other words, fundamental rights are not a good enough justification for your argument because they are not completely unalienable. But maybe I just phrased it weirdly or something.

Best Wishes,

Your Friend,

TAO

EDIT: Also, even though cdowis has conceded, I do not. I need you to provide more basis that the fundamental right of mairrage will not change in interpretation over time. For I believe it will change. In fact, I believe this court case is an attempt to redefine it, in a way. Thus, this court case is showing us that fundamental rights will change. And if they can change, they are not a strong enough base for a point if you know what I mean =P.

Erp, I probably sound ultra-complex. XP.

[cdowis]

Also, even though cdowis has conceded, I do not.

I asked a simple question, and he was unable to answer it, except to say that I had no right to ask such a question.

Anyway, I see no point something which has no significance in our discussion. A "fundamental right" is not meaningful argument for SS marriage, since limitations can and have been placed on those "fundamental rights".

One of those limitations is the marriage between father and daughter. That simple fact blows away his assertion, which put him into a fit of rage.

OK, sirrah, you can now have your fundamental right, but it leads nowhere.

[Mordecai]

Frankly, I don't know how to define "fundamental right," other than to suggest that it must be self-evident, coming from some observable facts and/or an cut and dry line of reasoning. Fundamental implies to me, that it's not dependent on our political environment nor on people's opinions.

All of that considered, I don't think any thinking person would suggest that nature, reason nor God demands that a government, a man-made, artificial construct, must necessarily recognize a gay union in a special way if at all. The whole idea is comical. None of the great moral philosophers nor our founding fathers made even the slightest allusion toward such a ridiculous notion.

[frankenstein]

I asked a simple question, and he was unable to answer it, except to say that I had no right to ask such a question.

you made a statement that indicated you did not understand what you were referring too. it seems you may have to read up on fundamental rights, thank you for your understanding.

--------

TAO, all US citizens should fear the day that fundamental are taken away without cause or reason and the courts do nothing about it. As the case law of the United States, fundamental rights may not be put to popular vote, and there is a very high and virtually unattainable hurdle for legally infringing on a fundamental right. What other countries do isn't part of the issue, I should have been specific as to refer to US law and case law.

[Calm]

Frankly, I don't know how to define "fundamental right," other than to suggest that it must be self-evident, coming from some observable facts and/or an cut and dry line of reasoning. Fundamental implies to me, that it's not dependent on our political environment nor on people's opinions.

All of that considered, I don't think any thinking person would suggest that nature, reason nor God demands that a government, a man-made, artificial construct, must necessarily recognize a gay union in a special way if at all. The whole idea is comical. None of the great moral philosophers nor our founding fathers made even the slightest allusion toward such a ridiculous notion.

Having lived in a place where some "fundamental rights" claimed by others were lacking, I tend to have a different view of what really is a "fundamental right" and so always when discussing such define what I mean to avoid confusion.

If one views "rights" as being established by the legal system and not independent as such, one could define "fundamental right" as something inherent or foundational in a specific legal system.

Sometimes, rights. that which is due to anyone by just claim, legal guarantees, moral principles, etc.

http://dictionary.reference.com/browse/rights

I think it is important in conversation to determine what one means though by "right"....does one mean something everyone deserves whether they are allowed it or not, is it something that exists independent of a legal or moral system or something that exists within such. Otherwise you have what appears to be happening here, talking about two different things as if they were the same and thus ending up disagreeing.

[frankenstein]

All of that considered, I don't think any thinking person would suggest that nature, reason nor God demands that a government, a man-made, artificial construct, must necessarily recognize a gay union in a special way if at all. The whole idea is comical. None of the great moral philosophers nor our founding fathers made even the slightest allusion toward such a ridiculous notion.

its comical that governments feel any need to recognize or prohibit any type of coupling of persons. child custody and child support have nothing to do with marriage, and those hetero couples who choose to stay together stay together, and 8 letters of the English language are not what keeps a couple together that chooses to stay together.

[TAO]

TAO, all US citizens should fear the day that fundamental are taken away without cause or reason and the courts do nothing about it. As the case law of the United States, fundamental rights may not be put to popular vote, and there is a very high and virtually unattainable hurdle for legally infringing on a fundamental right. What other countries do isn't part of the issue, I should have been specific as to refer to US law and case law.

Well, I think the courts just took a way that right for a person to marry their parents then, no?

You are not succeeding in telling us what is the difference between a relationship between those who consider themselves gay, and those who have a parent-child relationship.

And yes I do fear it. But that doesn't mean that I don't realize it will happen. In fact - fundamental rights don't have to even be taken away for this to happen - they just have to be interpreted differently. =/

And that is what is happening here. So tell me... what is the difference between those two? The only fundamental rights granted in the constitution are life, liberty, and the pursuit of happiness, but you have not shown how the one conflicts, whereas the other does not. And no, gay mairrage is not any more of a fundamental right than marrying your child is - just ask those puritans from the 18th century. I'm sure they would tell you that neither is a fundamental right.

Ultiamtely, I am asking you to explain your logic rather than say 'it just is'. =P

Best Wishes,

TAO

[Stargazer]

Well, I think the courts just took a way that right for a person to marry their parents then, no?

You are not succeeding in telling us what is the difference between a relationship between those who consider themselves gay, and those who have a parent-child relationship.

And yes I do fear it. But that doesn't mean that I don't realize it will happen. In fact - fundamental rights don't have to even be taken away for this to happen - they just have to be interpreted differently. =/

And that is what is happening here. So tell me... what is the difference between those two? The only fundamental rights granted in the constitution are life, liberty, and the pursuit of happiness, but you have not shown how the one conflicts, whereas the other does not. And no, gay mairrage is not any more of a fundamental right than marrying your child is - just ask those puritans from the 18th century. I'm sure they would tell you that neither is a fundamental right.

Ultiamtely, I am asking you to explain your logic rather than say 'it just is'. =P

Best Wishes,

TAO

No, the rights mentioned in the Declaration of Independence are not fundamental, they are unalienable. In an earlier stage of this thread frankenstein pulled me up short by bringing up a couple of SCOTUS cases wherein the justices did indeed say that marriage was a fundamental right. Now, none of the cases were bearing upon same-sex marriage, and were concerned with marriage between man and woman. The problem with frankenstein is that he takes it too far. Just because marriage is a fundamental right, doesn't mean that it can't be defined in law, regulated, and otherwise governed by law. I cited him one example of that from Washgton state's Code, wherein it specifically said marriage was male/female, and further went on to say that certain marriages would not be permitted, including those of too close of degree of blood relationship. Similar laws exist in most states (if not all). I don't think he cares.

Thus, whether it is a fundamental right, there is nothing in so saying that requires that two same-sex individuals can marry. Regardless of whether for a short time in California it was temporarily (and wrongfully) granted.

[TAO]

No, the rights mentioned in the Declaration of Independence are not fundamental, they are unalienable. In an earlier stage of this thread frankenstein pulled me up short by bringing up a couple of SCOTUS cases wherein the justices did indeed say that marriage was a fundamental right. Now, none of the cases were bearing upon same-sex marriage, and were concerned with marriage between man and woman. The problem with frankenstein is that he takes it too far. Just because marriage is a fundamental right, doesn't mean that it can't be defined in law, regulated, and otherwise governed by law. I cited him one example of that from Washgton state's Code, wherein it specifically said marriage was male/female, and further went on to say that certain marriages would not be permitted, including those of too close of degree of blood relationship. Similar laws exist in most states (if not all). I don't think he cares.

Thus, whether it is a fundamental right, there is nothing in so saying that requires that two same-sex individuals can marry. Regardless of whether for a short time in California it was temporarily (and wrongfully) granted.

Well, according to the Wikipedia article he wanted us to read, the unalienable rights are fundamental too.

Another thing... if the UN changes it's opinion on what is 'fundamental' and what 'isn't'... the whole ball game could change.

Nonetheless, I still wish him to explain why he believes certain types of mairrage are fundamental, and certain aren't. But yah =P.

Best Wishes,

TAO

[frankenstein]

Just because marriage is a fundamental right, doesn't mean that it can't be defined in law, regulated, and otherwise governed by law.

I have never claimed marriage couldn't be.

I cited him one example of that from Washgton state's Code, wherein it specifically said marriage was male/female, and further went on to say that certain marriages would not be permitted, including those of too close of degree of blood relationship. Similar laws exist in most states (if not all).

I never saw your reference to Washington State's code. And, yes, many if not all states have restrictions on marriage.

I don't think he cares.

If you go back and read yours and mine first interactions in this thread, the interactions revolve mostly around you denying historical fact. That historical fact being, that ssm was a legal right in Ca. and that legal right was taken away by popular vote.

---------------

TAO, what do you want me to explain? The few claims I have made in this thread were about the historical fact that ssm was a legal right in Ca.; that Marriage is a fundamental; and that fundamental rights can not be put to popular vote. I have provided case law to counter the false claims by others; which is pretty much my M.O on threads like these - countering false claims or bring to light the full facts when the truth has been obfuscated to disparage a group.

As for fundamental rights in the Constitutional, yes, there are a only a few explicitly mentioned, but the others are found within the intent and meaning of the Constitution -- right to privacy for instance.

[Mordecai]

...its comical that governments feel any need to recognize or prohibit any type of coupling of persons...

Prohibiting incest is for the best, I would think.

...child custody and child support have nothing to do with marriage...

Right.... because living together as husband and wife never results in having children. Obviously.

...and those hetero couples who choose to stay together stay together, and 8 letters of the English language are not what keeps a couple together that chooses to stay together...

Very true. But without the ceremony and without the legal contract, it's less likely to remain intact. Much less likely. The legal contract helps, and is important because living together as husband and wife can well lead to children, and those children need stability. The recognition and approval of the community and extended family is also important for social support and the power of expectations.

[california boy]

Very true. But without the ceremony and without the legal contract, it's less likely to remain intact. Much less likely. The legal contract helps, and is important because living together as husband and wife can well lead to children, and those children need stability. The recognition and approval of the community and extended family is also important for social support and the power of expectations.

Is this an argument for extending the right to marry to gay couples?? Have you changed your position like so many others? Good for you.

It certainily makes sense to extend marriage to all those couples that want a more stable relationship for all of the reasons you have stated above. I think all who support marriage would agree that less people living together without the bonds of marriage the better off and more stable this nation will be.

[Mordecai]

Is this an argument for extending the right to marry to gay couples?? Have you changed your position like so many others? Good for you.

I didn't mention that you have to have the word marriage to describe such a union, nor did I mention Federal government involvement. Everything I said applies also to civil unions.

[TAO]

TAO, what do you want me to explain? The few claims I have made in this thread were about the historical fact that ssm was a legal right in Ca.; that Marriage is a fundamental; and that fundamental rights can not be put to popular vote. I have provided case law to counter the false claims by others; which is pretty much my M.O on threads like these - countering false claims or bring to light the full facts when the truth has been obfuscated to disparage a group.

As for fundamental rights in the Constitutional, yes, there are a only a few explicitly mentioned, but the others are found within the intent and meaning of the Constitution -- right to privacy for instance.

I'm not objecting to your claim, I am objecting to your use of 'fundamental rights' as an end-point. They aren't an end-point.

I am objecting to your claim though that same sex mairrage is fundamental in comparison to the broad category of mairrage. Again, it did not refer specifically to same sex mairrage, and so it isn't a good enough point to justify the claim.

[frankenstein]

I'm not objecting to your claim, I am objecting to your use of 'fundamental rights' as an end-point. They aren't an end-point.

I am objecting to your claim though that same sex mairrage is fundamental in comparison to the broad category of mairrage. Again, it did not refer specifically to same sex mairrage, and so it isn't a good enough point to justify the claim.

have I stated that ssm is a fundamental right, or have I only posted case which states that marriage to a person of ones own choosing is a fundamental right?