Equality, Morality, And The Law

[Bikeemikey]

Unless we live in an amoral society and are governed amorally, then the so-called "shaky territory" is unavoidable. We don't.

Besides, whether and how the government makes decisions on issues of morality, is, itself, a constitutional issues.

Thanks, -Wade Englund-

Yes and as a result of this reality modern constitutional democracy was created by the founding fathers.

It was on the principle that govt. should only engage in a narrow subsection of moral action and oversight, that is the protection of property and freedom from harm, as well as the protection of consent.

Govt is concerned with some morality, just not all morality.

[wenglund]

Since none of the avid proponents of equality seem inclined to answer the question of the OP, I will letting this thread drift into oblivion. .

 

When will I learn not to beat my head against the culturally indoctrinated wall?

 

Thanks, -Wade Englund- 

[SeekingUnderstanding]

The issue I raised wasn't whether the courts get to decide the constitutionality of the law, but the reaction of equality-sensitive people here to the realization that the courts are using extra-constitutional means for interpreting the Constitution which privileges certain classes of people--treating them unequally.

 

Thanks, -Wade Englund-

But judicial review itself is not explicitly lined out in the constitution. If we are going to talk about the extra constitutionality of certain aspects of judicial review, shouldn't we start at the beginning?

[SeekingUnderstanding]

There are a number of question that I wish to pose in this thread regarding the principles of equality and morality in relation to the law.

 

First, in a culture that seems obsessed with equality, would it disturb you to learn that U.S. courts employ an extra-constitutional method of judicial review which intentionally gives unequal treatment to certain classes of people, particularly in cases where there is a moral component?

 

In other words, are you bothered by the fact that the very Constitution that some believe is intended to assure equality, is being interpreted extra-constitutionally and inequitably on moral issues--not that anything can necessarily be done about it?

 

Thanks, -Wade Englund-

 

In addition to the fact that judicial review for constitutionality of laws in not explicitly written into the constitution itself, you seem to have a fundamental misunderstanding of what people mean when they say they favor equality. Favoring equality does not mean that everyone (including animals apparently) gets treated the same. As was pointed out to you in a now closed thread:

 

 

Social equality requires the absence of legally enforced social class or caste boundaries and the absence of discrimination motivated by an inalienable part of a person's identity. For example, sex, gender, race, age, sexual orientation, origin, caste or class, income or property, language, religion, convictions, opinions, health or disability must not result in unequal treatment under the law and should not reduce opportunities unjustifiably.

 

If you want to have a productive discussion about these issues, it would help if we started by understanding how we use the word differently.

Edited June 6, 2014 by SeekingUnderstanding

[thesometimesaint]

Maybe we should amend the Constitution.

 

That's been proposed. I'll get into my "Wayback" machine and time travel back to the early 1970's. Groups of college students would go out into their communities and try to get people to sign the Bill of Rights in our Constitution. They got few takers.

[thesometimesaint]

I don't think he's talking about freedom of religion.

 

Not directly. I'm talking about the prohibiting the free exercise thereof part.

[thesometimesaint]

But judicial review itself is not explicitly lined out in the constitution. If we are going to talk about the extra constitutionality of certain aspects of judicial review, shouldn't we start at the beginning?

 

It is the logical extension of the Due Process clause that is in the US Constitution. Interestingly the former USSR's Constitution precluded judicial review. It created real problems in governing.

[BCSpace]

In other words, are you bothered by the fact that the very Constitution that some believe is intended to assure equality, is being interpreted extra-constitutionally and inequitably on moral issues--not that anything can necessarily be done about it?

 

Yes I am.

 

I think you and I are on the same page.  However, does it bother anyone that the fact is when the Church speaks about equality in the sense of the law of consecration, it means that everyone's just wants and needs have equal claim? I am not bothered at all by it.

 

Yet some might say that is an example of people not being treated equally under the law, this case, a gospel law.

 

It is obvious that the notion that everyone must forced to have equal material shares is sinful.  Is it possible that not everyone should have equal shares of liberty or opportunity (such inequality is created by quotas or the the state recognition of ssm etc.)?  I think not as the gospel definition of equality speaks to the later and the former comes only with the exercise of free will.

Edited June 7, 2014 by BCSpace

[Daniel2]

The issue I raised wasn't whether the courts get to decide the constitutionality of the law, but the reaction of equality-sensitive people here to the realization that the courts are using extra-constitutional means for interpreting the Constitution which privileges certain classes of people--treating them unequally.

 

Thanks, -Wade Englund-

Which "class" of people have the courts singled out and treated unequally?

[sethpayne]

There are a number of question that I wish to pose in this thread regarding the principles of equality and morality in relation to the law.

 

First, in a culture that seems obsessed with equality, would it disturb you to learn that U.S. courts employ an extra-constitutional method of judicial review which intentionally gives unequal treatment to certain classes of people, particularly in cases where there is a moral component?

 

In other words, are you bothered by the fact that the very Constitution that some believe is intended to assure equality, is being interpreted extra-constitutionally and inequitably on moral issues--not that anything can necessarily be done about it?

 

Thanks, -Wade Englund-

 

Another thought-provoking OP from Wade.

 

I wonder if our culture is obsessed with *equality* or *equality of opportunity.*  I suspect the latter.  In which case yes, there are times when Judicial (or Executive for that matter) action is necessary to ensure the 14th amendment is upheld.  

 

That said, sensible discussion should be had as to the limits or parameters of such actions.  

[california boy]

Anyone who takes the time to read the numerous court rulings on gay marriage has a better understanding about why the courts are ruling for allowing gay marriage.  It is not that they are granting a right, but rather they have no reason to prevent such a right.  Time after time, the question remains unanswered "How does allowing gays to marry cause any harm to the state or to individuals."  the answer from those fighting gay marriage is a resounding silence.  Since no harm is done by allowing gay couples to marry, then the state can not refuse such a request.  

 

It is not so much a new right being given as it is the courts not having a sufficient reason to not allow gay marriage to be legal.  If those that oppose gay marriage can come up with a reason why gay marriage causes harm to either individuals or the state, then they would be giving the courts a reason to deny such an action.  So far, nothing.  This is what is met by equal protection.  You can not deny someone a right just because you don't like them.  If you are going to deny them the same privilege as other, you have to have a good reason to do so.  I am not a lawyer, but that is what I am getting out of the court rulings.  It seems to be the focal question that has been left unanswered time and time and time again in all of these court cases.

[thesometimesaint]

Anyone who takes the time to read the numerous court rulings on gay marriage has a better understanding about why the courts are ruling for allowing gay marriage.  It is not that they are granting a right, but rather they have no reason to prevent such a right.  Time after time, the question remains unanswered "How does allowing gays to marry cause any harm to the state or to individuals."  the answer from those fighting gay marriage is a resounding silence.  Since no harm is done by allowing gay couples to marry, then the state can not refuse such a request.  

 

It is not so much a new right being given as it is the courts not having a sufficient reason to not allow gay marriage to be legal.  If those that oppose gay marriage can come up with a reason why gay marriage causes harm to either individuals or the state, then they would be giving the courts a reason to deny such an action.  So far, nothing.  This is what is met by equal protection.  You can not deny someone a right just because you don't like them.  If you are going to deny them the same privilege as other, you have to have a good reason to do so.  I am not a lawyer, but that is what I am getting out of the court rulings.  It seems to be the focal question that has been left unanswered time and time and time again in all of these court cases.

 

Agreed.

[Bikeemikey]

Agreed.

Me to.

[Zeta-Flux]

 

 

First, in a culture that seems obsessed with equality, would it disturb you to learn that U.S. courts employ an extra-constitutional method of judicial review which intentionally gives unequal treatment to certain classes of people, particularly in cases where there is a moral component?

 

I'm okay with the fact that we, as a culture, have decided there are certain classifications which require more justification from our legislature than mere rationality in order for them to make laws which impact people primarily with respect to those classifications.

 

What disturbs me is that (A) the judiciary seems (in my opinion) to often misapprehend rational arguments as hatred/animus and (B) is too prone to social engineering by expanding the classifications meriting strict scrutiny without any basis for such expansion in the will of the people or the text of the constitution.

[california boy]

I'm okay with the fact that we, as a culture, have decided there are certain classifications which require more justification from our legislature than mere rationality in order for them to make laws which impact people primarily with respect to those classifications.

 

What disturbs me is that (A) the judiciary seems (in my opinion) to often misapprehend rational arguments as hatred/animus and (B) is too prone to social engineering by expanding the classifications meriting strict scrutiny without any basis for such expansion in the will of the people or the text of the constitution.

Well let's think about how this all came about.  The constitution was written with the fundamental principle of treating all citizens equally under the law.  Then some "good" citizens thought that it would be ok to pass laws preventing someone who was black from doing certain things even though their skin color did not cause any additional harm to the government or other citizens.  So the courts had to say specifically, no passing laws against someone simply because they are black.  Now that same scenario has happened with each and every group that the courts have designated.  (one's religion, gender, etc.)  Evidently it is necessary for legislature/citizens to be reminded that just because a group is a minority does not mean that laws against that minority causes any harm to other citizens.  

 

The latest round happens to be gay marriage.  Gays should have always had the right to marry.  But some legislation and citizens decided to once again pass laws against this minority group even though (and this is the important point) no harm to government or other citizens was caused by gays marrying.  So once again, the courts are saying simply because someone is gay does not mean you can pass laws against that group.  YOU HAVE TO HAVE A RATIONAL REASON for such laws.  If there is nothing about being gay that causes harm to others, then like other groups before them the courts are reminding both the legislature and the citizens that they can not pass laws against a group simply because they are gay.  Since no one seems to be able to come up with a reason for treating gays differently under the law, then the courts are saying laws against them are against the principle of equality under the constitution.  

 

If laws are passed simply because someone is gay and no other reason, then yes it is because of hatred or animus.  What other reason would you pass such laws?  Come up with a reason for passing such laws and you may have a point.  

[Zeta-Flux]

Well let's think about how this all came about.  The constitution was written with the fundamental principle of treating all citizens equally under the law.  Then some "good" citizens thought that it would be ok to pass laws preventing someone who was black from doing certain things even though their skin color did not cause any additional harm to the government or other citizens.  So the courts had to say specifically, no passing laws against someone simply because they are black.

 

Actually, it wasn't the courts.  It was the people of the United States, via the adoption of the 14th amendment.  And if you re-read my post, I said I approve that action.

 

 

 

Now that same scenario has happened with each and every group that the courts have designated.  (one's religion, gender, etc.)  Evidently it is necessary for legislature/citizens to be reminded that just because a group is a minority does not mean that laws against that minority causes any harm to other citizens.

 

This is the type of thinking that I disagree with.  It isn't the role of the judiciary to remind us.  Their role is to rule according to the laws written.  Not to expand them, even if such an expansion could be viewed as a good, or even natural outgrowth, of existing laws.  That is the role of the the legislature. 

 

 

 

 The latest round happens to be gay marriage.  Gays should have always had the right to marry.

 

 

As you know, they already have that right.  They want a new right which involves redefining marriage.  But this thread isn't about gay marriage, per se, so I'll leave it at that.

 

 

YOU HAVE TO HAVE A RATIONAL REASON for such laws.  If there is nothing about being gay that causes harm to others, then like other groups before them the courts are reminding both the legislature and the citizens that they can not pass laws against a group simply because they are gay.  Since no one seems to be able to come up with a reason for treating gays differently under the law, then the courts are saying laws against them are against the principle of equality under the constitution.  

 

If laws are passed simply because someone is gay and no other reason, then yes it is because of hatred or animus.  What other reason would you pass such laws?  Come up with a reason for passing such laws and you may have a point.  

 

As I said above, there are multiple rational reasons, many of which were presented in court.  To quote myself: "the judiciary seems (in my opinion) to often misapprehend rational arguments as hatred/animus."

[california boy]

 

 

As I said above, there are multiple rational reasons, many of which were presented in court.  To quote myself: "the judiciary seems (in my opinion) to often misapprehend rational arguments as hatred/animus."

So what do you think is the most rational reason that has been presented in court.  And why do you think virtually every justice has ruled in support of gay marriage?

[The Nehor]

So Wade, are you going to go into why there are protected classes? And why one of the many purposes is actually to prevent what amounts to personal terrorism. Because if you are opposed to stopping terrorism you may want to reconsider many other stands you have.

[thesometimesaint]

Actually, it wasn't the courts.  It was the people of the United States, via the adoption of the 14th amendment.  And if you re-read my post, I said I approve that action.

 

 

This is the type of thinking that I disagree with.  It isn't the role of the judiciary to remind us.  Their role is to rule according to the laws written.  Not to expand them, even if such an expansion could be viewed as a good, or even natural outgrowth, of existing laws.  That is the role of the the legislature. 

 

 

 

As you know, they already have that right.  They want a new right which involves redefining marriage.  But this thread isn't about gay marriage, per se, so I'll leave it at that.

 

 

As I said above, there are multiple rational reasons, many of which were presented in court.  To quote myself: "the judiciary seems (in my opinion) to often misapprehend rational arguments as hatred/animus."

 

Equality before the law is a bedrock principle in this country. By the same token that equality has been and probably will continue to have hard fought battles in that ever ending war.

[Zeta-Flux]

So what do you think is the most rational reason that has been presented in court.  And why do you think virtually every justice has ruled in support of gay marriage?

 

The most rational reason?  I don't know if one can quantify levels of rationality-- what characteristics would make an argument less rational but still not irrational?

 

Anyway, probably the most non-controversial argument at present is "let's wait until the social science is more clear on the subject".  As you know, the small sample sizes of people in same-sex relationships raising children makes it difficult to measure (with statistical precision) the effects parenting by said individuals has on children.  Studies coming from countries where it has been legal for decades are divided, often along political lines, in their conclusions.

 

As for why I think that most judges are ruling against traditional marriage, it is pretty simple.  They are following the recent supreme court precedent set when they ruled that the U.S. must allow SSM in federal law.  Before that ruling, court decisions seemed evenly split between the two alternatives.

 

-----

 

thesometimesaint,

 

I don't see how your response to my post is connected to anything I said.  I agree with the principle of equality before the law, and I agree people will continue to litigate with respect to it.

 

But what we are discussing here is a different concept altogether.  And I don't agree with the idea that all characteristics are irrelevant to determinations of the law.

[sethpayne]

So Wade, are you going to go into why there are protected classes? And why one of the many purposes is actually to prevent what amounts to personal terrorism. Because if you are opposed to stopping terrorism you may want to reconsider many other stands you have.

 

 

Apparently Wade opposed President Kennedy enforcing integration in Little Rock.  Abuse of Executive power and all that.  Absolute tyranny in the name of equality.

[california boy]

The most rational reason?  I don't know if one can quantify levels of rationality-- what characteristics would make an argument less rational but still not irrational?

 

Anyway, probably the most non-controversial argument at present is "let's wait until the social science is more clear on the subject".  As you know, the small sample sizes of people in same-sex relationships raising children makes it difficult to measure (with statistical precision) the effects parenting by said individuals has on children.  Studies coming from countries where it has been legal for decades are divided, often along political lines, in their conclusions.

 

As for why I think that most judges are ruling against traditional marriage, it is pretty simple.  They are following the recent supreme court precedent set when they ruled that the U.S. must allow SSM in federal law.  Before that ruling, court decisions seemed evenly split between the two alternatives.

 

 

While waiting another 25, 50 or how many years you personally want to wait to see if there is any harm done to others may be a personal preference, it is not how our government at least should address issues of equality.  I am sure you can see the problem with that approach as much as the courts do.  And given the track record of granting equality to other minority groups, telling them only a few will be granted certain rights "just to see how things go", I would say your approach is pretty unfair and not a real valid legal approach.  

[thesometimesaint]

The most rational reason?  I don't know if one can quantify levels of rationality-- what characteristics would make an argument less rational but still not irrational?

 

Anyway, probably the most non-controversial argument at present is "let's wait until the social science is more clear on the subject".  As you know, the small sample sizes of people in same-sex relationships raising children makes it difficult to measure (with statistical precision) the effects parenting by said individuals has on children.  Studies coming from countries where it has been legal for decades are divided, often along political lines, in their conclusions.

 

As for why I think that most judges are ruling against traditional marriage, it is pretty simple.  They are following the recent supreme court precedent set when they ruled that the U.S. must allow SSM in federal law.  Before that ruling, court decisions seemed evenly split between the two alternatives.

 

-----

 

thesometimesaint,

 

I don't see how your response to my post is connected to anything I said.  I agree with the principle of equality before the law, and I agree people will continue to litigate with respect to it.

 

But what we are discussing here is a different concept altogether.  And I don't agree with the idea that all characteristics are irrelevant to determinations of the law.

 

We tend to limit irrelevant characteristics. IE; Things like race, creed, color, religion, sex, national origin, and increasingly age(after reaching majority), and sexual orientation as legitimate justifications for discrimination in law.

[Zeta-Flux]

While waiting another 25, 50 or how many years you personally want to wait to see if there is any harm done to others may be a personal preference, it is not how our government at least should address issues of equality.  I am sure you can see the problem with that approach as much as the courts do.  And given the track record of granting equality to other minority groups, telling them only a few will be granted certain rights "just to see how things go", I would say your approach is pretty unfair and not a real valid legal approach.  

Why can't governments wait 25-50 years?  That seems a perfectly reasonable and rational approach to the subject, especially when the current social science on the subject is extremely polar.

 

It only seems "unfair" if you ignore the huge potential negative consequences.

 

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

 

 

We tend to limit irrelevant characteristics. IE; Things like race, creed, color, religion, sex, national origin, and increasingly age(after reaching majority), and sexual orientation as legitimate justifications for discrimination in law.

 

Agreed.  What I don't like, as I said above, is the court's propensity to overstep its bounds and claiming that a characteristic is irrelevant when it is not.

[Zeta-Flux]

CaliforniaBoy,

 

Since you asked for the best rational arguments, the new website http://www.discussingmarriage.org/ has a series of short videos presenting some good arguments being made for traditional marriage.