Equality, Morality, And The Law

[thesometimesaint]

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.

 

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

 

 

 

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.

 

When a legislature of a government refuses to act. Should the courts of that government also refuse to act? Do we all go down that drain of inaction? IE; The South was convinced that race was a characteristic that would be a basis for discrimination. Were the courts wrong in Loving v Virginia?

[Zeta-Flux]

When a legislature of a government refuses to act. Should the courts of that government also refuse to act? Do we all go down that drain of inaction? IE; The South was convinced that race was a characteristic that would be a basis for discrimination. Were the courts wrong in Loving v Virginia?

 

 

Your first question is a false dichotomy.  If our legislature refuses to incorporate the will of the people into law, we have the right and ability to elect a new legislature.  The role of the judiciary is completely different which is why they have no term limits, and in some cases no re-elections.

 

But, yes, if the legislature fails to act in their role, then the judiciary should NOT take up that role and act in it.  (But they can, and should, continue to act in the role they have been appointed.)

 

As for going "down that drain of inaction", that seems a bit melodramatic.

 

Finally, in my opinion the ruling in Loving v Virginia was fundamentally sound.

Edited June 9, 2014 by Zeta-Flux

[california boy]

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.

 

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

 

 

 

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.

Why can't the government wait 25 or 50 years? Are you seriously asking that question?  If the government decided that you could not be married for 25 years of your life because they wanted to evaluate how your relationship with your spouse may play out, Perhaps your marriage may not go well.  Maybe by forcing you to wait as well, the government will be in a better position to see if your marriage is a good idea. Do you think interracial couples should have been forced to wait 25 or 50 years as well?

 

I listened to the links you posted.  The problem is, no one is advocating for eliminating conjugal marriage.  I don't think anyone believes that if SSM is legal than straight couples will all the sudden decide to let gay couples take over the marriage responsibilities for society and choose not to get married.  The justices have been very pointed in asking what harm will be done to traditional marriage.  So far, no one has been able to come up with any evidence of possible harm to "conjugal marriage".  

[thesometimesaint]

Your first question is a false dichotomy.  If our legislature refuses to incorporate the will of the people into law, we have the right and ability to elect a new legislature.  The role of the judiciary is completely different which is why they have no term limits, and in some cases no re-elections.

 

But, yes, if the legislature fails to act in their role, then the judiciary should NOT take up that role and act in it.  (But they can, and should, continue to act in the role they have been appointed.)

 

As for going "down that drain of inaction", that seems a bit melodramatic.

 

Finally, in my opinion the ruling in Loving v Virginia was fundamentally sound.

 

In 1803 the Supreme Court decided that it had the authority to change written law. See Marbury v Madison

SEE http://en.wikipedia.org/wiki/Marbury_v._Madison

 

That is an oxymoronic statement in light of your previous statement.

[Zeta-Flux]

In 1803 the Supreme Court decided that it had the authority to change written law. See Marbury v Madison

SEE http://en.wikipedia.org/wiki/Marbury_v._Madison

 

That is an oxymoronic statement in light of your previous statement.

I'll let a lawyer correct me, but I'm pretty sure Marbury v Madison does not allow any court to rewrite laws, only to declare them unconstitutional.

[Zeta-Flux]

Why can't the government wait 25 or 50 years? Are you seriously asking that question? 

Yes.

 

 

 

If the government decided that you could not be married for 25 years of your life because they wanted to evaluate how your relationship with your spouse may play out, Perhaps your marriage may not go well.  Maybe by forcing you to wait as well, the government will be in a better position to see if your marriage is a good idea. Do you think interracial couples should have been forced to wait 25 or 50 years as well?

california boy, you asked about a rational reason.  You didn't ask for a non-problematic, universally acceptable, reason.  It is rational for a society to decide to wait, even though it may cause heart-ache.

 

As for interracial couples, the laws there specifically inquired into the skin colors in order to promote white supremacy.  There were no laws preventing black and asian coupling, just white and "colored" coupling. This was plainly (as decided by a UNANIMOUS supreme court decision) irrational, and specifically designed to discriminate.

 

On the other hand, traditional marriage laws in general were not created in order to discriminate against homosexuals.  Rather, they were designed for a specific purpose (as discussed on the website I linked to above) to promote social norms regarding a father and mother parenting children.  Further, these laws do no inquire into the sexual preferences of the individuals.

 

 

I listened to the links you posted.  The problem is, no one is advocating for eliminating conjugal marriage.  I don't think anyone believes that if SSM is legal than straight couples will all the sudden decide to let gay couples take over the marriage responsibilities for society and choose not to get married.  The justices have been very pointed in asking what harm will be done to traditional marriage.  So far, no one has been able to come up with any evidence of possible harm to "conjugal marriage".  

I disagree.  And the harm is obvious--mission creep.

[thesometimesaint]

I'll let a lawyer correct me, but I'm pretty sure Marbury v Madison does not allow any court to rewrite laws, only to declare them unconstitutional.

 

Not just any court. IE; You local Justice of the Peace court has no ability to determine constitutionality of any Federal law.

 

Then the courts are just Dead Letter clerks, and not a coequal branch of government.

[Tiki]

To note extraconstitutional activity at the State level, do your research on AOGs, or Associations of Governments.

Search "[ the name of your favorite State ] Association of Governments "

Here is CA's: http://www.scag.ca.gov/Pages/default.aspx

Utah's: http://business.utah.gov/wp-content/uploads/utah-associations-of-governments.pdf

Arizona: http://www.cagaz.org

Idaho: http://www.idcounties.org/index.aspx?NID=296

Your voice at the local level has been usurped by additional representation that is not held accountable by your vote.

[thesometimesaint]

To note extraconstitutional activity at the State level, do your research on AOGs, or Associations of Governments.

Search "[ the name of your favorite State ] Association of Governments "

Here is CA's: http://www.scag.ca.gov/Pages/default.aspx

Utah's: http://business.utah.gov/wp-content/uploads/utah-associations-of-governments.pdf

Arizona: http://www.cagaz.org

Idaho: http://www.idcounties.org/index.aspx?NID=296

Your voice at the local level has been usurped by additional representation that is not held accountable by your vote.

 

Sorry. Not seeing the connection between AOG's and "not held accountable by your vote".

[california boy]

Yes.

california boy, you asked about a rational reason.  You didn't ask for a non-problematic, universally acceptable, reason.  It is rational for a society to decide to wait, even though it may cause heart-ache.

 

As for interracial couples, the laws there specifically inquired into the skin colors in order to promote white supremacy.  There were no laws preventing black and asian coupling, just white and "colored" coupling. This was plainly (as decided by a UNANIMOUS supreme court decision) irrational, and specifically designed to discriminate.

 

On the other hand, traditional marriage laws in general were not created in order to discriminate against homosexuals.  Rather, they were designed for a specific purpose (as discussed on the website I linked to above) to promote social norms regarding a father and mother parenting children.  Further, these laws do no inquire into the sexual preferences of the individuals.

I disagree.  And the harm is obvious--mission creep.

 

Well obviously disagree that a rational decision is to wait 50 years before allowing gay couples to marry when there is no evidence of any harm dones to anyone's marriage or any harm to society.

 

Just curious, what do you think the mission creep will be?

[Zeta-Flux]

Well obviously disagree that a rational decision is to wait 50 years before allowing gay couples to marry when there is no evidence of any harm dones to anyone's marriage or any harm to society.

Wait a second!  That isn't what I said.  I said that it is rational to wait while there is currently evidence for harm -- which shows up in about half of the studies I've seen on the subject.  If future studies show conclusively that this harm is imaginary, or not applicable to SSM, then that specific argument will no longer be rational.  (So, in particular, it is highly doubtful it will take your extreme of 50 years before we have a more definitive answer to this question; especially since there are other countries where SSM has become legal and we are now getting data there.)

[Zeta-Flux]

Not just any court. IE; You local Justice of the Peace court has no ability to determine constitutionality of any Federal law.

 

Then the courts are just Dead Letter clerks, and not a coequal branch of government.

 

thesometimesaint, I'm finding it difficult to parse your posts.  Partly the problem stems from strange punctuation, and partly from incomplete thoughts.  So hopefully I can respond to what you meant.  But it would be very helpful if you spent a little more time composing your responses.

 

We have three branches of government.  The legislature who writes law (i.e. legislates), the executive who enforces the law (i.e. executes what is written), and the judiciary who decides questions of the law (i.e. judges).  It is a breach of the separation of powers when any judge (even one [or all] on the supreme court) tries to rewrite laws from the bench.  They can determine that an action of the legislature is invalid, but cannot change the wording of the law to suit their purposes-- they can only declare it unconstitutional.

[california boy]

Wait a second!  That isn't what I said.  I said that it is rational to wait while there is currently evidence for harm -- which shows up in about half of the studies I've seen on the subject.  If future studies show conclusively that this harm is imaginary, or not applicable to SSM, then that specific argument will no longer be rational.  (So, in particular, it is highly doubtful it will take your extreme of 50 years before we have a more definitive answer to this question; especially since there are other countries where SSM has become legal and we are now getting data there.)

 

Half the studies show harm?  Harm to who??  Why are these studies being used in the court cases?  

[thesometimesaint]

thesometimesaint, I'm finding it difficult to parse your posts.  Partly the problem stems from strange punctuation, and partly from incomplete thoughts.  So hopefully I can respond to what you meant.  But it would be very helpful if you spent a little more time composing your responses.

 

We have three branches of government.  The legislature who writes law (i.e. legislates), the executive who enforces the law (i.e. executes what is written), and the judiciary who decides questions of the law (i.e. judges).  It is a breach of the separation of powers when any judge (even one [or all] on the supreme court) tries to rewrite laws from the bench.  They can determine that an action of the legislature is invalid, but cannot change the wording of the law to suit their purposes-- they can only declare it unconstitutional.

 

That makes the courts little more than stenographers, and not a co-equal partner in governance.

SEE Dred Scott Decision for why.

http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

 

Ps; Nowhere in the Constitution does it give the courts the right to determine constitutionality. That is from the 1803 Marbury v Madison Supreme Court decision.

Edited June 10, 2014 by thesometimesaint

[Bikeemikey]

thesometimesaint, I'm finding it difficult to parse your posts. Partly the problem stems from strange punctuation, and partly from incomplete thoughts. So hopefully I can respond to what you meant. But it would be very helpful if you spent a little more time composing your responses.

We have three branches of government. The legislature who writes law (i.e. legislates), the executive who enforces the law (i.e. executes what is written), and the judiciary who decides questions of the law (i.e. judges). It is a breach of the separation of powers when any judge (even one [or all] on the supreme court) tries to rewrite laws from the bench. They can determine that an action of the legislature is invalid, but cannot change the wording of the law to suit their purposes-- they can only declare it unconstitutional.

Except that is not what happens now, not what has happened during the history of constitutional us governance, and simply your "interpretation" of the constitution.

Thus you are wrong.

[jkwilliams]

Half the studies show harm?  Harm to who??  Why are these studies being used in the court cases?  

 

I haven't seen anything like that, either. Pretty much every judge who has ruled in these matters has said that the studies the states have cited are problematic, to say the least, and they have rejected them.

[Zeta-Flux]

Half the studies show harm?

Half of the ones I've seen.  They show things like increased drug usage rates and increased numbers of sexual partners among the LGBT community, in countries where SSM is legal increased rates of divorce among gay men, all sorts of negative effects on children, etc...

 

But it is hard to judge the exact numbers of valid studies because so many of the studies (on both sides) suffer from one or multiple flaws.

 

 

Harm to who??

Children raised without both a father and mother, society as a whole as the marriage norms are weakened, etc...

 

 

 Why are these studies being used in the court cases?  

(1) First, your premise is false.  Many of these studies are being used in the court cases.

 

(2) Some of the court cases are being run by attorney generals who are not fulfilling their proper role of defending the laws of their state.  Thus, it is to be expected that the arguments they present are not the strongest.

[Zeta-Flux]

Except that is not what happens now, not what has happened during the history of constitutional us governance, and simply your "interpretation" of the constitution.

Thus you are wrong.

Thanks Bikeemikey.

 

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

 

That makes the courts little more than stenographers, and not a co-equal partner in governance.

SEE Dred Scott Decision for why.

http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

 

Ps; Nowhere in the Constitution does it give the courts the right to determine constitutionality. That is from the 1803 Marbury v Madison Supreme Court decision.

I find it incredibly interesting how your post ties right back into the premise of this thread-- equality for the sake of equality.

 

Anyway, again I'm not sure how your post is at all related to what I wrote.  I'm familiar both with the Dred Scott case and the fact that it was only in 1803 that the Supreme Court began determining constitutionality.  But I don't see how either of those facts has anything to do with anything I've said to you.  I think we are disconnecting somewhere.

[thesometimesaint]

Thanks Bikeemikey.

 

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

 

I find it incredibly interesting how your post ties right back into the premise of this thread-- equality for the sake of equality.

 

Anyway, again I'm not sure how your post is at all related to what I wrote.  I'm familiar both with the Dred Scott case and the fact that it was only in 1803 that the Supreme Court began determining constitutionality.  But I don't see how either of those facts has anything to do with anything I've said to you.  I think we are disconnecting somewhere.

 

The bedrock foundation of American law is that my rights can not exceed your rights without due process of law. The genesis of this idea goes back hundreds more years to the Magna Carta. Even our Supreme Court building has the inscription "Equal Justice Under Law". It is true that we always haven't lived up to that foundational statement, but we do occasionally try.

 

I don't see the anything in the constitution that gives the courts the right to determine constitutionality. While it wasn't made up out of whole cloth it just isn't there.

 

We probably are disconnecting. I am sorry for that, but I don't know of another way to explain it.

[Zeta-Flux]

The bedrock foundation of American law is that my rights can not exceed your rights without due process of law. The genesis of this idea goes back hundreds more years to the Magna Carta. Even our Supreme Court building has the inscription "Equal Justice Under Law". It is true that we always haven't lived up to that foundational statement, but we do occasionally try.

 

I don't see the anything in the constitution that gives the courts the right to determine constitutionality. While it wasn't made up out of whole cloth it just isn't there.

 

We probably are disconnecting. I am sorry for that, but I don't know of another way to explain it.

Ah, that clarifies it--you disagree with Marbury v Madison.  I was wondering why you seemed to be agitated by my statements about the supreme court determining constitutionality.  (I agree with everything in your first paragraph.)

[thesometimesaint]

Ah, that clarifies it--you disagree with Marbury v Madison.  I was wondering why you seemed to be agitated by my statements about the supreme court determining constitutionality.  (I agree with everything in your first paragraph.)

 

No; I don't disagree with Marbury v Madison. Only that constitutional review is found in the US Constitution.

[california boy]

Half of the ones I've seen.  They show things like increased drug usage rates and increased numbers of sexual partners among the LGBT community, in countries where SSM is legal increased rates of divorce among gay men, all sorts of negative effects on children, etc...

 

But it is hard to judge the exact numbers of valid studies because so many of the studies (on both sides) suffer from one or multiple flaws.

Children raised without both a father and mother, society as a whole as the marriage norms are weakened, etc...

(1) First, your premise is false.  Many of these studies are being used in the court cases.

 

(2) Some of the court cases are being run by attorney generals who are not fulfilling their proper role of defending the laws of their state.  Thus, it is to be expected that the arguments they present are not the strongest.

 

We are so not even on the same page of what I thought we were talking about.  I thought we were talking about gay marriage.  You made the claim that gay marriage might be harmful and that you had a bunch of studies supporting that claim.  Sounds like you have no such studies related to gay marriage.  

 

Most studies show that those who are not married, whether straight or gay also have an increase drug use and increase in sexual partners.  That supports that gay couples have the same trends as straight couples and that marriage should be encouraged, not discouraged for all couples.

 

I would like a CFR that the studies you mentioned have been presented and upheld in a court of law as being valid studies and a reason to withhold marriage from gay couples.  If you have no such reference, then quite frankly your post sounds more like you are grasping for straws to argue against something that you just personally don't like.  If you are not claiming that such studies that you mention have no validity in a court of law, then how can they be used as a reason to stop gay marriage?  Prove me wrong and answer my CFR.  

[Zeta-Flux]

No; I don't disagree with Marbury v Madison. Only that constitutional review is found in the US Constitution.

If you agree with Marbury v Madison, then I would have thought you would agree with me that the (current) role of federal judges is to determine constitutionality.

 

I've never claimed that this role is found in the US constitution explicitly.

[Zeta-Flux]

We are so not even on the same page of what I thought we were talking about.  I thought we were talking about gay marriage.  You made the claim that gay marriage might be harmful and that you had a bunch of studies supporting that claim.  Sounds like you have no such studies related to gay marriage.  

Please show me where I claimed that I had "a bunch of studies", or please retract your claim.  [bTW, I went back and re-read every one of my posts in this thread, and I nowhere claimed such a thing.  I did say things like it is rational to wait "until the social science is more clear on the subject", and "Studies coming from countries where it has been legal for decades are divided, often along political lines, in their conclusions.", and "the current social science on the subject is extremely polar" and "Half of the ones I've seen", and " it is hard to judge the exact numbers of valid studies because so many of the studies (on both sides) suffer from one or multiple flaws".  But nowhere do I make a claim there are a bunch of studies.]

 

Also, please note that I did say that the negatives in these studies may be shown to be inapplicable to SSM (see my first post on this page).

 

 

 

 

Most studies show that those who are not married, whether straight or gay also have an increase drug use and increase in sexual partners.  That supports that gay couples have the same trends as straight couples and that marriage should be encouraged, not discouraged for all couples.

 

CFR for the claim that drug use and increase of sexual partners are commensurate between the two groups.

 

 

 

I would like a CFR that the studies you mentioned have been presented and upheld in a court of law as being valid studies and a reason to withhold marriage from gay couples.  If you have no such reference, then quite frankly your post sounds more like you are grasping for straws to argue against something that you just personally don't like.  If you are not claiming that such studies that you mention have no validity in a court of law, then how can they be used as a reason to stop gay marriage?  Prove me wrong and answer my CFR.  

First, please show me where I claimed that any of the studies had been "upheld in a court of law as being valid studies and a reason to withhold marriage from gay couples".  Otherwise, please retract your false claim.

 

Second, please show me where you asked for those extra conditions before this last post.

 

Third, please explain what you mean by "valid".  Most studies I've seen (which is still not a "bunch", and much smaller if we limit it to those presented in court cases) are written by sociologists and not lawyers.  Conversely, it seems to me that a judge can only uphold or reject the reasoning of the lawyers, and does not really have any authority to say anything about the "validity" of the study--that's the purview of sociologists.

 

Fourth, to answer your CFR for the fact that studies have been introduced in court, I refer you to the original Prop. 8 case.  There were numerous studies introduced there, from both parties.  [And no, we don't need to rehash how the judge responded to them, or intimidated witnesses, etc...]

 

Now, hopefully, we can get back to the topic of this thread.

[Bikeemikey]

Thanks Bikeemikey.

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

Thought you might like the tongue and cheek of it :-)