Equality, Morality, And The Law

[california boy]

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).

 

 

 

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

 

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.

 

The whole issue of our discussion stems from post number 49  This is what you said

 

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.

 

 

 

 

Then you made this claim in post #61

 

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.  

 

 

 

I bolded the part that I questioned.  I asked what studies and what harm would be caused by SSM that you suggest the government should wait 25-50 years before it acts on gay marriage.  If you are asking the government to wait that long, you should have some very strong evidence that gay marriage may cause anyone harm.  So I am asking what studies you are referring to in post number 61 and what harm those studies refer to.  I am also asking if they have been presented in the courts and whether they were ruled as valid studies to support your position.

 

Now you claim that such studies were introduced into prop 8 trial.  So again what studies and were they ruled as valid studies concerning possible harm gay marriage may cause?  And who is this possible harm directed against.  THAT is what the CFR is referring to.  If you don't have such studies, then what is the basis for you thinking it would be fair to wait 25-50 years before granting gay marriage?  Where are the "half of the ones I have seen"?

 

 

Then in post number 67 you made this claim.

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...

 

 

 

 

If the studies that you are relying on to form your opinion simply show increased drug usage and increased sexual partners among unmarried gay couples, then is all I am stating is that increase in drug usage and increased sexual partners also occurs amongst unmarried straight couples.  Such studies would not show the alleged increased harm gay marriage may cause.  

 

Zetta, it all comes down to this.  If you don't have any studies that show gay marriage causes harm to anyone, then fine, I agree with you.  If you are making the claim that there are studies that show harm caused to anyone because of gay marriage, then the CFR is for such studies so that we can see just what harm is caused and to whom the harm is done and whether they are valid studies.  I am not trying to pick a fight with you.  I am only questioning your assertion that 50% of the studies you have read show some kind of harm caused by gay marriage as you posted in #61.

[Zeta-Flux]

Ah, I see that I mistyped.  At one point (in post #61) I should have said evidence for possible harm.

[Stone holm]

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.

Interesting, but not totally correct. The Courts interpret the wording of the law. If one way of reading the law renders it unConstitutional and it is susceptible of being read another way or is susceptible of being applied differently and thereby leaving the law as passing Constitutional muster then they are bound to read it or applying it in the same manner. In addition, both the Congress and the President are bound by oath to support and defend the Constitution. As a result, the President is duty bound not to enforce an unConstitutional law, and Congress is duty bound not to legislate one. There is some question as to whether a Federal common law exists, but even if it doesn't it is absolutely naive to believe that Courts, even Federal Courts were not expected to make law, even from the very beginning.

[Zeta-Flux]

Interesting, but not totally correct. The Courts interpret the wording of the law. If one way of reading the law renders it unConstitutional and it is susceptible of being read another way or is susceptible of being applied differently and thereby leaving the law as passing Constitutional muster then they are bound to read it or applying it in the same manner. In addition, both the Congress and the President are bound by oath to support and defend the Constitution. As a result, the President is duty bound not to enforce an unConstitutional law, and Congress is duty bound not to legislate one. There is some question as to whether a Federal common law exists, but even if it doesn't it is absolutely naive to believe that Courts, even Federal Courts were not expected to make law, even from the very beginning.

Good points.  I was being a little simplistic in my post.  [by the way, I personally disagree that the courts *must* read a law in an alternate way if that is the only way it becomes constitutional.  It can be the right way to do it in some cases, and not in others.  There are multiple philosophies about how laws should be read, and I'm more in line with (when possible) using original intent of the wording.]

[thesometimesaint]

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.

 

My mistake. Apologies.

[USU78]

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

 

Enforcement of a particular brand of morality by the mailed fist of the State.

 

Sounds like something out of Section 121.

[USU78]

People have such a funny view of the law.

 

The first day of law school one is taught laws are "tools, not rules."

 

That's very telling.

 

Law is the tool one uses in order to impose his will upon his fellows and his environment.

[thesometimesaint]

People have such a funny view of the law.

 

The first day of law school one is taught laws are "tools, not rules."

 

That's very telling.

 

Law is the tool one uses in order to impose his will upon his fellows and his environment.

 

Technically correct, but misleading in the American context.

[USU78]

Technically correct, but misleading in the American context.

 

Especially in the USmerican context.

[thesometimesaint]

 

Especially in the USmerican context.

 

Actually the US has lagged behind other democracies.

[wenglund]

Another thought-provoking OP from Wade.

 

I wonder if our culture is obsessed with *equality* or *equality of opportunity.*  I suspect the latter.  

 

I suspect that you are incorrect. I doubt that many within the culture have thought things through sufficiently to draw a clear distinction between "equality" and "equal opportunity," and tend to combine the later under a vague grasp of the former.

 

But, even granting your suspicion, the extra-constitutional method of judicial review doesn't provide all classes the same opportunity to be reviewed on the same basis--i.e. given the same protections under the law. Some classes are privileged, and accorded the opportunity of stricture scrutiny in relation to the law. They are given unequal protection and unequal due process.

 

In which case yes, there are times when Judicial (or Executive for that matter) action is necessary to ensure the 14th amendment is upheld.  

 

In other words, there are times when the judiciary need to employ extra-constitutional approaches which violate the 14th and 5th amendments in order to uphold those amendments?

 

Thanks, -Wade Englund

[wenglund]

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

 

African Americans, women, various religions, older citizens, and homosexuals.

 

Thanks, -Wade Englund-

[wenglund]

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.

 

As one who has taken the time to read through the relevant court cases adjudicated over the last decade or more, as opposed to cherry-picking from among recent rulings, I see the quoted perception as terrible confused and uninformed on multiple levels, though I won't bother to spell them all out since that has been attempted numerous times in the past without a productive result, and more importantly because it is tangential to the specific question addressed in the OP.

 

Thanks, -Wade Englund-

[USU78]

Actually the US has lagged behind other democracies.

 

So you agree that the European Social Democrats are even more likely to pass laws inimical to personal freedom in furtherance of an anti-religious and anti-family agenda?

[Zeta-Flux]

But, even granting your suspicion, the extra-constitutional method of judicial review doesn't provide all classes the same opportunity to be reviewed on the same basis--i.e. given the same protections under the law. Some classes are privileged, and accorded the opportunity of stricture scrutiny in relation to the law. They are given unequal protection and unequal due process.

Wade, it seems to me that this might be a category error.  All people are entitled to equal protection and due process; but that doesn't mean that all classifications/characteristics have equal weight in lawmaking.

[thesometimesaint]

I suspect that you are incorrect. I doubt that many within the culture have thought things through sufficiently to draw a clear distinction between "equality" and "equal opportunity," and tend to combine the later under a vague grasp of the former.

 

But, even granting your suspicion, the extra-constitutional method of judicial review doesn't provide all classes the same opportunity to be reviewed on the same basis--i.e. given the same protections under the law. Some classes are privileged, and accorded the opportunity of stricture scrutiny in relation to the law. They are given unequal protection and unequal due process.

 

 

 

 

In other words, there are times when the judiciary need to employ extra-constitutional approaches which violate the 14th and 5th amendments in order to uphold those amendments?

 

Thanks, -Wade Englund

 

While not specifically mentioned in the constitution Judicial Review predates the constitution by hundred of years. As defined in Due Process, which the Founders deliberately left vague.

 

The law is an ***. The law makes it a crime to sleep under bridges and/or eat out of garbage cans for rich and poor alike.

[thesometimesaint]

So you agree that the European Social Democrats are even more likely to pass laws inimical to personal freedom in furtherance of an anti-religious and anti-family agenda?

 

I guess if your definition of freedom is nothing left to loose, Bobby McGee.

[wenglund]

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.

 

I am all for discussing the rationale for "protected classes" and whether the judicial notion of "protected classes" is the best method for preventing so-called "personal terrorism."

 

And, I would be interested to see how such a discussion may cause me to reconsider many of my other stands.

 

However, such discussions of necessity substantially subordinate "equality" to other precepts such as safety, civility, respect, kindness, mercy, etc, thereby distracting from or diminishing the value of the obsession over "equality."

 

I am all for this--which, in part, is the point of this thread, but I am not sure many cultural adherents here (where "equality" is their prime directive), would approve. We'll see.

 

Thanks, -Wade Englund-

[USU78]

I guess if your definition of freedom is nothing left to loose, Bobby McGee.

 

Guenther Grass, Die Blechtrommel:  "Der Weihnachtsmann war wirklich der Gasmann!"

[thesometimesaint]

 

Guenther Grass, Die Blechtrommel:  "Der Weihnachtsmann war wirklich der Gasmann!"

 

I don't speak what looks like German. Please translate.

[wenglund]

While not specifically mentioned in the constitution Judicial Review predates the constitution by hundred of years. As defined in Due Process, which the Founders deliberately left vague.

 

In other words, as I have been saying all along, the general notion of Judicial Review, but more particularly the specific method of different levels of scrutiny,  is extra-constitutional.

 

However, again, the extra-constitutionality of different levels of scrutiny is somewhat beside the point of the question posed in the OP, which has more to do with the courts using inequality in the name of equality.

 

Thanks, -Wade Englund-

[USU78]

I don't speak what looks like German. Please translate.

 

The socialist rant that was "Me and Bobby McGhee" equates true freedom with getting government handouts (freedom = nothing left to lose).

 

Grass opined that when Gov'ts play Santa Clause, they are just as likely to use their resultant unassailable power to be the Gas Man as Father Christmas.

[wenglund]

Wade, it seems to me that this might be a category error.  All people are entitled to equal protection and due process; but that doesn't mean that all classifications/characteristics have equal weight in lawmaking.

 

It might be a classification error were the notions of "equal protection" and "due process" clearly and consistently demarcated. They aren't. They have been so vaguely defined and varied in their judicial interpretations as to have in some respects inadvertently and ironically, and I would suggest unavoidably, turned back on themselves.

 

I say "unavoidable" because I view the courts, as well as the notion of "equality," as dysfunctional means for rationally affecting certain beneficial social objectives.

 

Thanks, -Wade Englund-

[thesometimesaint]

In other words, as I have been saying all along, the general notion of Judicial Review, but more particularly the specific method of different levels of scrutiny,  is extra-constitutional.

 

However, again, the extra-constitutionality of different levels of scrutiny is somewhat beside the point of the question posed in the OP, which has more to do with the courts using inequality in the name of equality.

 

Thanks, -Wade Englund-

 

The Founder's deliberately left many things vague. Obviously there has to be some limits to freedom of speech. You are prohibited from endangering other by using your freedom of speech. IE; Don't yell FIRE in a crowded theater unless there really is a fire.  You are prohibited from endangering others in the use of your freedom to practice your religion. IE; Holding meetings in a fire trap. What is excessive bail in absolute dollars and cents? Do we go by what the Founders thought wasn't cruel and unusual http://score.rims.k12.ca.us/score_lessons/colonial_court/html/colonial.html or do we go by our thoughts. Jail time.

[thesometimesaint]

The socialist rant that was "Me and Bobby McGhee" equates true freedom with getting government handouts (freedom = nothing left to lose).

 

Grass opined that when Gov'ts play Santa Clause, they are just as likely to use their resultant unassailable power to be the Gas Man as Father Christmas.

 

Seeing that Germans are more equal, have more economic security, and a better economy than the US. That is just a rant from a fool.