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Kelly B



Joined: 19 Apr 2007
Posts: 136

PostPosted: Mon May 19, 2008 5:35 pm    Post subject: Reply with quote

Part of the function of the judicial system is to "overthrow the will of the people" when that will is in conflict with a constitutional provision. Look at Griswold v. Connecticut. If the Court hadn't overturned a state law there, it would be illegal to buy birth control in the state of Connecticut. And the fact that it is a referendum doesn't carry much weight with me either--it doesn't matter if the law is passed by referendum or a vote in the legislative house in determining its constitutionality. But, I guarantee if you did a referendum in the South in 1954 on desegregation, Brown would have been counter to the results there. Hell, all the great decisions during the Civil Rights era "overthrew the will of the people." Invalidating a law isn't a duty that courts take lightly and judges and justices weigh a lot of factors in doing so. But sometimes constitutional interpretation means overruling statutes/policies that conflict with said constitution. The California Supreme Court's ruling here didn't create any sort of new precedent vis a vis overruling laws--laws have been overturned before and will be overturned again; it's part of the judicial function and is integral to a system of checks and balances.

This sort of language really drives me crazy because it's offered as a talking point that grossly oversimplifies the legal system and the role of the judge in it to create a scare tactic. Scary activist judges! They legislate from the bench! Better vote Republican! We won't appoint activists! Except the ones who want to abolish the Family and Medical Leave Act, the Violence Against Women Act, the right to sue, Fourth amendment protections and the recognition of the right to privacy, of course.


Last edited by Kelly B on Mon May 19, 2008 7:28 pm; edited 2 times in total
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Kass



Joined: 23 Mar 2007
Posts: 722
Location: under a cockatiel

PostPosted: Mon May 19, 2008 6:32 pm    Post subject: Reply with quote

Quote:
the Court there overruled the will of people who voted against the gay marriage in the referendum.

Any state supreme court is the ultimate authority about its state constitution, so actually the decision was legal and justified. The people had no right to go against their own state constitution's protection of all people in California.

Thank goodness California's come to its senses. Let's hope all the other states do, too, and stop excluding gay people from the secular state's support of the secular right of marriage.
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Nana



Joined: 02 Apr 2007
Posts: 948

PostPosted: Tue May 20, 2008 1:35 am    Post subject: Reply with quote

Kelly B wrote:

This sort of language really drives me crazy because it's offered as a talking point that grossly oversimplifies the legal system and the role of the judge in it to create a scare tactic. Scary activist judges! They legislate from the bench! Better vote Republican! We won't appoint activists! Except the ones who want to abolish the Family and Medical Leave Act, the Violence Against Women Act, the right to sue, Fourth amendment protections and the recognition of the right to privacy, of course.


Actually, as a Republican, which I think means baby-eating poor-punching war mongerer...

... the California decision was carried on a Republican majority.

http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,0,6182317.story

Most people theorize that it's precisely because of this earlier backlash against activist judges: Republican appointees who are, in Con Law terms, "strict constructionists," using the letter of the constitution to evaluate something on purely legal ground. This is "Republican" in the sense that I self-identify: smaller government, less intervention in private life, lower taxes, strict interpretation of government laws. If there were a Libertarian Party, I'd jump to that, but for now, old-school conservative Republican (not modern morality-legislating Republican) is the best I can do.
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Kelly B



Joined: 19 Apr 2007
Posts: 136

PostPosted: Tue May 20, 2008 9:41 am    Post subject: Reply with quote

That's interesting. However, I do think that judges and activism are much more of a talking point for the Right to gin up their base than those issues are for liberals/Democrats. (And I don't know that much about the individuals on the CA Supreme Court--I find it hard to imagine they are of the Janice Rogers Brown variety, ie the sort of judge GWB would consider nominating to the federal bench. And, after all, Earl Warren was a California Republican, too.) That's why, after decisions like these, you see the rhetoric around activism ratchet up, with blast e-mails from Phyllis Schlafly and Jay Sekulow and comments on the floor and in committee from people like Sam Brownback and Mitch McConnell because they know what an effective political tool this sort of thing can be. McCain knows: just look at that speech he gave at Wake Forest a couple of weeks ago.
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Guenevere



Joined: 09 May 2008
Posts: 17
Location: Camelot

PostPosted: Tue May 20, 2008 3:02 pm    Post subject: Reply with quote

"Activist judge" seems to be a code phrase for "judge who made a ruling that I don't like".
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dick



Joined: 22 Mar 2007
Posts: 2508

PostPosted: Wed May 21, 2008 5:16 pm    Post subject: Reply with quote

I do not question the CA supreme court's decision. After all, they are interpreting what is written into the constitution, which, of course, if the will of the people is strong enough, can be re-written. I'm not sure that the court made a wise decision in agreeing to hear the case, since CA already had a very strong law guaranteeing gay unions most of the rights male/female unions have. And, I'm not certain that whoever asked for the decision from the court made a wise decision in asking for it. In my thinking social issues such as these require a bit of time to percolate, so that those who oppose them can more clearly recognize their harmlessness or harmfulness.

I think, though, that labels have a great deal of power. To accord the label "marriage" to what neither the language (so far) nor the populace (so far) recognizes as a proper label stirs antipathies too much, as the reaction in CA and elsewhere makes clear.

I'm equally uncertain why gays insist that their unions be labelled as "marriages," when their chosen affiliation doesn't accord with its most standard and widely accepted meaning. If gay pride is truly pride, why would they wish to emulate those who are not gay? Why not choose rather to make the alternative label as powerful as the standard one?
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Guenevere



Joined: 09 May 2008
Posts: 17
Location: Camelot

PostPosted: Wed May 21, 2008 10:56 pm    Post subject: Reply with quote

dick wrote:
I'm equally uncertain why gays insist that their unions be labelled as "marriages," when their chosen affiliation doesn't accord with its most standard and widely accepted meaning. If gay pride is truly pride, why would they wish to emulate those who are not gay? Why not choose rather to make the alternative label as powerful as the standard one?


Because they don't consider their affiliation to be any different. You may see it as different, but they don't. They aren't trying to "emulate" anyone - marriage, in addition to being traditionally seen as between a man and a woman, is traditionally seen as being the standard commitment sealing two people who love each other, ideally, forever ("till death do us part"). The alternative label is inherently not as powerful as the standard one - rather it's an example of "separate but equal" - and as the courts have decided, there is no such thing as "separate but equal".
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dick



Joined: 22 Mar 2007
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PostPosted: Thu May 22, 2008 10:05 am    Post subject: Reply with quote

to Guenevere: There are many things separate but equal which exist in fact. Males and females, for example.
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Kass



Joined: 23 Mar 2007
Posts: 722
Location: under a cockatiel

PostPosted: Thu May 22, 2008 1:04 pm    Post subject: Reply with quote

Quote:
I'm equally uncertain why gays insist that their unions be labelled as "marriages,"

I'm uncertain why those black people insist that their unions be labelled as "marriages." Or why atheists, Buddhists, Latinos, or anyone who doesn't fit the societal WASP paradigm would dare think that they should get to marry. To hell with them and their beliefs...the only thing that matters is that WASPs get all the rights, and they get none. Racial equality would unsettle our society. We should wait until society's ready to treat black people equally before we give them any rights at all.

And yes, I see no difference between the state of one oppressed minority (gay people) and another (black people).
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Kelly B



Joined: 19 Apr 2007
Posts: 136

PostPosted: Thu May 22, 2008 4:11 pm    Post subject: Reply with quote

Quote:
There are many things separate but equal which exist in fact. Males and females, for example.


This is such a gross misrepresentation of what "separate but equal" means in the context of the discussion--the law, the 14th amendment and equal protection. Of course lots of things are separate but equal if we are talking generally about language. But we're not. We are talking about a legal institution that some Americans have access to and others don't. That's just separate, Dick. It isn't equal.
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Guenevere



Joined: 09 May 2008
Posts: 17
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PostPosted: Thu May 22, 2008 5:45 pm    Post subject: Reply with quote

Yes, and while male and female being "separate" (which I guess is how you're interpreting what I would call "different") is a biological fact, the choice to deny marriage to gay couples is not.

If someone were trying to marrying their toaster, or whatever weird-ass thing people come up with as an argument against gay marriage, I would say, among other things, that the union they are proposing does not resemble marriage closely enough to label it marriage. In the case of gay marriage, the opposite is true: we are talking about a relationship that in every way congruous with marriage as it's typically defined. Except for the fact that the two participants are of the same gender. While I realize that the "except" is a big sticking point for some people, the reality is that it's not like gay people just sprang up in 1988, or something. There have always been gay people. Reasonable people who have lived among out gay people acknowledge that they are no different from anyone else, and that their sexuality is not a choice that they've made, but an inherent trait. The next step is for reasonable people to all agree that they cannot then be denied the same rights that the rest of us take for granted.
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Mark



Joined: 22 Mar 2007
Posts: 1390

PostPosted: Thu May 22, 2008 11:54 pm    Post subject: Reply with quote

From my computer copy of the Random House Unabridged Dictionary:
<<
mar•riage (marĈij), n.
1. the social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc.
2. the state, condition, or relationship of being married; wedlock: a happy marriage.
3. the legal or religious ceremony that formalizes the decision of a man and woman to live as husband and wife, including the accompanying social festivities: to officiate at a marriage.
4. a relationship in which two people have pledged themselves to each other in the manner of a husband and wife, without legal sanction: trial marriage; homosexual marriage.
5. any close or intimate association or union: the marriage of words and music in a hit song.
6. a formal agreement between two companies or enterprises to combine operations, resources, etc., for mutual benefit; merger.
7. a blending or matching of different elements or components: The new lipstick is a beautiful marriage of fragrance and texture.
8. Cards. a meld of the king and queen of a suit, as in pinochle. Cf. royal marriage.
9. a piece of antique furniture assembled from components of two or more authentic pieces.
10. Obs. the formal declaration or contract by which act a man and a woman join in wedlock.
[1250–1300; ME mariage < OF, equiv. to mari(er) to MARRY1 + -age -AGE]

—Syn. 3. matrimony. MARRIAGE, WEDDING, NUPTIALS are terms for the ceremony uniting couples in wedlock. MARRIAGE is the simple and usual term, without implications as to circumstances and without emotional connotations: to announce the marriage of a daughter.WEDDING has rather strong emotional, even sentimental, connotations, and suggests the accompanying festivities, whether elaborate or simple: a beautiful wedding; a reception after the wedding.NUPTIALS is a formal and lofty word applied to the ceremony and attendant social events; it does not have emotional connotations but strongly implies surroundings characteristic of wealth, rank, pomp, and grandeur: royal nuptials.It appears frequently on newspaper society pages chiefly as a result of the attempt to avoid continual repetition of MARRIAGE and WEDDING. 5. alliance, confederation; weld, junction.
>>
This dictionary is several years old, yet clearly shows that use of the term marriage for gay relationships has been around, so arguments that the word only means man-woman pairings is spurious. When this was compiled, gay marriage was not legally equal to hetero marriage. This recent court ruling is a bit of very slow cultural growth despite the narrow-minded who want to restrict instead of liberalizing.
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dick



Joined: 22 Mar 2007
Posts: 2508

PostPosted: Fri May 23, 2008 9:35 am    Post subject: Reply with quote

to Kelly B: My point is that fact and law don't always coincide with one another, that although in the eyes of the law men and women are equal in those matters the law can determine, they are not equals in fact--and never will be. The law often takes second place to fact or perceived fact. How many divorced fathers have custody of their children, for example? How many women pay child support?

Both the woman and the man in the divorce have had the equal protection of the law because the "due process" of divorce has been offered and exercised. Yet, because of a "perceived fact" that children should remain with the their mothers , most judges award custody to the woman. Perceived fact and law don't coincide.

From what law does that "perceived fact" that children should remain with their mothers come? General and widespread belief? Nature? Yet, if the guarantee of equality in the law were truly operating, just as many men as women would be accorded custody of children.
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dick



Joined: 22 Mar 2007
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PostPosted: Fri May 23, 2008 9:50 am    Post subject: Reply with quote

to Mark: As I'm sure you're aware, dictionaries, for the most part, try to include all instances of the way a word is or has been used. But I do note that its application to unions of people of the same sex comes rather far down in the possible applications, suggesting that that meaning is not widely accepted. That doesn't differ greatly from what I wrote, does it?[/b]
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Kelly B



Joined: 19 Apr 2007
Posts: 136

PostPosted: Fri May 23, 2008 11:37 am    Post subject: Reply with quote

So they way to deal with one potential legal inequality is to perpetuate another one? Sorry, not buying. (I don't know enough about custody law to say that your characterization of why custody is generally given to mothers is right or wrong--I know that it is, but I don't know all of the reasons why, though I have to think there are some psychological and child development studies and considerations at play. And of course, custody doesn't always go to the father. Leslie Southwick, a recently-appointed federal judge on the 5th Circuit, once joined an opinion that said it was perfectly justified for a child to be removed from a mother's custody based solely on the mother's sexual orientation.)

Frankly, I wish more people would just come out and say "Gay marriage makes me uncomfortable" rather than trying to bend over backwards to come up with tangential, spurious or unrelated arguments to back up a position of why rights should be extended to some citizens and not others. I won't agree with it, but at least it's a more honest jumping off point for the conversation.
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