U.S. judge refuses Prop. 8 backers' request to dismiss gay-marriage case

Bryan · 10-14-2009, 04:48 PM

U.S. judge refuses Prop. 8 backers' request to dismiss gay-marriage case - San Jose Mercury News

If the court finds that the law violates the equal protection clause of the US Constitution, I wonder how far reaching this would be. Would it make all laws in the US limiting marriage to heterosexual couples unconstitutional. Would it invalidate the defense of marriage act? Will I finally be able to marry in Texas?

JerryLove · 10-14-2009, 05:04 PM

SCOTUS did find a half-decade back that many of the sex laws violated equal protection (and the civil rights act), and so many were invalidated across the country (It is no longer illegal in Florida for a woman to be on top during sex).

Ax · 10-15-2009, 12:39 AM

Quote:

Originally Posted by JerryLove

SCOTUS did find a half-decade back that many of the sex laws violated equal protection (and the civil rights act), and so many were invalidated across the country (It is no longer illegal in Florida for a woman to be on top during sex).

That was illegal?

I now end this post because I have too many freaking questions that are not CGR appropriate for this. If anybody is interested in answering, PM me.

normajean777 · 10-15-2009, 01:37 AM

Shouldn't the people make the constitution? Since the issue was voted on, why can it be decided that the people were wrong? If the popular vote was contrary than the constitution, it should be changed to reflect the (new) beliefs of the nation (or I guess state).

Bryan · 10-15-2009, 08:10 AM

Quote:

Originally Posted by normajean777

Shouldn't the people make the constitution? Since the issue was voted on, why can it be decided that the people were wrong? If the popular vote was contrary than the constitution, it should be changed to reflect the (new) beliefs of the nation (or I guess state).

no, if the state law, even a voter approved law, violates the US Constitution then it should be overturned. If congress were to pass an amendment to the US constitution and were ratified by 3/4 of the states, then it would change. That is extremely unlikely.

tlj009 · 10-15-2009, 08:57 AM

Quote:

no, if the state law, even a voter approved law, violates the US Constitution then it should be overturned. If congress were to pass an amendment to the US constitution and were ratified by 3/4 of the states, then it would change. That is extremely unlikely.

At the same time, the Constitution should not be reinterpreted by the courts in a way that would expand its original meaning. If things need to be expanded, it should go before Congress as an amendment to the Constitution.

JerryLove · 10-15-2009, 10:08 AM

Quote:

Originally Posted by tlj009

At the same time, the Constitution should not be reinterpreted by the courts in a way that would expand its original meaning. If things need to be expanded, it should go before Congress as an amendment to the Constitution.

That depends on "expand" and "meaning".

If the constitution says that people should feel free from search of their persons or property, and new techonology comes about (let's say "the telephone"), should they have equal protection?

If freedom of speech is protected, and someone invents an internet: should that be covered as well?

tlj009 · 10-15-2009, 10:31 AM

Quote:

That depends on "expand" and "meaning".

If the constitution says that people should feel free from search of their persons or property, and new techonology comes about (let's say "the telephone"), should they have equal protection?

If freedom of speech is protected, and someone invents an internet: should that be covered as well?

I don't really know about searching persons or property. But the internet is simply pictures and words. So if a book with pictures is protected, then I don't really see the difference. But I really don't have any problem with voting on each of those to guarantee that there is no twisting of the law.

JerryLove · 10-15-2009, 10:42 AM

Quote:

Originally Posted by tlj009

I don't really know about searching persons or property. But the internet is simply pictures and words. So if a book with pictures is protected, then I don't really see the difference. But I really don't have any problem with voting on each of those to guarantee that there is no twisting of the law.

It's not just "voting". To enshrine something in the constitution requires a supermajority of congress, and then a supermajority (2/3rds) of states to ratify it.

And I gave big simple examples... there are thousands of more minor ones that still effect profoundly someone's life.

Judges should never write new law, but they can apply old law to a new situation. That's their job.

tlj009 · 10-15-2009, 11:35 AM

Quote:

It's not just "voting". To enshrine something in the constitution requires a supermajority of congress, and then a supermajority (2/3rds) of states to ratify it.

Yep. But then, that is what it took to pass them to begin with. And if they are going to change, I don't see why the same requirements shouldn't be met.

Quote:

And I gave big simple examples... there are thousands of more minor ones that still effect profoundly someone's life.

Which would make being a politician a full time job. I don't think that is a bad thing.

Quote:

Judges should never write new law, but they can apply old law to a new situation. That's their job.

Yes, they can. But they tend to overstep their power in many cases. Maybe Congress or the President should remind them that the Judicial Branch has absolutely no power except to give opinions. Opinions that can easily be ignored by the other branches of government.

Anyway, applying free speech to the Internet may be an example of judges applying an old law to a new situation. Applying marriage to the "equal rights clause" (I assume the 14th amendment) is overstepping their power. The 14th amendment simply was not meant to allow homosexuals the right to marry. So it is not the judges responsibility to change it regardless of whether or not the situation for homosexuals has changed.

Bryan · 10-15-2009, 11:48 AM

Quote:

Originally Posted by tlj009

Anyway, applying free speech to the Internet may be an example of judges applying an old law to a new situation. Applying marriage to the "equal rights clause" (I assume the 14th amendment) is overstepping their power. The 14th amendment simply was not meant to allow homosexuals the right to marry. So it is not the judges responsibility to change it regardless of whether or not the situation for homosexuals has changed.

the 14th amendment was designed to eliminate discrimination and make sure everybody had the same rights under the law. Homosexuals do not have the same rights under the law. I can go to a church or something and have a marriage and call my partner my husband. But it is purely ceremonial and we would not have the same protections under the law that a heterosexual couple would have (estate issues, trial issues, medical decisions, etc). Some of those issues can be remedied through other means, but it is usually accompanied by costly attorneys fees.

nolidad · 10-15-2009, 11:56 AM

Quote:

Originally Posted by Bryan

the 14th amendment was designed to eliminate discrimination and make sure everybody had the same rights under the law. Homosexuals do not have the same rights under the law. I can go to a church or something and have a marriage and call my partner my husband. But it is purely ceremonial and we would not have the same protections under the law that a heterosexual couple would have (estate issues, trial issues, medical decisions, etc). Some of those issues can be remedied through other means, but it is usually accompanied by costly attorneys fees.

Well I know I am going to be contrarian in this, but marriage is not a "right" per se as it is a privilege. Just like going to college is not a right or driving a car a right.

I do know that our constitution was establishe dwhen there was a greater respect for the bible in everyday American life and govt. If we are going to grant same sex couples the same privileges of estate and tax benefits and even right to marry, how can the society deny polygamists, and even adult young teen marriages, even bestialty marriages. It all boils down to where one wantsa to draw a line as far as what to restrict and what criteria they use to restrict.

tlj009 · 10-15-2009, 12:38 PM

Quote:

the 14th amendment was designed to eliminate discrimination and make sure everybody had the same rights under the law. Homosexuals do not have the same rights under the law. I can go to a church or something and have a marriage and call my partner my husband. But it is purely ceremonial and we would not have the same protections under the law that a heterosexual couple would have (estate issues, trial issues, medical decisions, etc). Some of those issues can be remedied through other means, but it is usually accompanied by costly attorneys fees.

That is simply not the case. The 14th amendment was passed to eliminate segregation. To address racial issues. Not to address sexual orientation issues. So even if rights associated with marriage are covered, everyone has the same rights in this regard. You marry someone of the opposite sex and you have those rights. The Constitution does not care if you are in love or attracted to the person at all. Now if it had addressed sexual orientation, then you may have an argument. But the intent was about race, not sexual orientation.

Now I freely admit that things have changed in regards to sexual orientation. But you can't just go adding to existing laws beyond their intent, even if they are written very broadly. Doing that is the reason why the Federal Government has taken on many of the responsibilities that were originally left to the States.

Bryan · 10-15-2009, 01:55 PM

Quote:

Originally Posted by tlj009

That is simply not the case. The 14th amendment was passed to eliminate segregation. To address racial issues. Not to address sexual orientation issues. So even if rights associated with marriage are covered, everyone has the same rights in this regard. You marry someone of the opposite sex and you have those rights. The Constitution does not care if you are in love or attracted to the person at all. Now if it had addressed sexual orientation, then you may have an argument. But the intent was about race, not sexual orientation.

Now I freely admit that things have changed in regards to sexual orientation. But you can't just go adding to existing laws beyond their intent, even if they are written very broadly. Doing that is the reason why the Federal Government has taken on many of the responsibilities that were originally left to the States.

the 14th amendment says nothing about race.

nolidad · 10-15-2009, 02:10 PM

Quote:

the 14th amendment was designed to eliminate discrimination and make sure everybody had the same rights under the law. Homosexuals do not have the same rights under the law. I can go to a church or something and have a marriage and call my partner my husband. But it is purely ceremonial and we would not have the same protections under the law that a heterosexual couple would have (estate issues, trial issues, medical decisions, etc). Some of those issues can be remedied through other means, but it is usually accompanied by costly attorneys fees.

It all depends where you want to draw the line. NAMBLA with sexologists Masters and JOhnson have petitioned congress to decriminalize consensual pedophilia. they say that this is discriminatory and denying the men and 10-13 year olds the right to their freedoms. Do you agree with them? After all courts have ruled that a 12 year old has a right to an abortion w/o parental interference so they have gone after that decision to apply to their "rights".