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Old 07-10-2010, 10:50 AM
 
Location: Tampa (by way of Omaha)
13,909 posts, read 19,083,409 times
Reputation: 9120

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Quote:
Originally Posted by Calvinist View Post
Not the first time a judge decided to throw the constitution out the window and make his/her own rules.

Do you think every decision made by the court is correct?
Wait a minute. Your whole argument was that it is the state's right to define marriage as they pleased, but a federal judge that throws out the federal ban on those very same grounds is "throwing the constitution out the window"?

Yeah, your opposition to gay marriage certainly isn't rooted in bigotry. [/sarcasm]
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Old 07-12-2010, 10:34 AM
 
Location: Omaha, NE
1,048 posts, read 2,138,294 times
Reputation: 220
Quote:
Originally Posted by mattpoulsen View Post

However, to suggest the Supreme Court somehow should not, cannot, or will not make this decision is just absolutely asinine. And the fact that they haven't yet means nothing. They just now, in 2010, ruled that individuals indeed have an INDIVIDUAL right to bear arms. And that's an issue that is explicitly addressed (in part) in the Bill of Rights. The gay marriage issue is relatively new hat in terms of constitutional law, a few decades really. Do you honestly think they Supreme Court won't eventually rule on this issue??
This is where the language in this debate is confusing. Are you talking about the state supreme courts, or the US Supreme Court? The state supreme courts rule on state issues, the US Supreme Court rule on federal issues. A state issue only becomes a federal issue if the federal courts have reason to believe the states have violated the constitution.

The state supreme courts have already ruled (in most cases) and have declared the state laws defining marriage as constitutional. The US Supreme Courts have thus far have agreed with the states and have rejected repeated requests to hear the cases and appeals. I would think if they found sufficient evidence of constitutional violations they would have gone for it. The federal court knows they can’t simply cannot rewrite the state laws and force them to provide benefits to an previously unrecognized union.

Quote:
And I'm tired of this argument that is being made that things not explicitly outlined in the Constitution are left purely to the states. Oh freaking god. To make a statement like that shows how clueless one truly is when it comes to Constitutional Law. YOUR heterosexual right to marry is NOT an explicit right. Neither is your right to privacy. Neither is your right to live where you choose and etc. Yet, those are all considered fundamental rights in the eyes of the federal government. How can that be? Oh, yeah, the Supreme Court SAID they were fundamental rights.


You’re right. It’s not left to the states. However, the states can take common law and expound their individual constitutions to clarify common law. Gay marriage doesn’t exist at common law, so states like Nebraska clarified their recognition of it in their own constitution. Some states chose to extend their benefits to allow above and beyond common law, that is ok too. But a state can't be forced to recognize something that doesn't exist in the law either common or constitutional. States have to recognize the right to privacy because that DID exist under common law. That is the difference.

Quote:
The Constitution is silent on many many issues but that does NOT mean that those rights do not spring forth under its implied authority. Have you ever read the constitution?? Its NOT a statute. Its not suppose to address every single issue explicitly. It provides a broad grant of authority, and the lines of that authority are interpreted by...wait for it...wait for it...the SUPREME COURT!


Correct. However, again, don’t get them confused. States have their own constitutions and own supreme courts seperate from that of the federal level. Yes, the feds have the final say, but it's just overstepping their power to invoke their will on the states unless the states are clearly violating the constitution, which they are not. Otherwise the SCOTUS would have jumped all over it like the gun bans, or the other clear violations.

Quote:
So, whether or not the right to marry includes a right to marry someone of the same sex is an issue ultimately left to the Supreme Court. As it is now, sure, the states are allowed to discriminate against gay couples. Just as states used to be allowed to discriminate against interracial couples. But that power to discriminate can be ripped aways instantaneously by either Federal Statute or a Supreme Court decision. And ultimately the Federal Statute is subservient to any Supreme Court decision. No one here is saying that the Supreme Court will absolutely rule for gay marriage. I think they ultimately will, but it'll probably be a 5-4 decision.
Quote:

What i am saying is they absolutely have the ability to do so and eventually they will, even if not for 20 more years. I am also saying that your arguments about states' rights and how the states can do what they want are exactly the arguments southerners used during segregation. I AM NOT saying the two issues are the same - get that straight. I am saying the situations are analogous, so please don't come back with an argument telling me how the two are different. I understand that. My point is just as the Courts trimmed back the states' ability to discriminate on the racial front, the courts can just as easily trim back the right of states to discriminate on the homosexual marriage front. And to do so the Court need only hold that the fundamental right to marry includes the right to marry someone of the same sex. And no state or federal statute can change that meaning. And if you don't recognize that fact then you have your head buried in the sand.
The right to marry extends to all couples. If you can find a church that supports your marriage you can be married. The state or country might not recognize it, but you can be married. The Supreme Court isn’t going to grant a “right to marry’ because everyone already has that right. You say you realize that race and orientation they aren’t the same, but you keep comparing them. At common law, marriage is based off of male female complementarily. Anti-miscegenation laws were over turned because race had no bearing on that.

Quote:
And I'm tired of the "benefits" argument. States are free to give out benefits as they see fit. And, yes, they can discriminate in giving out those benefits when that discrimination is constitutionally sound! So, yes, for example, the state can limit the drinking age or the driver's license age, or contract age and etc. However, they can't, for example, give a benefit to whites and then not give a benefit to blacks unless the reason for that discrimination is constitutionally sound. And when dealing with a fundamental right the asymmetric distribution of a benefit will have to pass what's known as strict scrutiny. And in applying that test the court will ask if the state was able to accomplish its goal using a less restrictive method than the discriminating statute. Umm, well, what exactly is the purpose here? If they are allowing for marriage but NOT providing the benefits to marriage then what is there compelling state interest? There isn't one, not when discussing only the benefit aspect of the issue. In the end, your benefit argument is completely irrelevant. And whether the state can discriminate in the issuance of benefits will turn just as the issue of marriage turns. If not, then the southern states would have been allowed to allow interracial marriage but not give those couples the same rights as a white couple. Ludicrous proposition.


When you apply for a marriage license, you are really applying for state recognition of your marriage. Not the benefits. The benefits are just that, a benefit of the state recognizing your marriage. If you get married without that license, you will not go to jail, you will not be condemned to slavery like interracial couples used to be, because it’s not illegal, and it’s not banned. It’s just not recognized.

As for strict scrutiny, that’s a fancy idea, but did you forget that that for strict scrutiny to pass, the law must be justified by compelling government interest? Something that generally means it must be necessary or crucial, not simply preferred? Also the current law doesn’t violate any fundamental right (in this case the right to marry). The law only excludes recognition for the purpose of benefits. Nor does the law involve “suspect classification” such as race, or national origin.
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Old 07-12-2010, 02:12 PM
 
6,486 posts, read 5,670,449 times
Reputation: 1272
Quote:
Originally Posted by Bosco55David View Post
Wait a minute. Your whole argument was that it is the state's right to define marriage as they pleased, but a federal judge that throws out the federal ban on those very same grounds is "throwing the constitution out the window"?

Yeah, your opposition to gay marriage certainly isn't rooted in bigotry. [/sarcasm]
Good point. And no, I'm no more a bigot than you are.

I'm ok with no federal ban, if my state doesn't have to recognize a "marriage" in Iowa.
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Old 07-12-2010, 10:05 PM
 
Location: West Omaha
1,181 posts, read 3,646,896 times
Reputation: 477
Pheaton,

You can talk until you're blue in the face and try to reinvent constitutional law, but you're wrong.

The Court may very well rule that gay marriage is not a constitutional right. I'm not trying to predict that. I do think they will, but I'm by no means certain of it.

What I am absolutely unequivocally certain about is that the U.S. Supreme Court will absolutely have the last say about the issue if they choose to. You keep talking about states rights and the common law, but that simply shows how you don't understand how the system works. The Supreme Court determines what the common law is. The common law is NOT old law. Common law refers to law based on court decision.

And as far as states rights, if the Supreme Court determines that homosexuals are a protected class then they absolutely will apply strict scrutiny. And short of that they can apply intermediate scrutiny or some hybridization of that without that class finding. Moreover, it will be the Court who determines whether or not the state statute or state constitutions infringes on the rights of gays, not State Courts. Yes, State Courts may rule on it first. And they may in limited cases be the final say when ONLY state law is at issue. But we're talking about the equal protection and due process under the U.S. Constitution. That is NOT something that state courts have a final say on just because a state law or state constitutional amendment is implicated.

And please, again, stop with your "benefits" argument. It simply holds no water. The denial of BENEFITS has long been actionable under due process and/or equal protection. Its a distinction you're simply making up in your head. The idea that you have to go to jail for something to be actionable is just silly.
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Old 07-13-2010, 07:52 AM
 
Location: Northeast NE
696 posts, read 1,495,874 times
Reputation: 283
Quote:
Originally Posted by mattpoulsen View Post


And please, again, stop with your "benefits" argument. It simply holds no water. The denial of BENEFITS has long been actionable under due process and/or equal protection. Its a distinction you're simply making up in your head. The idea that you have to go to jail for something to be actionable is just silly.

If it is not about benefits just get married.


I would like to see a study showing the numbers of homosexual couples in Nebraska.
Including the number that would marry within 6 months of the state allowing gay marriage.
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Old 07-13-2010, 09:15 AM
 
Location: Chicago
3,340 posts, read 8,690,173 times
Reputation: 1215
Quote:
Originally Posted by JustMe_T3K View Post

If it is not about benefits just get married.


I would like to see a study showing the numbers of homosexual couples in Nebraska.
Including the number that would marry within 6 months of the state allowing gay marriage.
Well you gotta remember, people tend to lie. There are a lot of self denying gays out there. I used to be one. Some go through there whole lives lying to themselves.
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Old 07-13-2010, 12:56 PM
 
Location: West Omaha
1,181 posts, read 3,646,896 times
Reputation: 477
Why does it matter how many there are? Constitutional rights are not meant to be subject to democratic rule, an idea that many on here seem to miss when they make statements like "the majority has ruled, or the people of the State have made their decision and etc." So in my view if even one couple is impacted that's enough. Maybe I'm misinterpreting your reasoning though.

You are right though, I think a relatively few people would be involved, so why exactly the big resistance to it.

At the end of the day, I think a con law professor I used to have said it best, "there is just no good reason not to allow gay marriage." By that he meant, gays are still gay and still have gay lifestyles, so if that is what the opposition is objecting to then a ban on gay marriage won't stop that. If anything gay marriage would encourage monogamy in the gay community. It just makes no sense to me.
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Old 07-13-2010, 02:32 PM
 
6,486 posts, read 5,670,449 times
Reputation: 1272
Quote:
Originally Posted by mattpoulsen View Post
Why does it matter how many there are? Constitutional rights are not meant to be subject to democratic rule, an idea that many on here seem to miss when they make statements like "the majority has ruled, or the people of the State have made their decision and etc." So in my view if even one couple is impacted that's enough. Maybe I'm misinterpreting your reasoning though.

That's the issue though, is that there are no rights being violated. How is it a violation of rights if a person is being denied something I don't have either?
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Old 07-13-2010, 03:13 PM
 
1,054 posts, read 1,828,300 times
Reputation: 699
Quote:
Originally Posted by Calvinist View Post
That's the issue though, is that there are no rights being violated. How is it a violation of rights if a person is being denied something I don't have either?
Then the rights of christians in Iran are not being violated. They live with the same rules as everybody else, but they chose to live that way.
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Old 07-13-2010, 03:51 PM
 
Location: Omaha, NE
1,048 posts, read 2,138,294 times
Reputation: 220
Quote:
Originally Posted by mattpoulsen View Post
Pheaton,

What I am absolutely unequivocally certain about is that the U.S. Supreme Court will absolutely have the last say about the issue if they choose to. You keep talking about states rights and the common law, but that simply shows how you don't understand how the system works. The Supreme Court determines what the common law is. The common law is NOT old law. Common law refers to law based on court decision.
Ok. yes. . Kind of. But the courts rely on precedent and the jurisprudence we inherited from from the English courts. What I'm saying is that at common law there are liberties that can only be taken away by legislation. Gay marriage recognition can't be taken away, because it never was recognized. It can only be added, which some states have done. But it can't be forced upon everyone and every state. That's backwards.

Quote:
And as far as states rights, if the Supreme Court determines that homosexuals are a protected class then they absolutely will apply strict scrutiny. And short of that they can apply intermediate scrutiny or some hybridization of that without that class finding. Moreover, it will be the Court who determines whether or not the state statute or state constitutions infringes on the rights of gays, not State Courts. Yes, State Courts may rule on it first. And they may in limited cases be the final say when ONLY state law is at issue. But we're talking about the equal protection and due process under the U.S. Constitution. That is NOT something that state courts have a final say on just because a state law or state constitutional amendment is implicated.
Ok. . I can kind of see this, but declaring sexual preference as a protected class is a big wowie. Heterosexuals aren't a protected class, so this is very very unlikely.

Quote:
And please, again, stop with your "benefits" argument. It simply holds no water. The denial of BENEFITS has long been actionable under due process and/or equal protection. Its a distinction you're simply making up in your head. The idea that you have to go to jail for something to be actionable is just silly.
But taxes and other benefits are the whole reason states have defined marriage as one man one woman. . It's the main reason DOMA exists. I don't understand how it's irrelevant? I mean gay people want to be recognized, but for what purpose if not benefits? Just to be recognized? They can do that by getting married in a state that recognizes it. It's easily overcome.
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