SFHoya99
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Post by SFHoya99 on Aug 6, 2010 11:17:09 GMT -5
It's funny, but people being obsessed with "Founder's Intent" is a relatively recent phenomenon.
And in the case of the 14th Amendment, wildly inappropriate. Because, you know, the writer's of the Constitution were dead and didn't intend it.
And if you read it, the lack of specificity in the relevant clause was either intentional to allow for future interpretation or wildly incompetent in lack of details. You pick.
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GIGAFAN99
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Post by GIGAFAN99 on Aug 6, 2010 12:13:06 GMT -5
It's funny, but people being obsessed with "Founder's Intent" is a relatively recent phenomenon. And in the case of the 14th Amendment, wildly inappropriate. Because, you know, the writer's of the Constitution were dead and didn't intend it. And if you read it, the lack of specificity in the relevant clause was either intentional to allow for future interpretation or wildly incompetent in lack of details. You pick. I also find founder's intent arguments regarding the 14th amendment hilarious. The intent of the founders was to allow the constitution to be amended through a very rigorous process to keep it from becoming obsolete but not changed so easily that it could be manipulated on a political whim. That's the spirit in which the 14th amendment should be viewed with regards to founder's intent, not that all amendments need to consult their "What Would Madison Do" bracelets.
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EasyEd
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Post by EasyEd on Aug 6, 2010 12:30:50 GMT -5
Sounds to me like some people don't believe the constitution should limit anything since it must be interpreted in light of current day thinking. It's an obstacle to be overcome through judicial activism.
And, to clarify, I believe it is entirely relevant to know what the intent was when the 14th amendment was enacted so judges can make a judgement as it its original intent - and not to include things that were either not intended or not included in their thinking.
For the third time, is there anything in the good judge's decision that would preclude allowing multi-spouse marriages or marriage among children or between adults and children or between more than two people?
Am I afraid of homosexual marriages? From a religious standpoint, the answer is yes. From a non-religious viewpoint, I can accept it if it is done by due legislative process in the states (or DC).
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DFW HOYA
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Post by DFW HOYA on Aug 6, 2010 12:38:39 GMT -5
Marriage is a state issue, not a federal statute or a Constitutional right which is where the ruling will face crosswinds in the appellate process.
And when does the first man with two wives comes before a California judge seeking a marriage certificate? However odious, I don't see where they turn that down, either.
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SFHoya99
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Post by SFHoya99 on Aug 6, 2010 12:40:33 GMT -5
Sounds to me like some people don't believe the constitution should limit anything since it must be interpreted in light of current day thinking. It's an obstacle to be overcome through judicial activism. Again, your choice of activism is odd, unless you are criticizing years and years of other "political activism" on the 14th amendment. The line of what equal protection is has to be drawn somewhere because it wasn't written specifically. There have been many court cases that help draw this line -- the ruling references at least three that talk about marriage in light of this specifically, if not more, much less all the other areas of life. There was an appeal. This judge doesn't get the right to not hear the case. This is continuing to draw the line on a vague law (that I personally believe was written vaguely on purpose). And what if the writer's and the voters on the 14th amendment wrote it vaguely on purpose to allow for it to be a living law? You cool with that? What if they WANTED judicial activism here as a check on the simple majority? The appeals system and the Supreme Court was set up as a balance against the rest of the way we make laws (which, by the way, California's referendum system is BEYOND against what the founders of the US wanted. Of course, they also didn't want minorities and women to vote, either). And for at least the second time, yes. Read the decision. There is precedent, I believe, that Walker makes no attempt to overturn, that defines marriage as between two people only. Why are you afraid of it for religious reasons? I get that you may disapprove ... but afraid? I'm not trying to be an ass, but the "weakens the institution of marriage" argument rings so hollow to me I really can't fathom someone being scared their marriage will fall apart because two dudes pledge their love.
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TC
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Post by TC on Aug 6, 2010 12:49:34 GMT -5
For the third time, is there anything in the good judge's decision that would preclude allowing multi-spouse marriages or marriage among children or between adults and children or between more than two people? I am not a lawyer, but if I understand the decision correctly he's saying in the "moral disapproval" line that there has to be social research and arguments why gay marriage would harm society. Proposition 8 never made any such arguments, and it tried to make the argument that gay couples should not be granted marriage but tried hard to avoid overt homophobia by not making arguments that homosexuality is wrong and harms society because A, B, and C. If they had made those arguments, the measure probably doesn't pass. The whole campaign revolved around "protecting" marriage. No one would have a problem making arguments about why relationships between children and adults are wrong or why they hurt society. I think kchoya is right and the harder argument would be proving why plural marriage is socially destructive, but the argument would have to revolve around the number of people in the legal relationship.
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theexorcist
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Post by theexorcist on Aug 6, 2010 13:23:43 GMT -5
For the third time, is there anything in the good judge's decision that would preclude allowing multi-spouse marriages or marriage among children or between adults and children or between more than two people? I am not a lawyer, but if I understand the decision correctly he's saying in the "moral disapproval" line that there has to be social research and arguments why gay marriage would harm society. Proposition 8 never made any such arguments, and it tried to make the argument that gay couples should not be granted marriage but tried hard to avoid overt homophobia by not making arguments that homosexuality is wrong and harms society because A, B, and C. If they had made those arguments, the measure probably doesn't pass. The whole campaign revolved around "protecting" marriage. No one would have a problem making arguments about why relationships between children and adults are wrong or why they hurt society. I think kchoya is right and the harder argument would be proving why plural marriage is socially destructive, but the argument would have to revolve around the number of people in the legal relationship. Prop 8 in and of itself made any "arguments" - in its entirety, it was "Section I. Title - This measure shall be known and may be cited as the "California Marriage Protection Act. Section 2. Article I. Section 7.5 is added to the California Constitution. to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California. ". Any issue around it would have been in advertising. en.wikipedia.org/wiki/Prop_8#Proponents seems to have a good summary of the groups. Interestingly enough, one of the key factors that Wikipedia (which may or may not be valid) references is of Gavin Newsom being a horse's behind and indicating that gay marriage was going to happen, leading to lots of people voting to essentially tell him to shove it. Commercials related to Prop 8 that I remember involved two things: one was something about gay marriage being taught in school as socially acceptable. The other I recall involved some "slippery slope" argument that involved plural marriage.
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afirth
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Post by afirth on Aug 6, 2010 13:32:10 GMT -5
Marriage is a state issue, not a federal statute or a Constitutional right which is where the ruling will face crosswinds in the appellate process. Marriage isn't a federal statute, but it isn't solely a state issue either. SCOTUS has specifically held that the right to marry is a fundamental right protected by the "liberty" element of the 14th Amendment due process clause. Thus, it is a fundamental right protected under the Constitution. States can regulate marriage, but because it's a fundamental right, the regulation has to be narrowly tailored, and the government interest has to be sufficiently compelling. If the debate is over whether "freedom to marry" should have been understood to be protected by the "liberty" element of the due process clause in the first place, I can get on board with that. Reasonable minds can disagree over SCOTUS's interpretation of the Constitution. But to argue in this particular case, which is bound by SCOTUS precedent, that marriage isn't presently a Constitutional right -- when SCOTUS has interpreted the 14th amendment to hold that it is -- is kind of ridiculous.
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Boz
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Post by Boz on Aug 6, 2010 13:52:20 GMT -5
Blah, blah, blah. I think the 14th Amendment should give me the fundamental right to date Elisha Cuthbert. But you don't see the courts making reservations for us at 1789, now do you? Stupid government.
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afirth
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Post by afirth on Aug 6, 2010 13:58:38 GMT -5
Hey, I'd probably agree that the 14th amendment may have been stretched beyond what its intended purpose was. But the point is that SCOTUS has the task of interpreting the Constitution, and they have interpreted the Constitution to hold that marriage is a fundamental right. People can disagree with that interpretation, but it doesn't change the fact that the interpretation is still binding law.
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tashoya
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Post by tashoya on Aug 6, 2010 14:00:36 GMT -5
Blah, blah, blah. I think the 14th Amendment should give me the fundamental right to date Elisha Cuthbert. But you don't see the courts making reservations for us at 1789, now do you? Stupid government. Actually, that was going to be part of the amendment til it was revealed that she's Canadian.
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Boz
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Post by Boz on Aug 6, 2010 14:09:07 GMT -5
What the hell? Don't we own Canada yet? Sheesh.
Fine. I'll take Jewel Staite.
What do you mean "she's Canadian too"?
Son of a........
Maybe the government should focus less on marriage and more on breeding some new American hot actresses.
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TC
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Post by TC on Aug 6, 2010 14:11:11 GMT -5
Prop 8 in and of itself made any "arguments" - in its entirety, it was "Section I. Title - This measure shall be known and may be cited as the "California Marriage Protection Act. Section 2. Article I. Section 7.5 is added to the California Constitution. to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California. ". Any issue around it would have been in advertising. Yeah, that's not how things appear on the ballot, read p 6-7 of the decision.
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Post by strummer8526 on Aug 6, 2010 15:13:03 GMT -5
For the third time, is there anything in the good judge's decision that would preclude allowing multi-spouse marriages or marriage among children or between adults and children or between more than two people? Simplest answer is that yes, there is something about the judge's decision: the case before the judge had nothing to do with multi-spouse marriages, or marriage among children, or between adults and children, or between more than two people. The case before the court focused exclusively on marriage between two adult humans. All the fact-finding focused on marriage between two adult humans. Any legal arguments focused on marriage between two adult humans. That's all there is to it. Your question is like asking "What in the Citizens United opinion precludes allowing robots to donate money candidates. The obvious answer: the case itself had absolutely nothing to do with such an extreme-to-the-point-of-absurd hypothetical.
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theexorcist
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Post by theexorcist on Aug 6, 2010 15:37:14 GMT -5
Prop 8 in and of itself made any "arguments" - in its entirety, it was "Section I. Title - This measure shall be known and may be cited as the "California Marriage Protection Act. Section 2. Article I. Section 7.5 is added to the California Constitution. to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California. ". Any issue around it would have been in advertising. Yeah, that's not how things appear on the ballot, read p 6-7 of the decision. It *is* how it appeared on the ballot - the language you're referring to appeared in the California Voter Information Guide, which is not in the ballot box. Voters have the option to ignore it entirely. I will say that the language - which focused on the (potential) requirement for teachers to teach that gay marriage is the same as straight marriage - was a key part of some TV ads (as I remember, it featured a horrified mom and dad finding out what Junior could be taught). The decision seems to ignore this argument entirely - that the state may make moral choices on some items which appear to infringe upon religious liberty. If that's the case, then the initial argument is turned on its head - by allowing gay marriage, the state is "enforcing private moral or religious beliefs". Separate, fun question - what about bans on relations marrying, such as cousins or even siblings? Plural marriage seems to at least go against the "spouse" requirement, but, if the state should have no interest in what goes on during marriage, shouldn't they be unable to ban anything between two consenting adults? Short version - I'm glad I never went to law school.
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TC
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Post by TC on Aug 6, 2010 17:16:10 GMT -5
It *is* how it appeared on the ballot - the language you're referring to appeared in the California Voter Information Guide, which is not in the ballot box. Voters have the option to ignore it entirely. Voters can ignore it? What does that have to do with anything? It's in the official explanation for the proposition.
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GIGAFAN99
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Post by GIGAFAN99 on Aug 7, 2010 7:47:04 GMT -5
Marriage is a state issue, not a federal statute or a Constitutional right which is where the ruling will face crosswinds in the appellate process. And when does the first man with two wives comes before a California judge seeking a marriage certificate? However odious, I don't see where they turn that down, either. Sure they can and the reason is, that is not discriminatory. This isn't about marriage. I know people start with the marriage part and work to "well they I can just marry my dog!" But none of these rulings are really about marriage, nor is the 14th amendment. It's about equal protection. The number of people who can enter into a legal arrangement is not fundamentally discriminatory because it's an attribute of the arrangement, not of the people in the arrangement. But saying you can't marry someone because of gender, race, or religion is in fact discriminatory. That's the thing about this debate. We're talking about marriage but we could say a man and a woman cannot enter into a business partnership in the state of Nebraska and it would essentially be the same argument.
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The Stig
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Post by The Stig on Aug 7, 2010 10:50:46 GMT -5
All this talk about the referendum is totally irrelevant. There is no clause in the US Constitution that says that the law set forth in the Constitution can be overridden by popular vote. For better or for worse, the law of the Constitution applies even if 100% of the American people are against it. The ONLY way to override a part in the Constitution is to pass an amendment via the process set forth in the Constitution.
Now of course, popular vote is indeed part of the amendment process in the California Constitution, but since this issue is covered by the US Constitution (14th Amendment), the US Constitution takes precedent.
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Post by HoyaSinceBirth on Aug 7, 2010 16:10:05 GMT -5
The marriage of close relations has been shown scientifically to be bad for society because of the genetic ramifications of inbreeding. There are no proven problems with gay marriage.
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SFHoya99
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Post by SFHoya99 on Aug 7, 2010 17:58:35 GMT -5
Thank you, giga.
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