California High Court "Overturns" Gay Marriage Ban

[DC Tom]

Do you believe legal constructs can be built and ratified by a state in direct contradiction of the U.S. Constitution?

 

No. So what? It's not relevant in this case. Civil law - i.e., marriage - is vested to the states under the Constitution. By definition, ANY law a state passes concerning marriage cannot violate the federal constitution.

 

 

The easiest way to get those rights is to let them get legally married.

 

Yes. Again...so what? People should be legally permitted to do things because it's easy?

 

 

I believe I asked you tell me how they are the same.

 

They're both "privileges" abridged by the state, as far as you're using the legal term "privilege". If the state can't abridge my right to marry whoever the hell I want, they why can the abridge my right to drive however the hell I want? And yes, I know your answer is "because one's dangerous, and the other isn't"...but the Amendment you quoted doesn't qualify the abridgement of privilege with a caveat "unless it's dangerous, then it's okay." By your broad and literal interpretation, it's a blanket statement against ALL "privilege" and the fact that one is dangerous is irrelevent.

[DC Tom]

I guess the problem is still twofold in CA. On the one side, domestic partners want the legal protections afforded to hetero marrieds so the word "marriage" is actually important for legal precedent. I can see some lawyer arguing (before this decision) that because "marriage is defined as between a man and a woman" that some 200 years of case law precedent on a question related to marriage does not apply to domestic partnerships. It's a pretty ocmpelling argument too. The legislature had to intend some legal consequence in passing a law explicitly defining "marriage" as it did--thus there are some differences between the domestic partnership and married heteros.

 

The other problem is that the anti-gay-marriage crowd pushes this issue to the fore too--for whatever reason that it excites them. And every time they do, the homosexuals feel (rightly) that their rights are threatened.

 

So yes, though there are other issues of much more importance, it's one that keeps coming up until these state courts and legislatures all work through their various machinations. I expect in 20 years, this crap will be mostly behind us.

 

That's one of the weird things about the current decision, too...that it's based on there being no "substantive" legal difference between "domestic partnership" and "marriage"...

 

 

...huh? How's that again? Admittedly, it's based on precedent rather than statute (as far as I know), but unless they intend to legislate away the gender bias inherent in heterosexual divorce cases (which by definition, would not carry over in to homosexual divorce cases - how do you determine which of two men pays the alimony by the same gender biased standards in hetero-divorce?), there is at least one substantive legal difference.

[Chilly]

That's one of the weird things about the current decision, too...that it's based on there being no "substantive" legal difference between "domestic partnership" and "marriage"...

 

 

...huh? How's that again? Admittedly, it's based on precedent rather than statute (as far as I know), but unless they intend to legislate away the gender bias inherent in heterosexual divorce cases (which by definition, would not carry over in to homosexual divorce cases - how do you determine which of two men pays the alimony by the same gender biased standards in hetero-divorce?), there is at least one substantive legal difference.

 

Easy, who takes it up the butt?

[Steely Dan]

If a state enacts a law that is in contradiction with the USC, then it will be struck down. Again, have state laws regarding legality of marriage contradicted with the USC?

 

Put aside your opinion for a moment, and point to legal precedent.

 

I can't think of one. I still believe it violates the Constitution, as I said before. My "liberal" interpretation is reached by the belief that life has become a lot more complicated than the framers of the Constitution ever imagined and so some modern interpretations have to be applied to a very old document. If you're a strict constructionist you're trying to make society regress while the truth of the matter is that society is progressing and therefore the Constitution must be interpreted for our changing times. The ability to have an abortion was found in the 14th amendment. I agree with it. So while it's not exact precedent it is precedent for finding rights in the wording of the Constitution as it stands now.

 

 

Not necessarily. I believe I read somewhere that the Gubernator will veto an outright state amendment.

 

Linkage

 

California Gov. Arnold Schwarzenegger Friday said he would oppose a state ballot initiative to ban same-sex marriage, The Sacramento Bee reported.

 

Schwarzenegger, speaking to a gathering of gay Republicans in San Diego, called the initiative to amend the California constitution “a total waste of time,” the newspaper said, citing an audio recording of the governor’s remarks.

 

Schwarzenegger has previously vetoed two bills passed by the California Assembly to allow same-sex marriage. He told a meeting of Log Cabin Republicans Friday he expected California voters to reject the ballot initiative “because I think that California people are much further along on that issue.”

 

Schwarzenegger said he would “always be there to fight against that because it will never happen.”

 

“I think we need a constitutional amendment so that foreign-born citizens can run for president, but not about gay marriage,” he said.

 

The first part is underlined because it shows what GG was talking about. The second part is underlined because it's funny.

[GG]

I can't think of one. I still believe it violates the Constitution, as I said before. My "liberal" interpretation is reached by the belief that life has become a lot more complicated than the framers of the Constitution ever imagined and so some modern interpretations have to be applied to a very old document. If you're a strict constructionist you're trying to make society regress while the truth of the matter is that society is progressing and therefore the Constitution must be interpreted for our changing times. The ability to have an abortion was found in the 14th amendment. I agree with it. So while it's not exact precedent it is precedent for finding rights in the wording of the Constitution as it stands now.

 

My opinion is about as relevant as yours. There is a law on the books. There is also a process, which the old men decided on 200+ years ago to keep and update the laws. They made it difficult to change the laws to ensure that if you are going to change the Constitution, there would be a lengthy & proper debate. So far, it's worked better than anywhere else in the world.

 

Don't like the law? Go out and solicit enough votes to change it.

[Steely Dan]

No. So what? It's not relevant in this case. Civil law - i.e., marriage - is vested to the states under the Constitution. By definition, ANY law a state passes concerning marriage cannot violate the federal constitution.

 

 

 

 

Yes. Again...so what? People should be legally permitted to do things because it's easy?

 

 

 

 

They're both "privileges" abridged by the state, as far as you're using the legal term "privilege". If the state can't abridge my right to marry whoever the hell I want, they why can the abridge my right to drive however the hell I want? And yes, I know your answer is "because one's dangerous, and the other isn't"...but the Amendment you quoted doesn't qualify the abridgement of privilege with a caveat "unless it's dangerous, then it's okay." By your broad and literal interpretation, it's a blanket statement against ALL "privilege" and the fact that one is dangerous is irrelevent.

 

Nobody has the "privilege" to harm another person. 'Nuff said. A better argument for your case is the seatbelt law.

 

 

That's one of the weird things about the current decision, too...that it's based on there being no "substantive" legal difference between "domestic partnership" and "marriage"...

 

 

...huh? How's that again? Admittedly, it's based on precedent rather than statute (as far as I know), but unless they intend to legislate away the gender bias inherent in heterosexual divorce cases (which by definition, would not carry over in to homosexual divorce cases - how do you determine which of two men pays the alimony by the same gender biased standards in hetero-divorce?), there is at least one substantive legal difference.

 

Why not?

 

EDIT: There are women who pay alimony to men. What laws apply there?

[Steely Dan]

My opinion is about as relevant as yours. There is a law on the books. There is also a process, which the old men decided on 200+ years ago to keep and update the laws. They made it difficult to change the laws to ensure that if you are going to change the Constitution, there would be a lengthy & proper debate. So far, it's worked better than anywhere else in the world.

 

Don't like the law? Go out and solicit enough votes to change it.

 

How did Roe v. Wade change the Constitution? IMO, it only changed the interpretation of an amendment that already existed.

[DC Tom]

Nobody has the "privilege" to harm another person. 'Nuff said. A better argument for your case is the seatbelt law.

 

Driving 110 in a 35 doesn't harm anyone else. Though you are right, seat belt laws are a better example.

 

And you still haven't gotten around to sharing with us the legal definition of "privilege". Can you cite anything that says it includes civil law at the state level?

 

Why not?

 

EDIT: There are women who pay alimony to men. What laws apply there?

 

Why not? You can apply gender bias in a gender-neutral situation?

 

And there are far more men that pay alimony to women - even in cases where the woman has more means than the man and no need for the alimony. Child custody is biased toward women. As is property division. Cherry-picking individual cases that may buck the trend does not mean the trend does not exist: the established precedent is gender bias.

[John Adams]

California Gov. Arnold Schwarzenegger Friday said he would oppose a state ballot initiative to ban same-sex marriage, The Sacramento Bee reported.

 

Schwarzenegger, speaking to a gathering of gay Republicans in San Diego, called the initiative to amend the California constitution “a total waste of time,” the newspaper said, citing an audio recording of the governor’s remarks.

 

Schwarzenegger has previously vetoed two bills passed by the California Assembly to allow same-sex marriage. He told a meeting of Log Cabin Republicans Friday he expected California voters to reject the ballot initiative “because I think that California people are much further along on that issue.”

 

Schwarzenegger said he would “always be there to fight against that because it will never happen.”

 

“I think we need a constitutional amendment so that foreign-born citizens can run for president, but not about gay marriage,” he said.

 

I tried some quick and dirty google work and am not sure he can veto a CA Constitutional amendment. (Not sure is the key phrase here--I didn't look in depth.) All he says in those articles is that he'll oppose an amendment and that he's vetoed other related bills.

[GG]

How did Roe v. Wade change the Constitution? IMO, it only changed the interpretation of an amendment that already existed.

 

I wonder if it's because the justices saw that a woman's right to her body until the fetus is sustaining is an inalienable right, rather than the privilege that you're hung up on. If marriage is deemed an inalienable right, then the Constitution is discriminatory to all single and divorced people.

[Steely Dan]

Driving 110 in a 35 doesn't harm anyone else. Though you are right, seat belt laws are a better example.

 

And you still haven't gotten around to sharing with us the legal definition of "privilege". Can you cite anything that says it includes civil law at the state level?

 

 

 

Why not? You can apply gender bias in a gender-neutral situation?

 

And there are far more men that pay alimony to women - even in cases where the woman has more means than the man and no need for the alimony. Child custody is biased toward women. As is property division. Cherry-picking individual cases that may buck the trend does not mean the trend does not exist: the established precedent is gender bias.

 

Driving 110 in a 35 has a high probability of harming someone.

 

Ok, it's not a privilege but I think the right is in the Constitution in much the same way Roe v. Wade found the right to abortion.

 

I disagree with the seatbelt law. While I believe it's just common sense to wear one it's an infringement on personal choice. Not wearing a seatbelt doesn't cause harm to anyone but the driver, at least I can't think of a case of harm coming to another person because someone didn't wear a seatbelt.

 

The same economic reasons for alimony now would apply to gay couples too, IMO.

 

As far as custody goes which parent will be the better one and which parent do the kids want to live with.

[Steely Dan]

I wonder if it's because the justices saw that a woman's right to her body until the fetus is sustaining is an inalienable right, rather than the privilege that you're hung up on. If marriage is deemed an inalienable right, then the Constitution is discriminatory to all single and divorced people.

 

You're right it's not a privilege. I do believe the right is there as it is for hetero couples. IMO, saying one group of adults can marry but another group cannot is unconstitutional.

[GG]

You're right it's not a privilege. I do believe the right is there as it is for hetero couples. IMO, saying one group of adults can marry but another group cannot is unconstitutional.

 

But that definition, it should be constitutional to marry your sister, daughter, mother. Not a pleasant thought, and thusly should be kept out of the Constitution.

[Steely Dan]

But that definition, it should be constitutional to marry your sister, daughter, mother. Not a pleasant thought, and thusly should be kept out of the Constitution.

 

Not according to Loving v. Virginia (1967)

 

LOVING ET UX. v. VIRGINIA

SUPREME COURT OF THE UNITED STATES

388 U.S. 1

June 12, 1967, Decided

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

 

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

 

I see no reason why you can't replace "racial classifications" with "sexual classifications".

[DC Tom]

Driving 110 in a 35 has a high probability of harming someone.

 

Oh, so now your argument isn't that a "privilege" isn't something that cause harm, but that it isn't something that can hypothetically cause harm. Regardless, you seem to have conceded the point as follows...

 

 

Ok, it's not a privilege but I think the right is in the Constitution in much the same way Roe v. Wade found the right to abortion.

 

Very well...now demonstrate the legal equivalence between marriage and abortion. I'll even give you a little help: read section 7 of the Roe v. Wade opinion.

 

The same economic reasons for alimony now would apply to gay couples too, IMO.

 

As far as custody goes which parent will be the better one and which parent do the kids want to live with.

 

Except that those economic reasons are still gender-biased, not as a de facto matter of statute but as a de jure matter of precedent. The assumption in divorce cases still remains that unless demonstrated otherwise a man has greater fiscal recourse than a woman. Similar for custody: the assumption is that unless demonstrated otherwise the "maternal bond" takes precedence over paternal rights for the welfare of the child (who the kids want to live with is rarely taken into consideration - they have no legal standing to determine the needs of their own welfare). That's my whole point: although legitimate objective measures exist for determining such issues, as a matter of law they are determined largely by gender-bias that does not apply in same-sex marriages, meaning that there is in fact a substantive legal difference between "domestic partnership" and "marriage".

[DC Tom]

Not according to Loving v. Virginia (1967)

 

LOVING ET UX. v. VIRGINIA

SUPREME COURT OF THE UNITED STATES

388 U.S. 1

June 12, 1967, Decided

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

 

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

 

I see no reason why you can't replace "racial classifications" with "sexual classifications".

 

Then prove the legal equivalence. Demonstrate there's no substantive legal difference between race and sexual orientation.

[Steely Dan]

Oh, so now your argument isn't that a "privilege" isn't something that cause harm, but that it isn't something that can hypothetically cause harm. Regardless, you seem to have conceded the point as follows...

 

 

 

 

Very well...now demonstrate the legal equivalence between marriage and abortion. I'll even give you a little help: read section 7 of the Roe v. Wade opinion.

 

 

 

Except that those economic reasons are still gender-biased, not as a de facto matter of statute but as a de jure matter of precedent. The assumption in divorce cases still remains that unless demonstrated otherwise a man has greater fiscal recourse than a woman. Similar for custody: the assumption is that unless demonstrated otherwise the "maternal bond" takes precedence over paternal rights for the welfare of the child (who the kids want to live with is rarely taken into consideration - they have no legal standing to determine the needs of their own welfare). That's my whole point: although legitimate objective measures exist for determining such issues, as a matter of law they are determined largely by gender-bias that does not apply in same-sex marriages, meaning that there is in fact a substantive legal difference between "domestic partnership" and "marriage".

 

See what I posted above about Loving v. Virginia.

 

Men are more frequently being giving custody in those cases. Assumptions of law will have no bearing on gay cases. They're only assumptions they are not legal mandates.

[Steely Dan]

Then prove the legal equivalence. Demonstrate there's no substantive legal difference between race and sexual orientation.

 

Ok, you win. Race based discrimination is different from religious discrimination or sexual orientation discrimination and any other discrimination you think is appropriate to add. I think it's pretty obvious that they fall under the same banner.

[DC Tom]

Ok, you win. Race based discrimination is different from religious discrimination or sexual orientation discrimination and any other discrimination you think is appropriate to add. I think it's pretty obvious that they fall under the same banner.

 

Okay. Then demonstrate they're not legally equivalent.

[Steely Dan]

Okay. Then demonstrate they're not legally equivalent.

 

Tom you're splitting hairs. While it hasn't been decided one way or the other discrimination is discrimination. If it's against someone who is different for any reason. I believe that, and there is precedent to prove that point. If the courts decide gays don't deserve equal treatment for marriage it will, IMO, be a Jim Crow type law.