California same-sex marriage ban deemed unconstitutional

[DementedReality]

can someone attempt a sincere effort at explaining the legal argument for not making same sex marriage legal?

i just cant wrap my head around what the problem is, short of willful ignorance.

i understand alot of it is tied up in religious idealogy, but stripping this aspect out, what is the legal basis for denying same sex marriage?

[Makarov]

Originally Posted by DementedReality

can someone attempt a sincere effort at explaining the legal argument for not making same sex marriage legal?

i just cant wrap my head around what the problem is, short of willful ignorance.

i understand alot of it is tied up in religious idealogy, but stripping this aspect out, what is the legal basis for denying same sex marriage?

Its not primarily a legal issue. Its a legislative one. Its up to the legislature to enact legislation which creates legal institutions like marriage (for the most part, any common law re: marriage has now been replaced by legislation). The legal issue only arises when the legislature chooses to enact legislation that is discriminatory or otherwise inconsistent with the constitution.

[onetwo_threefour]

Agree with everything Makarov said, and to add, the Courts obviously have the ability to review laws created at a time when the constitution was interpreted differently ( I.e. The Gey is a big bad crime and it's okay to discriminate) and the political upheaval is about the fact that the Courts allow the interpretation of the constitution to change over time (the living tree doctrine). Conservatives have always been up in arms about an evolving constitution (go figure) as they feel the founding fathers were infallible and said exactly what they meant and that should be perfect forever and ever, amen. This is especially true if the particular expansion of the constitution expands rights to groups that conservative ideologues would rather didn't have those rights, less so when it supports something they agree with. (ex. Gay rights vs. Corporate personhood/corporate freedom of speech)

[Textcritic]

Originally Posted by onetwo_threefour

...the Courts obviously have the ability to review laws created at a time when the constitution was interpreted differently ... and the political upheaval is about the fact that the Courts allow the interpretation of the constitution to change over time (the living tree doctrine). Conservatives have always been up in arms about an evolving constitution (go figure) as they feel the founding fathers were infallible and said exactly what they meant and that should be perfect forever and ever, amen.

Constitutional inerrency?

[afc wimbledon]

Originally Posted by Lchoy

I tried to bring up the old thread but I couldn't find it using the search function

Anyways, the US Federal Appeals Court came out with their long awaited ruling that Proposition 8, a motion to define marriage as between a man and a woman which was passed by voters in California, is unconstitutional

http://www.cbc.ca/news/world/story/2...a-samesex.html





Not only was this issue hotly contested, but proponents of the ban argued that the original ruling to overturn the ban was bias, as the deciding judge was gay and in a long term relationship with a nother man at the time



Anyways, this issue isn't over and it will all likely head to the supreme court for the ultimate decision. However, it's pretty good news right now

I assume they believe that no white people should be judged by a white judge as well? or is it just those screaming f** judges that are utterly incapable of giving an unbiased opinion about an issue that affects them.

good luck appealing on those grounds!

[Azure]

Originally Posted by valo403

A case can't go to the Supreme Court without the lower courts 'bickering' over it first. The US Supreme Court can't just pick a case to rule on without it clearing every lower court first.

I realize that. I'm just saying that this should have been pushed to the Supreme Court years ago. Even if they need to bicker about it. Bicker enough to get it there, have them rule and legalize it, and be done with it.

[photon]

Originally Posted by Textcritic

Constitutional inerrency?

That deserves its own t-shirt.



Ok, not that funny.. need a better idea.

[driveway]

Swear words.

NSFW!

[Sidney Crosby's Hat]

Originally Posted by afc wimbledon

I assume they believe that no white people should be judged by a white judge as well? or is it just those screaming f** judges that are utterly incapable of giving an unbiased opinion about an issue that affects them.

good luck appealing on those grounds!

Not to mention, wouldn't the other side have the same argument if the ruling went the other way and the judge was straight/religious?

[valo403]

Originally Posted by Azure

I realize that. I'm just saying that this should have been pushed to the Supreme Court years ago. Even if they need to bicker about it. Bicker enough to get it there, have them rule and legalize it, and be done with it.

Well it couldn't have gone there years ago as it didn't enter the legal realm until recently, the Supreme Court can't pick a cause and rule upon it.

[Devils'Advocate]

From the CBC article:

"No court should presume to redefine marriage. No court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people," said Brian Raum, senior counsel for the Alliance Defence Fund, a Christian legal aid group based in Arizona that helped defend Proposition 8. "We are not surprised that this Hollywood-orchestrated attack on marriage — tried in San Francisco — turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court.

I don't want to slap all religious people. However, it just seems that almost all the people I want to slap are religious.

[FlamesAddiction]

I don't disagree with the court's decision here, but it would have been nice if they came to the conclusion that it would be unconstitutional before they let the people vote on it. I'm not that excited about having a democratic vote on something only to have a court overrule the results.

[troutman]

Hollywood-orchestrated attack on marriage

Led by the Film Actors Guild

[Textcritic]

Originally Posted by the CBC article

"No court should presume to redefine marriage. No court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people..."

What I find ridiculous in this issue is the strange sense from the religious right that somehow "marriage" is this perfectly preserved, eternal institution that has not experienced any transformation over the thousands of years of civilized society. As if today's definition of "marriage" is precisely what god intended; in actual fact, we redefine "marriage" all the time, and this will never stop.

And thank god that institutions do change. At one time and in many places, the sole function for marriage was to produce children, and to ensure the survival of one's lineage. Most often this took place at the expense of anyone's own wishes or desires. "Marriage" was a contract between families, not individuals; it was about progeny and community solidarity and had little to do with companionship, love or affection. I don't know about any of the rest of you, but I am sure glad that my own marriage amounts to a hell of a lot more than that, and I am equally thankful that marriage has been redefined over and over through the centuries, and bears little resemblance to its ancient counterparts.

[Stay Golden]

its funny how if someone is for same sex marriage then your open minded and if a person is opposed to it then they are closed minded.

Whats right is right and what's wrong is wrong. ALL people know what's right or wrong for them personally as a opinion. Religion, values, preference or otherwise.

[Hack&Lube]

[Hack&Lube]

Originally Posted by Textcritic

What I find ridiculous in this issue is the strange sense from the religious right that somehow "marriage" is this perfectly preserved, eternal institution that has not experienced any transformation over the thousands of years of civilized society. As if today's definition of "marriage" is precisely what god intended; in actual fact, we redefine "marriage" all the time, and this will never stop.

And thank god that institutions do change. At one time and in many places, the sole function for marriage was to produce children, and to ensure the survival of one's lineage. Most often this took place at the expense of anyone's own wishes or desires. "Marriage" was a contract between families, not individuals; it was about progeny and community solidarity and had little to do with companionship, love or affection. I don't know about any of the rest of you, but I am sure glad that my own marriage amounts to a hell of a lot more than that, and I am equally thankful that marriage has been redefined over and over through the centuries, and bears little resemblance to its ancient counterparts.

Exactly. Now if we are really going biblical, shouldn't we be allowed to practice polygamy? It's common in the Old Testament among the very patriarchs of the Abrahamic religions and there is nothing in the New Testament that ever commented on or rescinded this practice. Marriage is not an eternal institution. It is a cultural construction that changed and evolved throughout human history.

My great-grandfather in China had 8 wives and several more concubines. Perhaps I should claim a cultural right to that practice.

[onetwo_threefour]

I agree that right is right and wrong is wrong, what I don't know is whether it is fair to say that we have some unerring moral compass as a society or as individuals to distinguish between the two.

We can have disagreements about whether gay marriage is wrong without accusing each other of being closed-minded, they are not necessarily related to each other. I still think that if someone could show me strong evidence that gay marriage does significantly more harm to individuals or society than straight marriage, I could be persuaded to see it as 'wrong'. In the absence of that evidence, I don't see 'tradition' as a compelling reason to deny the legal status of marriage to gay couples who want it.

I don't see that as closed-minded, but I do think it demonstrates a rational approach to the question of what is right and wrong. I see the argument from tradition as logically fallacious in the vein of an appeal to authority. Authority can be persuasive, but should never be unquestionable.

[Thor]

Originally Posted by Stay Golden

its funny how if someone is for same sex marriage then your open minded and if a person is opposed to it then they are closed minded.

I don't see it like that at all, I see one standpoint from reason and logic, the other from people unwilling to see reason in light of their belief system.

[Maritime Q-Scout]

Originally Posted by Stay Golden

its funny how if someone is for same sex marriage then your open minded and if a person is opposed to it then they are closed minded.

Whats right is right and what's wrong is wrong. ALL people know what's right or wrong for them personally as a opinion. Religion, values, preference or otherwise.

I think you're right . . . to a point.

Yes some anti-gay marriage people are closed minded, yes some pro-gay marriage people are closed minded.

The difference is, I've seldom across someone that was anti-gay marriage that was willing to actually listen and debate my argument in favour of gay-marriage. Those people that are anti-gay marriage but will listen to my arguments, think about them, and refute them on their merits are NOT closed minded. That said, I can't name anyone off the top of my head that fits that description.

On the other hand, there are lots of people in the pro-gay marriage camp that will refuse to listen to the religious argument (which is a shame because it can actually a very strong argument in favour of gay marriage). Those people are also closed minded.

All in all, the stereotypical anti-gay marriage advocate falls in the closed minded segment, and for the most part the pro-gay marriage falls in the open minded segment (if not for the reason stated above, but because they're accepting of something that's different from themselves).