D.O.M.A. dead, Gay Marriage legal in the USA

[Makarov]

Originally Posted by jonesy

I don't know if you are switching your arguement around but thing you said was:

" it took the courts to recognize that the democratic process was running contrary to basic civil rights and had to make a tough decision to overrule the population"

which means the courts can do what they want if they feel the people are wrong. I disagree with that.

To borrow your beard and burkha example: if you were a minority christian in a majority muslim state, and the executive branch of the government was enforcing mandatory burkhas and beard legislation passed by the legislative branch of the government, would you want the judiciary to "do what they want if they feel the people are wrong"?

I suspect that you would. I certainly would.

[valo403]

Originally Posted by Makarov

To borrow your beard and burkha example: if you were a minority christian in a majority muslim state, and the executive branch of the government was enforcing mandatory burkhas and beard legislation passed by the legislative branch of the government, would you want the judiciary to "do what they want if they feel the people are wrong"?

I suspect that you would. I certainly would.

If that involved the judicial branch stepping outside of their judicial powers I'd have an issue with it. The judicial branch should be making rulings in accordance with the law, not changing the law to suit its idea of what is right.

[Maritime Q-Scout]

The whole point of having a Constitution is to state there are some things that are so fundamental that they are not at the whims of the electorate.

Without it people could vote to eliminate the freedom of speech, the press, expression etc.

The constitution says that the people do not have the power to eliminate those rights and freedoms without an extensive process.

The role of the judiciary is to make rulings based on the structure of Constitution > Legislation > Common Law.

This is why the court can vote down an unconstitutional bill that was voted on and passed by the majority. Otherwise, a state could vote to have slavery. Would that be acceptable because the people voted for it?

[PsYcNeT]

Yeah argumentum ad populum isn't a great fallacy to base laws around.

[jonesy]

Originally Posted by PsYcNeT

Yeah argumentum ad populum isn't a great fallacy to base laws around.

So you are espousing argumentum ad non-populum is better?

[PsYcNeT]

Originally Posted by jonesy

So you are espousing argumentum ad non-populum is better?

I think it's pretty obvious that if you appoint a high court to interpret existing constitutional law, you should likely follow their rulings.

If you have a better system for law interpretation that doesn't involve plebiscite voting on high court rulings, I'd like to hear it.

[Rathji]

Originally Posted by jonesy

I don't know if you are switching your arguement around but thing you said was:

" it took the courts to recognize that the democratic process was running contrary to basic civil rights and had to make a tough decision to overrule the population"

which means the courts can do what they want if they feel the people are wrong. I disagree with that.

You have a narrow view here of that the people want. What the people want is expressed in the constitution and laws that have stood the test of time, which is what these decisions were based upon.

If a law violates the constitution, what should be done? The 2 options are strike down the law or change the constitution, right?

So if you are right, and people disagree with these legal decisions (re: DOMA and Prop 8), then would the logical result be to change the constitution to prevent these people from having rights?

[Mike F]

Originally Posted by valo403

The Court is not the government. I don't agree that what the court did was at all overruling the democratic process, but if someone sees it that way I can understand why they'd take issue with it.

Originally Posted by valo403

If that involved the judicial branch stepping outside of their judicial powers I'd have an issue with it. The judicial branch should be making rulings in accordance with the law, not changing the law to suit its idea of what is right.

In the US, the Constitution is the supreme law of the land, and no body of government can pass laws that violate it, no matter how popular they are.

The Supreme Court was set up as the branch of government with the authority to examine laws and rule on their application and validity; it's fundamental purpose is to act as a check on the legislative and executive.

In finding DOMA unconstitutional and thus striking down the law, the Supreme Court was doing exactly what it needs to to keep the US democracy strong.

Edit: I'm not sure if I'm arguing against you or agreeing; I can't follow the thread of the argument you were involved in.

[jonesy]

Originally Posted by PsYcNeT

I think it's pretty obvious that if you appoint a high court to interpret existing constitutional law, you should likely follow their rulings.

If you have a better system for law interpretation that doesn't involve plebiscite voting on high court rulings, I'd like to hear it.

That sounds like an OK arrangement to me.
I am just saying your original wording about the govt over riding the people was wrong. If you were simply caught up in the moment and in fact meant that courts can interpret laws as you state above that is another matter which is of course more defendable.

Anyways, thats enough on that.

[PsYcNeT]

Originally Posted by jonesy

That sounds like an OK arrangement to me.
I am just saying your original wording about the govt over riding the people was wrong. If you were simply caught up in the moment and in fact meant that courts can interpret laws as you state above that is another matter which is of course more defendable.

Anyways, thats enough on that.

I'm not gonna drag this out, but the original person you quoted was Cali Flames Fan, not me.

I just happened to agree with the sentiment.

[valo403]

Originally Posted by PsYcNeT

I think it's pretty obvious that if you appoint a high court to interpret existing constitutional law, you should likely follow their rulings.

If you have a better system for law interpretation that doesn't involve plebiscite voting on high court rulings, I'd like to hear it.

I don't believe he's suggesting that the Court should do anything but interpret and apply constitutional law, but the fact that this was a close decision shows that it's not exactly obvious that the Court applied it in accordance with everyone's views on how that should be done. I can certainly see why some people would argue that the Court has stepped outside of interpretation and application and into righting what it perceives as a wrong on its own accord.

[valo403]

Originally Posted by Mike F

In the US, the Constitution is the supreme law of the land, and no body of government can pass laws that violate it, no matter how popular they are.

The Supreme Court was set up as the branch of government with the authority to examine laws and rule on their application and validity; it's fundamental purpose is to act as a check on the legislative and executive.

In finding DOMA unconstitutional and thus striking down the law, the Supreme Court was doing exactly what it needs to to keep the US democracy strong.

Edit: I'm not sure if I'm arguing against you or agreeing; I can't follow the thread of the argument you were involved in.

I (due to hours of lectures I would have rather spent playing FIFA) am fully on board with all of that, and agree with the result. My point is simply that the view that the Court was stepping outside of its role, and into a bit of legislating from the bench, isn't completely out of line here. It's a tough area, and there are strong arguments both ways, which is why the people who both argue and hear these cases are the best in the land.

[PsYcNeT]

Originally Posted by valo403

I don't believe he's suggesting that the Court should do anything but interpret and apply constitutional law, but the fact that this was a close decision shows that it's not exactly obvious that the Court applied it in accordance with everyone's views on how that should be done. I can certainly see why some people would argue that the Court has stepped outside of interpretation and application and into righting what it perceives as a wrong on its own accord.

If that's what he meant, he shouldn't have drawn a false dichotomy by talking about beards and burkas.

[jonesy]

Originally Posted by PsYcNeT

If that's what he meant, he shouldn't have drawn a false dichotomy by talking about beards and burkas.

Hey! I thought we were done here. Beards and burkas rolls off the tongue. Not a false dichotomy, never presented it as an 'either or' option, just another issue that a govt could 'intervene' in. (and in fact has in other countries in heavy handed fashion)

[troutman]

A marriage has more than legal implications. I think Joseph Campbell would have said that a wedding has mythical and spiritual effects. The ritual of declaring your love in front of your family and peers is transformative, and the union of two souls into a sacred duad. A common law union is more of a relationship of convenience, and usually lacks this transforming ceremony.

[kirant]

Originally Posted by troutman

A marriage has more than legal implications. I think Joseph Campbell would have said that a wedding has mythical and spiritual effects. The ritual of declaring your love in front of your family and peers is transformative, and the union of two souls into a sacred duad. A common law union is more of a relationship of convenience, and usually lacks this transforming ceremony.

Marriages can also be performed by simple paper filling, can it not?

I know what you're getting at: the term marriage creates a sense of affection and love as oppose to the connotative meaning of common law union as a legal point. I'm not sure that it's a public thing though (in your ritual described above) as much as a show of strength between two individuals.