So after the State of California upheld Proposition 8 yesterday I posted a little blurb about how I was disappointed. That status update lead to a long discussion about the rights of marriage between myself, 2+2=5, and Jonny Durango. I figured that I'd blog the conversation, not in hopes of changing anyones mind, but more to encourage people to think more about the situation.
Desomniac: sad day for the state of california
Jonny D: ...and a very sad day for judicial activism!
2+2=5: People vote and it's upheld by the court and it's a sad day??? Wouldn't it be worse if the people spoke and no one listened?
Desomniac: When people vote in favor of discrimination and the court upholds it it is a very sad day. Would the ruling have been upheld if they were trying to prevent interracial marriages? I think not.
2+2=5: It all comes down to how you define marriage, doesn't it?
Desomniac: Yes it does. And their interpretation of marriage is a blatant act of discrimination. Just like the Racial Integrity Act of 1924.
2+2=5: Marriage has always been defined as a man and a woman, clear beack to it's author
Jonny D: It doesn't matter....until the Constitution is amended to allow gay marriage, the issue must be left up to the states, and the courts MUST uphold the will of the people as long as it's Constitutional. I'm sorry, I support gay marriage as a matter of POLICY, but the Constitution does not define marriage. And unless you're advocating marriage for ANY two (or more?) adults, then calling it "discrimination" is hyporitical, because you're "discriminating" against consenting adult families or groups....that proves that this is not a basic human rights issue that applies across the board to ALL people regardless of race, religion, sex, sexual orientation, etc....therefor, one again with heart: until the Constitution is amended to allow gay marriage, the issue must be left up to the states, and the courts MUST uphold the will of the people!!!
2+2=5: well said
Desomniac: I feel that if marriage as institution remains intertwined with the state than ANY two individuals have a right to it. In the end I'd rather see the term "marriage" removed from any and all government correspondence. Then the government wouldn't have any reason to intervene within someones church. Whether two peoples are "married" should be a decision of their church and no one else. Because what if you have a church that is open to performing gay marriages, do they then loose the ability to perform that ceremony and in turn their freedom of religion? It's all just too complicated. Marriage (Religious) and Unions (Governmental) should be entirely different things.
Jonny D: Why just TWO individuals? Who says it has to be two? Civil rights don't apply to just certain people or pairs of people. Why don't you allow three brothers to marry their father and grandmother? I mean, c'mon! Really? Besides the obvious moral issues, it's far too embedded in US tax and legal code to make huge changes like that....or get rid of it entirely...and you'd just prove the right-wing's point that liberals are trying to "destroy" marriage. And just changing the name would have little, if any effect. You've gotta deal with it like any other matter of public policy....let the PEOPLE decide, either through legislation, amendments to the Constitution, referendums or some other LEGISLATIVE means! Not through the courts!
Desomniac: Civil rights apply to everyone however civil unions apply to two individual persons. I'm not saying that we should allow the creation of strange inbred super families. However I don't understand why two people are allowed a status within the government but two other people are denied the same status. In most circumstances civil rights are earned through the courts not the voters, because the group of peoples who's rights are being suppressed are not the majority. We have to have a system in place to protect everyone.
Jonny D: So you agree the line has to be drawn somewhere....the issue is where. It's not drawn in the Constitution, so it needs to be written in law. You want the judicial branch writing the law because the majority is on the "wrong" side of the issue? Look up "anti-miscegenation laws"....these had to be outlawed by individual STATES for the exact same reason.
Desomniac: The individual states laws were ruled unconstitutional after Loving v. Virginia. The states no longer had a choice.
Jonny D: You know, I remembered that a few minutes after I posted the comment. It seems the 1967 Supreme Court decision was mostly based on the "equal protection" clause of the 14th Amendment....I read the 14th Amendment and a lot of articles about the equal protection clause and came across this....to answer many tough questions like this, the Supreme Court employs different levels of "scrutiny" to language....
Intermediate_scrutiny
Anyway, it actually looks like there's pretty good precedent under the equal protection clause of the 14th Amendment for allowing gay marriage, depending on what level of "scrutiny" the court chooses....i'm gunna read more on this...
Desomniac: In the end the California court ruling is completely legitimate. Because the rights to equality aren't granted in California law, but federal law. This is an issue that needs to be decided by the US Supreme Court and until then the states are just wasting money on legislation and referendums that could be overturned in a single ruling from the high bench. It's starting to look like we're going to see a Supreme Court ruling in the next few years. http://www.cbsnews.com/stories/2009/05/27/national/main5042384.shtml
I would like to thank both 2+2=5 and Jonny D for the open exchange of ideas because if discussions like this cease to exist so fails the foundation of our democracy. Both of you continually reinforce my concepts of America, freedom and patriotism and for that I am in your debt.
That was a good discussion. I would add that the courts do not exist in a vacuum; they are either directly elected or appointed by elected officials. IMO the idea is to get a trained and experienced specialist in on the discussion (and ideally our structure of 'checks and balances' theoretically prevents them from having total power), not to elect or appoint them based on how we know they will rule. Again, this is about where to draw those boundaries. I agree that a crucial function of the judicial system is to protect the minority from the tyranny of the majority. Imagine if ethnic minorities were granted then stripped of their civil rights every time the country's opinion swung one way or another. The electorate is very far from that now, but what if it wasn't? Would that make institutional racism justified and a good idea? Gay marriage is not the same thing, but I think the similarities are worth debating. Our constitution does allow amendments through a process that was meant to require significant will and effort, and it also says that all men are created equal. It's an good question as to how this applies the the gay marriage debate. That said, I am personally a strong supporter of gay marriage and/or domestic partnerships with rights equivalent to traditional marriage.
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