Gay rights

[Cavatt]

Just to be clear here, you are saying that you support recognizes a new right as fundamental even if that is directly contrary to the understanding at the time the Constitution/Amendment was passed, correct?

What was the thinking on gay Marriage at the time?

 

[Tornicade]

There was a time when states were essentially considered their own countries and the national government was the basic framework that those states structured themselves.
That time passed with the Civil war and the government took on a bigger role than the the founding fathers had intended and did everything they could to avoid.
Marriage isnt new to the Federal government. they have long recognized Marriage with protections of privacy and the court has consistently ruled it within the confines of pursuit of happiness.

Some states outlawed biracial marriages and the court advised it unconstitutional and forced the state to strike it from their laws.

so you have the court ruling on marriage over 50 years ago.

so the issue presented to the court was whether gender fell under the same guidelines as the precedent did in relation to ethnicity.

the court ruled it was, then declared laws restricting marriage by gender were unconstitutional.

That is the courts function and what they are set to do. If the people and congress feel this wrong then it can be changed by adding an Amendment restricting marriage to same gender couples. just as the 14th amendment overruled the dred scott decision.

its that simple

Same gender couples in the United states can adopt. they can forge their own families. they can legally appoint their significant other as executor . The question here are they entitled to the same protection of marriage afforded to
heterosexual couples.

This was from 1883
"It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws."


Citizens believed states laws against same gender marriages injured them in life , liberty and.or property without due process of law.

These are rights provided by the constitution and although marriage itself may not be specifically listed in the Constitution the rights inherent to marriage were.

the court agreed.

I am not sure why this is a discussion

I also find it amusing when someone cites cases and establishes a pattern,then draws a conclusion. is theb accused of misrepresenting an opinion with no valid rebuttal other than they are a "lawyer"

 

[The Oi]

I'm fascinated by your ability to string together very sophisticated opinions with such awful grammar and punctuation.

Makes me think you're sandbagging.

 

[The Human Q-Tip]

Tornicade, the 14th Amendment was not understood to outlaw all distinctions based on gender. That would be an application of it that the drafters and people who ratified it would have considered nuts. There are a shitload of examples of neither the nation nor the Court equating racial distinctions with gender distinctions. The most obvious of which is that not only did the 14th Amendment not automatically recognize a woman's constitutional right to vote (which would seem inherent in your reading of the privileges and immunities clause), but that when they did expand the franchise via the 15th Amendment, it was only for race. And it took 50 years before the franchise was extended to women. Via Constitutional Amendment, not the Court simply inventing the right out of the 14th Amendment.

In any case, I'm really not trying to convince anyone of what is right or wrong. I'm simply trying to clarify the actual point of disagreement in terms of the role of the Court.

So my question is this -- do you think the Court should consider it proper to recognize as a constitutionally-enforceable fundamental right something that we know contradicts or is not consistent with the original understanding of the Constitution/Amendment? I used the example of slavery before, so feel free to use that as a point of reference.

The reason I think that question is so important is your interpretation of the language you quoted above:

"It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws."

My contention is that if you take all those words out of the historical context in which they were written, you could make that language mean anything because the terms are so broad. We constantly hear people complaining about any number of things, whether it is their "right" not to be offended by someone else, or not being able to afford college, or whatever particular gripe/bitch/entitlement they think they deserve. And every single one of those things could be couched in terms of "life, liberty, or property", or not being given "equal protection".

And of course, there's the issue of as you constantly expand certain "rights", you're going to start infringing on things that other people consider "rights".

 

[Tornicade]

Tornicade, the 14th Amendment was not understood to outlaw all distinctions based on gender. That would be an application of it that the drafters and people who ratified it would have considered nuts. There are a shitload of examples of neither the nation nor the Court equating racial distinctions with gender distinctions. The most obvious of which is that not only did the 14th Amendment not automatically recognize a woman's constitutional right to vote (which would seem inherent in your reading of the privileges and immunities clause), but that when they did expand the franchise via the 15th Amendment, it was only for race. And it took 50 years before the franchise was extended to women. Via Constitutional Amendment, not the Court simply inventing the right out of the 14th Amendment.

In any case, I'm really not trying to convince anyone of what is right or wrong. I'm simply trying to clarify the actual point of disagreement in terms of the role of the Court.

So my question is this -- do you think the Court should consider it proper to recognize as a constitutionally-enforceable fundamental right something that we know contradicts or is not consistent with the original understanding of the Constitution/Amendment? I used the example of slavery before, so feel free to use that as a point of reference.

The reason I think that question is so important is your interpretation of the language you quoted above:



My contention is that if you take all those words out of the historical context in which they were written, you could make that language mean anything because the terms are so broad. We constantly hear people complaining about any number of things, whether it is their "right" not to be offended by someone else, or not being able to afford college, or whatever particular gripe/bitch/entitlement they think they deserve. And every single one of those things could be couched in terms of "life, liberty, or property", or not being given "equal protection".

And of course, there's the issue of as you constantly expand certain "rights", you're going to start infringing on things that other people consider "rights".

The terms are broad intently for the purpose of being able to adapt to n ever evolving society.

now your objecting with scenarios. those are separate scenarios to be determined on their own right.

Once again the Constinution allowed slavery. this was clarified by the supreme court and was it was determined an amendment was needed and it was done.

Womens voting ?
Whereas the Supreme court ruled that it would require an amendment to restrict Marriage by Gender. The court ruled that Women right to vote on national elections would require an Amendment.

whether one court a hundred plus years ago had it right or wrong or if today's court has it wrong.. it doesn't matter. the ruling was made and if the country disagrees it can put forth an amendment.

in the case of women voting it was put in as an amendment.

now why would the court rule one way and not another on the same 14th amendment.

im thinking here... hmm cant quite put my finger on it.. what would possibly make the ruling on womens voting require an amendment where as same gener marriage would not.

Section 2

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

I mean its not like the 14th amendment specifically said Male in context with the right to vote. that would force the court to rule an amendment necessary to mandate women allowed to vote .

In one case the court ruled that the Government could not force states to allow women to vote because the consitnution only guaranteed that right for males.

In another case the Court ruled States cannot discriminate recognizing marriage based on gender as the constitution un section 1

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Whereas as Marriage does afford Citizens additional protections, liberty and property and states denying those privileges and immunities based on being of the same gender was unconstitutional

ultimately its rather trivial after all.. had the court ruled same gender marriages were not protected by the Constitution and its handling was strictly a matter to be determined by the states. it would of only been a matter of time before it was added as an amendment.

Multiple state supreme courts have come to the same conclusion

“[Prohibiting same-sex marriage] barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”

Read more: http://www.care2.com/causes/what-states-allow-gay-marriage.html#ixzz3fDah4p44


so its not like this ruling came out of left field

 

[The Human Q-Tip]

The terms are broad intently for the purpose of being able to adapt to n ever evolving society.

First, that doesn't answer the very specific question that I asked. Which was:

So my question is this -- do you think the Court should consider it proper to recognize as a constitutionally-enforceable fundamental right something that we know contradicts or is not consistent with the original understanding of the Constitution/Amendment at the time it was adopted/ratified?

And again, please don't dodge the question by raising irrelevant points. Just answer it.

Everyone concedes that the proper role of the Court includes applying the Constitution to situations not expressly spelled out. They didn't have telephones in the 18th century, so bugging a telephone is not something that's going to be contained in the Constitution.

The relevant question is whether in determining how to apply it, we are bound by the understanding and interpretation of the right as it was understood at the time of ratification to the extent that can be determined. Or, should Justices feel free to interpret the words/rights to take into account an "ever evolving society", even if they know that interpretation would have been rejected by those who drafted/ratified the Constitution/Amendment?

Multiple state supreme courts have come to the same conclusion

“[Prohibiting same-sex marriage] barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”

Read more: http://www.care2.com/causes/what-states-allow-gay-marriage.html#ixzz3fDah4p44

Great, but that doesn't remotely addressed the question I asked. I asked about the understanding of the meaning of the Amendment at the time it was drafted/ratified. You are citing court interpretations from 2000 on, none of which even attempt to claim that the drafters/ratifiers of the 14th Amendment would have believed it applied to gay marriage, ducks the point.

 

[Tornicade]

First, that doesn't answer the very specific question that I asked. Which was:



And again, please don't dodge the question by raising irrelevant points. Just answer it.

Everyone concedes that the proper role of the Court includes applying the Constitution to situations not expressly spelled out. They didn't have telephones in the 18th century, so bugging a telephone is not something that's going to be contained in the Constitution.

The relevant question is whether in determining how to apply it, we are bound by the understanding and interpretation of the right as it was understood at the time of ratification to the extent that can be determined. Or, should Justices feel free to interpret the words/rights to take into account an "ever evolving society", even if they know that interpretation would have been rejected by those who drafted/ratified the Constitution/Amendment?



Great, but that doesn't remotely addressed the question I asked. I asked about the understanding of the meaning of the Amendment at the time it was drafted/ratified. You are citing court interpretations from 2000 on, none of which even attempt to claim that the drafters/ratifiers of the 14th Amendment would have believed it applied to gay marriage, ducks the point.

None of the scenarios you presented shows a contradiction.

Judicial review was first utilized in 1794, to support a law as constitutional in 1803 they struck down a law as unconstitutional.

176 time the court has ruled against the constitutionality of a law.

The power of the court does not apply to the hypothetical nor should this discussion ..

so its not as if Judicial review just popped up today and the court is exercising some scary power never used before.

your example stated the women werent free to vote even though section 1 of the amendment would state otherwise.. this specific matter related to voting was addressed in section 2. there for it was a very applicable response and very relavent to the discussion because in neither the gay rights case nore the women vite was there anything ruled that was contradcitory to the consitnution

the government is based on checks and balances though.. if the court gets out of bounds and makes a ruling that the public r government disagree with they can pass an amendment and override that ruling just as with dread scott.


so my answer is the court has the right to perform judicial review on a case presented them and it is their job to interpret the case in context with the constitution.

let not forget in this case it was state supreme courts in over a dozen states ruled that the ban on marriage based on gender as unconstitutional.

Congress defined marriage federally with the defense of marriage act.

This was ruled unconstitional in 2013. its was a federal law.
Many State Supreme courts ruled statutes against same gender marriages as unconstitutional.

You act like the Supreme court came out of left field on this decision when it was congress who made it a federal matter and it was the states requesting this act be struck down.

and the states continued after that decision to rule their own state laws unconstitutional.

lets look at the actual case though for a moment. A Ohio couple goes to Maryland and gets married and the request was to have the deceased listed as married on the death certificate. One state not recognizing a legal marriage that occurred in another state.

The supreme court was ruling on due process in the recognition of other states of legal marriage. not only did they find that Ohio must recognize other states marriages but not recocgnizing the couples right to get married at all was also unconstitutional. The court had plenty of precedent at the state and federal levels to make this ruling on.

The state set this up by recognizing all other marriages except same gender ones.

 

[Cavatt]

How it was understood at the time is a silly argument. Are we supposed to rule on the constitutionality of laws with a 18th century understanding of science and medicine? Yikes. You learn more and it is applied to the law as well. Homosexuality was once thought of as a disease, but now it is a lifestyle. Being gay was a threat to marriage because it was taking a husband away from a wife. No one thinks that but fringe groups now.

@Tornicade absolutely hit the nail on the head because voting was explicitly stated as a right of males, so it needed to be amended to include women.

Because there is no explicit denial of the right of marriage between the same sexes in the constitution, nothing needs to be amended and the rights of homosexuals should clearly be included along with everyone else. It is the expressed denial of rights that was added in the past 10 years that had to be addressed and was dealt with correctly. I believe if you don't have a good reason to deny an individuals rights, the court has to strike that down just like they did.

 

[The Human Q-Tip]

None of the scenarios you presented shows a contradiction.

Okay. So it is your contention that had those who drafted and ratified the 14th Amendment back in 1867 been asked, they would have agreed that the 14th Amendment compels state recognition of gay marriage?

And It is your contention that, to them, "marriage" was not understood to be between one man and one woman?

Do you have any evidence for that?

 

[The Human Q-Tip]

How it was understood at the time is a silly argument. Are we supposed to rule on the constitutionality of laws with a 18th century understanding of science and medicine?

No. You're supposed to rule on laws with a 18th century (or 19th, or 20th, depending on the Amendment) understanding of the Constitution. Which doesn't address science or technology except in the context of patents.

Homosexuality was once thought of as a disease, but now it is a lifestyle. Being gay was a threat to marriage because it was taking a husband away from a wife. No one thinks that but fringe groups now.

What you're really saying is that moral views of homosexuality have shifted, right?

Because there is no explicit denial of the right of marriage between the same sexes in the constitution, nothing needs to be amended and the rights of homosexuals should clearly be included along with everyone else.

Okay. So it is your contention that unless a "right" is expressly negated by the Constitution, then the Court should not feel that the Constitution retrains it from recognizing a new Constitutionally-enforceable right?

 

[Cavatt]

No. You're supposed to rule on laws with a 18th century (or 19th, or 20th, depending on the Amendment) understanding of the Constitution. Which doesn't address science or technology except in the context of patents.


What you're really saying is that moral views of homosexuality have shifted, right?



Okay. So it is your contention that unless a "right" is expressly negated by the Constitution, then the Court should not feel that the Constitution retrains it from recognizing a new Constitutionally-enforceable right?

Well the 18th century understanding is that only white men have these freedoms. We have decided over and over that is not right and doesn't conform to the spirit of a free society. Choosing some groups to have rights over another didn't work when we had slaves, didn't allow non-whtes to vote, didn't allow women to vote or own property, so why is it a good idea in this case, and where does it mention gay people at all. it wasn't even an acknowledged group, how could they have a perspective on it.

Yes it was viewed morally differently, as well as psychologically, medically, sociologically, economically. This was viewed as someone engaging in bad behavior, not a lifestyle. Just like any other group if they say they exist, how can you say that they don't? This isn't that small of a group either. It is estimated around 10% which ends up being a very large minority in the country. It's a moral argument I guess if you believe religion should run the government. Otherwise I think it's a pretty much practical question of incorporating a sizable group into our community.

It's not a new right. It is one that people have chosen for years and years. It's a matter of official recognition. equal treatment of citizens under the law. It is very clear. Why do you need to amend? Which passage needed amended exactly? It's just recognizing something that has already existed and recognizing the rights of all citizens the same. That was the overarching goal of this whole thing to begin with. The framers just didn't have the votes to get away with it to begin with.

 

[Tornicade]

Okay. So it is your contention that had those who drafted and ratified the 14th Amendment back in 1867 been asked, they would have agreed that the 14th Amendment compels state recognition of gay marriage?

And It is your contention that, to them, "marriage" was not understood to be between one man and one woman?

Do you have any evidence for that?

at that time Marraige was primarily the function of the state. What is important is that there is no verbiage regarding marriage stating that homosexuals couldn't get married. hence no need for for a constitutional amendment to the effect. whereas

but lets ask the Supreme court of 1890 what they thought

“the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.

Clearly each state had its own right to determine the definition of marriage..

The first state to ban gay marriage as a law was in 1973.
In 2000 Vermont became the first state to recognize same Civil Unions.

the first marriage license application was in the state of Minnesota in 1970. The Minnesota Supreme court ruled against the marriage. The Supreme court declined to hear the case.

Doma made it a federal issue. States legalizing those Marriages and States not recognizing those legal marriages even though it didn't occur in those states made it a federal issue.

there were recognized same gender marriages in over 30 different african cultures for thousands of years.

in 2003 the supreme court struck down Sodomy laws in the state of texas.

Previously it was illegals for a same gender couple to consummate their marriage.Sciola a dissenter on the resent decision acknowledged that the sodomy ruling might as well allow same gender marriage.

there was only way way to make gay marriage unconstitutional and that was via an amendment

Everything in place that made same gender marriages not applicable to the 14th amendment has been removed over time.

Your question is faulty. whats important in the constitution is the words written down and ratified . the principle. If the writers of the amendment were that concerns they could of included verbiage to that effect just as they did with using the term Male instead of citizen when defining who could vote.

If people believe banning same sex marriages should be in the constitution
then an amendment can be implemented. the framers certainly did make sure to provide future generations with that option regardless of what they thought at the time.