Gay rights

[Cavatt]

Voters are the ones who elect elected officials. Do you think ratification of the 13th, 14th, and 15th amendments by states wasn't an issue before voters in the late 1860's when they were voting for legislators? Seriously??? Are you old enough to remember that the Americans with Disabilities Act was also an issue that figured into campaigns?

So yes, you're still completely wrong.

Plus, the argument you're making is irrelevant anyway. Because as you note, laws are generally passed by legislators, not through direct referendum. So gay marriage, like the Civil Rights Act and all those other laws passed by legislatures that protect minorities, could very easily be recognized through the legislative process, even if "the majority" didn't support it.

Maybe you should argue with MalTalm, because according to him, the majority does want to recognize gay marriage.



Uh....

You know, any substantive response I type to this is going to be much more rude and insulting than I really care to be. So, I'll just let it go.

I think a national referendum would pass gay marriage, but I am from Kentucky, so I don't have any delusions that some backward states would not pass it.

 

[gourimoko]

I think a national referendum would pass gay marriage

But that's not the point.

No man can give you your fundamental rights; nor can any majority via referendum.

They are your rights, fundamental and innate to you as an individual, and not subject to legislative control.

That's why all comments attempting to frame this question as one of States' rights, or democratic control, either completely miss the point or are deliberately trying to obfuscate the issue.

Think about it this way: what if Mississippi were to have a referendum on interracial marriage? Should the people of that state have the power to deny interracial couples their right to marry? It's the exact same situation with denying LGBT couples their right to marry.

, but I am from Kentucky, so I don't have any delusions that some backward states would not pass it.

Kentucky didn't ratify the 13th Amendment until 1976. FWIW.

 

[Cavatt]

But that's not the point.

No man can give you your fundamental rights; nor can any majority via referendum.

They are your rights, fundamental and innate to you as an individual, and not subject to legislative control.

That's why all comments attempting to frame this question as one of States' rights, or democratic control, either completely miss the point or are deliberately trying to obfuscate the issue.

Think about it this way: what if Mississippi were to have a referendum on interracial marriage? Should the people of that state have the power to deny interracial couples their right to marry? It's the exact same situation with denying LGBT couples their right to marry.



Kentucky didn't ratify the 13th Amendment until 1976. FWIW.

Yeah I totally agree. Denial of rights is the whole issue. The "historic" perspective that these rights have never been recognized, so there is no reason to now, is totally bankrupt as well.

 

[Mr. Orange]

But that's not the point.

No man can give you your fundamental rights; nor can any majority via referendum.

They are your rights, fundamental and innate to you as an individual, and not subject to legislative control.

That's why all comments attempting to frame this question as one of States' rights, or democratic control, either completely miss the point or are deliberately trying to obfuscate the issue.

Think about it this way: what if Mississippi were to have a referendum on interracial marriage? Should the people of that state have the power to deny interracial couples their right to marry? It's the exact same situation with denying LGBT couples their right to marry.



Kentucky didn't ratify the 13th Amendment until 1976. FWIW.

How do you define a fundamental right? What exactly are they? Discrimination, safety, marriage, etc.?

 

[gourimoko]

How do you define a fundamental right? What exactly are they? Discrimination, safety, marriage, etc.?

In general. Different philosophers derived different rights from a small few natural rights (like that of life, liberty, equality, property, and the pursuit of happiness).

There is a long, detailed conversation about this between myself and @Cratylus who is also well versed on the philosophical aspect of the conversation, in another thread.

What you're probably meaning to ask is, "what rights can be immediately derived from what we accept as our most fundamental natural rights?"

A good place to start, to find consensus, would be here:

https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights

p.s.
Not everyone would agree with all of the rights enumerated in the Universal Declaration; but again, it's a good place to start.

 

[The Human Q-Tip]

So the right to have "separate but equal" schools for various races should remain at the state level?

No. It is a violation of the Equal Protection Clause, which was recognized as applying to racially segregated schools nearly 140 years ago. The Court concluded (later reversed) that separate but equal complied with the 14th Amendment, but the applicability of the Equal Protection Clause of the 14th Amendment itself was acknowledged. The argument that "the 14th Amendment doesn't apply to racially segregated schools" was not an argument that prevailed even back then.

In contract, this is a case of a allegedly "fundamental" right not being discovered until nearly a century and a half later.

Human rights issue belong on the national level. It really isn't even a little bit gray to me.

That begs the question of how we should decide which "human rights issues" are constitutionally protected.

 

[Cavatt]

No. It is a violation of the Equal Protection Clause, which was recognized as applying to racially segregated schools nearly 140 years ago. The Court concluded (later reversed) that separate but equal complied with the 14th Amendment, but the applicability of the Equal Protection Clause of the 14th Amendment itself was acknowledged. The argument that "the 14th Amendment doesn't apply to racially segregated schools" was not an argument that prevailed even back then.

In contract, this is a case of a allegedly "fundamental" right not being discovered until nearly a century and a half later.



That begs the question of how we should decide which "human rights issues" are constitutionally protected.

Steam power was first discovered by the ancient greeks in BC times, but it wasn't actually used for anything besides toys until the 1700's. Funny.

 

[gourimoko]

No. It is a violation of the Equal Protection Clause, which was recognized as applying to racially segregated schools nearly 140 years ago. The Court concluded (later reversed) that separate but equal complied with the 14th Amendment, but the applicability of the Equal Protection Clause of the 14th Amendment itself was acknowledged. The argument that "the 14th Amendment doesn't apply to racially segregated schools" was not an argument that prevailed even back then.

In contract, this is a case of a allegedly "fundamental" right not being discovered until nearly a century and a half later.



That begs the question of how we should decide which "human rights issues" are constitutionally protected.

Wrong again.

The Court, in various majority opinions, stated that same-sex marriage bans violated both Equal Protection and Due Process.

They further went on to state that "marriage is a fundamental right of all" people, and to restrict marriage was to restrict that individual's "liberty".

It's getting to the point where I can't understand if you really mean the shit that you write...

Anyway, for anyone who is interested:

Kennedy cited the equal protection and due process clauses of the 14th Amendment in finding same-sex marriage bans unconstitutional. He wrote that “especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.”

He cited the array of rights and benefits that come with state recognition of marriages, as well as what it means to couples who are raising children.

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

 

[Real Deal]

42% of normal marriages eventually end in divorce, I wonder how the gays will do. They seem more loving and drama free.

 

[spydy13]

delete

 

[The Human Q-Tip]

How do you define a fundamental right? What exactly are they? Discrimination, safety, marriage, etc.?

Well, that's the entire question.

There are two basic schools of thought. The first view is that constitutionally-enforceable fundamental rights are either those that existed and were recognized at the time the Constitution was ratified, or that were added subsequently as Amendments. The 14th Amendment is broad enough that any general rights that were considered fundamental at that time generally are incorporated as well. The recognition of those rights and our decision to make them legally enforceable was accomplished through the Constitutionally-specific means of ratification.

Under that view, if you want to recognize a new "fundamental right" that can be enforced by courts, then the proper thing to do is to follow the procedure that made the original ones constitutionally protected -- pass a constitutional amendment. That's why the Amendment process was created.

The other view, which is the one that led to the decision today, is that the Supreme Court (not Congress and the states through the Amendment process) should recognize new, legally-enforceable "fundamental rights" whenever it sees the need. Justice Kennedy described that (and his) viewpoint in this very opinion:

In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.

“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?_r=0

Now, that sounds absolutely wonderful, doesn't it? I mean, what right-thinking person thinks that the Constitution should be frozen in time?

But the bolded language is just incredibly self-centered bullshit on his part in this context. What that Charter does is give to those "future generations" the ability to pass Amendments to add to the Constitution as we see fit. That's what the people who enacted the Bill of Rights and the Fourteenth Amendment (and all the others) did, right? They saw a need to change the Constitution to adapt to new times, and so altered the Constitution through the Constitutionally-described process for Amendments. The ability to change the Constitution through Amendments is what was "entrusted to future generations."

But that's not what Kennedy is advocating at all. When Kennedy is talking about "future generations" changing the meaning, he's talking not about we the people as a whole making those changes through our elected representatives as described in the Constitution. Apparently, we can't be trusted. Rather, he's endorsing nine Justices deciding on their own when it is time for a new right to be created. Even if a majority of citizens don't agree.

I'd point out that what Kennedy advocates here has no logical or justiciable limit. What rights should be recognized as "fundamental" are based solely on what those particular justices think should be fundamental. His reasoning is not bound at all by anything in the text of the Constitution or elsewhere. It's just whatever his morality tells him should be "fundamental" And what's so bogus is that what rights should be considered fundamental is a moral question, not a legal one. And we're supposedly picking those justices because of their legal insight, not because they're morally superior to the rest of us.

Under his reasoning, there is no textual or other restriction, at all, one what new rights the Court can choose to recognize as fundamental. For example, the U.N.'s "Universal Declaration of Human Rights" includes, in Articles 22-26, all sorts of "economic" rights that we've never recognized here. The U.S. specifically bowed out of those provisions when voting for the Declaration. But hey, times change, right? And if some future group of 5 Justices decided to alter fundamentally our economic system hby adopting all those things as "fundamental rights", they could rightly point to Kennedy's opinion in this case as recognizing that it is right for them to do so.

Or take a look at the International Declaration of Economic, Social, and Cultural Rights, which we've never ratified or signed because it is a giant shoehorn for socialism. Some of it is innocuous enough. Some of it isn't. But according to Kennedy, a group of 5 Justices would be perfectly within their Constitutional purview to recognize these things as legally-enforceable "fundamental-rights."

 

[spydy13]

This whole "judicial activism" argument used by the right is such bullshit.

They did their job. A bunch of states created a law and a citizen challenged the constitutionality of that law. Just because their decision doesn't fit your opinion does not in turn mean that they are "legislating from the bench."

I didn't see the right whining when scotus made corporations into people.

 

[Jack Brickman]

About damn time. Still have no idea why people are opposed to gay marriage. Marriage is a government contract between two consenting adults, and thus religion shouldn't factor into it. Now, if a church wants to refuse to allow gays to get married inside their church, well, that's perfectly acceptable (if a bit douchey).

Still...nice to see us catching up with some of the other countries in the world on this issue.

 

[gourimoko]

Well, that's the entire question.

There are two basic schools of thought. The first view is that constitutionally-enforceable fundamental rights are either those that existed and were recognized at the time the Constitution was ratified, or that were added subsequently as Amendments. The 14th Amendment is broad enough that any general rights that were considered fundamental at that time generally are incorporated as well. The recognition of those rights and our decision to make them legally enforceable was accomplished through the Constitutionally-specific means of ratification.

Under that view, if you want to recognize a new "fundamental right" that can be enforced by courts, then the proper thing to do is to follow the procedure that made the original ones constitutionally protected -- pass a constitutional amendment. That's why the Amendment process was created.

The other view, which is the one that led to the decision today, is that the Supreme Court (not Congress and the states through the Amendment process) should recognize new, legally-enforceable "fundamental rights" whenever it sees the need. Justice Kennedy described that (and his) viewpoint in this very opinion:

In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.

“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?_r=0

Now, that sounds absolutely wonderful, doesn't it? I mean, what right-thinking person thinks that the Constitution should be frozen in time?

But the bolded language is just incredibly self-centered bullshit on his part in this context. What that Charter does is give to those "future generations" the ability to pass Amendments to add to the Constitution as we see fit. That's what the people who enacted the Bill of Rights and the Fourteenth Amendment (and all the others) did, right? They saw a need to change the Constitution to adapt to new times, and so altered the Constitution through the Constitutionally-described process for Amendments. The ability to change the Constitution through Amendments is what was "entrusted to future generations."

But that's not what Kennedy is advocating at all. When Kennedy is talking about "future generations" changing the meaning he's talking not about we the people as a whole making those changes through our Constitution, but rather about those nine Justices deciding on their own when it is time for a new right to be created. Even if a majority of citizens don't agree. Now, that's all fine and dandy if you like the result. But what if you don't?

I'd point out that what Kennedy advocates here has no logical or justiciable limit. What rights should be recognized as "fundamental" are based solely on what those particular justices think should be fundamental. And what's so bogus is that is ultimately a moral question, not a legal one. And we're supposedly picking those justices because of their legal insight, not because they're morally superior to the rest of us.

There is no restriction, at all, one what new rights the Court can choose to recognize as fundamental. For example, you can run down some of the "human rights" declarations floating around and find all sorts of things that some consider to be "fundamental human rights". The "Universal Declaration of Human Rights" includes, in Articles 22-26, all sorts of "economic" rights that we've never recognized here. And if some future group of 5 Justices decided to alter fundamentally our economic system hby adopting all those things as "fundamental rights", they could rightly point to Kennedy's opinion in this case as recognizing that it is right for them to do so.

The question is whether or not marriage is a human right or not?

In all of this text, I couldn't find where you answered that question here.

 

[Otsego Mar]

Wrong again.

The Court, in various majority opinions, stated that same-sex marriage bans violated both Equal Protection and Due Process.

They further went on to state that "marriage is a fundamental right of all" people, and to restrict marriage was to restrict that individual's "liberty".

It's getting to the point where I can't understand if you really mean the shit that you write...

Anyway, for anyone who is interested:

Kennedy cited the equal protection and due process clauses of the 14th Amendment in finding same-sex marriage bans unconstitutional. He wrote that “especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.”

He cited the array of rights and benefits that come with state recognition of marriages, as well as what it means to couples who are raising children.

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

Marriage is a state institution. But I digress....