Same-sex marriage and Constitutional rights

[Charlemagne_III]

Pretty easily. But your question is beside the point.

Hardly a clarifying answer.

SCOTUS is not, according to the Constitution, empowered to enact laws that must be obeyed. If that were so, there would be no need for Congress and the Executive.

SCOTUS can decide which laws are Constitutional and which are not. Even in that matter its supremacy is not necessarily permanent, as the Constitution can be amended or a later Court can reverse the finding of an earlier Court.

But it is not the Court that is supposed to change the Constitution.

Only by the most perverse and sinister logic can it be considered empowered to give same-sex marital rights to lunatics.

A Constitutional Amendment might be empowered to give such a right if you can find enough lunatics to vote for one.

 

[AyJSimon]

Hardly a clarifying answer.

SCOTUS is not, according to the Constitution, empowered to enact laws that must be obeyed. If that were so, there would be no need for Congress and the Executive.

SCOTUS can decide which laws are Constitutional and which are not. Even in that matter its supremacy is not necessarily permanent, as the Constitution can be amended or a later Court can reverse the finding of an earlier Court.

When the SCOTUS rules that a given law is unconstitutional, often, if not always, that ruling has the effect of creating a new law. This is just basic logic. If murder were a legal and protected right, and somebody went to the SCOTUS to challenge it, and the SCOTUS agreed that legal murder violated the Constitution, that ruling would have effect of creating a new law criminalizing murder.

Complain all you like that this isn’t what the judiciary is designed to do, but the alternative is for the courts to act as a rubber stamp for the executive and legislative branches of government. And you’d only be happy with that until the Courts rubber-stamped something you didn’t like.

 

[Charlemagne_III]

If murder were a legal and protected right, and somebody went to the SCOTUS to challenge it, and the SCOTUS agreed that legal murder violated the Constitution, that ruling would have effect of creating a new law criminalizing murder.

You need a much better hypothetical than this. There is no such thing as a legal murder.

Unless you might want to suggest that abortion, for example, is legalized murder.

I’m certainly not aware that the Supreme Court has ruled against murdering the unborn.

By the way, if murder were a “legal and protected right,” that would be more lunatic than same-sex marriage.

 

[AyJSimon]

You need a much better hypothetical than this. There is no such thing as a legal murder.

Unless you might want to suggest that abortion, for example, is legalized murder.

I’m certainly not aware that the Supreme Court has ruled against murdering the unborn.

By the way, if murder were a “legal and protected right,” that would be more lunatic than same-sex marriage.

There’s nothing wrong with my hypothetical. There’s nothing necessarily preventing immoral acts from being legal. Luckily, many aren’t. If you’d like to treat abortion as an example of one that is, that’s fine with me.

If the SCOTUS did rule against laws permitting the termination of pregnancies, that would essentially create a new law. Now, notwithstanding the morality and constitutionality of such a ruling, the SCOTUS is properly empowered to create a new law in this manner.

 

[Charlemagne_III]

If the SCOTUS did rule against laws permitting the termination of pregnancies, that would essentially create a new law. Now, notwithstanding the morality and constitutionality of such a ruling, the SCOTUS is properly empowered to create a new law in this manner.

I don’t think so.

For one thing, abortion is murder.

For another, abortion once was considered a crime, so SCOTUS would not be empowered to create a new law, but rather to restore andold law, the prohibition of abortion.

 

[AyJSimon]

I don’t think so.

For one thing, abortion is murder.

For another, abortion once was considered a crime, so SCOTUS would not be empowered to create a new law, but rather to restore andold law, the prohibition of abortion.

New law, old law - the point is that a law is being brought about by a judicial ruling.

 

[freeRadical]

The 14th Amendment applies equal protection to individual persons, not couples. It doesn’t make exceptions for age. Do minors enjoy equal protection of the laws? If so, they also should be able to marry, thus enabling pederast marriage. The alternative is to start carving out exceptions to the 14th Amendment. It would apply equally to all persons. Any individuals could marry: parent and child, two siblings, two sisters, two (or more) business partners. Applying the 14th Amendment equal protection to marriage in effect renders marriage meaningless; since it can mean anything, it means nothing.

But we all realize that the authors of the 14th Amendment had not the slightest intention of authorizing same sex marriage. If that had been their intention, the Amendment would never have passed.

Now, of course, there is a way to put same sex marriage into the Constitution–by the process of Constitutional Amendment. But the Courts won’t suggest that, I’m sure. They have their own informal Constitutional amendment process whereby they can cause the words to mean something entirely different from what those who wrote the words meant.

The intentions of the authors of the 14th Amendment do not matter. The only thing that matters is how the law is worded and how civil marriage is handled in the US. Civil marriage is a contract under US law, thus the 14th Amendment applies.

As far as children are concerned, it depends on the various laws governing consent and contract with regards to minors.

 

[freeRadical]

either/or fallacy

No sir. Insane people are not to be treated as if they are sane.

No law regards their rights as equal to the rights of sane people. For one thing, they do not have the right to command that laws be created to satisfy their demands.

If you want to defend that position, you have to explain why same sex-marriage is sane.

You’d also have to explain also why as a Catholic you are defending such insanity.

You just keep repeating the same thing over and over.

So you are saying that people only have equal rights if they are considered sane by you? Sorry, that is not how the law or the 14th Amendment works.

No one is asking laws to be created, they have already been created.

I don’t have to explain why same sex marriage is sane. All I have to explain is how contract law in the US works and how the 14th Amendment applies to it. Why don’t you actually respond to my points about law and the 14th Amendment instead of repeating this nonsense about sanity and insanity.

I’m not defending same sex marriage, I am simply pointing out that the US government has backed itself into a corner because of how they handle civil marriage in the US. I’m sure the Supreme Court will come to the same conclusion. They simply cannot deny same sex marriage based on the 14th Amendment.

I don’t support civil marriage at all, the government has no business in marriage.

As a Catholic, you do know that most of the heterosexual marriages that take place in the US do not meet the criteria of the Catholic Church right? Should those marriages be allowed or should they be banned too?

 

[Charlemagne_III]

You just keep repeating the same thing over and over.

So you are saying that people only have equal rights if they are considered sane by you? Sorry, that is not how the law or the 14th Amendment works.

No one is asking laws to be created, they have already been created.

I don’t have to explain why same sex marriage is sane. All I have to explain is how contract law in the US works and how the 14th Amendment applies to it. Why don’t you actually respond to my points about law and the 14th Amendment instead of repeating this nonsense about sanity and insanity.

I’m not defending same sex marriage, I am simply pointing out that the US government has backed itself into a corner because of how they handle civil marriage in the US. I’m sure the Supreme Court will come to the same conclusion. They simply cannot deny same sex marriage based on the 14th Amendment.

I don’t support civil marriage at all, the government has no business in marriage.

As a Catholic, you do know that most of the heterosexual marriages that take place in the US do not meet the criteria of the Catholic Church right? Should those marriages be allowed or should they be banned too?

As a Catholic you do have to explain why same-sex marriage is sane, and why therefore the Supreme Court is bound to sustain same-sex marriages when it is never bound to sustain any other insanities except one … abortion.

You will get the same argument over and over because you refuse to refute it.

You cannot dismiss sane and insane laws as irrelevant.

The Catholic Church is not insane, and there are others besides Catholics who regard same-sex marriage as evidence of moral insanity.

Certainly the Founders would have thought so.

 

[Rhubarb]

As a Catholic you do have to explain why same-sex marriage is sane, and why therefore the Supreme Court is bound to sustain same-sex marriages when it is never bound to sustain any other insanities except one … abortion.

You will get the same argument over and over because you refuse to refute it.

You cannot dismiss sane and insane laws as irrelevant.

The Catholic Church is not insane, and there are others besides Catholics who regard same-sex marriage as evidence of moral insanity.

Certainly the Founders would have thought so.

An appeal to what the Founders thought is irrelevant because there are numerous examples of what the Founders wrote that was grossly unjust. Moreover, the Founders designed a framework that is by nature mutible and open to change.

A distinction between sane and insane laws might be right - Dr. King distinguishes between just and unjust laws, for example. Philosophically we cannot just stipulate ad hoc what sane and insane amounts to qua laws. And even if we can give a good analysis of sane and insane laws, I don’t see how this is important because the laws of the land do not distinguish between them. (Except maybe implicitly)

For a law to be legitimate in the US is a matter of criteria - how it is created and that the content not be contradictory to the Constitution and other applicable laws. What is at stake is the latter, whether a law that allows or forbids same-sex marriage contradictory. The question is not whether it is sane or not.

Perhaps there is an argument that sanity should matter, but that’s a different matter entirely.

 

[JimG]

The intentions of the authors of the 14th Amendment do not matter. The only thing that matters is how the law is worded and how civil marriage is handled in the US. Civil marriage is a contract under US law, thus the 14th Amendment applies.

As far as children are concerned, it depends on the various laws governing consent and contract with regards to minors.

While the intention of the authors may not be determinative for all time, it should have some bearing. After all, they wrote the Amendment for a reason, and hoped to accomplish certain things by it, and not to accomplish other things.

The amendment refers to equal rights under the law not being denied to any person.

When you think about it, any person is quite a wide range. Just taking marriage, for example, does it really mean any person? We seem to have concluded that “any person” in this case does not extend to minors, so somehow we are exempting them from application of the amendment. But it ought to apply to all other persons, whether polygamists, polyandrists, groups of five or six or any number of any sex.

In practice I think we deny “equal protection of the laws” to a lot of persons for a lot of different reasons, all of which would seem to contradict the 14th Amendment.

And since no one–no lawyer, no judge, no legislature, thought it proper to apply the amendment to ‘marriage’ between persons of the same sex until the last decade, one has to ask why the amendment is just now coming to mean something that it never meant before? It can only be that the current Court is imposing a meaning which was never thought to be there before.

 

[casey_cates]

While the intention of the authors may not be determinative for all time, it should have some bearing. After all, they wrote the Amendment for a reason, and hoped to accomplish certain things by it, and not to accomplish other things.

The amendment refers to equal rights under the law not being denied to any person.

When you think about it, any person is quite a wide range. Just taking marriage, for example, does it really mean any person? We seem to have concluded that “any person” in this case does not extend to minors, so somehow we are exempting them from application of the amendment. But it ought to apply to all other persons, whether polygamists, polyandrists, groups of five or six or any number of any sex.

In practice I think we deny “equal protection of the laws” to a lot of persons for a lot of different reasons, all of which would seem to contradict the 14th Amendment.

And since no one–no lawyer, no judge, no legislature, thought it proper to apply the amendment to ‘marriage’ between persons of the same sex until the last decade, one has to ask why the amendment is just now coming to mean something that it never meant before? It can only be that the current Court is imposing a meaning which was never thought to be there before.

Agreed Jim because the definition precedes the Court and the United States. That and the compelling interest of children - which no one seems to want to discuss reveal the weak argument for same sex marriage.

 

[Charlemagne_III]

Perhaps there is an argument that sanity should matter, but that’s a different matter entirely.

I don’t see why it’s an entirely different matter that sanity should matter.

It always mattered in the human race apparently … at least until now.

Just saying it doesn’t matter doesn’t mean it doesn’t matter.

When we say insanity doesn’t matter, we open the door to all kinds of new laws based not on common sense but on absurd notions of rights. If a father wants to marry his daughter, why shouldn’t that be a civil right as valid as one man wanting to marry another. It’s just more lunacy that the Courts shouldn’t have to deal with just because every recognizes
lunacy when they see it and should resist with all their might the politically correct notion of honoring lunacy with new laws to protect and advance it.

 

[Rhubarb]

I don’t see why it’s an entirely different matter that sanity should matter.

It always mattered in the human race apparently … at least until now.

Just saying it doesn’t matter doesn’t mean it doesn’t matter.

When we say insanity doesn’t matter, we open the door to all kinds of new laws based not on common sense but on absurd notions of rights. If a father wants to marry his daughter, why shouldn’t that be a civil right as valid as one man wanting to marry another. It’s just more lunacy that the Courts shouldn’t have to deal with just because every recognizes
lunacy when they see it and should resist with all their might the politically correct notion of honoring lunacy with new laws to protect and advance it.

So many things to discuss… where to start.

Civil rights aren’t categorical. There are tests the court uses to determine when an infringement upon our Constitutional rights are legitimate. Under Strict Scrutiny, the right to yell “fire!” in a crowded theater us not protected by the first amendment - the state has a compelling interest to deny this right to protect its citizens from panicked citizens. In the case of incest it seems much more plausible that infringements are defendable.

I’m not ‘just saying’ that sanity doesn’t matter. I’m saying that the method of creating laws in the US does not explicitly have a sanity requirement. So long as the law is crested in a certain way, it is a law - sane or not. This is a simple fact.

Furthermore, I don’t think “sanity” in any objective sense ever factored into lawmaking. I think it’s insane for Hamurabi to throw criminals in the Euphrates to test their guilt or innocence. I think it’s insane to burn Catholics at the stake for not accepting Henry VIII as supreme head of the church. I think it’s insane to count 3/5ths of the slave population in the figuring of state representstion. For that matter, slavery is kind of insane too. Can you give an analysis of insane that isn’t just stipulative? Legally, I suppose laws can be ad hoc. Philosophically and theoretically though, a consistent account is needed that handles test cases well.

 

[Charlemagne_III]

Furthermore, I don’t think “sanity” in any objective sense ever factored into lawmaking. I think it’s insane for Hamurabi to throw criminals in the Euphrates to test their guilt or innocence. I think it’s insane to burn Catholics at the stake for not accepting Henry VIII as supreme head of the church. I think it’s insane to count 3/5ths of the slave population in the figuring of state representstion. For that matter, slavery is kind of insane too. Can you give an analysis of insane that isn’t just stipulative? Legally, I suppose laws can be ad hoc. Philosophically and theoretically though, a consistent account is needed that handles test cases well.

Sanity factors in to everything.

I agree that it was insane to regard slaves as 3/5 human.

For that reason, they should never have been cou8nted as 3/5 human.

Just as I believe same-sex marriage is insane and should never be legally countenanced.

 

[Rhubarb]

Sanity factors in to everything.

I agree that it was insane to regard slaves as 3/5 human.

For that reason, they should never have been cou8nted as 3/5 human.

Just as I believe same-sex marriage is insane and should never be legally countenanced.

Okay, let’s say that’s right. Sanity factors into everything. Can you give an analysis of sanity and insanity?

 

[Charlemagne_III]

Okay, let’s say that’s right. Sanity factors into everything. Can you give an analysis of sanity and insanity?

Sane equals a course of thought or action that is consistent with our human nature.

Insanity equals a course of thought or action that defies our human nature.

What is sane and what is insane can only be determined by people who are acting and thinking in a sane manner. By the way, you don’t have to be clinically insane to think or act like a lunatic. Normally sane people often experience episodes of crazy actions or thoughts.

Insanity often masquerades as sanity, all the more so when sane people allow that to happen, as when American slaves were once counted as 3/5 human, or when men are legally authorized to marry men. Insane actions or thoughts can also appear to be sane when sane people are so completely controlled by the lunatic fringe that we are inclined to observe that the lunatics are running the asylum (society itself, or some institutions such as journalism or academia).

I am not a psychologist or a psychiatrist, so I make no pretense to having adequately described the difference except as a layman. Reasoning (if not always reasonable) people can disagree about what constitutes insane actions or thoughts, but generally speaking one party is right and the other is wrong, with individuals or societies suffering the consequences.

 

[Rhubarb]

Now we are going to go about in a huge loop, because those definitions require an analysis of what human nature is, why it is this way and why it cannot be anything else. As well as what it means to be consistent and inconsistent with whatever human nature is.

For the matter at hand, say we agree on all the above - can it be shown that the government has a compelling interest to deny same-sex marriage because of this? There’s no explicit protection of human nature that I’m aware of in the US legal system. And can the reasoning distinguish why same-sex marriage should be illegal while other behaviors that seem contrary to our ‘human nature’ is allowed? For instance, I think it might be plausible to say that smoking is contrary to our human nature.

 

[Charlemagne_III]

There’s no explicit protection of human nature that I’m aware of in the US legal system. And can the reasoning distinguish why same-sex marriage should be illegal while other behaviors that seem contrary to our ‘human nature’ is allowed? For instance, I think it might be plausible to say that smoking is contrary to our human nature.

The question is not whether human nature needs protection, that is obvious.

The question is whether anti-human nature needs protection.

To the best of my knowledge, no government license is issued for smoking.

And permitted smoking areas are denied in many public and private buildings just because smoking is unnatural (and unhealthy, we know what havoc it creates in the lungs.)

 

[casey_cates]

Now we are going to go about in a huge loop, because those definitions require an analysis of what human nature is, why it is this way and why it cannot be anything else. As well as what it means to be consistent and inconsistent with whatever human nature is.

For the matter at hand, say we agree on all the above - can it be shown that the government has a compelling interest to deny same-sex marriage because of this? There’s no explicit protection of human nature that I’m aware of in the US legal system. And can the reasoning distinguish why same-sex marriage should be illegal while other behaviors that seem contrary to our ‘human nature’ is allowed? For instance, I think it might be plausible to say that smoking is contrary to our human nature.

Natural law - not human nature. The denial of same sex marriage is because it hurts the natural family which then hurts the structure of society. It was interesting to hear the defense of SSM when Scalia or Alito asked about what then (if this passed) would the precedent for denying polygamy, etc. The lawyer said that it wouldn’t come to that because then you have multiple people in divorces and that’s so messy. To which, my argument would be that you have the same problem with SS parenting. You have two fathers and a mother or two mothers and a father. Meanwhile the poor kid is used as a ping pong ball. It’s hard enough with no-fault divorce and cohabitation. Why do we need to add fuel to the fire.