The Conservative Case For Gay Marriage

[kundalinikat]

Even you admit that the laws are on the books, it is irrelevant where or when they came from.

...

This has to do with legislating from the bench VERY different from judicial review.

The bottom line is that any moral ideal should be brought about by the will of the people. Only when you can say that the majority of the country is an agreement do people begrudgingly accept new laws. This can only be done when elected officials will be held responsible to their constituents for the laws they vote for.

The idea of letting the judiciary to issue forth decrees, whether I agree with them or not is frightening.

I think it's pretty clear that "activist judges" are simply judges who make rulings one does not agree with. Rulings rulings rulings. For goodness' sake, judges don't write laws.

You might say that they in effect rewrite laws simply by making rulings (that you disagree with), especially if you see some kind of massive agenda behind it. Excuse me, I meant to say "they legislate from the bench with decrees". I see your point. At least you recognize that the judge in this federal case has the authority to overturn a state law. Judges cannot do anything to the legal system except overturn a law, and try to describe to a legislature how they might bring a law into compliance with the constitution, state or federal. It's a very crude tool compared with the ability to create and craft laws that the legislature has.

The power of judges is far older than the United States, in our case it comes from England. The judiciary had to carve its power away from the monarchy just as the Parliament did with the Houses of Lords and Commons - at times by force! And in the end the only thing the judiciary can do (against the other branches of government) is to tell a king or parliament that it has not been applying the written law consistently. And every time they do this they have to use precedent. The legislature doesn't have to deal with that can of worms, neither does the executive.

You are absolutely wrong in your point about moral ideals being brought about by the will of the people. Four words, tyranny of the majority, I just don't have the energy to write more than that about your precious mob rule morality, my response should be pretty obvious. Thank goodness that the only thing this court is beholden to is the Constitution, and the relative weight of its many past decisions (which it is free to ignore, at the cost of declaring its own past decisions unsupported by the Constitution).

You entirely forgot to consider what this case against Prop. 8's legal justification is, the Fourteenth Amendment. Which was ratified by a majority of states, your precious majority.

 

[ericbythebay]

That was my point and we agree.



In order to discuss thing intelligently we must remove ourselves from whether we agree or not agree with the outcome, if you can do that then this might be a fruitful exchange.

Roe V Wade would be a perfect example. Many liberal legal scholars point out that this is a glaring example of a bad decision. The court in this case made up a whole new constitutional right by fiat. The right to privacy.

Without going to deep into legal theory the judiciary was designed to issues proclamations on the matter of law. They could judge on the constitutionality of the law, but if they felt the law was unconstitutional they could only throw out the law NOT create a new law. That is the job of the legislative branch.

In Roe they not only created LAW they also CHANGED and created new constitutional rights, something that is reserved specifically for the legislature.

The problem is though we get mired in the fact that we want abortion so we can't honestly and openly discuss this and say that the way we got abortion was WRONG. It should have been legislated and part of this great country is to allow different opinions and to allow states to do things differently as long as they don't go against federal law.

In the case of gay marriage the first thing I would do is change the USC code and then fight for individual states to allow it. However this will be a long process and we have seen, even in liberal CA they have voted it down. It will not come overnight but I believe it is more important to leave the bedrock principals of our country intact rather than demand instant gratification.

Government doesn't create rights, all rights are inherent in the people. The constitution enumerates limitations on government, not the people.

The courts merely recognize the rights we already have and have had all along.

 

[B_ccc888]

The problem with the article is that it does not address the main conservative argument against gay marriage: The rule of law.

The federal government has defined marriage to between a man and a woman, most conservatives I know are pretty ambivalent about gay marriage but insist that we follow the rule of law. If you want gay marriage change the definition legally but don't use back door tactics and judicial fiat to arrive at the ends.

There are RACIST AND APARTHEID LAWS, discriminatory ones

Shall we still obey them and STFU ?

In Islamic nations, minorities got persecuted and don't enjoy equal rights as citizens compared to the majority.

So shall they stay silent too ?

If Marriage is so sacred then BAN DIVORCE !

Straight couples who can't be responsible and mature enough to form a loving and lifetime commitment to each other should be banned to ever get married.

 

[thadjock]

If Marriage is so sacred then BAN DIVORCE !

Straight couples who can't be responsible and mature enough to form a loving and lifetime commitment to each other should be banned to ever get married.

well catholics kinda do, at least in doctrine

 

[B_ccc888]

well catholics kinda do, at least in doctrine

NO LAWS on Earth that should be derived from outdated, racist, sexist, barbarian, intolerant, ignorant religious dogmas and texts.

That's why all countries must adopt separation of RELIGIONS and STATE

Don't agree with GAY MARRIAGE fine.............

But none whatsoever can discriminate gays to make lifetime loving commitment to their spouse.

 

[ericbythebay]

The problem with the article is that it does not address the main conservative argument against gay marriage: The rule of law.

The federal government has defined marriage to between a man and a woman, most conservatives I know are pretty ambivalent about gay marriage but insist that we follow the rule of law. If you want gay marriage change the definition legally but don't use back door tactics and judicial fiat to arrive at the ends.

So you are saying that challenging the constitutionality of a law goes against the rule of law? That finding a law unconstitutional is not a legal way to change the law, but "back door tactics and judicial fiat"?

I would have thought the conservative argument would have been:

"marriage is defined by the states, the federal government has no authority to step in and start regulating marriage"

or

"we want less regulation, not more, the government should deregulate marriage"

or

"the government should stop being a nanny state and telling people how to live their lives, people should be left alone to do what they want if they don't harm others"

Those are conservative "strict constructionist" arguments.

 

[3664shaken]

I don't mean to be rude but you seem to be talking in circles about a lot of things you don't understand.

I think it's pretty clear that "activist judges" are simply judges who make rulings one does not agree with.

Only if you choose to misrepresent the whole argument. It has nothing to do with rulings. Let's read some more of your post.

Judges cannot do anything to the legal system except overturn a law, and try to describe to a legislature how they might bring a law into compliance with the constitution, state or federal. It's a very crude tool compared with the ability to create and craft laws that the legislature has.

Hmmmm, I agree.

Do you agree that ONLY the legislative branch should be able to create and craft laws????

Do you agree that

Judges cannot do anything to the legal system except overturn a law, and try to describe to a legislature how they might bring a law into compliance with the constitution, state or federal.

Would you then not agree that judges who overstep their bounds of interpreting the law, "overtun a law, and try to describe to a legislature how they might bring a law into compliance with the constitution, state or federal (laws) and decided to write enact new laws or change the constitution is overstepping his judicial bounds?

If you do what would you call that?

Some call it activist judges I call it judicial tyranny?

 

[3664shaken]

You leaps of logic are childish and not worth of a response but I will try one time.

There are RACIST AND APARTHEID LAWS, discriminatory ones

Shall we still obey them and STFU ?

No you should try to overturn them but be ready to suffer the consequences if you can't.

In Islamic nations, minorities got persecuted and don't enjoy equal rights as citizens compared to the majority.

So shall they stay silent too ?

HMMMMMM It's actually women that have the most persecution in those countries, including legal killings for disobeying their husbands.

I wonder why you didn't mention that - oh that's right not a liberal talking point.

If Marriage is so sacred then BAN DIVORCE !

Straight couples who can't be responsible and mature enough to form a loving and lifetime commitment to each other should be banned to ever get married.

It actually was extremely hard to get divorced and both parties were looked upon as anathema. Liberals changed all that, now it's easier to get a divorce than get out of your cell phone contract.

Whose side are you on - the conservative, Muslims, ????

Just wondering, because if you are going to be a hypocrite I'm going to call you out on it. :tongue:

XOXOXOXO

 

[justasimpleguy]

3664shaken, I'm still confused on how you pick gay marriage as the issue to raise hell over the judicial branch supposedly overstepping their bounds. I can't see any way for anyone to oppose it anymore and not look like a complete asshole.

 

[3664shaken]

Ericbythebay,

First of all let me say that it has been very nice speaking with you. You have not gotten emotional or angry and seem to want to discuss things, If I have on the other hand I apologize – let us keep this civil.

>>>So you are saying that challenging the constitutionality of a law goes against the rule of law? That finding a law unconstitutional is not a legal way to change the law, but "back door tactics and judicial fiat"?

NO – The supreme court is supposed to be able to rule on the constitutionality of a law. But in the Roe V Wade decision they went way above the constitutionality and created a whole new constitutional right.

Do you see the difference?

>>>I would have thought the conservative argument would have been:

I am not an expert on Conservative thought, I am not a conservative, a republican nor do I claim to be one. The legal argument I gave was the one that I have heard from several high power attorneys that proclaim they are conservatives.

This is how “I” would answer the following with my understanding of conservatism.

>>>"marriage is defined by the states, the federal government has no authority to step in and start regulating marriage"

That would make the most sense to me, but being a political ideology when states start to legalize it then they will want the federal government to step in and say no.

Let’s not be stupid the right and left does the exact same thing, it’s called hypocrisy.

I am perfectly willing to allow this to happen and I would also be happy to allow the federal government to make a law through Congress just not the judiciary.

>>>"we want less regulation, not more, the government should deregulate marriage"

This sounds libertarian to me and I don’t view libertarians as conservative, they are imo, a strange breed of left and right, if you don’t mind let’s leave their political philosophy out of it.

This sounds good on paper but what happens in case of divorce, alimony, child custody, etc. Figure out those problems and I would love to get government out of marriage but how else do you enforce child support without the threat of garnishing paychecks or tax returns. If I hear a good answer that is fair and equitable this would be my first choice.

>>>"the government should stop being a nanny state and telling people how to live their lives, people should be left alone to do what they want if they don't harm others"

The problem with this argument is that the government through its laws are always going to enforcing “someone’s” morals. Again think about abortion unemotionally, hundreds on millions of Americans find it morally reprehensible while hundreds of millions do not, which ever side the government chooses it is telling people how to live their lives and giving tacit approval of a certain act. So what do we do.

I believe the founding fathers had it right – we elect representatives that will do what we want or if there is a greater need than do the need of the country. Of course that goes into another whole political discourse about how all of our elected officials are bought off by special interest groups . . . .

 

[3664shaken]

3664shaken, I'm still confused on how you pick gay marriage as the issue to raise hell over the judicial branch supposedly overstepping their bounds. I can't see any way for anyone to oppose it anymore and not look like a complete asshole.

:tongue: Hmmm could it be because you are stupid? :tongue:

Just kidding, :tongue: but if you want to discuss something than do so, you little drive-by rants show that you have no interest in debate. Besides if you had actually read my posts you see that is not my point at all.

Like many ideologues you believe the person who can land the best zinger wins. I unfortunately like to debate facts and ideas. Many times I will agree to disagree but only though open and honest dialog will we ever understand opposing viewpoints.

Flame wars and nasty barbs are non-conducive for the evolution and enlightenment of humanity.

 

[faceking]

The libertarian case is that this shouldn't even be a case. Go figure.

 

[faceking]

Lordy, I see this thread has turned into the rules of engagement of debate vs. the topic at hand.

I just find it odd given the majority of gays whom scorn religion seek equality within a religious institutional status known as marriage. All these professors opining about the history of marriage and how same-sex marriage is/will be no different, yet never mention thousands of years of basis of marriage being about a religious sanctity. Where are the "separation of church and state" loons now? Frankly, this reeks of the state dictating the rules of the religious right of marriage. The debate SHOULD be about partnership rights and civil unions, and not over the terminology and sanctity of marriage. A state recognizing marriage is recognizing a religious bond as doctrine. Is that what gays want? They want, or so I thought, equal protection... not the state forcing the rules of a religious recognition upon state constitution.

Somehow that all got lost amidst the thirst to poke the eye of Christianity and Islam (because they are more offended at the notion of same-sex marriage than Christians are) in America.

 

[faceking]

The Muslim case against gay marriage:

"When a man mounts another man, the throne of God shakes."


"Kill the one that is doing it and also kill the one that it is being done to."



"Sihaq (lesbianism) of women is zina (illegitimate sex) among them."



then the Islamic Society of North America:


""Homosexuality is a moral disorder. It is a moral disease, a sin and corruption... No person is born homosexual, just like no one is born a thief, a liar or murderer. People acquire these evil habits due to a lack of proper guidance and education."




At least Pat Robertson doesn't want to kill 'fags'... but maybe give him time.

 

[Dave NoCal]

How do I go about reporting this post to the moderators?
Dave

 

[justasimpleguy]

Marriage is not the exclusive provenance of religious fucknuts. Neither is morality, for obvious reasons. Here's something fun.

Rachel Maddow Show

Maddow points out that Prop 8 supporters want to hide. Why would they want to hide unless they are afraid of looking ridiculous and coming off as assholes?
Also, most importantly, marriage was not between a man and woman until Prop 8 passed. How are the courts in California in any way out of order in accepting a challenge to a newly-passed constitutional amendment?

 

[RsideNole]

I just find it odd given the majority of gays whom scorn religion seek equality within a religious institutional status known as marriage.

I support gay marriage as a legal contract between two consenting parties. I am not advocating churches to allow a ceremony between two consenting parties.

Marriage can be used into two different, but sometimes interconnected, contexts.

What's odd about that?

 

[ericbythebay]

Most gays don't scorn religion, some even get religious marriages.

In any case, civil marriage is not a religious institution.

 

[joyboytoy79]

Lordy, I see this thread has turned into the rules of engagement of debate vs. the topic at hand.

I just find it odd given the majority of gays whom scorn religion seek equality within a religious institutional status known as marriage. All these professors opining about the history of marriage and how same-sex marriage is/will be no different, yet never mention thousands of years of basis of marriage being about a religious sanctity. Where are the "separation of church and state" loons now? Frankly, this reeks of the state dictating the rules of the religious right of marriage. The debate SHOULD be about partnership rights and civil unions, and not over the terminology and sanctity of marriage. A state recognizing marriage is recognizing a religious bond as doctrine. Is that what gays want? They want, or so I thought, equal protection... not the state forcing the rules of a religious recognition upon state constitution.

Somehow that all got lost amidst the thirst to poke the eye of Christianity and Islam (because they are more offended at the notion of same-sex marriage than Christians are) in America.

Facie, I'd really like to see your historical sources on this one.

I know, for a fact, that the catholic church (IE, the ONLY Christian church in western Europe at the time) was, at first opposed to the idea of religious marriage altogether. It wasn't until about 325 CE that marriage within the Christian church was commonly accepted, and not until much later that marriage ceremonies were concocted. Marriage, indeed, predates the Christian church by thousands of years. In fact, for most of European history, marriage has been primarily a legal, and secondarily a social, construct, with religion playing a prominent role only when religious leaders (or their puppets) have held political power over a people.

The institution of marriage in the US is similarly primarily legal, secondarily social, and only marginally religious. I say this, because people of all religious backgrounds have always been allowed to marry. Atheists are allowed to marry. Jews are allowed to marry. Christians are allowed to marry. Hindus are allowed to marry. Flying Spaghetti Monsterists are allowed to marry. In each case of a religious marriage, the legal consequences are distinct from the religious consequences, and separate legal documentation is a requirement. In secular, civil, non-religious marriages (usually performed by a justice of the peace) there are not religious consequences.

So no, I as a gay, married(within my church) man do not seek to poke the eye of Christianity OR Islam. I seek to have the same legal rights as my straight counterparts. I recognize and accept that my marriage may never be recognized by many churches, and as I am not a participant in those traditions I couldn't care less. They may keep their traditions, and I will keep my own.

 

[B_starinvestor]

How do I go about reporting this post to the moderators?
Dave

Just click the "i want to whine some more" button at the bottom left.