Process vs. Outcome

Tight-Waist · 05-27-2008, 11:38 AM

Originally Posted by UGLY

That doesn't fit for the California decision because they were interpreting the California Constitution. As far as the question in general, do you know your history regarding the Dread Scott decision. A case could be made that the Supreme Court made the correct decision based on original intent, which in this case codified the institution of slavery.

Scott the Dread Scott decision was made before the introduction of the 14th amendment so I would argue the process worked after that decision was handed down. I don't think the Judges were wrong in their interpretation of original intent because slavery was not dealt with in the constitution and the 5th amendment guaranteed that no one could be deprived of life, liberty, or PROPERTY and black slaves were considered property who belonged to the slave owners.

By contrast, in the sixties decisions were made that basically led to the end of legal racial discrimination. Should those decisions have been made? Or should racial prejudice - which clearly had a majority of votes in the South - been allowed to remain the rule of law?

I agree with you that the decisions put an end to segregation and racial discrimination, but don't you think that we would have come to those outcomes without judicial activism and using the amendment process. I say that we would have and thus saved the integrity of our constitution and balance of power between the three branches of Gov. Just because we want a desired outcome doesn't mean we weaken our ability to enforce our laws and give any part of gov. more power than they are awarded by the constitution.

Good analysis here on both sides.

In MY opinion, the problem with the Taney Court's decision in the Dread Scott case wasnt their intepretation of the constutionality of the law per say, but their implied agreement that blacks werent man or at least werent fully man. Only if one ignore's that falacy can their judgement be considered constitutionally correct.

As to 1960's legislation, I think this was a much tougher constitutional issue. Clearly "seperate, but equal" as officially practiced in many areas of the country was not equal. And there were state sanctioned practices that denied access to the political process for blacks. But at the same time the nation was waking up to the misjustice. Granted in the South it was coming much too slowly. So the question becomes do the Courts allow the process to come to its natural fruition, which it would have, or was it warranted to step in and rectify the problem immediately. When it comes to official government discrimination as was the case here, I believe the courts did the right thing.

Now then, can a true comparison between Gay marriage and Plessy vs Ferguson (spearate but equal) be made? In this case I do not believe so and here is why. Just as there is no constitutional right to a driver's license there is no constitutionl right to a marriage. At the same time, there is nothing to stop gay couples from having a nonstate sanctioned marriage and how they define the rights and obligations in that marriage is up to them. In other words the state is not stopping them from marrying. But the government has a duty to decide which people it gives license to (ie drivers, plumbers, lawyers, etc) and who is eligible for that license. And it is the duty of the governed to tell their elected representatives how they want those licenses defined.

Has the California Court exceeded its authority? I dont know, because I dont know California Law. But I suspect they may have exeeced their authority.

As to the question of judical activism, it IS a real threat. Unfortunately there is no real check on the power of the judiciary other than itself. Even if there was a Constitutional Amendment to override one of their decisions they could merely find some excuse to rule some part of that process unconstitutional or invalid and there is nothing to stop that..except themselves.

_SL_ · 05-27-2008, 11:46 AM

so do you think it would be constitutional for the government to cateogrically deny gay persons license to practice law and drive?

Tight-Waist · 05-27-2008, 12:05 PM

Originally Posted by _SL_

so do you think it would be constitutional for the government to cateogrically deny gay persons license to practice law and drive?

A) The government is NOT deneying them the right to marry.

B) Government decides what that license is and who is eligible for it.

Now, I will ask you. Does the government have the right to deny marriage license to one man and three women? What about three men and two women? If you expand the legal qualifications past one man and one woman based on equal protection then how can you discriminate against polygamy or anyother variation?

If there is no limit as to what marriages is officially sanctioned then there is no point in having a license at all.

_SL_ · 05-27-2008, 12:38 PM

Just as there is no constitutional right to a driver's license there is no constitutionl right to a marriage. At the same time, there is nothing to stop gay couples from having a nonstate sanctioned marriage and how they define the rights and obligations in that marriage is up to them. In other words the state is not stopping them from marrying. But the government has a duty to decide which people it gives license to (ie drivers, plumbers, lawyers, etc) and who is eligible for that license. And it is the duty of the governed to tell their elected representatives how they want those licenses defined.

It does not follow from there not being a right to license to the government being able to decide which groups of people have license willy nilly.

If you expand the legal qualifications past one man and one woman based on equal protection then how can you discriminate against polygamy or anyother variation?

It is called the principle of extension. for example, we extended voting rights (which were exclussively for white men) to people of all races, and to women. Just because we extend rights to one group does not mean we have to extend it to all groups, provided there is a reason for doing so. For example, extending voting rights to women does not mean that I have to extend voting rights to felons. I suggest we extend marriage to gays, and this does not mean that the entire concept of marriage is errased. I still have the same reasons that I had before for denying marriage to different groups, because there is a difference between 40 year old men than want to marry 12 year old girls and two men or women who love each other and want to marry.

Tight-Waist · 05-27-2008, 12:50 PM

Originally Posted by _SL_

Just as there is no constitutional right to a driver's license there is no constitutionl right to a marriage. At the same time, there is nothing to stop gay couples from having a nonstate sanctioned marriage and how they define the rights and obligations in that marriage is up to them. In other words the state is not stopping them from marrying. But the government has a duty to decide which people it gives license to (ie drivers, plumbers, lawyers, etc) and who is eligible for that license. And it is the duty of the governed to tell their elected representatives how they want those licenses defined.

It does not follow from there not being a right to license to the government being able to decide which groups of people have license willy nilly.

If you expand the legal qualifications past one man and one woman based on equal protection then how can you discriminate against polygamy or anyother variation?

It is called the principle of extension. for example, we extended voting rights (which were exclussively for white men) to people of all races, and to women. Just because we extend rights to one group does not mean we have to extend it to all groups, provided there is a reason for doing so. For example, extending voting rights to women does not mean that I have to extend voting rights to felons. I suggest we extend marriage to gays, and this does not mean that the entire concept of marriage is errased. I still have the same reasons that I had before for denying marriage to different groups, because there is a difference between 40 year old men than want to marry 12 year old girls and two men or women who love each other and want to marry.

I NEVER included minors. So your attempts to justify treating polygamy and gay marriage differently are unfounded.

So I will ask again, if objection to not granting marriage licenses to gays is based on equal protection, then how can you license gay marrage and not one man and three women or three men and two women?

Now if you want to agrue this is bad POLICY, I might even tend to agree with you, but POLICY is a matter of electorial/legislative preference and in that regard the goverened have decided that is bad policy.

_SL_ · 05-27-2008, 01:08 PM

it is an example of why your statement "If there is no limit as to what marriages is officially sanctioned then there is no point in having a license at " is wrong.

I do not understand what you mean by "equal protection." Treating people equally does not mean we treat all people the same. And my reason for thinking gays ought to be able to marry is that I do not see a reason to deny a marriage between two consenting people, I want to extend them (and maybe only them) the right to marry. I would see a reason to deny a polygamous marriage, because one of the people involved would already be married. If we allow gays to marry, we would have the exact same reasons for denying polygamists marriages as we do now. If the courts decide that allowing polygamy is the right thing to do, that I would be wrong to deny them the right to marry, then so be it. That would be a different argument.

JensenS · 05-27-2008, 01:17 PM

Originally Posted by _SL_

It is called the principle of extension...Just because we extend rights to one group does not mean we have to extend it to all groups, provided there is a reason for doing so.

This about sums it up right here. Excellent post SL.

Tight-Waist · 05-27-2008, 01:19 PM

Originally Posted by _SL_

it is an example of why your statement "If there is no limit as to what marriages is officially sanctioned then there is no point in having a license at " is wrong.

I do not understand what you mean by "equal protection." Treating people equally does not mean we treat all people the same. And my reason for thinking gays ought to be able to marry is that I do not see a reason to deny a marriage between two consenting people, I want to extend them (and maybe only them) the right to marry. I would see a reason to deny a polygamous marriage, because one of the people involved would already be married. If we allow gays to marry, we would have the exact same reasons for denying polygamists marriages as we do now. If the courts decide that allowing polygamy is the right thing to do, that I would be wrong to deny them the right to marry, then so be it. That would be a different argument.

The "Equal Protection" arguement is a CONSTITUTIONAL one and is the basis of court cases seeking to overturn state gay marriage laws.

Courts should NEVER be in the business of deciding the wisdom of a law. THAT should be left to the governed! It is their job to interpret the law, not make it.

It seems to me you are making a (very valid I might add) POLICY argument which is different than a CONSTITUTIONAL arguement. I tried to explain the difference.

_SL_ · 05-27-2008, 01:28 PM

Originally Posted by Tight-Waist

Courts should NEVER be in the business of deciding the wisdom of a law. THAT should be left to the governed! It is their job to interpret the law, not [i]make[/I

I think sometimes laws can conflict, and in these cases it is up to the courts to decide priorities and be wise in their application on the law. An example would again be racism.

I can't say I know much about constituional law, hopefully someday I will. I'm reading some Philosophy of Law right now in academic journals, so if I run into this topic there maybe I'll be able to be more insightful in this regard.

matclone · 05-27-2008, 02:38 PM

Originally Posted by UGLY

Clone the question is, is the outcome of court decisions based on their interpretation of a constitution or law, more important that going through the process that was set for us by the founding fathers and authors of the constitution.

The actual question should be: what is the appropriate way to interpret a constitution. You acknowledge implicitly that Calif's judges interpreted the constitution of Calif, but then suggest their interpretation is wrong.

That thing you refer to (the founding fathers) is most commonly called originalism or original intent. It is a legitimate way to look at a constitution but it is not the only way. You've been given some examples where it could be a problem.

Here are some other problems with originalism:
(1) We dont' always know what the founding fathers intended. In some cases this may be clear, in others it is not (e.g., the 2nd amendment to the U.S. Const)You're reading the Federalist papers. I'm guessing on some issues they reflect competing points of view. In other words, the "founding fathers" were not necessarily of one mind on any given matter, and what we see in the constitution probably involves some level of compromise, including the ambiguity that sometimes comes from law based on compromise.

(2) Immutability in a mutable world. Constitutions reflect the world at the time they were written. The world has changed. (Dred Scott and a host of other cases relate to this). Originalism is a legitimate approach, but those who claim it should be just as the world was 200 years ago (or whatever) probably aren't being honest. I also suspect Scalia and Thomas (the foremost proponents of orginalism in the US SCt), probably aren't totally consistent with their professed philosophy. See Scalia on Kelo v. Lambert for example. Or Scalia and Thomas in Bush v. Gore.

Process vs. Outcome

Politics & Religion