CA Supreme Court agrees to review Prop. 8 ....

[_Rollo Tomasi]

Besides, I don't know of any divorced Roman Catholic who has been able to force the Catholic Church to marry him or her a second time.

Actually, many Catholics are abe to marry a second time. They just find ways to declare the 1st marriage null and void. Kinda like rewriting history. So the 2nd counts as a 1st.

I guess I should have qualified it with this phrase: "whose 1st marriage was not annulled."

[_Rollo Tomasi]

Yeah I guess that the initiative overturning the Cal Supreme Courts ruling that the death penalty was unconstitutional didn't deprive anybody of a fundamental right. Into the gas chamber they go.

Nor was the initiative that stripped immigrants of rights to govt services a deprivation of anything. Initiatives are constantly restricting civil rights in California.

CFR for where a court has said these involved fundamental constitutional rights?

[_Rollo Tomasi]

Since when does it take a court to determine what is a fundamental constitutional right before it becomes one?

That's how it works with a fundamental right recognized under the constitution. The court ultimately has to interpret the constitution to so provide.

The simple fact that the political leaders of the day knew it would take an amendment to levy the tax shows there was in implicit right to not be taxed in this way. In fact, the constitution really forbid it prior to the 16th amendment.

There was no express prohibition, but no express provision for it, either. But the right not to be taxed, as far as I know, was never recognized as a fundamental constitutional right prior to the passage of the 16th Amendment.

[_Trevor]

You, sitting there in your whitebread suburb and office in a state of the United States probably robbed from Mexico in 1849 when the U.S. invented a provocation (Gulf of Tonkin, anybody) to invade Mexico.

Now Bob is getting testy about American atrocities. What's next, a tirade about the occupation of Iraq?

[_Jason Bourne]

Since when does it take a court to determine what is a fundamental constitutional right before it becomes one?

That's how it works with a fundamental right recognized under the constitution. The court ultimately has to interpret the constitution to so provide.

I don't think that is the only way it works. The constitution and it the original 10 amendments, the Bill of Rights, grants certain rights. The courts step in when there is legal matter where it seems that a right is under threat or denied. There are still innate rights granted under the constitution. Just because the court is not opining on it does not mean it does not exist.

The simple fact that the political leaders of the day knew it would take an amendment to levy the tax shows there was in implicit right to not be taxed in this way. In fact, the constitution really forbid it prior to the 16th amendment.

There was no express prohibition, but no express provision for it, either. But the right not to be taxed, as far as I know, was never recognized as a fundamental constitutional right prior to the passage of the 16th Amendment.

Article 1 Section 8 and 9 of the US Constitution reads in part:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;



Section 9.

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

These sections expressly prohibit an income tax. though during the civil war one was allowed and held by the court as constitutional due to it being to pay for the war.

If I had time I could dig up cases that challenge the constitutionality of the income tax. Essentially they conclude that but for the 16th amendment such tax is unconstitutional.

The 16 amendment took away a specific right to the enjoyment of income by allowing the government to tax it.

[_Trevor]

The 16 amendment took away a specific right to the enjoyment of income by allowing the government to tax it.

Surely it did not take away your right to earn and income and enjoy the majority of it, while benefiting from the services that income tax buys you.

As Oliver Wendell Holmes once said, "Taxes are the price we pay for a civilized society."

[_Rollo Tomasi]

I don't think that is the only way it works. The constitution and it the original 10 amendments, the Bill of Rights, grants certain rights. The courts step in when there is legal matter where it seems that a right is under threat or denied. There are still innate rights granted under the constitution. Just because the court is not opining on it does not mean it does not exist.

True, but no fundamental right really exists unless the judiciary tells the gov't it exists and that the gov't has to keep its paws off it. It's ultimately up to the Supreme Court to tell us which constitutional rights exist, particularly where the gov't is trying to interfere in such a right.

Article 1 Section 8 and 9 of the US Constitution reads in part:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

As I recall, it was unclear whether "taxes" included "income tax." Hence, the amendment. But this has never been an issue of a fundamental constitutional right, but the limits of the legislative power under Article I.

Section 9.

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

Same thing -- it's dealing with the limits of legislative power, not an individual's fundamental right.

These sections expressly prohibit an income tax. though during the civil war one was allowed and held by the court as constitutional due to it being to pay for the war.

They do not expressly prohibit an income tax, but are silent, leading to the confusion that led to the amendment.

If I had time I could dig up cases that challenge the constitutionality of the income tax. Essentially they conclude that but for the 16th amendment such tax is unconstitutional.

Perhaps, but this is not relevant to what we are really talking about: fundamental constitutional rights of the individual, like equal protection, due process, etc. Whether the legislative branch has the authority to do something under enumerated duties and powers in Article I is very different than the individual's fundamental rights protected under the Bill of Rights and similar amendments.

The 16 amendment took away a specific right to the enjoyment of income by allowing the government to tax it.

This has never been recognized as a fundamental constitutional right of the individual, but only whether the Congress has such authority within its enumerated powers.

[_asbestosman]

The government doesn't grant their sins special status complete with benefits.

You just don't get it. It's not the government's job to say what is and what is not "sin." "Sin" is not the basis for constitutional rights. Equal protection under law has nothing to do with "sin" or other religious beliefs or objections.

Yep, fornicators, adulterers, and an homosexuals have the same privileges as everyone else--they can marry one adult of the opposite sex.

Or maybe you think polygamists shouldn't have equal protection?

There sure is. It's called the right to privacy. This is why there are no longer laws against fornication, sodomy, adultery, etc., like there used to be. The gov't has no jurisdiction in a citizen's bedroom.

Actually I hear that adultery is still illegal in many places but not enforced. Is it really because of privacy? Why, then, can you get in trouble for bigamy? It's not like the goverment issues bigamists two marriage liscences. Something doesn't add up.

There may not actually be a right to privacy in the constitution, but that's what the courts said for now so I guess I have to go with it. I wonder, though, why there isn't some kind of special status given to polygamists and incestuous couples. If there were, would you be as outraged at an ammendment removing it? If so, then hasn't it already happened in the past when feds came down on Utah polygamists? Maybe gays weren't the first after all.

Where was the Church when the court were overturning the very laws outlawing fornication and adultery? Where was the Church after Roe v. Wade? Again, is it your position that the Church follows God's Will only when it is politically expedient to do so? So much for "standing for something."

I don't really know what the church's strategy is. I would think it's wise to pick your battles and only fight the ones where you stand a chance of making a difference thereby allowing yourself to save resources for those other battles.

You connected repentance and enjoyment of constitutional rights -- in our system of constitutional law there is NO such connection.

Right, but there is a connection between repentance and the enjoyment of church blessings. I was thinking what the government would be like if the church really could control it. I think BYU provides a glimpse. BYU is very harsh to unrepentant rule breakers and harsh enough to penitent ones.

I don't think the church does, can, nor should control the constitution. I do think that it has every right to participate in the process of shaping things the way they want.

[_Rollo Tomasi]

You just don't get it. It's not the government's job to say what is and what is not "sin." "Sin" is not the basis for constitutional rights. Equal protection under law has nothing to do with "sin" or other religious beliefs or objections.

Yep, fornicators, adulterers, and an homosexuals have the same privileges as everyone else--they can marry one adult of the opposite sex.

No, the right to marry, not to just a member of the opposite sex, just like we don't force persons to only marry within their race, etc.

Or maybe you think polygamists shouldn't have equal protection?

I think they should.

Actually I hear that adultery is still illegal in many places but not enforced.

It may still show up in statutes (like other silly laws long forgotten but which are still in there), but the gov't cannot stop a person from fornicating or adultering or sodomizing, etc.

Is it really because of privacy?

Yup. See Lawrence v. Texas.

Why, then, can you get in trouble for bigamy? It's not like the goverment issues bigamists two marriage liscences. Something doesn't add up.

Bigamy/polygamy can be made unlawful and enforced because it meets the exception of the gov't having a damn good reason to enforce such laws. I tend to disagree with those decisions.

I wonder, though, why there isn't some kind of special status given to polygamists and incestuous couples.

Such have been found to fall withing the exception that allows gov't interference (the CA state supreme court decision expressly states this).

If there were, would you be as outraged at an ammendment removing it?

I'm not sure I understand your question, but my position is this: consenting adults who wish to engage in polygamy or incest should be free to do so.

If so, then hasn't it already happened in the past when feds came down on Utah polygamists? Maybe gays weren't the first after all.

No court has found the the practice of polygamy is a fundamental constitutional right. Personally, I think it is (or should be) for consenting adults.

I don't really know what the church's strategy is. I would think it's wise to pick your battles and only fight the ones where you stand a chance of making a difference thereby allowing yourself to save resources for those other battles.

This is why I think the Church's mantra of "standing for something" is utter BS.

Right, but there is a connection between repentance and the enjoyment of church blessings.

Agreed.

I was thinking what the government would be like if the church really could control it. I think BYU provides a glimpse. BYU is very harsh to unrepentant rule breakers and harsh enough to penitent ones.

Now that is a horrifying vision. Can't get it out of my mind!

[_asbestosman]

Or maybe you think polygamists shouldn't have equal protection?

I think they should.

At least you're consistent.

It may still show up in statutes (like other silly laws long forgotten but which are still in there), but the gov't cannot stop a person from fornicating or adultering or sodomizing, etc.

True, but it doesn't mix those things up with marriage either.

/polygamy can be made unlawful and enforced because it meets the exception of the gov't having a damn good reason to enforce such laws. I tend to disagree with those decisions.

Then perhaps when the government consists of someone else, it may feel it has really good reasons to make homosexual marriage unlawful and enforced. You and others could still disagree with those decisions, but at least you're being consistent.

I wonder, though, why there isn't some kind of special status given to polygamists and incestuous couples.

Such have been found to fall withing the exception that allows gov't interference (the CA state supreme court decision expressly states this).

Then in theory it could do the same of homosexuality?

If there were, would you be as outraged at an ammendment removing it?

I'm not sure I understand your question, but my position is this: consenting adults who wish to engage in polygamy or incest should be free to do so.

That's fine. Do you think they should be granted the special status of marriage with equal rights for it too?

No court has found the the practice of polygamy is a fundamental constitutional right. Personally, I think it is (or should be) for consenting adults.

But should it be given equal benefits and status as marriage?

This is why I think the Church's mantra of "standing for something" is utter BS.

Why? Don't they speak out on all issues to us? Doesn't that make us stand for something?

I was thinking what the government would be like if the church really could control it. I think BYU provides a glimpse. BYU is very harsh to unrepentant rule breakers and harsh enough to penitent ones.

Now that is a horrifying vision. Can't get it out of my mind!

Well, there is a reason I decided not to finish my master's at BYU. I don't enjoy being treated like a toddler.