Is fairness to Homosexuals an apostate cause and issue?

[_guy sajer]

2. We do not live in a democracy.

At least the State of California is not. The State of California just pretty recently found that out when four out of seven Justices from the California Supreme Court knocked down Proposition #22, which was passed back in the Year of 2000 there.

Judicial oligarchy, or perhaps, more simply put, Judiocracy. Terribly frightening whatever the terms used.

Except, of course, when it supports Conservative causes.

[_Droopy]

Marriage is not a right,

It is my understanding that heterosexual marriage actually is considered to be a right even though homosexual marriage is not.

See Standhardt v. Arizona

I'd really prefer to concentrate on the constitution, and not on case law, which, in many cases, doesn't tell us what is constitutional (or logical, rational, or conceptually coherent), but only what is legal in a contingent and relative sense, i.e., what kind of precedents have been set by a seres of judicial rulings.

Much of that, not being relevant to the Constitution or its original intent, are of little use in a discussion of what the constitution can legitimately be said to support or deny (unless one believes that we should, in point of fact, be governed by a system of courts and not by the rule of law within deliberative democratic insitutiions accountable to the people (a Republic).

[_Droopy]

Of course. And if the people of CA don't like the consequences of having a constitution that gets interpreted that way, they can put into action the democratic mechanism for amending it, so that laws of the type they want are explicitly allowed for.

But even then, since a constitution is only marks on bits of dead tree, you will still have to leave it to judges of some kind, and however appointed, to interpret and apply it.

Or has Coggins found a way of applying the constitution that escaped the Founding Fathers of the US and of pretty well every other constitution-based actually functioning democracy in the world? Probably.

Please find for me the text in the Constitution of California that could reasonably and logically be understood to support the legal recognition of homosexual cohabitation as equal with heterosexual marriage and place it in this thread with some supporting argumentation.

What this really looks like is strident judicial cause advocacy, not serious constitutional jurisprudence (think Roe, for a meaningful template of the practice).

[_Droopy]

2. We do not live in a democracy.

At least the State of California is not. The State of California just pretty recently found that out when four out of seven Justices from the California Supreme Court knocked down Proposition #22, which was passed back in the Year of 2000 there.

Judicial oligarchy, or perhaps, more simply put, Judiocracy. Terribly frightening whatever the terms used.

Except, of course, when it supports Conservative causes.

While some conservatives do support judicial advocacy and court stacking, in defense of that I'll just say that they've been, or perceive themselves to have been, forced into that stance by the colonization of the Judiciary by the Left and the use of the courts by the Left to circumvent the will of the people and pass legislation and foment social change thought he courts when they cannot succeed within the deliberative democratic institutions of representative legislatures.

Having said that, my position, in accordance with many conservatives and libertarians, is to return most of these contentious issues to the people and to the states, as the 10th amendment stipulates, and return the courts to their limited and weak function of legal interpretation. Each state would decide for itself, through its representatives, what kind of society it would like to live in. Unfettered abortion, homosexual marriage, sexual consent at the age of 14, whatever. In another state, much stricter limitations, and people can vote with their feet as to what kind of social order they wish to live within. What has to stop is the imposition, by black robes philosopher kings, of their own ideological preferences upon the people, who have no recourse but then to live in the society these unaccountable oligarchs create.

[_Chap]

Of course. And if the people of CA don't like the consequences of having a constitution that gets interpreted that way, they can put into action the democratic mechanism for amending it, so that laws of the type they want are explicitly allowed for.

But even then, since a constitution is only marks on bits of dead tree, you will still have to leave it to judges of some kind, and however appointed, to interpret and apply it.

Or has Coggins found a way of applying the constitution that escaped the Founding Fathers of the US and of pretty well every other constitution-based actually functioning democracy in the world? Probably.

Please find for me the text in the Constitution of California that could reasonably and logically be understood to support the legal recognition of homosexual cohabitation as equal with heterosexual marriage and place it in this thread with some supporting argumentation.

What this really looks like is strident judicial cause advocacy, not serious constitutional jurisprudence (think Roe, for a meaningful template of the practice).

So you think the judges made the wrong decision? Evidently the answer is yes.

But this does nothing to deal with the fact that if you have a constitution, someone has to interpret and apply it, since the drafters of the constitution cannot possible foresee alll subsequent problematic situations and provide for them explicitly. The people who do the interpreting will, however you choose them, be judges.

You have to face the fact that sometimes you will like their decisions, and sometimes you won't. And of course you are free to make your opinion known, as you are now doing. But you still can't do without judges of some kind, so long as you have a written constitution.

Do you have an alternative?

[_Rollo Tomasi]

Please find for me the text in the Constitution of California that could reasonably and logically be understood to support the legal recognition of homosexual cohabitation as equal with heterosexual marriage and place it in this thread with some supporting argumentation.

Right to privacy in the CA state constitution: Art. 1, section 1; right to equal protection of the laws in the CA state constitution: Art. 1, section 7(a). In CA, "the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution," and is referred to as a "basic civil right to all individuals and couples...." In re Marriage Cases, pp. 49, 66; see also Conservatorship of Valerie N., 40 Cal.3d 143, 161 (1985); In re Carrafa, 77 Cal. App.3d 788, 791 (1978). Of course, the U.S. Supreme Court has also recognized the right to marry as a component of the "right to privacy" under the federal constitution. See Griswold v. Connecticut, 381 U.S. 479 (1965). Consequently, any law that treats this fundamental, civil right differently based on sexual orientation violates the CA constitution's equal protection clause (unless the state can show a compelling state interest in the differentiation, which it failed to do in the In re Marriage Cases decision).

[Guest]

Please find for me the text in the Constitution of California that could reasonably and logically be understood to support the legal recognition of homosexual cohabitation as equal with heterosexual marriage and place it in this thread with some supporting argumentation.

Right to privacy in the CA state constitution: Art. 1, section 1; right to equal protection of the laws in the CA state constitution: Art. 1, section 7(a). In CA, "the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution," and is referred to as a "basic civil right to all individuals and couples...." In re Marriage Cases, pp. 49, 66; see also Conservatorship of Valerie N., 40 Cal.3d 143, 161 (1985); In re Carrafa, 77 Cal. App.3d 788, 791 (1978). Of course, the U.S. Supreme Court has also recognized the right to marry as a component of the "right to privacy" under the federal constitution. See Griswold v. Connecticut, 381 U.S. 479 (1965). Consequently, any law that treats this fundamental, civil right differently based on sexual orientation violates the CA constitution's equal protection clause (unless the state can show a compelling state interest in the differentiation, which it failed to do in the In re Marriage Cases decision).

Others have a different perspective. All is not as the Left would have us believe (as is verily always the case).


http://bench.nationalreview.com/post/?q ... U0NWQ3NTY=

And, as the same author says in another place:

The majority offers the usual false assurances that its task “is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership …, but instead only to determine whether the difference in the official names of the relationships violates the California Constitution…. Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.” (Emphasis in original.)


Oh, please. Spare us the pompous nonsense. I’ll repeat, with minor changes, what I had to say about the New Jersey supreme court’s similar (but marginally more modest) ruling in October 2006: This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades. So many judges today view judicial decisionmaking as essentially an autonomous process, unmoored from the meaning of the actual text. Not a single justice in the majority did a simple sanity check: Is it remotely plausible, remotely compatible with democratic principles, to read the state constitutional provisions as supporting the court’s result?


3. I’ll note again that California voters will likely have the opportunity in November to override the court’s decision. I wish as well that voters could give the justices in the majority the Rose Bird treatment (see This Week for Nov. 4, 1986), but if I understand California law correctly, the earliest any of them will face a retention election is 2014.

You're problem here Tomasi, is the original intent of the language as well as the legitimacy of the ruling, which was a form of outright judicial legislation, and hence, illegitimate on its face. While the California constitution does say that marriage is a right, it says nothing about homosexuals (your problem here is going to be showing that the authors of this language ever so much as conceived of the concept of homosexual "marriage" when this language was inserted into the document) and nothing regarding the traditional definition of marriage (one man and one woman), which was assumed at the outset. What you and the ninth circus are doing here is precisely what was done with Roe and numerous decisions since then: you are stretching, twisting, and decontextualizing the language of the document without regard to the original intent or understandings of the authors of the text so as to arrive at the political outcome you desire through judicial means.

Many of us see right through this ruse Rollo, and only the fools are fooled. The original intent of the framers of that constitution foresaw no such issue relevant to these aspects of the California constitution, and both you and the leftist social engineers on the California bench know it. The will of the people had already spoken, clearly and unambiguously, on the nature of marriage the majority desired. The constitution's vague, general language, on the other hand, had to be sufficiently massaged and dislogded from tradition and plausible original intent to arrive at the ideologically correct ruling.

[_Droopy]

So you think the judges made the wrong decision? Evidently the answer is yes.

Its not so much that I think they are wrong (they are), but that they have no business usurping the powers of the people and the legislatures in favor of the views of a tiny oligarchy of unaccountable legal commissars.

But this does nothing to deal with the fact that if you have a constitution, someone has to interpret and apply it, since the drafters of the constitution cannot possible foresee alll subsequent problematic situations and provide for them explicitly. The people who do the interpreting will, however you choose them, be judges.

They didn't just interpret it. They, yet again, created an entirely new law from whole cloth and imposed it upon an entire people. That's not just interpretation but the creation of new law where no law existed before, and that is none of any court's business in this country under our federal constitution.

You have to face the fact that sometimes you will like their decisions, and sometimes you won't. And of course you are free to make your opinion known, as you are now doing. But you still can't do without judges of some kind, so long as you have a written constitution.

Do you have an alternative?

Yes. Whether or not homosexuals should be allowed to "marry" is a matter for the people to decide through there politically accountable elected representatives or through referendum. It is not the place of a tiny oligarchy to impose its own political, social, or ideological will on the majority.

Restricting marriage to one man and one woman isn't a legal or constitutional issue in a judicial sense because marriage is not a "right" in a constitutional sense, but a privilege granted to the mature and able for the preservation and maintenance of an ordered, civil society within the context of deeply interconnected mores, traditions, and long cultural experience. If certain minority groups want to change these core aspects of western civilization, then it should be done through open democratic means within the context of politically accountable representatives who's legislation leaves forms of exit or recall open to the majority at a later date.

[_Rollo Tomasi]

Please find for me the text in the Constitution of California that could reasonably and logically be understood to support the legal recognition of homosexual cohabitation as equal with heterosexual marriage and place it in this thread with some supporting argumentation.

Right to privacy in the CA state constitution: Art. 1, section 1; right to equal protection of the laws in the CA state constitution: Art. 1, section 7(a). In CA, "the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution," and is referred to as a "basic civil right to all individuals and couples...." In re Marriage Cases, pp. 49, 66; see also Conservatorship of Valerie N., 40 Cal.3d 143, 161 (1985); In re Carrafa, 77 Cal. App.3d 788, 791 (1978). Of course, the U.S. Supreme Court has also recognized the right to marry as a component of the "right to privacy" under the federal constitution. See Griswold v. Connecticut, 381 U.S. 479 (1965). Consequently, any law that treats this fundamental, civil right differently based on sexual orientation violates the CA constitution's equal protection clause (unless the state can show a compelling state interest in the differentiation, which it failed to do in the In re Marriage Cases decision).

Others have a different perspective. All is not a the Left would have us believe (as is verily always the case).

Dude, the majority of the CA supreme court which held in favor of gay marriage was appointed by Republican governors.

This is, simply put, judicial activism run amok, even if it reflects the gradual judicial accretion of power over some decades.

The people chose to have a constitution and appoint judges to interpret the constitution. Blame the people, not the judges, when there's a decision you don't like.

I’ll note again that California voters will likely have the opportunity in November to override the court’s decision. I wish as well that voters could give the justices in the majority the Rose Bird treatment (see This Week for Nov. 4, 1986), but if I understand California law correctly, the earliest any of them will face a retention election is 2014.

And I'll note again that most of the judges on CA's supreme court are Republican appointees.

You're problem here Tomasi, is the original intent of the language as well as the legitimacy of the ruling, which was a form of outright judicial legislation, and hence, illegitimate on its face. While the California constitution does say that marriage is a right, it says nothing about homosexuals (your problem here is going to be showing that the authors of this language ever so much as conceived of the concept of homosexual "marriage" when this language was inserted into the document) and nothing regarding the traditional definition of marriage (one man and one woman), which was assumed at the outset.

The right to marry is not explicitly stated in the CA constitution. It was recognized by CA case authority. Do you agree that heterosexuals have a fundamental right to marry? If yes, then that pesky equal protection clause requires the same fundamental right be extended to homosexuals.

What you and the ninth circus ...

We are talking about the CA supreme court, the highest state court in CA, not the U.S. Court of Appeals for the Ninth Circuit.

... are doing here is precisely what was done with Roe and numerous decisions since then: you are stretching, twisting, and decontextualizing the language of the document without regard to the original intent or understandings of the authors of the text so as to arrive at the political outcome you desire through judicial means.

I take you to mean that heterosexuals do not have the fundamental right to marry, since it's not mentioned in either the CA state constitution or the U.S. Constitution. Am I correct?

Many of us see right through this ruse Rollo, and only the fools are fooled. The original intent of the framers of that constitution foresaw no such issue relevant to these aspects of the California constitution, and both you and the leftist social engineers on the California bench know it. The will of the people had already spoken, clearly and unambiguously, on the nature of marriage the majority desired. The constitution's vague, general language, on the other hand, had to be sufficiently massaged and dislogded from tradition and plausible original intent to arrive at the ideologically correct ruling.

The same could be said for interracial marriage or even heterosexual marriage, along with equal rights for all genders and races, etc. Are you prepared to throw all this away because they are not expressly mentioned in the constitution? Well, are you?

[_Rollo Tomasi]

Do you have an alternative?

Yes. Whether or not homosexuals should be allowed to "marry" is a matter for the people to decide through there politically accountable elected representatives or through referendum. It is not the place of a tiny oligarchy to impose its own political, social, or ideological will on the majority.

Restricting marriage to one man and one woman isn't a legal or constitutional issue in a judicial sense because marriage is not a "right" in a constitutional sense, but a privilege granted to the mature and able for the preservation and maintenance of an ordered, civil society within the context of deeply interconnected mores, traditions, and long cultural experience. If certain minority groups want to change these core aspects of western civilization, then it should be done through open democratic means within the context of politically accountable representatives who's legislation leaves forms of exit or recall open to the majority at a later date.

But what about polygamy? If you really want to treat all marriages as a "privilege" rather than a "right," then you are asking for the gov't (as long as its backed by a majority) to make all kinds of exemptions or qualifications for legal marriage -- essentially, if it's a mere "privilege," the gov't can decide who can and who cannot get married. Who knows, may the gov't will require a fertility test for an engaged couple to ensure they can do their part to propogate the species. Perhaps interracial marriage can be banned. Perhaps a particular unfavored group (like Jews ... or, gasp, Mormons) are not allowed to marry because they are not "pure" enough. Your "alternative" is starting to sound an awful like Nazi Germany.