9th Circuit Assumes Legislative Power In Same Sex Marriage Case

[Silhouette]

[
...Abiding by the intentions and beliefs under which a law is adopted is in fact rooted in English common law and dates back many hundreds of years and has over three hundred years of practice on American soil! Unfortunately our Courts have found a clever way to circumvent this fundamental rule by creating a number of “tests” unknown to our founding fathers and are used today to impose its will upon the people. These “tests” began to appear and gain a foothold during the Warren Court of the l960’s. One such test was the "rationality" test under which a law being challenged had to withstand the court’s judgment that the law in question was “rationally based” or “reasonable” to survive the court‘s review. Of course, this allows the court to switch the subject from what is and what is not constitutional, to an arbitrarily answered question having nothing to do with whether or not a law is in harmony with the legislative intent of our Constitution.

Whether rational or not, a law which violates the Constitution cannot be justified as being constitutional if it is rationally based! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the legislature! To do so is to usurp legislative authority and dissolve our Constitution’s separation of powers!

Indeed, this violation took place when the 9th Circuit Court decided to judge if bans on same-sex couples promotes “the welfare of children, by encouraging good parenting in stable opposite sex families” instead of expounding upon the documented intentions of the 14th Amendment to support its arbitrary and erroneous conclusion, that the Idaho ban on sex-sex “marriage” is a “ violation of the Equal Protection Clause.”

JWK


"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

I would say that one test of any such law is how integral it is to Constitutional protections already longstanding and unquestioned. And further most recently reiterated by Windsor 2013. The right for states to self-govern with respect to HUMAN BEHAVIORS [verb] [not race, not religion, not country of origin or one's gender][nouns] is the most fundamental right of any state or its citizens/voters. Any question of law that challenges that right must not dominate it in the interim as those appeals go upward.

The default decision must always be the one that supports the most fundamental right of all: the right to democracy. The challanger has the burden. Just like any plaintiff, "the burden is upon you" to show how accepted foundations of law "must be overruled". This SCOTUS is not only de facto legislating outside its authority [by refusing to hear these most compelling cases...attrition...] but is actually dissolving the bedrock of the constitution in the interim.

What they've effectively done is eradicated any binding description of marriage now in any of these states. And as such, ANYONE can marry there RIGHT NOW. It isn't limited to just LGBT cultees swarming the county clerks' offices to 'marry their way into legality '. Polygamists, siblings, anyone...could march in and "legally" [since there are no laws now] demand a marriage licence. Turning them away would be arbitrary and discriminatory.

ie: By refusing to hear the cases, the SCOTUS has created a situation of complete lawlessness as to the most fundamental institution of our nation [marriage] and as such, the children will suffer. This was a calculated decision to legislate without making it look like they are legislating. They know that the attrition happening in the interim during the "convenient/effective limbo-legislation" is the same as a sweeping federal protection for gay marriage issued from the bench. And I hold the conservative Justices accountable since only 4 Justices were needed to bring this case before the Bench.

I'm rethinking my crossover voting as we speak...

Every Justice should hang their head in shame. This is why the most careful selection of the most unbiased, fair and wise man or woman selected for the seat of Supreme Court Justice should be one of the most exhaustive searches a President and Congress should do. Playing partisan politics is a byproduct of malignant capitalism and everyone grappling for dominance from whichever ilk they hearken from. And it is KILLING this country.

I get it. We're on the eve of a pivotal election. But this is beyond the pale. Unless the GOP has a last minute plan to pull up from this nosedive, my respect for the strong party [who knuckles under to gay pressures?] is in the TOILET. Playing partisan politics with our nation's most fundamental conservative institution [marriage] has rendered the conservative party as much of a common streewalking prostitute as any leftwing nutjob.

 

[dcraelin]

I cant make heads nor tail out of what you quoted..........I dont think it proves anything..............even if the federal Constitution applies to the states..that really doesnt prove a gay-marriage case anyway.

Really? You couldn't make heads or tails of the meaning of this, huh?

"The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees"
Senator Jacob Howard

Would you like me to walk you through it? The amendment being referenced is the 14th amendment. And the guarentees being referenced are 'all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it.'
And by Constitution (note the capitalization. Its significant), we're referring to the US Constitution.
Tell me....at what point did you get lost?

U should quote me if you expect me to answer. Im not lost, u are.....even if the 14th applies the federal Bill of Rights to the states...that really doesnt change the base arguments.

 

[Silhouette]

duplicate

 

[dcraelin]

[
...Abiding by the intentions and beliefs under which a law is adopted is in fact rooted in English common law and dates back many hundreds of years and has over three hundred years of practice on American soil! Unfortunately our Courts have found a clever way to circumvent this fundamental rule by creating a number of “tests” unknown to our founding fathers and are used today to impose its will upon the people. These “tests” began to appear and gain a foothold during the Warren Court of the l960’s. One such test was the "rationality" test under which a law being challenged had to withstand the court’s judgment that the law in question was “rationally based” or “reasonable” to survive the court‘s review. Of course, this allows the court to switch the subject from what is and what is not constitutional, to an arbitrarily answered question having nothing to do with whether or not a law is in harmony with the legislative intent of our Constitution.

Whether rational or not, a law which violates the Constitution cannot be justified as being constitutional if it is rationally based! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the legislature! To do so is to usurp legislative authority and dissolve our Constitution’s separation of powers!

Indeed, this violation took place when the 9th Circuit Court decided to judge if bans on same-sex couples promotes “the welfare of children, by encouraging good parenting in stable opposite sex families” instead of expounding upon the documented intentions of the 14th Amendment to support its arbitrary and erroneous conclusion, that the Idaho ban on sex-sex “marriage” is a “ violation of the Equal Protection Clause.”

JWK

"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968

I would say that one test of any such law is how integral it is to Constitutional protections already longstanding and unquestioned. And further most recently reiterated by Windsor 2013. The right for states to self-govern with respect to HUMAN BEHAVIORS [verb] [not race, not religion, not country of origin or one's gender][nouns] is the most fundamental right of any state or its citizens/voters. Any question of law that challenges that right must not dominate it in the interim as those appeals go upward.

The default decision must always be the one that supports the most fundamental right of all: the right to democracy. The challanger has the burden. Just like any plaintiff, "the burden is upon you" to show how accepted foundations of law "must be overruled". This SCOTUS is not only de facto legislating outside its authority [by refusing to hear these most compelling cases...attrition...] but is actually dissolving the bedrock of the constitution in the interim.

What they've effectively done is eradicated any binding description of marriage now in any of these states. And as such, ANYONE can marry there RIGHT NOW. It isn't limited to just LGBT cultees swarming the county clerks' offices to 'marry their way into legality '. Polygamists, siblings, anyone...could march in and "legally" [since there are no laws now] demand a marriage licence. Turning them away would be arbitrary and discriminatory.

ie: By refusing to hear the cases, the SCOTUS has created a situation of complete lawlessness as to the most fundamental institution of our nation [marriage] and as such, the children will suffer. This was a calculated decision to legislate without making it look like they are legislating. They know that the attrition happening in the interim during the "convenient/effective limbo-legislation" is the same as a sweeping federal protection for gay marriage issued from the bench. And I hold the conservative Justices accountable since only 4 Justices were needed to bring this case before the Bench.
I'm rethinking my crossover voting as we speak...
Every Justice should hang their head in shame. This is why the most careful selection of the most unbiased, fair and wise man or woman selected for the seat of Supreme Court Justice should be one of the most exhaustive searches a President and Congress should do. Playing partisan politics is a byproduct of malignant capitalism and everyone grappling for dominance from whichever ilk they hearken from. And it is KILLING this country.
I get it. We're on the eve of a pivotal election. But this is beyond the pale.

Excellent post Silhouette, especially "The default decision must always be the one that supports the most fundamental right of all: the right to democracy."
but also look at a line Johnwk posted of justice Black's which I agree with, which gay-marriage advocates should learn from.
"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968[/QUOTE]

 

[johnwk]

The unavoidable truth is, when questions arise concerning the text of the Constitution, those question are to be resolved by the time honored rule of establishing the documented intentions under which the words in question were adopted. In the case of the 14th Amendment, a review of the 39th Congressional debates establishes the intentions of the lawmaker, which the court is then bound to observe as opposed to supplanting its own views on what the Amendment should mean. But don’t take my word for this, let us recall what our very own Supreme Court stated with reference to enforcing the intentions of the lawmaker:

In Hawaii v. Mankichi, 190 U.S. 197 (1903), our Supreme Court notes the cardinal rule to enforce the intention of the lawmaking power!

But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law."

And the noteworthy Chancellor James Kent, in his Commentaries on American Law (1858) expresses the rule as follows:

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.

In fact, The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

I could provide countless other quotes to establish the fact that enforcing the documented intentions and beliefs under which our Constitution was adopted is one of the courts primary functions. Even our very own Congress is aware of this rule and emphasized it as follows:

"In construing the Constitution we are compelled to give it such interpretation as will secure the result intended to be accomplished by those who framed it and the people who adopted it...A construction which would give the phrase...a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution."_____ Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967)

Now, aside from the fact that honoring the intentions and beliefs under which our Constitution adopted ___ or any of its particular provisions ___ the important question to be answered here is, was the 14th Amendment intended to be a rule barring every imaginable type of discrimination? And the answer to this question is immediately answered by reviewing the 15th Amendment.

Is it not a fact that the 15th Amendment was adopted to prohibit a specific type of discrimination __discrimination at the voting booth ---forbidding discrimination at the voting booth to be based upon “race, color, or previous condition of servitude“, while sex was not included in the protection? How can the 14th Amendment be said to forbid a state to pass laws which discriminate if the 15th amendment had to be passed?

The argument that the 14th Amendment prohibits state discrimination based upon sex or “sexual orientation” as alleged by Judge Reinhardt is proven to be without foundation when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America as authorized under Article V of our Constitution decide to forbid sex discrimination, the discrimination mentioned by Judge Reinhardt, but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”!

Finally, If Judge Reinhardt is correct in asserting the people of American have forbidden state legislation which makes distinctions based upon sex or sexual orientation when issuing a state marriage license, why was there an “Equal Rights Amendment” (ERA) proposed in 1972, specifically stating, Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.?

The truth is, the American People, as provided in Article V of our Constitution, intentionally rejected the Amendment, and, one of the reasons it was rejected was it would, if adopted, force the States to embrace homosexual marriage. I remember those arguments being made and ERA supporters saying it could not be used to force homosexual marriage upon the States,

And so, instead of Judge Reinhardt abiding by his oath to support and defend “this Constitution” he took it upon himself to falsely assert a state law making a distinction based upon sex when issuing a marriage license was a “violation of the Equal Protection Clause” of the 14th Amendment. But that conclusion is nothing more than what Judge Reinhardt believes the 14th Amendment should mean, and is not what the 14th Amendment actually states or was intended to accomplish.

If anyone has evidence from the 39th Congressional debates supporting Reinhardt’s assertions, feel free to post that information here. But the truth is, Judge Reinhardt supplanted his personal views of fairness, reasonableness, or justice when declaring ”… defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”

JWK




"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968