Gay marriage: Tolerance at the cost of liberty

[SGdsn]

I think at the heart of the gay marriage debate is the idea that the judiciary exists to, in part, right legislative wrongs. Since the courts' job is to interpret the law against our constitution, many gay marriage supporters seem to have this idea that it's fine for them to sort of declare law when the legislative process gets it wrong.

The problem is, this is an egregious misuse of the U.S. legal system and undemocratically creates policy with no regard for checks and balances.

It's interesting that polling institutions and the media continue to conduct polls on gay marriage. We're way past a mere question of approval or disagreement. Well over half the country has amended their state constitutions to define marriage as the union of a man and a woman. Another third of the country has statutes that affirm the same thing. If gay marriage advocates get their way, and the Supreme Court finds a right to same-sex marriage, they would invalidate all these laws in one sweeping motion.

To give you some scope of how big that would be, I'll just say it's virtually unprecedented for the Supreme Court to invalidate the expressed will in 2/3 of the states. There is no parallel to it. None. It took a Civil War, three constitutional amendments, several landmark pieces of legislation and court decisions just to undo slavery and its vestiges. And this was over a group of people who, up until the mid-60s, had come from having few rights and no representation.

Compare that to the gay community who considers their struggles to be on par with that of blacks and it just doesn't add up.

My argument isn't that gays aren't important enough to obtain marriage rights or that they're defective. Though I'm personally against it, it's not because of personal feelings about the gay community and just not being convinced by their arguments nor their tactics in obtaining them. Rallying, petitioning their representatives, going on TV and radio campaigning for it is fine; legal bullying and trumping up erroneous lawsuits to overturn the expressed will of millions of voters (as the Prop 8 case illustrates) is wrong.

It's not so much that I think there's a perfect reason against it; I just think there's no compelling reason for it, and more importantly, there's no compelling argument that requires it.

That's the point. The people have the right to not engage in the gay marriage experiment if the potential outcome bothers them. Marriage has had many social functions across time and different cultures, but to my knowledge it has never been to create a distinctly separate class of person, especially regarding sexual proclivities.

I know some people believe that since there's an established "right to marry" -- and the obvious context being between a man and a woman, not some general definition that doesn't take the spouses into account -- gay marriage is just as much a right as, well, anything else. But it's truly not. No matter how supportive you are of the LGBT community, and how tolerant you want to be, you can't jeopardize people's freedom to decide which policies they want to enact in a free society for the mere notion of tolerance.

 

[C_Clayton_Jones]

First there is no such thing as ‘gay marriage advocates.’

We are all advocates of the Constitution, the 14th Amendment, and the Equal Protection Clause of that Amendment.

If…the Supreme Court finds a right to same-sex marriage, they would invalidate all these laws in one sweeping motion.

As it should, since the laws of these states are in violation of the Constitution. Remember that we are a Republic, not a democracy; we are ruled by law, not men.

As Justice Jackson noted in West Virginia Board of Education vs. Barnette (1943):

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal Principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’

The purpose of the Bill of Rights, then, is to protect us from the tyranny of the majority.

Your position also does not comport to established Constitutional case law.

In Lawrence v Texas (2003), the Court struck down a Texas law that made criminal homosexual acts. The Court ruled that such laws violate the 14th Amendment’s Equal Protection Clause:

“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).

LAWRENCE V. TEXAS

Laws or amendment to state constitutions clearly violate the Amendment and are illegal and un-Constitutional.

This was acknowledged by the United States District Court for the Northern District of California in Perry et al v. Schwarzenegger et al, where the Judge Walker struck down as un-Constitutional the same-sex marriage ban in California known as ‘Prop 8.’

Homosexuals are not to be ‘tolerated,’ they are citizens entitled to the same rights and privileges as any other American.

 

[Toro]

It's just a matter of time.

Our grandchildren look back at this time and wonder WTF was wrong with us.

 

[Quantum Windbag]

First there is no such thing as ‘gay marriage advocates.’

Then why the fuck do they call themselves gay marriage activists/advocates? Is this another example of progressive newspeak?

We are all advocates of the Constitution, the 14th Amendment, and the Equal Protection Clause of that Amendment.

More BS, not everyone advocates the Constitution.

As it should, since the laws of these states are in violation of the Constitution. Remember that we are a Republic, not a democracy; we are ruled by law, not men.

The Constitution does not guarantee equal protection based on lifestyle choices, and we stopped being a Republic when the courts started making policy instead of interpreting the law. They have every right to tell Congress that a law, as written, is not constitutional, but they cross a line when they tell the administration that they have to start doing things because it needs to be done. Not sure what you would call what we have now, but republic is not the word.

As Justice Jackson noted in West Virginia Board of Education vs. Barnette (1943):

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal Principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’

The purpose of the Bill of Rights, then, is to protect us from the tyranny of the majority.

No, it is to protect us from the government, Congress is supposed to protect us from the tyranny of the majority. Unfortunately, the courts almost always side with Congress, and Congress has become so bloated it enforces a tyranny of the minority.

Your position also does not comport to established Constitutional case law.

In Lawrence v Texas (2003), the Court struck down a Texas law that made criminal homosexual acts. The Court ruled that such laws violate the 14th Amendment’s Equal Protection Clause:

“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).

LAWRENCE V. TEXAS

Laws or amendment to state constitutions clearly violate the Amendment and are illegal and un-Constitutional.

Lawrence v Texas and SSM are tow seperate issues. One is about adults right to privacy, and the other is about government regulation of contracts. Trying to shoehorn SSM into Lawrence just demonstrates how ignorant you are.

This was acknowledged by the United States District Court for the Northern District of California in Perry et al v. Schwarzenegger et al, where the Judge Walker struck down as un-Constitutional the same-sex marriage ban in California known as ‘Prop 8.’

Homosexuals are not to be ‘tolerated,’ they are citizens entitled to the same rights and privileges as any other American.

They have the same rights and privileges. If we allow same sex marriage we are actually expanding the rights of everyone, something I always support.

He did not. He ruled that under Loving and Griswold the right to marry was entitled to substantive due process and that Proposition 8 failed to meet that test. his ruling had nothing to do with privacy because getting married is not something people generally expect privacy in. If they did, they would not involve the government in the first place.


I actually support same sex marriage, I just oppose idiots who make stupid arguments. You present some of the dumbest arguments I have ever seen.

 

[TheBrain]

First there is no such thing as ‘gay marriage advocates.’

We are all advocates of the Constitution, the 14th Amendment, and the Equal Protection Clause of that Amendment.

If…the Supreme Court finds a right to same-sex marriage, they would invalidate all these laws in one sweeping motion.

As it should, since the laws of these states are in violation of the Constitution. Remember that we are a Republic, not a democracy; we are ruled by law, not men.

As Justice Jackson noted in West Virginia Board of Education vs. Barnette (1943):

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal Principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’

The purpose of the Bill of Rights, then, is to protect us from the tyranny of the majority.

Your position also does not comport to established Constitutional case law.

In Lawrence v Texas (2003), the Court struck down a Texas law that made criminal homosexual acts. The Court ruled that such laws violate the 14th Amendment’s Equal Protection Clause:

“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).

LAWRENCE V. TEXAS

Laws or amendment to state constitutions clearly violate the Amendment and are illegal and un-Constitutional.

This was acknowledged by the United States District Court for the Northern District of California in Perry et al v. Schwarzenegger et al, where the Judge Walker struck down as un-Constitutional the same-sex marriage ban in California known as ‘Prop 8.’

Homosexuals are not to be ‘tolerated,’ they are citizens entitled to the same rights and privileges as any other American.

You're of course full of crap. There are many gays who don't give a shit about the 14th Amendment, they don't even know what it means all they know is that they want to raise hell about something and this is as good as anything else. Are ALL gays like that? Of course not, just like not EVERYONE who opposes gay marriage hates gays.

I'm getting off here for a bit, but would love to take up the 14th Amendment argument with you some time. You clearly don't understand the the Amendment at all. Marriage isn't a law and therefor you are NOT entitled to it, whether straight or gay. States could say "no more state marriages " tomorrow and there isn't a damn thing you could do about it. 14th Amendment argument nullified.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Now I WILL say this. If a CHURCH were to wish to issue a marriage certificate to gays and a state told them they couldn't , they would absolutely positively be in violation of the 14th Amendment. BUT you do NOT have a right to a state certified marriage. Which is why the government should get out of marriage PERIOD.

 

[Truthmatters]

the majority of Americans now support gay marrige.

No civil unions but full on gay marriage.


You on the right are on the wrong side of history yet again.

 

[Quantum Windbag]

I think at the heart of the gay marriage debate is the idea that the judiciary exists to, in part, right legislative wrongs. Since the courts' job is to interpret the law against our constitution, many gay marriage supporters seem to have this idea that it's fine for them to sort of declare law when the legislative process gets it wrong.

The problem is, this is an egregious misuse of the U.S. legal system and undemocratically creates policy with no regard for checks and balances.

It's interesting that polling institutions and the media continue to conduct polls on gay marriage. We're way past a mere question of approval or disagreement. Well over half the country has amended their state constitutions to define marriage as the union of a man and a woman. Another third of the country has statutes that affirm the same thing. If gay marriage advocates get their way, and the Supreme Court finds a right to same-sex marriage, they would invalidate all these laws in one sweeping motion.

To give you some scope of how big that would be, I'll just say it's virtually unprecedented for the Supreme Court to invalidate the expressed will in 2/3 of the states. There is no parallel to it. None. It took a Civil War, three constitutional amendments, several landmark pieces of legislation and court decisions just to undo slavery and its vestiges. And this was over a group of people who, up until the mid-60s, had come from having few rights and no representation.

Compare that to the gay community who considers their struggles to be on par with that of blacks and it just doesn't add up.

My argument isn't that gays aren't important enough to obtain marriage rights or that they're defective. Though I'm personally against it, it's not because of personal feelings about the gay community and just not being convinced by their arguments nor their tactics in obtaining them. Rallying, petitioning their representatives, going on TV and radio campaigning for it is fine; legal bullying and trumping up erroneous lawsuits to overturn the expressed will of millions of voters (as the Prop 8 case illustrates) is wrong.

It's not so much that I think there's a perfect reason against it; I just think there's no compelling reason for it, and more importantly, there's no compelling argument that requires it.

That's the point. The people have the right to not engage in the gay marriage experiment if the potential outcome bothers them. Marriage has had many social functions across time and different cultures, but to my knowledge it has never been to create a distinctly separate class of person, especially regarding sexual proclivities.

I know some people believe that since there's an established "right to marry" -- and the obvious context being between a man and a woman, not some general definition that doesn't take the spouses into account -- gay marriage is just as much a right as, well, anything else. But it's truly not. No matter how supportive you are of the LGBT community, and how tolerant you want to be, you can't jeopardize people's freedom to decide which policies they want to enact in a free society for the mere notion of tolerance.

The judiciary does exist, in part, to right legislative wrongs. That is part of the constitutional checks and balances. When they go over the line is when they make policy instead of interpreting the law and telling the legislative branch that a law is simply not permitted under our Constitution. Some judges understand this, and some are activists. Don't throw out the baby with the bathwater here.

As far as same sex marriage goes, if to government steps on and issues licenses to regulate and guarantee certain legal rights to people in the guise of marriage, that right should be available to everyone. This will not stop the government from stepping in and taking away your rights when it has a mind to, but it will make it harder, and that alone is a good argument for allowing same sex marriage.

By the way, I should have responded to you first, but but Jones pissed me off when I read his post.

My apologies.

 

[TheBrain]

the majority of Americans now support gay marrige.

No civil unions but full on gay marriage.


You on the right are on the wrong side of history yet again.

First of all, you are wrong. The majority of Americans are obviously against gay marriage as witnessed by the fact that most states have in fact passed laws clarifying marriage as between a man and a woman.

Second off all, the majority does NOT get to run roughshod over the COTUS.

 

[Truthmatters]

that is why the republicans work so hard to keep legal American voters from voting.

They can cramm crap down peoples throats

 

[TheBrain]

that is why the republicans work so hard to keep legal American voters from voting.

They can cramm crap down peoples throats

Non responsive.

Not unexpected from an idiot like you.

 

[Truthmatters]

For First Time, Majority of Americans Favor Legal Gay Marriage

 

[Quantum Windbag]

the majority of Americans now support gay marrige.

No civil unions but full on gay marriage.


You on the right are on the wrong side of history yet again.

Hate to break it to you, but the right does not oppose SSM.

 

[Truthmatters]

The right has worked for decades to keep legal American voters from voting and its a court documented fact.

 

[TheBrain]

The right has worked for decades to keep legal American voters from voting and its a court documented fact.

Deflection that has nothing to do with this thread. Just more stupidity from you.

 

[Truthmatters]

the majority of Americans now support gay marrige.

No civil unions but full on gay marriage.


You on the right are on the wrong side of history yet again.

First of all, you are wrong. The majority of Americans are obviously against gay marriage as witnessed by the fact that most states have in fact passed laws clarifying marriage as between a man and a woman.

Second off all, the majority does NOT get to run roughshod over the COTUS.

Passing laws takes elections and when your elections are tampered with the laws passed dont reflect the publics will.


The republicans have tampered with elections for decades.


There is unrefutable court documented facts that proove this.

 

[Quantum Windbag]

The right has worked for decades to keep legal American voters from voting and its a court documented fact.

Do you realize we are not talking about voting here?

 

[C_Clayton_Jones]

I'm getting off here for a bit, but would love to take up the 14th Amendment argument with you some time.

Don’t take it up with me, take it up with the Court. Killing the messenger isn’t going to change the law.

Otherwise, to the authors of posts 4 and 5, you both failed to cite case law or other relevant references to support your positions. Consequently your responses are irrelevant option and as with the OP not in concert with Constitutional case law.

Should you elect to debate me, do so with facts of law, not unsupported opinion.

(hint: you’ll need to cite a Supreme Court case which overturns Lawrence, vacates Perry or Log Cabin Republicans v US. Good luck with that. )

 

[TheBrain]

the majority of Americans now support gay marrige.

No civil unions but full on gay marriage.


You on the right are on the wrong side of history yet again.

First of all, you are wrong. The majority of Americans are obviously against gay marriage as witnessed by the fact that most states have in fact passed laws clarifying marriage as between a man and a woman.

Second off all, the majority does NOT get to run roughshod over the COTUS.

Passing laws takes elections and when your elections are tampered with the laws passed dont reflect the publics will.


The republicans have tampered with elections for decades.


There is unrefutable court documented facts that proove this.

passing laws doesn't require an election you fool. We elect representatives who pass laws, but we in fact do not vote on those laws. We DO vote on state constitutional amendments , but not on laws.

Ignorant fuck.

 

[uscitizen]

It's just a matter of time.

Our grandchildren look back at this time and wonder WTF was wrong with us.

what grandchildren we will all be gay!

Tolerance at the cost of liberty? Man there is something messed up with that viewpoint.

 

[SGdsn]

First there is no such thing as ‘gay marriage advocates.’

Oh, come on. This is just being contrary and sounding idiotic while doing so.

We are all advocates of the Constitution, the 14th Amendment, and the Equal Protection Clause of that Amendment.

Well, you're advocates of whichever version of those things conveniently helps your argument. And then, even that's questionable since the only reason it's a constitutional debate is because gay rights lawyers and special interest groups haven't won at the ballot box.

If…the Supreme Court finds a right to same-sex marriage, they would invalidate all these laws in one sweeping motion.

As it should, since the laws of these states are in violation of the Constitution. Remember that we are a Republic, not a democracy; we are ruled by law, not men.

Oh, is that so? Who exactly comes up with the laws, then? And exactly how are those laws in violation of the constitution?

As Justice Jackson noted in West Virginia Board of Education vs. Barnette (1943):

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal Principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’

The purpose of the Bill of Rights, then, is to protect us from the tyranny of the majority.

Your position also does not comport to established Constitutional case law.

I would agree with that quote and I would point out that nowhere in the Bill of Rights does it say anything about gays or marriage. So apparently the question of how we define marriage wasn't meant to be immune to the vagaries of the electorate, right?

And actually, my position exactly comports with case law. Ever heard of Baker v. Nelson? A couple appealed to the MN Supreme Court, and then the SCOTUS, arguing that for a state to not recognize same-sex marriage ran afoul of the 9th and 14th amendment. The court (inclunding Thurgood Marshall, who had a broad view of the Equal Protection clause) unanimously dismissed the case "for want of a substantial federal question."

In Lawrence v Texas (2003), the Court struck down a Texas law that made criminal homosexual acts. The Court ruled that such laws violate the 14th Amendment’s Equal Protection Clause:

“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Two things: one, Lawrence had to do with privacy rights within an intimate relationship where the plaintiffs happened to be gay, and two, the argument that disagreement with gay marriage is just to antagonize homosexuals is only the purview of gay marriage proponents. Since we're talking about maintaining the composition of a legal marriage that we've always had, and not whether we should through homosexuals in jail because of something, Lawrence is irrelevant case law. It's not relevant just because it pertains to homosexuals and discrimination.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).

LAWRENCE V. TEXAS

Again: sodomy case law =/= marriage case law.

Laws or amendment to state constitutions clearly violate the Amendment and are illegal and un-Constitutional.

Wait a minute. Don't say they're "clearly illegal and unconstitutional" since up until seven years ago, no state recognized gay marriage, and since then, almost every state has maintained that definition.

I think part of the problem with this debate is proponents like to ignore the reality of the situation to argue the reality they wish existed.

This was acknowledged by the United States District Court for the Northern District of California in Perry et al v. Schwarzenegger et al, where the Judge Walker struck down as un-Constitutional the same-sex marriage ban in California known as ‘Prop 8.’

"The same-sex marriage ban in California known as 'Prop 8'? Dude, you think I haven't heard of Prop 8 or that case? I'd point out that Judge was overturned three different times by higher courts on procedural grounds, and is a gay judge who lives in San Francisco. It should come as no surprise that he found it unconstitutional.

Homosexuals are not to be ‘tolerated,’ they are citizens entitled to the same rights and privileges as any other American.

Okay, fine. They have the same right to marry someone of the opposite sex.