9th Circuit Assumes Legislative Power In Same Sex Marriage Case

[Skylar]

Gay marriage robs no one. As gays and lesbians marrying don't diminish or effect the rights of any straight couple who wish to be married. Its not like marriage is a finite resource, where some bright eyed young straight couple are going to be turned away at the court house on their wedding day because the gays 'got the last of the marriage'. There's enough for straights and gays.

You have no valid reason to deny gays and lesbians the right to marry. You just don't like it.

Too bad. Get used to the idea.

Gay marriage robs adoptable orphans of a mother and father. A combination that statistically produces the best adjusted kids.

When you say "Gay marriage robs no one.", you're pretending like kids don't exist in this conversation, right?

That assumes that every gay couple will adopt an orphan. Which isn't the case. And assumes that an orphan is statutorily due a mother and father. And that isn't the case either. And an orphan has neither a mother nor a father. Meaning that even in concept, your reasoning is gibberish. As how can they be robbed of something they don't have?

Your clutching at straws. You have no valid reason to deny gays and lesbians the right to marry. You just don't like gay marriage. And that's not good enough.

Also, the LGBT community at large robs adoptable orphans of sexual innocence when they get behind public sober lewd sex acts as a matter of cultural "pride" down public thoroughfares.

And what possible relevance does your argument have with gay marriage? If its legal or illegal, pride parades occur just the same. You're scrambling now, tossing up one red herring after another. And still have no valid reason to deny gays the right to marry.

 

[johnwk]

The 14th amendment mandates equal protection under the law.
.

What the 14th Amendment actually declares is:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Nothing in there about mandating “equal protection under the law”.

In fact, the 14th Amendment declares whatever laws are adopted by a state, the state may not deny to any person within its jurisdiction the equal protection of those laws. The amendment does not say that laws containing distinctions based upon sex are forbidden.

So, how does one conclude homosexual marriage is within the legislative intent of the 14th Amendment when the amendment sought to forbid a specific kind of state legislation ___ state legislation which made distinctions based upon race, color or previous condition of slavery, but not intended to apply at the voting booth?

Is it not a fact that the 15th Amendment was adopted to prohibit a new 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 gender, and in particularly females, were not yet included in the protection?

The argument that the 14th Amendment prohibits state discrimination based upon gender, becomes even weaker when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America decide to forbid gender discrimination [the discrimination mentioned by Ginsburg in the VMI case] but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”

If the 14th Amendment prohibited every kind of discrimination, which seems to be your notion, including discrimination based upon sex and forbids a state from making distinctions based upon sex when issuing a marriage license, then why were the above mentioned amendments added to the Constitution after the adoption of the 14th Amendment?

Finally, why would there have been a proposed and so-call equal rights amendment attempted to be added to the Constitution of the United States in the 1980’s to prohibit sex discrimination, which fell short of the required number of ratifying States, if the 14th Amendment already prohibited discrimination based upon sex?

Bottom line is, our judicial system is acting in rebellion to our written Constitution and the documented intentions and beliefs under which it was adopted. Indeed, our judges and Justices are acting as a sitting constitutional convention with ratifying powers so as to impose its own visions and court ordered social reforms, and does so without the peoples consent via Article V of our Constitution being applied.

If the supporters of homosexual “marriage” believe in our Constitutional system and the rule of law as opposed to embracing judicial tyranny, they would be advocating the adoption of an amendment to our Constitution such as:


No state shall make distinctions based upon sex when issuing a state marriage license nor deny the equal protection of its laws within its jurisdiction to married couples.


Do you object to the constitutional manner to resolve the issue which is by a constitutional amendment?

JWK



When will the America People realize we have a Muslim terrorist enabler in the Whitehouse? Will they come to this conclusion when terrorist activities begin in our southern Border States or cities like New York City?

 

[Skylar]

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Nothing in there about mandating “equal protection under the law”.

The distinction you seem to be drawing between 'equal protection under the law' and 'equal protection of the law'....isn't.

In fact, the 14th Amendment declares whatever laws are adopted by a state, the state may not deny to any person within its jurisdiction the equal protection of those laws. The amendment does not say that laws containing distinctions based upon sex are forbidden.

The right to marry is part of those 'privileges and immunities' that are articulated in the 14th amendment. And since the State has no valid reason to deny gays and lesbians the right to marry, they are arbitrarily abrogating fundamental rights. And as such, gays and lesbians are not receiving 'equal protection of the law' in the states with such bans.

Again, there's a reason why you're on one side of this issue....and virtually the entire federal judiciary is on the other.

The argument that the 14th Amendment prohibits state discrimination based upon gender, becomes even weaker when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America decide to forbid gender discrimination [the discrimination mentioned by Ginsburg in the VMI case] but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”

Check out Romer V. Evans on whether or not gays can be protected from discrimination. It was written by Kennedy.....the swing voter of the USSC. You know, the guy who wrote the Windsor ruling that struck down portions of DOMA. He most definitely recognizes gays and lesbians as protectable. And recognizes no 'forbidding of new kinds of discrimination' in the 19th amendment. Most likely because the 19th amendment has no such prohibition:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

The 19th Amendment

Now what is the likelihood that Justice Kennedy is going to ignore his own ruling in Romer V. Evans on whether or not gays can be protected and instead abide a non-existent prohibition you made up in the 19th amendment?

I'd say the odds are slim.

If the 14th Amendment prohibited every kind of discrimination, which seems to be your notion, including discrimination based upon sex and forbids a state from making distinctions based upon sex when issuing a marriage license, then why were the above mentioned amendments added to the Constitution after the adoption of the 14th Amendment?

The 14th amendment prevents the abrogation of rights by the states. Marriage is a right. And if the States want to deny it to an individual, they need a good reason.

They don't have one. Which is why the State attempts to deny marriage equality keep failing. The arbitrary denial of rights of a minority group by the States violates the equal protection clause.

Bottom line is, our judicial system is acting in rebellion to our written Constitution and the documented intentions and beliefs under which it was adopted. Indeed, our judges and Justices are acting as a sitting constitutional convention with ratifying powers so as to impose its own visions and court ordered social reforms, and does so without the peoples consent via Article V of our Constitution being applied.

More accurately, you don't understand what the 14th amendment is or does. And didn't even know its purpose to apply the bill of rights to the States until I told you. Given that you don't know what you're talking about, the courts failure to abide whatever you imagine isn't a 'rebellion against our written constitution'. But instead, the protections of rights of the individual from arbitrary abrogation by the States for no particular reason and for no valid purpose.

Which is exactly what they are supposed to do. The assessment of legislation against the constitution is one of the many purposes of the judiciary. And the protection of rights from arbitrary violation by the States is one of the many purposes of the 14th amendment.

 

[johnwk]

More accurately, you don't understand what the 14th amendment is or does. And didn't even know its purpose to apply the bill of rights to the States until I told you. .

So now you are projecting your opinions instead of establishing them as fact. I purposely ignored your absurd assertion that the intention of the 14th Amendment was to enforce the first ten amendments to our federal constitution on the states. I didn’t want to embarrass you.

Let me assure you the idea that the 14th Amendment was adopted to grant power to the federal government to enforce the first ten amendments of the federal Constitution upon the states is not what was understood by the 39th Congress when approving the amendment. There are a couple of quotes made by Bingham which were not made during the debates which have been dishonestly used by our progressive crowd to create the “incorporation myth and ruse”.

As to Bingham keep in mind one of his most often used quotes was made years after the debates which framed the 14th Amendment, and years after the 14th Amendment’s ratification, and his feelings or intentions regarding the eight articles of the federal Bill of Rights becoming limitations upon the power of the States under the Fourteenth Amendment, are not only irrelevant under the rules of Constitution construction, but they did not form an approving consensus among other members of Congress during the debates. And why should they when the very same rights were already protected under the various State Constitutions, but in some states they were not extended to Blacks because of “Black Code Laws“, which the Civil Rights Act of 1866 and the language of the Fourteenth Amendment, were both intended to put an end to.

As a matter of fact, the language of the 14th Amendment was far more encompassing than the mere eight articles mentioned by Bingham in 1871…the 14th Amendment extended the protection to all “privileges and immunities” as adopted under each state’s law, which preserved federalism [each state’s reserved power to create its own privileges and immunities] while putting to rest state legislation based upon race, color or previous condition of slavery. This was the narrow objective of both the Civil Rights act and the 14th Amendment which is confirmed from a preponderance of evidence taken from the debates of the 39th Congress.

Heck, Bingham himself acknowledged his objective was not to overturn federalism, powers “reserved” by the States. His clear objective was “that there shall be no discrimination between Citizens on account of race or color in civil rights or in the penalties prescribed by their laws.”

Justice Bradley also pointed out the objectives to be accomplished in the Civil Rights Cases, 109 U.S. 3, 22 1883. The Civil Rights Act was intended to protect “those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue . . . to inherit, purchase …property as is enjoyed by white citizens …Congress did not assume … to adjust what may be called the social rights of men … but only to declare and vindicate these fundamental rights.”

Even in a dissenting opinion in IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872), Justice Field establishes the connection between the Civil Rights Act and the 14th Amendment’s intent to incorporate the Civil Rights Act’s objectives into the Constitution. Not the Bill of Rights!


What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right 'to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.' That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.

The fact is, even Bingham, who is repeatedly mentioned by those who want federal judges to have the power to enforce the federal Bill of Rights upon the states, emphasized “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” See Cong. Globe page 1292

Bingham goes on to say:

"I have always believed that the protection in time of peace within the States of all the rights of person and citizen was of the powers reserved to the States. And so I still believe.
Now, what does this bill propose? To reform the whole civil and criminal code of every State`s government by declaring that there shall be no discrimination between Citizens on account of race or color in civil rights or in the penalties prescribed by their laws". See Cong. Globe page 1293

These comments by Bingham made during the 39th Congressional debates are also in harmony with another supporter of the 14th Amendment:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shellabarger, Congressional Globe, 1866, page 1293

It should further be noted that if the legislative intent of the 14th Amendment was to make the federal “Bill of Rights” enforceable upon the States by Congress and federal judges, the sitting Congress after the Amendment was adopted was unaware of such intention or they were derelict in their duties as there was no mention of this in the enforcement Acts Congress passed just after the 14th Amendment was adopted!

Likewise the Supreme court was also ignorant of the alleged intention of the 14th Amendment making the federal Bill of Rights enforceable upon the states. Several months after the 14th Amendment was adopted the S.C. decided Twitchell v. Pennsylvania (1869). Twitchell was convicted of murder which his lawyer appealed to the S. C. claiming the conviction relied upon violations of the Fifth and Sixth Amendments. The Court rejected the appeal by emphasizing the federal Bill of Rights only applied to the federal government and not the States. Did someone forget to tell the Supreme Court Justices that the 14th Amendment made the Fifth and Sixth Amendments enforceable upon the States?

And why would Congress debate and attempt to pass a constitutional amendment, The Blaine Amendment in 1876, making the First Amendment’s religious prohibition enforceable upon the States if the 14th Amendment already made the First Amendment enforceable upon the States?

The Blaine Amendment read:

No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The fact is, when one takes the time to review the entire historical record, especially the debates of the 39th Congress, as I have done, there are but a few references which suggest the federal Bill of Rights being ought to be enforceable upon the States. But a general support to do so was never even discussed! Instead, the consensus was, via the 14th Amendment, to first make Blacks Citizens of the united states and of the State wherein they resided, and then to forbid every State to make or enforce any law which abridged its recognized privileges or immunities based upon race or color, or deprive any “Citizen” or any person of life, liberty, or property, without due process under state law; nor allow any State to deny to any person within its jurisdiction the equal protection of its State’s laws, which included a State‘s Bill of Rights.

In fact, whatever a state’s Bill of Rights, or its Declaration of Rights was, the 14th Amendment was intended to make those rights [not the federal bill of rights] equally applicable to Blacks as they were to Whites! This was the narrow objective of the 14th Amendment.

Hopefully you have just learned the true intentions and beliefs under which the 14th Amendment was adopted.

JWK

…..we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be…The wisdom of Congress' action, however, is not within our province to second guess.
_________ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003)

 

[Silhouette]

Good post JWK. I know for a fact that sodomy was not guaranteed any special rights or priveleges. Nor was the behavior of wanting to marry the same gender.

There is no argument at all that a state's citizens have the right to sovereignty and to define all local laws and customs for themselves with respect to human BEHAVIORS. Otherwise where would we begin and end when a set of behaviors suddenly gained federal protection? If a behavior is repugnant to the majority, and the majority is hog tied with respect to regulating that repugnant behavior...as they are as of this writing courtesy of the SCOTUS and the courts under it in the federal system...you have what is nothing more or less than sedition and the violation of the core principles of a democracy. You have a oligarchy dictating laws to a majority.

And...How could you deny other behaviors repugnant to the majority? Any such attempt would be arbitrary and discriminatory towards that new behavioral applicant. You could try to say "but behavior "x" is rejected by the majority of citizens. And the retort would be "so was gay marriage/adoption/polygamy". And you'd be saying then...er...um...eh....uh....hmmmm.....

And THAT is DEFINITELY not what the Bill of Rights nor the Constitution were designed to foster at any point in American history. The Constitution is a living document. But it isn't alive in order to commit suicide...

 

[Skylar]

So now you are projecting your opinions instead of establishing them as fact.

So you're gonna keep pretending that Senator Jacob Howard never existed? Or that his position that there was no power given in the constitution to guarentee rights against violation by the States?

Um, wow. For those not inclined to engage in hysterical blindness when reviewing the historical record, I again offer the introduction of the 14th amendment on the Senate floor by Senator Jacob Howard.

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the
Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of
decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are se
cured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers,
but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced inthem except by their own local constitutions, whichmay be altered from year to year. 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. . . . This is done by the
fifth section of this amendment, which declares that "the Congress shall have power to enforce by appropriate legislation the provisions of this article." Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.

SENATOR JACOB HOWARD, SPEECH
INTRODUCING THE FOURTEENTH AMENDMENT

Speech delivered in the U.S. Senate, May 23, 1866

http://www.yale.edu/lawweb/jbalkin/conlaw/senatorhowardspeechonthefourteenthamendment.pdf

And he makes it beyond clear that one of the purposes of the 14th amendment was to apply the rights guaranteed by the constitution to the States And you ignore him entirely. Never once making a single reference to Howard, addressing any comment he made on the Senate floor, or acknowledging the senator even existed.

Sigh...if only reality worked that way.

I purposely ignored your absurd assertion that the intention of the 14th Amendment was to enforce the first ten amendments to our federal constitution on the states. I didn’t want to embarrass you.

Uh-huh. Oddly, that's not what you said before:

14th amendment, per its advocates at the time of its passage, was to extend the Bill of Rights to the States.

I see you have a very active imagination.

Keep backpedalling. As I said...what you call 'imagination', I call being informed.

As to Bingham keep in mind one of his most often used quotes was made years after the debates which framed the 14th Amendment, and years after the 14th Amendment’s ratification, and his feelings or intentions regarding the eight articles of the federal Bill of Rights becoming limitations upon the power of the States under the Fourteenth Amendment, are not only irrelevant under the rules of Constitution construction, but they did not form an approving consensus among other members of Congress during the debates. And why should they when the very same rights were already protected under the various State Constitutions, but in some states they were not extended to Blacks because of “Black Code Laws“, which the Civil Rights Act of 1866 and the language of the Fourteenth Amendment, were both intended to put an end to.

You seem confused. I quoted Senator Jacob Howard. Which, of course, you know. And Senator Howards statements weren't made years after the amendment. They were the introduction of the 14th amendment on the Senate floor. Yet in your entire reply, you won't speak of Howard. You won't address anything Howard said. You won't acknowledge Howard even existed and dismiss any mention of him as mere opinion and imagination.

Do you really think the man magically disappears just because he's inconvenient to your argument?

Alas, he was an US Senator and one of the writers of the 14th amendment. And his statements utterly obliterate your denials of the purpose of the 14th amendment.

Keep running.

 

[Skylar]

I know for a fact that sodomy was not guaranteed any special rights or priveleges. Nor was the behavior of wanting to marry the same gender.

You too seem a little confused. Its the right to marry gays and lesbians are fighting for. And overwhelmingly winning. Marriage is a recognized right by the USSC. And if you're going to deny gays and lesbians the right to marry, you'll need a good reason.

You don't have one. And that's why you fail.

There is no argument at all that a state's citizens have the right to sovereignty and to define all local laws and customs for themselves with respect to human BEHAVIORS.

As this thread demonstrates quote elegantly, there's very much debate on the topic. As the courts decisions overturning gay marriage bans again and again and again in State after State demonstrates, there's very much debate on the topic. Pretending otherwise really doesn't bolster your claims.

The State lacks the sovereign authority to arbitrarily strip its citizens of rights. And any law that a State passes that denies rights to individuals must have a very, very good reason in doing so.

And gay marriage ban advocates have none for denying gays and lesbians the right to marry. Which is why they keep losing.

If a behavior is repugnant to the majority, and the majority is hog tied with respect to regulating that repugnant behavior...as they are as of this writing courtesy of the SCOTUS and the courts under it in the federal system...you have what is nothing more or less than sedition and the violation of the core principles of a democracy.

Religion is a behavior. Speech is a behavior. Assembly is a behavior. And they're also rights. You can't strip people of their rights just because you find the exercise of their rights repugnant. We're a republic. And in that republic rights trump powers. The state does not have the power to abrogate the rights of the individual. Marriage is a right. And if you're going to deny that right to an individual, you need a very, very good reason. The state has none. Thus, any denial of the right to marry is an abrogation of that right. And violates the constitution.

And much like 'fascism', you haven't the slightest clue what 'sedition' means. You're just using it as a generic pejorative because it sounds dramatic.

 

[Silhouette]

Religion is a behavior. Speech is a behavior. Assembly is a behavior. And they're also rights. You can't strip people of their rights just because you find the exercise of their rights repugnant. We're a republic. And in that republic rights trump powers. The state does not have the power to abrogate the rights of the individual. Marriage is a right. And if you're going to deny that right to an individual, you need a very, very good reason. The state has none. Thus, any denial of the right to marry is an abrogation of that right. And violates the constitution.

Marriage involves more than just adults. In involves children too. And marriage is the bedrock of how a society views itself and how grows, where it's going and what future generations inherit. Marriage is an action, not a state of being. And so as a behavior/action, it is regulated by the majority.

Religion and speech and assembly are all behaviors mentioned in the constitution. We all agreed they were a good idea so we put them in there specifically. Again, if we didn't agree on that, they wouldn't be in the constitution. Many other behaviors are not mentioned as guaranteed in the constitution. Marriage is not. Neither are many other human institutions involving qualifiers and behaviors.

Blind people cannot drive. People of the same gender or more than two people may not marry. The majority said so. The majority said so because it wants control over the institution that involves children and is the bedrock of itself. The majority wants to determine its own collective destiny with regards to marriage. We don't want polygamy. We don't want people of the same gender posing as "mom and dad". We don't want this because we can see into the future, extrapolating what normalizing polygamy and so-called "gay marriage" means to all of us, collectively. We understand that children do best with a mother and father. Just one of each. That other situations that are unfortunate fall short. But the icon we want to incentivize for the sake of children/our future selves/society is one where there is one man and one woman.

That is what We have said. As a majority-ruling society when it comes to behaviors.

 

[Skylar]

Marriage involves more than just adults. In involves children too. And marriage is the bedrock of how a society views itself and how grows, where it's going and what future generations inherit. Marriage is an action, not a state of being. And so as a behavior/action, it is regulated by the majority.

It can involve children. Or it may not. No one is required to have children or be able to have children to be able to get married. You're making up a legal requirement that doesn't exist and then are applying it only to gay and lesbians.

That's an obvious equal protection problem, bud. Your reasoning doesn't work. Which is why virtually every federal court to hear such arguments have rejected them as pseudo-legal gibberish.

Religion and speech and assembly are all behaviors mentioned in the constitution. We all agreed they were a good idea so we put them in there specifically. Again, if we didn't agree on that, they wouldn't be in the constitution. Many other behaviors are not mentioned as guaranteed in the constitution. Marriage is not. Neither are many other human institutions involving qualifiers and behaviors.

Behavior was your standard, Silo. And now that it doesn't work for you, you're abandoning it. Which again demonstrates how little value your argument had to begin with.

As far as 'behaviors mentioned in the constitution', check the constitution. Specifically the 9th amendment. Specifically the part about unemumerated rights. Rights aren't exhaustive. The Bill of Rights doesn't create them. It only enumerates some of them. And there are others that are reserved by the people and are unenumerated.

Marriage is such an unemumerated right. As such, if you're going to deny someone that right, you'll need a really good reason. And you don't have one. Making up non-existent requirements that apply to no one, then applying them only to gays isn't a valid reason. Its yet another equal protection clause. Either such requirements apply to everyone, or no one. And under our laws, the requirements you've imagined don't exist and apply to no one.

Without a valid reason, you're arbitrarily stripping people of their rights. And that's also an equal protection violation. Making any such laws unconstitutional and unenforceable. As the courts have found again and again and again.

Blind people cannot drive. People of the same gender or more than two people may not marry.

Blind people can't meet the requirements of driving. There is no requirement of marriage that gays and lesbians can't meet. Ending your argument yet again.

What else have you got?

The majority said so.

The majority lacks the authority to abrogate rights. Your rights can't just be voted away. What you're describing was abhorrent to the founders, and one of their greatest fears in fashioning the government. They called it the 'tyranny of the majority'. And its why they didn't establish a democracy. But a republic. The republic was bound by the rights of the people, lacking the authority to abrogate them.

And marriage is a right. You can not arbitrarily and capriciously deny it to gays and lesbians because you find them repugnant. They're people and citizens just like you. And they have all the rights and privileges you do. Including the right to marry.

 

[Silhouette]

Blind people cannot drive. People of the same gender or more than two people may not marry.

Blind people can't meet the requirements of driving. There is no requirement of marriage that gays and lesbians can't meet. Ending your argument yet again.

...And marriage is a right. .

There is a requirement that same gendered people don't meet. That is the laws that say marriage is only between a man and a woman. Driving is only for the sighted. Just because you want to change a law doesn't mean you get to.

Marriage is only to be enjoyed between men and women. Feel free. Otherwise who you choose to have sex with may hamper that right if you try to "drive while blind"..

Just do what Anne Heche did. She got legally married. She chose to be with a man after healing from old childhood wounds.

 

[Skylar]

There is a requirement that same gendered people don't meet. That is the laws that say marriage is only between a man and a woman. Driving is only for the sighted. Just because you want to change a law doesn't mean you get to.

There's nothing inherent to marriage that requires such discrimination. You have no reason for the definition that you've chosen save that it exists. And pointless discrimination isn't justified because it exists. Or has existed. You need a good reason to deny gays and lesbians the right to marry.

And you have none.

Every straight couple that was married before the recognition of gay marriage will be just as married as the day after. You'll lose no rights. Nor is marriage an exhaustive resource. There's plenty for the gays and the straights. Nothing is being taken from you, none of your rights are violated by failing to violating theirs.

 

[johnwk]

So now you are projecting your opinions instead of establishing them as fact.

So you're gonna keep pretending that Senator Jacob Howard never existed? Or that his position that there was no power given in the constitution to guarentee rights against violation by the States?
.

You are very much confused about Senator Howard's comments. There is nothing in his comments that he specifically intended by the 14th Amendment to make the first ten amendments to our federal Constitution enforceable upon the States. His remarks were a generalized expression that rights, e.g., those protected by “local constitutions” ought to be protected. He states: ” 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. . . .”

And how does the 14th Amendment guaranteed rights contained in State Constitutions? Perhaps you should read the 14th Amendment to discover how.

In fact, the very intentions of the 14th Amendment was to make Blacks Citizens of the united states and of the State wherein they resided, and then forbidding every State to make or enforce any law which abridged its recognized privileges or immunities, or deprive any “Citizen” or any person of life, liberty, or property, without due process under state law; nor allow any State to deny to any person within its jurisdiction the equal protection of its State’s laws, which included a State‘s Bill of Rights.

In fact, whatever a state’s Bill of Rights was, the 14th Amendment was intended to make those rights [not the federal bill of rights] equally applicable to Blacks as they were to Whites! But keep in mind the 14th Amendment was not intended to create any new privileges or immunities under a state’s laws, nor create any new due process of law, and this is summed up by Rep. Shellabarger in the following words:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Rep. Shellabarger, Cong. Globe, 1866, page 1293

The fact is, even Bingham, who is repeatedly mentioned by those who want federal judges to have the power to enforce the federal Bill of Rights upon the states, emphasized “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” See Cong. Globe page 1292

Bingham goes on to say:

I have always believed that the protection in time of peace within the States of all the rights of person and citizen was of the powers reserved to the States. And so I still believe.
Now, what does this bill propose? To reform the whole civil and criminal code of every State`s government by declaring that there shall be no discrimination between Citizens on account of race or color in civil rights or in the penalties prescribed by their laws. See Cong. Globe page 1293

Fact is, even Bingham, who authored the 14th Amendment, eventually acknowledged his objective was not to overturn federalism___ powers “reserved” by the States. His clear objective was “that there shall be no discrimination between Citizens on account of race or color in civil rights or in the penalties prescribed by their [a State’s] laws.”

Whatever the laws are in a particular state, they shall apply equally, without respect to race, color or previous condition of slavery. This is what the overwhelming consensus was when adopting the 14th Amendment and it had nothing to do with granting a power to federal judges to “interpret” the federal bill of rights and then impose their “interpretation” of the federal bill of rights upon the entire population of the united States and thereby create an absolute power unto itself.

The fact is, the federal bill of rights is intended to be restrictions placed upon the federal government, and not intended to be a legal path allowing the federal government to enter the states and dictate upon objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. ___ Federalist No. 45


The notion that the 14th Amendment was intended to grant power to federal judges to enforce the federal bill of rights upon the states is one of the biggest myths created by progressives in order to use federal judges to impose their ideas of social justice and social reform upon the entire population of the united States.

Hopefully the above has been helpful to you in defending our constitutionally limited system of government.

JWK



"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

 

[Skylar]

You are very much confused about Senator Howard's comments. There is nothing in his comments that he specifically intended by the 14th Amendment to make the first ten amendments to our federal Constitution enforceable upon the States. His remarks were a generalized expression that rights, e.g., those protected by “local constitutions” ought to be protected. He states: ” 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. . . .”

Um, wow. The 'fundamental guarantees' he's refering to are the first 8 amendments of the BIll of Rights that he'd *just* read. Excepts from the constitution that he'd just read.

"Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution;"

Senator Jacob Howard

He recited the first 8 amendments to Bill of Rights and portions of the Constituion, but he NOT talking about the Bill of Rights and the Constitution?

Did you not see the above passage? It was was the very first sentence of the quote I gave you and you completely missed it. You're not very good at this.

And how does the 14th Amendment guaranteed rights contained in State Constitutions? Perhaps you should read the 14th Amendment to discover how.

Again, for the cheap seats, Howard is referring to the guarentees of the US Constitution.

and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are se cured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Senator Jacob Howard

Unless you're arguing that States aren't effected by State constitutions, your entire argument is a laughably pile of meaningless nonsense. Howard is referring to the immunities, privileges, rights, guaranteed by the Constitution as demonstrated by his statement ' all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it'. You know, from the US constitution and first 8 amendments of the BIll of rights he'd JUST READ.

But you're still going to arguing that Howard was referring to the State constitutions when he cites 'all these immunities, privileges, rights, thus guarantied'? Laughing....good luck with that.

Howard lays out in no uncertain terms that the States are unrestrained by the US constitution and can violate these rights, immunities and privileges:

but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year.

Senator Jacob Howard

The guarantees being violated are those of the US constitution. And the violators.....are the States. Exactly the opposite of what you're claiming he said. And its not like his words magically change or none of us can read them just because they utterly obliterate your argument.

You simply have no idea what you're talking about.

 

[dcraelin]

For the second time, how about explaining what you think the 14th Amendment was intended to accomplish.

Let me restate my position, this time without the typo:
The purpose of the 14th amendment, per its advocates at the time of its passage, was to extend the Bill of Rights to the States.

Actually the courts case history after the passage of the 14th points in just the opposite direction........that it WAS NOT meant to pass the bill of rights on. and that was the court nearest to passage.

 

[Skylar]

Actually the courts case history after the passage of the 14th points in just the opposite direction........that it WAS NOT meant to pass the bill of rights on. and that was the court nearest to passage.

Oh, in the cases after certainly. It was quite a while until selective incorporation of the Bill of Rights to the States. Even in Cruikshank a decade later, the courts still didn't recognize the 1st or 2nd amendment applying to State governments. Most of the incorporation was done under the court of Hugo Black in the 40s. Though there were earlier cases like Gitlow V. New York in the 20s in which the first amendment was extended to the States. There was also a Chicago case at the turn of the century (the name of which I can't remember) that the USSC used to apply 'just compensation' provisions of the Bill of Rights to the States.

Senator Jacob Howard, however, makes it pretty obvious that's what the 14th was intended to do, even going so far as to read the first 8 amendments from the Bill of Rights as examples of the 'privileges, immunities and guarantees' he was referring to that the States could violate. Violations the 14th amendment would empowered the federal government to stop.

This on the Senate Floor while introducing the 14th Amendment to the Senate.

 

[dcraelin]

Actually the courts case history after the passage of the 14th points in just the opposite direction........that it WAS NOT meant to pass the bill of rights on. and that was the court nearest to passage.

Oh, in the cases after certainly. It was quite a while until selective incorporation of the Bill of Rights to the States. Even in Cruikshank a decade later, the courts still didn't recognize the 1st or 2nd amendment applying to State governments. Most of the incorporation was done under the court of Hugo Black in the 40s. Though there were earlier cases like Gitlow V. New York in the 20s in which the first amendment was extended to the States. There was also a Chicago case at the turn of the century (the name of which I can't remember) that the USSC used to apply 'just compensation' provisions of the Bill of Rights to the States.
Senator Jacob Howard, however, makes it pretty obvious that's what the 14th was intended to do, even going so far as to read the first 8 amendments from the Bill of Rights as examples of the 'privileges, immunities and guarantees' he was referring to that the States could violate. Violations the 14th amendment would empowered the federal government to stop.
This on the Senate Floor while introducing the 14th Amendment to the Senate.

Well the courts didnt see it your way that is for sure. The states generally have Bills of Rights that mimic the federal bill of rights....his reading could just be seen as referring to general bills of rights.

 

[Katzndogz]

The 9th isn't called the 9th Circus for nothing.

 

[Skylar]

Actually the courts case history after the passage of the 14th points in just the opposite direction........that it WAS NOT meant to pass the bill of rights on. and that was the court nearest to passage.

Oh, in the cases after certainly. It was quite a while until selective incorporation of the Bill of Rights to the States. Even in Cruikshank a decade later, the courts still didn't recognize the 1st or 2nd amendment applying to State governments. Most of the incorporation was done under the court of Hugo Black in the 40s. Though there were earlier cases like Gitlow V. New York in the 20s in which the first amendment was extended to the States. There was also a Chicago case at the turn of the century (the name of which I can't remember) that the USSC used to apply 'just compensation' provisions of the Bill of Rights to the States.
Senator Jacob Howard, however, makes it pretty obvious that's what the 14th was intended to do, even going so far as to read the first 8 amendments from the Bill of Rights as examples of the 'privileges, immunities and guarantees' he was referring to that the States could violate. Violations the 14th amendment would empowered the federal government to stop.
This on the Senate Floor while introducing the 14th Amendment to the Senate.

Well the courts didnt see it your way that is for sure.

Sure they did. Just not until about 1897. And I think that Howard, speaking to the Senate on the Amendment is a superb source on what the amendment was intended to do. He helped write it, after all.

How much weight the courts put on his words is theirs to interpret. But I'd argue that no one trying to glean what its writers intended would be obligated to ignore Howard just because the courts before 1897 did.

The states generally have Bills of Rights that mimic the federal bill of rights....his reading could just be seen as referring to general bills of rights.

It really can't. Here are his words:

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution;

Senator Jacob Howard

There's no rationally plausible reading of that passage that would conclude that Howard is talking about State Constitutions and State Bill of Rights. He's obviously talking about the US Constitution and the first 8 amendments to the US Constitution.

1) Because he said so.

2) Because his reading matches the US constitution and US Bill of Rights exactly, word for word.

And it gets even worse:

and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Unless State legislatures are completely uneffected and unrestricted by their own State constitution, your entire alternate reading falls apart.

Howard is obviously taking about the US Constitution. And he's obviously talking about all these immunities, privileges, and rights guaranteed by the Constitution or recognized by it. You can tell when he says "all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it".

Which Howard then sums up in a statement as blunt and plain as 1866 could produce:

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

The fundamental guarantees....being those he recited from the Constitution and the first 8 amendments to the Constitution.

 

[Silhouette]

There's nothing inherent to marriage that requires such discrimination. You have no reason for the definition that you've chosen save that it exists. And pointless discrimination isn't justified because it exists. Or has existed. You need a good reason to deny gays and lesbians the right to marry.

And you have none.

Every straight couple that was married before the recognition of gay marriage will be just as married as the day after. You'll lose no rights. Nor is marriage an exhaustive resource. There's plenty for the gays and the straights. Nothing is being taken from you, none of your rights are violated by failing to violating theirs.

YES THERE IS. THEY ARE CALLED CHILDREN.

And once again we observe not just the forgetfulness, but the hubris in yet another LGBT devotee who gives the most important people integral to marriage a complete pass in the conversation..

Marriage is and was primarily established for the benefit of children, their financial, physical, emotional and overall wellbeing. They are not a peripheral or non-topic when it comes to marriage. Though I'll admit gays do find their audience "titillating" when engaged in displays of "pride" down main street. Harvey Milk "enjoyed" his boy-wards too in similar fashion...

 

[dcraelin]

Actually the courts case history after the passage of the 14th points in just the opposite direction........that it WAS NOT meant to pass the bill of rights on. and that was the court nearest to passage.

Oh, in the cases after certainly. It was quite a while until selective incorporation of the Bill of Rights to the States. Even in Cruikshank a decade later, the courts still didn't recognize the 1st or 2nd amendment applying to State governments. Most of the incorporation was done under the court of Hugo Black in the 40s. Though there were earlier cases like Gitlow V. New York in the 20s in which the first amendment was extended to the States. There was also a Chicago case at the turn of the century (the name of which I can't remember) that the USSC used to apply 'just compensation' provisions of the Bill of Rights to the States.
Senator Jacob Howard, however, makes it pretty obvious that's what the 14th was intended to do, even going so far as to read the first 8 amendments from the Bill of Rights as examples of the 'privileges, immunities and guarantees' he was referring to that the States could violate. Violations the 14th amendment would empowered the federal government to stop.
This on the Senate Floor while introducing the 14th Amendment to the Senate.

Well the courts didnt see it your way that is for sure.

Sure they did. Just not until about 1897. And I think that Howard, speaking to the Senate on the Amendment is a superb source on what the amendment was intended to do. He helped write it, after all.

How much weight the courts put on his words is theirs to interpret. But I'd argue that no one trying to glean what its writers intended would be obligated to ignore Howard just because the courts before 1897 did.

The states generally have Bills of Rights that mimic the federal bill of rights....his reading could just be seen as referring to general bills of rights.

It really can't. Here are his words:

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution;

Senator Jacob Howard

There's no rationally plausible reading of that passage that would conclude that Howard is talking about State Constitutions and State Bill of Rights. He's obviously talking about the US Constitution and the first 8 amendments to the US Constitution.

1) Because he said so.

2) Because his reading matches the US constitution and US Bill of Rights exactly, word for word.

And it gets even worse:

and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

Unless State legislatures are completely uneffected and unrestricted by their own State constitution, your entire alternate reading falls apart.

Howard is obviously taking about the US Constitution. And he's obviously talking about all these immunities, privileges, and rights guaranteed by the Constitution or recognized by it. You can tell when he says "all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it".
Which Howard then sums up in a statement as blunt and plain as 1866 could produce:

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

The fundamental guarantees....being those he recited from the Constitution and the first 8 amendments to the Constitution.

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.