August 5, 2010
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Gay Judge Overturns Gay Marriage Ban
You probably know that a judge overturned the law banning gay marriage in California.
The people of California voted to ban gay marriage.
What you may not know is that the judge who overturned the gay marriage ban is in fact gay. Here is the link: Link
Do you think it is right for a gay judge to overturn the will of the people?
Comments (133)
Oooh, this is getting sexy.
Theo, the picture? Come on, man…. surely, you’re better than that.
The people of the south voted to ban the abolition of Jim Crow laws.
So?
Self hate is the worst kind of hate.
@cmclymer - I would have thought so too.
When the people are blindly bigoted, yes.
Yes.
The masses are asses.
In the eyes of the law, there are not “gay judges” any more than there are “straight judges.”
Heehee that picture is pretty funny. I saw how the judge is gay. His legal reasoning will be reviewed in appeal, probably by some more gay judges on the 9th Circuit. But then the very straight John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito will have a look.
@barefoot_nomad - There are judges who are gay and judges who are straight but we all know judges allow their personal feelings to affect their decisions on both sides of every issue.
The will of the people? Those people need to mind their own business because it doesn’t affect them if someone gets married or not.
hmm, the voters were biased, but so is the judge. this ruling is going to be overturned.
as for my position? I don’t think we should be able to vote on things like this, no matter whether you agree with homosexuality or not.
yes, but I can tell you don’t.
The law isn’t for the many to fuck over the few.
Many of the people who voted for it were confused or scared because of harsh tactics used by proponents of prop 8. So I could care less if the judge was gay or not and may have used bias (believe it or not but there are people who are good at not letting their own bias affect their decisions). If the people really don’t want this overturned, then we’ll see another prop 8 and people will vote on it. And if it really does violate California’s state constitution or even the federal constitution, then it should be overturned.
@HappyLemming - True. And reminiscent of Star Trek.
Even though he is gay, the court document is very powerful and not biased. It’s 138 pages, but it’s a page-turner. The fact it got voted on to begin with violates the constitution (14th amendment), and the content of the law is also against the 14th.
Once upon a time the majority did not want interracial marriage, was democracy right when that was happening? No.
It is right for a judge to overturn the will of the people when the people are wrong. The people are wrong because the proposition is unconstitutional and the court document describes beautifully why it is. Anyone who thinks otherwise either does not believe in the constitution or does not care about everything is has to say when they have a particular interest to an issue.
@ForeverLove_xx - Then they shouldnt have asked the people to vote for it in the first fucking place.. It should have never been an issue.
Yes I do. Because men and women decide divorce cases all the time. Judges are called upon to be impartial, and I believe from experience that by and large they are so.
@MomGoneMadd - Welcome to referendums. Not every state has them. So it’s not “asking” the people to vote for it, when the people call to put it on the ballot in the first place.
Legislating from the bench is wrong. Laws are created be elected legislators and voting. Now one single person has the power to overturn a law? This is just as wrong as the judge in Arizona who made a political decision on SB 1070.
Both cases will be appealed and taken to the Supreme Court, who will review the law and make decisions based on law, not political or personal preferences.
I don’t think it’s okay for the will of the people to infringe upon the rights of others, so regardless of his sexual orientation, the judge was correct.
If a straight or bisexual judge had overturned the ruling, would it have been more “fair”?
“Many of the people who voted for it were confused or scared because of harsh tactics used by proponents of prop 8″
buulllllll shiiiiiiit. they knew exactly what they were voting for. Their votes dont mean dick. it’s the special interest groups and fucking MTV telling you that. BTW, I didnt vote for Prop 8, Im just sick of the way the system gets worked. That’s what I’m annoyed about. Dont ask us to vote on an issue and then try to say shit like “the people were confused or scared” No one was confused or scared, they knew what the fuck they were doing. Accept the fact that it was voted FOR and move the hell on.. We are in economic crisis, our soldiers are being killed in the middle east and were worried about who can get married? STUPID!!
@RaVnR - So it’s put on the ballot for the people in California to vote on it.. they voted YES, but that was because they were “disillusioned and scared and didnt know what they were voting on”?? Lies..
@BB61 - Judicial review has been a function of the courts since Marbury v. Madison in 1803. In many cases, the constitutional implications of the law have been brought to light by the courts and wrongs righted, paving the way for later legislative changes.
@BB61 - Legislating from the bench is wrong.
One of the roles of the judge is overturning bad law. In this case, Prop 8 was ruled to be unconstitutional.
A lot of times, “judicial activism” and “legislating from the bench” are just empty fill-ins for “I disagree.”
Laws are created be elected legislators and voting. Now one single person has the power to overturn a law?
The 14th Amendment was used in the overturning of Prop 8. It’s prior legislation dating to 1868.
@HappyLemming - A lot of times, “judicial activism” and “legislating from the bench” are just empty fill-ins for “I disagree.”
Agreed.
@barefoot_nomad - Judicial review is a good thing. This should be heard by the California Supreme Court, not a single Judge with a bias. I’m sure it will be appealed.
Yes, because the fact that he was gay was obviously not the reason why her made his decision. If personal interest was how he made all his decisions, he wouldn’t be a judge.
Wow, MomGoneMad, you are a terrible, terrible person.
Ugh, Dan, ugh.
http://mojo.ly/aNjjDv
Though your link works too.
It’s absolutely fine with me.
@BB61 - Merely being gay no more indicts Judge Walker of bias against Prop 8 than being straight for Prop 8.
Judicial opinions are built on arguments and findings. Try browsing the opinion or reading accounts of it. Judge Walker didn’t go all like, “I’m gay, therefore, I’m opposing Prop 8!”
Majority Rules v Minority Rights. Absolutely. It’s a human rights issue that shouldn’t be up to the people.
@Megan@revelife - True. But I think that categorizing a jurist’s decisions based on their person is a miscall. Generally, their records show a clear cut judicial philosophy in line with the law, as they see it.
I don’t think the headline “Gay Judge Overturns Gay Marriage Ban” has any value, other than to slant the opinion of one’s piece. And I’d feel the same if it read “Straight” or “White” or “Martian.”
Gay marriage doesn’t hurt anyone. If anything it creates an industry. I don’t see how that’s wrong. This is a legal marriage we’re talking about. No one is telling churches they have to marry gay folk. It’s not taking away anyone’s rights and it’s not infringing on anyone’s rights by allowing it to be legal. If you don’t like it, tough, there are a lot of things in life I don’t like either. But if there is one thing in life I’ve learned, it’s that trying to control other peoples lives is not anyone’s job. The purpose of laws are the insure that everyone has the right to life, liberty and the pursuit of happiness.
Straight people trying to decide what rights gay people have sounds much more absurd to me.
Of course it is, especially in CA. Everyone knows that a county ruled by the people, is really ruled by the unelected judges! That is the American republic at it’s finest.
predictable – did you THINK that it wouldnt have been overturned?
A) Federal Judge pisses on the state
B) A Gay judge – go figure
C) It’s a judge in the 9th circuit
No suprises at ALL
@mtngirlsouth - Of course it is, especially in CA. Everyone knows that a county ruled by the people, is really ruled by the unelected judges!
It is the people who enshrined the Constitution. When state law comes in conflict with constitutionally protected rights, it is the proper role of the judge to resolve it.
In this case, the 14th Amendment’s due process and equal protection clauses were found to be violated by California proposition 8.
The judge being gay is a red herring; the proponents of prop 8 would claim that the judge was biased towards the gays even if he wasn’t gay. We’ll see soon enough how the higher courts rule.
@MomGoneMadd - ikr, fucking black people.
in this case, definitely
the will of the people should not supersede what is right. If masses of people always knew what was good and what was right, we would have never had widespread slavery, genocide, rigid class systems, racism and race based laws, or large gaps between the super rich and the very poor anywhere in the world- and yet, we have, in so many places.
Also, it is erroneous to assume that the gay judge is ruling based on his preference rather than interpreting the law.
@Rob_of_the_Sky - The pro-Prop 8 lawyers in the case did not make an issue of it. Judge Walker’s orienation only got play in popular conservative media.
@Anti - How do you figure? I didnt vote for it.. screw you.
even thought me my self am bi sexual i dont think gays should have the right to marriage god will acept homo sexuality barley but marriage is to far if we were back 600 years ago gays would have been burnt at the stakes for heresy. jesus intended man and women marriage that is the way it is ment to be. yeah i all have sex with both genders but ill mary the girl but not the guy. guys the level of love i have is not marriage but more like they were my best friend or brother
yes. I don’t believe in homosexuality being right but i think everyone should have the same rights, to marry whomever they choose. If you love someone, then you should have the right to marry them and be with them! Everyone should believe in equality. Not forcing their ideas to complicate the lives of others.
I think the will of the people is often destructive and wrong.
Was it right for majority to decide minority rights in the first place? No.
That’s kind of why the judiciary exists in the first place.
“The people” have approved propositions before that were unconstitutional. And the judges are supposed to let them stand? To hell with “the will of the people” in that situation. What if 100% of them voted to reinstitute slavery? Would we expect the courts to just accept “the will of the people”?
Sorry, he should respect the will of the people.
the will of the people should not come into play when we are discussing the inalienable rights granted to us all by the constitution of this country. no where does it state that the right to happiness is only for the straight folks.
Yes, this judge was hardly objective and abused his power. I hope this judicial travesty is overturned at some point. I am also anxious for the day when this judge stands before the Creator of the Universe and gets a real taste of justice.
@Anti - Wow, what a heartless, careless, worthless, demeaning thing to say. Please keep your ad hominem attacks to yourself.
Nice picture.
As in, I mean the opposite of that. lol Be interesting to see what happens on appeal. I don’t think the fact that this man is gay enters into it, or at least, I begin from that premise just like I begin from the premise that he is charged with impartially upholding the US and California Constitution and the laws of the State of California, just like a woman judge would in a gender discrimination case, a judge of color would in a racial discrimination case, a male judge would in a father’s right’s case, etc. That is his job, and this is why there are levels of review to ensure that happens.
Any straight judge would have done the same. Or should. It’s irrelevant.
I don’t think it should matter either way. There are people who support gay marriage and people who don’t. Cali just got lucky in the case that this judge was gay. Who the judge sleeps with didn’t stop him from doing his job.
I don’t see why it’s anyone’s business anyone’s sexuality or the fact they get married. Stop sticking your nose in other people’s business and worry about yourself, or greater things at hand like nuclear weapon development in countries that hate you (North Korea anyone?) or the useless war in the sandy countries abroad killing thousands of our brave soldiers needlessly, or starving, poor people in your own country struggling to survive.
America, your people have their fucking priorities all messed up.
@nimbusthedragon - so glad we live in Canada.
as well he should have. One of the fears of the founding fathers was the majority factions voting against the rights of the smaller minority factions.
Omg, Dan, the picture! lmao, too funny!
@HappyLemming - Or the one (judge) to overturn the many.
@ShimmerBodyCream - Only if you get involved.
@venomxcupcake - but what happens when the “will of the majority” violates the rights of the minority? Read federalist number 10 by james madison, i think you might find it interesting/relivent and a modern view of it is certainlyinteresting.
@the_evil_tamica - yes ^^
The sexual orientation of the judge is immaterial. If it’s a good decision it’s a good decision, and if it’s a bad one the appeals court should overturn it.
The courts are there to protect the rights of the minorities, which the voting public rarely support. Would we be upset if a black judge ruled on a decision about black rights?
@the_evil_tamica - ah! my “yes” was agreeeing with you, not in answer to your question.
@MomGoneMadd - Regardless, just because it was voted for doesn’t decide its constitutionality, at a State or at the Federal level.
@TheThinkingPerson - Agreed. Smell that, Dan? That’s the power of rational thought and human rights winning over hatred. God I love that smell. ; )
It shouldn’t have been illegal in the first place.
I don’t think whether or not he’s gay is an issue.
The same argument could be made for a straight judge agreeing with it.
The fact is that it’s discriminating, which, we should all know, is illegal. Nobody is getting harmed. I mean, if you think that gay marriage should be banned, then so should athiesm, or Christianity, or judiasm.
<li class=”itemsubmitter”>@RaVnR
I agree completely. A judge’s job is to remain impartial and base his or her decision on the facts presented in the case, the Constitution, and etc. They are professional and should not (and will not) bring their personal opinion into the matter. That being said, is it right for people who believe in “traditional” marriages to impose their will and prevent other people’s happiness? It’s essentially the same question you posed up there, Dan.
I would also like to point out that when I listened to NPR today, it pointed out that the judge based his decisions PURELY on the facts presented in the case. I think one of them was that Proposition 8 somehow violated the due process of law? Regardless, I think it’s pretty immature (read: bigoted) to jump to the conclusion that a person’s sexuality would influence his or her performance in his or her job.
I agree with the Judge’s actions. I don’t care if he is gay or straight or whatever, I agree with him overturning the law to ban gay marriage. Everyone has the right to be with the person they love in a legal manner if they want to.
I don’t agree with the federal judge changing it. In my mind, this just means the gays will try to infiltrate the schooling system and sex education to include about sex with the same gender. Marriage has always been between a husband and wife. Not husband/husband and wife/wife. The fact that our own President can pass an unconstitutional healthcare system, which most of the people hate, and it STILL be in affect, yet the gay marriage issue gets taken care of first, just makes me think that Beast is going full force into trying to change the way things morally. Even if you’re not religious, how can anyone think that homosexuality ISN’T a disorder pyschologically? Things are getting worse, my friends. Don’t be fooled or allow yourself to believe in deceptions.
@Tw1nks - I agree that it is discriminating. However what makes this issue so big is the constitution never explicitly says “Gay marriage should be allowed/banned,” only that we all deserve equal rights. The constitution DOES say (i’m paraphrasing here) “everyone has the right to practice their own religion.”
So comparing banning gay marriage to banning atheism, christianity or judaism doesn’t make much sense.
Anyways, eh, its a little shady that a gay judge presided over the matter, but whatever. Even if he was straight no matter what the judge chose would be disputed anyways.
@bakersdozen2 - Or the one (judge) to overturn the many.
The strength of a ruling doesn’t lie in the number of judges, but the construction of his decision.
No number of an animus-driven populace may justify irrational discrimination.
Gay or not, banning gay marriage should’ve never existed. People can love/marry whomever they wish!
I fucking saw this today and I am so fucking happy!!
I was really into the whole prop 8 thing. I protested and voted against it. I believe that you should be able to marry whom ever you please.
I was sad when prop 8 came out on top but I dealt with it. I am even more sad now that some in positions of power have over turn the decision made by the majority. This really does show that our votes do not matter.
As long as the judge did his job properly I don’t care what he believes in. Seeing how the ruling was stayed and it is going on to appeals it isn’t over yet. Seeing that the actual ruling was solid and the arguments to keep prop 8 were terribly weak I can understand why some would focus on the judges sexual orientation.
Individual morality superseding any actual factual rationale, that’s why this happened. It was because of people’s morals, and not because there was any rational reason to ban gay marriage that this happened, so as I see it the only really upsetting thing that happened here was that this was an issue in the first place. People deserve the same liberties and rights that you do regardless of who they are or how they live their lives, and if you think otherwise I really don’t want to have anything to do with you.
A nation that forgets God will be turned into Hell.
@HappyLemming - ”Irrational discrimination” is a subjective term. Given that, the question is: on what does this judge base his decision?
It’s really nobody’s business. I don’t see how Julie and Sarah’s marriage affects anyone else’s.
I didn’t vote for YOUR marriage and so what if the judge was gay? There are a handful of straight allies and let’s face it, just because you have a moral issue with something isn’t a good enough reason to deny a group of people from what they want and believe they deserve.
Now if you excuse me, I have a big, gay party to attend to.
@prophet_21 - You’re welcome to come to the party too, if you want. ;D
@Shades0f_Grey - It’s not that they can over-turn a vote made by the people, but there was an issue of whether or not something like this SHOULD be voted on. This is something that some people believe it was a right, their right to love and marry whoever they wish. Let’s face it, if all the decisions were left to the majority, segregation would still be legal. The minority has to fight for their rights and they can’t always be left up to what the majority decides.
What are you saying, Dan? That only heterosexual judges can overturn the will of the people??
haha. Dan, you did a terrible job of phrasing this question.
sure.
that picture is so photochopped
No, it isn’t right for any judge to overturn the will of the people. It makes a mockery of voting. You can’t have it both ways. If it’s okay to overturn the gay marriage ban, it’s equally okay to say that we can’t have our president. Personally, I don’t think Prop 8 should ever have been on the ballot, but the reason it was (listen up!) is because when people got hit up to sign petitions at the grocery store etc, instead of “offending” those intruding on our privacy, they signed – and sometimes just to shut them up. I never sign petitions to get something on the ballot, partly because to be legal, one must put their home address there for all to see. I do admit, though, that I once signed a fake name and address to shut up the pushy person invading my privacy and enjoyment of life. When things get on the ballot, they have a chance of passing, no matter what the issue is.
@bakersdozen2 - “Irrational discrimination” is a subjective term.
There was a lack of rational basis for the discriminatoin perpetuated by Prop 8.
Given that, the question is: on what does this judge base his decision?
Findings during the trial. The Due Process and Equal protection clauses of the 14th Amendment. And all tidied up in a 136-page opinion.
@HappyLemming - Marriage is a privilege granted and regulated by each State through licensor. This is not a matter of Constitutional protection. It is interesting that the dilemma of Gay Marriage is being addressed just recently given the age of our Republic. We’ve had an enduring National “assumption” that seems to be at odds (all of a sudden) with the Constitution. At any rate, given this historical silence, it’s undeniable that this judge read into the 14th Amendment his own particular bias, and I think that was the point Dan was getting at.
@bakersdozen2 - Marriage is a privilege granted and regulated by each State through licensor.
It was found in Loving v. Virginia that marriage is a fundamental right protected by the Due Process clause of the 14th Amendment.’
This is not a matter of Constitutional protection.
Additionally, with the equal protection clause of the 14th Amendment, states may not, without rational basis, discriminate against minority groups. It was argued in Judge Walker’s opinion that the respondents of Perry v. Swartzenager (the proponents of Prop 8) failed to provide a rational basis for discrimination against gays.
It is interesting that the dilemma of Gay Marriage is being addressed just recently given the age of our Republic.
Equal rights for women was not realized until very recently. Dismantling of Jim Crow and racial segregation did not begin until nearly a hundred years after the end of the Civil War. Gay sex was outlawed in many states until 2003, when state statutes were struck down by the Supreme Court. The Second Amendment was not recognized by the Supreme Court as to protect an individual right to bear arms until this year.
So what? Law develop over time. Realizations and ideas evolve over the decades. You can do better than this.
At any rate, given this historical silence, it’s undeniable that this judge read into the 14th Amendment his own particular bias…
Exlaborate how. It’s one thing to charge, “Bias!” it’s another to actually justify it.
I don’t think its any worse than a straight judge voting against it
I think the judge was emotionally tied to the case because he was gay.
@HappyLemming - It was found in Loving v. Virginia that marriage is a fundamental right protected by the Due Process clause of the 14th Amendment.’This was not a same sex marriage case. Blacks and women are an unmistakably recognized as a minority (ie. observably and genetically).
“Equal rights for women was not realized until very recently. Dismantling of Jim Crow and racial segregation did not begin until nearly a hundred years after the end of the Civil War. Gay sex was outlawed in many states until 2003, when state statutes were struck down by the Supreme Court. The Second Amendment was not recognized by the Supreme Court as to protect an individual right to bear arms until this year.”
The higher courts interpret the Constitutionality of legislation challenged by the ruling of lower courts. They DO NOT, however, imbue meaning to the Constitution or the original intent of the founders. The Supreme court inferred what the writers of the Constitution intended. Our Second Amendment Rights were quite clear before they were challenged. Additionally, Many of our Founding Fathers argued for abolition (Jefferson, Franklin, Adams). There are no original documents which argue for the allowance of special rights for homosexuals nor are there any records that would hint towards their classification as a “minority”. Furthermore, case precedent is contemporary and quite shallow with regard to interpretation.
This is a parallel without precedence and the record shows this.
@ChurchoftheIvoryTower - The higher courts interpret the Constitutionality of legislation challenged by the ruling of lower courts. They DO NOT, however, imbue meaning to the Constitution or the original intent of the founders.
Don’t give me this generic drivel.
(1) The meaning of the Equal Protection clause of the 14th Amendment is taken litearlly, there is no “imbuing” of meaning.
(2) There are components of the U.S. Constitution that are clear and ltieral, and there are parts intentionally left vague. The drafters could not have envisioned every contingency, every twist and turn of the natural evolutions of American Jurisprudence, and the advancement of technology.
(3) If anything, the Founders intended for additional rights to be read into the U.S. Constitution. Try the ninth Amendment: http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution
(4) You’re barking up the wrong tree. At issue were the Due Process and Equal Protection clauses of the 14th Amendment. The Amendment was ratified into law in 1868, along with the other Civil War Amenments. A bit out of the “intent” of Adams, Franklin, and Jefferson.
There are no original documents which argue for the allowance of special rights for homosexuals nor are there any records that would hint towards their classification as a “minority”.
Even so, gays are still allowed to vote. They’re still allowed to hold public office and their rights are just as protected by the 1st, 2nd, and 5th Amendments. What is at issue here is their rights as protected by the 14th Amendments.
What is at stake here is the broader and general right of marriage, and it should be applied to all equally and fairly.
@HappyLemming - This is Bakersdozen2 (I guess that’s obvious) ;)
@Elegast -
“(1) The meaning of the Equal Protection clause of the 14th Amendment is taken litearlly, there is no “imbuing” of meaning.
(2) There are components of the U.S. Constitution that are clear and ltieral, and there are parts intentionally left vague. The drafters could not have envisioned every contingency, every twist and turn of the natural evolutions of American Jurisprudence, and the advancement of technology.
(3) If anything, the Founders intended for additional rights to be read into the U.S. Constitution. Try the ninth Amendment:”
The imbuing comes with the misapplication of the 14th Amendment and then again with their rights.
With regards to the their Constitutional rights, I’m not clear as to how they are being “protected” by allowing them to marry a same sex partner? Additionally, This is a reading of the 14th Amendment that does not apply to other individuals seeking a marriage license. My husband and I had to qualify for several criteria before we could be issued a license from the state of Virginia. If we didn’t qualify, it wasn’t issued.
‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
The kitchen sink clause.
“The drafters could not have envisioned every contingency, every twist and turn of the natural evolutions of American Jurisprudence, and the advancement of technology.”
This is true, but I don’t suppose the drafters were unaware of homosexuality at the time. In fact, I’m quite sure they were aware of it. General Washington dealt with Homosexuals during the Revolutionary War, however, not regarding gay marriage specifically. He was lenient and had the man literally “drummed” out of the army. As far as “advancements of technology” I don’t see how this applies to the moral dilemma of homosexual marriage.
This is not a matter of preventing them from voting or owning businesses etc. etc. They clearly have rights.
@bakersdozen2 - The imbuing comes with the misapplication of the 14th Amendment and then again with their rights.
What misapplication? “Equal protection” is pretty fucking clear.
Classes: “Gays” can’t marry. “Straights” can. The proponents of Prop 8 didn’t give a rational justification for this. Voila. Violation of the Equal Protection Clause.
…My husband and I had to qualify for several criteria before we could be issued a license from the state of Virginia. If we didn’t qualify, it wasn’t issued.
Sure, and the state of Virginia probably had a rational justification for its various criteria. This, itself,doesn’t mean that states may wantonly establish barriers to marriage or single out particular classes for discrimination.
—-
By your non-arguments, I take it that you accept marriage as a fundamental right protected by the Due Process clause of the 14th Amendment.
The will of the people? Lol – you mean the desire of the religious nutbars who wish to control all those around them!!
Everyone should have the right to marry whoever (not whatever aka animals lol) they want.
I don’t like that the judge has to be labeled as “gay”. Why can’t he just be a JUDGE? Because that’s what he is. It’s because of our need of labeling things that people are getting separated into groups and some hate others for it because it’s “different”.
@Celtic_haven - …In my mind, this just means the gays will try to infiltrate the schooling system and sex education to include about sex with the same gender…
You paranoid cunt.
Look, gays aren’t so different from the rest of us. They have daily concerns and responsiblities. Marriage equality isn’t some stepping-stone to sexual perversion. Marriage– that recognition of love and commitment– would be valued by same-sex couples in the same way that it’s important and meaningful for opposite-sex couples.
Marriage has always been between a husband and wife. Not husband/husband and wife/wife.
According to who, to what source?
If you say Bible or God, then I point to the fact that America is a pluralistic society. My parents were Buddhists, I’m an atheist; and my folks and I are just entitled to marriage as Christians and our understanding of marriage is in no way tied to the Christian Protestent sense.
If you appeal to some larger cultural sense of marriage, then look the fuck abroad. There are foreign states with a culture very similar to our own, that hvave come to the conclusion that marriage isn’t constrained by gender and have come to less same-sex couples in marriage as they do opposite-sex couples.
…Even if you’re not religious, how can anyone think that homosexuality ISN’T a disorder pyschologically?
Because heterosexuality isn’t.
@HappyLemming - ”
Sure, and the state of Virginia probably had a rational justification for its various criteria. This, itself,doesn’t mean that states may wantonly establish barriers to marriage or single out particular classes for discrimination.”
You agree that states have the right to restrict marriage as long as it does not violate the Constitution? You’re argument is that homosexuals are a minority and as such have protected rights and that the intent of the 14th Amendment was to include homosexuals as a minority class AND to provide for this class, not rights regarding citizenship or subsequent rights which are derived from being a citizen; BUT it was provided to establish for them specifically a privilege not guaranteed to heterosexuals, namely the institution of marriage.
1) Marriage is not an issue even addressed in the Constitution let alone a protected or provided for.
2) Marriage is an institution regulated by states (in California Prop 8 was within the boundaries of their legislative due process). Furthermore, you admit states have the authority to establish boundaries that apply to individuals seeking a marriage certificate. They have all the responsibilities and duties that entail issuing licenses.
3) Homosexuality is not addressed within the Constitution let alone given a minority status. This is a recent popular designation being forced into a legal classification. It has not existed prior to 1950.
4) During the ratification of the 14th Amendment (1868), there was legislation in all 50 states that affirmed homosexual acts (of any kind) as criminal. It certainly wasn’t a behavior that afforded the practitioners equal protection status under the Constitution.
“By your non-arguments, I take it that you accept marriage as a fundamental right protected by the Due Process clause of the 14th Amendment.”
Given these arguments, I submit that the idea of equal protection for Homosexuals regarding Gay marriage is a recent interpretation. This interpretation is based on bias towards those who promote a specific agenda not on original intent. The judge knows very well that his opinion does not reflect that of the founders or those who established the 14th Amendment. This was the original topic posted on this blog.
@bakersdozen2 - 1) Marriage is not an issue even addressed in the Constitution let alone a protected or provided for.
The Due Process Clause has been ruled by the Supreme Court to protect fundamental rights including marriage. This point was clearly affirmed in Loving v. Virginia.
2) Marriage is an institution regulated by states…
And in its regulation, states may still overstep their Constitutional Bounds– as in Virignia’s anti-Miscegenation law in Loving v. Virginia.
3) Homosexuality is not addressed within the Constitution let alone given a minority status…
Irrelevent. Under the Equal Protection clause, no, class may be discriminated against without rational basis. There are two recent cases involving homosexuality that specifically used the 14th Amendment:
Romer v. Evans: A 1996 case involving the overturning of a Colorado voter initiative stripping gays of anti-discriminatory protection.
Lawrence v. Texas: A 2003 case striking down Texas’ anti-gay sex statute.
.
4) During the ratification of the 14th Amendment (1868), there was legislation in all 50 states that affirmed homosexual acts (of any kind) as criminal.
I find this hard to believe. Alaska, Hawaii, and a bunch of other states had yet to achieve statehood.
But more seriously– moot point– reference the Romer and lawrence cases from the past decade and-a-half.
“The Due Process Clause has been ruled by the Supreme Court to protect fundamental rights including marriage. This point was clearly affirmed in Loving v. Virginia.”
This was a case involving inter racial marriage and the rights of individuals to marry regardless of race. It was not addressing marriage and the rights of states to regulate through licensor and how those rights related to individual freedom. This is clear in that procedurally nothing has changed with regard to states and the authority they still possess. In other words, restriction through regulation is ongoing.
“Irrelevent. Under the Equal Protection clause, no, class may be discriminated against without rational basis. There are two recent cases involving homosexuality that specifically used the 14th Amendment:
Romer v. Evans: A 1996 case involving the overturning of a Colorado voter initiative stripping gays of anti-discriminatory protection.
Lawrence v. Texas: A 2003 case striking down Texas’ anti-gay sex statute.”
You make my case for jurisprudence based on judicial activism not original intent. It is hardly irrelevant that behavior once considered illegal is now considered that which defines a protected status by the application of minority status. We could argue for minority status to many groups of people who engage in behaviorsthat distinguish them from the majority. This is hardly irrelevant which is why the case is so controversial.
4) During the ratification of the 14th Amendment (1868), there was legislation in all 50 states that affirmed homosexual acts (of any kind) as criminal.
This was the case in ALL states within the Union at the time. Hawaii and Alaska having anti sodomy laws when they were established. The recent overturning of those laws in 1973 and 1980 respectively gives credence to the reality of pressure being brought to bear on states to conform to ever growing political pressures not felt by the architects of the Constitution or the 14th Amendment
@bakersdozen2 - This was a case involving inter racial marriage and the rights of individuals to marry regardless of race.
Yes it did, however, in its ruling, the Court highlighted and stated explicitly a fundamental right to marriage. This aspect of the ruling had been subsequently confirmed in other Supreme Court cases.
From the majority opinion of Loving: “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival….”
You make my case for jurisprudence based on judicial activism not original intent.
Bullshit.
The Rehnquist Court during this time was predominately consevative, and the votes for for both cases were 6-3– picking the conservative votes of O’Connor and Kennedy. Kennedy wrote the majority opinionso f both cases.
Plus, I’d like for you to make the point: Exactly how the cases erred in your conception of originalism. I hope this isn’t just an uncritical cop-out to rulings you don’t like.
@HappyLemming - “
Yes it did, however, in its ruling, the Court highlighted and stated explicitly a fundamental right to marriage. This aspect of the ruling had been subsequently confirmed in other Supreme Court cases.”
A fundamental right to marriage within the construct of the states authority to regulate and restrict. Are you suggesting that this case removed the rights of states to restrict licensor? It did not. The High Court did not rule in favor of marriage as an unrestricted right of individuals. This Ruling affirmed the “Rights” of individuals to marry and that those rights not be impeded by racial discrimination. You are reading into the ruling the unrestricted right of any “parties” to marry that truly does
not
exist
.
States continue to work within the confines of their own codification unchallenged by the courts. This is why some seek an Amendment to the Constitution regarding marriage. The fact is no one cares, at this point, if applicants are related or what blood born illnesses the state is testing for. Thus States are not required to issues licenses to everyone seeking the “right” to be married.
“Bullshit. The Reinquist Court during this time was consevative, and the votes for for both cases were 6-3– picking the conservative votes of O’Connor and Kennedy.”
Please explain to me what a conservative court looks like. I’d very much like to know. If you think that judges appointed to the Supreme Court by a “Conservative” President makes them strict constructionists, I’d (unfortunately) have to disagree with you. Kennedy, O’Connor and Souter have all participated in their fair share of interpretation that had no bearing on original Intent.
“Plus, I’d like for you to make the point: Exactly how the cases erred in your conception of originalism. I hope this isn’t just an uncritical cop-out to rulings you don’t like.”
This is a matter of understanding the founders intent which isn’t too difficult to determine given their prolific writings. I’ve given examples of the laws that existed prior to the 14th Amendment and the cultural understanding of homosexuality as a behavior not as an indicator of minority status. You have not addressed this at all. The problem with ruling from a case precedent stand point is that everyone runs into rulings they disagree with, so let’s not pretend that disappointment does not exist on both sides of the political aisle. It does exist but is irrelevant.
If we are viewing the Constitution with an eye toward strict constructionism, we look at the 14th Amendment with that perspective in mind not what we wish it to be based on evolving or devolving cultural norms. The idea that this judge had no dog in this fight and was looking at the 14th Amendment from the perspective of original intent is difficult to believe.
This is usually the part in the conversation where liberals use the “elastic document” argument, after insisting wording and intent is their primary motive.
I’m off to the river right now so will not be able to respond right away.
@bakersdozen2 - …Ruling affirmed the “Rights” of individuals to marry and that those rights not be impeded by racial discrimination.
Loving ruled on two components of the 14th Amendment: Due Process and equal protection. The former is a recognition of marriage as a basic right– one that may not be infringed without a legitimate state interest, the second equal protection– that when a class of people are discriminated against, the government ought to have a compelling interest. The former finding is in no way qualified by racial discrimination.
There are 13 other cases finding or reaffirming marriage as a fundamental right.
Do you really know what you’re talking about on this point or are you making up as you go along?
Please explain to me what a conservative court looks like.
Rehnquist, Scalia, Thomas, Kennedy, O’Connor voteed together more together on social issues than Souter, Breyer, Stevens, and Ginsburg.
Seven of the nine were Republican nominees. Sufficiently elucidating? Also, don’t equate non-originalism with “Judicial activism.” The epithet isn’t synonymous with liberalism or with living constitutionist.
If you think that judges appointed to the Supreme Court by a “Conservative” President makes them strict constructionists, I’d (unfortunately) have to disagree with you.
You’re funny.
Fine. What’s your wonderful textualist understanding of “Due process” and “Equal protection?”
If we are viewing the Constitution with an eye toward strict constructionism, we look at the 14th Amendment with that perspective in mind not what we wish it to be based on evolving or devolving cultural norms. The idea that this judge had no dog in this fight and was looking at the 14th Amendment from the perspective of original intent is difficult to believe.
Since you’re so plugged into the minds of the 1868 U.S. congress, tell me, what are these mystical original intent?
Easy enough to claim, not so easy to back up, eh?
You are reading into the ruling the unrestricted right of any “parties” to marry that truly doe snot exist
You still haven’t addressed the Equal Protection bit. Invidious discrimination is a Consittutional no-no.
I can site cases where with the Equal Protection clause, the Supreme Court struck down statutes discriminating against classes as mundane as hippies or the mentally retarded. Equal protection was used to strike down gender discrimination along with racial. The Court has used the clause in the protection of gays from prejudicial animus– and whether you personally agree with the ruligns or not– under the principle of stare decisis, it is afforded judicial respect.
clearly, there was a bias in this case. judges are called upon to be impartial, but how could a gay judge not want to overturn a ban on gay marriage?
whether or not it is right, i suppose that is for the people of california to judge.
@Celtic_haven - Amen, amen, amen. This “gay rights” movement always has an agenda. And I don’t doubt for a second they will infiltrate the sex education. Ugh. This country is terrifying me more and more every day.
He voted that it was unconstitutional. I don’t care if a majority of the state likes the unconstitutional law, if he thinks it’s unconstitutional, that’s always grounds for overturning a law. Also, props to the person who pointed out that the South voted to keep the Jim Crow laws. The majority of people can be incredibly wrong about an issue, and it shouldn’t matter about the sexuality (or race or gender) of the person that points it out.
@HappyLemming - “
Do you really know what you’re talking about on this point or are you making up as you go along?”
If you are you asking me if I’m and attorney or have any legal background, the answer is “no” (I have absolutely no background in this area) If you are asking if my position is unique and unsupported, the answer is still “no”. Let’s review the first paragraph of your reply.
“Loving ruled on two components of the 14th Amendment: Due Process and equal protection. The former is a recognition of marriage as a basic right– one that may not be infringed without a legitimate state interest, the second equal protection– that when a class of people are discriminated against, the government ought to have a compelling interest. The former finding is in no way qualified by racial discrimination.”
“class of people”
“compelling interest”
These 2 terms are pivotal. But first, marriage is NOT a guaranteed right for everyone irregardless of the interpretation of these two terms. There are restrictions applied by each state homosexuality being a prohibition for 36 states with 30 of those having Amendments to their Constitutions. In addition, there are other commonly held prohibitions that regulate age, number of partners, and the relationship between the applicants. Homosexuality was once deemed a behavior not a protected class. You know this. The very fact that it’s even being challenged by judicial activists makes this point patently obvious.
In the early 70′s California assembly Bill no. 607 was passed which clarified earlier legislation regarding same sex marriage. It prohibited “persons of the same sex from entering lawful marriage” establishing marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” This language has been found in the family code since 1994.
(condensed history..In the interest of time) There was Prop 22 (passing in 2000 with 61% majority) which was overturned by Supreme court etc etc… Initiative Petitions were offered and voted on etc etc. passed by a majority etc. etc… signed into law by the govenator.
Proposition 8 (a softened version of 22) section 7.5 restated the clause found in the Calf. family code “only a marriage between a man and a woman is valid or recognized in Calf.” It passed with a little over 52% majority and was overturned by the California Supreme court. The dissenting opinion written by Justice Baxter and joined by Justice Chin states, “A bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.”
it continues… “The majority … simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice. The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex.”
And here you might want to take particular note with my earlier statements about judicial activism and cultural precedent when defining “Class of people”:
“Who can say that in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”
Justice Corrigan adds to this: “restraint is the hallmark of constitutional review” she continues, “[i]f there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”
It’s interesting to note in the case of California that laws repeatedly passed were later overturned by the Courts. Propositions voted on by the majority in favor of traditional marriages were overturned by the courts. This looks an awful lot like judicial activism to me…. Here are Justice Baxter’s words once again, “The majority … simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.”
So, no. I’m not trying to be funny and these are not just my opinions as a layman. The classification of Homosexuals as a “minority, protected class of people” is a recent, politically driven phenomenon. And states do have a compelling interest to protect the sanctity of marriage.
“I can site cases where with the Equal Protection clause, the Supreme Court struck down statutes discriminating against classes as mundane as hippies or the mentally retarded. Equal protection was used to strike down gender discrimination along with racial. The Court has used the clause in the protection of gays from prejudicial animus– and whether you personally agree with the ruligns or not– under the principle of stare decisis, it is afforded judicial respect.”
Mental handicaps, gender and race provide legitimate criteria and distinction as to “class of people”. These are not behaviors.
Judicial activism provides the means to achieve the political objectives of the progressive movement. It’s a way to bypass the separation of powers set up by our Constitution.
majority rules.
@Texana - Apparently not in this country thank God. If it did, we would still have Jim Crow laws. But maybe you wish that was the case as well.
Ok I know I’m going to probably get a bad name for this but I’m just going to say it. I’m a Christian and I stick by the between man and woman marriage. The people of California voted and it shouldve stayed that way. The very fact is the judge overturned what the people voted, which he can do that however it’s a catch 22. It’s discrimination when we as Christians stand up for what we believe in and even get labels from top fed officials as terrorists and threats yet it’s not the same if it’s the reverse. Another example is white and black discrimination. Adm 14 is due process of law regarding criminals and such. It has nothing to do with prop 8 or any propoganda as such. Just stating my 2 cents. I’m not here to bash or push religion on anyonejust trying to see it from a legal perspective.
Hahaha, love the picture.
Whether or not the judge was gay, (s)he knew that there would be a vote on the issue and decided to turn it over according to what (s)he believed. I think a judge should go by the will of the people in any case.
Majority rule is often wrong! No one’s rights should ever be put up for a vote! Did we have to vote for the civil rights of Blacks? If that had ever happened, the polls showed the majority would not have done the right thing!
…I don’t get it. The raison d’etre for the judicial branch of government is to act as a check on both the executive/legislative branches of government AND to act as a check on the power of the majority…because it was readily acknowledged by the Founding Fathers that the majority could and would try to strip rights/privileges away from the minority (because, frankly, the majority tends to be a bunch of (insert class here)-ist assholes).
The judge is a JUDGE. His job is to be impartial to the best of his understanding of the law. Barring gross incompetence and/or misapplication of the law, NEITHER OF WHICH HAPPENED IN THIS CASE, the appeals court will have a hard time overturning what is, for all intents and purposes, a proper and reasonable application of judicial power to overturn a proposition firmly in opposition to the Constitution.
“The will of the people” doesn’t mean shit when it comes to the rights of others…otherwise, women would still be restricted to the kitchen, Asians would still be excluded from immigration, and Blacks would still have no rights in half of the states.
Was it right for straight people to vote against gay marriage?
The basic human Rights of any minority (group) should not and cannot be taken away by the majority.
*scattered applause* *yawn*
@GodlyWoman83 - [The people of California voted and it shouldve stayed that way]
Even if a majority agrees on something, if it is discriminatory and unconstitutional, it cannot stand.
Funny you talk about “legal perspective.” It seems you’re blissfully unfamiliar with constitutional matters of the most basic nature. I’m no expert on law, but this should be rather obvious if you take even a passing look at the constitution.
The kind of ass-backward thinking that you’re promoting is going away. Slowly but surely…it will fade away. That’s comforting for all of us that believe in equality and acceptance. How ironic that those who allegedly believe in “the most loving religion” are those who are the most judgmental and discriminatory. It’s both funny and sad at the same time.
The people of CA voted THREE times on prop 8!!! The ACLU has a lot to do with this!! Give me a break about rights! Half this nation is a Christian nation despite what this president says.
@GodlyWoman83 - actually it isn’t
- 10,000 Churches disappear in a 5 year period.
- The number of people in America that do not attend church has doubled in the past 15 years.
- Less then 38% of Americans attend church at all
America a Christian Nation?? NO!!! When less then 40% go to church it is not a practicing Christian nation.
would you have a problem if it was in issue dealing with African Americans and the Judge was African American? Or women and the judge was a woman???????
I’m offended that you did this, Dan. Not that you’d care, obviously! *doorslam*
Why not? The judges have been exercising their “power”, since the system started.
BTW, “Gay” is actually a word to describe homosexuals who have come OUT of the closet.
The people you show in the photograph actually represent the larger group of Men Who Have Sex With Men…
These people are closeted homosexuals and lead a life posing as heterosexuals but engage in sex with other men on the “down low”, it used to be called being in the closet…
That’s crazy, I mean, he’s gay and he DOESN’T want gay marriage?