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Thread: Iowa Court says gay marriage ban unconstitutional

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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by Midwest Lib View Post
    I agree with your definition of whats supposed to come from each, but its not a reality.
    So the justification for judicial activism (and legislative indolence) is that they exist?

    Quote Originally Posted by Midwest Lib View Post
    All I'm saying is that good things have come of it, along with the bad (I can't deny that happens)
    Here I emphatically disagree. There has been no societal good to come from judicial activism. As there has been no good, there is no defense of judicial activism on the basis of it providing societal good.

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    Re: Iowa Court says gay marriage ban unconstitutional

    To easy, Capt'n...
    Quote Originally Posted by CaptainCourtesy View Post
    You are incorrect. A government reason for supporting marriage is to assist in the rearing of children. No mention of procreation.
    So often is Loving used to as a legal basis for the gay-marriage argument. However, the logic behind loving does not, in any way, also support gay-marriage.

    FindLaw | Cases and Codes
    ....These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

    Marriage is one of the "basic civil rights of man, "fundamental to our very existence and survival.
    Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

    These convictions must be reversed.

    It is so ordered
    .
    Procreation has always gone hand in hand with marriage as both an assumed logical function of marriage in forming a family and with regard to the nature of the civil union.

    Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
    ...But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects....
    Maynard v. Hill, 125 U.S. 190 (1888).
    It is also to be observed that while marriage is often termed by text writers and in decisions of courts as a civil contract, generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization, it is something more than a mere contract. The consent of the parties is, of course, essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. This view is well expressed by the Supreme Court of Maine in Adams v. Palmer, 51 Me. 481, 483. Said that court, speaking by Chief Justice Appleton:
    ***
    Anti-GM logic is genius in it's simplicity: Homosexuality does not produce relationships which can procreate in and of themselves, therefore while gays retain the right to freely associate and cohabitate with whomever they wish, the state has no compelling interest in such relationships.

    The state need not ban or specifically criminalize same-sex relationships. It simply may choose not to recognize such relationships any more then it recognizes other casual relationship such as boy/girlfriend.

    =====
    Yes, some unsubstantiated number of gay couples are raising children, but so are various other types of couples (such as a grand parent and a single mom, siblings, an older sibling of the child, etc). Just as I do not support these exceptions to alter the rule, neither do I support gays raising children to alter the institution of marriage.
    Last edited by Jerry; 04-04-09 at 03:45 PM.

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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by celticlord View Post
    So the justification for judicial activism (and legislative indolence) is that they exist?
    It's not justification or disapproval. Its just the simple truth that it exists. Human nature insists upon it. As long as one has opinions this will continue to be a truth.

    Here I emphatically disagree. There has been no societal good to come from judicial activism. As there has been no good, there is no defense of judicial activism on the basis of it providing societal good.
    This will be an agree to disagree situation. I believe that good has come of it, this subject being my first example. So there is no confusion, I am not for or against judicial activism, simply because the way it exists will continue to exist. Which way it will lean depends on the place and time, but I am thankful, due to personal beliefs that this SC ruled this way, as I hope it will set a standard that other states will follow. I'm sure that if some of your beliefs were upheld, you wouldn't be upset, even if it happened in a way you didn't entirely believe in.
    Last edited by Midwest Lib; 04-04-09 at 03:31 PM.

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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by Jerry View Post
    To easy, Capt'n...


    So often is Loving used to as a legal basis for the gay-marriage argument. However, the logic behind loving does not, in any way, also support gay-marriage.

    FindLaw | Cases and Codes


    Procreation has always gone hand in hand with marriage as both an assumed logical function of marriage in forming a family and with regard to the nature of the civil union.

    Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).


    Maynard v. Hill, 125 U.S. 190 (1888).


    ***
    Anti-GM logic is genius in it's simplicity: Homosexuality does not produce relationships which can procreate in and of themselves, therefore while gays retain the right to freely associate and cohabitate with whomever they wish, the state has no compelling interest in such relationships.

    The state need not ban or specifically criminalize same-sex relationships. It simply may choose not to recognize such relationships any more then it recognizes other casual relationship such as boy/girlfriend.

    =====
    Yes, some unsubstantiated number of gay couples are raising children, but so are various other types of couples (such as a grand parent and a single mom, siblings, an older sibling of the child, etc). Just as I do not support these exceptions to alter the rule, neither do I support gays raising children to alter the institution of marriage.
    Too easy Jerry. Procreation as a reason for the state to have a compelling interest in marriage is negated by the fact that obtaining a marriage license is not contingent on the agreement to have children. If it were, since marriage is a contract, if a couple decided to not procreate, the marriage license would be void. This does not occur. Adoption is also a piece that indicates that child-rearing, not procreation is the component that is being addressed. Child-rearing is one of the reasons the state has a compelling interest in marriage, but not the only one. Health and creating a stable society are also reasons. These things are accomplished by both hetero-sexual and homo-sexual marriages.
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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by CaptainCourtesy View Post
    Too easy Jerry.
    I hear ya

    Quote Originally Posted by CaptainCourtesy View Post
    Procreation as a reason for the state to have a compelling interest in marriage is negated by the fact that obtaining a marriage license is not contingent on the agreement to have children. If it were, since marriage is a contract, if a couple decided to not procreate, the marriage license would be void. This does not occur. Adoption is also a piece that indicates that child-rearing, not procreation is the component that is being addressed. Child-rearing is one of the reasons the state has a compelling interest in marriage, but not the only one. Health and creating a stable society are also reasons. These things are accomplished by both hetero-sexual and homo-sexual marriages.
    The entire point of my post was to refute your premise:
    Quote Originally Posted by CaptainCourtesy View Post
    You are incorrect. A government reason for supporting marriage is to assist in the rearing of children. No mention of procreation.
    No mention of procreation, you said. No mention at all.

    Clearly procreation is an expected function of marriage. While a few exceptions have been granted to protect children and families from falling through the cracks (exceptions such as adoption), those exceptions prove the rule. Exceptions such as adoption in no way separate procreation from marriage.

    In this way gay-marriage seeks to redefine what the institution of marriage is, and therefore even what your own marriage is. While you are free to give your personal marriage various meanings, all such meanings are additions and amendments to the institution.

    ***
    The modern gay-marriage movement is not based on the family. It is based on the assertion of personal rights.

    Marriage is not about the assertion of personal rights.

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    Re: Iowa Court says gay marriage ban unconstitutional

    "In this way gay-marriage seeks to redefine what the institution of marriage is, and therefore even what your own marriage is. While you are free to give your personal marriage various meanings, all such meanings are additions and amendments to the institution."

    Why is this a bad thing? Is it so wrong for things to be improved upon to better fit the mold that is today's society?

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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by Midwest Lib View Post
    "In this way gay-marriage seeks to redefine what the institution of marriage is, and therefore even what your own marriage is. While you are free to give your personal marriage various meanings, all such meanings are additions and amendments to the institution."

    Why is this a bad thing? Is it so wrong for things to be improved upon to better fit the mold that is today's society?
    Nothing wrong with redefining social institutions--so long as it is not done in a courtroom. Courts are the arbiters of the law, not arbiters of justice.

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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by Midwest Lib View Post
    Why is this a bad thing? Is it so wrong for things to be improved upon to better fit the mold that is today's society?
    I have no issue with gay-marriage in a vacuum (I have and could again make the religious argument in favor of gay-marriage and I can do it without misrepresenting scripture).

    In context to what the modern gay-marriage movement is today, what their arguments and rationales are, gay-marriage is not an improvement.

    The modern gay-marriage movement supports and advances hyper-individualism, which is poison to social bonds.

    The modern gay-marriage movement seeks to reduce marriage from "form and maintain the family" to "legitimization of sexual behaviors".

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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by Jerry View Post
    The modern gay-marriage movement supports and advances hyper-individualism, which is poison to social bonds.
    How so? It seems to me that allowing them to get married would ENHANCE their social bonds. Is marriage not the ultimate social bond?

    Quote Originally Posted by Jerry
    The modern gay-marriage movement seeks to reduce marriage from "form and maintain the family" to "legitimization of sexual behaviors".
    Again, how so? They aren't asking for the state to give them its blessing to screw each other in the ass. They're just asking for the same property rights, visitation rights, and next-of-kin rights under common law that everyone else has.
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    Re: Iowa Court says gay marriage ban unconstitutional

    Quote Originally Posted by Midwest Lib View Post
    This will be an agree to disagree situation. I believe that good has come of it, this subject being my first example. So there is no confusion, I am not for or against judicial activism, simply because the way it exists will continue to exist. Which way it will lean depends on the place and time, but I am thankful, due to personal beliefs that this SC ruled this way, as I hope it will set a standard that other states will follow. I'm sure that if some of your beliefs were upheld, you wouldn't be upset, even if it happened in a way you didn't entirely believe in.
    The Iowa Court screwed the pooch by indulging in a specious and overreaching reading of their constitution. Such legislation from the bench imposes an arbitrary definition of marriage that may or may not be at odds with the definitions used in the larger society--and may be at odds with the religious views of individuals.

    Such judicial overreach does not end "discrimination" (if indeed discrimination existed, which is doubtful), but merely shifts discrimination's target.

    Is there a meaningful resolution to such questions? I certainly hope so. My preferred resolution would be an ending to government regulation of marriage, so that individual views on marriage are never more than a matter of opinion. That is not the state of law today, and the Iowa court's ruling has amplified that situation; it has not reduced it, and it most definitely has not negated it. The Iowa court could not hope to remedy that particular legal defect, for such a remedy is found in the legislative process, not the judicial process.

    Are laws defining marriage as being solely between a male and a female just? Perhaps, perhaps not--it is a worthy question. What is beyond question is the judicial reality that courts are not arbiters of justice, but only of law. A court that seeks to do justice only does violence to itself and to the role of courts in civic society.

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