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Iowa Court says gay marriage ban unconstitutional

Navy Pride said:
Of course not but your sample is ridiculous........It would never happen.
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Not "would never", Navy, "could never". The scenarios DD is hypothesizing are impossible.
 
celticlord said:
A 50% +1 vote cannot possibly affect the right of women to vote. Not in the United States of America.
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Sure it could. What makes you assume that it couldn't. If a Constitutional right can be taken away by a popular vote 50%+1 via Prop 8, what is to stop California voters, or other states from that matter, from passing laws that take away other Constitutional rights?
 
Navy Pride said:
Of course not but your example is ridiculous........It would never happen.
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Why would you not support the "Will of the people" afterall Navy, if the majority of the voters vote in favor of something (even if it is 50%+1) why should not their voice be heard? After all this is how it is done in America, isn't it?

Seems to me that you pick and choose what "Will of the people" you will support, depending upon whether you agree or disagree with the question.
 
disneydude said:
Sure there is. If a state is issuing contracts, they still have to comply with Constitutional safeguards. Suppose a state said it was only going to issue business licenses to Arab Americans. There is no fundamental right to a state issued business license...so are you suggesting that a black, white, asian etc wouldn't have an equal protection claim against the state in such a case? That would be a ridiculous argument to make.
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Under the 10th amendment, the regulation of intrastate commerce is delegated to the states. The states actually do discriminate in the issuance of business licenses, just not along those lines. The right to engage in business could be argued to be an unspecified right under the ninth amendment. The state would need to show a [/b]compelling interest[/b](not just "legitimate") in violating that right.

[ame]http://en.wikipedia.org/wiki/Strict_scrutiny[/ame]

Here's a good example for you. I can't collect welfare because I'm don't meet the qualifications. As a citizen of my state, I am entitled to the privilege of collecting welfare handouts. I should sue.
 
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disneydude said:
Sure it could. What makes you assume that it couldn't. If a Constitutional right can be taken away by a popular vote 50%+1 via Prop 8, what is to stop California voters, or other states from that matter, from passing laws that take away other Constitutional rights?
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Sure it could not.

First, let's clarify which Consitution about which we are talking. The standard of "Equal Protection," while found in state constitutions, is generally a reference to the 14th Amendment of the United States Constitution. Article V of said Constitution lays out a clear structure for amending itself--which would be required to establish and/or articulate a specifc new constitutional right. In no part of that process could a 50% +1 popular vote suffice. Further, the right of women to vote is guaranteed by the 19th Amendment of that Constitution, which guarantee necessarily supersedes any contradictory clause in any state Constitution by virtue of the 14th Amendment.

The Iowa Constitution--which also has an equal protections statement--is Amended by the legislature approving a bill for said amendment, which must then be sustained by a second vote in a subsequent general session of the legislature, after which it is put to the people for a vote. Thus a simple majority of both two sessions of the legislature as well as of the electorate is required to amend the Constitution. Again, a 50% +1 majority vote of the people is itself insufficient to amend; the legislature must ratify twice first.

The California constitution is one of the few where voters may put amendments on the ballot and pass amendments on a straight majority basis. However, even the California procedure cannot supersede the requirements of the United States Constitution, and so again, a 50% +1 plebiscite could not take away a woman's right to vote.
 
winston53660 said:
He s talking about the Tyranny of the Majority. But I think you already knew that
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I should have been more specific. I want him to explain the constitutional part. no need to be snide, winston.
 
Jerry said:
Neither can 2 related people. You're point?
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I guess that my point is that you are muddling a perfectly simple issue...
 
emdash said:
uh oh, do we need to talk about gender discrimination again? ;)
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We never finalised that, and I am not sure that I agree with your position as it is.
 
Marriage has been recognized as a fundamental right.
Regardless, Constitutional Equal Protection applies to privileges granted by states as well as those that are considered "fundamental rights"
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1. The term "fundamental right" is a vernacular redundancy; all rights are fundamental. Whichever legal genius coined that term deserves a proper slap.

2. A state-sanctioned marriage is not a right, "fundamental" or otherwise. A positive obligation from an unwilling party is not a right, it's coercion. As I said to Jerry, I am under no obligation to recognize or validate your lifestyle choices nor am I obligated to confer benefits upon you because of those lifestyle choies.

You, like many other Americans, have a distorted view of rights. Jefferson said:

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual." --Thomas Jefferson to Isaac H. Tiffany, 1819 [1].

Rights are not entitlements, they are negative obligations which require the inaction (not the action) of second parties. A state-sanctioned marriage obliges my recognition and defference, hence it is not a right. Also, I'm waiting for you to adress my previous post.

[1] - Jefferson on Politics & Government: Inalienable Rights
 
CaptainCourtesy said:
Also. the freedom to practice NO religion. That negates the absolute need for religion.
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That is not an argument like TNE's, the conclusion does not follow from the premise. The fact the FF's knew that the people needed to be moral and religious because they were the people the constitution was designed for is not negated by freedom of religion. It is made slightly harder to always have such a people but other benefits were thought to flow from it without it necessarily endangering the necessary virtues of the people.
 
Bodhisattva said:
We never finalised that, and I am not sure that I agree with your position as it is.
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it isn't gender or orientation discrimination on an individual level, because individuals of any gender or orientation may enter the married state as it now exists, provided they are of age, unmarried, etc.

if anything, couples are being discriminated against as units, based on their composition, which is to say, the combination of genders. I'm not entirely sure that a unit has the same rights an individual has. :confused:
 
emdash said:
it isn't gender or orientation discrimination on an individual level, because individuals of any gender or orientation may enter the married state as it now exists, provided they are of age, unmarried, etc.

if anything, couples are being discriminated against as units, based on their composition, which is to say, the combination of genders. I'm not entirely sure that a unit has the same rights an individual has. :confused:
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Good point. I guess that I have viewed as a "unit" discrimination based off of orientation. The unit being the two to be married. If they are both men, they can not marry each other, but if one is a man and the other a woman, then they can.

I don't view this as an individual discrimination issue, but as a unit one I guess... if that makes sense.
 
emdash said:
please explain this part, disneydude.
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Easy. Gay Marriage was recognized as a Constitutional right under the California Constitution. You can disagree with whether or not it should, but there is not debating that it was a recognized Constitutional right. Prop 8 removed that right by a simple majority 50%+1 vote.
State referendum procedures vary from state to state. However, prop 8 revealed that in California, it is possible to remove Constitutional rights by a simple majority vote.
If prop 8 is Constitutional, what is to prevent California from passing a law that strips other Constitutional rights? The answer is nothing. Constitutional rights under the California Constitution are currently subject to the whim of the majority.
 
disneydude said:
I can't be any more clear. Its called "THE EQUAL PROTECTION CLAUSE OF THE UNITED STATE CONSTITUTION".

It goes a little something like this..."no state shall ... deny to any person within its jurisdiction the equal protection of the laws".
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They have equal protection to marry anyone of the opposite sex. You want them to have equal protection to marry people of the same sex. Both kinds are equality and equal protection.

As shown above, generalised calls to equality generally mean little. Just as equal right to property, in the sense of being able to own property, and equal right to property, in the sense of all owning the same amount of property, are both equality and equal protection.
 
disneydude said:
Easy. Gay Marriage was recognized as a Constitutional right under the California Constitution. You can disagree with whether or not it should, but there is not debating that it was a recognized Constitutional right. Prop 8 removed that right by a simple majority 50%+1 vote.
State referendum procedures vary from state to state. However, prop 8 revealed that in California, it is possible to remove Constitutional rights by a simple majority vote.
If prop 8 is Constitutional, what is to prevent California from passing a law that strips other Constitutional rights? The answer is nothing. Constitutional rights under the California Constitution are currently subject to the whim of the majority.
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it's not specifically in the CA constitution, is it? as in, it was interpreted to be there by the judges?
 
Bodhisattva said:
Good point. I guess that I have viewed as a "unit" discrimination based off of orientation. The unit being the two to be married. If they are both men, they can not marry each other, but if one is a man and the other a woman, then they can.

I don't view this as an individual discrimination issue, but as a unit one I guess... if that makes sense.
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but DO units--self-formed ones at that--have rights aside from the rights each member has as an individual?
 
disneydude said:
Easy. Gay Marriage was recognized as a Constitutional right under the California Constitution. You can disagree with whether or not it should, but there is not debating that it was a recognized Constitutional right. Prop 8 removed that right by a simple majority 50%+1 vote.
State referendum procedures vary from state to state. However, prop 8 revealed that in California, it is possible to remove Constitutional rights by a simple majority vote.
If prop 8 is Constitutional, what is to prevent California from passing a law that strips other Constitutional rights? The answer is nothing. Constitutional rights under the California Constitution are currently subject to the whim of the majority.
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It was recognised by judicial activism; by arbitrary power. At least prop 8 was not that.
 
disneydude said:
If prop 8 is Constitutional, what is to prevent California from passing a law that strips other Constitutional rights? The answer is nothing. Constitutional rights under the California Constitution are currently subject to the whim of the majority.
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Damned if this wasn't the first statement on Constitutional law you got right.

Of course, you left out the part about that being based on the structure of the California Constitution (Article 18, §§3 & 4):
CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION


SEC. 3. The electors may amend the Constitution by initiative.



CALIFORNIA CONSTITUTION
ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION


SEC. 4. A proposed amendment or revision shall be submitted to the
electors and if approved by a majority of votes thereon takes effect
the day after the election unless the measure provides otherwise. If
provisions of 2 or more measures approved at the same election
conflict, those of the measure receiving the highest affirmative vote
shall prevail.
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Thus, in California, rights are determined by the majority rule--by their own choice.

Maybe not the most prudent mode for amending a constitution (hey, this IS Cali we're talking about!:2razz:), but it is the law of California until such time as the voters opt to amend it.

Oh, and you also left out the bit about California law having to fit within the stricture of Section 1 of the 14th Amendment to the United States Constitution. ;)
 
emdash said:
it's not specifically in the CA constitution, is it? as in, it was interpreted to be there by the judges?
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You're engaging in circular reasoning. It is in the California Constitution because the California Constitution like most Constitutions ensures equal protection under the laws. If the state chooses to engage in granting marriage licenses, it must do so in a manner that does not violate equal protection. This means that the government should not place limitations based on a person's sexual orientation to enter into a legal contract.
 
celticlord said:
Damned if this wasn't the first statement on Constitutional law you got right.

Of course, you left out the part about that being based on the structure of the California Constitution (Article 18, §§3 & 4):


Thus, in California, rights are determined by the majority rule--by their own choice.

Maybe not the most prudent mode for amending a constitution (hey, this IS Cali we're talking about!:2razz:), but it is the law of California until such time as the voters opt to amend it.

Oh, and you also left out the bit about California law having to fit within the stricture of Section 1 of the 14th Amendment to the United States Constitution. ;)
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But that is exactly what the California Supreme Court is in the process of determing right now. Whether such a scheme that allows Constitutional rights to be eliminated by the whim of the majority is itself Constitutional.
I think they probably will rule that it is...but this battle is far from over. This battle will inevitably be won, if not tomorrow, then the day after that, but certainly the trend ensures that it is inevitable...and as goes California, soon will go the Country. We're already seeing it in the heartland of America.
 
Wessexman said:
It was recognised by judicial activism; by arbitrary power. At least prop 8 was not that.
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"Judical activism" is nothing more than a right-wing label to place upon rulings that they disagree with.
There is just as much "activism" on the right, if not more, than there is on the left. Especially coming from Scalia, Thomas and Scalito.

The Judicial Branch has always been involved with interpreting laws. There are over 200 years of jurisprudence/caselaw on the books. That is what the study of law is all about.

But its easy to sell the ignorant masses on the idea that Courts should not make law and the rest of the right-wing B.S. because the masses tend to follow a 15 second sound bite. The reality is, Courts have and always will be involved in creating law.
 
disneydude said:
"Judical activism" is nothing more than a right-wing label to place upon rulings that they disagree with.
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Nope it is a label that when used accurately refers to the ignoring of precedent and tradition and the redefining of terms changing constitutions to mere guidelines and the rule of law to naught. It is nothing but the arbitrary power of a partial judicial dictatorship and should be fought as all arbitrary power should.
There is just as much "activism" on the right, if not more, than there is on the left. Especially coming from Scalia, Thomas and Scalito.
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If that is true it as bad.
The Judicial Branch has always been involved with interpreting laws. There are over 200 years of jurisprudence/caselaw on the books. That is what the study of law is all about.
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:lol:

Judicial activism is in direct contradiction to that tradition.

But its easy to sell the ignorant masses on the idea that Courts should not make law and the rest of the right-wing B.S. because the masses tend to follow a 15 second sound bite. The reality is, Courts have and always will be involved in creating law.
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And it as easy to sell the ignorant that courts should have the arbitrary power to make laws when it is something that is good.
 
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