Gay Marriage (touchy subject, keep it nice)

That's a bit misleading. In order to declare a law unconstitutional, the matter has to be elevated to the supreme court (state or federal) level. District and appellate courts don't have that power.

Judges cannot make a law, or modify it. All they can do is overturn it in whole or in part. The legislative branch has the power and responsibility for drafting new laws or amendments to existing laws. Trial judges decide whic laws may and may not be applied to a case, and under guidance of law, decide what can and cannot be entered into evidence in a case. They also rule on objections and motions by the trial lawers amd instruct jurors on what they can and cannot consider in deliberating a case.

 

And that is what happened in California...when San Francisco city officials voted to allow same sex marriages, they were sued to stop this decision. The lawsuit failed as there were no provisions in the state constitution that addressed the issue either way. So, the city went ahead with its plan and began issuing marriage licenses.

In order to stop this action, the issue went to the state voters who voted overwhelmingly against allowing gay marriage. The city did not like the voter's decision so they filed suit against the state-wide voter decision claiming that such a restriction is unconstitutional. This is where judicial activism comes in.

When the State Supreme Court "heard" the case, four out of seven justices voted to overturn the election results and strike down the voter's expressed will on the basis that there was nothing in the state constitution addressing this specific issue (despite precedent going all the way back to 1850). Fair enough, but this judicial activist interpretation forced another proposition to be put on the ballot...this one actually amends the State Constitution to define marriage as between a man and a woman. When/if this takes effect, then the State Supreme Court justices will no longer have the power to "interpret" this issue and homosexual "marriage" will be prohibited.

This Proposition is a constitutional amendment to prevent judicial activism...a restriction on government authoritarianism that I endorse. Power to the people!!!

 

Why give power to the people if they use it to strip the rights of other people? What's wrong with judicial 'dictatorship' if, in this case, it's obviously being used to promote freedom and equality? When the people are prejudiced and the government is fair, how can you still argue that the former is a better governor than the latter?

 

It's a policy thing. Do we go with the will of the majority, or do we let the courts trample the majority in favor of the minority. Personally, the majority imo should not be allowed to completely override the minority, but it's not the courts job to make policy, something it's been too much for a long time. It's a legislative matter. Again though, why is it a government matter to begin with.

 

Marriage is an outdated tradition. No matter how I look at it, I can't see a single reason for people to marry. HOWEVER, since people are going to insist on still getting married, gays should have that right.

 

To be outdated it would need to serve no purpose. It and practices like it serve plenty of purposes, culturally, economically, legally, and socially. It's not an outdated tradition.

 

I have to agree; from a financial viewpoint alone, marriage is a great idea.

 

Looks like it passed. Too bad it'll just go to the courts & get overturned. What a waste.

 

So... the judicial branch did its job and struck down a law which had no basis in the constitution of the state... and that's bad...

No, sorry, I'm still lost. Explain to me again how throwing out laws that don't jibe with the constitution as written is in any way incompatible with the express purpose of the judicial branch? The whole IDEA of the judicial branch was that the public is volatile and easily swayed, and therefore judges would hold their positions for life to avoid them having to cater to the changing whims of the people. The scenario you just described:

1) People panic and demand action
2) Law gets passed
3) Court reviews law, finds it unconstitutional, throws it out
4) Constitutional amendment is introduced

is EXACTLY the process pretty much word-for-word as laid out in the original vision of U.S. government.

Why is this bad?

 

It's not bad...judicial activism forced the public to do the job that our elected legislators should have done. The constitution will be amended and the justices will no longer be able to apply their political agendas to this issue. Problem solved!

In addition to Prop 8, there is another proposition that is passing, and while there has been very little discussion about it, it could be the most important change in California/Federal political power in my entire adult lifetime. It will take "redistricting" away from the politicians and put it into the hands of a bipartisan committee. Without outrageous district borders created by gerrymandering, political power in this state will begin to reflect balanced voting districts and the one-party rule will come to an end.

In both cases, I find it sad that the people of this state had to take matters into their own hands to make changes that our elected officials should have accomplished a long time ago. I wish we had the same ability for citizen sponsored legislation at the federal level.

 

That's not judicial activism.

That's the JOB of the judicial branch.

And it is in place precisely to PREVENT laws being passed solely because they are popular. It takes time and lots of steps to make serious changes to a constitution in America, and I, for one, am thoroughly glad of it.

 

As far as I've heard, California's Prop 8, although likely to pass, is still too close to declare with all of the votes not yet tallied.

Last night, much of the country patted itself on its collective back for reaching a significant milestone in human rights. Whether or not you agree with President Elect Barack Obama's politics or not, a man of color has ascended to the highest office in the land. That does help put to rest much of a long legacy of shame in this country.

However, I find it sadly ironic that while this achievment is rightfully being celebrated around the world, the people of California are apparently staining that victory with a blow against liberty. Californians, popularly considered to be one of the most liberal collection of citizens in the country, are choosing to deny gays the same rights enjoyed for centuries by tradictional couple - the right to marry.

It threatens no one to grant them this right. I personally feel that CA Prop 8 is one of the most disgraceful initiatives this nation has seen in years, and I am deeply ashamed that it appears to be passing.

Please just think upon that as you celebrate the two steps forward civil rights have taken on the national level.

 

I am deeply saddened and dissapointed by the giant step backwards my state just took in civil rights. I feel thoroughly disgusted.

 

'Ello I'm with Carmina. I feel a little upset that Prop 8 might pass as well. People voted for the prop for the wrong reasons. They'll teach gay marriage in school, they don't even teach regular marriage in school, what makes you think that? And even if they did, they'd probably get what's called a permission slip just like sex ed and you can say whether your kid can listen to it or not. Restore marriage, marriage isn't going to be broken just because a man and man is going to marry, what is broken of our marriage is the celebrities who are allowed to get married one day and divorce the next day now that is broken.
Now after my prop 8 rant I'll actually answer the thread's question. As you can tell from my rant I have no problem with gay marriage. You love who you love and no one can tell you cannot love this person. That is your private life and the government shouldn't be allowed to make your private decisions and the government shouldn't tell you that you can't love this person. I have no problem with gay marriage because I understand that is a person you want to spend your life with.

Here and Now
~Rem Nightfall

 

I'm quite upset about this news, for several reasons.

Actually...

*imposing 24-hour post rule on self in favour of posting upset, knee-jerk response*

 

The role of the judicial branch and radical judges

Since I hate it when people talk about radical judges who take power away from the people, I decided to make a thread to discuss their role in the government.

Now, judges are supposed to only follow the constitution (whether it be at the state of more importantly at the federal level). The more powerful judges on the state or federal level are perfectly within their rights to overturn a law voted in by the legislative branch if they believe that it contradicts the constitution. They are the ones who in theory prevents mob rule of our country. Now I can fully understand and respect that you could disagree with them for idealogical reasons but please stop refering to them as radical simply because they make decisions that aren't popular with a lot of people. In my opinion, simply fulfilling the role that was given to them by our forefathers doesn't really coincide with the term radical.

Now, I know that polictics tends to get heated; hell, when it comes to that it's probably only second to religion; but please keep any debate on here civil.

 

I agree. Many people don't know better, which is one of the reasons why we need a government. People are too biased that's why they complain when a more impartial person makes a decision they don't agree with. Of course, we don't know anything about dirty judges, however....

 

You're battling against the misinformative power of a huge national news network and dozens of talking heads and ideologues. While I applaud the efforts to explain basic middle-school level civics to the world, I'm afraid you're doomed to disappointment.

 

In this matter i wish Judges were free to use a little more judgement. The Constitution while being fair is over 220 years old. In some instances, when they have been accused for being radical i can see the issue. But for the most part they are in the right. Of course i don't see why people complain, i mean in other countries they just convict you, then put you to death. I mean our country has the greatest Judicial System in the world, and if it did not abide by our constitution, then it could be called Radical.

 

Lower and appellate court judges have a long history of using their power to institute political agendas through their rulings, but they don't really matter. The only court that matters is the US Supreme Court and each state's Supreme Court because these judges ONLY consider lower court decisions in context of their relevance to the constitution.

In law, "precedent" is an important and relevant consideration. "Judicial activism" generally describes decisions that change a previous precedent in the interpretation of the constitution. Rowe v Wade is a good example. Abortion was illegal when I was a boy and that precedent had existed since the inception of the Constitution. US Supreme court justices through the RvW decision, dramatically changed the law by changing the interpretation of the US constitution. Unfortunately, our legislators lacked the political courage to rewrite the law, as they should have, instead of it being imposed by the judiciary. Personally, I think this issue should be solely between a woman and her doctor. I remember girls in my high school who disappeared from classes for a week to get illegal abortions in dangerous underground medical settings.

In California, the people of the state voted to reject "gay marriage" and four of seven justices on the state Supreme Court overturned the will of the people, reversing 108 years of precedent. Again, only four men imposed their political agenda on several million citizens. Those justices were entirely within their legal right to do what they did because the state constitution did NOT, in fact, address the issue. So in one decision, the laws of every county in California got changed...that IS judicial activism.

Those who oppose gay marriage, did the right thing. They could not get the cowards who represent them in the legislature to act on the matter so they took government into their own hands through Prop 8. It amends the state constitution to define "marriage" as a civil union between a man and a woman. Since it passed, the Supreme Court will no longer be able to interpret the constitution in this matter because it is specifically addressed. This is direct democracy at it's finest when citizens can take government into their own hands due to legislative reluctance of our elected officials.

Now, that still leaves us with a small segment of our population who are being deprived of the benefits of "marriage". How do we make things right for the homosexuals who want the same benefits in a committed relationship? Seems pretty simple top me. Ahhh, but that assumes our cowardly legislators are willing to take a stand on something that might be unpopular with some of their constituents. If I was in the legislature, I would offer a bill to remove the word "marriage" from all government certificates of civil union. That's right, EVERY citizen would receive a Certificate of Civil Union...irrespective of gender...and such unions would receive the full recognition and benefits that are presently extended to heterosexual couples. But, what would happen to "marriage"? I would say to people, "If you want a "Marriage Certificate", go to any religious organization, meet their requirements and be issued one from them. But, it will carry no legal authority within the state of California as our only contract for commitment is the Civil Union." In effect, California would get OUT of the "marriage" business. Of course, outside the state the religious "marriage certificate" may be needed to gain benefits from the federal government or in other states that do not recognize homosexual marriage. But, that's not California's problem.

 

You would also have to expunge the word "marriage" in favor of "civil union" in all state and local laws, federal laws (California could NOT do that!), court decisions (because they represent precedent and therefore contribute to judicial process), and contracts.

Not only is it impractical, it opens the courts to chaos, with awyesr arguing that a particular instance should NOT have been changed.

The term "marriage" represents a legal status wwith broad ramifications in criminal, civil, and contract law. You can't simple ignore that because of some religious perspectives.

No, the fact is that marriage is a legal status that currently discriminates against gay couples. The only remedy that makes any legal sense is to expand the meaning of marriage to include same-sex unions.

Whom does that action harm? I don't mean whom does it offend, I mean whose rights are curtailed by extending the legal definition of marriage. Note that the legal definition still need not be accepted by any individual religion because of the First Amendment.

 

I sense a lot of anger in NaCl. I agree that if the term "marriage" is the problem, make all legal marriages civil unions for gay and straight alike and leave "marriage" to the religions. I would give up my "marriage" for "civil union" if it meant giving equal rights to all citizens. The change isn't going to happen. The language is already too much a part of the law. The only way to be fair would be to extend the legal definition to include homosexuals. This is the civil rights issue of my generation. I beleive that we scored a victory when the judges decided to allow gay marriage and a step back when the people voted yes on 8. We have a system of checks and balances to balance the will of the people with the constitution. If this means we go back and forth between the judges and the people, so be it. Eventually, it will sort itself out. I believe it is only a matter of time before gay marriage is legalized. I was saddened and dissapointed that what I thought of as a step in the right direction was overturned. That is the law. I have faith that the right thing will be done eventually.

 

Even with the passing of Prop 8, and the defeat of civil rights, I have faith that it will just be a matter of time before rights are restored. Progress moves forward. This is a step back, but we will move forward again. I wish that the time was now for us to move past our prejudices and bigotry. I am dissapointed to see that is not the case.

 

Don't loose faith, Carmina. Where the government often fails us, the world of business has come to the rescue in surprising ways.

The company I work for extends my benefits to my 'spousal equivalent' happily and with no questions. Many large businesses have become savvy to the fact that disenfranchising their gay and lesbian workers only hurts them on the bottom line and so they have picked up the tab.

I think that perhaps it is time to look at a new paradigm for our social structure. We left the church behind as governing body centuries ago. Is it time to think of government as antiquated and look to a new structure to hold us together? I've read it proposed in the background of more than one sci-fi story. Shall we one day become citizens of Xerox or Pepsi-Co. or Coca-Cola? I'm down for either Xerox or Disney for citizenship. Both are leaders in providing for they're gay and lesbian employees.

 

Again, changing all current marriages to civil unions is not workable under the law. Instead, change the legal definition of marriage to include same sex couples, and they will automatically gain the same rights and protections as traditional marriages. It doesn't matter that religious groups may have a different definition of marriage than the legal definition; that is already the case. Some religions will not recognize a marriage that is conducted outside their church. The law recognizes divorce as well, and that is not uniformly recognized by all religions.

But if you try to reclassify existing marriages to civil unions, the repercussions throughout the judicial and legislative systems will be unmanageable.

The argument that calling a same sex union a marriage will destroy the structure of family is in my opinion nothing short of fearmongering. What Ted and Mike do has absolutely no bearing on John and Mary's marriage.

At this point I am moving the contents of this thread to the Gay Marriage thread. The same warning against inflammatory posting and not respecting the opinions of others will continue to apply