Subject:
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Re: Santorum Fails In His Effort To Pervert The Constitution
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Tue, 20 Jul 2004 06:22:34 GMT
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Viewed:
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1463 times
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In lugnet.off-topic.debate, Dave Schuler wrote:
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My objection is to the use of the terms “activist judge” or “judicial
activism” as short-hand subsitutions for actual debate. Too often
Conservative pundits have decried judicial rulings as “activist” without
presenting any legitimate arguments against those rulings.
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I think you are underestimating the arguments against legislating from the
bench.
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It is not “legislating from the bench” to recognize that people are being
denied their rights.
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For instance, show me in the Constitution the right to marry. You will have to
stretch and twist, until finally you can come up with a ruling such as Roe vs
Wade that allows a women to kill her baby in her third trimester of pregnancy
under the “right to privacy”. It’s B as in B, and S as in S. In essence, a
supreme court judge can rule with impunity, because just about anything can be
gleaned from anything. And that is why the Left and Right are salivating at the
chance to appoint the next few Supremes.
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It is also not “legislating from the bench” to strike
down unconstitutional laws.
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But don’t you see? If you are creative enough, you can pull unconstitutionality
out of your butt!
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Further, it is not sufficient to claim that the judge is “activist” simply
because he or she has ruled against the perceived “will of the people,” no
matter how much Scalia (and others) may wish this were the case.
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I’m curious-- how would you respond to an act of congress that went
something like this: “The courts are not to rule on matters that have to do
with the definition of marriage.”
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Clearly, that’s an unconstitutional over-reaching by the Congress. If the
Congress enacts a law that is unconstitutional, then the judiciary is
entirely correct in striking it down. That goes for Left-favoring as well as
Right-favoring legislation. Congress can’t simply declare itself or its laws
off-limits for judicial review; that way monarchy lies.
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The Left has *not* forced the issue. One state’s judiciary has rightly
identified the laws of that state to be contrary to the Constitution, and
that judiciary has removed an impediment to equal protection under the law.
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We disagree. Every person has the right to marry anyone of the opposite
sex.
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Why must you add the qualifier “of the opposite sex” to your formulation of
the right?
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Why must this disciminatory prohibition be included as part of
the formulation?
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Because that is the definition of marriage.
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How more equal can you get? Or are you suggesting that the States
discriminate based on sex, religion, or sexual preference? It cuts both
ways...
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Not at all. It is not discrimination to allow someone access to legal
rights.
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When it’s convenient of course. Compared the lengths of governmental paternity
verses maternity leave lately?
What about when I get a $5000 tax deduction-- merely for having kids, and you as
a childless person get none? This is inequitable.
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And if the recognition of the rights of Group A is uncomfortable for
Group B, then too bad for Group B. One’s own rights do not extend to the
denial of others’ rights, and one group’s preferences have no power to
supersede another group’s rights.
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The Right has forced this issue to waste 3+ legislative days, apparently
with the intent (failed) of creating a wedge issue.
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Mayors issuing gay marriage licenses started this thing. You know that that
is the first step to forcing other states to recognize those marriages under
the 14th Amendment. Sorry, this was very deliberately begun by the Left.
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I think we were talking about two different aspects of the issue: you were
addressing the overall push for recognition of gay marriage, whereas I was
discussing Bill Frist’s (et al) choice to take up the Senate’s time with an
ill-conceived Constitutional amendment. However, I’m content to discuss it
on your terms, too, so I’ll stick to the issue at large, rather than
isolating it to the Senate.
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But it all ties together. Frist is pushing this amendment, knowing that if some
states recognize gay marriage, all states will be bound to recognize gay
marriages under the 14th Amendment against their will.
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With that in mind, I am proud to be part of the Left that has forced this
long overdue issue.
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How so? Explain to me in very precise terms how homosexual marriage
threatens the future of America. If you’d claim that it will change the
fundamental structure of our culture, then you’ve opened up the argument to
include women’s suffrage and the abolition of slavery, both of which
changed the fundamental structure of our culture.
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First off, I’m sure that there are a lot of women and blacks who would be
offended by your outrageous analogy.
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Too bad for them. I wasn’t given a checklist to determine which
qualifications must be met before a given group is sufficiently discriminated
against to merit a change to our culture. When I receive that checklist,
I’ll be happy to review it here.
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That aside, what I am talking about has nothing per se to do with homosexual
marriage, but the redefing of the institution of marriage. This is not
a gay issue.
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This is the point on which we apparently cannot agree. Let me restate that I
absolutely 100% support a the right of a church/faith/etc. to set the
criteria for legitimate marriage within that church/faith/etc. However,
those criteria are entirely separate from the legal criteria under the
Constitution. By all means, let the individual private groups set their
standards, but they have no business forcing their own views upon society as
a whole.
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But the fact remains that our society’s standards, as a whole, are
Judeo-Christian in origin.
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The state has no business defining the tradition of marriage, which would be
tantamount to endorsing a religion of its own. I’m not talking about your
religion or mine (so to speak): I mean that, by enshrining traditions as
untouchable legal principles to which all people are forced to adhere, then
the state would thereby be establishing a religion-of-state.
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The reality is that once the state defines, all are forced to adhere. The
question is who will be the ones who get discriminated against.
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The state may choose to recognize certain forms of contract, but the
standards by which the state rejects certain contracts must be consistent
with the state’s charter, in this case the Constitution.
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There is no conflict, as long as marriage is understood to be the union of one
man and one woman (which is how it has always been understood).
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Why? Where is the defense of marriage, if the essence of marriage is not
being defended? If you claim that it is irrelevant. then you must
demonstrate the reasons that it is irrelevant. How does this amendment
differ from anti-miscegenation laws?
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Again, we are talking about protecting the definition of marriage, not the
quality of particular marriages.
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Okay, now we’re getting somewhere, which is better than dismissing my point
as “irrelevant!” Again, we may disagree, but I need to clarify your stance.
Do you define the institution of marriage as the union, dissoluable at will
and unharmed by adultery, between one man and one woman? If so, then your
definition is indeed strong, though still discriminatory. If I’m incorrect
in my framing, could you provide your definition?
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Marriage is the publically declared union of a man and woman with God as their
witness to live together in holy matrimony. That would be my ideal definition
of marriage. I realize that many if not most do not attain this ideal, and many
break their vows, but that is the ideal.
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As far as I’m concerned, the pervasiveness of heterosexual divorce and
heterosexual infidelity are causing far more significant changes to the
institution of heterosexual marriage than homosexual marriage ever could hope
to do. Not that that’s entirely negative--if the institution needs to change
in order to remain relevant, then I say let it change!
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I would say that the pervasiveness of divorce and infidelity is symptom of a
general moral breakdown in our society. The general success or failure of the
institution of marriage is like a moral barometer of our culture. The
institution certainly needs no changing-- if anything, it is an anchor which
keeps our society from drifting away into moral chaos.
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And it’s not a total redefinition; it’s the existing definition minus a
biogoted restriction against a certain subset of the population.
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“A certain subset of the population”? Which subset would that be? Just
remember that anytime you define something, you have by definition
discriminated something from something else and set it apart.
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If the removal of prohibitions against freedom is indeed discriminatory, then
call me discriminatory. I will always favor greater access to rights rather
than greater restriction of rights.
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But at some point you will prohibit, or else you are an anarchist (which I don’t
believe you are).
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However, if the recognition of marital rights is uncomfortable for a certain
group, then tough for that group. The recognition of one group’s rights to
marry does not restrict another group’s rights, unless the “recognition” is
formulated in such a way as to restrict the latter group’s rights by
definition.
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I find the
definition provided by NOLO to be quite useful:
The legal union of two people.
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The presupposition that a man and a women are equal is a complete and total
lie. Men and women are not equal! They have equal rights, but they
are not just “people” with interchangable sexual organs. To deny this
profound truth is amazingly twisted and disingenuous, merely to serve a
political agenda. There is no other explanation for its complete stupidity.
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Hey, keep up that attitude, and I may quote
Cheney
at you.
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That whole topic is a joke. Let he who has not dropped the F bomb cast the
first aspersion;-)
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Other than posts in which I have asserted that they are granted equal rights,
please point me to the post in which I claimed that men and women are
literally equal, Since I have made no such claim, and since the definition
I cited made no such claim, I reject your digression here as tangential to
the argument at hand.
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I didn’t mean to imply as such, but I would assert that at the core of the gay
marriage issue is this belief. I’m sorry that I ambushed you by one of my “hot
button” topics;-)
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Polygamy aside, what about unions of brothers and brothers and sisters and
horses, etc?
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I’ve already stated my view regarding the brother/sister unions--would you
like me to give you the link? I hadn’t explicitly commented on
brother/brother unions, but now that you mention it, I have no problem with
those unions, either.
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Yes, I remember, and we simply disagree. My only point would be to reiterate
that your POV is in the vast minority, but now I hear an argument about the
tyranny of the majority approaching, and I’m having deja vu all over again:-) I
am happy to merely clarify our positions here and leave it at that.
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Also, your eager embrace of animals in this context is an attempt to blur the
issue.
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I only do so because I know that once the definition expands beyond OMOW, I know
as sure as lawyers live and breath that such unions are only a matter of time.
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You must first establish that animals are able to enter into legally
binding contracts. Once you have done this, then I will discuss the more
specific issue of human/animal marital contracts.
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Never underestimate a pack of twisted, creative lawyers on retainer:-)
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You are merely trading one discriminated group for another.
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How so?
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Like this:
Once you say marriage is between 2 people, a collective of 3 people will object.
Make it 3, and 4 will protest. Make it N people, and 1 and his sheep (sorry)
will object. And so on.
JOHN
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