US Politics 3

[MinDonner]

So the "overwhelming majority of America" now trumps the Constitution? I know I mock the ZOMG Sacred Constitution quite often, but surely this sort of thing is what it's for? And if it's not, then what use is it anyway?

[Tempra]

So the "overwhelming majority of America" now trumps the Constitution? I know I mock the ZOMG Sacred Constitution quite often, but surely this sort of thing is what it's for? And if it's not, then what use is it anyway?

Trump? No. Given great deference? Absolutely. We are a democracy (democratic republic, ya ya ya) after all.

[DanteGabriel]

As much as I'd like to see gay marriage legalized, I doubt this decision will stand. One of two things will likely happen. The Ninth Circuit will overturn the decision and SCOTUS will deny cert (the 4 liberal justices would never grant cert). Or the Ninth Circuit affirms the decision and SCOTUS grants to cert to overturn the decision. Of course, Kennedy will be the deciding vote, but I can't imagine that he'd vote to overturn the will of the people of California (and the overwhelming majority of America). This is not Lawrence.

If the Supreme Court was just supposed to ratify the "will of the people" (and I doubt it's an "overwhelming majority" who opposes gay marriage) then abortion would still be illegal, schools would still be segregated, and people could still be property.

[MinDonner]

Trump? No. Given great deference? Absolutely. We are a democracy (democratic republic, ya ya ya) after all.

Ah yes, the old "Gang rape is democracy in action" defence. Which rather ignores the fact that a civilised working democracy is much more than just majority rule. Check, balances, etc etc.

[Tempra]

If the Supreme Court was just supposed to ratify the "will of the people" (and I doubt it's an "overwhelming majority" who opposes gay marriage) then we'd still have segregated schools and people could still be property.

Brown v. Board was perhaps the most extraordinary decision in this nation's history for several reasons, including the amount of judicial overreach. If you're hoping for another Brown v. Board, I think you're going be sorely disappointed.

And only 5 states permit gay marriage (6 depending on the outcome of this case). Thirty states outright bar gay marriage. The rest offer something, but not gay marriage.

[Tempra]

Ah yes, the old "Gang rape is democracy in action" defence. Which rather ignores the fact that a civilised working democracy is much more than just majority rule. Check, balances, etc etc.

Right. And, as i said, the Supreme Court gives great deference to the people (and other branches). What is incorrect with this statement?

[MinDonner]

Right. And, as i said, the Supreme Court gives great deference to the people (and other branches). What is incorrect with this statement?

I'm not contesting whether they do; I'm contesting whether they should, notably in those cases where The People are in opposition to The Constitution. And also, then, what on earth the point of a constitution is, if it can be so easily ignored when it suits popular opinion?

[Tempra]

I'm not contesting whether they do; I'm contesting whether they should, notably in those cases where The People are in opposition to The Constitution. And also, then, what on earth the point of a constitution is, if it can be so easily ignored when it suits popular opinion?

As stated above already, the will of the people does not trump the constitution. However, whether gay marriage is constitutionally protected is unknown at this point (officially at least). SCOTUS, in making that decision, will look to the will of the people in determining whether gay marriage is a fundamental right. Are their opinions definitive? No, but finding the general opinion of 300 million people can inform the conscience of the judge in making his decision.

Anyways, whether judges' or the peoples' opinion should be respected depends only on where you stand on that particular issue.

[DanteGabriel]

As stated above already, the will of the people does not trump the constitution. However, whether gay marriage is constitutionally protected is unknown at this point (officially at least). SCOTUS, in making that decision, will look to the will of the people in determining whether gay marriage is a fundamental right. Are their opinions definitive? No, but finding the general opinion of 300 million people can inform the conscience of the judge in making his decision.

I still don't get why the Supreme Court is supposed to factor "the will of the people" into jurisprudence.

[Former Lord of Winterfell]

Would you have said the same thing to blacks in 1870?

I realize that may not be a perfect comparison, but there was a time when not being a slave was not considered a fundamental right.

Obviously, slavery wasn't ended by the Court determining that not being a slave was a fundamental right. It was ended with the ratification of the 13th Amendment in 1865. And no, given that the amendment passed in 1865, arguing that slavery didn't violate a fundamental right in 1870 would be asinine.

Slavery was abhorrent, but under the Constitution as it existed prior to the 13th amendment, there wasn't a legitimate legal argument that not being a slave was a fundamental right.

[Former Lord of Winterfell]

So the "overwhelming majority of America" now trumps the Constitution?

No, that's not the point. The point is how you decide which rights are "fundamental", assuming you're going to buy into the whole concept of unenumerated but supposedly "fundamental" rights in the first place.

I know I mock the ZOMG Sacred Constitution quite often, but surely this sort of thing is what it's for? And if it's not, then what use is it anyway?

It is supposed to protect recognized rights from the the vagaries of public opinion may threaten from those rights from time to time. So the right to free speech, right to bear arms, right to a speedy trial, etc. All the stuff the Constitution says.

It is not meant to invent and protect new, previously unrecognized rights validated at the whim of unelected justices. If the public wants to give constitutional protection to a new, previously unrecognized right, that's what the amendment process is for.

[Piper]

Under the logic of this decision, every state in the union must recognize gay marriage. Personally, I'm not sure how something can be considered a "fundamental right" when it didn't exist anywhere less than a decade ago, but I guess we'll have to see what the Court ends up deciding.

FLoW, here's Judge Walker asking and answering this question:

The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v Safely, 482 US 78, 95 (1987) (“[T]he decision to marry is a fundamental right” and marriage is an “expression[ ] of emotional support and public commitment.”); Zablocki, 434 US at 384 (1978)

(“The right to marry is of fundamental importance for all individuals.”); Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Loving v Virginia, 388 US 1, 12 (1967) (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.”); Griswold v Connecticut, 381 US 479, 486 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”).

The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.” Glucksberg, 521 US at 710. Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right. Id.

Marriage has retained certain characteristics throughout the history of the United States. See FF 19, 34-35. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. FF 20, 34. The spouses must consent to support each other and any dependents. FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. FF 35-37. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. “t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486.

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. FF 23-25. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. 388 US at 12. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. Id.

The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, FF 26-27, social disapproval of same-sex relationships, FF 74, and the reality that

the vast majority of people are heterosexual and have had no reason to challenge the restriction, FF 43. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage, FF 52. Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

Basically, marriage has evolved (often by fiat of the courts) over the course of American history, and rights other than the right to procreate have been recognized as part of what it means to be married (Griswold protected the rights of married couples to use prophylactics, ergo procreation is not an essential part of marriage). As there seems to be no essential part of marriage that same-sex couples wouldn't be a part of, Judge Walker would see no reason to deny them the same right.

[Tempra]

I still don't get why the Supreme Court is supposed to factor "the will of the people" into jurisprudence.

Because the Justices cannot retire to their chambers and check the list of fundamental rights to see whether gay marriage made the list? The Court is unlikely to overrule the will of the people unless it is clearly unconstitutional. Are gay marriage bans clearly unconstitutional? That is not an easy question to answer.

This is rather timely as well:

"WASHINGTON - Supreme Court nominee Elena Kagan is expected to begin her testimony in confirmation hearings Monday by making a forceful case the nine justices should be more respectful to the will of the people.

The high court is "wondrous" but must be a "modest" branch of government and "properly deferential to the decisions of the American people and their elected representatives," Kagan will tell the Senate Judiciary Committee, according to excerpts of her statement released by the White House.

While acting as a safeguard against an overstepping government, "the Court must also recognize the limits on itself and respect the choices made by the American people," Kagan will say."

http://www.nydailynews.com/news/politics/2010/06/28/2010-06-28_supreme_court_nominee_elena_kagan_to_urge_court_to_be_modest_respect_will_of_peo.html

[DanteGabriel]

It is not meant to invent and protect new, previously unrecognized rights validated at the whim of unelected justices. If the public wants to give constitutional protection to a new, previously unrecognized right, that's what the amendment process is for.

I vehemently disagree with this notion that it is a made-up right. The right to marry is fundamental and ancient. It's just that gay people have not been given this right until very recently. It's not about legislating a new amendment to enshrine a newly discovered fundamental right -- it's about extending the same rights to a significant portion of the population that has, until this point, been unjustly denied.

Are gay marriage bans clearly unconstitutional? That is not an easy question to answer.

Silly me, all this time thinking that's why the Supreme Court exists... To, you know, answer difficult questions about constitutionality.

This is rather timely as well:

"WASHINGTON - Supreme Court nominee Elena Kagan is expected to begin her testimony in confirmation hearings Monday by making a forceful case the nine justices should be more respectful to the will of the people.

The high court is "wondrous" but must be a "modest" branch of government and "properly deferential to the decisions of the American people and their elected representatives," Kagan will tell the Senate Judiciary Committee, according to excerpts of her statement released by the White House.

While acting as a safeguard against an overstepping government, "the Court must also recognize the limits on itself and respect the choices made by the American people," Kagan will say."

It sounds to me like Kagan is covering her ass against attacks from predictable right wing whining about "activist judges" (right up there with "liberal media" as a hackneyed right wing bogeyman to gin up money and support from their terrified dumb-ass constituency).

[Tempra]

FLoW, here's Judge Walker asking and answering this question:

Basically, marriage has evolved (often by fiat of the courts) over the course of American history, and rights other than the right to procreate have been recognized as part of what it means to be married (Griswold protected the rights of married couples to use prophylactics, ergo procreation is not an essential part of marriage). As there seems to be no essential part of marriage that same-sex couples wouldn't be a part of, Judge Walker would see no reason to deny them the same right.

That's a logical leap of epic proportions. Griswold is a privacy case.

[Former Lord of Winterfell]

FLoW, here's Judge Walker asking and answering this question:

I've read his opinion. I just think he's wrong.

In the part of the decision you quoted, he states that:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33.

That's just false. One absolute part of the historical core of the institution has been that it has been between a man and woman. If there is any one single core to the institution of marriage, identifiable throughout our history, it's that. Everything else has changed or morphed over time, but not that. So to claim it's not part of the "historical core" is just odd, particularly where he later acknowledges that "marriage in the United States traditionally has not been open to same-sex couples."

To claim that the "historical core" of marriage didn't include the fact that it was between a man and woman is just disingenuous semantics.

[Piper]

That's a logical leap of epic proportions. Griswold is a privacy case.

Griswold only protects the privacy of married couples. The right to contraception for non-married individuals came in Eisenstadt v. Baird.

The point, as I read it (feel free to disagree) is that the rights involved in marriage (including privacy) are not dependent on the ability to procreate, so the ability to procreate is not a meaningful distinction as to whether this is a new right, or the same old right to marriage.

[MinDonner]

One absolute part of the historical core of the institution has been that it has been between a man and woman.

Apart from, you know, the Mormons. And the Muslims. And all the other variations on monogamy that have been experimented with throughout the years. You might as well claim that an absolute part of the institution is that marriage is a business transaction between families, or that wives are property; they have just as much historical justification.

[Tempra]

Silly me, all this time thinking that's why the Supreme Court exists... To, you know, answer difficult questions about constitutionality.

No shit. And one factor the Court uses to answer difficult questions is the WILL OF THE PEOPLE. This is not a new idea or anything groundbreaking. Heck, you can read a whole book on how the will of the people has helped shape Supreme Court opinions if you want. The Will of the People by Barry Friedman.

Read Lawrence v. Texas to see how the court uses the will of the people in shaping their opinions. For example:

" In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").

....

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943."

You have the exact opposite situation with gay marriage as with sodomy laws. The number of states banning gay marriage has jumped (30+) and they are vigorously enforced. I don't think Kennedy can rely on the same logic to invalidate prop 8.

It sounds to me like Kagan is covering her ass against attacks from predictable right wing whining about "activist judges" (right up there with "liberal media" as a hackneyed right wing bogeyman to gin up money and support from their terrified dumb-ass constituency).

Supreme Court cases are replete with references to the will of the people. It is hardly a right wing thing.

[Andriy Czarchenko]

Which ones are these, exactly? Maybe Roberts, but that's about it. Alito and Scalia are wingnuts; Thomas doesn't have the independent judgment of a goldfish, and eats whatever Scalia puts in his tank.

What opponents of Prop 8 should be hoping for instead is that the judges who demonstrate a capacity for sound judgment are awake that day.

The only center right justice is Kennedy, and even he barely qualifies.