NYTimes: "Strong Support Found for Ban on Gay Marriage"

[Lawrence of Arabia]

Um... it's actually a very smart, logical post. Going through the courts on such a social issue WON'T give the needed legitimacy. Look at abortion. Same thing would happen. Both sides would be incredibly extreme and vicious while there would be no center for compromise.

Tell me how taking the majority decision in this case is correct, but with slavery its incorrect. Thats where the ****ty logic comes in. Selective implementation of democracy based on one's agenda.

Compromise? You cannot compromise on freedom and liberty without being hypocritical.

Furthermore, Dan has always been a more logical poster than you.

We arn't looking at precedent. We are looking at this post.

[Imran Siddiqui]

Tell me how taking the majority decision in this case is correct, but with slavery its incorrect. Thats where the ****ty logic comes in. Selective implementation of democracy based on one's agenda.

What? How is Dan taking the majority decision in this case? He is saying that decisions by courts end the political debate and lead to extremist positions and decades of hate. He is correct.

Compromise? You cannot compromise on freedom and liberty without being hypocritical.

Why, because you say so?

[Lawrence of Arabia]

What? How is Dan taking the majority decision in this case? He is saying that decisions by courts end the political debate and lead to extremist positions and decades of hate. He is correct.

But he is incorrect in saying that we should wait until the majority of people agree with gay rights to implement it. And if people hate it, they should stop talking out of both sides of their ass - you either believe in liberty or you dont. And if they are against gay marriage, then everytime they say "our country stands for freedom and liberty" they should remember that our country is also made up of gays, whose liberties are being taken away by those who purport to love it.

Why, because you say so?

Because as soon as you do, there is no more argument against anything. Your beliefs are as weak as mine. What makes yours correct and mine incorrect if you compromise on freedoms?

[Ned]

Originally posted by orange
Why do you have such a problem with substantive due process? What you fail to understand is that, at least in the context of this thread, marriage affects no one but those entering the union and possibly their offspring - likewise, gay marriage does not effect anyone but those entering the union - so why should it matter what the 'majority' thinks about the issue. If the majority of Americans think that Christianity is the one true religion, does that mean that we should all convert?

Absurd...

Absurd?

Read Justice Harlan on the underlying rationale for substantive due process:

"Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e. g., Selective Draft Law Cases, 245 U.S. 366 ; Butler v. Perry, 240 U.S. 328 ; Korematsu v. United States, 323 U.S. 214 . Thus the guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Hurtado v. California, 110 U.S. 516 , at 532.

However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights "which are . . . fundamental; which belong . . . to the citizens of all free governments," Corfield v. Coryell, 4 Wash. C. C. 371, 380, for "the purposes [of securing] which men enter into society," Calder v. Bull, 3 Dall. 386, 388. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. Slaughter-House Cases, 16 Wall. 36; Walker v. Sauvinet, 92 U.S. 90 ; Hurtado v. California, 110 U.S. 516 ; Presser v. Illinois, 116 U.S. 252 ; In re Kemmler, 136 U.S. 436 ; [367 U.S. 497, 542] Twining v. New Jersey, 211 U.S. 78 ; Palko v. Connecticut, 302 U.S. 319 . Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U.S. 1 ; Downes v. Bidwell, 182 U.S. 244 ; Hawaii v. Mankichi, 190 U.S. 197 ; Balzac v. Porto Rico, 258 U.S. 298 ; Farrington v. Tokushige, 273 U.S. 284 ; Bolling v. Sharpe, 347 U.S. 497 .

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint."

POE v. ULLMAN, 367 U.S. 497 (1961)(Harlan, J., dissenting)(emphasis supplied), http://caselaw.lp.findlaw.com/script...invol=497#TTT6

[Ned]

Mindseye, Loving v. Virgina was an equal protection case, not a substantive due process case. The basis for the Court's decision was that "racial discrimination" was odious and a violation of the equal protection clause.

Even so, you are constantly citing Loving v. Virginia to argue a substantive due process "fundamental right" to gay marriage.

Please read Justice's Harlan's description of the contours of substantive due process and when and how the Court can intervene to render unconstutional state laws as a violation of the 14th Amendment. They can do so, he says, only to the extent that the court is faithful to the traditions of our society.

How does gay marriage fits within the traditions of our society?

[Kuciwalker]

How do the "traditions of our society" have any legal authority?

[Ned]

It has everything to do with "substantive due process." Just read Harlan's explanation.

[Kuciwalker]

/me hopes Imram can sort that stuff out

[mindseye]

Originally posted by Imran Siddiqui
Going through the courts on such a social issue WON'T give the needed legitimacy. Look at abortion. Same thing would happen.

That argument has exactly the same validity as "It's going to be another Vietnam!"

Going through the courts may actually speed up acceptance for all we know. Gallup found that a majority did not support inter-racial marriage until 1991. Without Loving v. Virginia, would majority support have happened earlier or later? You can make a good argument that the number of happy, successful inter-racial marriages (and their offspring) speeded up acceptance.

We can already see this dynamic in terms of general acceptance of gay people. When no one knew them, they were considered objects of scorn. But when gay people started coming out in huge numbers, suddenly many, many people had gay relatives, co-workers, neighbors, etc. Acceptance of gays subsequently shot up. In fact, if you look at the poll figures, people who know or are related to a gay person by a significant percentage favor gay marriage over those who don't personally know any gays.

Is there any reason to believe that gay marriage would not follow a trajectory similar to that of inter-racial marriage? Our nation survived that adjustment quite well, it seems. There are two inter-racial marriages in my family alone. If my government would just cease discriminating against me, I would like to bring that number up to three.

[mindseye]

Originally posted by skywalker
How do the "traditions of our society" have any legal authority?

Denial of basic human rights should never, never be based simply on "tradition" or a popularity poll of the majority.

[Drake Tungsten]

How do the "traditions of our society" have any legal authority?

Traditions and customs are what most of our laws are based on, for the most part.

[Guynemer]

Funny; I've always thought our most important traditions and customs were freedom and liberty.


Or am I being impossibly naive again?

[Drake Tungsten]

Or am I being impossibly naive again?

Yes.

[Imran Siddiqui]

But he is incorrect in saying that we should wait until the majority of people agree with gay rights to implement it.

The problem with not waiting until a substantial number (maybe not a majority) accept it is that when the ruling goes down, many are going to be super pissed, and if enough people are against it, they may try a Constitutional Amendment. You have to be VERY careful that you don't give the extremists an issue that they can use to push their worst ideas and win on it.

Without Loving v. Virginia, would majority support have happened earlier or later? You can make a good argument that the number of happy, successful inter-racial marriages (and their offspring) speeded up acceptance.

You can... but since it was 1991, you said, it could also be stated that perhaps it may have been accepted earlier... who knows. Remember the Civil Rights Act was passed because of democratic processes. Boycotts, protests, etc. convinced a good enough number of white America in equal rights.

You do remember what happened when the court did forced busing? The riots were incredible. You have probably seen the Boston riots and the picture of the white folks holding a black man and simulating stabing him with the flag.

You want to avoid that sort of reaction. You want to avoid any hatred that can lead to BS like laws or amendments designed to destroy the ruling... unfortunetly I think that a SCOTUS ruling that gay marriage is legal would lead to a constitutional amendment banning it (and I think that is what irks Dan as well) .

How does gay marriage fits within the traditions of our society?

The 'traditions of our society' include liberty and freedom. Under substantive due process there is NO reason why laws against gay marriage are not unconstitutional. Marriage is a fundamental right in the traditions of our society and that means homosexuals should be able to marry each other.

After the correct decided Texas case on sodomy, I think the next step SHOULD be saying laws against gay marriage are unconstitutional. However, I fear what will happen if the court decides that way.

[Kuciwalker]

Originally posted by Drake Tungsten

How do the "traditions of our society" have any legal authority?

Traditions and customs are what most of our laws are based on, for the most part.

Right. So? That doesn't mean tradition itself has any legal authority.