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Read the rules in the OP before posting, please.In order to ensure that this thread continues to meet TL standards and follows the proper guidelines, we will be enforcing the rules in the OP more strictly. Be sure to give them a re-read to refresh your memory! The vast majority of you are contributing in a healthy way, keep it up! NOTE: When providing a source, explain why you feel it is relevant and what purpose it adds to the discussion if it's not obvious. Also take note that unsubstantiated tweets/posts meant only to rekindle old arguments can result in a mod action. |
On February 10 2015 12:29 IgnE wrote: Non Judeo-Christian cultures are also pretty big on marriage.
The government having such an investment in the institution of marriage is a holdover from when religion was much more dominant in government.
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this complaint of "it's not explicit in the constitution" is really quite nonsensical. the actual operative legal standard is what the supreme court says, and when you are looking for policy or legal precedent guidance you don't take out hte constitution and read it, you look at what the court says.
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On February 10 2015 12:34 Stratos_speAr wrote:Show nested quote +On February 10 2015 12:29 IgnE wrote: Non Judeo-Christian cultures are also pretty big on marriage. The government having such an investment in the institution of marriage is a holdover from when religion was much more dominant in government.
Or is a holdover from when society was more invested in marriage as a contract between families? Religion colonized marriage, it didn't invent it. Marriage is first and foremost a transaction about ownership of property between families.
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On February 10 2015 12:08 Stratos_speAr wrote:Show nested quote +On February 10 2015 10:04 Yoav wrote:On February 10 2015 09:49 Jormundr wrote:On February 10 2015 09:47 xDaunt wrote:On February 10 2015 07:41 BallinWitStalin wrote:On February 10 2015 07:21 xDaunt wrote: I'm for gay marriage, but even I can't deny that the jurisprudence that the Court is creating here is basically bullshit. Like abortion before it, this is what happens when such matters are decided by Courts rather than legislators. I think your comment basically assumes working knowledge of the court system and how this issue was handled by them (I know you work in law, so this is understandable). Could you by any chance explain in non-American layman's terms what the issue is? The basic idea is that the rights afforded the people and the government should all be explicitly set forth in the Constitution or at least have a credible basis in the text of the Constitution. To the extent that something isn't there that should be there, then the Constitution should be amended. Instead, what has happened over the past 100 years is that the Supreme Court has has created entire lines of Constitutional law that have virtually no basis in the document itself. This may not sound problematic until you see how the bad jurisprudence continues to snowball into an unintelligible mess once created. Again, the Constitution was never meant to be a plenary code of laws. It was merely there to set forth the relationship between the federal government and the states, and then guarantee certain minimum rights to the people at the federal level. The rest was to be left to the states for self-governance. Marriage is federal. Don't have my pocket constitution on me, but I'm calling bullshit on this. I'm fairly certain marriage is unmentioned in the constitution. On February 10 2015 07:21 xDaunt wrote: I'm for gay marriage, but even I can't deny that the jurisprudence that the Court is creating here is basically bullshit. Like abortion before it, this is what happens when such matters are decided by Courts rather than legislators. See, I get that there's a good case for Roe v Wade being a "mistake" from the pro-choice POV (was on the road to gradual universal legalization, but the sudden snap galvanized opposition and got them incredibly well organized and powerful to fight back). But this fight seems a lot closer to the Civil RIghts fights (not taking a position on whether this is a Civil Rights issue) like integrated schoolrooms, misegenation, and the like. The opposition was already organized and powerful, but at peak power was never really expanding territory, only trying to stall for time. And in this issue the anti-marriage lobby seems to have really faded in power. Major mainstream churches are pro-gay. The majority of the population is pro gay marriage. If there were a mandatory-vote up/down referendum tomorrow, marriage would win. Half our anti-marriage legislators are thoroughly uninterested in the issue, or in some cases actually disingenuous about their position (see how Chris Christie shepherded gay marriage into NJ while allowing himself to veto it once to keep his cred). The courts are supposed to address issues where one side has no good logical arguments and smack them down. The advantage of the unelected courts is that, by and large, they actually do work logically within each of their own ideological frameworks. So sure, they shouldn't legislate complicated things like tax law or foreign policy. But religious liberty, marriage, civil rights? That's well within their purview. Marriage is unmentioned and yet you gain certain benefits from the federal and state governments for being married, and when certain people aren't allowed to be married, it's discrimination, which is definitely addressed in the Constitution. And this line from XDaunt about "leaving it to the legislators" is crap. The courts are there precisely because we can't always trust the legislative branch to make the right decision. They clearly made the wrong decision with gay marriage and there's no way in hell any sane person could expect Congress to pass a federal law allowing gay marriage any time in the next decade. Show nested quote + I don't really get why marriage is even a governmental issue at all. The state has no interest in marriage, gay or straight. What does the state get out of people living together?
Now, I know what you're going to say. "But Millitron, the state has an interest because marriages provide families for children, and the state has an interest in seeing children raised in a healthy environment." To which I'd reply marriage has nothing to do with children. Single parents are a thing and are capable of providing a healthy environment for a child. Further, not even all heterosexual marriages result in children. Marriage is wholly unrelated to children.
Forget regulating homosexual or heterosexual marriage, the state shouldn't regulate marriage period.
1) It's obviously a product of western Judeo-Christian culture. 2) It's very, very, very well-known in the fields of psychology and sociology that children raised in single-parent households are not nearly as well off as those in a complete family. 3) Several legal issues are based on marriage, and removing the government's hand in marriage would cause a lot of problems, like a lack of tax breaks, next of kin, etc. 1) Don't care. Separation of church and state.
2) Single parents can succeed. Not that they'd even be the norm. People are capable of being de facto married, with or without a piece of paper from the state. Removing the legal institution of marriage would not remove people's desire to be in a monogamous relationship. Both parents can maintain legal guardianship through the current guardianship system.
3) Don't know why they get tax breaks, because as I said, two childless individuals don't do anything special for the state just because they're married. Anything else can pretty easily be covered by contract law.
On February 10 2015 12:34 oneofthem wrote: this complaint of "it's not explicit in the constitution" is really quite nonsensical. the actual operative legal standard is what the supreme court says, and when you are looking for policy or legal precedent guidance you don't take out hte constitution and read it, you look at what the court says. And the courts are supposed to clarify what the Constitution says, not make shit up. Why even have a Constitution if the courts can just say whatever they want?
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you have made the simple assertion that the court is making shit up, do better
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On February 10 2015 14:08 oneofthem wrote: you have made the simple assertion that the court is making shit up, do better Go look at abortion jurisprudence and then come back and tell me that the Court wasn't making shit up. Start before Roe where the Court starts discovering rights in the "penumbras of the Constitution" and work your way forward to all of the cases where the Supreme Court basically legislates when abortions are legal and when they are not.
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That a right isn't spelled out in the constitution does not mean that it isn't a right.
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On February 10 2015 14:37 zlefin wrote: That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day."
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On February 10 2015 14:34 xDaunt wrote:Show nested quote +On February 10 2015 14:08 oneofthem wrote: you have made the simple assertion that the court is making shit up, do better Go look at abortion jurisprudence and then come back and tell me that the Court wasn't making shit up. Start before Roe where the Court starts discovering rights in the "penumbras of the Constitution" and work your way forward to all of the cases where the Supreme Court basically legislates when abortions are legal and when they are not. the court simply recognized a substantive area of rights and rights at the federal or whatever 'above the states' level has to be grounded in a number of potential legal basis. they picked some result and then found the legal reasoning to make it work, which is perfectly fine. this does not mean this process of rights creation is groundless. we could get into the history of rights construction but that doesnt really matter. fact of the matter is the court makes its own justification. this process is a feature of all social construction of rights, even the constitution itself. instead of "we haz rights because scotus said so" it is "we haz rights because constitution said so". you will never escape from having to recognize some sort of rights dubbing ceremony event at some point, and this argument of arbitrariness can apply to all such incidents.
there is no privilege to the particular moral sentiments prevailing at the time of the constitution and the function of the document is clearly to provide citizenry with some set of rights, and the open ended formulation of certain amendments support this function. the court is acting within its powers to spell out these rights.
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On February 10 2015 14:44 xDaunt wrote:Show nested quote +On February 10 2015 14:37 zlefin wrote: That a right isn't spelled out in the constitution does not mean that it isn't a right. Yep, which is why I just need to convince the Supreme Court that the Constitution has penumbras stating something to the effect of "xDaunt has the right to be blown by women of his choosing twice per day."
your flippancy does not make me wrong, nor is it a good argument. Please do not argue non-seriously on such important matters.
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On February 10 2015 14:46 oneofthem wrote:Show nested quote +On February 10 2015 14:34 xDaunt wrote:On February 10 2015 14:08 oneofthem wrote: you have made the simple assertion that the court is making shit up, do better Go look at abortion jurisprudence and then come back and tell me that the Court wasn't making shit up. Start before Roe where the Court starts discovering rights in the "penumbras of the Constitution" and work your way forward to all of the cases where the Supreme Court basically legislates when abortions are legal and when they are not. the court simply recognized a substantive area of rights and rights at the federal or whatever 'above the states' level has to be grounded in a number of potential legal basis. they picked some result and then found the legal reasoning to make it work, which is perfectly fine. this does not mean this process of rights creation is groundless. we could get into the history of rights construction but that doesnt really matter. fact of the matter is the court makes its own justification. this process is a feature of all social construction of rights, even the constitution itself. instead of "we haz rights because scotus said so" it is "we haz rights because constitution said so". you will never escape from having to recognize some sort of rights dubbing ceremony event at some point, and this argument of arbitrariness can apply to all such incidents. there is no privilege to the particular moral sentiments prevailing at the time of the constitution and the function of the document is clearly to provide citizenry with some set of rights, and the open ended formulation of certain amendments support this function. the court is acting within its powers to spell out these rights. I encourage you to go read about "substantive due process" and why it is generally shat upon by pretty much everyone. If we as a society want to create additional rights at the federal level, there is a mechanism for doing so: it is called amending the Constitution. Beyond that, states and localities are free to do basically whatever they want within the confines of federal law. I'd much prefer democratic processes work things out as opposed to letting 5-9 judges make such determinations by fiat.
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On February 10 2015 14:59 xDaunt wrote:Show nested quote +On February 10 2015 14:46 oneofthem wrote:On February 10 2015 14:34 xDaunt wrote:On February 10 2015 14:08 oneofthem wrote: you have made the simple assertion that the court is making shit up, do better Go look at abortion jurisprudence and then come back and tell me that the Court wasn't making shit up. Start before Roe where the Court starts discovering rights in the "penumbras of the Constitution" and work your way forward to all of the cases where the Supreme Court basically legislates when abortions are legal and when they are not. the court simply recognized a substantive area of rights and rights at the federal or whatever 'above the states' level has to be grounded in a number of potential legal basis. they picked some result and then found the legal reasoning to make it work, which is perfectly fine. this does not mean this process of rights creation is groundless. we could get into the history of rights construction but that doesnt really matter. fact of the matter is the court makes its own justification. this process is a feature of all social construction of rights, even the constitution itself. instead of "we haz rights because scotus said so" it is "we haz rights because constitution said so". you will never escape from having to recognize some sort of rights dubbing ceremony event at some point, and this argument of arbitrariness can apply to all such incidents. there is no privilege to the particular moral sentiments prevailing at the time of the constitution and the function of the document is clearly to provide citizenry with some set of rights, and the open ended formulation of certain amendments support this function. the court is acting within its powers to spell out these rights. I encourage you to go read about "substantive due process" and why it is generally shat upon by pretty much everyone. If we as a society want to create additional rights at the federal level, there is a mechanism for doing so: it is called amending the Constitution. Beyond that, states and localities are free to do basically whatever they want within the confines of federal law. I'd much prefer democratic processes work things out as opposed to letting 5-9 judges make such determinations by fiat. Hes right. Remember that time America got together peaceful and managed to re-label black people as full persons instead of 3/5ths of a person for voting purposes and an item of property over wise. Democratically!
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On February 10 2015 15:04 Sub40APM wrote:Show nested quote +On February 10 2015 14:59 xDaunt wrote:On February 10 2015 14:46 oneofthem wrote:On February 10 2015 14:34 xDaunt wrote:On February 10 2015 14:08 oneofthem wrote: you have made the simple assertion that the court is making shit up, do better Go look at abortion jurisprudence and then come back and tell me that the Court wasn't making shit up. Start before Roe where the Court starts discovering rights in the "penumbras of the Constitution" and work your way forward to all of the cases where the Supreme Court basically legislates when abortions are legal and when they are not. the court simply recognized a substantive area of rights and rights at the federal or whatever 'above the states' level has to be grounded in a number of potential legal basis. they picked some result and then found the legal reasoning to make it work, which is perfectly fine. this does not mean this process of rights creation is groundless. we could get into the history of rights construction but that doesnt really matter. fact of the matter is the court makes its own justification. this process is a feature of all social construction of rights, even the constitution itself. instead of "we haz rights because scotus said so" it is "we haz rights because constitution said so". you will never escape from having to recognize some sort of rights dubbing ceremony event at some point, and this argument of arbitrariness can apply to all such incidents. there is no privilege to the particular moral sentiments prevailing at the time of the constitution and the function of the document is clearly to provide citizenry with some set of rights, and the open ended formulation of certain amendments support this function. the court is acting within its powers to spell out these rights. I encourage you to go read about "substantive due process" and why it is generally shat upon by pretty much everyone. If we as a society want to create additional rights at the federal level, there is a mechanism for doing so: it is called amending the Constitution. Beyond that, states and localities are free to do basically whatever they want within the confines of federal law. I'd much prefer democratic processes work things out as opposed to letting 5-9 judges make such determinations by fiat. Hes right. Remember that time America got together peaceful and managed to re-label black people as full persons instead of 3/5ths of a person for voting purposes and an item of property over wise. Democratically!
Twas a glorious day, Only took almost hundred years more after that for us to be able to legally marry white people too! You know the Constitution didn't explicitly say we could... So you know...Democracy!
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My primary concern herein (in this discussion) is that some foolish people, in matters of law, use the fact that a right isn't spelled out in the constitution, to deny the existence of such a right.
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Thank goodness the Court was there to step in! Wait a minute, I think things like Dred Scott WERE Supreme Court cases!
Or Plessy. Taking the air right out from under the 14th amendment. It would only take 60 years for them to undo their own mess.
I'm not a lawyer, but xDaunt is spot on here.
whoops, mixed metaphors. whatever.
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On February 10 2015 14:59 xDaunt wrote:Show nested quote +On February 10 2015 14:46 oneofthem wrote:On February 10 2015 14:34 xDaunt wrote:On February 10 2015 14:08 oneofthem wrote: you have made the simple assertion that the court is making shit up, do better Go look at abortion jurisprudence and then come back and tell me that the Court wasn't making shit up. Start before Roe where the Court starts discovering rights in the "penumbras of the Constitution" and work your way forward to all of the cases where the Supreme Court basically legislates when abortions are legal and when they are not. the court simply recognized a substantive area of rights and rights at the federal or whatever 'above the states' level has to be grounded in a number of potential legal basis. they picked some result and then found the legal reasoning to make it work, which is perfectly fine. this does not mean this process of rights creation is groundless. we could get into the history of rights construction but that doesnt really matter. fact of the matter is the court makes its own justification. this process is a feature of all social construction of rights, even the constitution itself. instead of "we haz rights because scotus said so" it is "we haz rights because constitution said so". you will never escape from having to recognize some sort of rights dubbing ceremony event at some point, and this argument of arbitrariness can apply to all such incidents. there is no privilege to the particular moral sentiments prevailing at the time of the constitution and the function of the document is clearly to provide citizenry with some set of rights, and the open ended formulation of certain amendments support this function. the court is acting within its powers to spell out these rights. I encourage you to go read about "substantive due process" and why it is generally shat upon by pretty much everyone. If we as a society want to create additional rights at the federal level, there is a mechanism for doing so: it is called amending the Constitution. Beyond that, states and localities are free to do basically whatever they want within the confines of federal law. I'd much prefer democratic processes work things out as opposed to letting 5-9 judges make such determinations by fiat. this is one example among hundreds of substantive rights created by the courts. i know all too well the frictions of this sort of a system but it does not mean it's illegitimate. the arguments against substantive due process is really a slippery slope argument, namely there is no hard and fast limit to judicial creativity employing that doctrine. but this doesn't mean all of the instances of its use have produced bad results.
On February 10 2015 15:59 Introvert wrote: Thank goodness the Court was there to step in! Wait a minute, I think things like Dred Scott WERE Supreme Court cases!
Or Plessy. Taking the air right out from under the 14th amendment. It would only take 60 years for them to undo their own mess.
I'm not a lawyer, but xDaunt is spot on here. you picked these examples because you recognize the substantive rights either denied or extended in those cases. with a democratic authority instead of legal authority you will pick examples in the same way. the end game is still figuring out whether you like these rights or not. so really, the courts gave some rights to gay people, GREAT! that's about it. worry about your slippery slopes when you have bad justices on the bench.
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On February 10 2015 15:59 Introvert wrote: Thank goodness the Court was there to step in! Wait a minute, I think things like Dred Scott WERE Supreme Court cases!
Or Plessy. Taking the air right out from under the 14th amendment. It would only take 60 years for them to undo their own mess.
I'm not a lawyer, but xDaunt is spot on here. Good call, 150 years the court was a tool for oppressing the blacks along with all other levers of government. Today its a tool for liberating the oppressed. Thank god for liberals and their stupid need to keep improving the lives of all Americans.
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The point is that the Court does whatever it wants and uses whatever rationale it likes to get there, just like xDaunt was saying. And like Danglars was saying, this is all ignored (at the present) when it gives some result we like.
I'm sure you'll all be back to whining about campaign finance soon enough.
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the point is that is how it works and you should look at whether the right created by the court is gud or not
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On February 10 2015 16:53 oneofthem wrote: the point is that is how it works and you should look at whether the right created by the court is gud or not
No, they'll keep complaining about the process.
Not because they are against the idea that "the ends justify the means", but because the Justices pushed a liberal cause forward. Don't ever see XDaunt, Danglers, Coverpunch, Millitron, Introvert, or anyone else calling out the legislative or judicial branch on their conservative bullshit (Corporations are people too, har har har). They're just pseudo-intellectual partisan hacks.
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