SPLIT--> Judicial Review & Gay Marriage

[INDY500]

That defines a secular government with free speefch, not only does it disallow a state church it also prevents the state from promoting or persecuting religious views and practices (provided that they arent violating the secular law of the land); and this extends to promoting biblical law over secular law.

It extends over other issues when property rights and individual rights are crushed over religious sensibilites (blue laws, sodomy laws and gay marriage for instance). The status quo that you are justifying is being erased by the courts as unconstitutional; and that extends to the pledge of alligence explicitely referencing one nation under God.

The framers never intended, as you suggest, that all -- including even the most benign -- references to God be removed from all official government business or political discourse. It certainly isn't the way they wrote, talked or carried on with the running of the Federal government.

And why, using your logic, if on day 1 of a HRC administration the Federal government passed a law making same-sex marriage legal, wouldn't that new law be "promoting the religious views and practices" of the million member United Church of Christ (which supports same-sex marriage) over those of the Southern Baptist, Mormon and Roman Catholic Church which do not? And thus unconstitutional.

 

[anitram]

And why, using your logic, if on day 1 of a HRC administration the Federal government passed a law making same-sex marriage legal, wouldn't that new law be "promoting the religious views and practices" of the million member United Church of Christ (which supports same-sex marriage) over those of the Southern Baptist, Mormon and Roman Catholic Church which do not? And thus unconstitutional.

Are you actually serious??

The fact that a Church supports or sanctiones a certain practice does not make that a religious practice. Churches certainly support penalties for domestic violence, but that doesn't make a domestic violence law unconstitutional on account of its religious practice. Churches certainly support that their members shouldn't steal; that doesn't mean that embezzlement laws are unconstitutional because of their religious practice.

 

[A_Wanderer]

The framers never intended, as you suggest, that all -- including even the most benign -- references to God be removed from all official government business or political discourse. It certainly isn't the way they wrote, talked or carried on with the running of the Federal government.

And why, using your logic, if on day 1 of a HRC administration the Federal government passed a law making same-sex marriage legal, wouldn't that new law be "promoting the religious views and practices" of the million member United Church of Christ (which supports same-sex marriage) over those of the Southern Baptist, Mormon and Roman Catholic Church which do not? And thus unconstitutional.

The justification for gay marriage is one of equality, namely that of homosexuals to consensually agree to a marriage contract and recieve the same legal recognition for their relationships as heterosexual couples, the push for gay marraige is not being pushed as one justified as law by religion it is one of civil rights. The opponents of gay marriage may frame their arguments in secular terms for formal opposition and there are definitely non religious people who take issue with it but the majority of the grass roots campaigning justifies the opposition on the basis of religious belief, besides which it is arguing in favour of harmful discrimination which should not be allowed by the government.

I think that it is very telling that Jesus doesn't get a mention by the founding fathers with a bare few references to a creator and natures god while in god we trust and one nation under god only get slipped into place long after it was started. Retroactively casting America as a Christianist nation runs into trouble with the primary documents.

As for your example perhaps a Federal law is the wrong manner either way (in terms of states rights) but whatever happens none of the churches opposing would be forced to sanction gay marriage, if the state was forcing the Catholic Church to marry gays it would be an issue, but that is not what you defined as the issue.

 

[deep]

The framers never intended,

using your logic,

I know we all grow up hearing certain phases

and just accept them

without any critical thinking


but, please just entertain this thought

How do you think these people (founders) (and they never called themselves framers, that word would probably make them laugh their arses off)

again how do you think these people would have reacted

if you told them they had to abide by what someone was imagining a group of people meant when they wrote a document in 1500, and any deviation from that was not allowed, because it was not their intent?

 

[BVS]

And why, using your logic, if on day 1 of a HRC administration the Federal government passed a law making same-sex marriage legal, wouldn't that new law be "promoting the religious views and practices" of the million member United Church of Christ (which supports same-sex marriage) over those of the Southern Baptist, Mormon and Roman Catholic Church which do not? And thus unconstitutional.

You really don't believe this "logic" do you?

This was a joke, right?

 

[U2DMfan]

I think it's important at some point in the near future, for someone in the lexicon of important popular political minds to clearly distinguish what a secular government actually means.

To clearly define it amongst our poltical discourse in the U.S.

It is not in the advantage of religous conservatives to do so.
Losing issue.

 

[INDY500]

I know we all grow up hearing certain phases

and just accept them

without any critical thinking


but, please just entertain this thought

How do you think these people (founders) (and they never called themselves framers, that word would probably make them laugh their arses off)

again how do you think these people would have reacted

if you told them they had to abide by what someone was imagining a group of people meant when they wrote a document in 1500, and any deviation from that was not allowed, because it was not their intent?

Framers signifies those that actually wrote or had input into the wording of the Constitution, over those that but signed it, led armies in the Revolutionary War or were in government at the country's FOUNDING.
Anyway, the "fill in the blank with the noun of your choice" clearly FRAMED a constitution that allowed for amendments and should the need arise, the process for an Constitutional Convention to rewrite the whole thing.
What I think "again fill in the blank" would object to, is 9 unelected people in robes making the country's law.

 

[U2DMfan]

What I think "again fill in the blank" would object to, is 9 unelected people in robes making the country's law.

So Brown vs Board of Education and others were bad rulings because we didn't let the States decide? Should the SC never have the ability to intervene? Is it only when one agrees or disagrees with the ruling?

Every decision they make creates law, in that it defines the constitutionality of those cases and/or laws or sets the precedent for them.

I think this whole 'activist judges' issue is a myth created by the far right to beat down certain key issues.

Not every federal law is written in the constitution.
Some constructionists act as if this is so.
What do we expect the Supreme Court to do?

From the Constitution:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. "

 

[anitram]

What I think "again fill in the blank" would object to, is 9 unelected people in robes making the country's law.

The do not make laws, they interpret them. Are you familiar with how the common law jurisdictions operate?

"Activist judges" is a mere soundbyte that is thrown around when you happen to disagree with a specific ruling.

 

[martha]

So Brown vs Board of Education and others were bad rulings because we didn't let the States decide?

I'm eagerly awaiting his answer to this.

 

[phillyfan26]

And why, using your logic, if on day 1 of a HRC administration the Federal government passed a law making same-sex marriage legal, wouldn't that new law be "promoting the religious views and practices" of the million member United Church of Christ (which supports same-sex marriage) over those of the Southern Baptist, Mormon and Roman Catholic Church which do not? And thus unconstitutional.

Good parody of conservative "interpretations" of the constitution.

 

[Irvine511]

And why, using your logic, if on day 1 of a HRC administration the Federal government passed a law making same-sex marriage legal, wouldn't that new law be "promoting the religious views and practices" of the million member United Church of Christ (which supports same-sex marriage) over those of the Southern Baptist, Mormon and Roman Catholic Church which do not? And thus unconstitutional.

yes, this of course makes sense because we don't allow atheists to get married.

 

[INDY500]

So Brown vs Board of Education and others were bad rulings because we didn't let the States decide? Should the SC never have the ability to intervene? Is it only when one agrees or disagrees with the ruling?

Every decision they make creates law, in that it defines the constitutionality of those cases and/or laws or sets the precedent for them.

I think this whole 'activist judges' issue is a myth created by the far right to beat down certain key issues.

Not every federal law is written in the constitution.
Some constructionists act as if this is so.
What do we expect the Supreme Court to do?

[/I] "

Brown v. Board of Education really just overturned the earlier (1896) and awful Supreme Court ruling that upheld institutional segregation (Homer Adolph Plessy v. The State of Louisiana). The same Court that some 30 years before that gave us the Dred Scott decision which voided the Missouri Compromise and spread slavery to the new territories. It took a Civil War and a constitutional amendment to end that bit of "judicial activism."

But if "activist judges" is such a myth, why the contentious partisan fights over judicial nominees in the Senate? Why is it we now have something called a "swing vote" on the Court? Swing between what? And why is the future makeup of the Supreme Court now one of the main issues every 4 years when we elect a president.

Not what the Framers envisioned.

 

[Irvine511]

Brown v. Board of Education really just overturned the earlier (1896) and awful Supreme Court ruling that upheld institutional segregation (Homer Adolph Plessy v. The State of Louisiana). The same Court that some 30 years before that gave us the Dred Scott decision which voided the Missouri Compromise and spread slavery to the new territories. It took a Civil War and a constitutional amendment to end that bit of "judicial activism."

oh, i see, so it's like overturning Roe V Wade. it's what the framers would have wanted.



[q]But if "activist judges" is such a myth, why the contentious partisan fights over judicial nominees in the Senate? Why is it we now have something called a "swing vote" on the Court? Swing between what? And why is the future makeup of the Supreme Court now one of the main issues every 4 years when we elect a president.[/q]

maybe Sean Hannity or Rush Limbaugh should have asked Clarence Thomas this when he was hawking his book on their radio shows, or maybe you should ask Rudy this when he swears to place judges who'll over turn that whole RVW thing.

as it turns out, i agree with you, sort of, but this certainly cuts both ways. and i'd say it started with Bork -- a Regan nominee, and as clear a hand-out as anything, ever, to the "Moral Majority" peeps.

 

[A_Wanderer]

yes, this of course makes sense because we don't allow atheists to get married.

I would make a mocking statement about how atheists are supposedly promiscuous drug users but then I remembered that that may not be a bad thing.

 

[U2DMfan]

But if "activist judges" is such a myth, why the contentious partisan fights over judicial nominees in the Senate? Why is it we now have something called a "swing vote" on the Court? Swing between what? And why is the future makeup of the Supreme Court now one of the main issues every 4 years when we elect a president.

Not what the Framers envisioned.

That's a great question.

My personal opinion is that it's all about abortion.

I do think it's a myth, cooked up by the wingnuts.
Business formula, the Limbaugh method.
No matter what, the opposition is ALWAYS wrong and nefarious.

It's more menacing to tell the American people that these judges are making laws up from the bench than to just say, well the Democrats (read: Dem nominated Judges) want to keep abortion legal. The public already knows that.

Soooo, you've got to make it salacious and hateful and maybe make it seem a bit un-American.
At the least, second guess their patriotism. There you go! Winner!

Whatever works, right?

 

[INDY500]

yes, this of course makes sense because we don't allow atheists to get married.

Missing the point completely, notice the "using your logic." A-Wanderer's logic being that any argument made about law on the basis of a religious belief is invalid. More than invalid, dangerous. And any statute with it's roots in religious law, is unconstitutional.

I disagree. The ideal was not to establish a Church (singular) to make law, not that those that go to church cannot help make the law.

And I certainly don't see how A_Wanderer sees our current law as it pertains to same-sex marriage to be a clear violation of the Establishment Clause. There are secular arguments against it as well.

 

[A_Wanderer]

Secular arguments that have been very lacking because they are so very laughable; the use of pseudoscientific arguments to justify the harm of homoseuxality have been stripped away and they are continuing to be stripped away. Homosexuality is not a mental illness, homosexuality occurs in other species and the act of homosexual sex has at least one less concequence than heterosexual sex (given the transmissibility of intelligently designed STDs God must prefer sapphic unions).

Opposition that makes an appeal to religious doctrine is justified by nonsense, secular arguments against legal recognition for homosexual relationships while heterosexual ones may have it are invariably at odds with the rights and liberties of homosexuals. Last time I checked gays pay their taxes and are citizens of our countries, they should expect the same treatment from the government as everybody else without discrimination.

If laws are sanctioned on the basis of a religious belief then it is explicitely endorsing that religious belief (also called promoting religion). It is something else altogether in those few instances that religious texts somehow manage to eek out a scrap of morality that is also coincident with law to protect individuals, their rights and their liberties (murder for instance) on non-religious grounds.

I have an issue with murder of people, hurting people as well as stealing and fraud; all things which violate the rights that individuals accept to be guaranteed when they engage with society. These are not given or protected by God but by "the people" as a whole and the laws and institutions that have been created to protect them.

 

[BVS]

And I certainly don't see how A_Wanderer sees our current law as it pertains to same-sex marriage to be a clear violation of the Establishment Clause. There are secular arguments against it as well.

I want the drugs you are on...








Please tell me one, just one.

 

[A_Wanderer]

I want the drugs you are on...

Please tell me one, just one.

My reality based arguments are built on ergoline alkaloids and alcohol

 

[maycocksean]

On one point, I agree with Indy.

The Framers would not have approved of the extent to which judicial review is used today. Many were wary of any branch becoming too powerful (though it seems they worried more about the executive and less about the judicial).

But here's the thing, the Framers were not perfect beings who created The Perfect Document, whose every intent was holy and unassailable. Honestly, some of those on the Right treat the Constitution and those who wrote like the Bible and the prophets.
The reality is that the Constitution was not (and is not) a perfect document (one egregious example--the Framers agreed to the 3/5 compromise that continued to accomodate slaver). The Framers knew this. In fact there were a lot of Framers who were very dissatisfied with the Constitution (George Mason even refused to sign it). So what I think the Framers would be horrified by today, is the amount of sanctity we award their "intent." Their "intent" was never even unanamious, much less unassailable.

 

[anitram]

Not what the Framers envisioned.

Who gives a shit what they envisioned? In Canada, we approach constitutional issues from the "living tree" doctrine - i.e. the constitution is a living tree which is meant to grow and expand as times change.

Certainly legislative intent is an important thing in intepreting a given law. But there is a difference in interpreting the will of the legislature regarding a bill they passed 6 years ago and a constitutional document which was written over 2 centuries ago and which may simply have little if any continuing relevance.

 

[verte76]

Things change. The Constitution was written in the eighteenth century. We had slavery. Thomas Jefferson was a slave owner. We need to adjust to modern realities.

 

[phillyfan26]

And I certainly don't see how A_Wanderer sees our current law as it pertains to same-sex marriage to be a clear violation of the Establishment Clause. There are secular arguments against it as well.

Uh, because people pound their Bible and say "homosexuality is a sin! we can't have same-sex marriage!" and that somehow makes sense to people? Maybe that's where?

I've yet to hear a single secular argument about it. Not a single, solitary one.

 

[phillyfan26]

Not what the Framers envisioned.

The Framers envisioned a lot. They were against imperialism. Should we give Louisiana back? Alaska? Hawaii? Should we go back to slavery?

 

[Irvine511]

Missing the point completely, notice the "using your logic." A-Wanderer's logic being that any argument made about law on the basis of a religious belief is invalid. More than invalid, dangerous. And any statute with it's roots in religious law, is unconstitutional.

I disagree. The ideal was not to establish a Church (singular) to make law, not that those that go to church cannot help make the law.

And I certainly don't see how A_Wanderer sees our current law as it pertains to same-sex marriage to be a clear violation of the Establishment Clause. There are secular arguments against it as well.

honey, marriage is a secular institution in the eyes of the state. God has nothing to do with the benefits you receive. hence, when you (the royal you) say things like "allowing marriage equality violates my freedom of religion" or "my being unable to fire people on the basis of being gay violates my freedom of religion," you are violating the Establishment Clause. shall we go through and take out the quotes tossed around by the Republicans in the House?

i agree with your distinction about not wanting a singular church -- i wonder how we'd feel if our Baptist children suddenly had to say "hail mary" every morning and pray the rosary after lunch -- and, yes, those that go to church are certainly free to make the laws. but what you're advocating is quite a different thing altogether, and it's thoroughly Christian in it's view -- are those who go to Mosque allowed to make the laws? those who go to synagogue? those who are atheists?

 

[melon]

Who gives a shit what they envisioned?

It's funny, because the American approach to the "Founding Fathers" reminds me of something that Icelandic historian, Snorri Sturluson (1178-1241), theorized regarding the origin of the Norse gods. That is, these mythological gods began as ancient kings or war heroes, who, through the passage of time and legend, develop into cults. As the early Norse tribes entered battle or overall hardship, they would call upon the memory of that dead king for strength. Finally, enough time passes that they are remembered solely as gods.

Is George Washington the "Óðinn" (chief god of the "Æsir," who signified "war" and "power") of our day? Thomas Jefferson, I imagine, would be "Njörðr" (father of the "Vanir," who signified fertility, wealth, and pleasure). After all, it seems that even Norse deities divided themselves into opposing political parties.

 

[INDY500]

The Framers envisioned a lot. They were against imperialism. Should we give Louisiana back? Alaska? Hawaii? Should we go back to slavery?

Imperialism? I thought we bought Louisiana from the French, Alaska from the Russians and the residents of Hawaii actually voted to become a state.

Slavery was abolished in the United States by the Thirteenth Amendment. Notice the Constitution was AMENDED by Congress and state legislatures, not reinterpreted by judges to fit the mores of the day.

Just as the Framers envisioned.

 

[melon]

Slavery was abolished in the United States by the Thirteenth Amendment. Notice the Constitution was AMENDED by Congress and state legislatures, not reinterpreted by judges to fit the mores of the day.

Just as the Framers envisioned.

You should remember another amendment that was passed at the same time:

14th Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The latter is particularly important, because the intention was to prevent laws from being created that targeted a specific, unpopular minority. In the 19th century, that meant passing laws with the intent of singling out the African-American population. Unfortunately, this amendment had been "reinterpreted by judges to fit the mores of the day" (those "mores" being a deep hatred of blacks and support for segregation) for close to 100 years, before actually being enforced properly in the 1950s and 1960s.

And now here we go, in the 21st century, passing laws with the specific intention of singling out and discriminating against an unpopular minority of gays. According to the 14th amendment, passed by those same state and federal legislatures "as the Framers intended," these laws are unconstitutional. But, as you can see regarding all those laws supporting racial segregation for nearly 100 years after the 14th amendment banned them, it takes judicial courage to uphold the law, rather than cave in to popular political pressure. The United States, unfortunately, is not known as a courageous leader in civil rights, from a global historical standpoint.

 

[martha]

the residents of Hawaii actually voted to become a state.

Did they vote to be overrun by American business interests before they were a state?