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This is why the Constitution Might be Amended to ban Gay Marriage

Upchurch said:
My bidexterous marriage is a beautiful thing. When my boy grows up, I will love him no matter what his orientation, right or left.
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Oddly, when I was growing up, someone did once ask me why I chose to be left-handed. I should have told him not to judge my lifestyle. Thankfully, I have parents who were very supportive of my widdershins ways.
 
marksman said:
Oddly, when I was growing up, someone did once ask me why I chose to be left-handed. I should have told him not to judge my lifestyle.
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Even more oddly, I remember when I "became left handed". I kept moving the crayon back and forth between each hand trying to figure out which one was more comfortable. Did I choose to be left handed, or did I realize I was left handed?
 
marksman said:
Oddly, when I was growing up, someone did once ask me why I chose to be left-handed. I should have told him not to judge my lifestyle. Thankfully, I have parents who were very supportive of my widdershins ways.
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As I have said, there are millions of dads in the US who would love it if their sons could be taught to be left-handed (and have failed in their attempts to coerce them that way). Every MLB team needs more lefties in the bullpen...
 
So, what happens if allowing gay marriage was the will of the people?

Most striking is the sharp shift in public opinion on same-sex marriage. Forty-nine percent said it should be legal for gay people to marry, and 46 percent said it should be illegal. About three years ago, a broad majority said such unions should be illegal (58 percent illegal to 36 percent legal).
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Tsukasa Buddha said:
Quite. It depends on the group as well, but it is part of that whole "reclaiming" thing.

Only British hets get away with using fag.
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Yeah, but they're referring to a different cylindrical object being put into the mouth.
 
Perhaps there's a shift in public opinion. I think legally recognizing gay marriage is silly, but if it is due to the LEGISTLATURE -- public opinion demand their representatives recognize such marriage -- than that's something else entirely than the courts discovering a "right" to gay marriage.

Silly laws are one thing. There's nothing new there -- the world is full of silly laws passed by public opinion demanding it. But the courts overruling the people because the people are not "enlightened" enough is something else entirely.
 
Skeptic said:
Perhaps there's a shift in public opinion. I think legally recognizing gay marriage is silly, but if it is due to the LEGISTLATURE -- public opinion demand their representatives recognize such marriage -- than that's something else entirely than the courts discovering a "right" to gay marriage.

Silly laws are one thing. There's nothing new there -- the world is full of silly laws passed by public opinion demanding it. But the courts overruling the people because the people are not "enlightened" enough is something else entirely.
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I don't understand this. In my country the legislature make the law. The judiciary implement that law. In doing that they are required to stick to the meaning of what has been written down. Those who draft the law strive to be as clear as possible and there are rules for how the words are to be read and interpreted. For example later clauses are to be read in the context of earlier ones; and so we often see formulations such as "without prejudice to the generality of [subsection] 1, may in particular make any of the following orders". That is, the statute moves from the general to the particular: but where there is any appearance of conflict the issue is settled by reference to the context of the later clauses as defined by the earlier ones.

Since even careful drafting (and it is careful for the most part, with the notable exception of knee jerk laws written in response to particular events which have got the public/media fired up) can sometimes throw up ambiguity (because circumstances arise which were not envisaged when the law was written, for example) there is a need for interpretation of the words as they apply to those circumstances. Therefore we have a system for dealing with that. Where a court makes a ruling there are usually three grounds for appeal: one is where there is new evidence, but that need not detain us: the second is where the decision can be shown to be "perverse" and the third is where there is a point of law to be settled.

A "perverse" decision is of two kinds: one is where it is argued that the court could not possible have come to that decision on the basis of the evidence presented: and the other is where the court hs come to a decision which is at odds with previous judgements in similar cases. Such appeals are rare but the provision seems to me to be a necessary safeguard

An appeal on a point of law arises where there is ambiguity in the meaning of the words. This is inevitable sometimes because the statute is read contextually as noted above.

In both cases the matter is referred to a higher court and the judges there rule on whatever the issue is: in england there are generally two levels of appeal for most cases: to the court of appeal and thence to the house of lords (that is over simple but it will serve for this argument). Most often if the grounds of appeal are upheld the case is referred back to the lower court for determination in light of the appeal judgement.

Up until relatively recently the court was bound to make its judgement solely on the words of the statute. I believe there are now very limited circumstances in which the appeal court can take account of the debate in parliament in order to try to assess the "intent" of the legilature: but this cannot be done if the words are clear: and so it is only in cases of irresolvable ambiguity that this is allowed. Such cases are rare, and the provision is recent.

So the position is that parliament makes the law and then the judiciary tells them what they actually said: there is nothing sinister in that and it does not amount to the judiciary making law. If parliament finds that what they have written does not reflect what they intended then they can amend the law so it does.

I can see nothing wrong with that. Deciding cases on the basis of what the law actually says is essential because it is important that judges do not make law, for obvious reasons. And it is important that the parties to a case can read what the statute says and know that any judgement will be solidly based on that shared document. Judges must show that they have read the law with due attention to the rules of interpretation, and they must give clear reasons for their decision. In appeal cases there are several judges, all of whom must write a judgement. There are minority opinions and dissenting opinions, which are also carefully explained. But they are all based on the words.

Every effort is made to make matters plain and so laws tend to be very strangely worded: this can be frustrating but it is necessary to avoid as much ambiguity as possible: ideally there would be none but we cannot achieve that ideal: hence the arrangements outlined above.

But if the legislature has messed up and the law turns out not to do what they intended it to do they can change it. For the making of law is reserved to that body.

I do not imagine it is any different in the US though the existence of state and federal law probably make the process more complicated and more steps will be required. I think the principles will be the same and I think they are mostly sound.

If that is the case then the complaint quoted above makes no sense whatsoever: it is based on a fundamental misunderstanding of the system, IMO
 
Fiona said:
I do not imagine it is any different in the US though the existence of state and federal law probably make the process more complicated and more steps will be required. I think the principles will be the same and I think they are mostly sound.

If that is the case then the complaint quoted above makes no sense whatsoever: it is based on a fundamental misunderstanding of the system, IMO
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It is not the case in the US. The system is quite different. You have no written Constitution. We do.

The Constitution is considered a sort of "super law", above the laws passed by the legislature. If a statute passed by the legislature conflicts with the Constitution, a judge can declare that the statute is void. They can also modify and extend laws in order to bring them in line with the Constitution.

Individual states also have constitutions, and on the state level judges do the same thing.

In America prior to 2003, the statutes on marriage were crystal clear. One man gets married to one woman. There was no ambiguity, or difficulty in interpretation.

Meanwhile, in the Constitution, the fourteenth ammendment says, (quoting from memory, so it might not be exact) all persons are entitled to "equal protection under the law". Many states have similar clauses in their constitutions.

Judges in many states have decided that that simple phrase means that you cannot have a law that treats gay people differently than straight people, including a law that creates a condition called "marriage" that only allows one man and one woman.

Until last month, no legislature in the United States had ever passed a statute recognizing either gay marriage or civil unions. All of the states where such laws existed were imposed by the judicial branch, and many people are urging that the Supreme Court of the United States do the same thing nationwide.
 
Meadmaker said:
All of the states where such laws existed were imposed by the judicial branch, and many people are urging that the Supreme Court of the United States do the same thing nationwide.
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Notice that the current struggle for the legalization of gay marriage has stayed away from the Supreme Court, and wisely so. I don't think the current Supreme Court would be favorable to gay marriage.

This is the Plessy v. Ferguson Supreme Court in regard to gay rights. We have to wait for the Brown v. Board of Education SCOTUS.
 
Meadmaker said:
It is not the case in the US. The system is quite different. You have no written Constitution. We do.

The Constitution is considered a sort of "super law", above the laws passed by the legislature. If a statute passed by the legislature conflicts with the Constitution, a judge can declare that the statute is void. They can also modify and extend laws in order to bring them in line with the Constitution.

Individual states also have constitutions, and on the state level judges do the same thing.

In America prior to 2003, the statutes on marriage were crystal clear. One man gets married to one woman. There was no ambiguity, or difficulty in interpretation.

Meanwhile, in the Constitution, the fourteenth ammendment says, (quoting from memory, so it might not be exact) all persons are entitled to "equal protection under the law". Many states have similar clauses in their constitutions.

Judges in many states have decided that that simple phrase means that you cannot have a law that treats gay people differently than straight people, including a law that creates a condition called "marriage" that only allows one man and one woman.

Until last month, no legislature in the United States had ever passed a statute recognizing either gay marriage or civil unions. All of the states where such laws existed were imposed by the judicial branch, and many people are urging that the Supreme Court of the United States do the same thing nationwide.
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Sorry Meadmaker: I don't see the difference in principle. It seems to me that your constitution is akin to human rights provisions in european law: but to me that makes little or no difference to what I have outlined in terms of underlying principle.

As I see it the judiciary is still interpreting the law made by the legislature (unless the constitutions was not passed by the legislature: if it wasn't then I do indeed see a difference). That being so (if it is) then the only difference is that the principle of interpretation from the more general to the more particular and the provision that the particular must be limited by the context of the more general is upheld. The fact that the more general is in the constitution rather than earlier in the same statute does not seem to be a difference of kind.

Am I wrong about that? It does not look like judge made law to me: it looks like the judges are telling the legislature what the laws they wrote mean
 
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Meadmaker said:
Until last month, no legislature in the United States had ever passed a statute recognizing either gay marriage or civil unions. All of the states where such laws existed were imposed by the judicial branch, and many people are urging that the Supreme Court of the United States do the same thing nationwide.
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This is just not the case. The landmark civil union law in Vermont was legislative. It was prompted by a Supreme Court decision, but the decision did not specify how equal protection should be implemented, and left the mechanism up to the legislature. Civil Union was an entirely legislative invention.

I believe, though I'm not entirely sure, that the Connecticut civil union law was also initiated without a judicial judgment at all.
 
Fiona said:
Sorry Meadmaker: I don't see the difference in principle. It seems to me that your constitution is akin to human rights provisions in european law: but to me that makes little or no difference to what I have outlined in terms of underlying principle.

Am I wrong about that? It does not look like judge made law to me: it looks like the judges are telling the legislature what the laws they wrote mean
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I think you are wrong about it, although a few paragraphs don't suffice to be certain.

You asked if the legislature wrote the constitution, and the answer is, sort of. The process of ammending the Constitution is much, much, harder than the process of passing a new statute.

The important difference, I think, is that in Europe, a judge makes a ruling that says, "the law says this". Suppose the legislature is pretty sure the judge got it wrong, or that, perhaps he got it right, but they really didn't want the law to be whatever the judge said it was. What would they do? They would pass a new law that said, "No, really. This is what we meant." In America, that can't happen.

Example: In America, a judge decides that the tax code provision 1739.2B, regarding a tax break applied to produces of cheese, has a loophole that makes is applicable to makers of all dairy products, not just cheese makers. The legislature hears of this and, decides that, no, they really meant just cheese. They get together, 50%+1 of them vote, agree that they really meant cheese, the President signs it, and, no problem, it's back to cheesemakers.

On the other hand, in 1865 (or thereabouts), the Constitution was ammended to say that all people get "equal protection under the law". If, in 2011, the Supreme Court says, "That means gay people can get married, with all associated rights and privileges." Then, if the legislature doesn't like it, they have to get 2/3 of the legislature to say, "No, we didn't intend it to mean that." Then, after that happens, they would have to get 3/4 of the state legislatures to agree that they also think that marriage meant just one man and one woman.

Correct me if I'm wrong, but Europe doesn't have that sort of "supermajority" requirement.
 
Skeptic said:
Perhaps there's a shift in public opinion. I think legally recognizing gay marriage is silly, but if it is due to the LEGISTLATURE -- public opinion demand their representatives recognize such marriage -- than that's something else entirely than the courts discovering a "right" to gay marriage.

Silly laws are one thing. There's nothing new there -- the world is full of silly laws passed by public opinion demanding it. But the courts overruling the people because the people are not "enlightened" enough is something else entirely.
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I take it you never took civics in grade school? When a law is challenged, the courts decide on it.
 
Skeptic said:
Perhaps there's a shift in public opinion. I think legally recognizing gay marriage is silly, but if it is due to the LEGISTLATURE -- public opinion demand their representatives recognize such marriage -- than that's something else entirely than the courts discovering a "right" to gay marriage.

Silly laws are one thing. There's nothing new there -- the world is full of silly laws passed by public opinion demanding it. But the courts overruling the people because the people are not "enlightened" enough is something else entirely.
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No court in the U.S. has ever "discovered a 'right' to gay marriage." All of the decisions which you mischaracterize as such have merely upheld the right to equal protection under the law which nobody interested in maintaining a healthy democracy argues against.
 
Apparently gay marriage is wrong if it leads to people pushing for and getting, say, polygamy. So Skeptic, or anyone else making this argument, would you be against inter-racial marriage, too, if it led directly to people pushing for, and getting, polygamy?
 
Safe-Keeper said:
Apparently gay marriage is wrong if it leads to people pushing for and getting, say, polygamy. So Skeptic, or anyone else making this argument, would you be against inter-racial marriage, too, if it led directly to people pushing for, and getting, polygamy?
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What I don't get is why some people believe the legalization of gay marriage will lead to the legalization of polygamis and/or incenstious marriages?

This hasn't occured because of straight marriage, which has been around for thousands of years and it hasn't happened in the places that have already legalized gay marriage.
 
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