Well It's Democracy

[spinningfreemanny]

The idea is is that the judicial branch has no right to erase and rewrite state laws and constitutions; Thats why we have a legislature.

[J'Pol]

For the non-Americans, could someone please explain the whole marriage / constitution thing.

Is there something in your constitution which specifically precludes same sex marriages. Or is it implied by discussing the marriage of man and woman (or vice versa).

It may help us in the developing world to understand the problems you are having.

[j2k4]

J'Pol-

The U.S. Constitution currently contains no language such as a DOMA (Defense of Marriage Act).

Bush's original idea was to threaten to amend the document (this is not done lightly) in order that the individual state legislatures might address the issue via referendum, as is Constitutionally correct, their Right, and indeed their obligation.

The legislators, in turn, are loathe to voice an opinion or cast a vote which could bear so heavily on their re-elections (it is a visceral issue, no?), and so do nothing.

The Judiciary, on the other hand, feels no such pressure (appointed for life, not subject to ornery voters), and so by fiat decided to "solve" the problem for a society seething for/with debate.

There are two problems:

1) The Supreme Court (in this case, the Massachusetts Supreme Court) steps out of it's own Constitutionally defined arena, and into the legislature's.

2) Society is not afforded the opportunity to have it's debate and address the issue in the polling place; it continues to seethe, much as it does over the abortion issue.

The Constitution provides for the states to handle precisely such issue via referendum, but, due to the real possiblity of non-uniform result (the likelihood of which is one of the underpinnings of the document), people like vid wish to flout the Constitution by improperly and illegally trumping State's Rights with a Supreme Court vote, because of the nature of the question.

The Federal Constitution isn't the organ for determining quality of life issues; the State Constitutions are.

To have it any other way would require?

You guessed it: A Constitutional Amendment!

You'll never know how much I hate typing such a post upon awakening-I haven't even had a cuppa, yet.

[lynx]

I fail to see how you can argue that a fundamental issue such as a person's rights should fall to individual states to implement. If the issue is one of rights, they apply universally and as such should be taken up at a Federal level, otherwise they are not rights but options.

It seems to me that it must be first decided at a Federal level whether these are rights, and it is usual for the Judiciary (probably the Supreme Court in the US) to determine such issues by examining current laws and constitutions. Interpretation of the laws is their function. If they interpret a law in a way which was not the intention of the legislature, it is the legislature which is at fault for not being more explicit.

Once the Judiciary has made such a determination, then if it has decided they are rights there is nothing for the individual states to discuss, the Federal legislature also need do nothing with regard to those rights (unless it feels there is a need to remove them) but it will have to do something in respect of other legislation in order to enact those rights.

On the other hand, if the judicial system determines that they are not rights, it is then that individual states can decide whether they wish to allow the options available to them.

[j2k4]

The judiciary has attempted to make law relative to the question of gay union.

The making of law is the exclusive province of the legislature.

The function of the judiciary is to determine the Constitutionality of such law as the legislature formulates and enacts.

No government body may make law in place of the legislature.

The legislature is currently loathe to address the situation, owing to it's potential impact on re-election.

Bush is attempting to remedy this legislative impasse.

BTW, lynx-the Constitution grants the States the Right to make such law; it is not for us to debate the wisdom of the founders, but if this issue is decided any other way than by the states, and is not supplemented by an amendment(&#33 to pave the way for that decision, the issue will not have been legally decided and will not go away.

That's it for me; this is turning into a real headache.

[lynx]

I doubt very much that the judiciary has attempted to make law, they (probably more than the legislature) would be only too aware of the folly of that course of action. What is more likely is that those who disagree with the ruling of the judiciary are trying to argue that this is what is happening. It may well be that the originators of the laws did not foresee the possible interpretation now being put on the laws, I imagine they were made quite some time ago and possibly at a time when homosexuality itself was illegal in which case the subject of same-sex civil union could not be an issue.

I disagree with your interpretation of the role of the judiciary, although what you describe is a (small) part of it's function. I am sure the legal profession would disagree too, they make their best money on cases where the legislature has not left things cut and dried. But it is right that the legislature do not always tidy everything up, they cannot possibly consider every possible case and if they attempted to do so no laws would ever be passed. If they could then every option would have been covered and there would be no need for the judiciary.

If the legislature is loathe to address the situation it may be as you say because of re-election concerns, alternatively it may be because it thinks that the ruling of the judiciary is just fine and sees no need to intervene.

I'm not sure of the heirarchy of US laws, but I was under the impression that if the Federal Supreme Court made a ruling then it would be binding on an individual state's Supreme Court. Otherwise what is the point of having a Federal Supreme Court? Similarly doesn't the Constitution of the United States outrank the Constitution of an individual state? If not, why have it, it is useless.

And any amendment is only necessary if the current constitution does not address the issue. Bush is threatening to introduce the Defense of Marriage Act. The question is whether such an act would be constitutional, and that falls back to the judiciary and I'm pretty sure they've indicated they believe it would not be.

[hobbes]

Originally posted by J'Pol@8 August 2004 - 06:33
For the non-Americans, could someone please explain the whole marriage / constitution thing.

Is there something in your constitution which specifically precludes same sex marriages. Or is it implied by discussing the marriage of man and woman (or vice versa).

It may help us in the developing world to understand the problems you are having.

THE UNITED STATES CONSTITUTION

--------------------------------------------------------------------------------
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America and keep away from the pooper, you sickos.


Guess I should have done my homework, the answer is right there. I see no point in discussing this further as the lines have been drawn.

BTW, how many of you can sing the pre-amble above from those old "Schoolhouse Rock" cartoons.

Coming soon: "Me, I just a bill, just a bill up on Capitol hill......" and "Conjunction junction what's your function? Hookin' up words and makin' "clauses"".

[clocker]

Jeez j2, you make Bush out to be a scholar or sumpin.
You are aware that prior to becoming President, Bush was foursquare AGAINST a Constitutional amendment regarding gay marriage.
Hopping on the bandwagon now seems to me to be little more than a political move pandering to the religious right wing constituancy he so desperately needs to claim another term.
Even if such an amendment were to clear the Congress ( and, embarrassingly enough for the Republicans, it didn't even come close) it would take YEARS for the required 36 states to ratify it.
That would be years during which another minority would be deprived of benefits and legal standing.
At the end of this interminable process I think the Amendment would fail anyway.
Times are 'achangin and this diversionary tactic can't stop them.

[J'Pol]

Thank you chaps.

I suppose the question really is whether or not marriage, or the civil advantages it endows, is a basic human right.

I myself have a tendency towards equality of treatment. As such it seems right to me that same sex unions (whatever we wish to call them) should have the same rights as traditional married couples. It would also seem to me that it should be the same for all of the states.

However when one thinks about it, that would depend on how other matters are dealt with. For example I believe you have federal taxes and state taxes, so any tax breaks would be decided on (at least partly) by the individual State.

I think the bottom line is that, if marriage is considered a basic human right, then it should be the same treatment for the whole of the USA. However if the argument purely relates to things like tax, pensions etc then is should be down to the individual States to decide as they do with other related issues.

If the latter is the case then I believe that gay couples should be treated equally to traditional couples, within the state itself. However that is more likely to happen in some places than in others.

Surely then it would be a matter for federal government to decide that all couples would be treated equally. Then for state government to decide exactly what that treatment will be.

[vidcc]

I have been once again overtaken by posters with less distractions than i.

J2 you say that "people like me".."wish to flout the Constitution by improperly and illegally trumping State's Rights with a Supreme Court vote, because of the nature of the question."

That's bull. I am not supporting gay rights..i am supporting HUMAN RIGHTS AND EQUALITY...the nature of the question is irrelivent. I am able to do this even though i find the homosexual act repulsive.

I believe that the laws we have which protect from discrimination are adequate and were used properly in the rulings. The rulings being the finding that a law that exists has been broken. The courts are there to make rulings on the laws. A certain party in government didn't like the ruling and made an attempt to change the laws...this failed...and rightly so i.m.o.
My original post was making the point that although it's democracy it's not what the USA tells everyone it stands for when it spouts the virtues of freedom.


you stated earlier that you made no opinion so to clear it up for us lets see where you do stand on the issue. yes or no answers please.

1. Do you think that equality is a right in the USA?

2. Homosexuals should have the right to a "union" that grants them the same rights as hetrosexual marriages ?

3. should a specific amendment to the constitution be put in place to ban gay "unions".

Edit: here are my answers.

1. yes

2. yes

3. no