My Take on SCOTUS Ruling

[TX_1824]

I haven't posted here in almost four years. That said, I feel compelled to share my thoughts on the recent SCOTUS ruling on gay marriage. I'm am older than most of the posters on this forum, if the demographics are the same, so I may have a different point of view than most. I know politically I stand in contrast to the majority. So that said, here I go.

The subject of gay marriage is not the issue that troubles me as I take a libertarian view on the subject. I personally don’t care what others do in the privacy of their own home. My concern is that the idea of self-government, as founded by the framers of our Constitution, suffered a potentially fatal blow.

The 10th Amendment specifically states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. In the case of gay marriage the people of the state of Texas decided that marriage should be between a man and a woman. That was the decision of the people of our state. Other states made similar decisions through the consent of the governed of that state. If Texas decided that it indeed wanted marriage redefined then who are we to argue the right of the people of that state to determine its future? Are we not a people who have the right to self-govern? What is the point of elective representation when the decisions made by that representative government are overturned by five non-elected individuals who have no fear of accountability? When the will of the people continuously gets usurped by an unelected body who governs outside of the frame for which it was created then that simply is tyranny in its truest form.

I look to a quote from Justice Scalia he made several years ago in an interview he granted. The Constitution, he stated, was not there to facilitate change. The Constitution is there to prevent change. If the will of the people is to enact change to the Constitution then we have an amendment process for such an act. Once the amendment is ratified by three quarters of the states it then becomes law. This is how change is facilitated. This is how the winds of change and cultural shifts should go about change. Not through judges but through the democratic debates and the amendment process. The judges are there to rule on Constitutional law, not to create new laws, new rights or new liberties. That is outside their Constitutional role. That is the job of the legislative, and to some extent, the executive.

So where do we go from here? Every great republic in the history of civilized government has fallen. The fall did not result from any external force. Their demise was brought upon from within. If our government continues down this road, if we continue to follow the precedent established this past decade or so, then our Republic, for all its history, will be just that. History. Over these past few weeks I often reflect on one of the most significant paragraphs ever written in American history. One that stirs the true spirit of ’76 in my soul and one every American should know. It can found in the preamble of our great Declaration.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

I pray for the resurrection of our republic and our representative government. I pray that there are still those in government who have the courage to speak out against the erosion of our form of government. I pray that our flag will not follow the other republics of history and remain ever unfurled in our great land.

Again, I state that the issue of gay marriage doesn't bother me. The judicial branch granting itself legislative powers gives me cause for concern. I care not for political parties. I personally despise most if not all. I just want to see representative government maintain through the means for which it was created.

[Antonio the Sixth]

Were you equally outraged by the Citizens United ruling?

[Boston Bread]

Were you equally outraged by the Citizens United Loving v. Virginia ruling?

[TX_1824]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

[TX_1824]

Were you equally outraged by the Citizens United Loving v. Virginia ruling?

No. In this case there was no equal protection under the law because the couple in question was not allowed to marry because of race. This was a clear violation of the law. I’ll jump to your next question before you have a chance to present, even though I believe it is off topic from the conversation that I presented, with regards to gay marriage or the redefinition of marriage. What is marriage in its basic secular, non-emotional setting? Two people entering into a consenting contract. Do gay people have this right? Should they have the same rights of power of attorney, inheritance and all other rights traditionally held my married couples in the traditional one man and one woman? Yes. Should states deny two people from entering into such a contract? No. Should states be able to define what marriage is? Yes, so long as it does not deny the rights of the individuals who enter into such a contract.

[Torie]

All those rhetorical ruffles and flourishes and flag waving about the Republic being at risk because SCOTUS takes an expansive view of the equal protection and fundamental liberty concepts strikes me as somewhere between hyperbole and ludicrous. I too have qualms about the legal reasoning of the SSM decision, but I don't deem that it's putting our fundamental liberties at risk, or about to capsize the ship of state.

By the way, is this all your own prose, or is some of it "borrowed" from elsewhere? Just curious.

[TX_1824]

This is my own "prose" as you say. I referenced where appropriate. I'm too old to care about creating a sense of chest beating by "borrowing" the work of others.

My fear is that there is now a precedence set within our judicial branch of creating legislative powers within that branch. That is my underling point. Now courts can use previous rulings when a decision that may create new laws is passed down from the courts.

[TX_1824]

What is marriage in its basic secular, non-emotional setting? Two people entering into a consenting contract. Do gay people have this right? Should they have the same rights of power of attorney, inheritance and all other rights traditionally held my married couples in the traditional one man and one woman? Yes. Should states deny two people from entering into such a contract? No. Should states be able to define what marriage is? Yes, so long as it does not deny the rights of the individuals who enter into such a contract.

So are you essentially saying that the Court overstepped in saying that there is a Constitutional right to marriage, but that there is a right to enter into some type of civil unions with all the rights and privileges of a marriage contract that the states cannot deny to gay couples?

Essentially. My argument is that the courts have no standing on marriage. It is not addressed in the Constitution and thus reserved for the states to decide the matter. If we want the federal government to have a decision on what the definition of marriage is then go about the amendment process. If this case was presented to the court as an argument on property rights and the rights of individuals to enter into contract then I would agree with the ruling as the court has standing on such cases. Again, this is not an argument on whether or not gay marriage should be permitted. I’ve presented my feelings on that subject. I think we too often allow our personal feelings about a subject dictate our response to certain legal questions. The courts should turn a blind eye to emotional attachment and preside over cases based on Constitutional law. They should not change or invoke new rights or privileges. That is reserved for the legislative. A difficult process, I know, and one I struggle with everyday.

Do I feel that gay people should be allowed to marry? My personal opinion is, yes. However, my personal opinion has nothing to do with Constitutional law. That is one of the points I am attempting to make.

[bedstuy]

That's completely disingenuous.

It's not a matter of legislating from the bench.  It's a matter of interpretation of the 14th Amendment. 

There have been a variety of interpretations of the 14th Amendment since it was ratified.  Some people said you could discriminate against black people as long as there was "separate but equal."  Some people said the 14th Amendment applied only to racial issues, other people said it applied to women too. 

I think the kernel at the heart of this ruling is that the government can't treat a group of people like homosexuals differently without a rational basis for discriminating.  In previous generations, that basis was the agreed upon idea that homosexuality was an immoral, sinful mental illness.  Some people still believe that and maybe you do.  But, the overwhelming consensus is that homosexuality is normal and healthy, it's just a natural sexual orientation and form of love. 

In court, the states with gay marriage bans never argued that homosexuality was evil or immoral.  They basically just hemmed and hawed the whole way from district court to the Supreme Court.  Their task was finding a rational basis for the law and they never produced one.  And, they lost.  That is the story of this case.  The consensus on the basic facts shifted and the argument was one by the same-sex marriage side.   

As for your bizarre opinion of the court's jurisdiction, that's also false.  The Supreme Court has jurisdiction to hear 14th Amendment challenges.  The 14th Amendment applies to the states and the Constitution is the supreme law of the United States.

[🐒Gods of Prosperity🔱🐲💸]

That's completely disingenuous.

It's not a matter of legislating from the bench.  It's a matter of interpretation of the 14th Amendment. 

There have been a variety of interpretations of the 14th Amendment since it was ratified.  Some people said you could discriminate against black people as long as there was "separate but equal."  Some people said the 14th Amendment applied only to racial issues, other people said it applied to women too. 

I think the kernel at the heart of this ruling is that the government can't treat a group of people like homosexuals differently without a rational basis for discriminating.  In previous generations, that basis was the agreed upon idea that homosexuality was an immoral, sinful mental illness.  Some people still believe that and maybe you do.  But, the overwhelming consensus is that homosexuality is normal and healthy, it's just a natural sexual orientation and form of love. 

In court, the states with gay marriage bans never argued that homosexuality was evil or immoral.  They basically just hemmed and hawed the whole way from district court to the Supreme Court.  Their task was finding a rational basis for the law and they never produced one.  And, they lost.  That is the story of this case.  The consensus on the basic facts shifted and the argument was one by the same-sex marriage side.   

As for your bizarre opinion of the court's jurisdiction, that's also false.  The Supreme Court has jurisdiction to hear 14th Amendment challenges.  The 14th Amendment applies to the states and the Constitution is the supreme law of the United States.

The opinion did not focus on the equal protection clause and it did not make any claim about a lack of rational basis.

[bedstuy]

It did focus on the equal protection clause, as well as the due process clause of the 5th Amendment. 

And, as far as the analysis goes, it's just two sides of the same coin.  You can conceptualize it as an affirmative right, your fundamental freedom to marry which has been established by previous cases, and restricting the government's ability to arbitrarily restrict your rights.

[TX_1824]

“In previous generations, that basis was the agreed upon idea that homosexuality was an immoral, sinful mental illness.  Some people still believe that and maybe you do.”

I would hope you would look to what I write and not assume my personal stance or beliefs in regards to homosexuality. I’m attempting to make a case apart from emotional charges. However, since you approached the subject I will reciprocate. As stated in my last statement I believe homosexuals should be allowed to marry. I do not believe homosexuals have a mental illness. I haven’t even established my personal sexuality in the discussion. What people do in their own private lives is their own business and not that of mine, yours, the government or any person or entity not directly affected by such a relationship. I have no say or interest in who someone loves. That is my emotional response and one I have attempted to avoid.

I have been waiting for the “separate but legal” argument. I was born in 1956 in Crown Heights. My mother is from Mississippi and although I grew up in NYC I would often go south to visit family. I understood what separate but equal meant. I remember white and colored only bathrooms. I viewed segregation in all its hatefulness. I am also Jewish and the son of a Polish immigrant who survived the horrors of Nazi Europe. I witnessed the ugly side of hate. That said, I don’t believe that the “separate but equal” argument applies to this justification.

As stated previously, I do not believe states should limit property rights and other rights to couples based off of sexual orientation. If the case was brought to the court based on this fact then the 14th Amendment would apply. The argument was do states have the right to define marriage? In this case there is no answer provided by the Constitution. As a result, the court should have sided with the 10th Amendment with regards to the definition of marriage.

With the changing of opinions regarding same sex marriage do I believe demographics will change? Yes. The country is moving towards a more accepting stance on marriage. We still, however, must honor the system of government we have in place. We are still a representative government and that should never be abandoned for political expediency.

[bedstuy]

The argument was do states have the right to define marriage? In this case there is no answer provided by the Constitution. As a result, the court should have sided with the 10th Amendment with regards to the definition of marriage.

That's completely faulty reasoning.  Do you also disagree with Brown v. Board because the Constitution doesn't mention public schools?

The 14th Amendment applies to everything a state does.  The 14th Amendment is the Supreme Law of Texas and every other state.

[Antonio the Sixth]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

In other words, you're OK with the SCOTUS overriding existing legislation and going against the will of an overwhelming majority of citizens when you agree with the decision, but you're against doing the same thing when you disagree with it. Thanks for clarifying.

[TX_1824]

The argument was do states have the right to define marriage? In this case there is no answer provided by the Constitution. As a result, the court should have sided with the 10th Amendment with regards to the definition of marriage.

That's completely faulty reasoning.  Do you also disagree with Brown v. Board because the Constitution doesn't mention public schools?

The 14th Amendment applies to everything a state does.  The 14th Amendment is the Supreme Law of Texas and every other state.

I can’t argue with Brown. That was definitely ruled correctly and supported by the 14th amendment. In this case students were denied access to certain schools because of the color of their skin.

What we are talking about is the definition of an institution. Again, this is not addressed by the Constitution and must fall under the 10th. If the argument is, “I don’t like the 10th amendment and states’ rights should be abolished” then let us make that argument in another post and discuss repealing that specific amendment. There is precedent on repealing an amendment that no longer applies to the country at present. If you want to argue the Supremacy Clause then let us do that as well. However, there is no conflict between state law and federal law so the 10th amendment has to apply. It can’t be ignored while it is still on the books. 

[bedstuy]

The argument was do states have the right to define marriage? In this case there is no answer provided by the Constitution. As a result, the court should have sided with the 10th Amendment with regards to the definition of marriage.

That's completely faulty reasoning.  Do you also disagree with Brown v. Board because the Constitution doesn't mention public schools?

The 14th Amendment applies to everything a state does.  The 14th Amendment is the Supreme Law of Texas and every other state.

I can’t argue with Brown. That was definitely ruled correctly and supported by the 14th amendment. In this case students were denied access to certain schools because of the color of their skin.

What we are talking about is the definition of an institution. Again, this is not addressed by the Constitution and must fall under the 10th. If the argument is, “I don’t like the 10th amendment and states’ rights should be abolished” then let us make that argument in another post and discuss repealing that specific amendment. There is precedent on repealing an amendment that no longer applies to the country at present. If you want to argue the Supremacy Clause then let us do that as well. However, there is no conflict between state law and federal law so the 10th amendment has to apply. It can’t be ignored while it is still on the books. 

Are schools mentioned in the Constitution?  You didn't address that.

[TX_1824]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

In other words, you're OK with the SCOTUS overriding existing legislation and going against the will of an overwhelming majority of citizens when you agree with the decision, but you're against doing the same thing when you disagree with it. Thanks for clarifying.

You're welcome.

[Ebsy]

lol

[Antonio the Sixth]

For the record, I asked you that because I share some of your qualms about the decision. I have read pretty compelling argument from Roberts' dissent and I'm honestly not sure if this decision is the correct one from a legal standpoint, and would appreciate to have a serious discussion on Constitutional interpretation.

What I can't stand is the utter hypocrisy of conservatives like you, who while about "judicial activism" when the Court legalizes SSM based on the 14th Amendment, but are perfectly fine when the same Court exploits an utterly ludicrous interpretation of the 1st Amendment to allow candidates to effectively spend an unlimited amount of money. If you are utterly blind to right-wing judicial activism, you have no right to complain about left-wing judicial activism.

[🐒Gods of Prosperity🔱🐲💸]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

In other words, you're OK with the SCOTUS overriding existing legislation and going against the will of an overwhelming majority of citizens when you agree with the decision, but you're against doing the same thing when you disagree with it. Thanks for clarifying.

Isn't that the approach most people take?   

[Antonio the Sixth]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

In other words, you're OK with the SCOTUS overriding existing legislation and going against the will of an overwhelming majority of citizens when you agree with the decision, but you're against doing the same thing when you disagree with it. Thanks for clarifying.

Isn't that the approach most people take?   

I for one make an effort to separate my judgment on constitutional interpretation from my policy preferences, as the post above yours attempted to illustrate. I can understand that others take a more partisan approach to these matters, but then don't go whining "RIP Constitution " when you lose.

[🐒Gods of Prosperity🔱🐲💸]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

In other words, you're OK with the SCOTUS overriding existing legislation and going against the will of an overwhelming majority of citizens when you agree with the decision, but you're against doing the same thing when you disagree with it. Thanks for clarifying.

Isn't that the approach most people take?   

I for one make an effort to separate my judgment on constitutional interpretation from my policy preferences, as the post above yours attempted to illustrate. I can understand that others take a more partisan approach to these matters, but then don't go whining "RIP Constitution " when you lose.

Ok. By saying "when you agree with the decision"  I didn't assume you just meant "agree with the policy." 

There's no contradiction here between agreeing with Citizens United and believing that the gay marriage decision overstepped its bounds, as the Constitution more explicitly deals with political speech than it does with the definition of marriage.  I think a good case can be made that Citizens United went too far in addressing questions not directly necessary for the resolution of the dispute before the Court, but that is different from criticizing the opinion on 10th amendment grounds.

[muon2]

Antonio, if you are looking for the constitutional comparison, Citizens United is not a good choice. I think that CU followed fairly logically from Buckley v Valeo (1976), and that should be the focal point of concern for those concerned about campaign spending. In Buckley SCOTUS held that individual expenditures could not be limited since money was required to exercise free speech. Buckley also identified the importance of political association as well as political expression. If political association is as important then a group of smaller donors should be able to band together to compete against a wealthy individual. CU just identifies that associations acting through a corporation are such an entity. The concern should be whether the Buckley holding that essentially money equals free speech is appropriate.

[Torie]

Antonio, if you are looking for the constitutional comparison, Citizens United is not a good choice. I think that CU followed fairly logically from Buckley v Valeo (1976), and that should be the focal point of concern for those concerned about campaign spending. In Buckley SCOTUS held that individual expenditures could not be limited since money was required to exercise free speech. Buckley also identified the importance of political association as well as political expression. If political association is as important then a group of smaller donors should be able to band together to compete against a wealthy individual. CU just identifies that associations acting through a corporation are such an entity. The concern should be whether the Buckley holding that essentially money equals free speech is appropriate.

Yes. And I would be amazed if anyone would disagree that billionaires spending that kind of money on themselves in a campaign, while nobody else effectively can, because of limits on raising or spending money on campaigns received from others, is a complete non starter. As it is, my impression is that about half the Senators have net worths in excess of 10 million dollars. That's a real public policy problem to the extent the campaign finance laws foster that.

If I had my way, we would work more towards a system where if a candidate spends over a certain amount, the government cuts checks to the opponents that is for more than the amount of the spending excess. That still leaves what to do about all these "independent" expenditures. For that, there may be no real solution.

[Antonio the Sixth]

Antonio, if you are looking for the constitutional comparison, Citizens United is not a good choice. I think that CU followed fairly logically from Buckley v Valeo (1976), and that should be the focal point of concern for those concerned about campaign spending. In Buckley SCOTUS held that individual expenditures could not be limited since money was required to exercise free speech. Buckley also identified the importance of political association as well as political expression. If political association is as important then a group of smaller donors should be able to band together to compete against a wealthy individual. CU just identifies that associations acting through a corporation are such an entity. The concern should be whether the Buckley holding that essentially money equals free speech is appropriate.

Oh, I definitely agree with that. I already said on this forum that I consider Buckley to be the single most harmful SCOTUS ruling still in effect to this day. It's just that Citizens United is more relevant to the point I was trying to make. Buckley v. Valeo, while it set a ludicrous and dangerous judicial principle (the money = speech parallel) at least had the decency to balance this principle out with other policy considerations, and deferred to Congress for judging the property of limiting donations. This resulted in McCain-Feingold being upheld in McConnell v. FEC. Then in the past five years, the court decided to throw this balance out of the window and just go all the way to make sure campaigns are flooded with money in every possible way. Whether you think they were right or not, you can't deny that it was a clear display of judicial activism, certainly more so than the SSM decision.