New York Court Rules Gays Must Be Allowed To Marry

[Starbuck1975]

My parents are married, and I wouldn't call their marriage 'cheap' - yet they were married at city hall rather than a church, because my father is religious and my mother is not.

Many couples are capable of holding their vows and honoring the tradition of marriage...but if you look at marriage within the context of our entire society, for an institution it does not have a very high success rate...to me this whole gay marriage thing is an argument over semantics, embedded in a larger struggle for social acceptance.

 

[aidanjm]

Originally posted by: Starbuck1975

It is clearly NOT constitutional to deny any individual of their rights based on the choices they make in the bedroom.

With the exception that marriage is not a right...it is a social instiution with some financial benefits and conveniences that the state chooses to recognize or bestow upon couples that choose to marry.

Eliminate the term marriage from the equation, with the state recognizing civil unions for all couples regardless of their sexual orientation...leave marriage for the churches...problem solved.

Marriage is not a right, but being treated equally before the law IS a right. In this case, equal treatment would mean same-sex couples would have access to marriage.

 

[Starbuck1975]

Marriage is not a right, but being treated equally before the law IS a right. In this case, equal treatment would mean same-sex couples would have access to marriage.

Extending the privileges of marriage to homosexual couples in the form of civil unions would satisfy this requirement.

 

[3chordcharlie]

Originally posted by: Starbuck1975

My parents are married, and I wouldn't call their marriage 'cheap' - yet they were married at city hall rather than a church, because my father is religious and my mother is not.

Many couples are capable of holding their vows and honoring the tradition of marriage...but if you look at marriage within the context of our entire society, for an institution it does not have a very high success rate...to me this whole gay marriage thing is an argument over semantics, embedded in a larger struggle for social acceptance.

You're quite right - it is an argument over semantics, but regardless of the success rate of marriage, it is still a meaningful institution. The suggestion of 'civil unions, but don't call it marriage' is an attempt to use semantics to permanently legitimize a lack of social acceptance. For gays to accept such an outcome would be a very poor decision if they want to be accepted in the long run.

 

[3chordcharlie]

Originally posted by: Starbuck1975

Marriage is not a right, but being treated equally before the law IS a right. In this case, equal treatment would mean same-sex couples would have access to marriage.

Extending the privileges of marriage to homosexual couples in the form of civil unions would satisfy this requirement.

Not it really wouldn't - it's the equivalent of 'seperate but equal'. It's not equality. It reminds me of the line in American Beuty when they (gay) dad says something like 'don't they have the decency to be ashamed of being gay' and the kid says 'i think that's the point, they don't think it's something to be ashamed of'.

 

[bsobel]

Maybe it's my Libertarian mindset, but I just can't understand why this issue keeps coming up. The article plainly says they already are married. I think it's idiotic that now they (or anyone else) have to convince the government that they're married, or for that matter feel they need to.

I agree with what you said up until the 'for that matter feel they need to'. Like it or not, many current laws are based on ones marriage status, and this affects many parts of a couples financial life (tax law, insurance, property owernsip, surviorship, etc). So, since the state will deny them these benefits unless they prove to the state that they are indeed married (in the states eye's), I don't understand why people are surprised they would fight to do so.

Bill

 

[Starbuck1975]

Not it really wouldn't - it's the equivalent of 'seperate but equal'. It's not equality.

The entire social construct of our society contains invisible barriers that maintain a seperate but equal framework for equality...why would it be any different for gays?

The suggestion of 'civil unions, but don't call it marriage' is an attempt to use semantics to permanently legitimize a lack of social acceptance. For gays to accept such an outcome would be a very poor decision if they want to be accepted in the long run.

Well that is exactly the point...what we are talking about is social acceptance and not the institution of marriage...and forcing social change through legal action rarely leads to acceptance.

In order to institute social change, you need to break down the barriers, stereotypes and attitudes that fuel the discriminatory fire...however, forcing social change before you break down those barriers may establish legal equality, but will never establish true acceptance.

 

[3chordcharlie]

Originally posted by: Starbuck1975

Not it really wouldn't - it's the equivalent of 'seperate but equal'. It's not equality.

The suggestion of 'civil unions, but don't call it marriage' is an attempt to use semantics to permanently legitimize a lack of social acceptance. For gays to accept such an outcome would be a very poor decision if they want to be accepted in the long run.

Well that is exactly the point...what we are talking about is social acceptance and not the institution of marriage...and forcing social change through legal action rarely leads to acceptance.

In order to institute social change, you need to break down the barriers, stereotypes and attitudes that fuel the discriminatory fire...however, forcing social change before you break down those barriers may establish legal equality, but will never establish true acceptance.

I would argue that social progress normally comes from fighting the fight on all fronts, not just one.

Blacks gained legal equality through their rights campaign long before they gained any sort of social acceptance, though they worked for that acceptance at the same time (whether they have finished the job yet is questionable).

 

[Starbuck1975]

Blacks gained legal equality through their rights campaign long before they gained any sort of social acceptance, though they worked for that acceptance at the same time (whether they have finished the job yet is questionable).

It is questionable, because the discriminatory mindsets that oppressed blacks for so long went from being overt to burrowed deep within the social construct of our society...so while blacks did in fact gain equal rights, they have yet to achieve equality several decades later.

I would argue that social progress normally comes from fighting the fight on all fronts, not just one.

Push too hard on any one front, and there will be a backlash...we should truly thank the mayor of San Francisco for stirring the religious right hornets nest prematurely.

 

[ElFenix]

Originally posted by: 3chordcharlie

Originally posted by: ElFenix
a challenge? through what mechanism? i mean, if it's an amendment to a state constitution it could run up against the US constitution and be challenged that way, but if you're challenging an amendment to the US constitution your only recourse is through the political system (which obviously just amended the constitution so isn't a likely avenue).

A challenge to the USSC. If the court is forced to make a decision based on the constitutionality of an issue, they would have to interpret the constitution and its amendments together, If there's a contradiction between a protected and an unprotected right, they would have to make a decision (unless they have the authority to directly throw out the added language, I'm not sure if they do).

It would be an ugly situation, and is a big part of the reason that I doubt this hate-amendment will ever see the light of day.

the court has no ability to throw out added language. they can interpret the constitution, but the usual rules of construction apply. if something is very specific, i.e. it says 'two people of the same sex cannot marry,' there is no getting around it by saying it contradicts with some inexplicit other part.

anyway, even if the court thinks one part of the constitution conflicts with another, it doesn't make the conflicting language unconstitutional. all parts of the constitution are, by definition, constitutional. THAT is what started this whole tangent, someone claiming that a part of the constitution could be unconsitutional.

 

[3chordcharlie]

Originally posted by: ElFenix

Originally posted by: 3chordcharlie

Originally posted by: ElFenix
a challenge? through what mechanism? i mean, if it's an amendment to a state constitution it could run up against the US constitution and be challenged that way, but if you're challenging an amendment to the US constitution your only recourse is through the political system (which obviously just amended the constitution so isn't a likely avenue).

A challenge to the USSC. If the court is forced to make a decision based on the constitutionality of an issue, they would have to interpret the constitution and its amendments together, If there's a contradiction between a protected and an unprotected right, they would have to make a decision (unless they have the authority to directly throw out the added language, I'm not sure if they do).

It would be an ugly situation, and is a big part of the reason that I doubt this hate-amendment will ever see the light of day.

the court has no ability to throw out added language. they can interpret the constitution, but the usual rules of construction apply. if something is very specific, i.e. it says 'two people of the same sex cannot marry,' there is no getting around it by saying it contradicts with some inexplicit other part.

I'm not sure how the interpretation works, if to parts contrdict - are there any actual rules about this?

I can't see how there would NOT be a mechanism for recognizing a contrdiction in the constitution; try to think of an analogous situation; say an amendment banning religious gatherings for the purpose of political action (ostensibly as an anti-terrorism measure). THis would conflict with the right of peaceable assemply (assuming the group doing the gathering was behaving peacefully).

What would the outcome of a court case be, in that case?

It also seems to me that banning things in the constitution is a little off-base - for the most part constitutions are used to protect rights, not enshrine some form of discrimination (and in this case I use the word in a non-judgemental sense, though I DO consider it a matter of judgement, personally).

 

[DragonMasterAlex]

Originally posted by: 3chordcharlie

Originally posted by: ElFenix
a challenge? through what mechanism? i mean, if it's an amendment to a state constitution it could run up against the US constitution and be challenged that way, but if you're challenging an amendment to the US constitution your only recourse is through the political system (which obviously just amended the constitution so isn't a likely avenue).

A challenge to the USSC. If the court is forced to make a decision based on the constitutionality of an issue, they would have to interpret the constitution and its amendments together, If there's a contradiction between a protected and an unprotected right, they would have to make a decision (unless they have the authority to directly throw out the added language, I'm not sure if they do).

It would be an ugly situation, and is a big part of the reason that I doubt this hate-amendment will ever see the light of day.

You are exactly right. I can't find the specific link, but there is an excellent discussion on the matter of Unconstitutional Constitutional Amendments at Timothy Sandefur's Weblog. Mr. Sandefur is a highly accomplished Constitutional Attorney; his job (honestly, his EXISTENCE) is all about Constitutional interpretation and protection in the light of Individual Rights. You won't find a more thorough expert on the area nor a more honest man working in all of Law.

Jason

 

[DragonMasterAlex]

Originally posted by: aidanjm

Originally posted by: Starbuck1975

It is clearly NOT constitutional to deny any individual of their rights based on the choices they make in the bedroom.

With the exception that marriage is not a right...it is a social instiution with some financial benefits and conveniences that the state chooses to recognize or bestow upon couples that choose to marry.

Eliminate the term marriage from the equation, with the state recognizing civil unions for all couples regardless of their sexual orientation...leave marriage for the churches...problem solved.

Marriage is not a right, but being treated equally before the law IS a right. In this case, equal treatment would mean same-sex couples would have access to marriage.

Or, in an equally acceptable alternative, the government could cease recognizing ANY marriages and leave the entire ordeal to private entities to decide as they will. For court and legal purposes, the "union" of said people would be no different than any other CONTRACT in the eyes of the law.

Laws should be made on the basis that rights are an INDIVIDUAL affair and they do NOT "stack up" like coupons just because you have 2 or more people involved.

Jason

 

[DragonMasterAlex]

Originally posted by: Starbuck1975

Not it really wouldn't - it's the equivalent of 'seperate but equal'. It's not equality.

The entire social construct of our society contains invisible barriers that maintain a seperate but equal framework for equality...why would it be any different for gays?

The suggestion of 'civil unions, but don't call it marriage' is an attempt to use semantics to permanently legitimize a lack of social acceptance. For gays to accept such an outcome would be a very poor decision if they want to be accepted in the long run.

Well that is exactly the point...what we are talking about is social acceptance and not the institution of marriage...and forcing social change through legal action rarely leads to acceptance.

In order to institute social change, you need to break down the barriers, stereotypes and attitudes that fuel the discriminatory fire...however, forcing social change before you break down those barriers may establish legal equality, but will never establish true acceptance.

You're right that breaking down barriers and working through issues to get to real change is important, but I disagree that establishing legal equality will cause true acceptance to remain elusive. Observe that for the most part black people are accepted and not judged primarily on the basis of color. Sure, there's still the occasional nutjob who wants to blame "them damn awesome people" for everything that goes wrong in America, but they are pretty few and far between anymore.

I don't think you'll ever get 100% rid of bigotry in ANY form. Even if you did, people would just find something new to be bigoted about. Typically these are people with a low/poor concept of their own self, their own identity. I might go so far as to say that they aren't Selfish enough, in the sense that they don't see themselves as primarily an individual with a name and thoughts and rights all their own. They get stuck in this "rights of society" mode, which is utterly absurd (Society has no rights, only individuals do!) and then they can justify *anything*.

Conservatives use it to justify oppressing people's personal choices and making their lives some kind of social taboo. Liberals use it to justify taking the earnings of some and giving them to others. In both cases it's the same phenomenon, and in both cases, it's wrong.

Jason

 

[miketheidiot]

Originally posted by: irwincur
Legislating from the bench... another guiding light as to how exactly you can destroy the seperation of powers.

Exactly, the president should have all the powers and thats the way the founding fathers intended it.

 

[DragonMasterAlex]

Originally posted by: miketheidiot

Originally posted by: irwincur
Legislating from the bench... another guiding light as to how exactly you can destroy the seperation of powers.

Exactly, the president should have all the powers and thats the way the founding fathers intended it.

Um, no, they really, really didn't.

Jason

 

[ElFenix]

Originally posted by: 3chordcharlie

Originally posted by: ElFenix

Originally posted by: 3chordcharlie

Originally posted by: ElFenix
a challenge? through what mechanism? i mean, if it's an amendment to a state constitution it could run up against the US constitution and be challenged that way, but if you're challenging an amendment to the US constitution your only recourse is through the political system (which obviously just amended the constitution so isn't a likely avenue).

A challenge to the USSC. If the court is forced to make a decision based on the constitutionality of an issue, they would have to interpret the constitution and its amendments together, If there's a contradiction between a protected and an unprotected right, they would have to make a decision (unless they have the authority to directly throw out the added language, I'm not sure if they do).

It would be an ugly situation, and is a big part of the reason that I doubt this hate-amendment will ever see the light of day.

the court has no ability to throw out added language. they can interpret the constitution, but the usual rules of construction apply. if something is very specific, i.e. it says 'two people of the same sex cannot marry,' there is no getting around it by saying it contradicts with some inexplicit other part.

I'm not sure how the interpretation works, if to parts contrdict - are there any actual rules about this?

I can't see how there would NOT be a mechanism for recognizing a contrdiction in the constitution; try to think of an analogous situation; say an amendment banning religious gatherings for the purpose of political action (ostensibly as an anti-terrorism measure). THis would conflict with the right of peaceable assemply (assuming the group doing the gathering was behaving peacefully).

What would the outcome of a court case be, in that case?

It also seems to me that banning things in the constitution is a little off-base - for the most part constitutions are used to protect rights, not enshrine some form of discrimination (and in this case I use the word in a non-judgemental sense, though I DO consider it a matter of judgement, personally).

constitutional interpretation would work exactly like statutory interpretation. there are usually no hard and fast rules, and each judge does it differently. scalia likes to look at just the statute in question and find what the result is by applying it to the facts, whereas o'connor figures out which outcome she would rather have and then works backwards from there. some judges selectively incorporated the bill of rights through the 14th, justice black wanted to incorporate all of the bill of rights through the 14th. generally, things that are more specific outweigh things that are less specific, and things that are newer outweigh things that are older.

with an explicit conflict such as you've provided, you'd basically have to say that for that specific type of gathering, the newest one controls. congress would probably make this explicit by saying that the original no longer controls (as they did with the 18th and 21st amendments, and with direct election of senators, etc) since congress isn't dumb.

since there is no explicit mention of 'gay marriage' in the constitution, any amendment about it would control the Court's behavior (the 11th amendment, for example, specifically overrules a Court decision allowing what is banned under the 11th).

 

[Tab]

Originally posted by: DragonMasterAlex

Originally posted by: miketheidiot

Originally posted by: irwincur
Legislating from the bench... another guiding light as to how exactly you can destroy the seperation of powers.

Exactly, the president should have all the powers and thats the way the founding fathers intended it.

Um, no, they really, really didn't.

Jason

Dude, look at his name...

 

[ElFenix]

Originally posted by: DragonMasterAlex
You are exactly right. I can't find the specific link, but there is an excellent discussion on the matter of Unconstitutional Constitutional Amendments at Timothy Sandefur's Weblog. Mr. Sandefur is a highly accomplished Constitutional Attorney; his job (honestly, his EXISTENCE) is all about Constitutional interpretation and protection in the light of Individual Rights. You won't find a more thorough expert on the area nor a more honest man working in all of Law.

Jason

unconstitutional constitutional amendment is an oxymoron. you can't challenge an amendment to the constitution the same way you would challenge a statute. you can try to get an interpretation changed, but that isn't challenging the amendment on constitutional grounds.

and neither 'constitutional' nor 'unconstitutional' is on that page you linked to.

 

[aidanjm]

Mass. Voters Don't Want Gay Marriage Amendment
by Michael J. Meade 365Gay.com Boston Bureau

Posted: February 7, 2005 7:30 pm. ET

(Boston, Massachusetts) The Massachusetts legislature will take up the second phase of a proposal to amend the state Constitution to ban gay marriage this year, but a new poll shows most voters want the effort abandoned.

The Bay State Poll, taken for the Eagle-Tribune, and released on Monday, shows that most people in Massachusetts have grown comfortable with same-sex marriage.

"We have it. It's been happening. The sky is not falling," said Bay State pollster Russell K. Mayer, the director of the Center for Public Opinion Research at Merrimack College.

The poll found 52 percent of respondents do not want to see the amendment on the ballot.

Last march lawmakers approved the proposed amendment which would define marriage as a union of a man and a woman. It would, however, allow civil unions with legal marriage rights (story) It must be approved again in this session of the legislature in order to go to voters in 2006.

Same-sex marriage became legal in Massachusetts in May 17, 2004.

The Eagle-Tribune reports that the poll found that despite heavy lobbying by the Catholic Church to oppose gay marriage, the Catholic vote was nearly split.

Eighty-five percent of Jewish voters oppose putting an amendment on the ballot. Among those people describing themselves as atheist or agnostic 71.4 percent were opposed to a vote on banning same-sex marriage.

However, newer residents to the state and Republicans were more eager to see the issue on the ballot.

The poll of 710 people had a 3.8 percent margin of error.

There are also growing indications that the legislature is also growing tired of the issue. When the proposed amendment was submitted last year it divided the legislature, resulted in acrimonious debate, and continued for two days.

In November, a more liberal House and Senate was elected, with Democrats picking up seats in both bodies.

©365Gay.com 2005

 

[conjur]

"We have it. It's been happening. The sky is not falling," said Bay State pollster Russell K. Mayer, the director of the Center for Public Opinion Research at Merrimack College.

Ya don't say?

 

[DragonMasterAlex]

Originally posted by: Tabb


The only problem is people view our state run marriages as some how differnet than Civil Unions. When in reality, they are the same. Marriages, require love. Thats not a prerequiste to our state run marriages.

We should just change the wording, but still have benifits that do live together. Without a doubt, I'd say thats more of good than a bad thing to live with someone. Why not promote it

Well, I dunno that marriages *require* love I'm pretty sure my parents hated each others' guts, LOL. I would think that they, IDEALLY involve love, for sure. I'm not sure how often that happens, but I am pretty sure it happens more often than it did back in the days of arranged marriages.

Jason