I think that’s correct Dave. There are already several churches that will “marry” same-sex couples. But in the eyes of the law, it doesn’t amount to much.

The reason that issue is still so heated & contentious is because the right to an abortion is clearly not written in the constitution, it never was, and We The People were never asked for our consent to put it there.

But the job of the court is to interpret the constitution, exactly because they couldn’t even conceive of all of the things they would have to put in there even if they wanted to. That’s why they ended with the tenth amendment. Madison et al. knew that there would never be an absence of gaps in the constitution; in fact, constitutions are supposed to include every little thing. The Judiciary fills that gap by interpreting what is there.

I think it ultimately comes down to your opinion of judicial review. If you think John Marshall had his head up his ass, then any judgment that affects a change in the law (abortion, segregation, miranda rights) is an example of judicial activism. But if Marshall was right, then it is the judiciary’s duty to be the final arbiter of the constitutionality of a law.

Thanks for re-posting this, I was wearing out my scroll wheel.

Something of this nature is best left up to a direct vote.
What are the criteria for determining if an issue is “worthy” of a direct vote? I thought that’s why we had a representative republic?

The answer is NO, SSM is NOT a constitutional right!
Marriage of any kind is not a constitutional right. Equal protection under the law is a constitutional right. If you want to grant a privilege to one group of people and exclude others, that’s the amendment you’ll have to repeal.

one or two judges cannot read our consent into a constitution
Actually, that’s part of the job description of Supreme Court Justice.

It’s called “Consent of the Governed” in our Constitution, and without that consent, your peculiar arrangements are legally invalid.
So, if there’s a vote tomorrow that golfers cannot be married since it creates golf widows every Sunday, thereby harming marriage, that’s OK? There’s a term for that: tyranny of the majority.

Was the Civil Rights Act put up to a popular vote? How about Brown v. Board of Education as a piece of judicial activism? Were those justices wrong to end segregation, when part of the population felt it was their privilege to segregate? The judiciary acts as a check to the excesses of the commmon will. Federal judges are appointed for life for that very purpose.

If we have to spell that out for you in the federal constitution, i’m quite sure we will. Just keep pushing us.
That’s obviously the plan of the gay marriage movement; force a motion on a constitutional amendment, create a constitutional crisis which results in an endgame at the 14th amendment. Those who are pushing for a gay marriage amendment are actually playing into their hands.

Don’t claim that marriage is a “right” when what you are really doing is telling people to change the few millennia-old definition of marriage for the benefit of some privileges.

So all of humanity, for the rest of time, needs to live by the standards of our millenial ancestors? Shall we get rid of all of our wheels and fire, while we’re at it?

What are the criteria for determining if an issue is “worthy” of a direct vote? I thought that’s why we had a representative republic?

I don’t know what the criteria is for determining what gets a direct vote and what is for our elected representatives. I imagine that these kinds of hot button societal issues are better left to direct vote, but that is admittedly just my opinion.

Equal protection under the law is a constitutional right. If you want to grant a privilege to one group of people and exclude others, that’s the amendment you’ll have to repeal.

That’s simply not true. Marriage doesn’t fall under the “equal protection” clause precisely because we are not talking about rights, but about privileges.

Were those justices wrong to end segregation, when part of the population felt it was their privilege to segregate?

Yes they were wrong. It’s called freedom of association.

The judiciary acts as a check to the excesses of the commmon will. Federal judges are appointed for life for that very purpose.

Do you have a source to back up your claim that the reason federal judges are appointed for life is to prevent the excesses of the common will?

So all of humanity, for the rest of time, needs to live by the standards of our millenial ancestors? Shall we get rid of all of our wheels and fire, while we’re at it?

Can you just address the argument instead?

Dave, Loving is in no way similar to the SSM issue. Unless you think being a man or a woman is no more relevant than the color of your skin.

Besides, Loving was about laws that kept the races apart. Marriage is a pact that brings the sexes together. Do you not see the difference between racial segregation and gender integration?

Do you who oppose same-sex marriage also oppose the Supreme Court’s ruling in Loving v. Virginia, which declared that a ban against interracial marriages was unconstitutional? Would you have liked that to be put to a vote as well?

Heh, this “moderninstances” kid has a lot to learn.

It’s called “Consent of the Governed” in our Constitution, and without that consent, your peculiar arrangements are legally invalid.
So, if there’s a vote tomorrow that golfers cannot be married since it creates golf widows every Sunday, thereby harming marriage, that’s OK? There’s a term for that: tyranny of the majority.

Damn straight. Better the tyranny of the majority than the anarchy of the individual, woudn’t you say? “Cant we all just get along?”

I mean, if we have to have laws in the first place (because some just people refuse to get along with their neighbors), then who is better to make those laws than you and your neighbors, working towards a consensus?

Would you have liked that to be put to a vote as well?

One other thing: We the People have every right to change our constitution as we see fit. Obviously the people didn’t feel strongly enough about the race issue to do that. The same cannot be said regarding SSM — 13 states amended their constitutions just last year, with more coming. And every act of judicial tyranny that ignores the consent of the governed just brings us one step closer to a federal amendment.

fifty years from now, a majority of the population thinks that gay people can get married, that’s the way the court would have to rule. But if in another fifty years, if a majority of the population thinks that gay people cannot get married, the court has to reverse its earlier decision.

(i wrote a really long answer explaining why this was wrong, then i realized it’s true ina way)

Kinda sad, but almost true. Isn’t that what will happen if Bush gets his SCOTUS nominations? Will they throw out Roe? It’s a good question — but throwing it out really means throwing it back to the states, and to the people.

Which seems like a wise thing to do, because we’re a long long way from consensus here.

Maybe what makes Roe bad law is that it flies in the face of our consent. We can have such a law in the constitution, but should be forced to demonstrate our consent first, through the legislatures. There is a process for putting novel ideals into the constitution you know. And we can see what happens when we take shortcuts — we end up with festering cultural sores.

Thanks.

Isn’t that what will happen if Bush gets his SCOTUS nominations? Will they throw out Roe?

But will they throw it out because they think it’s bad law, or because they think that popular opinion is that it is bad law? Now, I don’t want to get into a whole thing here about the accuracy of polls, but all the major polls show that a majority of this country wants abortion to be legal. (http://www.pollingreport.com/abortion.htm)

So, following your premise of a judge needing to make determinations based on the will of the people, it wouldn’t matter how many Justices Bush puts on the bench; they would have to keep abortion legal, because that is the popular will. Whereas, if it’s truly bad law, they could determine that it should be illegal, flouting the will of the people.

[Rescinding Roe] seems like a wise thing to do, because we’re a long long way from consensus here.

But is consensus necessary, or popular will, a simple majority?

Until the Constitution is amended to change the role of the Judiciary and strip it of its independence, there will always be judgments that go against popular opinion. That’s an issue more impactful than either gay marriage or abortion.

A very simple test is this: If the amendment being interpreted had instead explicitly spelled out that which is being interpreted into it, would it pass ratification today? IOW, would we have consented to such an intepretation?

you just have to show a little respect for the will of the people,

OK, so a judge must base their interpretation on what they think the general populace would consider acceptable (which is different than reasonable)? This would mean that the interpretation of the law would depend on the make-up of the society at that time; if, fifty years from now, a majority of the population thinks that gay people can get married, that’s the way the court would have to rule. But if in another fifty years, if a majority of the population thinks that gay people cannot get married, the court has to reverse its earlier decision.

That premise is in opposition to the idea of judicial independence. In Federalist 78, Hamilton wrote:
“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

If judges are to follow the will of the people, they are no different from the legislative branch. It’s just not their role.

By the way, and not that it matters, but your premise that judges are beholden to current popular opinion is in opposition to the approach of the “conservative” Supremes. Rehnquist, Thomas, and especially Scalia are strict constructionists, who look to the meaning of the constitution when it was written for interpretation. (Scalia and Rehnquist, by the way, ruled AGAINST popular opinion in the recent medicinal marijuana case.)

BTW, I appreciate that the tone of this discussion has become more reasonable.

Marriage has been corrupted by the state’s involvement. Marriage should not be a tax break, nor an inheritance privilege, nor any other legal advantage. Marriage is a private commitment between two people (traditionally, a man and a woman) who have entered into a covenant with each other. This is no more a privilege than freedom of association. To think that anyone (gay, whatever) should be forbidden from that is arrogant in the extreme.

That’s simply not true. Marriage doesn’t fall under the “equal protection” clause precisely because we are not talking about rights, but about privileges.

Here’s the applicable text of the fourteenth amendment:

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.

I think that pretty clearly addresses the fact that the 14th amendment was aimed at more than simple unalienable rights.

The reason I don’t believe equal protection applies to gay marriage is that gay men are free to marry under the marriage laws of most states, if they marry women. The are “equally protected” by the law that regulates the marriages of men to women. Just as straight men are equally protected by the newer laws that prevent men from marrying other men.

If you want gay marriage to be legal, convince the electorate that it should be legal.

The issue of court decisions has become too complicated. The job of the judges is really quite easy.

Here’s how I view the questions they face:

Does [law/policy in question] violate any part of the U.S. constitution?

Now lets use a few examples:

Does a law installed by a state prohibiting abortion violate any part of the U.S. constitution? If you believe it does violate a right set out in the constitution, which right is it? There’s not one I can think of.

Here’s another one:

Does a law installed by a state defining marriage as the union of one man and one woman violate any part of the Constitution? Many would say that it violates the equal protection clause of the 14th amendment, but I don’t think that’s true. Marriage would be defined, for all u.s. citizens, as a union between one man and one woman.

See how simple this is? When faced with a question about whether or not a law or policy is constitutional one has simply to inspect the actual contents of the Constitution. If the issue is not addressed specifically in the Constitution (as is the case with both abortion and gay marriage) then the court should point out that the law/policy is not prohibited by the Constitution and then invoke the 10th amendment and leave the matter to the states to decide.

This is how our system is supposed to work. Sadly, it hasn’t worked that way for some time.