Should Ginsburg and Kagan withdraw?

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Re: Should Ginsburg and Kagan withdraw?

Postby Sstavix » Mon Jan 26, 2015 8:34 pm

Also pretty sure it wouldn't have passed had they known it actually enshrined same-sex partnerships.
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Well, Selderane might be right there... but at the time it passed (1868) the idea of same-sex marriages probably would have never entered the public discourse, anyway. I'm pretty sure there was no "gay rights movement" active during the Reconstruction period of this nation (although I'm not a historian, so I may be incorrect on that).

If it was something that they had thought of, it is possible they would have reworded the amendment... but maybe not. It's just speculation at this point.

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Re: Should Ginsburg and Kagan withdraw?

Postby ChickenSoup » Mon Jan 26, 2015 10:31 pm

And pointless to argue one way or the other. Saying "well they wouldn't have passed it" isnt really important anyway. Some of the original authors owned slaves, too--that doesn't mean that we shouldn't talk about slavery because they might not have approved.

Anyway, The point is that states can't impinge on civil rights. I did a quick google and found things like:
the Supreme Court held in the Civil Rights Cases (1883)[26] that the amendment was limited to "state action" and, therefore, did not authorize the Congress to outlaw racial discrimination by private individuals or organizations (though Congress can sometimes reach such discrimination via other parts of the Constitution).
So the concern about businesses being forced to action is, at least in terms of this amendment, addressed.

Now, I would certainly argue that a gay marriage ban would be infringing on civil rights. Additionally, legislating a religious view is a pretty horrible idea. Arguments have been made that you could legalize marriage to children on this basis ("it's THEIR pursuit of happiness, right? QED") but you could argue that, based on consent, you're denying the child his or her rights. Marriage between two consenting adults harms nobody. There is no valid nonreligious argument against gsy marriage.

"But the photographers!"

Yes. The photographers. I agree now that they should not be made to photograph anyone. However, legislating religion is unfair to the population as a whole.
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Re: Should Ginsburg and Kagan withdraw?

Postby ChickenSoup » Tue Jan 27, 2015 2:13 am

A tangential point I'd like to explore further is that States can't necessarily do whatever they want just because everybody voted for it. I am still on mobile though and will explore that when I get home.
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Re: Should Ginsburg and Kagan withdraw?

Postby Sstavix » Tue Jan 27, 2015 5:35 am

There is no valid nonreligious argument against gsy marriage.
There is... but then you're stepping into religious territory. And unless you're talking about a theocracy (note - since we're talking about U.S. law, we're not), then it's apples-and-oranges.

Gay marriage may be legal in some states, but some churches have chosen not to participate in said ceremonies based on religious grounds. If you ask me, they have that right to do so, based on the idea of "free assembly" in the First Amendment of the Constitution.

People and businesses have the right to refuse service to anyone they wish, for whatever reason they wish. These decisions may indeed cost them their business (e.g. "That company refuses to hire union employees! Therefore, I refuse to give them my money!"), but they have the freedom to make that decision, if they so choose.
However, legislating religion is unfair to the population as a whole.
As well as being flat-out illegal... at least in this country. So far.
A tangential point I'd like to explore further is that States can't necessarily do whatever they want just because everybody voted for it. I am still on mobile though and will explore that when I get home.
That can be an interesting side topic, and another recent issue has come up to argue this point: the legalization of marijuana. Washington and Colorado has legalized "happy weed" to be grown in their states for recreational purposes. Yet federal laws still prohibit its manufacture and sale. So we can expect various cases in that regard to eventually make their way to the Supremes as well - and yes, at this point, it is very much a "states rights" 10th Amendment issue. Once Congress starts looking into legalizing marijuana for the entire nation, that's when other amendments may come into play.

(Incidentally, and just as a side note, in the title industry, First American Title Insurance Company issued memos to their affiliates shortly after that was legalized. If the title companies receive evidence or notification that a property is used - or will be used - for the sale or production of marijuana that property cannot be insured. They are obviously siding with the Federal government in this issue, and does not want to be involved if they can help it.)

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Re: Should Ginsburg and Kagan withdraw?

Postby ChickenSoup » Tue Jan 27, 2015 2:36 pm

Gay marriage may be legal in some states, but some churches have chosen not to participate in said ceremonies based on religious grounds. If you ask me, they have that right to do so, based on the idea of "free assembly" in the First Amendment of the Constitution.

People and businesses have the right to refuse service to anyone they wish, for whatever reason they wish. These decisions may indeed cost them their business (e.g. "That company refuses to hire union employees! Therefore, I refuse to give them my money!"), but they have the freedom to make that decision, if they so choose.
I agree.
There is... but then you're stepping into religious territory.
And yet, gay marriage bans are being legislated on that basis.
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Re: Should Ginsburg and Kagan withdraw?

Postby Sstavix » Wed Jan 28, 2015 1:19 am

There is... but then you're stepping into religious territory.
And yet, gay marriage bans are being legislated on that basis.
All the more reason for the government to get out of the marriage business, right?

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Re: Should Ginsburg and Kagan withdraw?

Postby ChickenSoup » Wed Jan 28, 2015 3:12 am

That was what I've been saying. I think our point of conflict is whether or not a state can decide to do what they want because the people voted for it. That is, if a state can still ban gay marriage because of states' rights. At least, that's if I remember the earlier conversation properly. It's been a long day >_>
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Re: Should Ginsburg and Kagan withdraw?

Postby Sstavix » Wed Jan 28, 2015 5:17 am

If the people voted for it, then most definitely. The will of the people should trump the will of the government any time.

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Re: Should Ginsburg and Kagan withdraw?

Postby ChickenSoup » Wed Jan 28, 2015 3:27 pm

Every time? Because I feel like if we (Christians) we're eon the business side of that, that wouldn't be such an easy thing to say.

Where do you draw the line? I ask because we've established "keep the gummint out of marriage! You shouldn't legislate religion," but it seems to get hung up on "well, I mean, unless the people want it."
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Re: Should Ginsburg and Kagan withdraw?

Postby ArchAngel » Wed Jan 28, 2015 5:29 pm

Yeah, most definitely not every time. If anybody ever wants to claim to go with what the Founding Fathers wanted, besides being ambiguous on slavery and governmental powers in general, they have to disdain the concept of a pure democracy. It was considered a by-word. They were very worried about the tyranny of the 51%, which is why we have our representative government and there are protections in place to protect minorities. Which could be, maybe, like, homosexuals.
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Re: Should Ginsburg and Kagan withdraw?

Postby ChickenSoup » Wed Jan 28, 2015 7:13 pm

Yeah, the republic-style "make sure mob rule isn't the standard" was the rizzle dizzle. I know the government has issues with corruption, but I don't want a horde of your average idiot banning something that makes them uncomfortable.
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Re: Should Ginsburg and Kagan withdraw?

Postby Bruce_Campbell » Wed Jan 28, 2015 9:52 pm

Here's an interesting question. Let's say the government completely backs out of marriage and leaves it to religious institutions. Where does that leave non religious folks who want to get married? Do we really want to dump all civil marriage because a (shrinking) portion of religious people disagree with who is allowed to get married?
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Re: Should Ginsburg and Kagan withdraw?

Postby selderane » Thu Jan 29, 2015 1:50 am

And pointless to argue one way or the other. Saying "well they wouldn't have passed it" isnt really important anyway. Some of the original authors owned slaves, too--that doesn't mean that we shouldn't talk about slavery because they might not have approved.
Fairly certain you've twisted my words to arrive here.

Original intent matters, which is what I'm saying. Not that a discussion shouldn't be had. But it's vitally important to understand original intent so laws that are written and passed with the understanding that it meant X aren't twisted into meaning Y a few generations down the road because it's convenient.

Why else bother with the passing of laws if we can simply shove our hand up their backsides and work their mouths like a puppet to mean whatever we like?

If you want to enshrine same-sex pairings in the Constitution then pass a new amendment because the 14th was passed with the understanding that it extended the civil rights already enjoyed by Americans to slaves (who were by all definitions already Americans). It didn't create new rights, and was never intended to be read as having done so.

The Supreme Court has no authority to inject itself here because the Constitution doesn't give the Federal government the power to define what is or is not marriage. The best decision the Court can deliver is to strike down Federal involvement in the issue, returning it to the states to decide for themselves.

But since when has the Constitution really restrained any branch of government?
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Re: Should Ginsburg and Kagan withdraw?

Postby ArchAngel » Thu Jan 29, 2015 2:22 am

Man, y'all really think that such strict construction is any way practical? Thought that should have died when Jefferson made the Louisiana Purchase.

Shoot, it wasn't even agreed upon during the founding. You all seem really sure that "it's the way it's supposed to be."
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Re: Should Ginsburg and Kagan withdraw?

Postby ChickenSoup » Thu Jan 29, 2015 5:10 am

And pointless to argue one way or the other. Saying "well they wouldn't have passed it" isnt really important anyway. Some of the original authors owned slaves, too--that doesn't mean that we shouldn't talk about slavery because they might not have approved.
Fairly certain you've twisted my words to arrive here.
No, I was addressing how you seem to intimately know what the authors would and wouldn't have wanted.
Original intent matters, which is what I'm saying. Not that a discussion shouldn't be had. But it's vitally important to understand original intent so laws that are written and passed with the understanding that it meant X aren't twisted into meaning Y a few generations down the road because it's convenient.

Why else bother with the passing of laws if we can simply shove our hand up their backsides and work their mouths like a puppet to mean whatever we like?
No one is twisting any meaning here.
If you want to enshrine same-sex pairings in the Constitution then pass a new amendment because the 14th was passed with the understanding that it extended the civil rights already enjoyed by Americans to slaves (who were by all definitions already Americans). It didn't create new rights, and was never intended to be read as having done so.
So what you're saying is that the amendment protecting minorities from harmful treatment by the states (the 14th amendment states that States shall not make laws infringing on any citizen's civil rights, etc) should ONLY apply to freed black slaves?

Let's have a thought experiment. Ignore other laws for a moment--if Ohio made a law preventing naturalized citizens, originally from Mexico, from starting businesses there, you would say that they are not protected by the 14th amendment because it only applies to slaves?

No, it is you who is applying too strict an interpretation to it. If it was intended to only apply to slaves, the text itself would specify as such.
The Supreme Court has no authority to inject itself here because the Constitution doesn't give the Federal government the power to define what is or is not marriage. The best decision the Court can deliver is to strike down Federal involvement in the issue, returning it to the states to decide for themselves.
Actually, it is the job of the Supreme Court, among other things, to decide what is constitutional and what isn't. If, for example, it ruled that states cannot impose bans on gay marriage as it violated the 14th amendment--well, that would be completely within its bounds.
But since when has the Constitution really restrained any branch of government?
Once again, the SC would simply be ruling on the constitutionality of state-level law, so I'm not sure where you think they've overstepped their bounds.

Man, y'all really think that such strict construction is any way practical? Thought that should have died when Jefferson made the Louisiana Purchase.

Shoot, it wasn't even agreed upon during the founding. You all seem really sure that "it's the way it's supposed to be."
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