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Should Ginsburg and Kagan withdraw?

Posted: Thu Jan 22, 2015 12:49 pm
by ccgr
http://www.afa.net/the-stand/government ... iage-case/

Loaded words abound in this article, but it is a valid question

Re: Should Ginsburg and Kagan withdraw?

Posted: Thu Jan 22, 2015 1:56 pm
by ChickenSoup
Can't tell if I agree or not, author of article manages to push too many of my buttons

Re: Should Ginsburg and Kagan withdraw?

Posted: Thu Jan 22, 2015 2:34 pm
by Sstavix
Rather than being impartial on the matter, they have shown themselves to be gay-marriage activists and de facto members of the homosexual lobby.
This part of the article is one of the keys to the question, but he completely glosses over it. He gets into further detail about past cases where judges have recused themselves, and the reasoning behind most of them is obvious - the justice in question has a specific financial state in the merits of the case.

So, getting back to the statement I quoted, here's the question - have Ginsburg and Kagan received financial compensation for being "members of the homosexual lobby?" If they have been paid lobbyists for organizations trying to enact gay marriage, then yes, they should recuse themselves from the cases. I don't think this has been the case, but if there is a possibility, then they should. Otherwise, let them have their say on the court bench.

Note that I am not a fan of Ginsburg in the first place. She has said in the past that the Supreme Court Justices need to consider international law in their court decisions. No. Absolutely not. The Supreme Court is supposed to base their decisions off the words in the U.S. Constitution, and the actions of other nations should have absolutely no bearing on their decisions. In my opinion, Ginsburg should step down from the bench for dereliction of duty. As should any other justice who feels the same way.

But as for this argument? Unless those two justices have been paid for their work as lobbyists, or have other emotional attachments to the issue (for example, I heard that Kagan is a lesbian and so would want gay marriage to be legalized, but I suspect that was more of a smear tactic, rather than based on actual fact), I don't think Fischer's argument has much ground to stand on.

Re: Should Ginsburg and Kagan withdraw?

Posted: Thu Jan 22, 2015 5:18 pm
by ArchAngel
Yeah, if they have money at stake, yeah, that makes sense, but expecting them to recuse themselves because they're known to have an opinion on the subject would disqualify any other justice who believes homosexuality is a sin.
Shoot, if having an opinion disqualifies you, it's going to be left to an empty council and a janitor flipping a coin.

Re: Should Ginsburg and Kagan withdraw?

Posted: Thu Jan 22, 2015 8:13 pm
by Sstavix
Exactly. The big question is, can the justices have their opinions and also determine the merits of the case as it relates to the U.S. Constitution?

I read an article years ago about Scalia that helps to highlight this. He is against flag-burning, as most conservative-leaning people tend to be. However, if he was faced with a case that related to flag-burning as a form of protected speech, he said he would have to side with the Constitution, and protect the laws that protected the flag burners.

So if the justices have opinions either protecting or prohibiting gay marriage, there's nothing wrong with that. Most people in this country do, after all. The challenge is, can they rule based upon what the Constitution outlines?

That tends to be my approach as well - since the Constitution doesn't specifically outline the status of marriage - straight or gay - then it isn't the role of the Federal government to legislate it. It should be kept to the individual states, if at all. That's the reason I have the dichotomous approach of accepting Proposition 8 in California and the legalization of gay marriage in Washington State. Both were voter-approved initiatives. The people have spoken, so that should be the law of that state.

Re: Should Ginsburg and Kagan withdraw?

Posted: Thu Jan 22, 2015 11:02 pm
by ChickenSoup
I don't understand how state legislation is any better than federal marriage legislation. If you're going to tell the government to butt out, just stick to it instead of tacking on an unrelated states rights issue.

Re: Should Ginsburg and Kagan withdraw?

Posted: Fri Jan 23, 2015 1:35 am
by Sstavix
I don't understand how state legislation is any better than federal marriage legislation. If you're going to tell the government to butt out, just stick to it instead of tacking on an unrelated states rights issue.
Unrelated? It has everything to do with state's rights!
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.
Since we're talking about the Supreme Court, we're also talking about the Constitutionality of gay marriage (or, in my opinion, any marriage). The Constitution does not have any provisions or clauses to indicate what the definition of marriage is. Therefore, it should not be a Federal issue (and, in my opinion, any legislation on the federal level that uses that as a basis - for example, taxes - is in violation of this). Since it isn't a Federal issue, then it should be regulated by the individual states, if they even want to get involved at all (e.g. Oklahoma's current proposal to get the government out of marriage).

The rational behind this? We go back to the free market. Let's say gay marriage is approved in your state and you are so adamantly, rabidly opposed to it that you just can't stand the state and the people in it any more. What can you do? You can move to another state where the laws are different. It doesn't have to be just about gay marriage - perhaps it's the legalization of gambling, or gun control, or a mandate that everyone needs to have a rabid badger in their living room. And if a state finds that it's losing large portions of its population because of its nutty laws - and, likewise, losing the tax dollars to fund its nutty laws - they may work on changing it to attract people to the state again. In essence, it makes the states beholden to its citizenry to pass and enforce laws that the people of those states like.

If the laws were passed on a federal level, though, what are your options? The only ones available would be to suffer under the laws or move to another country. And from what I've heard, it is a lot more difficult to become a citizen of, say, Mexico, than it is to move from Washington to Oregon.

Back to gay marriage, the big question is whether or not the states have the right to legislate it, or if it's a federal issue as outlined by the Constitution. The Supreme Court may have a different opinion than I do (no, I'm not a Supreme Court justice...), but if the Supremes determine that the Feds do not have the power to regulate marriage, then it very much becomes a states-right issue, thanks to the Tenth Amendment.

Re: Should Ginsburg and Kagan withdraw?

Posted: Sat Jan 24, 2015 4:16 pm
by ChickenSoup
And yet, there's section 1 of the 14th amendment. The Supreme Court ruled on Alabama's gay marriage ban recently and threw it out on those grounds.

Interestingly enough, the judge that every conservative south of the Mason-Dixon is calling a puppet of a liberal judicial activism agenda is a conservative, pre-9/11 Bush appointee.

Something to do with no good nonreligious arguments against it, maybe? The only one I see around here any more is "Christian wedding photographers!!" Whatever. We don't ban ham as a wedding food because Jewish chefs might have to serve it.

Re: Should Ginsburg and Kagan withdraw?

Posted: Sat Jan 24, 2015 8:22 pm
by Sstavix
And yet, there's section 1 of the 14th amendment. The Supreme Court ruled on Alabama's gay marriage ban recently and threw it out on those grounds.
Interesting! Do you have a link to an article focused on the details of that case? In any case, the judges could come to an entirely different conclusion with... whatever case the author of the article is referring to this time around. I noticed that that was suspiciously absent - which specific case is he asking Kagan and Ginsburg withdraw from? Just anything related to gay marriage? Some sort of blanket "must withdraw from this case because of their previous actions" isn't going to fly, either.
Something to do with no good nonreligious arguments against it, maybe? The only one I see around here any more is "Christian wedding photographers!!" Whatever. We don't ban ham as a wedding food because Jewish chefs might have to serve it.
You would be correct about that. But if a Jewish cook - or Muslim, or vegan, or whatever - refused to cook ham because it was against their beliefs, I would say that that would be perfectly within their rights as well. At least in my opinion.

Re: Should Ginsburg and Kagan withdraw?

Posted: Sat Jan 24, 2015 9:58 pm
by ChickenSoup
http://www.cnn.com/2015/01/23/us/alabama-gay-marriage/

Best I can do on mobile, but a quick google will get some other sources as well

Should Ginsburg and Kagan withdraw?

Posted: Sat Jan 24, 2015 9:59 pm
by ChickenSoup
Whoops, that was a district judge. My bad, I think I said supreme court originally.

Re: Should Ginsburg and Kagan withdraw?

Posted: Sat Jan 24, 2015 10:46 pm
by Sstavix
Whoops, that was a district judge. My bad, I think I said supreme court originally.
Yep, that's a district judge decision. So not a Supreme Court case... yet. I could see how that case could get to that level, though.

Re: Should Ginsburg and Kagan withdraw?

Posted: Sun Jan 25, 2015 12:23 am
by ChickenSoup
IIRC there is an appeal petition, so there likely will be.

Re: Should Ginsburg and Kagan withdraw?

Posted: Mon Jan 26, 2015 4:19 am
by selderane
The 14th Amendment was never intended to be used to opine on the institution of marriage. No, the ratifying States were pretty sure it was about getting American-born or naturalized slaves the rights enjoyed by every American citizen.

Also pretty sure it wouldn't have passed had they known it actually enshrined same-sex partnerships.

As the Constitution gives the Federal government no authority to speak on the issue of marriage at all, it should only have ever been a state issue.

Re: Should Ginsburg and Kagan withdraw?

Posted: Mon Jan 26, 2015 5:36 pm
by ChickenSoup
Also pretty sure it wouldn't have passed had they known it actually enshrined same-sex partnerships.
*opens mouth*

*closes it*

*opens it again*

*closes it again*