You are either not logged in or not registered with our community. Click here to register.
 
December 05, 2016, 06:52:03 PM

Welcome, Guest. Please login or register.
Did you miss your activation email?

Login with username, password and session length

Click here if you are having problems.
Default Wide Screen Beige Lilac Rainbow Black & Blue October Send us your theme!

Hark!  The Herald!
Holiday Issue 2016

Wiki Blogs Dicebot

Author Topic: Prop 8 struck down.  (Read 18712 times)

0 Members and 1 Guest are viewing this topic.

Offline Serephino

Re: Prop 8 struck down.
« Reply #200 on: August 10, 2010, 11:07:59 PM »
I don't know if your 'you' here is directed at anyone specific, but I would venture to say the gay community would be just as vigilant in examining any bias or conflict of interest a judge has if it didn't rule in their favor, just as many conservatives and the like are doing now that it hasn't ruled in their favor. I dunno about others, but I've already stated that I'd be just as skeptical either way.

You have just pointed out the exact problem with the system. Absolutely nothing is stopping them from getting married except that not only is it an abuse of the system as it is now, but it's also lengthy and costly to get a divorce should you go your own ways. There are people who simply don't want to be legally bound to someone else, especially if it has nothing to do with a relationship they want to be in, so why should they be denied benefits? If that single person who doesn't want to get married or hasn't met the right person has a roommate or best friend or neighbor or whoever that needs benefits and they're willing to put them on their plan, how is that any different? Oh look, disaster strikes, their roommate can't pay the rent due to medical bills, the person with the benefits loses half of the rent, they're screwed too. That's what it has to do with it.

I wasn't saying that a straight judge would be biased just because their straight.  All my examples were to point out that judges are human, and therefore there is potential bias regardless, so people saying it should have been a straight judge so there would be no bias are misinformed.

Offline kylie

  • Bratty Princess of Twisty, Creeping Secrets. Frilly | Fussy | Framed | Dreamy | Glam | Risky | Sporty | Rapt | Tease | Ironic | Shadowed | Struggling | Whispery | Bespelled
  • Liege
  • Enchanter
  • *
  • Join Date: Apr 2005
  • Location: Somewhere in the future.
  • Darkly sweet femme for rich & insidious scenarios.
  • My Role Play Preferences
  • View My Rolls
  • Referrals: 1
Re: Prop 8 struck down.
« Reply #201 on: August 11, 2010, 02:37:36 AM »
Quote from: Jude
Can't find the site I got it from initially (I assume that's where Wikipedia stole it from) but this particular link covers everything:  http://abcnews.go.com/US/wirestory?id=9598659&page=1

The bottom line is, in every case that he's presided over regarding homosexuality since becoming a judge he's ruled in favor of the gay party.
        Just a minor point, first:  You said cases he's presided over...  It partly depends upon just how one decides if orientation is an issue in a given case...  But that may be ignoring one or more cases he decided not to admit at all.  http://articles.latimes.com/2010/jun/21/local/la-me-prop8-judge-20100621/2
Quote
Earlier this year, Walker was overturned by the U.S. 9th Circuit Court of Appeals in a case involving a gay man who sued a federal agency for emotional distress after it revealed his HIV status to another federal department.

Walker threw out the lawsuit on the grounds that a federal privacy act did not permit damages for emotional distress. The 9th Circuit resurrected the suit, ruling for the gay plaintiff.
  Now some people might say he would have shown undue bias in favor of gays merely by even agreeing to hear that case.  Others who subscribe to your general logic that orientation must be treated (politically if not logically) as an extra reason for concern, would say he should be checked for abuse of power if he ruled in favor of the gay plaintiff.  However, I think legal procedure does not admit that sort of logic: I have read that parties are required to raise complaints about alleged conflict of interest before or during the trial, rather than after the ruling.     

          All in all though, if you're going to argue misconduct, then you need a case about that.  You need to show apparent injustice before it makes sense to guess at motive.  The government is supposed to uphold equal rights.  The government is explicitly not allowed to keep group X or Y off the bench just because they're a minority with different life experiences.  That is part of equal protection, too.

Quote
So what evidence do you have that he's not biased?
         I don't presume guilty before proven innocent.  So the question is not pertinent to me.  I mentioned earlier how I view the ruling very generally; I don't see that he ruled primarily out of personal sentiment.  Or, you could go hunting in the court documents for some evidence of actual process violation.  I don't see his orientation nor a meager three rulings in one general direction (which for all I know, might be entirely sound ones) as evidence of misdoing.  On top of all that, it's emphasizing a flimsy rationale to call more scrutiny upon Walker, when he's already scheduled for due process review anyway. 

         The case was destined to go up the judiciary ladder to higher courts, from the beginning.  If you're actually concerned about what the law might mean and what happened in the courtroom, then please deal with the facts of the case, the legal terms, and the ruling.  The spin that his orientation should be treated as some obvious cause for additional scrutiny, or cause for any scrutiny without clear evidence of misdoing, is definitely exaggerated and most probably misinformed.   The idea that he is somehow necessarily more likely to have abused the system, is possibly a vein of vague conspiracy theory-style rhetoric.  If I thought you had real ill intent, then I would be argue that much the same language is often deployed in a subtle form of trolling for fear and loathing. 

          Finally, how much it will be cited in some kind of campaign or policy blowback, is an open question -- but I wouldn't consider people who do so to be well aware or ethically secure.  I suppose yes, there are quite a few misinformed and prejudiced people around (especially when the country keeps slashing education).    Although it's pretty dubious, given the state of the economy, to exaggerate the specific impact of this even to them.  Anyway, that kind of reasoning for a nasty response would not be ethical nor particularly sustainable in my book.  You also might want to decide which you mean to support most, due process or perhaps what you imagine would be good PR (when it's fairly clear your good PR options probably come at the expense of due process and equal protection).
« Last Edit: August 11, 2010, 02:46:34 AM by kylie »

Offline Jude

Re: Prop 8 struck down.
« Reply #202 on: August 11, 2010, 03:02:19 AM »
You make good points.  I have to say if I was judging his impartiality (ZING BAD PUN), that would certainly make me reconsider my views.

Again, my ultimate concern (as you've picked up on) isn't the outcome of this individual case.  I think the outcome, taken by itself, is good.  My objection is the way that the tactics used therein will be perceived.  I know how conservatives use judicial activism for fodder, and this hits all of their high notes for a perfect election-season issue.

I don't want to see the pendulum swing back, it would be nice if, for the first time since 1980, the conservative ascendancy of the modern era was broken.  Democrats are just... really, bad at playing moderate politics.  You have to consider the opinions of independents; people who are on the fence or disagree with you barely.  I truly believe that there are a lot of people who are very upset over the specifics of the trial -- largely because I've seen them commenting about it on the internet, on television, and radio -- this is another fire in the oven for Republicans, and (as I've reiterated over and over again) a potential setback overall for cultural progress.

I guess I'm a bit cynical.  Politics has gotten so divisive and extreme, I just wish people could tone it and down be a little more respectful of those they disagree with, so that we could actually find some way to get past the partisan rancor that permeates every issue and accomplish one of the gigantic tasks facing us instead of squabbling over wedge issues.
« Last Edit: August 11, 2010, 03:17:35 AM by Jude »

Offline Brandon

Re: Prop 8 struck down.
« Reply #203 on: August 11, 2010, 06:32:05 AM »
Dude, take a deep breath and chill.  Not only is it way out in left field as far as the topic is concerned, but you're getting emotional and attacking me in the process.  Sorry you took my wording wrong.   

Apology accepted

Anyway, I think some people are failing to understand that the situation looks bad. True it might not be as bad as it looks, but the public at large is going to concentrate more on how it looks then what the reality is. I said before that from where Im sitting it looks very bad and the reason why that is, and why I said if it was a straight judge who ruled against it there would be no controversy is thus.

As is you have a judge who seems to be gay ruling for gay marriage when the majority of the public voted to outlaw it. It looks like the gay judge is saying "I dont care how many people voted for it, I cant get married to my lover so screw them, Im declaring it unconstitutional." or something to that effect. Its face palm worthy IMO. If this had been a straight judge ruling it unconstitutional then there would be zero controversy. It wouldnt be about gays overturning the will of the people. Thats what this is going to turn into because thats how it looks

Im kind of with Jude here (dont look at me like that, it happens once in a blue moon) in that because it looks so bad, this may hurt the gay rights movement in the long run

Offline fallen paradise

Re: Prop 8 struck down.
« Reply #204 on: August 11, 2010, 07:34:52 AM »
I'm going to chime in with my $0.02 and probably piss a few people off in a hot button issue.

I am against the overturning of Proposition 8 for a simple reason: the judicial system should not have the right to overturn a constitution - it is against the basic principal of our legal system. Proposition 8 was a constitutional amendment, it was a legally passed amendment that changed the definition of marriage within the California constitution. The fact that California has such as easy mechanism for amending their constitution (a simple majority vote) is another issue, but regardless, it was a valid constitutional amendment.

Courts should be concerned with two things: the proper execution of legal proceedings (making sure cases are tried with respect to the rule of law), and the constitutionality of laws passed within the state. If a populace decides to amend their constitution our legal system, even if it does not agree, should support it. As with prohibition - which many people opposed, the Constitutional amendment was not struck down in the courts, but later in the legislature, as it should have been.

Personally I have no problem with gay marriage, and if it is ever an issue that I am asked to vote on I would most likely support it. But I am sick of this issue being decided in the courts when it should be decided openly in the legislature or through ballot referendums by the people as a whole. The problem with allowing important matters that are outside the purview of the courts to be decided by judges is that it undermines the democratic process and it polarizes the issue. Everyone who is cheering today because the judge struck down Proposition 8 would be enraged or upset had he simply ruled the other way. When you invalidate the process of constitutional amendments you strip away the only check and balance to an overzealous judicial branch.

I know that people will disagree with me, but for the long term survivability of the country the process of law MUST be held more important than any person or group.

Offline Trieste

  • Faerie Queen; Her Imperial Lubemajesty; Willing Victim
  • Dame
  • Carnite
  • *
  • Join Date: Apr 2005
  • Location: In the middle of Happily Ever After with a dark Prince Charming.
  • Gender: Female
  • I am many things - dull is not one of them.
  • My Role Play Preferences
  • View My Rolls
  • Referrals: 4
Re: Prop 8 struck down.
« Reply #205 on: August 11, 2010, 09:43:30 AM »
My question is this: since when have complainants ever been able to choose their judge? I had thought they file an appeal with the court and the dockets are assigned around somewhat randomly. And if the complainants were somehow able to choose the judge, doesn't that mean that the other lawyers didn't do their job well enough? I mean... really? It's like another random form of victim-blaming that's entirely mind-boggling.

Offline schnookums

Re: Prop 8 struck down.
« Reply #206 on: August 11, 2010, 09:52:49 AM »
State constitutions are subordinate to the Federal Constitution. Not only does the Judicial system have the right to strike down parts of a state constitution, they have the solemn duty to do so as well. Otherwise a state could De Facto strike down constitutional laws with ease. The process of constitutional amendents haven't been invalidated any more then they already have, which is to say that state constitutions are obligated to comply with the Federal Constitution. This isn't new math here.

And no, equal rights have no business being decided through popular votes. It's way too easy to whip up resentment and fear towards minority groups. (Imagine if we had taken a popular vote immediately after 9/11 to strip Islam of its status as a legally recognized religion...I'd bet hard cash that vote would have, if not passed, then been deadly close.) Built into our system of government are undemocratic elements designed exactly to protect minority powers, and quite frankly I'm fine with that just the way it is. The so-called tyranny of the minority has NOTHING on the tyranny of the majority.

Offline Oniya

  • StoreHouse of Useless Trivia
  • Oracle
  • Carnite
  • *
  • Join Date: Sep 2008
  • Location: Just bouncing through. Hi! City of Roses, Pennsylvania
  • Gender: Female
  • One bad Motokifuka. Also cute and FLUFFY!
  • My Role Play Preferences
  • View My Rolls
  • Referrals: 3
Re: Prop 8 struck down.
« Reply #207 on: August 11, 2010, 09:54:09 AM »
It is the judiciary branch's responsibility to declare laws - even constitutional amendments - unconstitutional.  It has happened before. 

Denver Post - Colorado Supreme Court Rules Amendment 54 Unconstitutional.
Patty Murray's Amendment Ruled Unconstitutional, Mariners Fans Say Goodbye to Cheap Bus Service.

The only reason that it's making as much of a stir here is because gay marriage is in itself something that causes a stir.  As for the question of it being appealed - there was never a question of whether it was going to be appealed, which renders the question of the judge's apparent bias moot.  If he had ruled for it, gay or straight, the folks against gay marriage would have appealed it, as they are doing now.  If he had ruled against it, straight or gay, the folks for gay marriage would have appealed it.  The issue is such a hot topic that no matter what the Federal Court decides, it is going to be appealed to the SCOTUS.  I imagine that it will continue to be brought up, the same way that Roe v. Wade has been brought back up.

Offline fallen paradise

Re: Prop 8 struck down.
« Reply #208 on: August 11, 2010, 11:13:50 AM »
State constitutions are subordinate to the Federal Constitution. Not only does the Judicial system have the right to strike down parts of a state constitution, they have the solemn duty to do so as well. Otherwise a state could De Facto strike down constitutional laws with ease. The process of constitutional amendents haven't been invalidated any more then they already have, which is to say that state constitutions are obligated to comply with the Federal Constitution. This isn't new math here.
The problem is that the argument the judge is using in this case, the equal protection clause of the 14th amendment, is a weak argument in this case. And when Federal Law on the topic (The DOMA of 1996) has not been overturned as unconstitutional it is very strange that the argument could be made that a State level amendment or law that mirrors the federal law is unconstitutional.

[quotes]And no, equal rights have no business being decided through popular votes. It's way too easy to whip up resentment and fear towards minority groups. (Imagine if we had taken a popular vote immediately after 9/11 to strip Islam of its status as a legally recognized religion...I'd bet hard cash that vote would have, if not passed, then been deadly close.) Built into our system of government are undemocratic elements designed exactly to protect minority powers, and quite frankly I'm fine with that just the way it is. The so-called tyranny of the minority has NOTHING on the tyranny of the majority.
[/quote]
I whole-heartedly disagree with this statement. The passage of laws, the conveyance of rights, and the definitions and limitations of those rights rest firmly in the legislative branch - it was through a legislative process that our Constitution, the ultimate definition of rights and governance of those rights, was created. I can not think of a single case of judicial legislation that I can whole-heartedly support, because despite the good intentions of the judge, it undermines the legislative process. Your example isn't a terribly good one either, as any law attempting to strip Islam of it's status as a religion would have been struck down on the basis of discriminating against a religion (part of the constitution). If we wanted to amend the constitution we'd need 2/3 of the House and Senate to propose the amendment, then 3/4 of the State General assemblies would be required to pass the amendment, or a majority of 3/4 of the states citizens.

The saving grace of our government isn't the undemocratic elements, it is the fact that we are mostly democratic and we are lethargically slow. Old ways are not the best ways, but neither are new ways. A society that slowly comes to accept new cultural norms is a good thing, and an over zealous judiciary who attempts to ram change down the throats of a highly divided populace is not doing anyone a service in the long run.


============
On a tangentially related note - notice how most people don't care about same sex civil unions? It is really only when the word marriage gets thrown into the mix that people get pissy? Here is my one paragraph solution.

Eliminate all instances of the word marriage from State and Federal Law. Replace the term marriage with civil union, thus making all legal partnerships of consenting adults civil unions. Maintain the rights of Churches to restrict marriage ceremonies to whomever they choose as part of their religious freedom (case in point I couldn't get married in a Mormon Temple if I wanted too because I am not a member of the Church). If you want mandate that all officials who are able to validate civil unions must validate any request - but does not need to provide them with a ceremony if it due to religious reasons.

I think that solution would make the vast majority of everyone happy - too bad there is no politician who has the political fortitude to propose it.

Offline Oniya

  • StoreHouse of Useless Trivia
  • Oracle
  • Carnite
  • *
  • Join Date: Sep 2008
  • Location: Just bouncing through. Hi! City of Roses, Pennsylvania
  • Gender: Female
  • One bad Motokifuka. Also cute and FLUFFY!
  • My Role Play Preferences
  • View My Rolls
  • Referrals: 3
Re: Prop 8 struck down.
« Reply #209 on: August 11, 2010, 11:35:50 AM »
It's an idea that's been batted around in other places.  Maybe not as high up as it would have to be to go into effect, but it's been talked about.

The way I see it, there would probably be some backlash from the people against gay marriage if the word marriage was taken away from them - even if it's only in the civil sense (i.e., the church still calls them marriages, but the state calls them civil unions).  This is ironic to me, since they feel that the term 'civil union' should be perfectly acceptable to any partnership that differs from theirs.

Offline fallen paradise

Re: Prop 8 struck down.
« Reply #210 on: August 11, 2010, 11:47:51 AM »
I personally feel, and this is my personal opinion, that there is very little empathy for people who have issue with marriage being applied to same-sex unions. While I personally don't care how the term is used it carries a great deal of meaning to some people, it holds religious meaning and personal meaning. It is an incontestable fact that the idea of gay marriage is, by and large, new. Homosexuality has been around throughout documented history, though even in some cultures where it was widely tolerated it was not accepted as the norm of human behavior. Honestly I feel todays culture is far more tolerant of homosexuality than any other culture in the past - we are making significant strides, especially when you consider how many people can be openly gay now without it causing even a batting of eyelashes.

It is going to take time for a society as a whole to come to terms with the idea of same sex based family units as well - this is in many ways the next step forward. The problem when it comes to marriage and same sex partnerships is that you are taking a very old traditional idea and a very new progressive idea and you are trying to shove them together. The result is rather explosive, much like sodium and water. I just wished that more people tried to understand that there are a large number of people who are not homophobic and not bigoted who have a significant and justifiably negative reaction to the idea of gay marriage. Tolerance and understanding should work both ways, and going into a situation assuming things about the opposition that may or may not be true is non-productive and the source of some of the problems with the debate.

Offline schnookums

Re: Prop 8 struck down.
« Reply #211 on: August 11, 2010, 12:11:35 PM »
I'm taking down my original post here. I'm sure it was quite inflammatory, and as I'm not really interested in continuing this discuss here it would easily be seen as a hit and run.
« Last Edit: August 11, 2010, 12:14:35 PM by schnookums »

Offline Trieste

  • Faerie Queen; Her Imperial Lubemajesty; Willing Victim
  • Dame
  • Carnite
  • *
  • Join Date: Apr 2005
  • Location: In the middle of Happily Ever After with a dark Prince Charming.
  • Gender: Female
  • I am many things - dull is not one of them.
  • My Role Play Preferences
  • View My Rolls
  • Referrals: 4
Re: Prop 8 struck down.
« Reply #212 on: August 11, 2010, 12:19:12 PM »
Is probably time for locking.
« Last Edit: August 11, 2010, 12:23:38 PM by Trieste »

Offline Jude


Offline Synecdoche17

Re: Prop 8 struck down.
« Reply #214 on: August 14, 2010, 09:42:32 PM »
I whole-heartedly disagree with this statement. The passage of laws, the conveyance of rights, and the definitions and limitations of those rights rest firmly in the legislative branch - it was through a legislative process that our Constitution, the ultimate definition of rights and governance of those rights, was created.
And who voted for the members of the legislation that created our Constitution? The members of state assemblies and legislatures, generally, a process which identically mirrors our constitutional method of selecting judges at the federal and (in some places) state level. Many of our Founding Fathers went on to become judges. Further, the concept of the judicial branch as a check on the legislation's passage of laws dates all the way back to McCulloch v. Maryland, a case whose impact on American legislative history has been so profound that you literally would not recognize this country today had the decision gone the other way. Any attempt to undermine the right of the judicial system to correct and reverse the legislative is an attempt to hollow out our system of government.


Quote
I can not think of a single case of judicial legislation that I can whole-heartedly support, because despite the good intentions of the judge, it undermines the legislative process.
You're straining my disbelief here - Brown v. Board of Education, Gideon v. Wainwright, District of Columbia v. Heller? It doesn't matter what political corner you're in, you've got to appreciate at least one of those cases of "judicial legislation", a term that drives me nuts because of its meaninglessness.
Hell, I will ask straight out - what do you not like about Brown v. Board of Education? I'm really curious to know.

Quote
Your example isn't a terribly good one either, as any law attempting to strip Islam of it's status as a religion would have been struck down on the basis of discriminating against a religion (part of the constitution).
Oh God, oh God, oh wow.

Okay. The Federal Constitution applies to the federal government only. So if California wanted to ban Islam, California could have done so - until 1947! Yes! Until 1947 California could make it illegal to be Muslim, Jewish, Hindu, atheist, or Christian.

What happened in 1947? Everson v. Board of Education! 330 U.S. 1 (1947) is your case citation, if you care to look it up - heck, here is a Wikipedia link. That's right - nine snotty black-robed judicial activists made it illegal to discriminate on the basis of religion at the state level, because of the "equal protection" clause, ninety-nine years after the 14th Amendment was passed!

In fact, since the 14th Amendment (God bless it) was passed in 1848, the judicial system has been gradually "incorporating" it, i.e., making it binding upon the states. There are still rights in the Constitution that the states are not obligated to give to their citizens - for instance, if you are living in the United States but not under the jurisdiction of the Second Circuit of Appeals, the state government can house the National Guard in your house! Like, today! In blatant violation of your Third Amendment rights, no less.
Certain rights will never be incorporated - Hurtado v. California, for instance, says that the right to a grand jury shan't be made binding upon the states.

You're free to argue against gay marriage all you like, but you can't do it by arguing that this interpretation of the 14th Amendment is strange, or unconstitutional, or revolutionary. The plaintiffs in the California trial are making the exact same case that dozens of civil-rights leaders have made before them, and they're winning for exactly the same reasons.
I concede your later points that today's society is probably friendlier to gays and lesbians than just about any society of the past, and that the reality of gay marriage is moving upon us quickly, but I disagree strenuously that the LGBT community should wait - the LGBT community has been waiting since recorded history began for official recognition; I think any delay past this point is tremendously insulting.
« Last Edit: August 14, 2010, 09:49:48 PM by Synecdoche17 »

Offline Jude

Re: Prop 8 struck down.
« Reply #215 on: August 15, 2010, 12:23:24 AM »
Gay activism in the United States didn't really start in earnest until 60 years ago.  The current wave of it started 40 years ago, which has also been far more zealous.  LGBT activism is still in its infancy, it's a relatively young movement when you compare it to just about any other rights movement.  It took longer than this for the slaves to be freed, and that's only if you count since the formation of the country.  Add another 100 years for the movements for true equality to start, and there's still a lot of racial tension in the society.  Things don't happen overnight:  patience isn't fair in this circumstance, that much I agree with, but it is practical.  Consider that there are people who fought for civil rights in the 70s are against gay marriage (such as the head of WBC); what does that say?

As far as the comparisons to other forms of judicial activism, I've still yet to see anyone present statistics that show Brown v Board of Education was against popular opinion at the time that the ruling was made.  And if we're arguing that judicial legislation that disagrees with the will of the people is bad, that's a key component of the argument, don't you think?  Even then, you can't really argue what was the best course of action, seeing as how American's racial problems are not ailed; just lessened.  We don't know if waiting for it to be passed by popular mandate would've resulted in a better outcome because it wasn't done.

You're really overstating the strength of the 14th amendment case as well, I think.  I will concede however, you seem to know a lot more about the law than I do, I am no legal scholar.  It doesn't seem that open and shut to me though.

Before celebrating though, I suggest you read the link I posted.  It's kind of very important to this discussion and could potentially make all of this moot (it's also arguably another display of potential bias for Walker).
« Last Edit: August 15, 2010, 12:31:35 AM by Jude »

Offline Oniya

  • StoreHouse of Useless Trivia
  • Oracle
  • Carnite
  • *
  • Join Date: Sep 2008
  • Location: Just bouncing through. Hi! City of Roses, Pennsylvania
  • Gender: Female
  • One bad Motokifuka. Also cute and FLUFFY!
  • My Role Play Preferences
  • View My Rolls
  • Referrals: 3
Re: Prop 8 struck down.
« Reply #216 on: August 15, 2010, 12:32:27 AM »
I don't know about statistical studies, but how much weight would you give to the fact that they had to bring out federal troops to assist in the integration of schools in Arkansas?

Offline Jude

Re: Prop 8 struck down.
« Reply #217 on: August 15, 2010, 12:37:04 AM »
I don't know about statistical studies, but how much weight would you give to the fact that they had to bring out federal troops to assist in the integration of schools in Arkansas?
That doesn't establish that the majority of people were against it, merely that it was a dangerous situation.  Doesn't speak of national politics at all, in fact the only information I could find at all the subject is wholly unreliable and inconclusive, but it certainly doesn't paint an America that's against the notion in any significant capacity:  (NOTE:  Wikipedia is not a reliable source, but this was literally allllll I could find)

http://en.wikipedia.org/wiki/File:Educational_separation_in_the_US_prior_to_Brown_Map.svg

EDIT:  I will admit that I'm not sure the numbers I'm asking for even exist; but assuming things for the sake of comparison is questionable, I think.  I tried looking for them and I couldn't find 'em several times now throughout the course of this debate.

EDIT2:  There may be a bit of a problem with my argument in that Brown v Board of education happened essentially at the start of the Civil Rights Movement.  This didn't destroy the movement or prevent its relative success, in fact it became a cornerstone from which the movement expanded onward and outward from.  This ruling could function the same way.

I still doubt that's how it'll be received in today's society, but it's a possibility.
« Last Edit: August 15, 2010, 12:53:15 AM by Jude »

Offline Synecdoche17

Re: Prop 8 struck down.
« Reply #218 on: August 15, 2010, 03:12:15 AM »
Gay activism in the United States didn't really start in earnest until 60 years ago.  The current wave of it started 40 years ago, which has also been far more zealous.  LGBT activism is still in its infancy, it's a relatively young movement when you compare it to just about any other rights movement.
Previous movements have laid the foundation for future ones; once you have a broad social acceptance that mistreatment of minorities is unjust, the chain of events moves faster and faster.

Quote
Consider that there are people who fought for civil rights in the 70s are against gay marriage (such as the head of WBC); what does that say?
That people who are free of one prejudice are not free of all prejudices; I'm not sure this would be anything other than an elementary point of human psychology. Also, please consider that finding the WBC on your side is like finding out you've caught the plague - it really doesn't matter what you're saying any more, because everyone else is running away from you, and with good reason.

Quote
As far as the comparisons to other forms of judicial activism, I've still yet to see anyone present statistics that show Brown v Board of Education was against popular opinion at the time that the ruling was made.
You said in this very same post that racial tension is prevalent today; I'm quite sure you'd agree with me that there is less racial tension today than there was forty years ago. You might as well ask me to provide statistics proving that water is wet.

Quote
And i Even then, you can't really argue what was the best course of action, seeing as how American's racial problems are not ailed; just lessened. We don't know if waiting for it to be passed by popular mandate would've resulted in a better outcome because it wasn't done.
In 1776, this country was formed. In 1864, the slaves were freed. In 1954, racial codes, Jim Crow laws, and segregation were still tremendously powerful forces in American society. Given that African-Americans waited virtually a century between being granted freedom and the "judicial activism" that paved the way for equality, I think it's bloody obvious that white Americans were not going to just wake up one fine Tuesday morning and decide to give up white privilege. Just how many more lynchings should African-Americans have endured before asking a judge to enforce the Constitution?

Quote
You're really overstating the strength of the 14th amendment case as well, I think.  I will concede however, you seem to know a lot more about the law than I do, I am no legal scholar.  It doesn't seem that open and shut to me though.
The 14th Amendment is the strongest weapon ever given to America's minorities. I'm not much of a legal scholar either, to be blunt.

Quote
Before celebrating though, I suggest you read the link I posted.  It's kind of very important to this discussion and could potentially make all of this moot (it's also arguably another display of potential bias for Walker).
I've read it. Issues of standing are not uncommon in the law. I fail to see how the defendants' lack of standing is an example of Walker's bias either - if I get hit by a car, you can't sue on my behalf, but that's not an issue of bias on anyone's part, simply a recognition that a third party's lawsuit is likely to be either opportunistic or frivolous. Further, the defendants can appeal a denial of standing, if they like, although ultimately that decision is up to the appeals court, not Judge Walker. Heck, the courts can even (and have in the past) issue a special "unpublished" ruling that would give the defendants standing without affecting the rules of standing at all.
Personally, I'm wondering why you're expending so much energy on Walker and not  Governor Schwarzenegger and Attorney-General Jerry Brown, either of whom would have the standing to pursue the case, both of whom were elected to serve the people of California, who voted to ban gay marriage. Don't Schwarzenegger and Brown have an obligation to support the will of the people even more than Walker does? Is their refusal to a dereliction of duty?

Personally, I'm glad for leaders who lead, instead of meekly following the hue and cry of the mob.

Offline Jude

Re: Prop 8 struck down.
« Reply #219 on: August 15, 2010, 03:40:45 AM »
Lots of good points Synecdoche.

As far as the supposed display of bias I mentioned, I'd say it was the fact that Walker knew all along he could deny their appeal based on what he allowed to go on, then eventually did fully knowing this.  Seems like he wanted to get this passed and closed out, and safely established.  If the case ends up being vacated and restarted, don't you think that casts doubt on his judicial impartiality?

I don't know how much evidence needs to be brought that the guy might be biased before people actually listen.

Offline fallen paradise

Re: Prop 8 struck down.
« Reply #220 on: August 15, 2010, 07:40:53 AM »
And who voted for the members of the legislation that created our Constitution? The members of state assemblies and legislatures, generally, a process which identically mirrors our constitutional method of selecting judges at the federal and (in some places) state level. Many of our Founding Fathers went on to become judges. Further, the concept of the judicial branch as a check on the legislation's passage of laws dates all the way back to McCulloch v. Maryland, a case whose impact on American legislative history has been so profound that you literally would not recognize this country today had the decision gone the other way. Any attempt to undermine the right of the judicial system to correct and reverse the legislative is an attempt to hollow out our system of government.

You're straining my disbelief here - Brown v. Board of Education, Gideon v. Wainwright, District of Columbia v. Heller? It doesn't matter what political corner you're in, you've got to appreciate at least one of those cases of "judicial legislation", a term that drives me nuts because of its meaninglessness.
Hell, I will ask straight out - what do you not like about Brown v. Board of Education? I'm really curious to know.
Oh God, oh God, oh wow.

Okay. The Federal Constitution applies to the federal government only. So if California wanted to ban Islam, California could have done so - until 1947! Yes! Until 1947 California could make it illegal to be Muslim, Jewish, Hindu, atheist, or Christian.

What happened in 1947? Everson v. Board of Education! 330 U.S. 1 (1947) is your case citation, if you care to look it up - heck, here is a Wikipedia link. That's right - nine snotty black-robed judicial activists made it illegal to discriminate on the basis of religion at the state level, because of the "equal protection" clause, ninety-nine years after the 14th Amendment was passed!

In fact, since the 14th Amendment (God bless it) was passed in 1848, the judicial system has been gradually "incorporating" it, i.e., making it binding upon the states. There are still rights in the Constitution that the states are not obligated to give to their citizens - for instance, if you are living in the United States but not under the jurisdiction of the Second Circuit of Appeals, the state government can house the National Guard in your house! Like, today! In blatant violation of your Third Amendment rights, no less.
Certain rights will never be incorporated - Hurtado v. California, for instance, says that the right to a grand jury shan't be made binding upon the states.

You're free to argue against gay marriage all you like, but you can't do it by arguing that this interpretation of the 14th Amendment is strange, or unconstitutional, or revolutionary. The plaintiffs in the California trial are making the exact same case that dozens of civil-rights leaders have made before them, and they're winning for exactly the same reasons.
I concede your later points that today's society is probably friendlier to gays and lesbians than just about any society of the past, and that the reality of gay marriage is moving upon us quickly, but I disagree strenuously that the LGBT community should wait - the LGBT community has been waiting since recorded history began for official recognition; I think any delay past this point is tremendously insulting.
As far as Brown vs. Board of Education - this was not judicial legislation but this was upholding existing Constitutional Law. Honestly there are flaws in the decision. The statement that separate institutes are inherently unequal is flawed and has set a terrible precedent that has been the basis for other terrible decisions such as the Connecticut Sheff vs. O'Neil case which ignores the quality of schools and says that as long as you artificially integrate non-minority students into a failing minority school district it doesn't matter that the minority students there are getting a terrible education, it basically reduced "equality" to the game of bean counting, much like affirmative action does.

There is also a stark difference between Brown vs. BoE and the current cases of gay marriage being fought. In several States there were Civil Union laws that mirrored the benefits of marriage (at the State level). Since DOMA has not been overturned and is currently the law of the land, a Civil Union law can grant the exact same rights as marriage (since a same sex marriage will not be recognized federally or by other States. In effect the Civil Union is perfectly equal to to Marriage, and since the 14th Amendment states that you have to provide equal rights and protection and does not state that the vehicle by which those rights and protections are received must be the same the argument is moot.

I am all for the gay movement seeking equal rights, what annoys me is that they don't seem to want equal rights - they want equal access to a term. The civil rights movement was not about equal access to terms, it was truly about equal rights. Facilities provided to blacks in the south were uniformly inferior to those provided to whites. Educational services, drinking fountains, seats within a facility, seats on a bus, were inferior. The reason for the Brown vs. BoE decision was not that separate but equal was inherently unconstitutional, but because separate but equal did not exist in the South, and in terms of physical facilities it is almost impossible to create separate but equal. This isn't the same when you are talking about a set of legal rights, you can easily establish marriage and civil unions to be legally equal.

The comparison between the gay movement and the civil rights movement is also particularly insulting. We don't have separate drinking fountains for gays, we don't force gays to stand or sit at the back of  buses, we don't deny gays the right to vote. Not to belittle the trials and issues that gays in our country have had to overcome, and they have had many to overcome, the blanket oppression, segregation, and abuse of homosexuals is not on par with with blacks had to face in our country.

I would also ask that you perhaps attempt to tone down the vitriol of your responses. Much of your language use seemed inflammatory and needlessly condescending. If you don't wish to continue with some semblance of  civility then I will choose to simply ignore your posts.

Offline MasterMischief

Re: Prop 8 struck down.
« Reply #221 on: August 15, 2010, 11:44:47 AM »
Quote from: ”fallen paradise”
I am all for the gay movement seeking equal rights, what annoys me is that they don't seem to want equal rights - they want equal access to a term.

Are you honestly saying gays do not want equal rights?  They just want to marry the person they love a right/privlege/whatever you want to call it that others enjoy.  How is that not wanting equality.  Language like yours seems to try and paint the gay community as seeking 'special' treatment.  They are currently being treated 'specially'. 

Why shouldn't they have equal access to a term?

Offline schnookums

Re: Prop 8 struck down.
« Reply #222 on: August 15, 2010, 11:58:22 AM »
If Marriage is a legal term, which in that case the government has a strong interesting in applying that term to ALL such unions, rather then creating a separate legal identity for same sex couples. If Marriage ISN'T a legal term, then who cares what people call their unions? Gay couples could call what they have marriages and people who disagreed could call it what they like (which will happen anyways, for what it's worth.) The only reason the government would have to differentiate gay unions from straight unions was if there was harm being caused by gays using the term 'marriage'. I'm curious what sort of harm could come of that, and I'd be happy to rethink my opinion on this if actual harm could be proven to come of this.

Offline Noelle

Re: Prop 8 struck down.
« Reply #223 on: August 15, 2010, 12:12:55 PM »
And thus we venture down the road to semantics!

Marriage, by its traditional definition, yes, is a union between a man and a woman. Traditionally, yes, it is a religious term. Colloquially, however, that is a different story entirely. Colloquially, we call any legal, joined status under the law 'marriage', regardless of its former religious merit. Atheists, adulterers, sex offenders, thieves, pagans, chaste or non-reproducing couples, everyone (of the opposite sex, for the most part) can get married.

Are you honestly saying gays do not want equal rights?  They just want to marry the person they love a right/privlege/whatever you want to call it that others enjoy.  How is that not wanting equality.  Language like yours seems to try and paint the gay community as seeking 'special' treatment.  They are currently being treated 'specially'. 

Why shouldn't they have equal access to a term?

Bringing love into the equation isn't really relevant. It's not about blocking people who love each other from loving each other, homosexuals have and continue to be able to devote themselves to each other long-term, if they so choose. I get what you're saying though, but I also understand what Fallen Paradise is getting at, as well. If civil unions offered the exact same rights as marriage, no difference except for term (which really seems silly, I know, it's just a damn word, but bear with me), and were offered to both gays and straights, that would be equal rights -- but not equal access to...a word, essentially. I'd be more likely to get a civil union anyway to dodge religious connotations as well as the ugly people who insist on the so-called, nonexistent, laughable "purity" of said word. If both terms were completely equal, I wouldn't merely shuffle one off if I were speaking on behalf of the gay rights movement, because you have to take steps to achieve what you want instead of demanding everything right this instance. And who knows? Giving civil unions the same legal benefits as marriage might be the end of marriage as we know it -- it would be interesting to see how the demand for 'marriage' fluctuates, if it does, and eventually we would probably even see the two terms merged anyway, or to strip the legal benefits of marriage if it's such a religious concept.

Just my two cents.

Offline fallen paradise

Re: Prop 8 struck down.
« Reply #224 on: August 15, 2010, 12:36:59 PM »
Are you honestly saying gays do not want equal rights?  They just want to marry the person they love a right/privlege/whatever you want to call it that others enjoy.  How is that not wanting equality.  Language like yours seems to try and paint the gay community as seeking 'special' treatment.  They are currently being treated 'specially'. 

Why shouldn't they have equal access to a term?
What I'm saying is that if the argument is that the gay movement wants the equal rights and protections granted by marriage they have an argument under the 14th Amendment. I'm also saying that some States (CT is a good example) addressed this concern by creating a Civil Union designation. Civil Unions had all the same State level rights and protections and benefits of marriage (access to insurance, access to inheritance, visitation rights in hospitals, tax filing status, etc). Under the 14th Amendment a Civil Union law fashioned in such a way SHOULD have been sufficient since they were receiving equal protections and rights under the law.

The fact that certain factions within the gay rights movement have a mentality of "marriage or nothing" makes me think that they are trying to fight a culture war than a war for equal rights. By fighting over equal access to the term marriage they are trying to force a world view down the throat of the opposition. They are saying to people who don't agree with their right to "marriage" you must accept what we believe and what you believe doesn't matter. It stops being about "rights and protections" at that point and starts being about a cultural climate. And when it is about culture and perception I think it is best left to the legislature. Again, this is all based on the idea that you have strong Civil Union laws in place - in an area that is devoid of gay marriage and same sex civil unions I think that the gay rights movement would be smarter to just push for civil unions to start.
If Marriage is a legal term, which in that case the government has a strong interesting in applying that term to ALL such unions, rather then creating a separate legal identity for same sex couples. If Marriage ISN'T a legal term, then who cares what people call their unions? Gay couples could call what they have marriages and people who disagreed could call it what they like (which will happen anyways, for what it's worth.) The only reason the government would have to differentiate gay unions from straight unions was if there was harm being caused by gays using the term 'marriage'. I'm curious what sort of harm could come of that, and I'd be happy to rethink my opinion on this if actual harm could be proven to come of this.

As I've stated before - the problem is that the term marriage carries two related yet separate identities. There is the legal status of marriage and then there is the sacred religious identity of marriage. It would be simpler to just abolish all references to marriage in law and replace it with "civil union" but for historical reasons this is unlikely to happen. But when you try to apply the term marriage in a legal sense it is hard for people to separate it from the sacred identity that it also conveys. So what you end up with is people who have no problem with homosexuals or same sex unions opposed to the term "marriage" being applied to it in any context. You also get into a very tricky situation (and this has already come up) where religious groups are being forced to provide facilities for unions which stand in direct opposition to their documented religious beliefs. If you apply the term marriage to same sex unions are you then going to force religions to recognize them as well? Will religious groups be forced to perform ceremonies for same sex couples regardless of the rules of their faith? I'm not a huge religious nut, I'd be described as a deist at best or perhaps agnostic in general, but I have problems with the government dictating how religious groups conduct their private ceremonies and use their facilities.

It is a complicated issue. It is not as cut and dry as anyone makes it out to be. I see the issue as more than just "we can't let gays marry cause it will ruin marriage" and it is more than "anyone who opposes gay marriage is obviously a homophobe and bigot." One of the worst things we can do as a society is try to paint everything in stark blacks and whites, there are times when black and white is appropriate - you'd be hard pressed to make an argument that rape is good - but most issues carry with them several shades of grey