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Some thoughts about judicial activism

The recent kerfuffle over California's Proposition 8 "gay marriage ban" and its recent overturning by a Federal appeals court got me thinking about the concept of judicial activism. It is a term that seems to be deliberately obfuscated on both sides of the political aisle.

Conservatives routinely accuse liberal judges of using judicial activism to bypass the will of the people and enshrine controversial leftist policies into law. Liberals accuse conservatives of a desire to perpetuate bigotry and discrimination, pointing out that it was the activism behind landmark court cases like Brown v. Board of Education that paved the way for the Civil Rights movement of the 1960's.

Is there such a thing as good judicial activism? In a word, 'yes,' and the Civil Rights movement is in fact a perfect example. After World War II, white Americans became much more aware of the discrimination faced by blacks, particularly in the Jim Crow South. After fighting a war to rid the world of tyranny, it seemed even more disturbing that the Land of the Free was keeping a significant portion of its own people from enjoying the rights and freedoms that were the foundation of our Constitution and Declaration of Independence.

Although many (particularly in the Deep South) strongly resisted efforts to end legalized segregation, a series of pivotal events including the Emmett Till murder and Rosa Parks' historic standoff with authorities aboard a Montgomery, Alabama bus gradually convinced the nation at large that something was wrong.

But the political power of the Southern Democrats was very strong. In previous decades, they had twice defeated Congressional anti-lynching legislation. President Eisenhower publicly opposed segregation, but history seemed to indicate that blacks could not count on Congress to pass legislation that would effectively end Jim Crow.

Undoubtedly it was the courts, through their rulings that compelled school districts in the South to begin the process of desegregation, that finally cracked the veneer of racism in America. Empowered by court-ordered desegregation and armed with the strategy of non-violence (in direct contrast to the violent reaction of whites) the Civil Rights movement fully manifested itself in the early 1960's culminating in the 1964 Civil Rights Act and the 1965 Voting Rights Act.

Interestingly though, the civil rights movement also gave us a perfect example of bad judicial activism -- court-ordered busing. In the late 1960's Federal judges realized that racially segregated neighborhoods were the major contributing factor to lingering school segregation problems. In an ill-conceived effort to diversify the racial composition of schools, courts began to order school districts to bus students across town in order to achieve racial balance. These rulings proved to be extremely unpopular with blacks as well as whites. Wikipedia notes:

Even though school districts provided zero-fare bus transportation to and from students' assigned schools, those schools were in some cases many miles away from students' homes, which often presented problems to them and their families. In addition, many families were angry about having to send their children miles to another school in an unfamiliar neighborhood when there was an available school a short distance away. The movement of large numbers of white families to suburbs of large cities, so-called white flight, reduced the effectiveness of the policy. Many whites who stayed moved their children into private or parochial schools; these effects combined to make many urban school districts predominantly nonwhite, reducing any effectiveness mandatory busing may have had.

Judicial activism can be a good thing, if public opinion is in the process of aligning with the opinion of the court, and court rulings can be legitimately understood as a means necessary to overcome diminishing, though still powerful, pockets of resistance. But it is a bad thing when the power of the court is used to overturn the clearly-expressed will of the people (such as a public referendum), or to circumvent democracy in the form of the legislative process.

All of this brings us back to Chief Judge Vaughn R. Walker's decision regarding California's Proposition 8 referendum. This is clearly a case of bad judicial activism. The vote in California may have been close (52% - 48%), but nationwide opinion is clearly on the side of traditional marriage. In 2004, eleven states voted on legislation or constitutional amendments that would define marriage as a legal union between a man and a woman. Those questions passed with double-digit margins in all eleven states; the margin here in Oklahoma was 3:1, and Mississippi 's referendum passed with a whopping 86% of the vote.

While the majority of Americans clearly support equal rights for LGBT citizens, and a majority would also probably support secular same-sex civil unions or domestic partnerships, it is also very clear that a vast majority of Americans DO NOT support tampering with the traditional definition of marriage. Any attempt by courts to overrule the will of the people with respect to such deeply-held beliefs will leave us fractured and bitter, just as the court-imposed legalization of abortion did, nearly 40 years ago.


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Comments (32)

What it comes down to is ju... (Below threshold)

What it comes down to is judicial activism is defined as 'decisions with which we disagree' while decisions we agree with are hailed as brave judges defending our rights.

I don't think anyone celebrating Walker's decision defines it as activism, just as conservatives who applauded the decision in Citzens United didn't view that as judicial activism.

Not always, Steve.... (Below threshold)
Upset Old Guy:

Not always, Steve.

Certainly we can all agree that there is a difference between an outright statement, "the right of the people..." and something a group of judges decide they found in the "penumbra of the preamble."

I'm still waiting for the L... (Below threshold)
GarandFan:

I'm still waiting for the LBGT crowd to sue Mother Nature. They scream for "equality", but Gaia isn't listening. 1 + 1 still doesn't equal 3.

As for 'unintended consequences'; looking back with a dispassionate gaze, the consequences were entirely foreseeable if one took the trouble to think.

I'm reminded of ol' Hubert H. Humprey's statement about a portion of the Civil Rights Act, "This is not a quota system". Guess what?

Interesting how the dems wa... (Below threshold)
914:

Interesting how the dems want a popular vote in elections to rule the day but not when it comes to issues they are pushing.

This decision was liberal militant activism. The y can call it "Sqashed", "Pegged", whatever they want. But one thing it will never be is Marriage.

"Judicial activism can b... (Below threshold)
P. Bunyan:

"Judicial activism can be a good thing"

No it can't. It may, on rare occasions, produce an acceptable result, but the ends never justify the means, IMHO.

"Judicial activism can be a... (Below threshold)
jim m:

"Judicial activism can be a good thing, if public opinion is in the process of aligning with the opinion of the court,"

Wrong, wrong, wrong, wrong.

It is not a good thing. Not ever. It is usurping the law and the purpose of the legislative branch of government. If the law is unconstitutional or if someone is acting in a way that violates another's rights then there is no need for activism. The courts need only follow the law. If they do not like he law yet it is still constitutional the court should shut their fat mouths and do their job and uphold the law and the will of the people.

Judicial activism is bad for this country whether or not it happens to coincide with the current public opinion. Judicial activism has lead elected representatives to apathetic failure to do their jobs as they are more and more allowing the often unelected judges to create laws on the bench. It's corrupting the system and destroying the checks and balances that have protected our rights for over 200 years.

Michael LaprarieJ... (Below threshold)
hcddbz:

Michael Laprarie

Judicial Activism is bad. It was justices finding new rules in the constitution. The 13,14 and 15 amendments blacks had Civli Rights, The Civil Rights act of 1875 made the segregation of Schools and public accommodations.

So a good ruling was when the court said that you could not restrict juries to white only because of the 14th amendment.


Now we comes to Judicial activism the Civil Right act was overturned by the court based on the right to segregate ( if the Constitution does not support your case invent rights )
Plessy v. Ferguson (1896) was what established Jim Crow. They took the 14th Amendment and re-interperted it.

The issue was that if the Judges had not invented rights and created law out of then air Jim Crow would not have become the law of the land and then taken almost 58 years to get back to the original intent.


Agree with 914.if ... (Below threshold)
Hank:

Agree with 914.

if the outcome suits their [the left] purposes, then every vote counts. If they don't like the outcome, they resort to the courts.

As for judicial activism, jim m is exactly right.

I'll join the pigpile...jud... (Below threshold)

I'll join the pigpile...judicial activism is NEVER good, even when the result is morally acceptable to some. Judicial activism is, simply stated, a judge or judges over-ruling properly passed and applied laws. Overturning a law on Constitutional grounds, when the Constitutional grounds are actually IN the Constitution, is never activism (that is, overturning a law that forbids gun ownership, which is explicitly allowed in the Constitution, is NOT activism, whereas overturning a law based on a right to "privacy", which is NOT in the Constitution, IS activism). The correct answer, except in cases of insults to the Constitution (the actual one, not the "living" one) is ALWAYS to change the law by an act of the legislature.

What get's me is how a pers... (Below threshold)
jim m:

What get's me is how a person of reasonable intelligence could think that he could make an argument that courts not following the law that they are supposed to uphold is a good thing.

The reason the law works at all is because people can look at the law and have something like a reasonable expectation as to an outcome.

I know that it is fashionable to say the opposite (and indeed, Sotomayor did exactly that stating that the notion that anyone should be able to predict an outcome of a court case by reading and understanding the law is wrongheaded and that such an expectation is wrong not because it doesn't happen, but because it shouldn't happen). However, the expectation that the law will be consistently and fairly applied is what holds he country together. Arguing that the law should not be so and that sometimes it's a good thing is foolish indeed.

The law is not some crap shoot. We should have a reliable and stable law. Laws reliably and consistently applied will result in new laws being made or old ones repealed when they are no longer what the public wants. That is how government is supposed to work. There is no incentive for legislatures to change laws if the courts will do it for them. The rule of law then becomes chaos. That's exactly what we are getting today.

The right shows again an am... (Below threshold)
Dane:

The right shows again an amazing ignorance and disregard of the Constitution. Why do you people hold up the Constitution and praise it on the one hand, then stomp on it or at the very least show a total disregard on the other?

Clearly the author of this article hasn't even read the decision.

"This is clearly a case of bad judicial activism. The vote in California may have been close (52% - 48%), but nationwide opinion is clearly on the side of traditional marriage. "

Public opinion cannot override Constitutional rights.

If 52% of the voters in California voted to ban interracial marriages would the federal courts strike it down as un-Constitutional? In a flash, yes. As they have in the past.

Why would you want it any other way?

States do not get to take away our Constitutional rights. It's just that simple.

The SCOTUS has on 14 occasions since 1888 upheld marriage as a fundamental right of Americans. The SCOTUS ruling overturning bans on interracial marriages a perfect example of that.

The same right applies to gays and lesbians under the equal protection clause of the 14th amendment.

If African Americans have the right marry and the Constitution requires bans on interracial marriages to be struck down the same applies to gays and lesbians.

You guys lost this one. The paperwork hasn't gone through yet, and the opponents will have their day in court, but you've lost, trust me.

"So a good ruling was when the court said that you could not restrict juries to white only because of the 14th amendment."

You think black americans have rights gays americans don't - that's clear. You're wrong.

"Judicial activism can be a... (Below threshold)
BlackRedneck:

"Judicial activism can be a good thing, if public opinion is in the process of aligning with the opinion of the court...jim m - Wrong, wrong, wrong, wrong."

Exactly what he said!!! Judicial activism is WRONG. Period. Full Stop.

Not only does it undermine the rule of law, it creates contempt for judges and the legal system. As Scalia said, we do not need 5- black-robed masters substituting their judgment for the will of 300 million Americans.

Although I agree with the outcome, Brown v. Board was a poorly reasoned case that has done much damage to our society especially the black community. It is a major turning point in our society where it became okay for judges and lawyers to bypass the legislative process and substitute their judgment for the will of the people. They did this by making up "facts" and relied on fake science to justify it. Are you seeing the pattern? For example, Brown relied heavily on social "science" studies (i.e. showing that black girls liked white dolls, etc.) to integrate the schools. So what's happened since? Large segments of the black community believe that intelligence and education are white things and being smart is acting white. (Isn't that the underlying premise of Brown?) A black guy has just written a book about this phenomenon as one of the unintended consequences of school integration. (I'm sure the Dear Leader will be condemning him soon.)

More importantly, your argument that judicial activism was necessary because of the political power of the Southern Democrats is completely undermined by the fact that the schools were segregated in the North states as well. (This Southern stereotype is used to justify the "redneck" bias that is so prevalent in our society.) The Northerners, liberals, whatever, all conveniently like to forget the fact that their schools were all segregated (along with their share of lynchings and discrimination). In fact, the Northerners had the whole Back to Africa movement where they shipped 5th, 6th generation Americans to random places in Africa. While everyone talks about Brown, they conveniently forget the companion cases that said: hey northerners, isn't it funny how you don't have any jim crow laws on the books and yet your schools are 100% segregated. Knock it off!

Rulings like Brown have laid the foundation for the Prop 8 Judge to pull "facts" out of his butt and use testimony from "social science" experts to find that "gender" no longer has anything to do with marriage and entire history of marriage is based on homophobia. Enough!! STOP THE INSANITY!!!

Dane,One does not ... (Below threshold)
jim m:

Dane,

One does not have to be against gay marriage to know that the judge's decision on 8 was badly written. The fact that he opened the door for marriages to commence immediately showed that he wasn't acting out of a concern for the law but from an activist viewpoint.

As far as I am concerned I'd like to know what the government has to do with marriage in the first place. Get the government out of my life, my family and my religion.

#13 Ditto!#11 Scr... (Below threshold)
914:

#13 Ditto!

#11 Screw off dipshit!

"The question is not whethe... (Below threshold)

"The question is not whether gays should be permitted to marry. Many gays have already married people of the opposite sex. Conversely, heterosexuals who might want to marry someone of the same sex in order to make some point will be forbidden to do so, just as gays are...

Despite heavy television advertising in California for "gay marriage," showing blacks being set upon by police dogs during civil right marches, and implying that homosexuals face the same discrimination today, the analogy is completely false.

Blacks had to sit in the back of the bus because they were black. They were doing exactly what white people were doing-- riding a bus. That is what made it racial discrimination."

-Thomas Sowell

"There is in fact no compar... (Below threshold)

"There is in fact no comparison between the situation of gays in America in 2008 and the situation of most black Americans prior to the civil rights era. Gays are fully accepted, and as a group happen to constitute one of the wealthiest in American life. Moreover, not being allowed to marry a person of the same sex is not anti-gay; it is pro-marriage as every civilization has defined it...

And so, the movement appropriates the symbols and rhetoric of the black civil rights struggle when that struggle and the movement to redefine marriage have next to nothing in common. How can a seriously moral individual compare forcing a black bus rider to sit in the back of a bus or to give up his seat to a white who demands it, or prohibiting a black human being from drinking from the same water fountain or eating at the same lunch counter as a white human being, or being denied the right to vote, or being prohibited from attending a school with whites, let alone being periodically lynched, to either the general gay condition today or specifically to being given the right to redefine marriage for society?"

-Dennis Prager

Ever notice that Dane pulls... (Below threshold)
GarandFan:

Ever notice that Dane pulls the 'hate' card every time he makes an argument?

If you're not FOR some liberal cause, it's because you're filled with HATE.

Hey numbnuts! Let's see the the gays sue Mother Nature for violation of "equal rights".

"Ever notice that Dane p... (Below threshold)
Dane:

"Ever notice that Dane pulls the 'hate' card every time he makes an argument?"

Ever notice how GarandFan lies when he can't think of anything else to say?

Poor guy. Feeling bad because you can't think of anything adult to say?

Where did I use the word "hate"? Here's what I posted.

------------
The right shows again an amazing ignorance and disregard of the Constitution. Why do you people hold up the Constitution and praise it on the one hand, then stomp on it or at the very least show a total disregard on the other?

Clearly the author of this article hasn't even read the decision.

"This is clearly a case of bad judicial activism. The vote in California may have been close (52% - 48%), but nationwide opinion is clearly on the side of traditional marriage. "

Public opinion cannot override Constitutional rights.

If 52% of the voters in California voted to ban interracial marriages would the federal courts strike it down as un-Constitutional? In a flash, yes. As they have in the past.

Why would you want it any other way?

States do not get to take away our Constitutional rights. It's just that simple.

The SCOTUS has on 14 occasions since 1888 upheld marriage as a fundamental right of Americans. The SCOTUS ruling overturning bans on interracial marriages a perfect example of that.

The same right applies to gays and lesbians under the equal protection clause of the 14th amendment.

If African Americans have the right marry and the Constitution requires bans on interracial marriages to be struck down the same applies to gays and lesbians.

You guys lost this one. The paperwork hasn't gone through yet, and the opponents will have their day in court, but you've lost, trust me.

"So a good ruling was when the court said that you could not restrict juries to white only because of the 14th amendment."

You think black americans have rights gays americans don't - that's clear. You're wrong.
--------

"Poor guy. Feeling bad beca... (Below threshold)
914:

"Poor guy. Feeling bad because you can't think of anything adult to say?"

Liberal is not adult. Liberal is selfish and childlike.

"Interesting how the dems w... (Below threshold)
ryan a:

"Interesting how the dems want a popular vote in elections to rule the day but not when it comes to issues they are pushing."

Yes, this does happen with the dems sometimes. In fact, many people tend to bounce back and forth between making arguments based upon ideals about individual freedom vs ideals based upon democracy (or majority rule).

Interesting how *many* Republicans are all about the Constitution, limited government, and individual rights UNTIL anyone starts talking about social issues like this. THEN they want the government to step in and start telling people how to live their lives and what is right and wrong.

Ryna A.You do real... (Below threshold)
hcddbz:

Ryna A.

You do realize that we legislate morality every day.
Yo cannot murder someone some derive that person of life without due process. You cannot take someone property. We have laws surrounding marriage 1 person , age limits, relationship limits and for most of society history between people of opposite sex. Once persons entered into that contract we expected certain behaviors from them.

Now since the definition of marriage was one man and one women people thought they understood implicitly what it meant. Certain groups said since it was not explicitly stated t was between man and women then the definition could be made into anything. See there was never a reasonable expectation that same sex couple could be married because it was ever a true societal construct. It was invented. When it was pushed the codified the laws to make explicit what was meant.

This is when they ha to invent another approach and force the morality of a few on the many,


Ryan it is your side telling everyone how to live.


If LGBT want social unions have at it but leave marriage for us heterosexuals.


"Now since the definitio... (Below threshold)
Dane:

"Now since the definition of marriage was one man and one women people thought they understood implicitly what it meant."

What definition? Where?

Your church may define it that way but other churches don't

Why does your churches interpretation of what marriage is apply to everyone?

Or are you referring to the Defense of Marriage Act?

Section 3 of the [Defense of marriage Act] --the part that defines marriage for federal purposes as the union of a man and a woman--was ruled unconstitutional by a federal district court judge in July 2010.[3][4]

Ooops! Un-Constitutional. Under the equal protection clause.

Surely you Republicans are outraged that there are people in this country trying to take away the Constitutional rights of Americans, right?

Aren't you?

Hmm... no - it looks like it's you GOPers who don't give a damn about the Constitution.

If LGBT want social unions have at it but leave marriage for us heterosexuals.

Because why? Why should LGBT folks not have the same rights as everyone else?

Dane,Without going... (Below threshold)
Deke:

Dane,

Without going crazy and calling you names I would just ask you to understand that the word marriage has come to be synonymous with a religious ceremony, especially a Judeo/Christian one, which is the foundation of our country, despite what Obamalini and Bloomberg think.

Most Americans subscribe to these ethos and it is the gay/lesbian lobbies attacks upon them that has people pushing back. Regardless of the arguments made about it, homosexuality is a choice you make, how only humans in nature prefer to have sexual relations with their own sex I don't know and I certainly don't care, the point is we do. If you want to enter into a secular contract with a partner over your living arrangemnts, I and I'm certain a majority of Americans can care less, it's the assault upon the bedrock institution of the wedding ceremony that has people up in arms.

Whats to keep a judge from issuing, by fiat, a decision to force Catholic and Protestant churches to perfom gay ceremonies or lose their ability to perfom weddings for anyone, after all doesn't a gay Baptist have the "right" to have his ceremony recognized by other Baptists?

The insane attacks by GLBT activists and judges who legislate from the bench, against these institutions of our religious beliefs are the things that hold you back.

hcdbz:"You do real... (Below threshold)
ryan a:

hcdbz:

"You do realize that we legislate morality every day."

Yes. Of course. Thanks for restating the obvious. My point is that many Republicans claim they don't want the govt telling everyone how to live, yet they support just that when it comes to issues like marriage. The laws about murder and the protection of property make perfect sense. But why should the government be able to tell two consenting adults that they do not have the right to get married? I don't see the point.

I also don't see how some people feel that gay marriage somehow threatens the "institution" of marriage, which is a lot older than how we understand it in the US today. Marriage was not invented in 1776, you know.

"Now since the definition of marriage was one man and one women people thought they understood implicitly what it meant."

THE definition? What definition are you talking about? The one from the Old Testament? Oh, wait, that doesn't work. Hmmm. You might have to rethink your position here, since you don't know what you're talking about. Marriage has various meanings and understandings historically and cross-culturally. If you actually take the time to look into it, you'd realize that.

"This is when they ha[d] to invent another approach and force the morality of a few on the many..."

Right. Because gay people are trying to force ALL people to marry people of the same sex. Your assertion is nonsense. This is about people who want the same rights that others have, it's not about them trying to make you or anyone else change your ways. How does the marriage of two people of the same sex affect YOUR MARRIAGE in any way? It doesn't. You may not LIKE it, but that's another issue.

"Ryan it is your side telling everyone how to live."

Right. My side. How on earth do you have any idea what "side" I'm on? Why not leave that childish nonsense aside and just stick to the point.

"If LGBT want social unions have at it but leave marriage for us heterosexuals."

Interesting. So what's the difference between a social union and marriage in your opinion? Do you think that there is just ONE definition of marriage that exists? Also, why do you think this is an issue that should be mandated and controlled by the govt? Why is this the govt's business at all?

Deke,"Without goin... (Below threshold)
ryan a:

Deke,

"Without going crazy and calling you names I would just ask you to understand that the word marriage has come to be synonymous with a religious ceremony, especially a Judeo/Christian one, which is the foundation of our country..."

Yes, you have your own strong ideas about what marriage means. But the concept of marriage or a social union by no means has one meaning historically or otherwise. Obviously, there are some different ideas about what marriage means, despite the fact that the US has a strong Judeo-Christian ethic. I still don't see how same sex marriage affects the meaning of marriage for anyone else.

And why do you think it's the government's job to enforce one particular idea of marriage? This doesn't jive with many conservatives' ideals about individual choice and freedom, at all.

"...it's the assault upon the bedrock institution of the wedding ceremony that has people up in arms."

First of all, there is tremendous variation in practices of wedding ceremonies, so I think you're off base there. There is certainly not just one way of performing this ceremony.

Look, I completely understand the fact that marriage has a particular meaning for you, and that you have strong feelings about that. That's good, and it's your right. What I don't understand is how the marriage of a same sex couple affects your marriage in any way. To me, it doesn't.

"Whats to keep a judge from issuing, by fiat, a decision to force Catholic and Protestant churches to perform gay ceremonies..."

How about a the separation of church and state? There is a reason why the government of the US is also founded upon certain secular principles.


@Deke:"I would ... (Below threshold)
Dane:

@Deke:

"I would just ask you to understand that the word marriage has come to be synonymous with a religious ceremony"

Wow, you mean all of the pagans and atheists in the US aren't really married?

And those who got married by a judge, justice of the peace or the captain of a ship? Their marriages are invalid?

No, of course they are valid, because although the religious ceremony is one way, and perhaps the most popular way, it isn't the only way for a couple to marry.

Are you aware that the term "sanctity of marriage" was coined in 2004? I certainly can't find it use prior to that.

"Whats to keep a judge from issuing, by fiat, a decision to force Catholic and Protestant churches to perfom gay ceremonies or lose their ability to perfom weddings for anyone, after all doesn't a gay Baptist have the "right" to have his ceremony recognized by other Baptists? "

Separation of church and state. Can you name one government edict placed on Catholic or Protestant churches with regard to their religious practices or ceremonies?

Neither can I.

It's easy to understand that some folks believe in the sanctity of marriage as they choose to define it. That's fine, but that's not the law, and it certainly isn't a Constitutionally-defensible definition of marriage.

"...it's the assault upon the bedrock institution of the wedding ceremony that has people up in arms."

That's what many in the south said about interracial marriages, but times changed.

The times are changing again. Denying gays and lesbians the right to marriage is to deny them of a fundamental Constitutional right.

Religious bedrock notwithstanding, people who oppose gay and lesbian marriages are bigoted against gays and lesbians. Bigotry, however popular, should never be the basis for law in our country.

Religious people cling to m... (Below threshold)
hyperbolist:

Religious people cling to marriage like it separates them from the heathens but they're wrong. Atheists get married every day, and red (heavily Christian) states have higher divorce rates than blue states. So they don't really care about marriage.

Let they bray and bleat. They're being bred out and relegated to the annals of history, just like these Fine Upstanding Citizens:
http://upload.wikimedia.org/wikipedia/commons/thumb/f/fa/Little_Rock_integration_protest.jpg/500px-Little_Rock_integration_protest.jpg

Good, decent, God-fearin' folk! Very little in common with Jesus, but that's never the point is it.

Dane,Your wrong bu... (Below threshold)
Deke:

Dane,

Your wrong bud, no church "marriage" is legally binding, the legal binding of estates, barring outstanding documents, such as a pre-nup, occurs when 2 people sign the documents at the courthouse, the wedding "ceremony" is perfomed at a church, synogogue, etc.

Again our argument is over the definition of the word marriage. Not many deny the right of people to form legal partnerships that hold the weight of law, it's the attack upon the wedding ceremony, as recognized by most of the mono-theistic religions practiced in the U.S., between one man and one women, that causes the push back.

Now just because someone disagrees with your position does not instantly make them a bigot, racist, homophobe or other heated word intended to scare someone off an argument, it could mean they have a true disagreement with your definition. Would you have a problem with polygamy? Perhaps arranged unions? Beastiality? Where do you personally draw the line?

Comparing the past existence of segregationist laws to bar inter-racial marriage in a few Southern states, to the plight of homosexual marriage, is good on the surface, but when examined has holes in it. Physically speaking you can't help being born with whatever genetic traits you inherit and like other animals in nature, regardless of color they are the same species and can reporduce mixing the varying dna traits of the parents. Deep down the vast majority of Americans feel that homosexuality is a choice, not something your born with. Whether or not this is true has yet to proven, don't link items showing how it is, there are tons for both sides, regardless most feel it's an unnatural state and do not feel that it equates the same as heterosexual unions. Again the question is do the courts have the right to over-ride legislation and the will of the people to force acceptance of a political or philisophical ideology?

I feel if it's not in the Constitution, then the courts have no business finding it. Jim Crow laws not only were disfavored by most of the U.S. but the fact the 13th, 14th and 15th amendment strictly prohibited them shows the harm caused by Judicial Activism, that time in favor of the harmful laws practiced in the south.

And please don't give me that seperation of church and state crap, plenty of religious groups have been threatned with or had their tax exempt status pulled for varying reasons, the threat of a full IRS audit or investigation by the Feds., is usually enough to make most religious groups, especially the large denominations, give in fairly quickly.

Oh come on Deke, atheists g... (Below threshold)
hyperbolist:

Oh come on Deke, atheists get married in courthouses. The "wedding ceremony" is totally superfluous to the concept of marriage, which is what everyone else was talking about.

The "vast majority" of Americans don't feel that homosexuality is a choice. I guarantee you can't prove that. And I guarantee that the truth of that statement has nothing to do with majority opinion. Instead you should find out what the "vast majority" of psychologists think. You're on the wrong side of that issue. And then you shoe-horn in the notion that it's "unnatural": you know what else is unnatural? Living indoors; electricity; human rights. A lot of very good things are outside the realm of what nature would suggest the case ought to be. We're better than natural law by virtue of the fact that we're rational creatures and not mere animals.

As for your question of whether the court has the right to override legislation and the will of the people to force acceptance of a political or philosophical ideology: yes, the court does have that power. That's the point of the Supreme Court. Your country was founded on an ideology, a good one, and it's the SCOTUS' job to keep your country on that tack. If excluding gay/lesbian couples from the institution of marriage is determined by 5 out of 9 Supreme Court Justices to be a violation of the Constitution, then it's their job to correct the will of the people. You don't live in a direct democracy. Direct democracies tend not to work very well unless you live in an anarchist commune.

As for your last paragraph, it's just dumb. If a Church tries to influence the State, then the State can un-tax-exempt the Church because it's no longer a religious organization but a political one. The Catholic Church should have lost its tax-exempt status a long time ago.

Dane <br... (Below threshold)
hcddbz:

Dane


THE definition? What definition are you talking about? The one from the Old Testament? Oh, wait, that doesn't work. Hmmm. You might have to rethink your position here, since you don't know what you're talking about. Marriage has various meanings and understandings historically and cross-culturally. If you actually take the time to look into it, you'd realize that.

Societies have defined marriage as between man and women. Greek Society, Roman, Egyptian. This is out side of of Christian Church system. American society has marriage was between one man and one woman. When Mormon tried to have multiple wives this was not recognized as valid marriage. Islam say that if a man can support more than one wife he can have one more than one. However American legal system again does not recognize that.

We recognize bride and groom and the roles are male and female.

Again the definition of marriage was thought to be implicit. Please do not insult anyone by saying that brand new interruption of marriage is not new. When LGBGT tried to point to the fact that the US was behind the ball in the 70 they could not find any other countries that recognized same sex unions nor same sex marriage.

In fact it was until 1989 that Denmark recognized same sex unions though not marriage and it was in 2001 that the Netherlands became the first country to recognize same sex marriage.

Therefore for most of history every where marriage had been between different sexes.


The "vast majority" of A... (Below threshold)
Deke:

The "vast majority" of Americans don't feel that homosexuality is a choice. I guarantee you can't prove that. And I guarantee that the truth of that statement has nothing to do with majority opinion. Instead you should find out what the "vast majority" of psychologists think. You're on the wrong side of that issue.

Hyperbolist

As stated earlier there is no point in arguing whether or not people think it's a choice or not, we can agree to disagree and believe me if you take the word of the "majority" of psychologists, the same people who gave us the wonderful Dr. Spock's guide to raising children, I'll let you have their opinion.

it's "unnatural": you know what else is unnatural? Living indoors; electricity; human rights.

Actually scrub your wrong here also, Living indoors, for the human species, is totally natural, man has sought shelter from the begining, even if your an evolutioist, man seeking shelter from the weather in caves is central to our "natural" condition. Electricity is a direct upgrade from fire, the basic form of energy, our superior intelligence, allowed us to harness. Human Rights? Again doofus, we are pack animals, we enforce a hierarchy naturally, our intelligence allows us to be more sophisticated than a wolf pack, well in some countries that's not the case, but we still do it. Humans, like it or not, are part of the natural order and unfort., for your argument, no matter how you slice it, homosexuality is against nature, Alpha Males don't kill each other over the right to breed with other males.

As for your question of whether the court has the right to override legislation and the will of the people to force acceptance of a political or philosophical ideology: yes, the court does have that power. That's the point of the Supreme Court. Your country was founded on an ideology, a good one, and it's the SCOTUS' job to keep your country on that tack. If excluding gay/lesbian couples from the institution of marriage is determined by 5 out of 9 Supreme Court Justices to be a violation of the Constitution, then it's their job to correct the will of the people. You don't live in a direct democracy. Direct democracies tend not to work very well unless you live in an anarchist commune.

Are you an American? That statement is assinine! The job of the SCOTUS is to NEVER over-ride legislation, it is to interpret the constitution. If legislation passed by congress is deemed to be adverse to the rights of citizens THEN it can be handed back for re-clarification. The SCOTUS has absolutely NO enforcement power whatsoever, when they found in favor of the Cherokee, during the Jackson admin, he basically told them to get stuffed and moved the people off their native lands and into Indian Territory, it was called The Trail of Tears, look it up. They can't "force" the people to do anything, and if they legislate from the bench the people have the power of ratification of amendment. From your constant use of the possesive "your country" I get the distinct impression you may not be from America or else really didn't pay attention in Civics.

As for your last paragraph, it's just dumb. If a Church tries to influence the State, then the State can un-tax-exempt the Church because it's no longer a religious organization but a political one. The Catholic Church should have lost its tax-exempt status a long time ago.

Bit of an anti-Catholic bigot are you? See anyone can throw that around? What is a political statement by a church? If a religion refuses to perform a ceremony for a gay couple and states in their services that it is wrong, according to their doctrine and in direct conflict with state policy is that political? Should they then have their status as a religion and their right to belief challenged? When does a religion go to far in it's freedoms and then become political?

(Golf claps for Hyper vs Da... (Below threshold)
JLawson:

(Golf claps for Hyper vs Dane...)




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