New York Supreme Court has brain - news at 11.

[trumptman]

NY Supreme Court rules against gay marriage (http://www.newsday.com/news/local/state/ny-stgay0707,0,5118918,print.story?coll=ny-top-headlines)

The Court of Appeals in a 4-2 decision said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman. Any change in the law should come from the state Legislature, Judge Robert Smith wrote.

"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Smith wrote.

While this might be considered a setback to anyone supporting homosexual marriage it really is a good thing. Branches of government have their respective roles and should stick to them. As Judge Smith noted the changes in status here should come from the legislature. I have no doubt that within a generation these changes will occur and when they do, it will be for the right reasons and via the right path.

Nick

[groverat]

I am not arguing against the ruling, but the framers of the Constitution gave the judiciary the power it did for a reason.

While the right-wing gleefully advocates the destruction of the judiciary, I'd like to know why they hate our Constitution so much.

[BRussell]

People's constitutional rights should be protected even if legislatures don't want to. Otherwise, what's the point of having constitutional rights? Dred Scott's constitutional rights weren't upheld by the courts either. Do you agree with that decision trumptman? Is that the courts playing their proper role?

[Aurora]

Marriage has allways ment Man & Woman, if gays want to marry gay then let them have civil unions. End of story.:smokey:

[addabox]

Originally posted by Aurora
Marriage has allways ment Man & Woman, if gays want to marry gay then let them have civil unions. End of story.:smokey:

Except when it meant man and women. If women want to have multiple husbands let them find their own planet.

[groverat]

And except when it actually did mean between two men.

So if you ignore history and truth you will plainly see that the 20th/21st century Western conceptions of marriage are all that have ever existed!

[addabox]

Originally posted by groverat
And except when it actually did mean between two men.

So if you ignore history and truth you will plainly see that the 20th/21st century Western conceptions of marriage are all that have ever existed!

On account of God's wisdom is eternal and unchanging.

[Northgate]

The under-the-breath giggling over this is unsettling.

Bigotry won another day. Woot!

[trumptman]

Originally posted by BRussell
People's constitutional rights should be protected even if legislatures don't want to. Otherwise, what's the point of having constitutional rights? Dred Scott's constitutional rights weren't upheld by the courts either. Do you agree with that decision trumptman? Is that the courts playing their proper role?

Sorry I missed this. From a purely logical standpoint Dred Scott was a proper decision. It is a sickening thought from our modern view but the Constitution at that time had very clear provisions delineating that black people were property. Instead of twisting the reasoning around we had a nice little war to settle the matter and then added several amendments that changed the language of the Constitution to make it quite clear that black people were not property.

The courts help clarify the spirit of the law when the language is unclear. The alternative to courts is legal hyper-rationalization. However the spirit of the law does not mean applying it differently in instances where it is quite clear, even if I disagree with it, or even if I am sickened by the outcomes. If I want my wife to have the right to vote, I had better support women's sufferage, not hope that a court will decide the the very clear word man happens to mean woman in spirit.

I mentioned this before when discussing the Marriage Amendment and how it shows how the nature of courts have changed. We've amended the Constitution many times in the past. In almost every instance it was to ADD rights to groups. Now however the courts are twisting their logic and word definitions to get an outcome. This leads to fear that the outcome will be overturned. (Roe being the most famous example) It also now lead to amendments that simply restate the definition of common words since apparently courts no longer can do that.

If I want the outcome, I should want it done the right way. Perhaps it would have been easier to simply argue that black people were actually just another form of white, since whites had all the rights, perhaps it would have been easier to argue that when men can vote women are really just men, perhaps it might be easier to argue that man and woman really means man and man, but I prefer the outcome done correctly.

Nick

[BRussell]

Originally posted by trumptman
Sorry I missed this. From a purely logical standpoint Dred Scott was a proper decision. I don't know that to be the case. My understanding is that the decision invalidated some laws that had been passed that would have provided protection to Dred Scott (e.g., the Missouri Compromise).

But more generally, it seems that your logic suggests that no court can ever protect an individual's constitutional rights. Why bother with judicial review? Just leave it up to voting. Been denied your constitutional rights, but you're unpopular? Tough.

[trumptman]

Originally posted by BRussell
I don't know that to be the case. My understanding is that the decision invalidated some laws that had been passed that would have provided protection to Dred Scott (e.g., the Missouri Compromise).

Sure it did, and those laws had not been tested for their Constitutionality. Additionally it helped expose the insanity of trying to have a nation half-slave and half-free. Someone can't be a person and property at the same time under the same Constitution. They ruled correctly and even though it was a terrible outcome with regard to the case, it lead to a much better outcome with regard to the Constitution. There certainly isn't a way to attempt a Missouri Compromise now.

But more generally, it seems that your logic suggests that no court can ever protect an individual's constitutional rights. Why bother with judicial review? Just leave it up to voting. Been denied your constitutional rights, but you're unpopular? Tough.

I don't see where you get that. Homosexuals have no special provisions under the Constitution and are subject to all the same laws we all are under. You seem to slump into sloganeering since you don't like the outcome. We have no test for homosexuality when applying marriage criteria. Now you might have a point with don't ask, don't tell being purely based on sexual orientation, but the Constitution does not address sexual orientation. You might have a court decide one way only to have another court overturn it.

The proper solution, as has been the case every time previous to this would be a constitutional amendment that bars discrimination based on sexual orientation. Everything short of that is a band-aid.

Nick

[BRussell]

I don't know - I'd like to see an easy-to-understand summary of the Dred Scott decision that addresses the issue of its constitutionality. Was it a stretch? Was it based on obvious points made in the constitution? From what I've read just on places like Wikipedia, the decision was based on the 5th amendment right not to be deprived of property by the government, and the Missouri Compromise was considered to be a violation of that because it could deprive slaveholders of their property. That seems like a stretch to me, but I don't really know.

And let me throw this at ya: Dred Scott is often used by conservatives as an example of a bad decision, particularly in the context of abortion, because it withheld rights from a class of persons. Bush even referred to it (http://www.washingtonpost.com/wp-srv/politics/debatereferee/debate_1008.html) in a debate with Kerry:I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.

Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. Now of course I'm more than willing to believe that Bush is full of it. :D But which is it? Is it a code word for how bad activist judges are, as Bush used it here, or is it an example of how courts should wait for the people to catch up, as you're using it?

[trumptman]

Originally posted by BRussell
I don't know - I'd like to see an easy-to-understand summary of the Dred Scott decision that addresses the issue of its constitutionality. Was it a stretch? Was it based on obvious points made in the constitution? From what I've read just on places like Wikipedia, the decision was based on the 5th amendment right not to be deprived of property by the government, and the Missouri Compromise was considered to be a violation of that because it could deprive slaveholders of their property. That seems like a stretch to me, but I don't really know.

I'll be happy to not claim supreme title of legal authority but everything I have read about it states the follow.

1. What you mentioned about fifth amendment and depravation of property.

2. That no slave, descendent of a slave or pretty much anyone black was a citizen of the United States or ever had been a citizen. As such they were without merit in suing since they had no rights.

I would think the second section relates the three-fifths compromise (http://en.wikipedia.org/wiki/Three-fifths_compromise) within the Constitution.

And let me throw this at ya: Dred Scott is often used by conservatives as an example of a bad decision, particularly in the context of abortion, because it withheld rights from a class of persons. Bush even referred to it in a debate with Kerry:

I described it as a sickening decision even though it was proper. Of course the three-fifths compromise used to justify it is pretty sickening itself as well. I think Republicans, who although they are strict Consitutionalists didn't exist as a party when the nation was founded, often are willing to cross the language line when it comes to recognizing a person as a human being. They did this with slavery and have again with abortion. Perhaps it is a hypocrisy but it is likely a forgivable one considering the subjects.

Now of course I'm more than willing to believe that Bush is full of it. But which is it? Is it a code word for how bad activist judges are, as Bush used it here, or is it an example of how courts should wait for the people to catch up, as you're using it?

Probably a bit of both. I would say that in both instances it illustrates cases where a small minority is allowed to overthrow the rights of a clear and large majority.

Slaveholding was very much a minority position that in part exercised power using that three-fifths compromise. The slaves were used for allocating representatives, but only the slave-owners could vote.(You can imagine that the majority would be even larger and the minority even smaller if the slave could have voted) The objection to all religious symbolism as a religious endorsement is a minority viewpoint that again is being fought against a large majority. I would say that homosexual marriage meets this same criteria for now.

So perhaps that is how judges act activist but not so activist that the people cannot catch up. Perhaps it can be said that they should be on the leading edge, but not the bleeding edge. The historical pattern appear to be that cases force society to deal with an issue and when society is ready, they deal with it properly. One interesting thing to look at is how quickly almost all the constitutional amendments passed. Once they were ratified almost all of them passed within a year or two years at the most. That is amazingly quick when you think about it at government speeds.

Nick

[BRussell]

Either Bush is right that it was an example of judicial activism, or you're right that finding the opposite would have been judicial activism. It can't be both.

I'm curious if you can give me an example where the courts should assert someone's civil rights against the majority, even if the democratic process doesn't approve. It can be as hypothetical as you want. Do you reject the principle of constitutional review by the courts, or do you just not think this gay marriage fits the criteria?

[trumptman]

Originally posted by BRussell
Either Bush is right that it was an example of judicial activism, or you're right that finding the opposite would have been judicial activism. It can't be both.

Sorry if I wasn't clear. The Bush example is wrong. I did try to put forth that it is probably hypocritical what he is doing there and that Republicans probably do endorse judicial activism, even to the point of getting something the wrong way when it comes to matters that strip someone of their humanity ie. slavery and abortion.

I'm curious if you can give me an example where the courts should assert someone's civil rights against the majority, even if the democratic process doesn't approve. It can be as hypothetical as you want. Do you reject the principle of constitutional review by the courts, or do you just not think this gay marriage fits the criteria?

I mentioned the sodomy case in Texas was something that I felt was done half right. In that instance they specifically targeted the law in a fashion where it could not be applied equally and it was struck down, likely against the wishes of the majority. The Texas law sought to ban sodomy specifically between homosexuals while allowing it between heterosexuals. I said it ought to be all or nothing, no sodomy period (homo or hetero) or sodomy for all and that would meet the equal protection clause.

I did note that by using due process instead of equal protection, they had basically tossed out the baby with the bathwater.

Does that meet what you asked for? I do believe it an instance where civil rights did win out against the majority. Let me know what you think.

Nick

[BRussell]

That's a good example, though I could have sworn that you were against that decision.

[rufusswan]

Nick,

Personally, I hope the current judicial attack against the common law definition of 'marriage' comes to an end. I would love to see all sorts of debate, legislation, and votes on the subject of NON-traditional 'unions/partnership' or whatever terms we would like to use. I like the term 'contract' myself.

I have no objection to the religious definition of marriage, but I do have an interest in also including hetero 'unions' of predifined length, that would allow disolution without clogging the courts with issues of property disolution, who get's the kids, etc.

I don't want to pick nits or a fight, but I hope that your following comment was meant just to further the logic of your discussion. I hope that you were not actually proposing this:

"The proper solution, as has been the case every time previous to this would be a constitutional amendment that bars discrimination based on sexual orientation. Everything short of that is a band-aid."

I just read the Wiki def. of sexual orientation, and as I had assumed, it was pretty much hard to nail down an honest and complete definition. If we can't really define it, how the hell can we legislate it? I've watched a enough of Springer and Povich to know that I can't even tell a male from a female without a very close physical exam!

I think an amendment of that type would go beyond "a can o' worms" and leave a big, black tire burn across "a Pandora's Box of judicial lunacy".

Paz

[trumptman]

Originally posted by BRussell
That's a good example, though I could have sworn that you were against that decision.

I was against the reasoning for the decision because it makes it impossible to legislate against much more than sodomy. It also made laws against adultery unconstitutional for example.

They SHOULD have applied equal protection. In case you hadn't noticed I don't just have to like the outcome but the process as well.:D

Nick

[Fireball1244]

Originally posted by trumptman
[B]I was against the reasoning for the decision because it makes it impossible to legislate against much more than sodomy. It also made laws against adultery unconstitutional for example.

The fact that laws against adultery are unconstitutional are a good thing. The government has no business criminalizing consensual sex between of-age partners.

[trumptman]

Originally posted by Fireball1244
The fact that laws against adultery are unconstitutional are a good thing. The government has no business criminalizing consensual sex between of-age partners.

In this day and age, and with marriage being so easily terminated with no-fault, you are probably right. However the government has not provided an alternative to marriage, and they still hold the parties that commit to that marriage to their traditional sex roles when it is desolved.

We can't be progressive about the husband or wife "hitting it" within the marriage and then regressive about all other matters related to that. Consistancy is the key.

Nick

[tonton]

Originally posted by trumptman
In this day and age, and with marriage being so easily terminated with no-fault, you are probably right. However the government has not provided an alternative to marriage, and they still hold the parties that commit to that marriage to their traditional sex roles when it is desolved.

We can't be progressive about the husband or wife "hitting it" within the marriage and then regressive about all other matters related to that. Consistancy is the key.

Nick

I don't understand the alternative to marriage thing that you want. Really.

As a heterosexual person, you have several choices now...

1. "Holy" marriage (by a priest/minister/rabbi/etc.)
2. Civil marriage (by a judge/mayor/ship's captain/etc.)
3. Domestic partnership (unofficial).

That should cover all aspects of what you need spiritually emotionally and legally in the union. Maybe you can explain what you want?

[trumptman]

Originally posted by tonton
I don't understand the alternative to marriage thing that you want. Really.

As a heterosexual person, you have several choices now...

1. "Holy" marriage (by a priest/minister/rabbi/etc.)
2. Civil marriage (by a judge/mayor/ship's captain/etc.)
3. Domestic partnership (unofficial).

That should cover all aspects of what you need spiritually emotionally and legally in the union. Maybe you can explain what you want?

Domestic partnership, being an unofficial position, at least in the heterosexual world, does not give one the ability to give another party certain rights, share property or other financial endeavors with certain parties or enable certain legal entanglements with each other and without reverting to ancient sex roles in the event of a breakup.

As for explaining, I've posted in depth on these boards about civil unions for heterosexuals, and even temporary marriages. We need something other than traditional marriage with the man hunt and father, woman nest, and do it for life mentality.

Nick

[tonton]

Originally posted by trumptman
Domestic partnership, being an unofficial position, at least in the heterosexual world, does not give one the ability to give another party certain rights, share property or other financial endeavors with certain parties or enable certain legal entanglements with each other and without reverting to ancient sex roles in the event of a breakup.

As for explaining, I've posted in depth on these boards about civil unions for heterosexuals, and even temporary marriages. We need something other than traditional marriage with the man hunt and father, woman nest, and do it for life mentality.

Nick

Sure it does. You can name your domestic partner as a beneficiary in your will, on your life insurance policy, and they can be the adoptive parent of your children. So it's not all the rights, but it's some of them.

As for marriage, why not have a "temporary" marriage? Just draw up a pre-nup. Duh.

[dac0nvu]

Originally posted by tonton
Sure it does. You can name your domestic partner as a beneficiary in your will, on your life insurance policy, and they can be the adoptive parent of your children. So it's not all the rights, but it's some of them.

As for marriage, why not have a "temporary" marriage? Just draw up a pre-nup. Duh.

Even those are not that simple. From Human Rights Campaign site. (http://www.hrc.org)

* Estate taxes. A married person automatically inherits all the property of his or her deceased spouse without paying estate taxes. A gay or lesbian taxpayer is forced to pay estate taxes on property inherited from a deceased partner.

* Health insurance. Many public and private employers provide medical coverage to the spouses of their employees, but most employers do not provide coverage to the life partners of gay and lesbian employees. Gay employees who do receive health coverage for their partners must pay federal income taxes on the value of the insurance.

As for adoption. Yeah, in about 1/2 the states, definitely not in Florida.

[Chucker]

Title should be "New York Supreme Court relinquishes its rights, defeats its purpose".