Law, Crime & Justice

» njkaters - Discussion on Gay Marriage

I look forward to hearing questions, comments, or anecdotes. I will be checking this discussion daily.

Nick Katers

-- posted by njkaters

» Brian Tubbs - Please explain...

How does a state refusing to give marriage licenses to gay couples directly contradict the Fourteenth Amendment....if you interpret the Fourteenth Amendment according to its original intent and understanding, that is?

Also...please explain why a state is allowed to impose age guidelines on marriage and also restrictions on the number of partners in a marriage without going against the "spirit" of the Fourteenth Amendment -- that is, if gay marriage is endorsed by that "spirit"?

» njkaters - Please explain...

In response to Please explain... posted by BrianTubbs:

1) I am not interpreting the 14th on its original grounds (following the Civil War). Laws evolve as generations come and go and I was offering one interpretation. Equal protection of the law would seem to cover civil unions, a legal recognition of a bond that can be heterosexual or homosexual.

2) This is always a part of the conversation when it comes to gay marriage or civil rights for gay people. I stated that a Fourteenth Amendment argument for gay marriage would be one argument, though it certainly has holes like the one you mention. I think any answer given for this can be seen as the arguments of a moral relativist (gay marriage is better than bisexuality which is better than etc. etc.). In other words, it is tough to argue from a legal perspective that one arrangement is better or worse than another. Equal protection could apply to anything, I suppose, though there is far more of an outcry by gays and lesbians who have had to hide their relationships over decades than by people who want to marry four other people or marry their family dog.

-- posted by njkaters

» Brian Tubbs - Judicial Activism

In response to Please explain... posted by njkaters:

Laws evolve as generations come and go and I was offering one interpretation.

They do, but they shouldn't. Our system of jurisprudence was NOT intended to be that way, not according to the Founding Fathers or to the leading British jurists (Blackstone, Coke, etc) who inspired our legal system.

Interpreting the laws by your methodology - which unfortunately is the mainstream way of doing things now - makes the judiciary the MOST dangerous branch of government (contrary to Mr. Hamilton's assessment). The reason is that the judiciary is now a policy-making, a lawmaking branch -- and an unelected one at that.

If gay marriage is to become policy, it should be passed by the people via their legislatures. It should NOT be forced on the nation via the courts.

Also...with all due respect, neither you nor the gay rights lobby should be allowed to set aside the valid concerns I mentioned above. If you are going to argue that gay marriage is constitutional based on the Fourteenth Amendment, then you have to explain why polygamy would NOT be. Your interpretation of the Constitution should at least be internally consistent, should it not?

» njkaters - Judicial Activism

In response to Judicial Activism posted by BrianTubbs:

I think your point on polygamy is fair and I acknowledge that the argument may have some flaws in it. I think my view on law is consistent even if I don't have a specific answer to your question. The law evolves one step at a time, first with ideas of class, then with race, then with gender, and now with sexuality. I don't have a crystal ball, so I can't foresee the future, but it is entirely possible that my argument leads to greater freedoms for more non-conventional arrangements. Whether that is right or wrong is for everyone to decide at the polls, which most of this will invariably go to (by the way, I am in favor of voting on these matters as well but the courts are there to arbitrate when issues arise that the popular sentiment cannot seem to resolve).

I agree that the Court shouldn't have the quasi-legislative powers it has now but the only way to change that is massive electoral and political reform. I disagree, however, with the contention that it was not meant to be this way. The Founding Fathers could not have envisioned a nation that stretched from Atlantic to Pacific or with the amount of resources we have today. The Courts are filled by people, not robots, and they will judge laws by a certain lens at a certain point in time. You obviously don't feel that should be going on, but whether you agree or disagree everyone has their own biases and points of view.

-- posted by njkaters

» Brian Tubbs - Judicial Activism

In response to Judicial Activism posted by njkaters:

The Founding Fathers DID envision a nation that stretched from sea to shining sea. Some of them, like Alexander Hamilton, foresaw the U.S. becoming a global superpower.

Judges aren't robots. They are human, and that's why Madison, Hamilton, et al pushed the "checks and balances" system into play. Today, however, the executive and legislative branches are pretty well checked. Not so the judiciary. The courts have run amok. This should not be the case.

The only time the courts should intervene to counter the legislative process is when the lawmakers defy the Constitution. But that should only be done when the lawmakers defy the Constitution AS IT IS - NOT as the courts want the Constitution to be.

You say that laws evolve. Well, who supervises this evolution? The courts? If so, they are a lawmaking branch. That was never their purpose.

I will admit that society evolves. And thus laws need to change. But there is a PROPER way for that to happen - the legislative branch.