gay marriage a win in US?

[East]

all the politic stuff confuses me to ,
everyone should just go back and think how hippies do
sorted.

That would be nice...hippies voted and protested and had a social conscience. It is appalling in America how many people are too lazy to vote. When I was in my poli sci class in college I learned that we had the second lowest voter turnout in the world...Botswana had the lowest. It made me sick to think about how many people died so we could have a voice and how many people are so full of apathy (and themselves) that they have no respect for that.

I hope since I was in college that we got better...but I think not. If anything...maybe we have company as it seems apathy is a disease alot of people catch.

[fredv3b]

However, all states must comply with the federal constitution. So, if proposition 8 gets to the Supreme Court and they rule that proposition 8 is a violation of the federal constitution (likely through the 14th amendment) ALL states must then comply with the courts reading of the constitution. That will stand until either the federal constitution is amended (which is very difficult) or until the Supreme Court agrees to review the case again at some future date and changes its ruling as it did with Plessy v. Ferguson when it changed its verdict on the subject with Brown vs. Board of Education.

Alas, I must disagree. The opinion of the Ninth Circuit Court of Appeals was very narrow, it rests on the removal of a right previously enjoyed by same-sex couples and the fact that California's Domestic Partnership laws still granted same-sex couples all the rights of marriage. This simply could only possibly apply to a very few states at the moment, and only if they removed they qright to same-sex marriage. The court did not consider if there was any general right to same-sex marriage.

If the Supreme Court chooses to hear the case it will almost certainly stick to either upholding or overturning that very narrow judgement. The Supreme Court would only address a general right to same-sex marriage if it wanted to, and I am sure it doesn't.


Sent from my iPhone using Tapatalk

[Inchante]

Alas, I must disagree. The opinion of the Ninth Circuit Court of Appeals was very narrow, it rests on the removal of a right previously enjoyed by same-sex couples and the fact that California's Domestic Partnership laws still granted same-sex couples all the rights of marriage. This simply could only possibly apply to a very few states at the moment, and only if they removed they qright to same-sex marriage. The court did not consider if there was any general right to same-sex marriage.

If the Supreme Court chooses to hear the case it will almost certainly stick to either upholding or overturning that very narrow judgement. The Supreme Court would only address a general right to same-sex marriage if it wanted to, and I am sure it doesn't.


Sent from my iPhone using Tapatalk

Alas, I must disagree with you as well. While the ninth circuit court did make a narrow argument, as I stated already in a thread on prop. 8, if the Supreme Court chooses to accept the case, it will be considered on the basis of federal law and not on California law. They would not take the case if they did not want to address it on a federal scale. which is why the ninth circuit issued a narrow ruling.

My purpose was to explain to mrk2010 the general process, not to pinpoint the likely outcome. And, yes, as fond as pundits are of crying "judicial activism" here, I doubt the Supreme Court will try to make such a drastic change on a national scale at this point.

[Person66]

Fred you're British, how do you even know we have a Ninth Circuit Court of Appeals, let alone an accurate comprehension of its decision!
I guess you weren't kidding when you told me you find U.S. Government very interesting.
I have a great interest in how the U.K. and commonwealth governments work, but have found the information on these matters very limited. Even now that I have access to all the Fleet Street papers, I've learned much more about Katie Price than the government.
Alas as to wether Fred or Inchante is right, I have no idea.

[Inchante]

all the politic stuff confuses me to ,
everyone should just go back and think how hippies do
sorted.

LOL, I think we would all soon starve to death in that scenario. The amount of arable land necessary to produce that much marijuana would seriously deplete the world's food supply.

[OrphanPip]

It would be interesting to see whether legalization takes a judicial path or a legislative path in the USA. In Canada court decisions had effectively legalized gay marriage in 9/10 provinces and 1/3 territories prior to Parliament making it legal nationally. My inclination is that politicians tend to be cowardly when they're not sure which way public opinion will go, so they'll let the courts sort things out in the short run until a strong popular approval for legalization arises.

Canada has a substantially more modern constitution though that explicitly prohibits discrimination on the grounds of gender, which judges then construed to include a constitutional protection of gay rights.

[fredv3b]

They would not take the case if they did not want to address it on a federal scale. which is why the ninth circuit issued a narrow ruling.

The question is what does the Supreme Court wish to address on a Federal scale? There were a number of points of law in the Ninth Circuit's judgement that the Supreme Court may feel best decided by themselves giving nationwide binding precedent. The Supreme Court could address these and simply ignore the question of a general right to same-sex marriage as it was not addressed in the Ninth Circuit's decision.

I stand by my prediction that if the Supreme Court hears the case it will issue a narrow ruling, which in terms of same-sex marriage won't practically apply outside of California.


Sent from my iPhone using Tapatalk

[Inchante]

Fred you're British, how do you even know we have a Ninth Circuit Court of Appeals, let alone an accurate comprehension of its decision!
I guess you weren't kidding when you told me you find U.S. Government very interesting.
I have a great interest in how the U.K. and commonwealth governments work, but have found the information on these matters very limited. Even now that I have access to all the Fleet Street papers, I've learned much more about Katie Price than the government.
Alas as to wether Fred or Inchante is right, I have no idea.

Oh, I don't disagree with Fred . . . or at least it is not a major disagreement. He misunderstood what I was saying and I took it for granted that people had read the other thread on prop. 8. He thought I was speaking in actual terms and not a hypothetical to illustrate a point.

In reality, we are both correct. What Fred is saying is that the ruling by the 9th Circuit was narrow and only pertained to the state of California concerning gay marriage, though all of the 9th Circuit will then have a precedent based on its findings. The fact that the ruling is narrowed to a direct effect on California limits the likelihood that the Supreme Court will undertake the case. However, if the Supreme Court does undertake the case it will have a significant basis in federal law, far more than it has currently, and it will effect all laws in the United States, even if it is only in the establishment of precedence for future trials, as has happened with Romer v. Evans and Lawrence v. Texas. But precedence, as Fred cannot fail but to admit, is very important.

For instance, in Orphanpip's allusion to matters of gender, he neglects the importance of precedence. He states that, since the Canadian Constitution is much newer than the U.S. Constitution, it includes equality based on gender. It is true that the words of the U.S. constitution do not include equality based on gender, but the 14th Amendment and the equal protection clause were extended to issues of gender after the court set legal precedent with Taylor v. Louisiana. Since then, gender equality has been as much as written in the constitution. As a comparison, you have to realize that, in writing, many of the rights enjoyed by the British are not the result of direct legislation but the result of precedence which extended those rights to the general British population.

The biggest problem with all laws and constitutions is that they require the use of a very powerful, subtle, malleable, and ephemeral human tool, which is language. Sometimes being very specific does not help matters. Thomas Jefferson believed that each generation had the right to establish its own sort of government. For that reason, the constitution and many laws are rather vague in this country, so that they can be open to interpretation and change with time. That is why we have the oldest "living" constitution in the world despite the fact that we are still a rather new nation comparatively. Recently, I spoke with a gentleman who wanted Sharia Law to be banned. My state is a conservative state and attempted to pass such a law, but many of the citizens came forward in opposition to the law based on the fact that it was simultaneously redundant and unconstitutional, and the proposed law was abandoned. The man asked me where in the constitution it said Sharia Law was banned. I said, "it didn't have to expressly ban Sharia Law, as the broad statement made by the 'Establishment Clause' prohibited Sharia Law from becoming government law". He stopped talking to me after that.

There is a very interesting interview with her honor, Justice Ruth Bader Ginsburg discussing the writing of constitutions on Egyptian T.V. She goes into the differences and difficulties of various constitutions and even the difficulties of having an old constitution. It is worth watching. I would post it if I could. There is only one point I disagree with her on. She suggests looking toward the European Convention on Human Rights among other modern laws for inspiration. I cannot agree. I feel the ECHR is far too apt to infringe on human rights for my comfort and has already allowed limitations on expression and religion I find problematic, I can only imagine these will compound with time.

[OrphanPip]

For instance, in Orphanpip's allusion to matters of gender, he neglects the importance of precedence. He states that, since the Canadian Constitution is much newer than the U.S. constitution it includes equality based on gender. It is true that the words of the U.S. constitution do not include equality based on gender, but the 14th amendment and the equal protection clause were extended to issues of gender after the court set legal precedent with Taylor v. Louisiana. Since then, gender equality has been as much as written in the constitution.

Explicit constitutional rights are still important though. For example, the Quebec charter of rights explicitly acknowledges sexual orientation as protected from discrimination. More precisely it says that a person has a right to the full exercise of their freedoms no matter their sexual orientation. There is a slightly longer history of interpreting, and even writing, Canadian constitutions with the issue of sexual orientation in mind, which was undoubtedly a deciding factor in how quickly the transition to legalization was in Canada. The proximity of the constitution's drafting, and even merely the fact that those involved in the process are still around makes the matter of interpreting its meaning less controversial. Also, I have been made to understand that the general legal philosophy in Canadian law at the moment is that interpretation of the constitution should tend towards extending rights and protections, which is a different sort of atmosphere than the intensely politicized courts of the American system.

Anyway, my understanding of precedent in the British system is that it is substantially different from the American conception of it. Convention formed by precedent provides a guide for the common law but is not definitive in the same way.

[Inchante]

Explicit constitutional rights are still important though.

Oh, I would never disagree with that statement, even for the simple fact that it limits the number of ways that laws can be changed. While laws like "seperate but equal" have been changed based on the difference between rulings on Plessy v. Ferguson and Brown v. Board of Education, it would be far better if, say, the equal protection of gender was written in the constitution, as it would require a much more arduous process to change in the future. Having said that, it does not effect how those laws function while established.

I should add, though I certainly admire the Canadian Constitution for its expediency on this specific topic, expediency can also have very negative effects on human rights when you consider the fickle nature of societies in general. While the American Constitution is cumbersome in its age, there is something to be said for slow deliberation in general. I would imagine that the best constitutions would try and find a happy medium, so that it requires both an extended deliberation and an ability to keep pace with our broadening understandings of the world.

Anyway, my understanding of precedent in the British system is that it is substantially different from the American conception of it. Convention formed by precedent provides a guide for the common law but is not definitive in the same way.

I hope that is not the case or at least that there are other significant factors that I am unaware of, as the number and type of rights extended to the British population through precedence are significant. If they are so easily changed and interpreted, those rights are as easily lost as gained.