Religious Conservatives Ignore One Of The Judiciary’s Primary Purposes

Daniel Gonzales

August 31st, 2007

Predictably from James Dobson:

Once again, we see an activist judge handing liberal activists what they have not been able to achieve legislatively or at the ballot box…

Dobson again conveniently ignores an extensive body of political philosphy on which our government is based from Plato to Thomas Jefferson stating one of the judiciary’s primary purposes is to protect the rights of unpopular minorities from a tyranny of the majority.   

Jason

August 31st, 2007

Yep, Dobson must have been sick that day in elementary school when they went over the Separation of Powers and the System of Checks and Balances.

The opinion of the majority is irrelevant if it violates the constitution.

Unless of course the state or fed can provide a vested interest in limiting a freedom.

Which in this case, they couldn’t.

I find it boggling that some people think being grossed out should somehow trump the legitimate legal peril gay couples and their children face every day.

quo

August 31st, 2007

I’m mildly sceptical of the idea that Plato was concerned with protecting the rights of unpopular minorities.

Daniel Gonzales

August 31st, 2007

You’re right, he was more concerned with the flaws of rule by direct democracy.

David

September 1st, 2007

Just what part of either the federal constitution or the constitution of Iowa forbids the limiting of marriage to heterosexual couples?

Without such an explicit statement by the constitution, the judge is replacing the moral judgment of the people of Iowa with his own. That is judicial activism.

Ben in Oakland

September 1st, 2007

David: The part that says that all people are entitled to equal protection of the laws, and not to be singled out for prejudicial actions. That’s the same part the the Supreme Court used in Brown vs. Board of Education to end public segregation.
The part that says that discirmination on the basis of religious belief is illegal.
The part that guarantees religious fredom.

David

September 2nd, 2007

Ben in Oakland:

The part of the Federal Constitution you mention regarding equal protection is about distinguishing between individuals, not about distinguishing between different actions.

A same-sex legal union and an opposite-sex legal union are not identical actions. So the government is allowed to differentiate between them as far as the 14th amendment to the US Constitution is concerned.

In not allowing for gay legally-wedded couples, the states are not denying anyone the right of free exercise of religion.

Anonymous

September 2nd, 2007

David,

Your same argument can be made against interracial marriage. Same-race and opposite race legal union are not identical actions. So the government is allowed to differentiate between them.

You know, if it weren’t for judicial activism interracial marriages would still be illegal in many places.

David

September 2nd, 2007

Anonymous,

Since you aren’t willing to even give your name I shouldn’t bother to give you a reply. But here goes nonetheless.

You don’t know what you’re talking about. Calling interracial marriage a different action than intraracial marriage involves making exactly the sort of distinction between individuals that the 14th amendment forbids. So it wasn’t judicial activism for the courts to rule such laws unconstutional.

But regardless of the morality of interracial marriage, same-sex marriage, or any other concern, judicial activism is always improper.

Anonymous

September 2nd, 2007

Wow, David, you type in a first name only that is shared by millions of other people and that somehow doesn’t make you anonymous? Brilliant!

You’re just question begging. Why don’t you give us the exact words in the 14th amendment that forbids distinctions between same race sexual relations and different race sexual relations; but doesn’t forbid distinctions between same gender sexual relations and different gender sexual relations.

You should read the 14th amendment to the constitution it says that people are not to be deprived of their equal rights. You want the 14th amendment to mean exactly what it clearly doesn’t mean: heterosexuals are not to be deprived of their equal rights. You want to substitute your personal prejudice for their clear wording of the constitution. You are a judicial activist.

David

September 3rd, 2007

Anonymous,

Please grow up. Until you do all your comments will just prove you don’t know what you are talking about.

The 14th amendment states that no state can “deny to any person within its jurisdiction the equal protection of the laws.” This amendment was written and ratified to protect the newly freed slaves. Reading it according to its original meaning (the original meaning of a law is its meaning) this prohibits a state from making arbitrary distinctions between individuals. Race-based distinctions are such arbitrary distinctions; the anti-interracial marriage laws were therefore unconstitutional.

The 14th amendment, however, says nothing about distinguishing between different actions. In fact, such a reading would undo all state authority whatsoever.

I have posted comments to Townhall.com condemning the anti-gay commentary of people like Matt Barber and Kevin McCullough. And for my trouble I’ve been told I must be a homosexual who wants special rights for homosexuals! (See my comments to the column at http://www.townhall.com/columnists/MattBarber/2007/05/03/fake_anti-“gay”_“hate_crimes”_keep_piling_up My original post attacking Barber mysteriously disappeared.)

Now I post on Box Turtle Bulletin about jurisprudence and I’m accused by you of being biased against gay people! And of supporting anti-gay judicial activism to boot!

That’s the trouble with ideologues: they all have tunnel vision. Anyone who disagrees with them in the slightest is evil.

David

September 3rd, 2007

The URL that didn’t come through on the above post is:

http://www.townhall.com/columnists/MattBarber/2007/05/03/fake_anti-“gay”_“hate_crimes”_keep_piling_up

David

September 3rd, 2007

Well it still didn’t show up correctly!

To see the page just go to http://www.townhoall.com and then navigate to the Matt Barber column “Fake Anti-“Gay” “Hate Crimes” Keep Piling Up.”

Ben in Oakland

September 3rd, 2007

Words mean what I say they mean. nothing more and nothing less….humpty dumpty.

It all depends, David, if you define my being gay as an action–AND YOU DO. And whether you define equality before the law as meaning that religious prejudice should notc be a basis for law–AND YOU DONT. I certainly don’t define my life, nor would anybody who doesn’t want to reduce my life to what I stick where. I leave that up to you good christians to do that.

And yes, i do realize that you wish to define marriage as the action. but that is not really what you actually mean. You mean that you have a religious prejudice, and you want it enforced by law.

Religion is also an action, but we protect that under the banner of equality before the law. I’m certain you owuld have no objection to that. but it really isn’t about religion, as I wil continue to state. It’s about how much money, power, and prejusdice is wrapped up in the conservative religious and opinion about gay peiople and our place in society.

Here’s how i know. As a Jew, I reject the Christian story, and as a thinking human being, I reject so called Biblical morality, which any thinking person who has read the thing and thought about it can see is barely biblical certainly not moral. (Those babies whom god murdered in the flood were not sinners needing to be punished. They couldn’t commit a sin even if they wanted to. WHO really sinned here?)This bothers the religious beliefs of no one but the most rabid fundamentalist, nor would any but the most clueless dare say so in public for fear of rightly being called a religious bigot. But let me say that I’m gay and reject just this tiniest part of conservative Christian belief, and suddenly, religious beliefs are offended, any pretenses to logic, reason science, or even theology (irony of ironies) are thrown out, letters to editor are written, right wing ministers make a lot of money, and right-wing politicans get elected and make a lot of money as well.

If you have the right to marry the person you want, then so should I, and i should not be subject to your religious prejudices, codified in law.

This comment got caught in the spam filter. It was originally posted Sept 2, at 22:55, and was retrieved Sept 3 at 8:15 — Jim B

Anonymous

September 3rd, 2007

Oh, Ok. I’ll grow up Mr brave non-anonymous who goes by the name of David. We all know exactly who you are because typing in a first name is, after all, as good as giving a full name and address.

Pleae read the 14th amendment before you spout off about what you think it means. Also read the debates in congress over the adoption of the 14th. Some supporters of the amendment said it would not prohibit bans against interracial marriage. No mention was made about prohibitting same-sex marriage. If anything, by that fact alone, a stronger case could be made for the constitutionality of bans against interracial marriage than the constitutionality against same-sex marriage.

The 14th amendent does indeed prohibit arbitrary distinctions between individuals. And bias against homosexual relations is just as much an arbitrary distinction as bias against interracial relations. They’re both based on the personal prejudice and animosity of a majority against a minority.

You’re not making a whole lot of sense. According to you, sex between people of the same race and sex between people of a different race is the same action. But sex between people of the same gender and sex between people of a different gender is not the same action. You offer no supporting evidence that one is different and one is the same. All you do is proclaim.

If you want to show us some proof of your alleged non-antigay bias, let us hear that you support the supreme court’s ruling in Romer or the 2003 sodomy case. Minus that, you’re as much as a homophobic bigot as the rest of them. You get no pass just for being against the mass exection of homosexuals.

Jim Burroway

September 3rd, 2007

Anonymous: Oh, Ok. I’ll grow up Mr brave non-anonymous who goes by the name of David. We all know exactly who you are because typing in a first name is, after all, as good as giving a full name and address.

I have no idea what this is supposed to mean. David has identified himself to the extent that he wants to. That is his right. You have chosen to remain anonymous. That is your right. I’d suggest you keep the personal stuff out of the arguments. It’s making you look rather ridiculous.

While I don’t agree with David’s opinions, he’s keeping it civil. I suggest you do the same. Take a deep breath and argue against his arguments, not the man. That last paragraph of yours stepped way over the line.

Anonymous

September 3rd, 2007

Jim,

You should have been following this from the beginning and you would know that David started the “personal stuff” when he wrote that I was almost not worth replying to because the name I use to post is Anonymous. Using the name Anonymous isn’t anymore anonymous than using the name David. Millions of people have that name and we don’t even know if it is his real first name. If you have a right to be anonymous without being criticized than you should be attacking “David”, who made an issue out of this, not me.

You ignore the second personal comment that he made against me in his second post, which he begain by telling me to “grow up.” That’s ok by your lights? That’s arguing the arguments not the man?

I stand by my last comment that you call out of bounds. It’s hyperbole for sure, but not out of bounds. There are plenty of people who style themselves as not being antigay, but think homosexuality should be illegal; that homosexuals should not be allowed to serve in the military; that homosexuals should not be able to marry or have civil unions; that homosexuals should not be protected from discrimination in employment and housing; and on and on. Usually the right that is left for homosexuals from these particular non-antigay types is the right to not be murdered.

Read all my posts to “David.” The closest I came to calling him a homophobe or a bigot is when I wrote that he would substitute his personal prejudice for the clear wording of the constitution’s “all people.” What other way can you describe somebody who reads the constitution to mean all heterosexual people are created equal?

Jim Burroway

September 3rd, 2007

Anonymous, David:

This much is true: David started the whole anonymous thing. Let’s all acknowledge that everyone here is free to identify oneself to the extent they feel comfortable and move on. The degree of identification has no bearing on the arguments presented. That also goes for the “grow up” thing.

As for the rest, Anonymous said this to David:

If you want to show us some proof of your alleged non-antigay bias, let us hear that you support the supreme court’s ruling in Romer or the 2003 sodomy case. Minus that, you’re as much as a homophobic bigot as the rest of them. You get no pass just for being against the mass exection of homosexuals.

I don’t know how you or anyone gets to set up a litmus test of your choosing. And that last sentence is particularly eggregious. If David isn’t offended by it, at least I am. There are plenty of people who have advocated executions. David’s comment on Townhall went far beyond merely “being against mass exection [sic]”. He deserves way more credit than that.

Your lastest post contains a number of arguments that David did not make. I have no idea what his opinions are on them, and cannot say whether I would agree with them or not. But I do know that you are arguing against someone other than David by bringing all of that up. And since that someone is not here, I don’t believe it is okay for you to use David as a substitute.

Anonymous and David, please read the Comments Policy and let’s all return this thread to its stated topic.

Anonymous

September 3rd, 2007

I don’t know how you or anyone gets to set up a litmus test of your choosing. And that last sentence is particularly eggregious. If David isn’t offended by it, at least I am. There are plenty of people who have advocated executions. David’s comment on Townhall went far beyond merely “being against mass exection [sic]”. He deserves way more credit than that.

I get to set up a litmus test of my choosing only if my litmus test is the most reasonable. If you think my “litmus test” to be wrong, provide some substantive arguments beyond that I have a litmus test, how dare I. After all, you have a litmus test yourself? Your own words suggest that executing homosexuals would be beyond the pale. A litmus test of your own choosing?

I did give him all the credit he deserves. If I was in such hurry to be unaffair and call David a bigot or a homophobe, I wouldn’t be holding out to hear what his opinion of Romer and Garner were. In other words, I don’t consider him a homophobe or a bigot just for being against same-sex marriage. I’m unkind, I asked David for more information.

Your lastest post contains a number of arguments that David did not make. I have no idea what his opinions are on them, and cannot say whether I would agree with them or not. But I do know that you are arguing against someone other than David by bringing all of that up. And since that someone is not here, I don’t believe it is okay for you to use David as a substitute.

Where did I write that David did make those arguments? David brought in his irrelevant postings with third partys that are not part of this thread to prove his pro-gay opinions. Since he wants to prove his alleged pro-gay bonfides by distinguishing his views from commenters at worldnetdaily, I asked what his opinion was of the Romer case or the 2003 sodomy case. Opinions he still hasn’t given. When he gives his supportive opinion of the cases, then I’ll say he’s not an antigay bigot. I like to get as much information as possible before I make my decisions about a person.

Jim Burroway

September 3rd, 2007

“I get to set up a litmus test of my choosing only if my litmus test is the most reasonable.”

No, not on this blog you don’t. And I didn’t set one up either.

And you are suggesting the possibility that David may fall into this category:

There are plenty of people who style themselves as not being antigay, but think homosexuality should be illegal; that homosexuals should not be allowed to serve in the military; that homosexuals should not be able to marry or have civil unions; that homosexuals should not be protected from discrimination in employment and housing; and on and on. Usually the right that is left for homosexuals from these particular non-antigay types is the right to not be murdered.

You suggest this applies to David (why else are you bringing these in?), even though David has given you no reason to believe this. Unless David articulates these opinions, I have no idea how any of them are relevant.

When he gives his supportive opinion of the cases, then I’ll say he’s not an antigay bigot. I like to get as much information as possible before I make my decisions about a person.

Well that’s the whole problem. You’re making decisions about a person, not that person’s argument. And for that, I’m placing you on moderation for the next few days.

Jason

September 3rd, 2007

It’s rather simple David. 2 people are being told that their relationship is legally supported with benefits and responsiblities. A second 2 people are being told, arbitrarily, that their relationship will not be legally recognized, and that those same benefits and responsibilities given to one couple, will not be given to another couple.

They are both partnerships.

If we are all truly equal in the eyes of the law, than gender matters as much as race and religion.

“Judicial activism” is an accusation without merit. It’s sad that people think it’s okay to vote on basic civil rights.

Ben in oakland

September 3rd, 2007

Regardless of its cultural connotations, marriage is legally defined as a contract with mutual obligations that is regulated and enforced by the state. Certain people– children, animals, and i suppose the mentally deficient– cannot enter into this contract because they are legally incapable of entering into any contract. There are rights, responsibilities, and benefits that accrue to people who marry.

In most states, there are no requirements other than not being closely related and being a man/woman pair. Any man and woman can enter into this contract. There are no legal barriers: you don’t have to promise to stay married, you don’t have to have kids or even want kids, you don’t have to be nice to each other or love each other or anything, you don’t have to take a course to establish your fitness to be married–nothing. In fact, you can marry as many times as you wash, provided only that you terminate your prrevious contract.

In fact, any man and woman who met five minutes ago and have $50 for a marriage licnese can get married, and NO ONE WILL QUESTION IT, despite the so-called sacred nature of marriage, despite it being the cornerstone of our culture, blah blah blah.

Yet two men or two women who have spent decades building a life with each other, who have taken care of each other and their relationship for “better or worse, in sickness and in health”, who are in fact, gender apart, far more married than half the heterosexual couples in the country, are legal strangers to each other and barred from entering into this contract.

In other words, equality before the law goes out the window when gay people knock at the door. Does this sound like discrimination in play? It does to me. As I have said repeatedly, this whole question is not about marriage, it is about prejudice, power, and money– and how much gay people bother some straight people. Don’t ask don’t tell is not about military preparedness, sodomy laws are not about enforcing god’s will or views on morality, anti-gay adoption laws are not about what’s best for the children.

It’s all about hatred and prejudice, whether given a veneer of respectability by organized religion, or admitted just for what it is. If gay people are allowed to marry, that is the end of that prejudice, becuase then we will no longer be outsiders, but normal.

Unfortauntely, there’s too much power, too much money, and way too much hate at stake.

Timothy Kincaid

September 4th, 2007

David is correct that the question that must be answered for the 14th Amendment to apply is whether homosexuality is simply an act or whether homosexuals are a distinct class of persons.

If homosexuality is purely a behavior then there is no case for constitutional protection of marriage between persons of the same sex (or not under the 14th amendment). If however, gay persons are a class of people, then any law designed to exclude them on that basis would be subject to scrutiny and unless the state could show good reason, the law would be overturned.

However, that question has already been answered. Gay people are already considered a class by SCOTUS. And that is the fault of the anti-gays. In Romer, Colorado set out to identify gay persons as a class of people and then to deny them access to civil redress. The SCOTUS said, “nope you can’t do that”.

Then in Lawrence, O’Connor’s concurrance followed up on this by stating that it was the intent of Texas to deny gay persons, as a class, equal access.

Meanwhile, the anti-gays continue in their efforts to identify gay persons as a class and discriminate against them. Every marriage amendment – or DOMA – have been argued not about the merits of defining marriage, but by whom it excluded. Every argument has included language about how evil gay persons are and made it clear that it was a class of people that marriage was being protected against.

And then there’s DADT. On the face of it, it claims that it’s about behavior. However, simply saying “I’m gay” is included in the definition of behavior, i.e. identifying with a class of people – so defined by the military – is cause for discharge.

And of course Oklahoma and Florida are helping the cause as well. By initiating adoption laws based SOLELY on the orientation of the person (regardless of their behavior) helps further illustrate that anti-gays see gay people as a class.

And there’s the religious schools and the churches, etc. etc. all of whom treat people according to their identity – i.e. as a class.

Ultimately I think it is very clear that the SCOTUS will see gay people as a class of people in the same way that they see black people as a class of people (and I think that most justices probably do already). And ultimately the restrictions placed on gay people by governmental institutions will be deemed unconstitutional.

And those who argue that orientation doesn’t exist and that it’s only behavior will seem more an more as either anachonistic or bigoted.

David

September 4th, 2007

Jim,

I regret making my crack about “Anonymous” not giving a name. When I made it I didn’t think it would be such a big deal. I recongnized it was a mistake after “Anonymous” first replied to it, so I dropped the matter when replying to him. Unfortunately he couldn’t let it go.

I must disagree with you about the “grow up thing.” When a fellow commenter accuses me of bigotry for no reason, and turns a post of mine against judicial activism into evidence of my support for judicial activism, I think I have a right to tell him to act in a more adult manner.

I was as offended by Anonymous’ post as you were. I will never reply to anything he writes again.

David

September 4th, 2007

Timothy,

I must disagree with your assertion that “the question that must be answered for the 14th Amendment to apply is whether homosexuality is simply an act or whether homosexuals are a distinct class of persons.” Homosexuality per se is not the issue.

The point I’ve made is that the 14th amendment does not forbid a state from making a distinction between a legal marriage as traditionally understood and the relationship that exists with a same-sex couple. Recognizing that homosexuals cannot be discriminated against as a class is not relevant to this point.

Many of the comments here have assumed I’ve been discussing civil rights. That’s not what I’ve been doing. I have been discussing jurisprudence.

I commented in the first place because Daniel Gonzales’ understanding of the courts role in government is faulty. The courts exist to apply the laws. They can only protect minorities to the extent that the laws do so.

While it is true that James Dobson has a specific agenda, Daniel Gonzales has one too. Which agenda is more morally correct is properly irrelevant to a judge who is trying to bring out the meaning of a constitutional provision.

Judicial activism is an attack on the people’s right to govern themselves; it has done great harm to American government and society. The Dred Scott ruling was an activist decision, and it helped lead to the Civil War. More recently, the activist ruling in Roe v. Wade has torn at American society and distorted our politics for more than 3 decades.

An activist court ruling should always be rejected, whether we like the results of the ruling or not.

Jason

September 4th, 2007

“I commented in the first place because Daniel Gonzales’ understanding of the courts role in government is faulty. The courts exist to apply the laws. They can only protect minorities to the extent that the laws do so.”

Actually, it is your understanding of the court’s role in government which is faulty. Criminal courts do in fact decide guilt or innocence and applications of law. But that is not ALL the Judicial Branch does.

The Judicial Branch also acts as a check against the legislative and executive branches — both of which are beholden to voters. The judicial branch, however, is beholden to the law and to the constitution.

A district court judge, such as Judge Holden, is certainly allowed to strike down a law that violates the state constitution. To have it any other way is to render the Constitution and the Bill of Rights as mere suggestions and not the founding documents they are. Without Judicial review, any majority opinion can become law. That’s not a democratic republic, that’s mob rule. We are guaranteed certain freedoms, regardless of majority opinions.

The people in America do have a right to govern themselves — so long as they do not pass laws that violate the Constitution. Judicial Review, a real and established precedent in this country, seems to be something those who cry “Judicial Activism” not only fail to understand, they seem to ignore it entirely!

Judge Holden rendered his decision based on due process and equal protection grounds. The plantiffs showed that their right to due process and equal protection under the law had been violated. Without knowing Iowa Constitutional law and reading his decision, your accusations are baseless.

David

September 4th, 2007

I’m sorry, Jason, but you’re simply refusing to deal with my concerns.

My understanding of the role of the judiciary is not faulty, and you have given no evidence to the contrary. Instead of dealing with what I’ve written about a the proper neutrality of a judge, or the harm done by activist rulings like Dred Scott and Roe, you act as if judicial activism is a figment of my imagination. It is not. Judges are quite capable of distorting the law to get the sort of result they want for a case; this has happened many times in American history, including the two instances I mention above.

Nowhere in anything I have posted here have I said that a court should not apply constitutional provisions that conflict with popular legislative actions. But the checks and balances involved in maintaining constitutional government is a two-way street. The executive and legislative branches are also beholden to the law. They have an obligation to act against the unconstitutional actions of the judiciary. Your argument assumes that everything the courts do is constitutional.

I have made no accusations against the Iowa judge so far. All I did was ask “Just what part of either the federal constitution or the constitution of Iowa forbids the limiting of marriage to heterosexual couples?” I have dealt with the arguments that some have made saying the Federal Constitution contains the proscription. As for the Iowa Constitution, nobody has offered any part of it as forbiding the limiting of marriage to male-female couples.

I admit I was very skeptical from the first that any part of Iowa’s constitution would actually justify Judge Holden’s ruling. But that doesn’t mean I was beyond being convinced it did. When no one has even tried to offer the Iowa Constitution as compelling Holden’s opinion, however, I hope you’ll forgive me for thinking my initial skepticism was well justified.

Still, it is true that this doesn’t prove that Holden doesn’t have the Iowa Constitution on his side. But your description of his ruling doesn’t inspire confidence of it being correct. For an equal protection claim to have merit, the consitution of Iowa would have to have a provision that controls how the legislature seperates one action from another. It may have such a provision, but I rather doubt it. As for the due process claim, it is absurd on its face. Due process is about having the proper chance to defend yourself in a court of law. To apply it to this matter is nonsensical.

With the exception of Timothy Kincaid’s comment, what I’ve seen here is people saying ‘Hooray for the pro-gay judge!’ As I’ve said before, that is not proper. What matters is whether or not a court ruling is a fair and neurtral application of the law’s original meaning, not whether or not you like the result.

Jason

September 5th, 2007

“I’m sorry, Jason, but you’re simply refusing to deal with my concerns.

My understanding of the role of the judiciary is not faulty, and you have given no evidence to the contrary.”

You completely ignored judicial review until I brought it up, I’d say that’s evidence right there. You said yourself:
“The courts exist to apply the laws. They can only protect minorities to the extent that the laws do so.”
Ignoring the constitutional guarantee of equal protection. Unless by “law” you meant constitution, in which case I am wrong.

“Instead of dealing with what I’ve written about a the proper neutrality of a judge, or the harm done by activist rulings like Dred Scott and Roe, you act as if judicial activism is a figment of my imagination.”

I don’t see how you’ve proven the judge was not neutral. I also don’t see how Scott or Roe are relevant to this case. If you’d explain things rather than simply name drop, you might get more traction.
Judicial Activism gets tossed around like a football whenever gays get equality in court. Yet no one ever is able to justify this claim. It’s a buzzword as far as i’m concerned until I see someone actually substantiate it’s use.

“It is not. Judges are quite capable of distorting the law to get the sort of result they want for a case; this has happened many times in American history, including the two instances I mention above.”

Merely name dropping two cases does not in and of itself prove anything. You assume both cases are examples of judicial activism, but where do you have proof that both were?

“Nowhere in anything I have posted here have I said that a court should not apply constitutional provisions that conflict with popular legislative actions.”

You completely ignored judicial review until I brought it up.

“But the checks and balances involved in maintaining constitutional government is a two-way street. The executive and legislative branches are also beholden to the law. They have an obligation to act against the unconstitutional actions of the judiciary. Your argument assumes that everything the courts do is constitutional.”

And your argument assumes that nothing the courts do is constitutional. Or rather, you know the constitution better than a judge. And you provide no evidence either. The onus is not on me to prove the judge acted correctly, the onus is on you to prove he didn’t. And you haven’t.

“I have made no accusations against the Iowa judge so far. All I did was ask “Just what part of either the federal constitution or the constitution of Iowa forbids the limiting of marriage to heterosexual couples?” I have dealt with the arguments that some have made saying the Federal Constitution contains the proscription. As for the Iowa Constitution, nobody has offered any part of it as forbiding the limiting of marriage to male-female couples.”

The judge did, due process and equal protection.
And what part of the constitution says they can make that restriction?
And might I point out that you seem to be doing very little reading for someone who claims to know so much on this subject, otherwise you’d know that. A google search turned up a brief explanation of his ruling. I’m surprised you didn’t find that yourself and deal with it already.

“I admit I was very skeptical from the first that any part of Iowa’s constitution would actually justify Judge Holden’s ruling. But that doesn’t mean I was beyond being convinced it did.”

I highly doubt you’re open to any convincing, seeing as how you’re not doing any research on the judge or the decision. You seem to be content to argue here rather than looking things up.

“When no one has even tried to offer the Iowa Constitution as compelling Holden’s opinion,”

As I said before, the onus is on you to substantiate your disagreement, not on us to show you the constitution. You’re the one that is questioning decisions, so it’s up to you to provide your own constitutional support.

“however, I hope you’ll forgive me for thinking my initial skepticism was well justified.
Still, it is true that this doesn’t prove that Holden doesn’t have the Iowa Constitution on his side.”

Thank you.

“But your description of his ruling doesn’t inspire confidence of it being correct.”

If I had the whole transcript of the ruling I would’ve read it myself. And why are you taking my word for it, again, another point where you could do some research, but haven’t, for some odd reason.

“For an equal protection claim to have merit, the consitution of Iowa would have to have a provision that controls how the legislature seperates one action from another.”

Please clarify, this is vague and incoherent. What actions? What do you mean?
To my mind, equal protection is just that: equal. Married couples have additional protections. Gays, not being allowed to marry, are not given these protections. Yet they do all the things a married couple does, raise children, fight about the mortgage, live together for decades on end, make decisions together, sleep together, own and maintain a home together. I fail to see what’s lacking in that description that justifies unequal protection.

“It may have such a provision, but I rather doubt it.”

Yet you haven’t looked it up. Why is that? Why are so intent on fighting against something with literally no ammo?

“As for the due process claim, it is absurd on its face. Due process is about having the proper chance to defend yourself in a court of law. To apply it to this matter is nonsensical.”

Well I know Wikipedia is not the most reliable of sources but it does show this ~~Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty.~~ Because really, how often have legislators spearheaded civil rights and equality? It took a court decision to make interracial marriage legal. It took a court decision to let a woman decide what she does with her own body.

There is also this part of the federal constitution in regards to due process :
~~nor be deprived of life, liberty, or property, without due process of law~~
I would say that gay couple are being deprived liberty without due process.
There is also the section before which states ~~nor shall be compelled in any criminal case to be a witness against himself~~ Married couples are allowed to not testify against one another. Gay couples, not being allowed marriage, are not allowed due process in this regard either. Even with civil unions, a will, and an power of attorney. But that’s just off the top of my head, and it doesn’t deal with the Iowa Constitution, which may have different wording. The judge probably had a better or more thorough reasoning than mine.

“With the exception of Timothy Kincaid’s comment, what I’ve seen here is people saying ‘Hooray for the pro-gay judge!’”

And all I see from you is, “Boo for the decision I disagree with, despite not having read it or the state constitution it is in reference to.”

“As I’ve said before, that is not proper. What matters is whether or not a court ruling is a fair and neurtral application of the law’s original meaning, not whether or not you like the result.”

And you have yet to prove the law in question was fair, or that the judge was not being neutral.

David

September 5th, 2007

Jason,

Please. I have not been ignoring judicial review. Judicial review is what we have been discussing all along!

I am not the sort of fellow who tolerates foolishness gladly. Please do not try my patience by posting such rubbish.

I know full well you consider the term “judicial activism” to be a buzzword that hides anti-gay prejudice. That is why you cannot keep your emotions vis-a-vis gay marriage out of the matter.

It is not up to me to prove that Judge Hanson’s ruling was unsound. I made no claims about it. I was simply asking those who were cheering the decision purely for its being gay-friendly how they knew it to be legally proper. No one here has been able to come up with a constitutionally sound answer.

If I am to examine and then critique the ruling in question on this website, I would have to be allowed the privilige of creating my own original post such as that of Daniel Gonzales’ that started this discussion. That is not up to me.

The fairness of a law — in the sense tht you mean “fairness” — is not a legal matter. It is a moral question. Courts are legal institutions; they are limited in their authority to dealing with legal questions. Moral questions like the fairness of allowing heterosexual marriage while having no legal protections whatsoever for homosexual couples is a moral concern that belongs exclusively to the legislature. This is why in dealing with jurisprudence — the topic at hand — I didn’t address the fairness of current Iowa law.

I have explained in my earlier comments what the meaning of the equal protection clause of the 14th amendment is. Please read them. Your private opinions as to what equal protection should mean are entirely irrelevent.

(My earlier comments should also clarify the sentence you found vague and incoherent.)

As for due process, I am well aware of how it has been misused by the courts. And using it as you describe from that Wikipedia article is a misuse. The due process clause no more defines what actions are supposed to be legal than it defines what sorts of property are supposed to be legally allowed.

As for your accusation against me of name dropping, the two cases I mentioned are well known to be examples of egregious judicial activism. It is not my fault that you are too ignorant of the history of the American judiciary to realize this.

I am willing to discuss just why both these cases were unconstitutional activism for all the readers of Box Turtle Bulletin. But, again, that requires my being given the privilige to post my own report, and that’s not up to me.

Timothy Kincaid

September 6th, 2007

The point I’ve made is that the 14th amendment does not forbid a state from making a distinction between a legal marriage as traditionally understood and the relationship that exists with a same-sex couple. Recognizing that homosexuals cannot be discriminated against as a class is not relevant to this point.

David, I am not a constitutional scholar, but I think you are much mistaken in your understanding of the Constitution. If it is determined that gay persons are a class of citizens, then any laws which serve only to distinguish this class of persons and to disadvantage them comes under greater scrutiny.

Marriage that is limited by definition only to heterosexuals would, under that scenario, come under greater scrutiny. The state would have to make a compelling argument that it has a valid interest in limiting the definition of marriage – but simply excluding gay couples out of animus would not be an adequate reason.

If you review the decisions of the judges around the country that have found in favor of marriage for same sex couples, I think you will find that all of them indicated that, in their judgment, the state did not provide compelling evidence of a governmental interest.

David

September 10th, 2007

Timothy,

I am not a constitutional scholar either, but I have given a good deal of thought about the judiciary for a good many years, and that has including reading constitutional lawyers thoughts on these matters.

Your comment brings up a number of interesting points. But before I deal with the specifics, I want to deal with the origin of the disagreement between us.

You and I are appoaching the 14th amendment with radically different views on jurisprudence. Your jurisprudence belongs more to the ‘expansive’ style of so-called liberal judges, while mine is of the ‘strict-constructionist’ style of so-called conservative judges. There has been a battle between these two schools of thought in American legal circles for more than 100 years.

I am not so naive as to think we can end this argument here in this forum! All I could do here is explain why I reject the expansive, activist style of jurisprudence. As I told Jason in a comment above, that would better be done in a special report of its own for all Box Turtle Bulletin readers. But whether or not there is the interest for such a thing is beyond my control.

Now to your specific 14th amendment concerns. The amendment is not about protecting classes of people. Its equal protection clause is about forbiding the states to deny a person the laws’ protection for purely arbitrary reasons. So a state cannot say its a crime to rape a white woman but its OK to rape a black woman, for instance. Similarly, a state cannot say its a crime to kill a straight man but OK to kill a gay man.

Nothing in the 14th amendment touches upon the definition of marriage. Since the amendment — and the rest of the Federal Constitution — is silent on the proper definition and purpose of marriage, no judge can use it to rule on what marriage should be.

[Note: This comment was posted on Sept 7, 2007 but got caught in our spam filter. I have rescued this comment and changed the timestamp to Sept 10, 10:00 to raise its visibility. My apologies to David. — Jim B.]

Timothy Kincaid

September 10th, 2007

You and I are appoaching the 14th amendment with radically different views on jurisprudence.

I do agree that we differ but I think it is in other ways.

I am relying on legal precedent and logic and predicting a likely result of future litigation. You are redefining the roll of the judiciary and stating a political belief. Which is fine, of course.

You look at the 14th Amendment and see discussions about rape but nothing about marriage. I find that odd, but that’s up to you.

I think we’ve each said what we think on this matter. And it is highly unlikely that we will be dedicating a thread here to your “strict constructionist” views about what does (rape) and does not (marriage) appear in the words and original intent of the authors.

Personally, I think that guessing about the intent of the authors is little more credible than those who argue that “the founding fathers were good Christians”. Generally, what it means is to ignore the words of the constitution along with the intent and the recorded debates and instead adopt the attitude that the authors surely agreed with me so let’s just make me the decider of all things. Or perhaps not.

But for now I think we’ll just have to agree to disagree about the SCOTUS’ interpretation of the 14th Amendment.

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