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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:32
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quote:
marriage is a mental, spiritual, and emotional union of a man and a woman and is thus on an entirely different level than the purely physical act which is sex. |
Maybe, but as far as the government is concerned - or at least should be - marriage is nothing more than a civil contract.
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mindseye
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A Yankee living in Shanghai
Apr 1999
time: 13:32
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quote:
Originally posted by DanS
The question of both slavery and segregation are instructive, but not in the way stated by many above. Both questions were resolved primarily through a political process (or a political process at the end of a bayonnet) and in both cases the wishes of the majority won the day.
There's really no shortcut for gay rights, IMO. You have to convince a majority of Americans that the position is correct. Going primarily through the courts will not lend the needed legitimacy. |
I think the case of inter-racial marriage is a much better comparison. After all, it also involved a re-thinking of what kind of marriages would be legally recognized. Let's not forget that, at that time (Loving v. Virginia, 1967), the majority was overwhelmingly against inter-racial marriage.
I posted this in another thread:
quote:
Originally posted by mindseye
(T)he percentage of the public supporting inter-racial marriage at that time was far smaller than that currently in support of gay marriage. In September 1958, in the first survey of its kind, a Gallup Poll asked white people how they felt about inter-racial marriage:
* Supporting interracial marriage:
-- Southern whites: 1%
-- Non-southern whites: 5%
(Source: The Gallup Poll: Public Opinion 1935-1971, Volume 2, New York, Random House) .
In fact, not until 1991 did a Gallup poll find more people approving of inter-racial marriage than disapproving.
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Does anyone think that we should have post-poned inter-racial marriage until the majority approved of it?
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:32
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Why should we base laws on what the majority wants, rather than on concepts of freedom? Who cares what the majority thinks?
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:32
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quote:
Whose definition of freedom? |
The correct definition, of course. Freedom - you know, liberty, lack of constraints, lack of coercion, etc.
As for democracy, do you think that the majority should be able to vote in a system of slavery? If you don't, you only support democracy with qualifications - not true democracy. And if you support democracy, but only with qualifications, then fundamentally, you agree with me when I say "Who cares what the majority says."
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Whaleboy
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Please make all cheques payable to Whaleboy
Jan 2003
time: 05:32
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quote:
In a true democracy, what other means are there for determining the legality of something only a minority desire?
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You are succumbing to the democracy fallacy. Consider this example. You are in an aeroplane. An engine dies. The pilot takes a poll of the lay passengers asking whether he should ditch or try to go on. Majority opinion very often leads to illogical decisions being taken, and leading to its conclusion, a perfect democracy, it would be nothing but state-sponsored vigilantism.
Nontheless, I suspect your arguments are based on something more than an irrational love for the consensus of idiocy, perhaps you would care to try to convince me of your position. I wholeheartedly support gay marriage, enlighten me Park Avenue.
Incidentally, the libertarian argument is bread and butter at this stage, meaning it is pragmatically applicable. Someone wants something that isn't harming others, but their lack of is detrimental to them. Seems fairly cut and dry to me. Saying "Oh well, total liberty is nice but come on, real world", simply doesn't cut it, it's not like we're legalising harrasment here.
DF:  . IMO thats how the state recognises marriage now, and in that case, it is irrational to discriminate, because there are no grounds by statute to do so. In terms of religion, then it is down to ones individual religious beliefs, and if it is legalised, then one is free to express those beliefs.
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Ned
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of Aptos, CA
Oct 1999
time: 21:32
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quote:
Originally posted by orange
Why do you have such a problem with substantive due process? What you fail to understand is that, at least in the context of this thread, marriage affects no one but those entering the union and possibly their offspring - likewise, gay marriage does not effect anyone but those entering the union - so why should it matter what the 'majority' thinks about the issue. If the majority of Americans think that Christianity is the one true religion, does that mean that we should all convert?
Absurd... |
Absurd?
Read Justice Harlan on the underlying rationale for substantive due process:
"Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e. g., Selective Draft Law Cases, 245 U.S. 366 ; Butler v. Perry, 240 U.S. 328 ; Korematsu v. United States, 323 U.S. 214 . Thus the guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Hurtado v. California, 110 U.S. 516 , at 532.
However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights "which are . . . fundamental; which belong . . . to the citizens of all free governments," Corfield v. Coryell, 4 Wash. C. C. 371, 380, for "the purposes [of securing] which men enter into society," Calder v. Bull, 3 Dall. 386, 388. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. Slaughter-House Cases, 16 Wall. 36; Walker v. Sauvinet, 92 U.S. 90 ; Hurtado v. California, 110 U.S. 516 ; Presser v. Illinois, 116 U.S. 252 ; In re Kemmler, 136 U.S. 436 ; [367 U.S. 497, 542] Twining v. New Jersey, 211 U.S. 78 ; Palko v. Connecticut, 302 U.S. 319 . Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U.S. 1 ; Downes v. Bidwell, 182 U.S. 244 ; Hawaii v. Mankichi, 190 U.S. 197 ; Balzac v. Porto Rico, 258 U.S. 298 ; Farrington v. Tokushige, 273 U.S. 284 ; Bolling v. Sharpe, 347 U.S. 497 .
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint."
POE v. ULLMAN, 367 U.S. 497 (1961)(Harlan, J., dissenting)(emphasis supplied), http://caselaw.lp.findlaw.com/scrip...&invol=497#TTT6
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mindseye
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A Yankee living in Shanghai
Apr 1999
time: 13:32
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quote:
Originally posted by Imran Siddiqui
Going through the courts on such a social issue WON'T give the needed legitimacy. Look at abortion. Same thing would happen. |
That argument has exactly the same validity as "It's going to be another Vietnam!" 
Going through the courts may actually speed up acceptance for all we know. Gallup found that a majority did not support inter-racial marriage until 1991. Without Loving v. Virginia, would majority support have happened earlier or later? You can make a good argument that the number of happy, successful inter-racial marriages (and their offspring) speeded up acceptance.
We can already see this dynamic in terms of general acceptance of gay people. When no one knew them, they were considered objects of scorn. But when gay people started coming out in huge numbers, suddenly many, many people had gay relatives, co-workers, neighbors, etc. Acceptance of gays subsequently shot up. In fact, if you look at the poll figures, people who know or are related to a gay person by a significant percentage favor gay marriage over those who don't personally know any gays.
Is there any reason to believe that gay marriage would not follow a trajectory similar to that of inter-racial marriage? Our nation survived that adjustment quite well, it seems. There are two inter-racial marriages in my family alone. If my government would just cease discriminating against me, I would like to bring that number up to three. 
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Guynemer
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Funny; I've always thought our most important traditions and customs were freedom and liberty.
Or am I being impossibly naive again?
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:32
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quote:
But he is incorrect in saying that we should wait until the majority of people agree with gay rights to implement it. |
The problem with not waiting until a substantial number (maybe not a majority) accept it is that when the ruling goes down, many are going to be super pissed, and if enough people are against it, they may try a Constitutional Amendment. You have to be VERY careful that you don't give the extremists an issue that they can use to push their worst ideas and win on it.
quote:
Without Loving v. Virginia, would majority support have happened earlier or later? You can make a good argument that the number of happy, successful inter-racial marriages (and their offspring) speeded up acceptance. |
You can... but since it was 1991, you said, it could also be stated that perhaps it may have been accepted earlier... who knows. Remember the Civil Rights Act was passed because of democratic processes. Boycotts, protests, etc. convinced a good enough number of white America in equal rights.
You do remember what happened when the court did forced busing? The riots were incredible. You have probably seen the Boston riots and the picture of the white folks holding a black man and simulating stabing him with the flag.
You want to avoid that sort of reaction. You want to avoid any hatred that can lead to BS like laws or amendments designed to destroy the ruling... unfortunetly I think that a SCOTUS ruling that gay marriage is legal would lead to a constitutional amendment banning it (and I think that is what irks Dan as well)  .
quote:
How does gay marriage fits within the traditions of our society? |
The 'traditions of our society' include liberty and freedom. Under substantive due process there is NO reason why laws against gay marriage are not unconstitutional. Marriage is a fundamental right in the traditions of our society and that means homosexuals should be able to marry each other.
After the correct decided Texas case on sodomy, I think the next step SHOULD be saying laws against gay marriage are unconstitutional. However, I fear what will happen if the court decides that way.
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23-12-2003 11:44
)
What? How is Dan taking the majority decision in this case? He is saying that decisions by courts end the political debate and lead to extremist positions and decades of hate. He is correct.
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