Author Topic: Unpopular decisions are the price of constitutional rights.  (Read 12446 times)

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fatman

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Unpopular decisions are the price of constitutional rights.
« on: November 18, 2008, 07:56:43 AM »
California's same-sex marriage case affects all of us
     
By Kermit Roosevelt Kermit Roosevelt – Fri Nov 14, 3:00

Philadelphia – What now for California? In May, its Supreme Court announced a right to same-sex marriage. Gays and lesbians rushed to take advantage of the opportunity; by early November, 18,000 such marriages had been performed. But on Nov. 5, they stopped. By a 52-47 percent margin, California voters approved Proposition 8, an amendment to the state constitution prohibiting same-sex marriage.

Immediately, gay rights supporters filed lawsuits asking to overturn the ruling. Critics are calling Proposition 8 an illegal constitutional "revision," fundamentally altering the guarantee of equality – not a more limited "amendment."

This suit raises a serious question: When should a majority have the power to take away a constitutional right granted by a court?

It's a question that forces us to think about why we have constitutional rights in the first place, and why they are enforced by judges. But it is not simply a theoretical puzzle. All of us enjoy constitutional rights, and most of us are at some point in a minority. All of us could be affected.

American constitutional practice has generally been to expand rights over time, both by amendment and by judicial decision. Amendments to the federal Constitution, for example, gave women and minorities the right to vote. Judicial decisions have expanded the constitutional guarantee of equality to protect more and more groups. Some of these decisions remain intensely controversial, but none have been overruled by a federal amendment.

Of course, amending the federal Constitution is difficult. It requires approval by "supermajorities": two-thirds in the House and the Senate and three-quarters of state legislatures. Federal rights cannot be taken away by a simple majority vote.

Because of this requirement, judicial decisions enforcing the federal Constitution's equality guarantee have followed a relatively consistent pattern. At one point in time, a particular practice – say, the racial segregation of public schools or the exclusion of women from the practice of law – is so widely accepted that it seems beyond challenge. Judges are not likely to strike the practice down, and if they did, the backlash might well be strong enough to create a constitutional amendment.

Some time later, the practice becomes controversial. It still enjoys majority support – otherwise it would likely be undone through ordinary lawmaking – but it no longer has the allegiance of a supermajority. It is at this time that judges tend to act in order to protect the freedoms of the minority, striking down the practice as unjustified discrimination. The decision may be intensely controversial. It may even be the target of majority disapproval. But because there is no longer a supermajority, the decision is safe.

As attitudes evolve, the practice comes to seem outrageous. Almost no one, nowadays, would argue for racial segregation of schools or a ban on female lawyers. At this point, the judicial decision is no longer controversial.

If a majority could overrule a judicial decision, the process would frequently be stopped by that majority vote. Judicial interventions against discrimination would just not succeed.

Regardless of where you stand on same-sex marriage, what's troubling for US citizens in the California case is the idea that an equality guarantee could not be effectively enforced against the will of a majority. The point of such a guarantee is precisely to protect minorities from discrimination at the hands of a majority.

It would be somewhat surprising, then, if California allowed judicial decisions enforcing the state equality guarantee to be overruled by a simple majority vote. In fact, as the gay-rights supporters' suit indicates, it is not clear that it does. Under the California constitution, "amendments" can be approved by a simple majority vote.

But "revisions," which make substantial changes, require approval by a supermajority – two-thirds of both houses of the legislature – before being submitted to voters. Supporters framed the same-sex marriage ban as an amendment, when really it has the makings of a revision.

It makes sense to require supermajority support to overrule a judicial decision that grants rights to a minority. It shows that the judges were so out of step with society that they were probably wrong. But a simple majority does not show that, and the constitution would not afford meaningful protection if it could be overruled at the will of the majority.

As the opposition to same-sex marriage in California has shrunk, simple majorities should not be able to reverse decisions made in the name of equality.

This is not an argument that the California court was correct. The battle for public opinion goes on. But letting the court's decision stand against the disapproval of a simple majority is not only sensible, it protects the minority rights of future generations.

Unpopular decisions are the price of constitutional rights.

CS Monitor

Xavier_Onassis

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #1 on: November 18, 2008, 10:10:22 AM »
The majority of the voters of 1950's Alabama, Mississippi and many other Southern states would have gladly and enthusiastically voted in favor of segregation and separate but equal as well as against mixed marriage and restrictive covenants on housing.

Democracy advocates majority privilege, but also protects minority rights. I don't see where the anti-gay amendments are valid, since again, allowing gay people to marry does not harm in any way anyone else.

"Time flies like an arrow; fruit flies like a banana."

sirs

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #2 on: November 18, 2008, 10:56:07 AM »
Too bad this isn't a Civil Rights issue, like segregation was
"The worst form of inequality is to try to make unequal things equal." -- Aristotle

BT

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #3 on: November 18, 2008, 12:17:14 PM »
Quote
Too bad this isn't a Civil Rights issue, like segregation was

I'm going to have to disagree here. I think it is a Civil Rights issue.

The problem is marketing.

You have Knute selling the anti 8 and plane selling the pro 8 .

Who are you going to listen to?



 

sirs

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #4 on: November 18, 2008, 12:28:39 PM »
We'll have to agree to disagree on this one Bt.  As soon as you try to make it a Civil Rights issue, the debate is over.  Who does support segregation?  Who does support seperate water fountains?  Civil Rights are issues that have no defense against them, since they are in large part racist, based on no more than a person's skin pigment or gender......aspects a person has no control or choice over.

This is NOT, until someone can produce for me some scientific data, this remains a moral/cultural issue 
"The worst form of inequality is to try to make unequal things equal." -- Aristotle

Xavier_Onassis

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #5 on: November 18, 2008, 12:56:40 PM »
Too bad this isn't a Civil Rights issue, like segregation was

If it isn't a moral issue or a cultural issue, what is it?

Do gay people have or not have the same rights?
Are gay people a part of our culture or aren't they?

Your only defense is a book of an ancient religion, which states that gays should be stoned to death.

"Time flies like an arrow; fruit flies like a banana."

richpo64

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #6 on: November 18, 2008, 01:07:37 PM »
Homosexuals have EXACTLY the same rights I do.

BT

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #7 on: November 18, 2008, 01:25:27 PM »
The Supreme Court has already determined that marriage is a civil right in Loving vs Virginia which allowed for interracial marriage.

What the court did not do is define the term marriage.

What they said was that x man could marry y woman .

In that case the definition of man, woman and marriage was not in dispute.

In the gay marriage issue the definition of marriage is in dispute.

I guess this might fall into the category of what is a protected religion.


hnumpah

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #8 on: November 18, 2008, 01:29:42 PM »
Quote
Homosexuals have EXACTLY the same rights I do.

Wrong.

You can marry, and without a will your wife will inherit your estate if you die before her.

If you are in critical condition in the hospital, your spouse can make decisions for you if you are incapacitated.

In most states, homosexual partners have to make out a will and/or get a power of attorney in order for their chosen partner to inherit their esatate, or make medical decisions for them, or in some cases, even visit them in the hospital if they are in critical condition (when most hospitals limit visits to members of the family only). They can make arrangements to allow these things, at extra cost to themselves and their partners. Consider that years ago, blacks could vote, but in many cases had to pay a poll tax for that right that everyone else took for granted. How is forcing same-gender couples to go through the extra hoops and pay the extra fees for the same rights as married couples any different?
"I love WikiLeaks." - Donald Trump, October 2016

crocat

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #9 on: November 18, 2008, 01:30:52 PM »
This has become a real dichotomy because one would have expected that the liberating tendencies would have carried through to the gay population.

As far back as we can go, we have discriminated (or been) against other human beings.  In Great Britain, the Scots were not considered civilized and referred to as barbarians with no voice.

Blacks were slaves and women no more than chattel for their husbands.  Over time we have relaxed the premise that we (Anglo) are better, smarter and more entitled to our 'freedoms.'

In doing so we have launched a massive discriminatory voice in 1. Black females, and Hispanic females (though not to the degree of Black females).  These feelings seem to be based on religious beliefs.

It would appear that while many have fought for their own rights and beliefs, they are not willing to allow others the same freedoms.

If you believe that we will answer to God at our end of days, why would you want to interfer?

This country was populated by people that wanted religious freedom that was not dictated by the Government and we got it.  Yet when we don't think the people are living in a Godly manner, we demand that the government intercedes.

Strange

sirs

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #10 on: November 18, 2008, 01:32:40 PM »
Too bad this isn't a Civil Rights issue, like segregation was

If it isn't a moral issue or a cultural issue, what is it?

Is someone having reading comprehension issues again?  It IS a moral/cultural issue, NOT a Civil Rights issue

 ::)


Your only defense is a book of an ancient religion, which states that gays should be stoned to death.

And that fact there's scientific proof that can be pointed to in regards to gender & skin pigment.  Ready to demonstrate such on sexual choices?

And, word of advice, drop the stoning to death garbage.  That went out long before seperate water fountains did

You ready to answer Bt's question now?
"The worst form of inequality is to try to make unequal things equal." -- Aristotle

Plane

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #11 on: November 18, 2008, 01:42:51 PM »
This author seems content with the idea that minoritys will consistantly be wiser than the majority.

I see that as half true .

In any population there will be a median and a set smaller than the majority that is above the median, but it is equally true that there will be a subset smaller than the majority less blessed with wisdom than the median.

How can it be determined that the subset takeing action is the more wise minority and not the less?

Because they are Judges?

I don't think that is suffecient .
 
Judges are uniformly better educated than the median , and generally tested for temprement by requirements of seniority, but nothing involved in becomeing a judge ensures that foolishness will never invade his decisions. Judges are also uniformly more obsequious to higher ups and aware of political correctness than the median too.

Even if a judges opinion could be proven objectively right , (which in this case it cannot)makeing a decision that the majority sees no justice in is not wise.

The majority can have its way if it wants it badly enough , screwing the lid onto the pressure cooker tighter doesn't reduce the threat of bursting it just means that the pressure will be greater when the burst happens.

Plane

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #12 on: November 18, 2008, 01:43:58 PM »
....... a book of an ancient religion, which states that gays should be stoned to death.



I am not able to remember that one.

Could you tell me the chapter it is from?

Plane

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #13 on: November 18, 2008, 01:56:20 PM »
Quote
Too bad this isn't a Civil Rights issue, like segregation was

I'm going to have to disagree here. I think it is a Civil Rights issue.

The problem is marketing.

You have Knute selling the anti 8 and plane selling the pro 8 .

Who are you going to listen to?



 

Yes we are disagreeing.
The definition of Marrage was always a social contract foundational to family life , we have seen the institution damaged more during our lifetimes than in all preceding centuries since the idea came into vogue.

The inclusion of new social contracts in the definition dilutes the meaning of the word further , reduceing again the power of the ties that bind.

Eventually we will speak of the marrage of people to their parrots or their parents , do we have no civil right to marry anyone we choose? If what I really want is a marrage to my sister and brother and their horses , and they are all willing why should I have to deal with a restriction on my civil right to do so?

Multiple marrage includeing incest and homosexuality and beastiality is a pretty high hurdle , but if I approach it gradually and acheive each goal singly there is no amount of streaching to the definition I can't achieve.

Why indeed do most of the people of California want "marrage" to mean something anyway.

crocat

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Re: Unpopular decisions are the price of constitutional rights.
« Reply #14 on: November 18, 2008, 03:01:19 PM »
Plane - "Yes we are disagreeing.
The definition of Marrage was always a social contract foundational to family life , we have seen the institution damaged more during our lifetimes than in all preceding centuries since the idea came into vogue."

Traditional vows  -

Beginning the service

Traditionally, the bride and groom enter the church separately - the groom first with the best man, and the bride at the time set for the start of the service, on the arm of her father or another relative or friend (it does not need to be a man). However, the bride may enter alone if she wishes, or the couple may enter together.

The minister will welcome the congregation. Your family and friends have an important role to play as witnesses and supporters of your marriage.

The minister will read an introduction explaining what Christians believe about marriage. He or she will also ask, as the law requires, if anyone knows any reason why the marriage may not lawfully take place.

 

Declarations

You will be asked to promise before God, your friends and your families, that you will love, comfort, honour and protect your partner and be faithful to them as long as you both shall live.

The minister will also ask the congregation to declare that they will support and uphold your marriage.

 

Vows

Turning to each other, the bride and groom take each other’s right hand and make vows:

'to have and to hold
from this day forward;
for better, for worse,
for richer, for poorer,
in sickness and in health,
to love and to cherish,
till death us do part'

 

Rings

The couple then exchange a ring or rings as a 'sign of their marriage' and a reminder of the vows:

'With my body I honour you,
all that I am I give to you,
and all that I have I share with you,
within the love of God,
Father, Son and Holy Spirit.'

 

Proclamation

The minister will then declare that you are now husband and wife. The minister does not 'marry you'; you marry each other. The minister just directs you in this and then tells everyone that you have done it properly.

That said....Change Over Time in Divorce Rates

The number of divorced people in the population more than quadrupled from 4.3 million in 1970 to 18.3 million in 1996, according to a Census Bureau report on MARITAL STATUS AND LIVING ARRANGEMENTS


"14% of white women who married in the 1940s eventually divorced. A single generation later, almost 50 percent of those that married in the late sixties and early seventies have already divorced. ... Between 1970 and 1992, the proportion of babies born outside of marriage leaped from 11% to 30%."
Amara Bachu, Fertility of American Women: June 1994 (Washington D.C.: Bureau of the Census, September 1995), xix, Table K. Cited on page5 ofThe Abolition of Marriage, by Maggie Gallagher

"According to the National Center for Health Statitics (1988: 2-5), the divorce rate rose from 2.5 per 1000 population in 1965 to 3.5 in 1970 to 4.8 in 1975."
"No-Fault Divorce: Proposed Solutions to a National Tragedy," 1993 Journal of Legal Studies 2, 15, citing National Center for Health Statistics, 1988, 2-5, cited by Thomas B. Marvell, Divorce Rates and the Fault Requirement, 23 Law & Society Review 544, n.4, (1989).

Divorce increased almost 40 percent from 1970 to 1975.
Brian Willats, Breaking Up is Easy To Do, available from Michigan Family Forum, citing Statistics from National Center for Health Statistics, U.S. Department of Health and Human Services. Cited in Kenneth Jost and Marilyn Robinson, "Children and Divorce:What can be done to help children of divorce," CQ Researcher, June 7, 1991, pp. 353, 357.

The marriage rate has fallen nearly 30% since 1970 and the divorce rate has increased about 40%.
Ahlburg and DeVita, "New Realities," 4-12. Cited on page 5 ofThe Abolition of Marriage, by Maggie Gallagher


"In America, divorce used to be difficult to obtain and, usually, impossible without good reason: adultery, abandonment, abuse, alcoholism. In 1880, according to the historian Robert L. Griswold, one marriage in 21-fewer than 5 percent-ended in divorce. Over time, there have been peaks and valleys in the divorce rate, such as the period immediately following World War II, when returning soldiers found things rather different from how they had left them, or were themselves tremendously changed by war. "But beginning in the mid-1960s," writes Griswold, the divorce rate "again began to rise dramatically, fueled by ever-higher marital expectations, a vast expansion of wives moving into the work force, the rebirth of feminism, and the adoption of 'no fault' divorce (that is, divorce granted without the need to establish wrongdoing by either party) in almost every state." Griswold continues, "The last factor, although hailed as a progressive step that would end the fraud, collusion, and acrimony that accompanied the adversarial system of divorce, has had disastrous consequences for women and children.'"[Powell, D. (2003) Divorce-on-Demand: Forget about Gay Marriage- What About the State of Regular Marriage? National Review, v55 i20. Retrieved June 9, 2004 from Expanded Academic ASAP.]

Reconciliation after Separation
A sociology professor from Baltimore posted this citation on the FAMILYSCI listserv:
"The only statistic I have is the one cited in my marriages/families
textbook, but it may (or may not) be dated: "Approximately 10 percent of all
currently married couples (9 percent of white women and 14 percent of black
women) in the United States have separated and reconciled" (Wineberg and
McCarthy, "Separtion and reconciliation in American marriages," Journal of
Divorce & Remarriage 29, 1993: 131-46). If there's a more recent cite, I
haven't bumped across it yet."

Catholic Annulment Statistics:
"For the year 2002: of the 56,236 ordinary hearings for a declaration of
nullity, 46,092 received an affirmative sentence. Of these, 343 were handed
out in Africa, 676 in Oceania, 1,562 in Asia, 8,855 in Europe and 36,656 in
America, of which 30,968 in North America and 5,688 in Central and South
America."

http://www.divorcereform.org/rates.html#anchor1223885

It would appear that 1. men and women are a huge failure at marriage.
and 2.  We only invoke God's law when we are prohibiting others from doing what they want.

again... strange