AD versus Common Era

[Rush Limborg]

Let's go through this one more time...

The United States Supreme Court in the 1960s decided that you are wrong on this. It is a right, and if you don't like that, too bad.

Let's see....

The Supreme Court also made the Dred Scott decision

Are you seriously going to compare a Supreme Court decision that empowers citizens to one that took away every single right a person had?

Seriously?

C'mon, man. There's an obvious difference between the natural right to marry and the racist belief that blacks aren't people.

Leaving aside the question of what a "natural right" is, I was clearly using that as an example of why one should not be of the mindset of "the Supreme Court said it--so that ends the argument". Once again, S.C. justices are flawed human beings, as we are. That is why I admire justices like the late Hugo Black. See my above comments on him.

Unfortunately, emotional appeals concerning "celebrating humanity and its capacity for love" and "the joys of life" does not legal precedent make. Indeed, it should not, lest subjectivism creep in.

True. But recognizing the natural right of all citizens to marry and to have equal access to the institution of civil marriage does legal precedent make.

Why are you so invested in legal arguments that disempower citizens and restrict their rights?

The government should not be in the business of creating rights, and then giving them the same status as natural rights. The government created the concept of civil marriage as a government institution--putting it under government controll. And what the government gives, the government can take away.

That is why I am firmly against the concept of marriage being a government institution. That is the "legal arguement" I am "invested in".

Once again, "marriage" is a term of tradition.

No, it is not. Marriage "traditions" have been in a state of flux for centuries. When we talk about law, we're not talking about tradition, we're talking about civil marriage -- the institution to which all people have a natural right and equal access, the institution that doesn't require a white dress and tuxedo and bridesmaids and best man and a ring, the institution that lets atheists marry without requiring a church's assistance. Tradition is just not a factor when it comes to civil marriage, because, if it were, Loving v. Virginia would never have happened and it would still be illegal for blacks and whites to marry -- you know, because that violated the traditional definition of marriage.

Let me put this way once again, Sci: You keep bringing up something called "civil marriage". Once again, with this, you bring up the premise that marriage is a government instiution.

That is government intervention. That is what I am against. If the government wants to get involved in brining "civil" legality to the institution--tax status, etc.--then they should come up with another name, or at least expand the meaning and applications of an already existing legal term--namely, "civil union".

But "marriage" as a concept was not created by the government. Therefore, the government has no business in toying with the definition of said concept.

 

[Steve Roby]

But did it honestly matter what that commitment was called?

Yes, because marriage is a right. Period.

Since the question was directed at Steve Roby, it's only fair to allow him to answer it.

Let me borrow a word from the member of the Collective: tradition. Marriage is a very big thing in many cultures, including ours, and marriage is the word we use for it, whether the people marrying are Christians, Jews, Muslims, cult members, atheists, new age flakes, or any combination of the above. It's the word we use whether the people getting married are 20, 40, 60, or 80 years old. Unlike AD and BC, it does not have a specifically religious meaning, nor is it tied to one particular religion. It is a cultural thing. And I happen to think it's a reasonably good thing. So why should some people be excluded from it?

Gay marriage is not some special right for a minority. It's about not excluding a minority from something the rest of us take for granted in all our different ways. And, yes, the word marriage matters.

 

[Sci]

Let's go through this one more time...

Let's see....

The Supreme Court also made the Dred Scott decision

Are you seriously going to compare a Supreme Court decision that empowers citizens to one that took away every single right a person had?

Seriously?

C'mon, man. There's an obvious difference between the natural right to marry and the racist belief that blacks aren't people.

Leaving aside the question of what a "natural right" is, I was clearly using that as an example of why one should not be of the mindset of "the Supreme Court said it--so that ends the argument".

Unless you're suggesting we fight a civil war over gay marriage -- or, since Loving v. Virginia determined that the fact that marriage was a right meant that states couldn't prevent interracial couples from marrying, a civil war over interracial marriage -- then that does end the argument. Marriage is a right in the United States whether you like it or not.

The government should not be in the business of creating rights, and then giving them the same status as natural rights.

How dare the government enumerate rights for its citizens! Obviously people should be more restricted in their rights and have less freedom.

The government created the concept of civil marriage as a government institution--putting it under government controll. And what the government gives, the government can take away.

No. That's the entire point of it being a right -- that it can't be taken away. That's why civil marriage is important -- it allows people to get married even when private institutions like churches refuse to perform or recognize marriages for them. It increases people's freedom that way.

That is why I am firmly against the concept of marriage being a government institution. That is the "legal arguement" I am "invested in".

You use nice buzzwords, but the actual effect of your argument is to diminish the rights of a citizen. Your ideal situation would make people less free, because they would be dependent upon the whims of private religious institutions to get married, and they would be regarded as having fewer rights.

Let me put this way once again, Sci: You keep bringing up something called "civil marriage". Once again, with this, you bring up the premise that marriage is a government instiution.

That's because it is. Marriage has been both a governmental and religious institution since time immemorial, and has certainly been both throughout the entire history of the United States. That's why ship captains can perform marriages, why you've always been able to go to a justice of the peace.

What you're proposing is a radical redefinition of marriage, a privatization of marriage that places it in the hands of religious elites and out of the hands of the democratically-elected government. What you're proposing would inhibit people's freedoms, take away their rights, and make their ability to marry dependent upon the whims of church leaders. What you're proposing is to make people less free.

 

[Smitty]

My only question/comment since this DOMA thing came up is this. Isn't it the job of the executive branch to enforce the laws, not decide if they are right or wrong? And didn't the administration in effect say they would not enforce or defend the law? Lastly, if the above is true, isn't that violating the constitution? Just curious, seriously looking for simple answers to this.

 

[Sci]

My only question/comment since this DOMA thing came up is this. Isn't it the job of the executive branch to enforce the laws, not decide if they are right or wrong? And didn't the administration in effect say they would not enforce or defend the law?

The administration decided that it would not defend DOMA in court. DOMA is still in effect insofar as same-sex couples are not regarded as married for the purposes of federal law.

Lastly, if the above is true, isn't that violating the constitution?

I would argue that DOMA violated the Constitution and that by refusing to defend DOMA in court, the administration is in fact defending the Constitution by refusing to defend an unconstitutional law.

 

[Allyn Gibson]

My only question/comment since this DOMA thing came up is this. Isn't it the job of the executive branch to enforce the laws, not decide if they are right or wrong? And didn't the administration in effect say they would not enforce or defend the law? Lastly, if the above is true, isn't that violating the constitution? Just curious, seriously looking for simple answers to this.

DOMA's major problem, and the reason why the Obama administration has chosen not to defend it, is that the law violates the "full faith and credit" clause of the Constitution because the law allows states to not recognize the legality of civil unions and marriages performed in other states. (The "full faith and credit" clause binds states to recognize other states' legal actions.) There are lawsuits relating to DOMA due to divorces and bankruptcies where gay couples have moved to other states and now, due to DOMA, can't be divorced or cannot file for bankruptcy protection because the states have passed laws that don't permit the court system to recognize their marriage.

 

[Mr. Laser Beam]

Regarding the whole gay marriage thing, I gotta side with Jack McCoy on this one.

"Let them marry. Why shouldn't they be as miserable as the rest of us?"

 

[Captain Robert April]

My only question/comment since this DOMA thing came up is this. Isn't it the job of the executive branch to enforce the laws, not decide if they are right or wrong? And didn't the administration in effect say they would not enforce or defend the law?

The administration decided that it would not defend DOMA in court. DOMA is still in effect insofar as same-sex couples are not regarded as married for the purposes of federal law.

Lastly, if the above is true, isn't that violating the constitution?

I would argue that DOMA violated the Constitution and that by refusing to defend DOMA in court, the administration is in fact defending the Constitution by refusing to defend an unconstitutional law.

THE EXECUTIVE BRANCH IS NOT ALLOWED TO MAKE THAT CALL! That's for the Judicial branch to decide, and until they do, the Executive branch is Constitutionally obligated to enforce the law and defend it in court.

Otherwise, what we have is an imperial presidency that is above the law, and while I have rather fond memories of the 1970's, I'd rather not relive the Watergate period.

 

[Sci]

My only question/comment since this DOMA thing came up is this. Isn't it the job of the executive branch to enforce the laws, not decide if they are right or wrong? And didn't the administration in effect say they would not enforce or defend the law?

The administration decided that it would not defend DOMA in court. DOMA is still in effect insofar as same-sex couples are not regarded as married for the purposes of federal law.

Lastly, if the above is true, isn't that violating the constitution?

I would argue that DOMA violated the Constitution and that by refusing to defend DOMA in court, the administration is in fact defending the Constitution by refusing to defend an unconstitutional law.

THE EXECUTIVE BRANCH IS NOT ALLOWED TO MAKE THAT CALL! That's for the Judicial branch to decide,

Actually, there's never been any law or judicial ruling determining that the executive branch has no authority to recognize when legislation violates the Constitution and violates people's rights, and therefore cannot act to defend the Constitution and people's rights before the judiciary has ruled against a law's constitutionality.

Otherwise, what we have is an imperial presidency that is above the law,

No, what we have with DOMA is an imperial legislature that's above the Constitution.

ETA:

An excellent summary here:

In reality, *no* branch of government has been designated the specific function of declaring laws unconstitutional - not even the Judiciary. While it is often said the Judiciary fills that role, the fact is that nowhere does the US Constitution authorize the Supreme Court to do so. The seed of that 'authority' was planted in 1803, when the Court decided in Marbury vs. Madison that a Congressionally-enacted law was invalid due to its unconstitutionality.

However, the development of that authority within the Judiciary does not mean that other branches of government are free to ignore issues on Constitutionality. When the President takes his oath of office, he specifically swears the following:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President takes an oath to defend the US Constitution. He is not defending the Constitution if he or his administration are trying to preserve laws which violate that same Constitution.

The error Scott Brown makes - and one which many critics of Obama's decision are making - is the adoption of a simplistic view of government that ignores the overriding importance of the concept of the separation and balance of powers between the three branches of government.

On a simple level, it is often said that the Legislature "makes" the laws, and the Executive "carries out the laws." But that view skews the balance of power and makes it appear as if the President is merely a servant or administrator to Congress, whose only function is to do as he is told. Such a view sees the Legislature as superior to the President, and able to order him about to carry out their orders.

That is NOT how the structure of our national government was envisioned. Rather, it was conceived as being comprised of three separate branches, co-equal, each providing checks and balances to the others...and deliberately inefficient and inexact in the exercise of its powers. The ability of one branch to "check" another branch is one of the most basic features of the American System.

<SNIP>

We see this all the time in less controversial settings:

Congress passes a law, and the Supreme Court refuses to convict someone under it.

The President authorizes a program, and Congress refuses to authorize spending to carry it out.

A Legislature passes laws against smoking marijuana, and the Executive branch (Mayors, Police Departments) choose NOT to enforce that law during a huge rock concert.

A president nominates Judges and Cabinet Appointees, and the Senate refuses to vote them up or down.

This happens on a regular basis. There is nothing different in the present case. Congress passed a law, DOMA, that is clearly Unconstitutional on multiple levels. Several Courts have already held that DOMA is Unconstitutional. The President is merely carrying out his responsibilities under the US Constitution to defend that document against laws which violate both its letter and spirit. It is a messy system, but it is messy on purpose...and any effort to insist that the President merely do as Congress tells him is certainly as un-American as it gets.

 

[scotpens]

Marriage has been both a governmental and religious institution since time immemorial, and has certainly been both throughout the entire history of the United States. That's why ship captains can perform marriages . . .

Uh, no.

 

[Nerys Myk]

Marriage has been both a governmental and religious institution since time immemorial, and has certainly been both throughout the entire history of the United States. That's why ship captains can perform marriages . . .

Uh, no.

Are you contradicting James T Kirk?

 

[Sci]

Marriage has been both a governmental and religious institution since time immemorial, and has certainly been both throughout the entire history of the United States. That's why ship captains can perform marriages . . .

Uh, no.

Thank you for the clarification -- though we should note that your link makes it clear that the waters are muddied (no pun intended) when it comes to case law for ship captain-performed marriages.

 

[CorporalCaptain]

Actually, there's never been any law or judicial ruling determining that the executive branch has no authority to recognize when legislation violates the Constitution and violates people's rights, and therefore cannot act to defend the Constitution and people's rights before the judiciary has ruled against a law's constitutionality.

An excellent summary here:

In reality, *no* branch of government has been designated the specific function of declaring laws unconstitutional - not even the Judiciary. ...

However, the development of that authority within the Judiciary does not mean that other branches of government are free to ignore issues on Constitutionality. When the President takes his oath of office, he specifically swears the following:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President takes an oath to defend the US Constitution. He is not defending the Constitution if he or his administration are trying to preserve laws which violate that same Constitution.

...

Bingo. Beautiful. Once again, thank you for your post.

 

[Smitty]

THanks for all the input. However, to me it seems the administration is not doing its' duty because they are choosing which laws to enforce/defend and they are violating the constitution. Of course others administrations have done the same but this one was supports to be different and bring change. I really do not see that. Oh well, status quo.

 

[Sci]

THanks for all the input. However, to me it seems the administration is not doing its' duty because they are choosing which laws to enforce/defend

Once again:

DOMA remains in force, because the federal government is still prohibited from recognizing same-sex marriages.

What has changed is that it is not being defended by the Department of Justice in lawsuits attacking its Constitutional compatibility.

And, as I explained above, the President does not have a duty to defend a law that is clearly unconstitutional. In fact, his duty is to do the OPPOSITE -- to protect and defend the Constitution, not Public Laws which violate the Constitution.

and they are violating the constitution.

No, he is not. Article II of the United States Constitution is the article which outlines the duties of the President, and it does NOT say he has a duty to defend in court laws which are unconstitutional.

Of course others administrations have done the same but this one was supports to be different and bring change.

Refusing to spend taxpayer money to defend an oppressive, tyrannical, unconstitutional law is change.

 

[Smitty]

Refusing to spend taxpayer money to defend an oppressive, tyrannical, unconstitutional law is change.

Everyone seems to have an opinion on what is a unconstitutional law that always matches their personal beliefs.. (DOMA, abortion, gun laws, etc)

However, it is the same games that the republicans played and the democrats before.... now we have waivers, broken promises, etc.

What I find completely ironic however is that DOMA was signed into law by Clinton. Now that is knee slapping funny!

But I do not want to get into it all here, this is Star Trek baby! If anything, the latest threads clearly indicate we need to new books! Fortunately for me I have the whole Vanguard series to catch up on.

 

[Sci]

Refusing to spend taxpayer money to defend an oppressive, tyrannical, unconstitutional law is change.

Everyone seems to have an opinion on what is a unconstitutional law that always matches their personal beliefs.. (DOMA, abortion, gun laws, etc)

No, this one literally violates the Constitution. It's not a matter of opinion, it's a matter of fact. Article IV, Section 1 of the Constitution says, very clearly, "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." (It is commonly called the Full Faith and Credit Clause.) DOMA says that states can ignore valid same-sex civil marriages performed by other states.

There is no way to reconcile this aspect of DOMA with the Full Faith and Credit Clause. The Constitution says every state has to respect every other state's public acts, records, and judicial proceedings, and DOMA says that states can ignore particular kinds of public acts, records, and judicial proceedings. The Constitution says A, and DOMA says Not-A.

This is not a matter of opinion, this is a matter of fact.

What I find completely ironic however is that DOMA was signed into law by Clinton.

Indeed, there is an alarming prevalence of heterosexism and bigotry amongst Democrats as well as Republicans. Anyone who claims otherwise is more interested in the interests of the Democratic Party than he/she is in equal rights for LGBT Americans.

 

[James Cole]

^ This happens a lot more often at the state level, especially in states with referendum systems. In California, governors have often given up on fighting propositions in court. Gray Davis didn't fully appeal rulings against Proposition 187 (the mid-90's law about public services and illegal immigrants) and Schwarzenegger made anti-gay marriage advocates fight to keep Proposition 8 in place (The CA Supreme Court legalized gay marriage and then Prop 8 altered the CA constitution to no longer allow gay marriage). Depending on if Prop 8 makes it to the US Supreme Court and if Anthony Kennedy votes in favor, this could potentially not just throw out Prop 8 but legalize same sex marriage across the US.

Conversely states have some leeway enforcing federal laws. Several localities are "sanctuary cities" for illegal immigrants. And most visibly in parts of California, we have "medical" marijuana dispensaries that the federal Supreme Court ruled against, but state and local authorities follow Prop 215 and at the federal level Obama and Eric Holder decided not to go after people following state laws.

 

[Thestral]

Of course. Nothing's going to stop divorce, especially when there's often very good reasons for it (abuse, infidelity), or people have changed so much that remaining together isn't reasonable. But if you could make sure people realize the commitment they're getting into - or at least make sure they're on the same page regarding that commitment, or perhaps even have people come to realize they're better off not married, then it would lessen the pain and cost (material and emotional) down the road. Ounce of prevention, pound of cure and all that.

Thanks. And I assume since nobody's refuting our points everybody understands and agrees.

 

[Trilliam]

It's the same reason you make condoms/birth control freely available from the health department. Are you gonna prevent all unintended pregnancies? No, of course not, but you can reduce the rate.

] Aren't these readily and inexpensively available from pharmacies? Service stations, supermarkets, family planning clinics?

Yes, but not everybody can afford even that. Plus some people don't want to be seen purchasing those.

So use the vending machine in the loo at the service station or pub/club.
Oh Good Grief, join the post HIV/AIDS 21st Century already!