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Old 06-27-2013, 03:02 PM   #21
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Old 06-27-2013, 03:07 PM   #22
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So...

step forward for gay rights
step forward for legislating from the bench

What is dangerous about this ruling is that it bypasses the will of the people (on both a federal and state level) in that it all but dictates the legislation that will follow... and that is NOT the role of the judicial branch.
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Old 06-27-2013, 03:27 PM   #23
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What is dangerous about this ruling is that it bypasses the will of the people (on both a federal and state level) in that it all but dictates the legislation that will follow... and that is NOT the role of the judicial branch.
The same thing was said about Brown vs Board of Ed.
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Old 06-27-2013, 04:12 PM   #24
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The same thing was said about Brown vs Board of Ed.
Yes and no. Brown v Board said "hey this is illegal on the grounds of discrimination. You must integrate".

This says "hey this is illegal, you must legislate ____, _____, _______, ______, insert tons of financial and other benefits".

But you're right in that this isn't the first time the courts have forced the hand of legislators.

Long, long, long stretch but along same lines : "Pursuit of happiness included the right that ALL men and women be able to afford those items which make them happy. Therefore, unequal pay, regardless of contribution or talent, is discriminatory and must be righted. Free market must be abolished in favor of equality for all".
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Old 06-27-2013, 04:14 PM   #25
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So...

step forward for gay rights
step forward for legislating from the bench

What is dangerous about this ruling is that it bypasses the will of the people (on both a federal and state level) in that it all but dictates the legislation that will follow... and that is NOT the role of the judicial branch.
Bypassing what once was the will of the people...

The Prop 8 case was broght to the SCOTUS by private individuals against the elected representatives of the state of CA for not contesting a lower court's runling against Prop 8 for being unconstutional. The duly elected CA officials ARE now representing the current will of their people, circa 2013, the majority of who now support gay marriage.

Similar arguments could be made regarding DOMA.

In any case, regarding the overall Constitutionality of any law, it IS the role of the SCOTUS to rule on that, as they appropriately did in both cases, and in the Voting Act case too, regardless of whether you agree with them or not.

The "will of the people" is not absolute in these regards. If a state passed a law reinstituting slavery or banning Catholics from office, then the SCOTUS, too, would be fullfilling their role and obligation to declare these laws unconstitutional.

Of course, the "will of the people" could then change/amend the constitution if they see fit to make slavery once again legal or allow the banning of Catholics from public office, there are procedures for this, but good luck with either or with enshrining DOMA Constitutionally as some GOP'ers have proposed.
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Old 06-27-2013, 04:25 PM   #26
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I love how the will of the people only matters when the people are on your side, otherwise RUN TO THE COURT!!!!
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Old 06-27-2013, 04:29 PM   #27
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"This says "hey this is illegal, you must legislate ____, _____, _______, ______, insert tons of financial and other benefits"."

Of course it does.

Congress, ala DOMA, cannot continue to discriminate against same-sex married citizens under our Constitution. A law being the status quo is and of itself absolutely no protection against being declared unconstitutional or shield it from actions to make it so. Any SCOTUS decision will be in some way legally (and otherwise) consequential, they are not in the habit of hearing, much less ruling on, inconsequential items. The SCOTUS is not a debating society but rather, a co-equal element of out democracy with actual import and power.

The SCOTUS says nothing about how Congress must legislate to remove this unconstitutionality, merely that the current legal status quo is unconstitutional and cannot stand. Legislatures could simply remove any and all financial or other benefits for any married couples to comply. Or simply extend them to all married couples, regardless of gender.

Brown vs. Board has analogous concrete/financial ramifications too, ramifications that nonetheless did not obviate that decision in any way either.
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Old 06-27-2013, 04:30 PM   #28
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Old 06-27-2013, 04:36 PM   #29
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I love how the will of the people only matters when the people are on your side, otherwise RUN TO THE COURT!!!!
That's undoubtedly true, and so...?

If the "will of the people," whatever that vacuous term actually means, infringes upon an individual's Constitutional rights, then it is wholly right and appropriate for that individual to run to the courts to right that wrong. That is a basic role and function of the courts. To cite the "will of the people" (as asserted or measured by who?) is absolutely no justification or shield for unconstitutional laws or actions by out government.

Were our laws to actually reflect the "will of the people" today, circa 2013, regarding attitudes towards gay marriage, then DOMA and a host of state laws discriminating against them would be in contravention to the "will of the people." All to often, incantation of the "will of the people" is but a shrouded appeal to extra-Constitutional mob-rule or tyranny-of-the-majority, something that is NOT enshrined in our Constitution or democracy.

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Old 06-27-2013, 04:43 PM   #30
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Yes and no. Brown v Board said "hey this is illegal on the grounds of discrimination. You must integrate".

This says "hey this is illegal, you must legislate ____, _____, _______, ______, insert tons of financial and other benefits".
Actually, the DOMA ruling does not increase legislation. It removes legislation. It makes US Code smaller, not larger. It makes US code simpler, not more complex. You no longer have to have specific examples or additional clauses to add "an same-sex domestic partners/partnerships recognized by the US govt not not recognized by any or all states." That is a lot less legislation and code, rather than amend the 1100+ laws in US code that specifically deal with a "spouse" or person that is "married". In fact, you could go probably go back to earlier simpler code that does need to reflect "domestic partners" at all. If there is no prohibition on the gender of marriage. You can extend these benefits to married people and no longer have to deal with domestic partners. (OK, I don't want them to do that, but, they could and likely be constitutional. As it was not unconstitutional to extend benefits to married persons and same-sex domestic partners when same-sex partners could not be married.)

One could argue that far from creating extra legislation, the ruling actually reduces legislation. It was DOMA itself which made for much of the legislation you are currently referring to.
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Old 06-27-2013, 05:00 PM   #31
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Bypassing what once was the will of the people...

The duly elected CA officials ARE now representing the current will of their people, circa 2013, the majority of who now support gay marriage.
The duly elected officials did not support the vote of the majority of the people. Same sex marriage was brought to the people for a vote and it lost.
Now we have a perfect example of the courts undermining the vote of the majority of the people. How do you/they know what the MAJORITY think now?

To settle the debate, same sex marriage, abortion, obamacare, etc. needs to be brought to a federal vote. Then and only then will we know what the true majority of Americans really support or not. This should also be done for certain issues by state votes.

Why is OK for our elected officials to ignor current laws on the books, just because they disagree with the law. I thought an oath of office was to uphold the current laws.
If laws become outdated for reason, bring it up to a vote again. But as long as it's current law, it should be enforced and defended.
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Old 06-27-2013, 05:08 PM   #32
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USSC, DOMA, & Prop 8...opinions....

The SC opinion against DOMA was wavering, at best. Leave it as a simple tenth amendment argument and be done with it.

Either way, a good ruling for states' rights.


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Old 06-27-2013, 05:37 PM   #33
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The duly elected officials did not support the vote of the majority of the people. Same sex marriage was brought to the people for a vote and it lost.
Now we have a perfect example of the courts undermining the vote of the majority of the people. How do you/they know what the MAJORITY think now?
Perhaps, if that vote instituted an unconstitutional statute or state amendment, then yes, it should be duly "undermined." We are, after all, a republican constitutional democracy, not a mob-rule state.

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To settle the debate, same sex marriage, abortion, obamacare, etc. needs to be brought to a federal vote. Then and only then will we know what the true majority of Americans really support or not. This should also be done for certain issues by state votes.
These issues HAVE been brought to a federal vote, ala our freely elected representatives as outlined in our aforementioned republican constitutional democracy. These same issues have also undergone and passed SCOTUS scrutiny too, some of them several times in various ways and guises.

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Why is OK for our elected officials to ignore current laws on the books, just because they disagree with the law. I thought an oath of office was to uphold the current laws.
If laws become outdated for reason, bring it up to a vote again. But as long as it's current law, it should be enforced and defended.
Most oath's of office that I'm familiar with pledge fealty to upholding the U.S. Constitution, which, arguably, may be somewhat distinct from or preeminent to upholding particular laws. In the Prop 8 case, they weren’t ignoring or failing to enforce a current active law but rather, not seeking to appeal a lower court ruling (it unconstitutional) as would be there prerogative to do so or not. Perhaps Prop 8 could be brought up for a popular referendum again, though it’s arguable whether it should given that it’s been ruled unconstitutional. All recent polls, though, clearly show that it would handily loose anyways.
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Old 06-27-2013, 08:48 PM   #34
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The duly elected officials did not support the vote of the majority of the people. Same sex marriage was brought to the people for a vote and it lost.
Now we have a perfect example of the courts undermining the vote of the majority of the people. How do you/they know what the MAJORITY think now?

To settle the debate, same sex marriage, abortion, obamacare, etc. needs to be brought to a federal vote. Then and only then will we know what the true majority of Americans really support or not. This should also be done for certain issues by state votes.

Why is OK for our elected officials to ignor current laws on the books, just because they disagree with the law. I thought an oath of office was to uphold the current laws.
If laws become outdated for reason, bring it up to a vote again. But as long as it's current law, it should be enforced and defended.
Let us be clear. The elected officials in Cali did enforce and defend Prop 8. in the Perry v. Schwarzenegger case. They accepted the ruling of the court. It was individuals (who may or may not have had the support of the majority) who decide on their own personal initiative to appeal the case. Just because some people did not like the ruling in Perry v. Schwarzenegger, well sucks to be them. Courts rule on things people like or don't like all the time. The state has the power to accept the ruling in the case that it brought and choose not to appeal the decision. Just because some folks didn't like Walker's ruling does not mean the state is obligated to appeal.

It is not OK for elected officials to ignore current laws on the books. However, officials in California did not ignore those current laws and defended the suit brought against Prop 8. Those are the facts.

Perhaps elected officials need to better understand the constitution and not write legislation which violates the 5th and 14h amendments in the first place.
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Old 06-27-2013, 08:51 PM   #35
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I love how the will of the people only matters when the people are on your side, otherwise RUN TO THE COURT!!!!
You wouldn't have a job if people didn't run to the court.
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Old 06-27-2013, 08:53 PM   #36
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The SC opinion against DOMA was wavering, at best. Leave it as a simple tenth amendment argument and be done with it.

Either way, a good ruling for states' rights.
As long as at 10th amendment argument doesn't trample on Article IV, Section 1.
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Old 06-27-2013, 10:40 PM   #37
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You wouldn't have a job if people didn't run to the court.
Trust me, I'd be more than happy to find alternate employment (I daydream about being laid off).
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Old 06-28-2013, 12:48 AM   #38
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Trust me, I'd be more than happy to find alternate employment (I daydream about being laid off).
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Old 06-28-2013, 01:13 AM   #39
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I wouldn't counsel my worst enemy to go to law school, true story
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Old 06-28-2013, 01:15 AM   #40
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That's a bummer. I love what I do.
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