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federally UNCONSTITUTIONAL state constitutional amendments

 
 
Reply Thu 12 May, 2005 05:17 pm
All those moral majorities that raced to the polls to amend their state constitutions to ban same sex marriage ought to be ashamed of themselves. It doesn't matter if they make discriminatory, oppressive laws or amend their state constitutions to be discriminatory and oppressive. They may not impose their morals on others through the power of the state. Since they are not smart enough to figure that out, I guess the federal judiciary must do its duty.

Oh yeah. I'm sure the moral majority will scream "judicial activism." But the fact remains that the U.S. Constitution does NOT ALLOW them to impose their views on others unless they have a compelling reason for doing so -- a compelling reason unrelated to their moral disapproval. They cannot stop a federal court from performing its constitutional duty to strike down unconstitutional laws.

Judge Nixes Neb. Same-Sex Wed Ban

Quote:
A federal judge Thursday struck down Nebraska's ban on gay marriage, saying the measure interferes not only with the rights of gay couples but also with those of foster parents, adopted children and people in a host of other living arrangements.

The constitutional amendment, which defined marriage as a union between a man and a woman, was passed overwhelmingly by the voters in November 2000.

U.S. District Judge Joseph Bataillon said the ban "imposes significant burdens on both the expressive and intimate associational rights" of gays "and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process."
 
Chrissee
 
  1  
Reply Thu 12 May, 2005 07:35 pm
It is still a long, uphill rights to get the same rigths most people take for granted but we shall overcome one day.
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tommrr
 
  1  
Reply Thu 12 May, 2005 11:15 pm
Chrissee wrote:
It is still a long, uphill rights to get the same rigths most people take for granted but we shall overcome one day.

So if here in CA, you were to finally get the same rights, but it was under the title of civil unions, would that be a victory, or only if it called marriage? Not looking for an argument, just your point of view.
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Brandon9000
 
  0  
Reply Thu 12 May, 2005 11:45 pm
Re: federally UNCONSTITUTIONAL state constitutional amendmen
Debra_Law wrote:
All those moral majorities that raced to the polls to amend their state constitutions to ban same sex marriage ought to be ashamed of themselves. It doesn't matter if they make discriminatory, oppressive laws or amend their state constitutions to be discriminatory and oppressive. They may not impose their morals on others through the power of the state. Since they are not smart enough to figure that out, I guess the federal judiciary must do its duty.

Oh yeah. I'm sure the moral majority will scream "judicial activism." But the fact remains that the U.S. Constitution does NOT ALLOW them to impose their views on others unless they have a compelling reason for doing so -- a compelling reason unrelated to their moral disapproval....

You can amend state Constitutions for reasons of morality. Where exactly does it say in the Federal Constituion that you can't be motivated by moral concepts? I must have missed that clause. Half the things in the law come from peoples' ideas of right and wrong anyway.
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ebrown p
 
  1  
Reply Thu 12 May, 2005 11:54 pm
Debra,

First a Compliment. You argue passionately for both traditionally conservative and traditionally liberal issues. I must say that I respect that.

I am strongly in favor of the rights of homosexuals to marry.

However, I have questions about whether the Federal courts should be able to overturn a State's Constitution. Many of our laws are based on a subjective view of morality.

How would you draw the balance between State's rights (which is a real Constitutional prinicle, not just a conservative slogan as it is sometimes portrayed) and the need for this civil right?

I am truly agnostic on this issue right now. Please let me know how you would make this balance.
0 Replies
 
Debra Law
 
  2  
Reply Fri 13 May, 2005 12:05 am
Re: federally UNCONSTITUTIONAL state constitutional amendmen
Brandon9000 wrote:
Debra_Law wrote:
All those moral majorities that raced to the polls to amend their state constitutions to ban same sex marriage ought to be ashamed of themselves. It doesn't matter if they make discriminatory, oppressive laws or amend their state constitutions to be discriminatory and oppressive. They may not impose their morals on others through the power of the state. Since they are not smart enough to figure that out, I guess the federal judiciary must do its duty.

Oh yeah. I'm sure the moral majority will scream "judicial activism." But the fact remains that the U.S. Constitution does NOT ALLOW them to impose their views on others unless they have a compelling reason for doing so -- a compelling reason unrelated to their moral disapproval....


You can amend state Constitutions for reasons of morality. Where exactly does it say in the Federal Constituion that you can't be motivated by moral concepts? I must have missed that clause. Half the things in the law come from peoples' ideas of right and wrong anyway.


Brandon:

No. You cannot amend your state Constitution "for reasons of morality" if doing so violates the Fourteenth Amendment to the United States Constitution. If you have overlooked the Fourteenth Amendment in your constitutional studies, it's time for you to take a good look. You need to learn what lines government may NOT cross when legislating on the basis of peoples' ideas of right and wrong.
0 Replies
 
Brandon9000
 
  0  
Reply Fri 13 May, 2005 12:20 am
Re: federally UNCONSTITUTIONAL state constitutional amendmen
Debra_Law wrote:
Brandon9000 wrote:
Debra_Law wrote:
All those moral majorities that raced to the polls to amend their state constitutions to ban same sex marriage ought to be ashamed of themselves. It doesn't matter if they make discriminatory, oppressive laws or amend their state constitutions to be discriminatory and oppressive. They may not impose their morals on others through the power of the state. Since they are not smart enough to figure that out, I guess the federal judiciary must do its duty.

Oh yeah. I'm sure the moral majority will scream "judicial activism." But the fact remains that the U.S. Constitution does NOT ALLOW them to impose their views on others unless they have a compelling reason for doing so -- a compelling reason unrelated to their moral disapproval....


You can amend state Constitutions for reasons of morality. Where exactly does it say in the Federal Constituion that you can't be motivated by moral concepts? I must have missed that clause. Half the things in the law come from peoples' ideas of right and wrong anyway.


Brandon:

No. You cannot amend your state Constitution "for reasons of morality" if doing so violates the Fourteenth Amendment to the United States Constitution. If you have overlooked the Fourteenth Amendment in your constitutional studies, it's time for you to take a good look. You need to learn what lines government may NOT cross when legislating on the basis of peoples' ideas of right and wrong.


14th Amendment:

Quote:
Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.


Sorry, but I don't see where this says that you can't base laws on morality. Human laws have always been based on (1) codification of people's ideas of right and wrong, (2) issues of practicality in running society.
0 Replies
 
Debra Law
 
  1  
Reply Fri 13 May, 2005 12:52 am
Re: federally UNCONSTITUTIONAL state constitutional amendmen
Brandon9000 wrote:
14th Amendment:

Quote:
Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .


Sorry, but I don't see where this says that you can't base laws on morality. Human laws have always been based on (1) codification of people's ideas of right and wrong, (2) issues of practicality in running society.



You don't see? In case you can't see the relevant language, I have placed an emphasis on the language above.

If you can see it, but you don't UNDERSTAND it, then that's a different story. If you desire assistance to understand the Fourteenth Amendment, I will help you. If you desire to be obtuse or naive, then I won't waste my time.
0 Replies
 
Brandon9000
 
  0  
Reply Fri 13 May, 2005 05:10 am
Re: federally UNCONSTITUTIONAL state constitutional amendmen
Debra_Law wrote:
Brandon9000 wrote:
14th Amendment:

Quote:
Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .


Sorry, but I don't see where this says that you can't base laws on morality. Human laws have always been based on (1) codification of people's ideas of right and wrong, (2) issues of practicality in running society.



You don't see? In case you can't see the relevant language, I have placed an emphasis on the language above.

If you can see it, but you don't UNDERSTAND it, then that's a different story. If you desire assistance to understand the Fourteenth Amendment, I will help you. If you desire to be obtuse or naive, then I won't waste my time.

No, I'm looking at that really hard and I don't see anything about laws not being based on ethics. I guess you mean you won't waste your time on an argument over a position you can't support.
0 Replies
 
dyslexia
 
  1  
Reply Fri 13 May, 2005 05:25 am
interesting, we may have a debate here regarding the difference between justice an morality. personally I favor justice and I tend to lean towards the idea that the Supreme court does as well but then I have erred in the past.
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Chrissee
 
  1  
Reply Fri 13 May, 2005 05:33 am
brandon, you are way overmatched here. Debra is clearly right. She is a lawyer. You are not.

It doesn't matter what laws are based on. What matters is that states can't pass unconstitutional laws. (and have them stick.) In this country, the majority cannot pass laws to oppress the minority, whether it be based on morals, ethics or in this case, just plain fear.

Denying people their rights is not moral. You just try to say it is.
0 Replies
 
Chrissee
 
  1  
Reply Fri 13 May, 2005 05:41 am
tommrr wrote:
Chrissee wrote:
It is still a long, uphill rights to get the same rigths most people take for granted but we shall overcome one day.

So if here in CA, you were to finally get the same rights, but it was under the title of civil unions, would that be a victory, or only if it called marriage? Not looking for an argument, just your point of view.


It would be better than nothing. Kinda like telling blacks in the fifties, Ok we will designate most public accomodations and employment open to all races but we will still reserve a few jobs, housing etc for white folks only.
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woiyo
 
  0  
Reply Fri 13 May, 2005 06:21 am
The equal protection clause is not a one way "street". For example, is one State has lower standards for drivers licenses or gun laws, that does not require another State, that may have higher standards, to recognize the other States standards.

Just because the State of Mass allows homosexual Marriage, and marry John and Jerry in Mass., does that automaticlly mean the resident State of John and Jerry, must their marriage?

No, it does not.
0 Replies
 
ebrown p
 
  1  
Reply Fri 13 May, 2005 06:41 am
We should follow the clear historical precedent for these kinds of things.

Let's say that in other states, John and Jerry are 3/5's married.
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DrewDad
 
  1  
Reply Fri 13 May, 2005 11:19 am
I heard NPR's coverage of this; they stated that other states' ammendments would probably not be overturned on the basis of this particular case. Other states' same-sex marriage bans were not based on the Nebraska ammendment.
0 Replies
 
Brandon9000
 
  0  
Reply Fri 13 May, 2005 12:07 pm
Chrissee wrote:
brandon, you are way overmatched here. Debra is clearly right. She is a lawyer. You are not.

It doesn't matter what laws are based on. What matters is that states can't pass unconstitutional laws. (and have them stick.) In this country, the majority cannot pass laws to oppress the minority, whether it be based on morals, ethics or in this case, just plain fear.

Denying people their rights is not moral. You just try to say it is.

Oh, no, I wasn't even discussing what's moral. I was discussing what the 14th Amendment says. I am staring at that text really, really closely and I still can't find the part that says laws can't be based on ethics.
0 Replies
 
joefromchicago
 
  1  
Reply Fri 13 May, 2005 12:08 pm
ebrown_p wrote:
We should follow the clear historical precedent for these kinds of things.

Let's say that in other states, John and Jerry are 3/5's married.

Would that make them "homulattoes?"

Perhaps they could "pass" for married.
0 Replies
 
fishin
 
  1  
Reply Fri 13 May, 2005 02:06 pm
Chrissee wrote:
brandon, you are way overmatched here. Debra is clearly right. She is a lawyer. You are not.


lmao. Oh! She's a laywer! Well then of course she's right!

But then you aren't a laywer so how do you KNOW she's right????
0 Replies
 
Debra Law
 
  2  
Reply Fri 13 May, 2005 02:59 pm
State's Rights
ebrown_p wrote:
Debra,

First a Compliment. You argue passionately for both traditionally conservative and traditionally liberal issues. I must say that I respect that.

I am strongly in favor of the rights of homosexuals to marry.

However, I have questions about whether the Federal courts should be able to overturn a State's Constitution. Many of our laws are based on a subjective view of morality.

How would you draw the balance between State's rights (which is a real Constitutional prinicle, not just a conservative slogan as it is sometimes portrayed) and the need for this civil right?

I am truly agnostic on this issue right now. Please let me know how you would make this balance.


ebrown:

All fifty states have legislative bodies that make laws that apply to persons (including businesses and corporations) found within their jurisdicitions. The states are free to craft their own laws as they see fit, but within certain limitations.

There exists a heirarchy of laws.

Article VI

Article VI, of the United States Constitution provides the following:

Quote:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.


The Constitution is the supreme law of the land. It is first and foremost in the heirarchy.

Next in the heirarchy are treaties and federal laws made in pursuance of the Constitution. Congress's powers are limited to the enumerated powers that the people granted to Congress via the Constitution. If Congress passes a law that exceeds its limited powers or violates the Constitution, the Constitution prevails and the ordinary legislation is void.

The judges in every state are bound by the supreme law of the land. The United States Constitution reigns supreme. If anything in a state constitution or a state law is contrary to the United States Constitution, the United States Constitution prevails.

All state legislators, executives, and judges are required to swear an oath to support the U.S. Constitution.

In our heirarchy, the states are not allowed to make any laws or amend their state constitutions in any manner that conflicts with the U.S. Constitution. If they do so, the U.S. Constitution prevails and the state law or state constitutional provision that conflicts is void.

The states' rights issue was overwhelmingly the cause of the Civil War. The interests of the northern industrialized states and the interests of the southern slave states were in conflict ultimately causing such a rift that the southern states seceded from the Union. If the civil war taught us anything, it should have taught us that our federal Constitution and federal laws are supreme--and that states cannot undermine that irrefutable fact.

The Fourteenth Amendment (1868) was a post-civil war amendment. With respect to individual rights, the Fourteenth Amendment establishes the FLOOR. States may give the persons found within their jurisdictions MORE protection (security) against tyranny and oppression in their state laws and state constitutions than that provided by the Fourteenth Amendment, but they cannot provide LESS protection (security).

In the 1950's, segregation was an important states' rights issue. George Wallace won a landslide victory in his bid for the governorship of the State of Alabama. He won based on his pro-segregation, pro-states' rights platform.

Looking back on those times, the people believed it was wrong to allow the perceived "inferior" black people to commingle in society with the perceived "superior" white people. Sadly, the Supreme Court once ruled that the "separate, but [alleged] equal" treatment of the races did not violate the Fourteenth Amendment. Having become slightly more enlightened since the Plessy v. Ferguson ruling of 1896, the Supreme Court eventually interpreted the Fourteenth Amendment to extend equal rights under the law to blacks. Brown v. Board of Education (1954).

Brown v. Board of Education teaches us that a state does NOT have the right to treat people unequally via the power of the state unless the state has a compelling interest in doing so. Treating some people differently simply because others think they are morally inferior or because they possess traits that others despise can never justify unequal treatment under the Fourteenth Amendment. The issue of states' rights does not embrace the right of the majority in a state to discriminate, oppress, or tyrannize minority groups who are found within the jurisdiction of a state.

Unfortunately, this is a lesson that needs to be taught over and over again.

The Supreme Court recently provided the citizens of this country with another important lesson in Lawrence v. Texas. Because some people believe that the private, consensual sexual relations between persons of the same sex are WRONG, they enacted laws (used the power of the State) to criminalize that "wrongful" conduct. But, there are certain lines that our lawmakers cannot cross when legislating according to the moral views of the majority with respect to right and wrong.

The Supreme Court wrote:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. . . .

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. . . .

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992). . . .

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).

Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. . . .

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.


The lesson learned from Lawrence v. Texas clearly informs us that there are certain lines that the states may NOT cross when legislating on matters of majoritarian opinions of right and wrong. The Court told us:

1. The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.

2. Individual decisions concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment.


The issue of states' rights does NOT embrace the right of the moral majority may use the power of the State to enforce their views on the whole society through the operation of state laws. This includes making laws that discriminate or oppress or amending state constitutions to be discriminatory or oppressive. See Romer v. Evans (1996) (Pursuant to the Equal Protection Clause of the Fourteenth Amendment, the United States Supreme Court invalidated "Amendment 2" to the Colorado State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships.")

People like Brandon claim they do not see (or understand) how the Fourteenth Amendment can be applied to prevent the moral majority from passing laws based on their perceptions of right or wrong. That willful blindness comes from an inability or refusal to understand that our country was never organized on the basis of the principles of a pure democracy. Rather, we are a republic--an important distinction that many people fail to grasp.

[Our forefathers] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. The issue of states' rights is not based on a license to oppress. Maybe fifty years from now, we can take off our blinders (are you paying attention, Brandon?) and look back on the current times, and finally see that our laws that discriminate against homosexuals are NOT necessary nor proper--but serve only to oppress in violation of the Fourteenth Amendment.
0 Replies
 
kuvasz
 
  1  
Reply Fri 13 May, 2005 03:21 pm
i'm not a lawyer, although i play one on tv.

what is so difficult to understand abour the equal protection clause of the 14th amendment?

the states can not make laws that differentiates rights for different citizens. (caveat is adults, non-felons)

although the issue was slavery when the amendment was ratified, homosexual marital rights is well within the penumbra of this equal protection clause.

for debra, whose efforts on site i really appreciate>>>> use a case study to show what broaching the amendment would do.

don't like homosexuals? next up, why not prevent left handed folk from marrying?

the alleged "immorality" of homosexuality is not the fundamental issue, sure some folks think its immoral, most don't. but even if most did, the 14th amendment was enacted precisely to keep the majority from denying rights to minority citizens. the amendment protects minorities from majorities who thru the legislative process could attempt to deny basic rights to minorities otherwise enjoyed by the majority.

140 years ago it was skin color, now its sexuality. both of these are innate properties of selfhood.

its not akin to banning some people from wearing funny looking hats.
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