(Vanity) Constitutionally knowledgable Freepers needed to answer some questions for me

[soundandvision]

While listening to the opening of Rush's show today some questions came to mind. The story was about a circuit court judge overturning a law enacted by voters in Nebraska banning same sex marraige, essentially.

This also ties in to recent efforts here in central Ohio (Columbus) to ban smoking in all public places (bars, restaurants, etc)

My quandry is this: is it Constitutional for voters, by fiat to tell another segment of the population what they can and cannot do when it's involving a legal product, smoking?

Second quandry, and this is much deeper, how is it constitutional for voters to tell one segment that even if you find a church that will marry you, you can't do it.

This has always seemed to me to be a major paradox with my conservative/libertarian beliefs. I'm not trying open a can of worms, I just want straight answers on why it's okay for a segment of voters by fiat to tell another group they cannot do something that is (currently) legal (referring to smoking, not gay marriage).

There's a lot of deeper issues here and I'm really scratching the surface on my thoughts..but I wanted to throw up a quick post to get a discussion going and get feedback on other intricacies involved here.

I apologize from the outset for a kind of scatterbrained post -- but I wanted to get it going while this is fresh on my mind.

[advance_copy]

Second quandry, and this is much deeper, how is it constitutional for voters to tell one segment that even if you find a church that will marry you, you can't do it

Gay people have been getting "married" in "church" for decades. No law stops them from doing it. Courts are trying to tell the states that they have to recognize gay marriage, which forces everybody to accept it, even though it is against our beliefs.

[Cyber Liberty]

Can you help out in here?

[MACVSOG68]

My quandry is this: is it Constitutional for voters, by fiat to tell another segment of the population what they can and cannot do when it's involving a legal product, smoking?

Why not? As long as smoking is considered hazardous to others as well as the smoker, I'd be hard pressed to find a "right to smoke" any more than I can find a "right to an abortion".

Second quandry, and this is much deeper, how is it constitutional for voters to tell one segment that even if you find a church that will marry you, you can't do it.

Such issues as gay marriage belongs in the state. It is not a federal issue. And no, there is no constitutional right to gay marriage any more than to other unnatural unions. If a church or other non state entity wants to marry 2 men, fine, but it need not be recognized by the government.

[jla]

fyi

[freepatriot32]

Libertarian ping.To be added or removed from my ping list freepmail me or post a message here

[massgopguy]

I see it the other way. Civil Unions are a function of the State and the State cannot compel any church to perform Gay Marriages.

[Congressman Billybob]

All the questions about smoking are, for better or worse, "public health" issues. So, any state, or any locality if its state legislature permits that, can write their own laws on this subject.

There would be a "private property" issue if, as the Montgomery County, Maryland, Council sought to do, prohibit smoking in your own home. However, it is clear that such laws can reach places which are open to the general public, such as bars and restaurants.

I happen to think that such laws are destructive economically, and wrong as a matter of public policy. But as a matter of constitutional law, they are permissible for those states and localities who choose to enact them.

Congressman Billybob

Latest column: "We Have Seen the Light"

[MACVSOG68]

I see it the other way. Civil Unions are a function of the State and the State cannot compel any church to perform Gay Marriages.

I don't disagree, and I don't think what I stated contradicts this.

[bobjam]

The question is ownership. People are free to do what they want on their own property so long as what they do is not a violation of constitutional state law. For example, if it is legal for a 31-year-old to smoke, then he may do so in his own house. The only way the state can stop him is to either make it illegal for him to smoke or take his house (see Amendment 5). The state may ban smoking on public property for the same reason I can ban smoking in my house. The state is the owner.

Marriage is a privilidge, not a right. One does not exercise a right to marry, he applies for a marriage license. In reality, when one applies for a license, he is asking the people of the state if they approve of his proposed marriage. Through their elected officials, the people have established guidelines by which they will approve or disapprove of a proposed marriage. These guidelines deal with age, gender, polygamy and incest, and they vary slightly from state to state. Any proposed marriage that does not meet established guidelines would not be licensed.

[Publius6961]

Very interesting question. Unfortunately, there is no correct answers; only different opinions.

On a general level, a group cannot pass a law arbitrarily forbidding legal and ordinary actions by others, unless there is a provable claim of injury to others when engaging in said actions. Therein lies the rub.
In times past "proof" of injury was required and taken for granted. Today, simply the claim of injury is sufficient for many courts.
The issue is contentious and unresolved.

On the smoking issue, my belief is that there is more than enough proof that second hand smoke may be annoying, but no more "injurious" than strong perfume and fat, ugly men and women.

As for the gay marriage issue? This is a tougher cookie, but only because the expectation is non-sensical. The perverts insist on calling their relationship "marriage". That is the totality of the controversy.
Some would argue: what harm is there in letting them do it? None, really, but...
Can you imagine a world where every nut can go to court after buying a Chevy and insisting that the court allow him/her/it to officially declare it a Ford?

Stay away from my normal language and my normal mind!

[soundandvision]

Why not? As long as smoking is considered hazardous to others as well as the smoker, I'd be hard pressed to find a "right to smoke" any more than I can find a "right to an abortion".

I'm really shocked to hear this coming from a fellow freeper. But, it's your opinion.

Driving a car is hazardous to my health and other drivers and pedestrians, yet it's legal to do so. If you really feel that strongly about the hazards of smoking, why don't you contact your local legislator to make smoking illegal in your area, can't purchase or use. Of course, no politician will do this... they like the come back (I.E. tax revenue).

I'm not saying there can't be some amount of common ground. How about local municipalities simply asking establishments to post a sign with a cigarette for establishments that allow smoking. That way you know going in that this place allows it... and for establishments that don't have a cigarette with an arrow thru it next to door so the patron knows that this is a smoke free place.

Then, let the market have it's way. Why must a small segment tell all how to live their lives? That is my point when it comes to smoking. Not to mention issues involving small business' suffering, etc.

[soundandvision]

I'm not gay but -- I LOVE YOU! I've been screaming this for the longest time, the state shouldn't be 'marrying' people to begin with, it's a religous ceremony. The only function the state should perform is 'civil unions'.

Such a clear thinker -- are you my twin?

[Publius6961]

Why not? As long as smoking is considered hazardous to others as well as the smoker, I'd be hard pressed to find ...

There is a profound difference between "considered hazardous" and reality.

At least one appelate court and the biggest and longest lasting second-hand-smoke study is history (the UN WHO) have found the claims to be spurious and invalid (on a physical level).

Mind you, I do not deny potential heavy damage to the neurotic mind. But do you want to go down the slippery slope of "rule by the mentally impaired" ("nutocracy"?)

[soundandvision]

The question is ownership. People are free to do what they want on their own property so long as what they do is not a violation of constitutional state law. For example, if it is legal for a 31-year-old to smoke, then he may do so in his own house. The only way the state can stop him is to either make it illegal for him to smoke or take his house (see Amendment 5). The state may ban smoking on public property for the same reason I can ban smoking in my house. The state is the owner.

But what about the business owner (i.e. property owner) that wants to allow his/her patrons to smoke in their establishment but, by law, is not allowed to because of public fiat?

Here in Columbus Ohio we just had voting that passed that barred establishments from allowing ANY smoking on their premise. That goes against what your saying, yes?

[Publius6961]

All the questions about smoking are, for better or worse, "public health" issues. So...

I don't often disagree with the esteemed Foghorn Leghorn, but I must in this case.

Clearly there is a qualitative and important difference between the statement "...is a public health issue" and "...is claimed (fraudulently) to be a public health issue".

Suppose I claim that all left-handed blondes are a public health issue, and I get a consensus of most of my neighbors to agree, does that empower the "authorities" (legally) to have them all banned from my community?

Or is there a more transcendental issue involved?
Is the truth and reality now irrelevant?

[KC Burke]

If you find a church that will marry you to your maltese, have at it. But that doesn't mean that your state has to acknowlege it as a state recognized marriage. States may define what a marriage, or a tract of land, or a death certificate is and if you, your church or the local wiccan council want to define it differently you may. It just won't be recognized in a legal sense.

Likewise, self-government is all about restrictions. Even restrictions on legal items and their usage. I can't drive off-road in my liscened Jimmy in the local park. I can't play my legal boom-box in court. It is wonderful that since this is done through legislation, it can be undone.

When we have Judges, or metaphysical understandings of rights, by those feeling themselves annointed to decide matters for the public, making the decision, the public (self-government remember) can't decide to change it in the next legislative session.

The Constitution was written to create a limited Federal government and to limit its powers. It was not written as a metaphysical document to bestow rights. As it was being adopted, certain fears and compromises were added to further limit it and the usages of the Bill of Rights then led to thinking that all matters were deserving to be decided upon constitutionality when no single written document could ever serve that broad a purpose as to be the rosetta stone for all questions of local, regional and federal, as well as individual, limitations and freedoms.

[Congressman Billybob]

Individuals have "transcendental issues." Legislatures only have laws passed, or laws proposed but defeated. The moral/religious views of individual legislators may influence individual legislators as they vote. But as a whole body, there are only the record of ayes and nays on the subject.

The question has to do with constitutional authority to act. As long as the subject is within the ken of the legislature, and as long as the law passed has some arguable connection with that subject, the law is constitutional. That doesn't mean just, reasonable, or effective, but only constitutional.

The only way around that standard is to posit that the courts have a right to reject laws passed by the legislature (or by Congress), when the court is really, REALLY satisfied that the legislature acted wrongly. I do not concede that any court may legitimately do that, and I hope you feel the same way on that point.

John / Billybob

[MACVSOG68]

I'm really shocked to hear this coming from a fellow freeper. But, it's your opinion.

Apparently you are reading a bit more into my post than was intended. I stated that no constitutional right to smoke exists, period. If communities consider it harmful and want to regulate its use in public, then that is what those local governments are created for. If one doesn't like it, then vote them out.

Driving a car is hazardous to my health and other drivers and pedestrians, yet it's legal to do so

Yes, and it's a highly regulated activity to keep the hazards low. Bad analogy.

If you really feel that strongly about the hazards of smoking, why don't you contact your local legislator to make smoking illegal in your area, can't purchase or use.

Because I really don't care. My interest was in your question concerning constitutionality of banning or regulating smoking, not whether or not I would like it done.

I'm not saying there can't be some amount of common ground. How about local municipalities simply asking establishments to post a sign with a cigarette for establishments that allow smoking

They do, and they can do far more by completely banning smoking in certain areas. I am not a smoker and I really don't care, except in restaurants. If smokers want to harm themselves, fine. But where local governments want to help prevent them from harming others, I see no constitutional issues there.

[Cyber Liberty]

Hey, thanks for coming to my ping....