Replies

"I agree with you on the bulk of your policy points, but are you arguing that SCOTUS should decree that gays have a constitutional right to state sanctioned "marriage" or "civil unions," with benefits wholly equal to those affored heterosexual couples in a marriage?"

There is no such thing as a "gay" or "homosexual" citizen in the eyes of the Court, and the same people who argue against the idea of hate crime should not then turn around and argue denial of "rights" based on sexual orientation, by doing that, they give weight to the argument favoring the need for such hate crime legislation.

My argument is that neither States, or the Federal government have the Constitutional power to restrict two able-bodied, consenting adult citizens, from entering into the civil contract known as marriage, performed by government licensed magistrates, because in order to justify the refusal to license the union, either the State, or the Feds must fall back on a reason wholly based on religious beliefs as every other "societal" argument fails miserably to hold up to the light of day.

"You have also IMO not really grappled with the argument on which John and I do agree, that "resolving" these matters by judicial fiat lends to the coarsening of the public square, irreconciable bitterness by the losing side, and such downside legacies as making judicial confirmations a partisan food fight."

We don't mind fiat when the decision favors us.

I don't have a problem with the Court's findings, I believe that there is a need to provide citizens with a legal forum to fight what they view as inequities in the law as they apply to us as individuals. Expecting politicians to enact or overturn laws that are detrimental to a minority of the voters, at the expense of earning the wrath of large voting blocks is simply silly, sometimes fiat is all that's left.

I bet that there would not be a soul in FR arguing against SCOTUS making abortion illegal in the US by fiat.

My argument is that neither States, or the Federal government have the Constitutional power to restrict two able-bodied, consenting adult citizens, from entering into the civil contract known as marriage, performed by government licensed magistrates, because in order to justify the refusal to license the union, either the State, or the Feds must fall back on a reason wholly based on religious beliefs as every other "societal" argument fails miserably to hold up to the light of day.

Nonsense. Massachusetts defined, by default, civil marriage to involve the union of one man and one woman.

A runaway liberal lawless court made a preposterous ruling to the contrary.

There is no such thing as a "gay" or "homosexual" citizen in the eyes of the Court,

Agreed. Mostly because the concept of 'homosexual' as a distinguishing characteristic like race is bogus. 'Homosexuality' is a pattern of behavior (which BTW is indulged in only by the mentally ill)

neither States, or the Federal government have the Constitutional power to restrict two able-bodied, consenting adult citizens, from entering into the civil contract known as marriage,

Why did you leave out able minded? are the mentally incompetant able to marry? (you never addressed this from above)

The Federal Government has the power and the Authority under the Constitution to promote the general welfare of the United States. (falls under Article 1, section 8, paragraphs 1 and 18, and Article II Section 3) Any activity that is proven to damage the general welfare can rightly be controlled or banned outright. 'Homosexual' activity is a serious health hazard, physically, mentally and socially. It is a contagious disease that must be controlled as strictly as we once controlled TB or leprosy

performed by government licensed magistrates, because in order to justify the refusal to license the union, either the State, or the Feds must fall back on a reason wholly based on religious beliefs as every other "societal" argument fails miserably to hold up to the light of day.

The fact that homosexual behavior is deadly holds up pretty strongly to the light of day. The evidence has been gathered and paints quite a damning picture of this disease. See scripter's database. (referenced in my last post for your convenience)

The additional fact that this disease does not promote the general welfare and that marriage between one man and one woman does is also well proven.

Well Luis, you are a judicial activist on steroids. What I take it you are saying is that drawing a distinction between laws that pertain to the marriage of two of the opposite gender versus two of the same gender, lacks a rational basis, and that therefore drawing such distinction is indeed unconsitutional. Wow. The court on only a couple of instances has ever stuck a law down as lacking a rational basis, and in both instances, it was because the court was being dishonest (shocking I know), and what they really meant, but didn't have the guts to say, is that the distinction being drawn was being viewed as a suspect class by the court. (One was a decision striking down a zoning law that restricted the use of private homes as old age homes, or for homeless youth, or for nutters, or something.)

Other than that, when SCOTUS or a federal appellate court applies the rational basis test, it means that the law is going to be upheld. That is because almost every legal distinction that is incorporated into law has some rational basis, because the folks that pass laws are not irrational nutters (nutters in the sense that they have no idea about what means are potentially connected to intended ends).

If you start using the rational basis test everywhere as a tool for striking laws down, then the legislature really does have an attenuated role, or should have, in our governance, on your planet.

There are of course all kinds of rational bases for one to draw a distinction between opposite sex versus same sex marriages - cost, tradition (we have always done it that way is a rational basis), the need to foster procreation in a good environment along with the attendant impracticability of sorting out the fertile from the non fertile, a concern that giving legal sanction to marriage of same sex couples might encourage homosexual behavior that is a health risk, and empirically leads to less happy lives, etc. One does not need to endorse any of these rationales for the distinction as being persuasive from a policy standpoint (and I do not), to admit that they are clearly a rational bases for the polity to draw the distinctions.

And there you have it.