FNC: California law banning gay marriage is unconstitutional

Fox News | March 14, 2005

[jwalsh07]

It's not arbitrary at all, and any claim otherwise is entirely disengenuous. Science tells us that the brains of people under a certain age are still developing. That, after all, was the crux of the USSC's recent ruling against the death penalty for minors. Same premise applies.

In California any minor can consent to kill the baby in their womb. Science tells us that taking a life is a bit more critical than entering into a civil contract.

[Clint N. Suhks]

Science tells us that the brains of people under a certain age are still developing.

Exactly. Power of attorney, adult emancipation and capacity to understand right and wrong are all measured by IQ if you did any real research on it. Generally between 70-75. And, if the legislature passed a law to allow those who could pass an IQ test with better scores than those you'd see kids as young or younger than age 10 having the capacity to consent. It's arbitrary at ages 15-16 and up.

[Aetius]

"And neither you nor 'most Americans' need to alter your opinion one whit, under this ruling or under any other that I would approve. If you don't approve of same-sex marriages, don't recognize them. Just don't make it legally impossible for anyone to recognize them."


If gay unions receive legal recognition, then everyone under that jurisdiction does in fact have to recognize them everytime they pay a tax into that jurisdiction.

But anyway, does that mean you support the judicial imposition of gay marriage/civil unions, or in other words, the forced societal recogntion of them by as few as 5 people acting w/o any regard for the original intent of the Constitution.

[jwalsh07]

So gay "Mr. B" can't marry gay "Mr. C", but it is OK for him to marry gay "Ms. D"?

That's correct, the law doesn't discriminate based on what you do or don't do with your genitals.

A lot of homosexuals are in marriages of convenience. They do so to get the benefits that a heterosexual person can or to hide their proclivities from others. I find that more repugnant than two homosexuals in a committed relationship.

So what? You get a majority of people in your state to agree with you and you can assuage your problem of finding something repugnant.

Shouldn't society promote stable, loving families?

Society does promote stable, loving families and the institution they have chosen to do that with is heterosexual marraige.

Doesn't that benefit us all?

Heterosexual marriage? Yes, all the data suggests that children benefit most when raised by Mom and Dad.

[Raycpa]

If the parties to a proposed marriage aren't legally able to give consent, there's no marriage.

Just obtain parental consent. I'm sure Michael Jackson would be able to get it.

[OhioAttorney]

And you conveniently over looked the point. If the legislature arbitrarily changed the age of consent to 12 then it would be legal. I.e. arbitrary law. Then you'd have to agree then, right?

I don't see why I couldn't disagree. And what I'd be disagreeing with is the lowering of the age of consent to twelve, not this or that definition of marriage.

If I've ignored your point, I'm not aware of it, but I'm still not sure what it is.

[I]t's the states right to discriminate on the basis of who can or cannot be married, i.e. choosing one form over another.

As I indicated in my earlier post, I'm not persuaded that these two things are the same. Aside from that, though, I tend to agree with SilentServiceCPO that states would still have a reasonable basis for not 'registering' marriages among close relatives.

[Raycpa]

And what I'd be disagreeing with is the lowering of the age of consent to twelve

So, a sister and brother age 16 is okay to get married?

[jwalsh07]

I'm glad you've brought this up, because it's a huge issue -- one that pretty clearly implicates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

There are two distinct marital rights as regards testimony; one is the privilege protecting private spousal communications, the other is the right to refuse to testify against one's spouse. Right now, so far as I know, same-sex couples do not enjoy either of these protections anywhere in the U.S. except (I assume) Massachusetts and (now, I further assume) California.

Not only is it not a HUGE issue, it's not an issue at all. My Grandmother and Aunt used to live together. Neither got the privileges. It was in no way unconstitutional.

[SilentServiceCPO]

Thanks for the reasonable response. I understand your point, and I thought I addressed it earlier. Marriage as an institution, and specifically, the protections and benefits it affords its participants, exist to promote procreation and provide protection and support for offspring. Assuming this, then why don't we prohibit marriages where one of the couple is unable to contribute to procreation? i.e. An elderly widow and widower, a woman who has had a hysterectomy, or a man who is impotent?

[Raycpa]

why don't we prohibit marriages where one of the couple is unable to contribute to procreation?

Because the potential exists for nature (God) to create a child. Remember Sarah?

[Aetius]

Well this is only as issue that is cared about at all because of the Left's continuing insistence on using the Courts to do for them what is rejected by the proper legislative and popular authorities in most areas. The fact that the Left can't tolerate a situation where their views are only law in the relatively few places where they can be enacted democratically is the root of the problem here.

That Spears and Lopez make a mockery of marriage does not in anyway justify the actions of these judges.

People should vote with their feet. If a homosexual does not like that most people in most states choose not to recognize their relationships, then they should move to a state that does. A handful has or will voluntarily choose to do so. California already had domestic partnership laws, and they would only have been strengthened over the yrs just up to the point where it was gay marriage w/o the word 'marriage.' The same would be true for several other states, especially across the Northeast. The rest of the states who would not recognize any gay unions no matter what euphemism for gay marriage is used should not have policy dictated to them by a few judges.

[jwalsh07]

Aside from that, though, I tend to agree with SilentServiceCPO that states would still have a reasonable basis for not 'registering' marriages among close relatives.

Do you mean to say you've found a special right in some penumbra based on what you do with your jill or johnson?

Because certainly if the new paradigm is "loving relationship" then relatives fill that quite nicely and should be able to get "married" to access the government treasury.

Same for a Grandpa and his grandchild. Why not marry, so long as parental consent is granted, so that the grandkid can collect SS Survivors benefits in perpetuity?

[Kretek]

They actually can do that as long as they claim it violates the federal constitution in some way. Suppose a state passes a referendum and amends the state constitution to allow slavery, or confiscation of your firearms, or changing the governorship into a dukedom and making it a hereditory office, or making Islam the state religion -- then would you complain that the judge found the amendment to the state constitution unconstitutional (under the federal constitution)?

Interesting thought. Of course, the hereditary monarchy thing wouldn't fly based on Article 4, Section 4 of the U.S. Constitution. I wonder how Article 4, Section 2, Clause 1 would play with the Fourteenth Amendment and the First, Second, and Thirteenth Amendments in regards to your other hypotheticals..?

[jwalsh07]

Just more judicial fascism and of course their cheerleaders here at FR.

[DBeers]

Thanks for the reasonable response. I understand your point, and I thought I addressed it earlier. Marriage as an institution, and specifically, the protections and benefits it affords its participants, exist to promote procreation and provide protection and support for offspring. Assuming this, then why don't we prohibit marriages where one of the couple is unable to contribute to procreation? i.e. An elderly widow and widower, a woman who has had a hysterectomy, or a man who is impotent?

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[OhioAttorney]

If gay unions receive legal recognition, then everyone under that jurisdiction does in fact have to recognize them everytime they pay a tax into that jurisdiction.

To the extent that taxes are used to provide marital benefits, yes. That's a problem, all right, but it's a problem common to all taxes; there's no way to make sure every dollar gets spent only on things that the specific individual who paid in that dollar would have approved.

But anyway, does that mean you support the judicial imposition of gay marriage/civil unions, or in other words, the forced societal recogntion of them by as few as 5 people acting w/o any regard for the original intent of the Constitution.

You mean, have I quit beating my wife yet ;-) ?

I believe that a principled 'judicial activism' in defense of liberty rights, practiced through the exercise of judicial review, is exactly what the relevant original intent of the Constitution was; I think the right of consenting adults to marry as they please is a right deserving of that sort of protection; and I don't think the exercise of judicial review, on this subject or any other,amounts to an 'imposition' of anything on anyone in any Constitutionally relevant sense. The courts don't demand that states recognize marriages at all -- just that if and so long as they do so, they do it within the Constitution.

[Kretek]

Religious marriages recognized by private organizations are the business of those private organizations, but state-registered civil marriages -- whether called 'marriages' or 'domestic partnerships' or 'civil unions' or whatever -- should be available to same-sex couples for as long as they're available at all.

Well, I'd go a bit further - I am not sure that marriage of any sort should confer any legal benefit. It's discriminatory against the shy.

[SilentServiceCPO]

As I posted earlier in this thread, I believe strongly that the best place for a child is with his biological mother and biological father in a stable marriage. I also believe that traditional, heterosexual marriage is, has been, and always will be, the cornerstone of our society. I don't believe that even one person will "become" gay if homosexual civil unions are the law nationwide.

What I do believe is that the furor over gay rights, the marches in the streets, the screaming and yelling that tends to make this issue stand out in society, will die down. I believe that promiscuous, homosexual sex will lessen. I believe that a stable, gay couple living next door to me is preferable to a dysfunctional abusive couple. And I believe that this society should not give preferential treatment to heterosexuals just because they are heterosexual. Someone earlier in the thread said gays will want "special status" and "preferential treatment" if gay unions are recognized. I think that this is 180 degrees out. I believe that we will stop the uproar, and then we can all get down to just living our lives.

[doug from upland]

Many companies offer insurance to gay "couples." If not at their work, other plans are available. Gays don't want tolerance, they want equivalence. That is too much to ask.

[jwalsh07]

I believe that a principled 'judicial activism' in defense of liberty rights, practiced through the exercise of judicial review, is exactly what the relevant original intent of the Constitution was;

Whose principles? Your's, the Justices or the the Europeans? Cripes.