Posted on 07/20/2006 10:13:56 AM PDT by SmithL
Raleigh, N.C. -- A state judge has ruled that North Carolina's 201-year-old law barring unmarried couples from living together is unconstitutional.
The American Civil Liberties Union sued last year to overturn the rarely enforced law on behalf of a former sheriff's dispatcher who says she had to quit her job because she wouldn't marry her live-in boyfriend.
Deborah Hobbs, 40, says her boss, Sheriff Carson Smith of Pender County, near Wilmington, told her to get married, move out or find another job after he found out she and her boyfriend had been living together for three years. The couple did not want to get married, so Hobbs quit in 2004.
State Superior Court Judge Benjamin Alford issued the ruling late Wednesday, saying the law violated Hobbs' constitutional right to liberty. He cited the 2003 U.S. Supreme Court case titled Lawrence v. Texas, which struck down a Texas sodomy law.
"The Supreme Court decision in Lawrence v. Texas stands for the proposition that the government has no business regulating relationships between two consenting adults in the privacy of their own home," Jennifer Rudinger, executive director of the ACLU of North Carolina, said in a statement.
(Excerpt) Read more at sfgate.com ...
Yeah, you should have been on a thread on an Arkansas law that forbid smoking in a car with children. You would have thought slavery had been reintroduced.
"The Supreme Court decision in Lawrence v. Texas stands for the proposition that the government has no business regulating relationships between two consenting adults in the privacy of their own home," Jennifer Rudinger, executive director of the ACLU of North Carolina, said in a statement.
Nice homosexual agenda platitude of propaganda --actually, Lawrence simply declared that the government could not regulate private sexual activity between two consenting adults because such regulation would require invading the court created privacy penumbra...
You're correct that attitudes do change over time. They sometimes change for the better, sometimes for the worse. However, that's not constitutionally relevant. The fact that "x" was unpopular 100 years ago, but is popular today, doesn't make "x" suddenly a part of the Constitution. The only way for "x" to get into the Constitution is for us to put it there via an amendment.
Joseph Biden uses the "times have changed" argument all the time, and it makes no sense. Ask him why no one ever found a right to abortion or sodomy in the Constitution for 200 years of American history and he'll stammer out that "back then" those practices weren't acceptable, but "times have changed". But the thing is, if times have changed, you don't need the Supreme Court to forcibly impose popular policies.
At the founding of the country, women were thought unqualified to vote. Attitudes changed, and that was reflected by states voting to give women the vote, and ultimately by the legitimate ratification of the 19th Amendment. Some arrogant judge didn't shake his fist and announce himself the determiner of the propriety of our laws, and order nationwide female suffrage on the grounds that "times have changed".
If times have changed, you don't need the judge. If you need the judge, times haven't changed.
I understand some of you oppose the fornication law. But the solution would be to ask the legislature to change the law. It clearly isn't unconstitutional by any possible logic. The men who wrote the Bill of Rights would have applauded that law.
We're now governed by unelected judges because every little law on the books that liberals don't like gets hauled into federal court, with the frequent result being yet another expansion of federal power at the expense of local autonomy, and a transfer of power from the voters to unelected judges who decide which laws to uphold and which to strike down based on nothing more than their personal whims.
People are justifiably aghast that some of these judges are now using foreign court rulings and documents such as the EU Consitution to void some of our laws. They wonder where the court could possibly have gotten the idea that they can do that. Well, it's just a logical extension of the judicial activism of the past few decades. If all that matters is finding some way to get rid of a law that liberals dislike (sodomy, fornication, contraception, or whatever), and if "old fashioned" things such as jurisdiction, original intent, and judicial restraint are just trash to be tossed aside, then why not go all the way? Why not invite the UN to come in and review our laws for sexism and homophobia?
Here is the opening of Scalia's dissent that was quoted:
JENIFER TROXEL, et vir, PETITIONERS v. TOMMIE GRANVILLE
on writ of certiorari to the supreme court of washington [June 5, 2000]
Justice Scalia, dissenting.
"-- In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage."
The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.
Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right. --"
Read the bold part kiddo.. -- In effect Scalia is admitting (the "in my view" bit) that unenumerated rights exist -- and that some State 'laws' do infringe on those rights. --- He just denies that he has any responsibility to strike down such infringements. -- "-- I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to [such] laws. --"
I'm taking the position that Scalia is wrong to dodge his clear duty, -- to strike down a socalled 'law' that he admits is an infringement.
He took an oath to protect & defend the Constitution, not to protect States that write infringements upon individual rights.
I agree with that except for the rights issues we have discussed. The Ninth Amendment certainly recognized that all rights of individuals were not enumerated.
Joseph Biden uses the "times have changed" argument all the time, and it makes no sense. Ask him why no one ever found a right to abortion or sodomy in the Constitution for 200 years of American history and he'll stammer out that "back then" those practices weren't acceptable, but "times have changed".
Perhaps the question is who changes culture, the people or the state? If it is the people, then it is the state that must follow suit. If it is the state, then you may be right. I look to the state to first protect the rights of all of its citizens, then promulgate laws protective of society. You know, the old helmet law argument. When the state delves into moral issues more properly the responsibility of the church, it risks failing that first responsibility.
At the founding of the country, women were thought unqualified to vote.
Yes, and only white male property owners were qualified. It shows you that tradition does not by itself make something right.
I understand some of you oppose the fornication law. But the solution would be to ask the legislature to change the law. It clearly isn't unconstitutional by any possible logic. The men who wrote the Bill of Rights would have applauded that law.
If the ability to cohabitate is part of liberty and the pursuit of happiness, I would differ with that. Of course the law should be negated, but there are lots of old outdated laws on the books. Few would consider trying to apply them. Occasionally, one shows up and must be properly dealt with, as was this case.
We're now governed by unelected judges because every little law on the books that liberals don't like gets hauled into federal court, with the frequent result being yet another expansion of federal power at the expense of local autonomy, and a transfer of power from the voters to unelected judges who decide which laws to uphold and which to strike down based on nothing more than their personal whims.
I certainly won't argue that. Much more of that under the commerce clause than rights issues.
People are justifiably aghast that some of these judges are now using foreign court rulings and documents such as the EU Consitution to void some of our laws. They wonder where the court could possibly have gotten the idea that they can do that. Well, it's just a logical extension of the judicial activism of the past few decades. If all that matters is finding some way to get rid of a law that liberals dislike (sodomy, fornication, contraception, or whatever), and if "old fashioned" things such as jurisdiction, original intent, and judicial restraint are just trash to be tossed aside, then why not go all the way? Why not invite the UN to come in and review our laws for sexism and homophobia?
I agree with much of what you say here, except for the sodomy, fornication, contraception issues which decisions belong to the consenting adults involved. But yes, Gingrich in his new book goes after the judges who think international laws have some merit. As for original intent of any part of the Constitution, a look at the anti-federalist papers show how difficult it is to find original intent. Certainly it was not the Federalist Papers which were little more than an infomercial to sell the Constitution, and represented only a couple of the hundreds of opinions at the time. So consequently we much look to the language as our guiding principle.
(Go Israel, Go! Slap 'Em, Down Hezbullies.)
Precisely.
The 16-year-old boyfriend was abusive to the mother, so she called the police, and the kid was charged with violating Georgia's law against fornication., a law that had been on the books since 1833. He was convicted and sentenced to write an essay on why his conduct was irresponsible.
Instead, he got an ACLU lawyer and had the conviction thrown out. He literally thumbed his nose at the parent who tried to call him to account (very like our aging adolescent FReepers do on threads like this one).
The message the court gave to our kids was contained in a banner headline in the local newspaper: 'Fornication' OK for 16-year-olds, Ga. Supreme Court rules . . .
Many people on this forum think that is a message we should be giving our kids, but they would never ask a state legislature to send it. They would be too ashamed. But, like this loathesome child, they would not hesitate to rant and rave about their personal privacy and then get an ACLU lawyer to back them up. As the kid crowed to the press when he got off the hook: "Invading personal privacy just isn't right. It now goes that way for everybody." In other words, all you guys who have spent your lives trying to make decent people of your children, you are screwed - just like your daughters! HA, HA, HA!
Now you've finally posted the quote in context. Good. What Scalia is saying is that it's up to the voters of each state to determine which inalienable rights exist under the 9th Amendment. He has an opinion on which ones do and which ones don't. As an American citizen, he's entitled to that opinion, but so are we all. He's arguing that his status as a judge doesn't empower him to impose his opinion on the people when there is no constitutional authorization for it. The 9th Amendment is a negative amendment, stopping the court from interfering if states recognize unenumerated rights, not empowering the court to order states to recognize such rights.
That defies the definition of an unalienable right. If it is in fact a right, not a privilege, then neither the voters nor the state itself has any power to deny that right. The whole concept of the Bill of Rights which includes the 9th Amendment was to protect the minority from the tyranny of the majority, not the other way around. And Scalia has an obligation to recognize it and to protect it. That is his job. Morally, he may not like it, but he cannot simply make believe it's none of his business.
The 9th Amendment is a negative amendment, stopping the court from interfering if states recognize unenumerated rights, not empowering the court to order states to recognize such rights.
Where does it state that? I still believe you are confusing privileges with rights.
I'm afraid you're the one who's arguing that the state is empowered to change the culture. You see, all of these laws that liberal activist judges strike down can be changed by the people or their elected representatives at any time. Texas got hauled into court in the Roe lawsuit, and the result was that the judges forced Texas and its people to accept legalized abortion. Senator Biden justifies that because "times had changed", and allegedly by 1973 the "people" wanted legal abortion. But if they did, all they had to do was tell their legislature to legalize it, or gather signatures and put a referendum on the ballot to repeal the state's pro-life laws.
In other times, if the people change their attitudes, and thus the culture changes, there's no need for a judicial fiat. If the people of North Carolina want to shack up, then all they have to do is let their legislators know, and they'll repeal the anti-shacking up law.
In judicial activism, it's the state that is ordering the people to change their attitudes and their culture. Margaret Marshall, the Massachusetts judge who wrote the decision forcing the state to sanction gay "marriage", declared that marriage is an "evolving" institution and that it was thus time for it to evolve to include homosexuals. But even if one accepts that marriage is an evolving institution, it's not her place to evolve it for us. It's the place of the people of Massachusetts or their elected representatives.
If the voters of Massachusetts wouldn't legalize gay "marriage" via a referendum, or wouldn't stand for their legislators doing it, then marriage had NOT evolved to include homos, unless you assert that Judge Marshall is some uber-citizen who has the unilateral power to determine what our culture will be. That's clearly what she thinks she is, and she's not unique among our black-robed masters.
This is a state law.
Where does it pertain specifically to Raleigh, Winston-Salem, etc?
What business is it of the state if unmarried people live together. What about all the college students sharing dorms. Should they be arrested because they don't fit your skewed moral template?
I have come to the conclusion that Liberal-tarians are the most bizarre of creatures--those who would use imperial state power to mandate local anarchy. Great idea, guys.
More knee-jerk, ad-hominem Libertarian remarks.
Try refuting Libertarian points without resorting to childish names. You can't. You and the hyper-religious crowd don't have a prosthetic leg to stand on.
The 9th Amendment says that the enumeration of certain rights (in the Bill of Rights) shall not be construed to deny or disparage others retained by the people.
But there are infinite number of such potential rights, some of which contradict one another. The founders understood that, which is why they wrote the 9th and made it NEGATIVE, a LIMITATION on what the court could do. The idea was to let the people fight it out in their legislatures to determine which of the potentially infinite number of rights would be sanctioned in each state. Thus, the court couldn't STOP a state from granting women voting rights, nor could it force a state to grant such rights (until the 19th Amendment, of course).
Culture changes. The question is how the state reacts to that change. For example, in most states, archaic laws against fornication, cohabitation and other such outdated laws are usually abandoned, because our culture has become more accepting of such privacy issues even if we don't condone them, and many involve the right to privacy. Occasionally, a state will refuse and if it involves a right to privacy, due process, or equal protection, the state will normally lose.
We are probably both in agreement on the abortion issue, and I don't agree with every court decision. Who does? Many involving religious symbols and speech appear absurd to me. Others involving the commerce clause likewise appear quite a stretch at times.
Margaret Marshall, the Massachusetts judge who wrote the decision forcing the state to sanction gay "marriage", declared that marriage is an "evolving" institution and that it was thus time for it to evolve to include homosexuals.
Just as with Massachusetts, the nice thing about a Supreme Court decision, it can be overturned by amending the Constitution. And it will be in Massachusetts, just the way it was designed to work.
If the voters of Massachusetts wouldn't legalize gay "marriage" via a referendum, or wouldn't stand for their legislators doing it, then marriage had NOT evolved to include homos, unless you assert that Judge Marshall is some uber-citizen who has the unilateral power to determine what our culture will be.
No, I doubt marriage has evolved. But her ruling was based not on the evolving marriage, but because she believed that denying it to a class of people violated the Constitution of the state. So the answer is to amend the Constitution. In any case, when dealing with rights issues, the court should not look at a popularity poll, since rights issues are almost always involving those not in the majority.
Sure, rights always belong to the person, not the state...or the voters.
But there are infinite number of such potential rights, some of which contradict one another. The founders understood that, which is why they wrote the 9th and made it NEGATIVE, a LIMITATION on what the court could do.
At the time of the Bill of Rights, the founders had no concept that the court would be involved at all. Marbury wasn't decided until the early 19th Century.
The idea was to let the people fight it out in their legislatures to determine which of the potentially infinite number of rights would be sanctioned in each state.
The fact that a right is not enumerated doesn't somehow mean it is not a right.
Thus, the court couldn't STOP a state from granting women voting rights, nor could it force a state to grant such rights (until the 19th Amendment, of course).
The first part is correct. The last we will continue to disagree on.
"-- I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to [such] laws. --"
I'm taking the position that Scalia is wrong to dodge his clear duty, -- to strike down a socalled 'law' that he admits is an infringement.
He took an oath to protect & defend the Constitution, not to protect States that write infringements upon individual rights.
Now you've finally posted the quote in context. Good. What Scalia is saying -
Is posted above. -- You're 'misunderstanding' him is a ploy.
- is that it's up to the voters of each state to determine which inalienable rights exist under the 9th Amendment.
Amazing 'theory' you have. The 14th makes it clear that all of our inalienable rights to life, liberty, or property cannot be abridged or denied by State gov'ts, or by any others.
He has an opinion on which ones do and which ones don't. As an American citizen, he's entitled to that opinion, but so are we all.
'We the people' are not entitled to ~enact~ laws that deprive others of life, liberty or property without due process. -- Scalia is hired to decide when such infringements on due process take place.
He's arguing that his status as a judge doesn't empower him to impose his opinion on the people when there is no constitutional authorization for it.
Lame argument, as the USSC has no power to enforce or 'impose' his decisions. The other two branches have that power.
The 9th Amendment is a negative amendment, stopping the court from interfering if states recognize unenumerated rights, not empowering the court to order states to recognize such rights.
"If" states recognize rights? -- Read Article VI. -- States & all their officials are bound to support the Constitution [and the rights therein] as our supreme Law of the Land.
Get it yet?
The number of unenumerated rights that anyone can demand is infinite. Scalia understands that it's not his place to say, okay I agree with unenumerated rights A, B, and C, but don't agree with unenumerated rights D and F, so I'm going to order states to recognize the first three, but not the last two. Unfortunately, other judges aren't so restrained.
What you want is very simple. You want a judge who will declare every possible right which you personally favor, but is not in the Constitution, to be under federal jurisdiction. Of course, if you don't personally favor that right, you have no interest in taking it any further. You want arbitrary government. If tpaine favors "x", then it's an inaliable right and Justice Scalia damn well better enforce it. If tpaine opposes "y", well then it isn't really a right.
I favor amending the Constitution in Massachusetts, however, the preferable thing to do would be to impeach the four judges for violating their oath of office. No possible "interpretation" of the state constitution could produce something such as that ruling. The four judges literally took it upon themselves to redefine a cultural tradition with no legal authority whatsoever.
The sad thing is that we're having to amend our state constitutions to keep them as they are. Not a single state constitution anywhere in the country guarantees a right to gay "marriage". Don't you think someone would have noticed if such an amendment had ever been adopted? What judges like Margaret Marshall do is go on search and destroy missions through their constitutions until they find some vague or general clause ratified 200 years ago, and they then "interpret" it to mean whatever they desire, be it gay "marriage", abortion on demand, ripping the cross out of the public square, or whatever.
If judges can do that then there's really no point in having a written constitution in the first place. The idea of a written document is that it can't be changed except by amendment. It isn't supposed to change every time someone comes up with a revolutionary idea that can be forced, via a stretched "interpretation", into some century-old amendment that A) had nothing to do with the revolutionary new issue, and B) wouldn't have been ratified if it did.
No one would do this with literature, and it's FICTION. No one would say that the word "gay" in a 19th century novel refers to homosexuality, because back then it didn't. And if some general clause calling upon the state to recognize "equal rights" was ratified at a time when no one would have ever dreamed of such a thing as gay "marriage", and if they had they'd have been sure to amend the provision to exclude it, the court has no right to "interpret" it as meaning gay "marriage".
Remember, the burden of proof is supposed to be on the court. In a criminal trial, it means one is innocent until proven guilty. In constitutional law, the assumption is that we the people have a right to govern ourselves, and that it can only be voided if the court PROVES that the laws we (or our elected reps) have passed violate the constitution. Otherwise, our right to self government should stand. The burden of proof should be on Margaret Marshall to PROVE that whatever provision of the constitution she cited was indeed intended by its authors and ratifiers to mandate state sanctioned gay "marriage". Otherwise, every constitution that exists has a few clauses that could be interpreted to mean anything.
Nice post.
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