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Wayne, Joan, et. al.<br>
<br>
Let me preface my argument by making sure that everyone clearly
understands my position. My argument is not about minority rights but
legislative and judicial process. I am against both the death penalty
and
the Federal Marriage Amendment as well as the constitutional amendments
of the 13 states that now hold that marriage is between one man and one
woman - such as here in Montana. These 13 constitutional amendments are
the "blowback" to which I refer. I'll address that later. Recall
also, that I said that decree by judicial fiat was "bad government" and
I did not, nor do I now contend that it is wholly inappropriate. It
does have a critical place in the promulgation of law.<br>
<br>
The ruling that the San Francisco judge made was based on the the
rationale of Brown v the Board of Education where the judge
specifically
stated that the California statute explicitly violated the "serarate
but
equal" standard disallowed under the 14th Amendment via precedent.
The State of
California argued that California's domestic partnership laws were
explicit in equality of marriage rights hence there was no
discrimination. All rights being otherwise the same, the judge falls
into the matter of semantics.<br>
<br>
The judicial use of both the Due Process clause and the Equal
Protection clause have been used, as Joan noted, to reconstruct state
laws and the constitution in ways that are antithetical to the
construct of morality and democracy - as in what happened in Bush V
Gore. Morality, as we all know, is both subjective
and transient in its definition. Hence, the arguments about polygamy
and sodomy are relevant and at core to the conversation. Understanding
that there are those who feel that homosexuality is immoral, under a
democratic system we must allow that precept while not accepting it -
else we lose the
foundations of civil construct to nihilism. So it serves us to
discuss judicial activism in a broader context.<br>
<br>
One must needs also remember that judicial precedent is not in a vacuum
and the interpretations of one case affects another. In the case last
year, Lawrence V. Texas, where the Supreme Court (SCOTUS) struck down
the texas sodomy laws, Justice Kennedy use the 14th Amendment as the
primacy of his majority opinion. This gets a little confusing because
of the notion of what lawyers call "assumptive due process." This is
the legal concept that means that some things are so apparent that the
the arguments of due process or lack thereof are not necessary in
judicial arguments. From this we have had achieved the
extra constitutional "right" of privacy in a measured degree. As in
Lawrence v Kansas, Justice Kennedy inferred the right to privacy from
cases such as Roe v Wade. But their is no mention of "privacy" per se
in the Constitution. Kennedy went one step further in his opinion
stating that:<br>
<br>
"The case does involve two adults who, with full and mutual consent
from each other, engaged in sexual practices common to a homosexual
lifestyle.<b> The petitioners are entitled to respect for their private
lives. The State cannot demand their existence or control their
destiny by making their private sexual conduct a crime. Their right to
liberty to engage in the Due Process Clause gives them a full right to
engage in their conduct without intervention of the government. 'It is
a promise of the Constitution that there is a realm of personal liberty
which the government may not enter." <i>Casey, supra, </i>at 847.
The Texas statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of the
individual.<br>
<br>
Had those who drew and ratified the Due Process Clause 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 know times can blind us to
certain truths and later generation scan see that laws once thought
necessary and proper in fact only serve to oppress. As the
Constitution
endures, persons in every generation can invoke its principals in their
own search for greater freedom."<br>
<br>
</b>These are powerful words, but their implications are not in what
they say but what they don't say. In his dissent, Justice Scalia
writes:<br>
<br>
"<b>The Texas statue undeniably seeks to further the belief of its
citizens that certain forms of sexual behavior are 'immoral and
unacceptable." <i>Browers, supra, </i>at 196 - the same interest
furthered by criminal laws against fornication, bigamy, adultery, adult
incest, bestiality, and obscenity. <i>Browers </i>held that this <i>was</i>
a legitimate state interest. The Court today reaches the opposite
conclusion. The Texas statute, it says, "furthers <i>no legitimate
state interest</i></b><b> which can justify its intrusion into the
personal and private life of and individual,' <i>ante, </i>at 18
(emphasis added.) The Court embraces instead JUSTICE STEVENS
declaration in his Browers dissent, that 'the fact that the governing
majority in a State has traditionally viewed a particular practice as
immoral is not sufficient reason for upholding a law prohibiting the
practice," <i>ante, </i>at 17. This effectively decrees the end to
all morals legislation. If, as the Court asserts, the promotion of the
majoritarian sexual morality is not even a <i>legitimate</i> state
interest, none of the above mentioned laws can survive rational-basis
review."<br>
<br>
</b>Thus the issue of morality in sexual practices becomes now integral
to the interpretation of both the Due Process Clause and the Equal
Protection Clause. In the greater sense of "morality" then so does the
issue of gay marriage. Therefor, under precedence, the SCOTUS has left
open the door for equal protection of bigamy, adult incest, etc. This
is the argument to which I protest. Under the Court's interpretation,
all laws on sexual morality are now subject to review. Wayne's
argument that equal protection applies to homosexual marriage because
marriage is a legal contract is not true. The California statue
explicitly states that it is not. However, Kennedy et al, now call
into question the role of the majority in all situations where morality
is a question in the public debate.<br>
<br>
Wayne is right to the extent that it appears that the SCOTUS will
eventually make gay marriage ordained as legitimate by judicial fiat
under the 14th Amendment. I agree with that outcome. What is
happening though is states, fearful of judicial activism, are amending
their constitutions. Thirteen have done this so far and several more,
including California, have such referenda in the works. Again, the
blowback from judicial activism may ultimately cause a change in the
U.S. Constitution that will make the goal of equal marriage protection
for gays impossible. That, if you were paying attention, was my
initial objection to the California court ruling. Had the
Massachusetts court not made its activist decree last year, the natural
evolution of law accepting the rights of gays would have proceeded
without so much gnashing of teeth. Ultimately, such activism is
deleterious to the evolution of liberty and democracy.<br>
<br>
But such judicial activism is not a limited to liberal causes. Take
for example Bush v Gore. An activist court in effect stopped what was
an issue for Florida to decide per the Constitution. The court was
correct that the Florida Supreme Court had overstepped its jurisdiction
by overturning laws that the citizens of Florida had made law. The
SCOTUS, however, went too far by asserting its power and ending the
"due process" to which Florida citizens were entitled. The entire
matter would have been solved by Congress had it taken its course.
There are other cases decided by SCOTUS that put limits on tort
awards. This is decidedly bad from a constitutional perspective and
very much pro-conservative. So, as I admonished the courts for
activism, I do not do it from the standpoint of liberal v
conservative. And to my detractors I say that I propose that it is
better to have these things solved in a democratic forum of law making
rather than in the courts. That, however, is impracticable on some
issues. Therefor I say it's preferable but not always correct, such as
in instances of racial discrimination. <br>
<br>
I fear, however, that in this case it will cause harm to my objectives
in the long run and comes under the heading of "unintended
consequences."<br>
<br>
db<br>
<b><br>
</b><br>
Joan Opyr wrote:<br>
<blockquote type="cite"
cite="midBAY10-DAV33F1F65F32958F069549BC5570@phx.gbl">
<div>Dave Budge writes:</div>
<div><br>
"But just as the Supreme Court made unconstitutional the practice of
executing minors (the outcome with which I approve as I approve of the
outcome of the decision in question) the upshot is a loss of democracy
for residence of the states. Preferably the law should be changed by
democratic process. In other words, the day will likely come when a
law that you favor and is mandated by majority representation will be
overturned by judicial fiat. This is the wrong way to run a democracy
or a republic."</div>
<div> </div>
<div>I don't disagree that the California decision may (okay,
probably will) come back to bite us in the ass; it's always one step
forward and two steps back. But in terms of our federal Constitution,
that great document does give voice to the radical idea that the rights
of the minority may not be impinged nor infringed by the whim of the
majority. In other words, my civil rights cannot and should not be put
to a majority vote. I admit that this is an idealist's view of the
Constitution, but I would argue that any time you subject the rights of
any minority group -- be they gays and lesbians or racial or religious
minorities -- to a majority vote, then the minority group will
invariably lose. People are by and large change-averse. They will
cling to a status quo long past reason and even when that status quo
has begun to have a negative financial and political impact on the
majority. Witness the current argument over illegal immigrants. The
United States' agricultural economy would collapse without a steady
influx of illegal aliens, AKA migrant workers, from south of the
border. And yet in states like California, which clearly benefits from
this influx of workers, a majority votes in referendum after referendum
to deny these workers access to schools, health care, and driver's
licenses. This makes absolutely no sense in terms of California's
economy, but beating up on illegal aliens is a popular pastime. </div>
<div> </div>
<div>If we had waited for the majority in the South to integrate
schools and lunch counters voluntarily, right here in the year 2005,
Oprah Winfrey and I would still not be able to attend Calculus
class together nor could we share a pimento cheese sandwich at a
Southern Woolworth's. Minority rights can never be subjected to
a majority vote -- not if we, the minority, actually want those
rights. Instead, we are forced to rely on favorable judicial
interpretations of the 14th Amendment and hope that once change
has happened, the majority simply gets used to it. Is that
Machiavellian? Absolutely. I'm afraid it's also Realpolitik.</div>
<div> </div>
<div>Now, wasn't it a rather interesting and radical interpretation
of the 14th Amendment that put Mr. Bush in the White House back in
2000? I believe that the U. S. Supreme Court ruled 5-4 that Mr. Bush
would be irreparably harmed, i.e., he would lose the election, if the
Florida re-count were allowed to continue. In other words, the equal
protection clause was interpreted to apply to Mr. Bush the
individual rather than to the majority of Florida voters.</div>
<div> </div>
<div>Joan Opyr/Auntie Establishment</div>
<div><a href="http://www.auntie-establishment.com">www.auntie-establishment.com</a></div>
<div> </div>
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