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  1. #1
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    Default Is Gay Marriage a Civil Rights Issue

    With the court overturning Prop 8 in CA, I'm wondering about the legal grounds for "Gay Marriage". Gay right proponents contend it's a "civl rights" issue where society cannot impose it's own biased views.

    I was listening to Christ Matthews on MSNBC "Hard Ball", and he added reasons of "the time has come into the 21st century", and the "sky would not fall allowing Gay Marriage".

    There's a co-worker of mine, a gay rights supporter, who disagress with my view that "Judeo Christen" society has set the norm at one man one women. I have no problems with society setting certain boundaries, and I have no problems with the newer "civil union" either.

    Then recently, this same co-worker said she spoke to an older Chinese gentlemen at our senior center. and from what she could gather, sounded like his dad had two wives. She said she's confused and asked me if she heard it wrong, or if he meant his dad married twice.

    I said he meant he had two wives at the same time, and I also said my grandpa had 2 wives at the same time, back in the 1930's. In China, the first wife is called the "big wife", and the others after that is called 2nd wife, third wife etc.

    She expressed shock, but I reminded her that I couldn't understand why she think gay marriage is OK, it's a civil rights issue, why then a man can't take a second wife on "civil rights" grounds. In China, and in Muslum societies, they had polygamy for thousand of years, and the sky hasn't fallen yet. In fact, more than one wife had been the norm in many societies.

    So if society decides that it's no longer ONE man ONE women, it can be ONE MAN -ONE MAN, or ONE WOMEN-ONE WOMEN, then what is so sacred about the number "ONE"??

    Maybe somebody can tell me I am if society here isn't enlightened enough yet to move further, or is it still burdened by the notion that marriage is still "one of something" to "one".

    And bigamy is still a crime, as was homosexuality and interracial marriage not that many years ago. Am I missing something??

  2. #2
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    Default Re: Is Gay Marriage a Civil Rights Issue

    e
    Quote Quoting SChinFChin
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    And bigamy is still a crime, as was homosexuality and interracial marriage not that many years ago.
    There is a federal law on bigamy/polygamy.

    From past research I do know the Utah Constitution of 1896 banned Polygamy due to the Mormon culture.

    Interracial marriage bans were overturned by SCOTUS in 1967.

    Homosexuality was never crime, just the acts, buggery, felatio, etc. Of course that was DEcriminalized by SCOTUS in 2002.

    The SCOTUS has already ruled in 1971 that same sex marriage prohibitions do NOT violate the federal constitution's 1, 9 and 14th AM's.

    Walker in his recent ruling did not even mention Baker v. Nelson.

    This is one area ripe for review when appealed.

    Civil rights/liberties are all in the mindset of the viewer.

    How are abortions, and I do NOT want to turn this into an abortion thread, a civil rights issue, but the SC ruled it as so.

    There is NO mention of a "Right to Privacy" in the Constitution.

    I oppose gay marriage as a civil rights issue.

  3. #3
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    Default Re: Is Gay Marriage a Civil Rights Issue

    marriage is considered a civil rights issue due to the property law wrapped around it.

    Granted, it also involves little things like children... but I wasn't there.

    I wouldn't believe Chris Matthews if he told me my clothes were on fire and I could feel the heat and smell the smoke.

    He is just as bad as any of the OTHER hosts with an agenda and a thinly veiled sense of fair play.

  4. #4
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    Default Re: Is Gay Marriage a Civil Rights Issue

    I think that by definition gay marriage is a civil rights issue. Even if the courts conclude that there's no federal constitutional protection of gay marriage, the courts will apply a civil rights analysis.

    A denial of cert has no precedential value whatsoever, and the Supreme Court has periodically gone out of its way to remind litigants not to cite denials of cert in lieu of substantive legal authority. See, e.g., United States v. Carver, 260 U.S. 482, 490 (1923) ("The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times. Therefore it is unnecessary to consider whether the libelants' argument is supported by the decisions to which they refer."); Missouri v Jenkins, 515 U.S. 70 115 S. Ct. 2038; 132 L. Ed. 2d 63 (1995). I supposed the trial judge could have mentioned in passing that some of the opponents of Proposition 8 insisted that a denial of cert has bearing on his decision, and could have explained why they were wrong. But that would be footnote material at best.

    As for whether the right of privacy is explicitly listed in the Bill of Rights,
    Quote Quoting Ninth Amendment, Ratified 12/15/1791.
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
    You can certainly assert that the Constitution does not explicitly recognize a right to privacy above and beyond the provisions of the Fourth Amendment, but I am not sure that many people would agree with you that your right to privacy ends there and that you cannot assert broader privacy rights through federal courts. There is a right to privacy against state intrusion, and the actual disagreement is over is parameters.

  5. #5
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    Default Re: Is Gay Marriage a Civil Rights Issue

    Aaron, if your aspect of denial of cert. was directed at me concerning Baker v. Nelson. It was not denied cert. It was dismissed "for want of a substantial federal question", which was a summary decison on the merits.

    The CA SC in it's 2004 ruling, the San Fransisco case, cited Baker v. Nelson as controlling federal precedent.

    In the alternative, the ruling then centered on the CA Constitution.

  6. #6
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    Default Re: Is Gay Marriage a Civil Rights Issue

    Quote Quoting BOR
    View Post
    e

    There is a federal law on bigamy/polygamy.

    From past research I do know the Utah Constitution of 1896 banned Polygamy due to the Mormon culture.

    Interracial marriage bans were overturned by SCOTUS in 1967.
    Which were also opposed by people refusing to consider it a civil rights issue.

    Homosexuality was never crime, just the acts, buggery, felatio, etc. Of course that was DEcriminalized by SCOTUS in 2002.
    Right. It wasn't a crime - just all of the defining characteristics of being it were outlawed.

    The SCOTUS has already ruled in 1971 that same sex marriage prohibitions do NOT violate the federal constitution's 1, 9 and 14th AM's.
    Thankfully, later courts un**** the bad decisions of previous courts. Otherwise, Plessy would still be good law.

    This is one area ripe for review when appealed.
    Assuming a party with legal standing chooses to take an appeal. So far, it appears that none has.

    How are abortions, and I do NOT want to turn this into an abortion thread, a civil rights issue, but the SC ruled it as so.
    Because it deals with an individual within the framework of a society. There are contrasting issues which require balance. On the hand, the freedom of an individual to do what one pleases. On the other hand (I have different fingers), we have society wanting to limit these freedoms in the interest that the freedom to do what one chooses isn't ruinous to the society we all equally share.

    How do you manage to reason that it isn't a civil rights issue? Even if it's not a civil "right" to do the thing, it would still be an issue of civil rights - an issue, mind you, isn't the same as a right. An issue is the discussion of the scope of the right; in this case, the scope seems to fairly entail the conduct.
    There is NO mention of a "Right to Privacy" in the Constitution.
    There's also no mention to a right to be married. So, I guess the constitution doesn't protect anyone's general right to be married. So, any state can make whatever laws it wants (even if just to be whimsical) and it'd be a-ok. Only it isn't.

    I guess a naive view I could take would be that I oppose civil rights issues as, you know, what they are. But that's not my habit. I'll leave that particularly dubious line of non-reasoning to others.
    I oppose gay marriage as a civil rights issue.
    Ok. Why?

  7. #7
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    Default Re: Is Gay Marriage a Civil Rights Issue

    SCOTUS has changed alot since 1971. I would not make the same bet today.
    They have backtracked on any number of decisions from that era.

    The right to privacy is not specifically in the Constitution, but courts over the history of the US have determined there is a right to privacy that can be enforced in the civil courts. There is no chance of that changing.

    The US has never allowed the majority to take away the rights of minorities. That is the ENTIRE point of the US Constitution.

    Nobody should be able to force their religious beliefs upon others and that is exactly what the right wingers want to do.

    The Walker decision makes clear that the opponents of same sex marriage had no rational basis for their position and would suffer NO DAMAGE shoud same sex marriages resume. The bigots can appeal but they have nothing to do it with. They can't get the stay of the decision unless they can PROVE they have a good chance of prevailing on appeal. That is impossible as they had nothing with which to prevail in the trial.

    In fact, as Prop 8 had to be defended by the state, which will not appeal, there is a real legal argument if the opponents even have standing to appeal.

    All they have is bigotry and ignorance on their side.

  8. #8

    Default Re: Is Gay Marriage a Civil Rights Issue

    She expressed shock, but I reminded her that I couldn't understand why she think gay marriage is OK, it's a civil rights issue, why then a man can't take a second wife on "civil rights" grounds
    A man couldn't take multiple spouses on civil rights grounds due to the fact that nobody is allowed multiple spouses regardless of gender or orientation, therefore no discrimination. Multiple spouses differs from same-sex marriage in that the government recognizes a marriage between two people who happen to be opposite sex but not two people who happen to be same sex.

  9. #9
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    Default Re: Is Gay Marriage a Civil Rights Issue

    Quote Quoting BOR
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    Aaron, if your aspect of denial of cert. was directed at me concerning Baker v. Nelson. It was not denied cert. It was dismissed "for want of a substantial federal question", which was a summary decison on the merits.
    I see, upon digging, that you are correct about the resolution of Baker and incorrect in your implication that the court had not addressed Baker.
    But Judge Walker found several ways in which Baker differs from the Perry case. As USC's Roithmayr explained, Walker found important and different facts in the two cases. "In Baker, there was a statute neutral on its face but interpreted to prohibit gay marriage," she said. "In Perry, he said he was looking at a statute that expressly prohibits gay marriage. In addition, that statute strips gays and lesbians of their right to marry, a right that had been accorded to them by a prior court."

    Walker also pointed to doctrinal developments since Baker, she added, that push the analysis toward finding there are constitutional interests at stake in legislation that could be interpreted as anti-gay. Those developments include Supreme Court decisions striking down laws that criminalize consensual sodomy and a state constitutional amendment denying protection from discrimination on the basis of sexual orientation.
    The Court's practices in relation to issuing dismissals have evolved since the 1970's, in no small part because they're not very useful. As the article notes,
    Quote Quoting Precedential Value of Dismissals
    A dissenting Justice William Brennan in Hicks said that, without an explanation of the dismissal, lower courts do not know what issues have been resolved.

    "What that has done is led lower courts, understandably and correctly, to construe these dismissals as having decided as little as possible," said [Prof. Vikram] Amar. "As long as the case the court is dealing with is arguably different from the one that was summarily dismissed, then there is running room for a lower court to do what it wants.
    I'm not expecting the current Supreme Court to be sympathetic to a broader conception of gay rights or gay marriage, but I am skeptical that any higher court is going to declare Baker dispositive.

  10. #10
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    Default Re: Is Gay Marriage a Civil Rights Issue

    Quote Quoting Gravity
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    A man couldn't take multiple spouses on civil rights grounds due to the fact that nobody is allowed multiple spouses regardless of gender or orientation, therefore no discrimination. Multiple spouses differs from same-sex marriage in that the government recognizes a marriage between two people who happen to be opposite sex but not two people who happen to be same sex.
    Right now NOBODY is allowed a spouse of the SAME sex either, again, that is NOBODY, so there is no discrimination.

    Many years ago, there were laws against taking a spouse of a different race and NOBODY is allowed to do it either, of whatever race or gender. Applies to everybody. Yet, it violates the civil rights of everybody looking at it from the 21st century eyes.

    Currently the argument for same gender marriage is "civil rights", and on "civil rights" grounds, it is possible that EVRYONE'S rights is violated equally, so if there is a law that says no one is allowed to take a spouse of a different race, whites are discriminated against the same as blacks, men are discriminated as well as women.

    So does no discrimination make it right?? In some totalitarian societies, there is no freedom of speech either, and it applies to everyone. Does no discrimination here make it right??

    Fundamental human rights cannot be measured against discrimination.

    I would further argue that if a women wants to be the second wife of a man, as long as it is OK with the husband, the first wife, then it is against the "civil rights" of all three of them that they cannot be married.

    I beleive the one man one women idea is a cultural "Judeo Christrian Anglo white" value that is imposed on the society at large. Both Muslims and Chinese people as far as I know had customs going back thousands of years allowing multiple spouses, whose practices are discriminated against.

    Besides "civil rights", I would even argue religious persecution. With 1.5 billion Muslims, and 1.5 billion Chinese, half the worlds population already practices polygamy so there can be no argument it is a new right created out of nothing,

    So what is illegal here, polygamy, is legal for half of the world's population already and I find no compelling legal argument why western society has to make itself different.

    I know that there had not been a groundswell of support for multiple spouses, and I for one find having just one more than enough work for me, but purely from a philosophical point of view, I find that on "civl rights" grounds alone, mulitple spouses should be legal, the same as for same gender marriages.

    For me, if the argument is the governmant should not interfere in the sex or number of spouses, it would be OK with me. But if they say, the number of spouses can only be "one", but it could be of either sex, then I have a problem with it violating a fundamental human right, as well as religious persecution.

    If they can't interfere based on sex, then don't interfere on the number either.

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