Iowa SC Overturns Gay Marriage Ban

[Deadly_Nightshade]

In practice to change a lot of things it would take more than 60 or 70 percent consensus, which almost never happens.

 

However, unless the change was applied directly to the constitution, it could still be found to be unconstitutional.

[Enoch]

I love how we're all acting as if free internet dictionaries can provide quick, definitive answers to centuries-old questions of political theory.

[Hurlshort]

I love how people are arguing about political theory when the real issue is discrimination against a minority. None of this matters to the couple that is marginalized because they don't fit the traditional man-woman mold.

[J.E. Sawyer]

If we argue about political theory then we don't have to talk about the practical matter at hand, bro.

[alanschu]

Sawyer is a tyrant.

[Aristes]

I love how people are arguing about political theory when the real issue is discrimination against a minority. None of this matters to the couple that is marginalized because they don't fit the traditional man-woman mold.

 

Hurl, I hope you'll forgive me, but this is a particularly stupid statement. Who decides what amounts to discrimination?

 

Sawyer says we can avoid practical issues by discussing political theory? How about this, we can't form policy without politics. Since that's the case, we better discuss politics. We can call it political theory. We can call it the creation of, interpreting, and review of laws. We can call it deciding what to do. ...But it is absolutely necessary to go through this process. In fact, the discrimination you cite was created by the political process, so it is a fundamental part of this conversation.

 

By the way, broadly speaking, society discriminates regularly. The question isn't whether or not we should create discriminatory policy. We will create discriminatory policy. We have no choice. Is marriage between persons under 18 allowed or not? Is marriage between persons under 15 allowed or not? Is it discrimination to limit the rights and prerogatives of minors? I'm sure it is. Allow 8 year old children to drive? How about allowing children to drive at 16? How about 18? Someone, somewhere, will get the short end of the stick in policy debates. Fair enough. The best thing to do is to make sure the political debate is structured as best we can.

 

Get off your high horse. This is a policy decision. We've had worse in this country over the last 200 years without nearly as much handwringing and lamenting. Yes, this particular policy is not good, but the process that allowed it to so quickly and easily enter the books is far more damaging but you're too busy over there "thinking of the children."

 

News flash, we got a raw deal when the braniacs put Referenda and Ballot Propositions into the state constitution. Without the ballot initiative process, we probably wouldn't be forced to discuss this most grave affront to humanity in all of its entire existence -- the denial of same sex marriages.

 

From a practical standpoint, I don't think we can do anything to rid ourselves of the ballot initiative any time soon. However, it's not impossible to amend the constitution to make it more difficult for future amendments to pass.

 

Notice that the differing policy in Iowa does not permit the same thing happening over there? They can't, say, go put a consitutional amendment on the ballot for the next cycle and pass it with a simple majority. Still think it's stupid to discuss the politics of the issue?

 

And, frankly, because the ballot initiative is a direct expression of the explicit will of the people, I believe the supreme court should be far more cautious in overturning propositions. This is as a direct opposite of the normal legislative process where the supreme court should have leeway.

Edited April 9, 2009 by Aristes

[Hurlshort]

Age discrimination? Really? So gay couples should just wait until they get older, because they will outgrow being gay?

 

I don't have an issue with arguing political theory. But this is a thread about gay marriage as well, and very few people seem willing to address the actual issue. What I'm saying is that all this political theory means diddly squat to a gay couple that wants the same rights as a heterosexual. It is just a smoke screen for the greater issue where gay people are not afforded the same civil rights as straight people in the US.

[ShadySands]

Ban flag burning!

 

 

 

 

 

 

 

 

 

 

 

 

 

 

...what real issues?

[Aristes]

Don't be a doofus Hurlshot. Well, it's too late for that, but don't be a doofus about my post.

 

What I'm saying is that we discriminate between all sorts of groups. In some cases, the vast majority of us seem to agree that the discrimination is perfectly valid. Children of five cannot choose to marry each other. They cannot enter the workforce and take on a job.

 

*shrug* gays should be allowed to be married. I guess I was being a doofus because I completely left the homosexual marriage question behind to discuss something I find far more dismaying: our political process.

[Sharen the Exile]

I love how people are arguing about political theory when the real issue is discrimination against a minority. None of this matters to the couple that is marginalized because they don't fit the traditional man-woman mold.

Actually, I (for example) care more about political theories than if I will be able to marry my boyfriend Relax Hurlshot. It's not that people do not want to talk about this subject. The discussion in the thread just naturally evolved as it often happens.

[Walsingham]

I've not know Hurlshot to be a doofus, and even if he was I don't see the point of saying so. You doofus.

 

I think Hurlshot is right. You've got some folks who are - against all the evidence of what marriage entails - trying to get married. Let them. Big whoop.

 

EDIT: my friend just came in. "Gay marriage? Surely that's a contradiction in terms? Wait. Are we talking about people being happy while married?"

[Humodour]

moronic hypocrisy and narrow-minded view points masquerading as something enlightened.

 

Hmm. What does that remind me of? Oh yeah! Libertarianism.

 

 

As someone who would most likely identify himself as a Libertarian, I'm a bit surprised by this comment.

 

In terms of civil rights and social traditions I'm libertarian, but economically I'm centrist (namely I support universal healthcare and welfare to provide safety nets within capitalism, which Libertarians like taks find abhorrent). I also support military intervention to remove dictators and spread democracy, which is not a very Libertarian policy.

[alanschu]

How is that "moronic hypocrisy?"

[taks]

anyone that favors taking away rights of one to give to another is a hypocrite, alanschu. if you're a libertarian, you should understand that. rights cease to be rights when they can be infringed upon at will.

 

that his views are otherwise moronic is self-evident. he's not a "centrist" by any stretch, even if he wants to paint himself that way.

 

taks

 

edit: and for the record, you need to brush up on your "isms," krezack. i'm no libertarian, it's just the closest political affiliation to my beliefs. i'm simply a rational thinker. rational thought always leads to objectivism and thus, capitalism. you should try thinking rationally sometime and check your emotions at the door.

Edited April 12, 2009 by taks

[Hurlshort]

you should try thinking rationally sometime and check your emotions at the door.

 

Hehe, taks, I love your posts and I agree with a few of your political opinions, but you seem to put a lot of emotion into them. Don't get me wrong, I do the same thing on a few issues. I don't consider it a flaw, I'm just saying you don't seem to put your feelings aside when discussing this stuff.

 

 

Any truly rational person would shoot themselves rather than deal with politics in any form.

[Trenitay]

Of course your rational thought leads to capitalism. When one thinks any thought they think said thought is rational.

 

However, taks is correct on the subject of rights.

[alanschu]

anyone that favors taking away rights of one to give to another is a hypocrite, alanschu. if you're a libertarian, you should understand that. rights cease to be rights when they can be infringed upon at will.

 

that his views are otherwise moronic is self-evident. he's not a "centrist" by any stretch, even if he wants to paint himself that way.

 

taks

 

edit: and for the record, you need to brush up on your "isms," krezack. i'm no libertarian, it's just the closest political affiliation to my beliefs. i'm simply a rational thinker. rational thought always leads to objectivism and thus, capitalism. you should try thinking rationally sometime and check your emotions at the door.

 

 

Your ire is misdirected taks.

 

You called him a "moronic hypocrite" and he said "what does that sound like? Libertarianism."

 

He tried spinning your insult back on yourself. I fail to see how a Libertarian could be a moronic hypocrite. My question was to him, not you.

Edited April 13, 2009 by alanschu

[Enoch]

rational thought always leads to objectivism

The hubris and condescension in this statement is delicious.

 

 

@Aristes,

 

I don't have numbers on this, but my guess is that laws that come from ballot initiatives are far more prone to violating constitutional principles than are laws passed through the normal legislative process. One of the major goals behind the federal Constitution (which was mirrored by most state constitutions, prior to the Progressive movement) was to restrain the knee-jerk impulses of the hooting masses-- if anything, initiative-created legislation should get more scrutiny, rather than less.

 

Also, quick-and-dirty Equal Protection lesson: Over the years, courts have worked out ways to think about different ways in which the government does and can discriminate. In US Constitutional law, 3 types of Equal Protection analysis: Strict Scrutiny, Intermediate Scrutiny, and Rational Basis Review. When government classifies people based on lines that courts view as historically "suspect," such as those involving "discrete and insular minorities" with a history of being crapped on by the culture at large (race and ancestry are the prototypical examples), it needs a really really good reason for doing so, and has to be tailored as narrowly as possible to achieve that goal. Intermediate Scrutiny is something of a compromise to cover Gender discrimination, with somewhat weaker justification requirements than SS (it's basically a way for pragmatist "swing" Justices to provide some protection to women who have been discriminated against without royally pissing too many people off by doing things like declaring the male-only draft registration statute unconstitutional). Rational Basis Review applies to all other types of classification (e.g., economic classifications based on income, grants given to dairy farmers but not to soy farmers, etc.). There, the government just needs a rational basis for believing that the classification will accomplish some goal that isn't otherwise illegal.

 

So, yeah, the government classifies people a lot, but that doesn't mean that all the classifications are comparable with one another.

Edited April 13, 2009 by Enoch

[Pop]

rational thought always leads to objectivism

Holy **** I didn't even see this before. I can't stop laughing.

[Humodour]

He tried spinning your insult back on yourself. I fail to see how a Libertarian could be a moronic hypocrite. My question was to him, not you.

 

Because Libertarians champion individual rights (such as the 'right' not to be taxed) over universally high levels of human rights. Taks only supports those 'rights' that benefit him, bugger anybody else, and bugger anybody's else's rights which get in the way of his!

 

To somebody like taks, universal healthcare is an evil because everybody is required to give a small portion of their income to ensure all people in society are better off, healthy enough to be able to exercise their own individual rights, and healthy enough to be productive members of society. Similarly, universal welfare is an "evil" for the same reason: the thought that taks might have to give up a portion of his income so his fellow Americans have a roof over their heads and food in their mouths is vile to him.

 

Rational is the last thing objectionists are.

Edited April 13, 2009 by Krezack

[Aristes]

I actually agree with you, Enoch, in regards to the initiative process. I guess my point is, the initiative process is the closest thing we have to a direct democracy. So, on the one hand, I resent the abuse of power that attends mob rule. On the other hand, I feel compelled to respect the explicit will of the people. Perhaps that is misguided. Maybe the ballot initiative has promoted my feelings towards the judiciary. I don't tend to view most of the SCotUS decisions with as much ire. Oh, I was unhappy on the eminent domain decision of some years back, but otherwise I think the SCotUS has been reasonable whether it has rendered either liberal or conservative decisions. Reasonable, if not always correct in my view.

 

So, which trumps which? The ballot initiative because it's the clearest expression of the people's will? ...Or the Judicial overview because it provides the safegaurds against mob rule that the crafters so clearly desired in the first place?

 

As for the Iowa decision, I'm glad we have it, but I hate that it's the supreme court that gave us the outcome against the expressed view of the people. Until I get my mind around that, it won't make any difference if the decision regards homosexual marriage or downstream water rights.

[Killian Kalthorne]

The Iowa Supreme Court did its job. They saw a law they viewed unconstitutional and struck it down. That's their job. They didn't make a new law. They didn't fforce anything on the people beyond their power. They simply did their job, no more and no less.

[Gromnir]

one thing that all the Larry Tribe wannabees seems to be ignoring is the fact that the Iowa Ct struck down the ban on gay marriages based 'pon the equal protection clause in the IOWA constitution. read the decision and you see that while very similar, Iowa's ep and 14th amendment ep ain't the same.

 

you want heightened scrutiny with Fed? the four factors for US "new" ep classes

 

history of discrimination

political powerlessness

immutability/no relation to ability to perform

 

[Enoch]

Hehe... First time I've been called a "Larry Tribe wannabe." Good Fun, indeed.

 

I was dredging up my ConLaw1 memories mostly in response to Aristes' post lumping all government classifications together, not to do a rigorous application of the theory to the case at hand. I'm hardly qualified to do such off the top of my head, and not particularly willing to put the research time in at the moment. (My post-1L conlaw experience is almost entirely in the separation of powers & federalism stuff.) Anyhow, Grom, thanks for the more nuanced breakdown. I knew this decision was based on Iowa law, but the comparison between EP standards was new to me.

 

Aside: couldn't a due process argument also get some traction, given that, IIRC, Loving got heightened scrutiny on both EP (racial) and DP (marriage as fundamental right) grounds?

Edited April 19, 2009 by Enoch

[Gromnir]

Hehe... First time I've been called a "Larry Tribe wannabe." Good Fun, indeed.

 

I was dredging up my ConLaw1 memories mostly in response to Aristes' post lumping all government classifications together, not to do a rigorous application of the theory to the case at hand. I'm hardly qualified to do such off the top of my head, and not particularly willing to put the research time in at the moment. (My post-1L conlaw experience is almost entirely in the separation of powers & federalism stuff.) Anyhow, Grom, thanks for the more nuanced breakdown. I knew this decision was based on Iowa law, but the comparison between EP standards was new to me.

 

Aside: couldn't a due process argument also get some traction, given that, IIRC, Loving got heightened scrutiny on both EP (racial) and DP (marriage as fundamental right) grounds?

 

the Iowa guys ain't stoopid. there has been a number o' appellate fed cts that has looked at Loving re: gay marriage. Loving were a race case ("invidious racial discriminations") AND the Ct. specific focused on marriage being fundamental precisely 'cause o' its relation to Procreation. is maybe an antiquated notion, but substantive due process is, from a Con Law pov, far less flexible than ep. Griswold penumbral kinda cases makes for great drama and is wonderful to discuss in class, but they is invariably contentious. with the current composition o' the Court, you gots a virtual 0 chance o' creating a new fundamental right that clearly is working against history and precedent. with current ep you not gotta ask what were the framer's notions regarding gays & gay marriage specific... is still a hurdle for sdp. in any event, it made more sense for Iowa Ct. to use a solely Iowan rationale.

 

even so, Justices is people and the Law is a human creation. the most famous case in American jurisprudence is probable Brown v. Board, and at the time you had clear weight o' history (Congressional record shows that the notion o' 14th amendment being relevant to school desegregation were specific debated and rejected) and precedent (Plessy) in favor o' continued school segregation. was separate but equal a big-fat lie? sure it was, but it were pretty difficult for the Justices to find solid legal justification for striking down the abhorrent practice. J. Jackson pretty much had to get off his deathbed to be present when unanimous decision were handed down. get the right Justices on the bench and anything is possible.

 

'course, keep in mind that by the time o' Brown, something like 21 states had already desegregated on their own... and Massachusetts had desegregated way back in 1855 (maybe 1854), so if gays is waiting for similar kinda numbers for the Ct. to take action...

 

too preachy? oh well.

 

HA! Good Fun!

Edited April 19, 2009 by Gromnir