Law School Discussion

Washington State Supreme Court Upholds Legislative Ban on Same-Sex Marriage

jarhead

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eeaazy ...selecta...everyone has a right to their opinion...

this is what i dont understand about the whole legislative argument...yes the legislature is there to make law...but the courts (Supreme Court anyway) is there to make sure said laws are Constitutional....so maybe I'm missing something but I don't understand the mindset of people who say that courts should not legislate...how is overturning or upholding a law based on Constitionality legislating?

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If the elected officials in Washington passed a Defense of Marriage Act and their Supreme Court overruled it, they'd be, in effect, saying "this legislation is not the type of policy we find idea and we will change it."  The same would be the case if a conservative court overturned a law enabling homosexual marriages.  Exercising judicial restraint means deferring to the legislative branch unless there is a clear constitutional issue.  Given the New York and Washington decisions, and the Supreme Court's reluctance to take up the issue, there seems to be no such issue.  Let the elected officials legislate.  At least their decisions can be changed if found unwise.


also the reason people keep bringing up the mixed marriage thing is because it too was a law on the books of many states at the time...it was taken to the high court and struck down...if a state wants to pass a law to say that it will not recognize civil unions that its perogative...but then that must apply to everyone not just G$L...



I don't think you have to apply it to everyone, and neither do most courts.  What basis do you have for making that claim?  Simply because the mixed marriage was a law on the books that was overturned does not mean that the same dynamic is at work here.  I would think you're missing some analysis in there to make the analogy stick.


why do some view the whole thing as forcing religious beliefs on other people? Im guessing because  outside of "God meaning marriage to be between a man and a woman" which is no offense a totally ridiculous arguement there really is no reasonable basis for denying 2 consenting adults the right to have civil unions....that being said I am an INTJ ...and am open to hearing an argument that may change my mind....haven't so far


A)  It's a totally ridiculous argument to you.  Why should that make it an invalid argument for someone else?

B)  That is not even one of the arguments considered when the rational basis test is applied.



my good sir as i said, im keeping it simple...had i the time or inclination to have my Opinion pass the rational basis test i would..but i dont...marriage is an institution created to secure rights and property....so yes when i hear people bring God and religion into it it strikes Me as ridiculous

Nemesis

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It doesn't matter if there are situations in which the presence of both biological parents can be a detriment to a child or not; as long as a legislature finds that the presence of both parents is something worth encouraging in a child's life, they have met the legal standard for rational basis, it seems.


But the judge admits that the constitution seeks to promote procreation and the well-being of children. Limiting marriage to opposite sex couples is not to only way to promote the well-being of children. Same-sex marriage also promotes procreation and the encourages stable living environments which also promote the well-being of children.

Therefore, it seems that same-sex marriage passes the rational basis test as well...

BrerAnansi

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Jarhead...can you format that post correctly...I want to read it but my eyes are just saying "NO"...

2Lacoste

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It doesn't matter if there are situations in which the presence of both biological parents can be a detriment to a child or not; as long as a legislature finds that the presence of both parents is something worth encouraging in a child's life, they have met the legal standard for rational basis, it seems.


But the judge admits that the constitution seeks to promote procreation and the well-being of children. Limiting marriage to opposite sex couples is not to only way to promote the well-being of children. Same-sex marriage also promotes procreation and the encourages stable living environments which also promote the well-being of children.

Therefore, it seems that same-sex marriage passes the rational basis test as well...


So if Washington voters decided to change the law to support gay marriage, it'd be constitutional.  But they haven't.  And it's their prerogative, not the judiciary's.

jarhead

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this is a case of people cloaking religious arguments in secular rational bases. Annabel, those are good examples that undermine the "rational" reasoning. But, the truth is that the cases will continue to go this way until there is someone brave enough to say that actually b/c people are trying to promulgate legislation especially against gay people, perhaps they should qualify as a protected class. b/c at the end of the day almost anything passes for rational basis. thats part of the irony of how the tiers are used today.

and lacoste, the arguments about legislating from the bench really boggle my mind coming from a black person. I'm not picking on you, I've heard them from other black folks, but I always ask the same question. How can you, a member of a minority, say that courts should not be empowered to protect minority rights? The majority will not protect minority rights--thats part of the mandate of the judiciary at this point. They're insulated from majority rule for that reason. I will never understand it...



me either sister other than...people think its ok to discriminate against gays...i mean i gotta call a spade a spade

faith2005

Rights will never be guaranteed until society adopts a more benevolent outlook towards civil rights.

that was so tight. I thought equal rights for some were guaranteed by the Constitution. so when can we expect this more benevolent attitude change to happen? 2008? 2020? 3000?! The argument that Lacoste makes is that for the judges to have struck down this law would = legislating from the bench. My point is that that argument, while persuasive, is one that I have trouble accepting from the mouths of a black person b/c a black person that grew up in the South should be able to see the difference between the courts making law and the courts protecting minority rights.(in other words I don't think it is legislating from the bench, but Lacoste sees it in that light) But, for most conservative Christians I think their point is to use that argument, b/c they just don't think gay rights are minority rights that are worth protecting.

this is a case of people cloaking religious arguments in secular rational bases. Annabel, those are good examples that undermine the "rational" reasoning. But, the truth is that the cases will continue to go this way until there is someone brave enough to say that actually b/c people are trying to promulgate legislation especially against gay people, perhaps they should qualify as a protected class. b/c at the end of the day almost anything passes for rational basis. thats part of the irony of how the tiers are used today.

and lacoste, the arguments about legislating from the bench really boggle my mind coming from a black person. I'm not picking on you, I've heard them from other black folks, but I always ask the same question. How can you, a member of a minority, say that courts should not be empowered to protect minority rights? The majority will not protect minority rights--thats part of the mandate of the judiciary at this point. They're insulated from majority rule for that reason. I will never understand it...

Well, I suspect that legislation via the bench endangers democracy. Rights will never be guaranteed until society adopts a more benevolent outlook towards civil rights. I'm not sure that overstepping the constitution is a good way of going about this.

jarhead

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faith...i just noticed your signature


"you ate the food.."  :) :D ;D 

_BP_

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And if my religion is expressly against homosexuality, why should your religious views take precedence over mine?  Especially when the majority of America's moral views support my position?  "Separation of church and state" can mean many things -- foremost of which is the rule against establishing an official state religion, or discriminating against a religion.  Throwing an abstract phrase out there does not give any good reason why a law grounded in a moral conviction that has a religious basis is invalid.  If that is the case then we should probably throw out the majority of laws produced by the U.S. Congress.  The majority of America has a set of moral standards informed by their religious beliefs.  How are we to tell which laws were grounded in religious morality and which were not?

I agree with you here Lacoste...the majority of Americans have moral standards that are grounded in religious beliefs, but the majority of all Americans are not of the same faith in fact quite a few subscribe to no faith at all...faith isn't a prerequisite of this reglion-based morality...if you're a product of the society, to some extent you've absorbed its tenets...but there are certainly ways to distill a policy down to its lowest common denominator...there are many compelling rationalizations of why murder should be consider a serious and punishable offense...spanning from the religious to the philosophical to an instinctive understanding on a very base level that as living beings, life is our most precious commodity...divorce on the other hand was once not allowed, but once the church lost the power it had over government, the only compelling reason crumbled...there are other justifications for not seeking divorce as well but none on its own was compelling enough to support that decision, so divorce became legal and the other non-compelling reasons created a social taboo against divorce...like Talib asked earlier..what is the compelling non-religious rationale needed to counterbalance the religious rationale to support the ban on same-sex unions??...

Did you just not see this question Lacoste? It was asked twice homie.


supergirluw

sorry to jump in on ya'll's board, but I'm from Washington (State) and, more than anything, want this in my unreads.

But, I did want to say something.

I'm heterosexual, but I will never have children. For personal reasons, I do not want to raise a child in this world (not being selfish - there are overhanging medical conditions that would more likely make me a terrible parent than anything else.) However, while living in Seattle, I met many fabulous gay and lesbian couples. Couples that live their lives together, some that have been for decades. Several have children - whether theirs from a previous marriage and since adopted into the homosexual relationship, or through invitro/adoption otherwise.

Now, these couples are reproducing and raising children that I will never raise. I will get married - but wait! If the purpose of marriage is to raise a child, what is my "purpose" - as an interest of the state - for getting married, according to the WA Supreme Court? And if these couples ARE promoting life, as i'll call it, why don't THEY get to get married (...instead of me even?)

I'll be surprised if, regardless of the affirmation or reversal of this decision, children become a prereq for marriage because of this decision. Because this has NOTHING to do with Chrisianity - it is about the interest of the state in continuing the existance of a state, and the priveleges that come with this.

Nemesis

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this is a case of people cloaking religious arguments in secular rational bases. Annabel, those are good examples that undermine the "rational" reasoning. But, the truth is that the cases will continue to go this way until there is someone brave enough to say that actually b/c people are trying to promulgate legislation especially against gay people, perhaps they should qualify as a protected class. b/c at the end of the day almost anything passes for rational basis. thats part of the irony of how the tiers are used today.

and lacoste, the arguments about legislating from the bench really boggle my mind coming from a black person. I'm not picking on you, I've heard them from other black folks, but I always ask the same question. How can you, a member of a minority, say that courts should not be empowered to protect minority rights? The majority will not protect minority rights--thats part of the mandate of the judiciary at this point. They're insulated from majority rule for that reason. I will never understand it...


Indeed.