Massachusetts Gay Marriage Decison - The Real Issue

I hate to start a new thread on this issue, but the other thread on the Massachusetts Gay Marriage decision has wandered into many other areas, many of which are worthy of discussion on thier own. I would like to focus back on why I (and many of my friends in Massachusetts) beleive that this is such an important decision.

The recent ruling of the Massachusetts Supreme Judicial Court (SJC) framed the issue of gay marriage as a civil rights issue. The signiificance of the decision is that the SJC ruled that Massachusetts can not discriminate against gays and lesbians! They cite the provision in the Massachusetts State Constitutiuon which prohibits laws that create any form of second class cititzen. (Provisions like that were originallly written to garauntee religious freedom, ironically enough.)

This is huge because it affirms that gay people are entitled to all of the rights that any other citizens of the Commonwealth of Massachusetts are entitled to, including recognizing marriages.

It is also huge because it frames the issue as a civil rights issue. There is much talk this week among apponents of gay marriage that they will pass a constitutional amendment to the Massachusttes Constitution. This process takes at least three years. However, I have many learned legal friends, who have read the decision in detail. Since the issue has been framed as a civil right, the opponents could not come up with a valid constitutional amendment to stop gay marriage. You can't pass a law or amend the constituion in order to deny someone their civil rights. (Over simplified example, you can't pass a law or an amendment that says blacks must ride in the back of the bus, just because the majority is uncomfortable with them having equal protection.) My legal friends are convinced that the ruling precludes any amendment that will nuillify it. Good work on the part of the SJC.

There is some confusion about the charge that the SJC gave to the Legislature. Some lawmakers think that they have time to pass a civil union bill, which they would find more acceptable, however, my legal friends insist that the ruling also precludes substituting civil unions for gay marriage, because again, it sets up a status of second class citizens. Most leal scholars think that 180 day period given to the legislature was to allow them to review current laws and to make them gender and sexual orientation neutral.

Then after the first couples are married in Massachusetts, I am sure that will lead to the necessary legal challenges of DOMA, and it may lead to the recognition throughout the country that gay people are entitled to equal protection under the law, just like every other citizen. That is why I beleive that this is such a significant decision and such an important moment in Gay Rights history in the United States.

The other thread on this topic got off on the value of marriage as an instution; and the discussion of civil unions vs. marriage; and a discussion about fiscal conservatives vs. social conservative. All of those are good topics, but I just wanted to start a thread where we can celebrate an important step in gaining our full civil rights in this country.

Giving any group of citizens their full civil rights is usually not popular, and ususally make people uncomfortable at first, but we generally need bold decisions by courageous jurists to insure our civil rights. We also have to be greatful to those who fought for the early civil rights battles, like Rosa Parks, MLK, and now add, the seven brave couples in Massachusetts who waged a long legal struggle for our benefit.

When this issue first came up, I was not very interested. I don't have a partner (I'm a regular on this board aren't I?) and I had no need or desire to marry. But as I have follwed the arguments and the process of this case, and now that I have seen the results, I am overjoyed that we, as gay people, are finally being recognized as having basic civil rights (in Massachusetts at least). I also relaize that the fight for our full civil rights still has a way to go, and thre will probably be some ugly skirmishes along the way, but I just think that we should be very happy over the civil rights issue, regardless of how we feel on the institution of marriage.

I've ranted enough.

Says who?

>> Since the issue has been framed as a civil right, the >>opponents could not come up with a valid constitutional >>amendment to stop gay marriage. You can't... amend the >>constitution in order to deny someone their civil rights.

You can ammend the State or Federal constitution to provide or deny anything by successfully completing the ammendment process. The Federal Constitution trumps the State Constitution but the last I knew the US 14th ammendment has not been extended to sexual preference. The US Supreme Court also reserves, without explanation, the right not to hear a case submitted. I think your slam-dunk assessment falls short of the reality.

RE: Says who?

TY:

Yes, I understand your point. I didn't mean to imply that I think that this is any kind of slam dunk. I am not a lawyer (I just hang out with them). I may have gotten a bit carried away with my exuberance. The SJC ruling does seem to preclude passing any law or amendment in Massachusetts that would deny these newly won civil rights. However, I understand that the situation with other states and the Federal Government is another whole issue. I just think that this is a great step in the right direction for us.

The other amazing piece of news today is that both major Boston newspapers printed results of polls where they asked the citizens of Massachusetts if they agreeed with the ruling. The Globe had 50% Agree, 38% Disagree; The Herald had 49% Agree, 38% Diagree. The results are consistent, and it seems that we are gaining the support of the regular citizenry, which is nice, and shows progress (and I think may shock some of the pundits). It also thwarts the efforts of those who may want to legislate against us, if they realize the majority does not oppose gay marriage (in Massachusetts anyway).

Massachusetts is so strange anyway; we voted 68% to 32% for Al Gore (and agains G.W. Bush), and then two years later we elected a conservative Morman Republican govenor. Go figure!

RE: Says who?

>The SJC ruling does seem to preclude

>passing any law or amendment in Massachusetts that would deny

>these newly won civil rights.

No - this is false. The SJC ruling is based upon what the Constitution of Massachuessettes says. So, if that Constitution is amended to provide that marriage is only between a man and a woman, then that would be the meaning of the Constitution, and not even the SJC could compel gay marriage on the ground that the Mass. Constitution requires gay marriage.

The only thing a court can do in striking a democratically enacted law is to say that the law is invalid because it violates the guarantees of the Constitution. If the Constitution is amended to expressly provide that marriage is between a man and a woman only, then no court could strike down opposite-sex-marriage-only-laws, because such laws would obviously not violate the Constitution (perhaps a court could contend that the amendment is contrary to other provisions of the Constitution, but that's highly unlikely, given that the amendment would directly govern the marriage question and the other Constitutional provisions wouldn't).

As a pratical matter, there appears to be insufficient time to enact such a constitutional amendment in Mass. before the Court's deadline, but legally and constitutionally, if it were done, it would absolutely prevent the SJC from compelling the Legislature to allow gay marriage.

>The other amazing piece of news today is that both major

>Boston newspapers printed results of polls where they asked

>the citizens of Massachusetts if they agreeed with the ruling.

> The Globe had 50% Agree, 38% Disagree; The Herald had 49%

>Agree, 38% Diagree. The results are consistent, and it seems

>that we are gaining the support of the regular citizenry,

>which is nice, and shows progress (and I think may shock some

>of the pundits). I

If what you say is true, then wouldn't it have been much better to have gay marriage enacted DEMOCRATICALLY - rather than having a court impose it through judicial fiat by striking down a law which was democratically enacted?

The serious concern with this decision is that citizens will resent the fact that gay marriage is being imposed on them by unelected judges, rather than implemented by citizens through democratic means.

RE: Says who?

>If what you say is true, then wouldn't it have been much

>better to have gay marriage enacted DEMOCRATICALLY - rather

>than having a court impose it through judicial fiat by

>striking down a law which was democratically enacted?

>

>The serious concern with this decision is that citizens will

>resent the fact that gay marriage is being imposed on them by

>unelected judges, rather than implemented by citizens through

>democratic means.

Technically, this WAS a democratically enacted decision. Justices don't create laws. They interpret the constitution as ratified by a majority of the electorate.

I'll concede that it doesn't look that way to the man on the street. Redneck Bob is still going to view this as judges fucking around in things that don't involve them, but the sentient beings have to understand that it's their constitution, democratically enacted by their forefathers.

That document wasn't plucked out of the air. It's the result of a hard-won democratic process.

RE: Says who?

>Technically, this WAS a democratically enacted decision.

>Justices don't create laws. They interpret the constitution as

>ratified by a majority of the electorate.

Fair enough - but sometimes judges do exceed their authority and DO invent laws or impose their personal preferences rather than simply apply constitutional limits. I don't know of anyone who doubts that a real danger to democracy can be created if judges don't exercise restraint.

It's not an easy argument to make that the Mass. Constitution which was enacted hundreds of years ago - at the SAME TIME that marriage laws existed which excluded gay couples -- actually does mandate gay marriage. Many people will think that this is just a case of 4 out of 7 pro-gay judges imposing their own view of gay marriage under the guise of constitutional law.

And it's not only "rednecks" who may perceive that this decision constitutes judicial tyranny. Three out of the 7 judges on the Mass. Supreme court -- all of whom made clear how pro-gay they are and even said they favor gay marriage - rested their dissent on the argument that the majority was merely imposing their own views and that gay marriage should, and legitimately only could, come from the legislature.

RE: Says who?

Doug;

Again, I am not a lawyer, but I disagree with your intrepretation of the power of a constitutional amendment. I don't beleive that we could, for instance propose and pass a constitutional amendment that blacks should eat at a separate lunch counter, and sit in the back of the bus. Your logic would allow us to pass and enforce laws and ammendments that would restrict folks civil rights. I don't think that is practically going to happen, nor do I think it would withstand a legal challenge (althoug it gets to be a circular argument - if they change the constitution, it changes what is consitutional).

I also object to your argument that it would be better if the gay marriage was granted to us by majority rule and acts of the legislation. I am really sick of the argument that activist judges are changing the will of the people. I see it as courageous judges who know the law, the constituion and justice, are ruling on a civil rights issue. If we waited for the majority to pass laws to give rights to minority communites, we would stll have racial segragation, we could have state sponsored religous persecution, there would be no handicapped ramps at public buildings etc, etc etc. Our rights are not a matter of majority rule. Our govenor said he didn't want to change the definition of marriage that has been accepted for 3,000 years. That is a perfect argument for discrimination. We have discriminated for thousands of years, and that's the way we like it and that's the way it should stay because the majority is comfortable with it. Poppycock!

In fact 3,000 years ago women were considered possesions of their husband. And for hundred of years inter-racial marriage was against the law in many states in the U.S. Not until the Supreme Court recognized that peoples rights to marry who they wanted was more important than the will of the majority. One of the reasons that we have a constitution and a judicial system is to insure that our rights are not crushed by the will of the majority.

The other good news in Massachusetts is that when I read further into the poll results of Massachusetts residents, while 50% agree with the decision, 53% opposed a constitutional amendment, and only 36% supported it. It will be interesting to see how this plays out.

RE: Says who?

>Again, I am not a lawyer, but I disagree with your

>intrepretation of the power of a constitutional amendment. I

>don't beleive that we could, for instance propose and pass a

>constitutional amendment that blacks should eat at a separate

>lunch counter, and sit in the back of the bus.

Black people were required to sit a separate lunch counter and sit at the back of the bus for a long time in this country. The only reason that black people have the right not to be treated that way is because a Constitutional amendment was passed (the 14th) prohibiting that.

If that amendment were repealed, or if in its place, an amendment were enacted making black people 2nd class citizens, then that amendment would be valid.

The Constitution is the Supreme law of the land. There is nothing that restricts what can go in it (except for other amendments), and if marriage were written into the Constitution as being between a man and a woman only, then that would be the end of the story.

As TY pointed out, state constitutions cannot include provisions which are barred by the federal constitution, because the federal constitution is supreme. But since nothing in the U.S. Constitution compels gay marriage, there is nothing to stop any state, including Mass., from amending its Constitution to make marriage opposite-sex only.

This is not a complex issue and one doesn't need to be constitutional expert to know this. This is elementary.

>I also object to your argument that it would be better if the

>gay marriage was granted to us by majority rule and acts of

>the legislation. I am really sick of the argument that

>activist judges are changing the will of the people.

So you think that unelected judges have the right strike down any law they don't like without limit? Don't you see any threat to democracy from that?

> If we waited for

>the majority to pass laws to give rights to minority

>communites, we would stll have racial segragation, we could

>have state sponsored religous persecution, there would be no

>handicapped ramps at public buildings etc, etc etc.

You have it exactly backwards. The reason that there are handicapped ramps isn't because courts mandated it. It's because Congress enacted the Americans with Disabilities Act. The reason it's illegal to discriminate against black people in the private sector isn't because courts prohibtied it. It's because Congress enacted the Civil Rights Act of 1964.

I know - there are a lot of people like you who don't really like democracy and want judges to impose whatever laws they want. But this desire only exists as long as judges are doing what you like.

There are a lot of conservative judges on the court now, and there will be a lot more if Bush is re-elected. As you defend the right of judges to strike down laws on VERY tenuous constitutional grounds, you should think a little more about the fact that the judges you are empowering with great authority won't always be the judges you like. For every Thurgood Marshall, there is an Antonin Scalia.

>The other good news in Massachusetts is that when I read

>further into the poll results of Massachusetts residents,

>while 50% agree with the decision, 53% opposed a

>constitutional amendment, and only 36% supported it. It will

>be interesting to see how this plays out.

Well, the you ust disproved your argument that we needed the high-and-mighty, widsom-dripping judges to show us what is Right. According to you, the people already favord gay marriage, so why not just put it to a vote?

RE: Says who?

>Fair enough - but sometimes judges do exceed their authority

>and DO invent laws or impose their personal preferences rather

>than simply apply constitutional limits.

True enough. Our last Presidential "election" proved that. :9

>It's not an easy argument to make that the Mass. Constitution

>which was enacted hundreds of years ago - at the SAME TIME

>that marriage laws existed which excluded gay couples --

>actually does mandate gay marriage.

Oh, I don't think it mandates anything. It does however prohibit the restriction of rights. There's a difference between mandating a specific right and prohibiting selective allotment of rights.

>Many people will think

And that's the crux of the argument. You're right. Many people WILL think, unfortunately.

:+

RE: Says who?

>

>Black people were required to sit a separate lunch counter and

>sit at the back of the bus for a long time in this country.

>The only reason that black people have the right not to be

>treated that way is because a Constitutional amendment was

>passed (the 14th) prohibiting that.

Doug, your chronology is all wrong and your logic is backwards. The laws did not give people thire rights. The laws only were written and enacted to codify rulings that were made by the courts.

For instance, the Fourteenth Amendment was passed in 1868, and the Supreme Court ruled in 1896 that "Separate but Equal" was constitutional. It was not until the landmark case of Brown vs, The Board of Education in 1954 did the Supreme Court strike down the concept of "Separate but Equal". The Civil Rights laws were not passed and enacted until 1964. So blacks were not given their rights when the Fourteenth amendment was passed, but only after Brown vs. The Board of Education in 1954. The Civil rights Act of 1964 codified these rights and oulined rules and penalties, but without the Supreme Court decision, we might still have separate but equal.

Likewise, handicaped people were not granted their rights by the Americans with Disabilites Act,but they had to sue to gain equal access. It was a long fight with many court cases.

The majority rarely if ever will just pass a set of laws giving civil rights to disadvantaged minorities just because they suddenly think that it would be a good idea to rectivfy hundred of years of injustice. No in most cases it takes court rulings to point out to the majority how their long held ideas are in fact denying rights to others. That is how it works.

>

>

>I know - there are a lot of people like you who don't really

>like democracy and want judges to impose whatever laws they

>want. But this desire only exists as long as judges are doing

>what you like.

Absolutely not true. I am a big fan of democracy, but I also realize how are system works. Would you abolish the judiciary, and only let there be "majority rules" laws. I think that you are missing the main point of our constitution.

>

>>

>>The other good news in Massachusetts is that when I read

>>further into the poll results of Massachusetts residents,

>>while 50% agree with the decision, 53% opposed a

>>constitutional amendment, and only 36% supported it. It

>will

>>be interesting to see how this plays out.

>

>Well, the you ust disproved your argument that we needed the

>high-and-mighty, widsom-dripping judges to show us what is

>Right. According to you, the people already favord gay

>marriage, so why not just put it to a vote?

You seem to have some fear of the judiciary. You labeled the Massachusetts justeces as "high and mighty and wisdom dripping" I just pointed out how they are interpreting the Massachusetts provision for equal protection under the law. I don't fear the judiciary, and I kind of like the U.S. system with three branches of government with checks and balances. It certainly isn't perfect, but it has worked pretty well for over 200 years. And I really don't like the altenative. A strong legislative arm with a weak judiciary is a much more frightening concept to me.

RE: Says who?

I am a lot more afraid of a group of judges interpreting the constitution according to their political beliefs because we have very little recourse to get them off the bench. It is a lot more difficult because theoretically they have no constituency to whom they have to go to be re-elected. They can pretty much do as they want. That is a lot more scary to me than having a weak judiciary. When you have a judiciary that is so pro-active they can do pretty much what they want and we then have to work within those guidelines because when legislation is passed that goes against what they have previously decided, the courts really could use their previous judgments to turn back laws that are passed legally and are accepted by most of the judges at other courts. It can be a self-propagating mechanism that actually overturns the laws of the land according to the political beliefs of a few judges.

RE: Says who?

>Doug, your chronology is all wrong and your logic is

>backwards. The laws did not give people thire rights. The

>laws only were written and enacted to codify rulings that were

>made by the courts.

I'm sorry to tell you that you actually don't know what you're talking about. Court decisions are not vague pronouncements of rights. They settle specific disputes. The Brown case did not have anything to do with, say, private sector discrimination or lunch counters or anything else. It merely held that the state was not permitted to provide separate education to children based on race.

Even after Brown, private employers were free to discriminate and not hire blacks; restaurant lunch counters were free to refuse to serve blacks; people were permitted not to sell their homes to blacks. None of that changed with the Brown decision; it changed only when the Civil Rights Act was enacted by our democratically elected Congress.

If you are really laboring under the gross misimpression that Brown settled the issue of race, what do you think all that fuss over the Civil Rights Act was about, and what do you think Martin Luther King's civil rights movement was about - the bulk of which occurred long after Brown? No court could have ruled that private employers are prohibited from discriminating or that businesses were required to serve blacks, since the Constitution, by and large, only governs state action, not those of private actors. Those rights were won ONLY when a majority of Americans became convinced that they were warranted and then approved them democractically.

As for restaurants and offices putting in wheelchair ramps, there is nothing in the Constitution which could remotely be read to required that. Again, the Constitution, for the most part, doesn't govern private conduct; it merely restricts state action. The only thing which requires accomodation to the handicapped is the ADA and other state and local laws which were DEMOCRATICALLY enacted.

>The majority rarely if ever will just pass a set of laws

>giving civil rights to disadvantaged minorities just because

>they suddenly think that it would be a good idea to rectivfy

>hundred of years of injustice.

How can you say this when you just got done telling all of us that a majority of citizens in Mass. favor gay marriage?

Also, after Bowers v. Hardwick upheld sodomy laws, citizens of most of the states that had such laws began to repeal them, because they realized how wrong they were. That is the one potentially damaging consequence of the Lawrence decision, which reversed Bowers (what happened to stare decisis?) and struck sodomy laws as unconstituional - it imposed on the population a change which they were adopting on their own, causing great backlash and resentment.

No in most cases it takes

>court rulings to point out to the majority how their long held

>ideas are in fact denying rights to others. That is how it

>works.

Do you really think judges are so much smarter and more just than the average citizen that only they can see what is Right but your fellow citizens can't? Why would you think that?

How do you feel about what the Supreme Court did with the 2000 election?

>You seem to have some fear of the judiciary.

I don't think it's a good idea to have our laws be dictated by a handful of the unelected anointed. I think it's much better when change occurs because a majority of citizens wants it, not because 7 unelected people wearing a robe decree it.

RE: Says who?

>The serious concern with this decision is that citizens will

>resent the fact that gay marriage is being imposed on them by

>unelected judges, rather than implemented by citizens through

>democratic means.

This unceasing stream of horse pizzle about unelected judges and the dread power of the activist judiciary is almost beneath contempt.

The judiciary is by far the weakest of the three branches. It can only act when called on. It is easily overridden by legislative redrafting. Where the people disagree with a constitutional interpretation from the court of last appeal, the machinery of amendment exists. And no whinging about how unrealistic that is. On average the constitution has been amended once every 8.4 years since the founding.

"Unelected judges"? Have you never read the Federalist?

RE: Says who?

>This unceasing stream of horse pizzle about unelected judges

>and the dread power of the activist judiciary is almost

>beneath contempt.

I know - the idea that laws should be enacted by citizens through their elected representatives, rather than a handful of unelected judges (especially life-tenured ones), is really radical. Sorry to offend your delicate sensibilities and towering academic intellect by advancing such notions.

>The judiciary is by far the weakest of the three branches.

Given that the judiciary can invalidate any act of Congress it wants, but Congress cannot invalidate constitutionally-grounded court decisions, what possible rationale could you have for this delcaration?

It

>can only act when called on.

So fucking what? With regard to every single important or not-even-that-important issue, there will always be a side to call on it.

It is easily overridden by

>legislative redrafting.

Oh, really? The Supreme Court in Lawrence last term just struck down anti-sodomy laws on the ground that individuals are guaranteed the liberty to engage in those acts in the prvacy of their own home. Would you mind telling us how the legislature could even possibly - let alone "easily" - override that decision by "legislative redrafting"?

Or - in honor of the person who started this thread - how about the Goodridge decision? The Mass. legislature does not want to enact gay marriage, but they are forced to by this decision. You should enligthen them, and all of us, and tell us how the legislature could "easily" simply get around that decision through "legislative redrafting". I'm all ears.

>"Unelected judges"? Have you never read the Federalist?

You apparently think that the more pompous and pseudo-intellectual you become, the more convincing your posts will be. You're wrong. They only become more humorous or more nauseating - depending on one's mood.

RE: Says who?

>

>True enough. Our last Presidential "election" proved that. :9

>

I'm getting tired of hearing this tired argument that the U.S. Supreme Court decided the 2000 election. Haven't you seen all of the reports that every drawn out re-examination of the chads and the ballots by independent organizations still resulted in Bush getting more votes than Gore in FL? The Supreme Court may have curtailed the recounts and sped up the process, but the result would have been the same either way.

I'm not even a diehard Bush fan, but perpetuating bad logic hurts the good points you make.

RE: Says who?

G-d, this discussion gets tiresome at times! Hello? The Judiciary is an essential, integral and inseparable PART of our democratic system. You can't have a truly democratic system without executive, legislative and judicial powers.

As for judges being unelected, that is only partially true. In many (perhaps most) states judges ARE elected. And sometimes un-elected! Doug69's friends did quite an electoral job on Rose Bird in California, which I'm sure he's still celebrating!

Federal judges aren't elected, of course, but they're nominated by our democratically elected President (well, Shrub is the exception to that rule) and must go through a confirmation process before our democratically elected Senators. The same process occurs at the state level when judges are appointed and not directly elected.

People scream about the courts and "unelected judges" whenever a decision is handed down that goes against their own beliefs, but purr with approval when the same court issues a decision that confirms their beliefs. I ranted about the Supreme Court decision that handed Bush the election (although my ranting didn't have anything to do with the fact that the Court was unelected; the method of selecting Federal judges is established by the Constitution, which was democratically drafted and adopted). My ranting about that was based on my belief that the justices violated the Constitution and their own precedents by interfering in an issue that's normally the prerogative of the states (the conduct of elections) at a time when the state in question was busily trying to resolve its disputed election. The election decision put a stop to the normal functioning of the state government and imposed an electoral result of the people of the United States. The subsequent recounts are meaningless, in part because none of them was really complete but more importantly because they became irrelevant once the Supreme Court imposed Bush as President before the state of Florida could complete its electoral process. After that, Bush was President regardless of the eventual outcome of the Florida election. That WAS a usurpation of democracy, and will go down as one of the lowest points in American judicial history.

On the other hand, I exulted in the Lawrence decision. The same court, interpreting the Constitution and its own precedents, admitted its error in Bowers, and corrected it, using flawless logic and reasoning.

Doug69 is right that, as the supreme law of the land, the Constitution can incorporate anything, even provisions restricting or denying civil rights, or creating unequal classes of citizens. In fact, our original Constitution did exactly that, which is why it was necessary to incorporate the 14th Amendment. G-d willling, the U.S. will never see its Constitution amended to restrict, rather than expand, the rights of Americans.

Doug69 is wrong about the repeal of sodomy laws in the states, though. In most cases the state laws were repealed as a result of judicial action at the state level (filnding that such laws violated the provisions of the state constitutions) and not through legislative repeal. For example, the Georgia law was invalidated on state constitutional grounds by the Georgia supreme court (ironically, the same court that originally upheld it, leading to the federal Bowers decision). In many of those states, the judges are elected. I don't think any judges have been defeated in an election, though, because of their decisions in favor of repealing state sodomy laws.

In any event, it IS going to be fascinating to see how the Massachusetts marriage decision plays out. Regardless of how we may feel about marriage for ourselves, we don't really have any choice but to support the extension of civil marriage to same-sex couples. The risk of allowing entire groups of people to be excluded from the legal protections and benefits enjoyed by the majority are too great. After all, when you allow the creation one category of second-class citizens, where does that process stop? For example, if as a class gay people aren't entitled under the Constitution to the right to marry civilly, why would it be unconstitutional to lock us all up, or banish us to some island somewhere? Unless we're completely illogical or ignorant, we have to support the proposition that we're entitled to exactly the same rights that all other Americans enjoy under the law. Not anything more, nor anything less. Just the same rights. Whether we choose to exercise our rights is a personal decision. But to make that decision, we first have to actually have the right! And that's where the trend of history is taking us. After being second-class citizens for time immemorial, the courts, the legislature, and the general public are finally coming to the same realization: you can't live in conformity with the basic concept of the Constitution when you exclude any group of citizens from being treated equally under the law.

RE: Says who?

>G-d, this discussion gets tiresome at times! Hello? The

>Judiciary is an essential, integral and inseparable PART of

>our democratic system. You can't have a truly democratic

>system without executive, legislative and judicial powers.

Nobody has said otherwise. But despite being an essential part of our democratic system, judges can nonetheless act UNDEMOCRATICALLY - such as when they invalidate democratically elected laws bsaed upon their personal or ideological distaste for the law, as opposed to because the Constitution prohibits such laws.

>As for judges being unelected, that is only partially true.

>In many (perhaps most) states judges ARE elected.

No federal judge is elected. All have life tenure. And the federal judiciary is far more powerful these days than state court judges, given the routine violations of the largely-forgotten 10th Amendment, combined with the total abuse of the Interstate Commerce Clause, which you and your tyrannical friends have engineererd in order to bring to life the nightmare of the founding fathers of a sprawling, all-powerful federal government.

And even where state court judges are elected, they are usually so in name only, as the election process is structued so that polticial officials really choose them. They also have unusually lnog tenures, and the voting power of the electorate is quite limited.

In New York, for instance, only the lowest level judges are elected; all appellate judges are not. And even those judges who are elected are basically, in reality, appointed by party officials, and they serve unusually long tenures of 14 years. Even when state court judges are elected, it is often in name only.

>Federal judges aren't elected, of course, but they're

>nominated by our democratically elected President (well, Shrub

>is the exception to that rule) . . . .

There you have it - you just negated every belief which you pretended to have in the "democratic nature" of the judiciary by claiming that our current President is not democratically elected - presumably based on the idiotic ground that Supreme Court placed him in office.

Didn't you JUST GET DONE SAYING that the actions and decisons of judges ARE democratic? Wouldn't that necessarily mean - leaving aside the fact that most subequent recounts showed Bush winning - that Bush IS in office by virtue of democratic processes? If you're going to be intellectually dishonest, you should at least do a better job of hiding it.

>People scream about the courts and "unelected judges" whenever

>a decision is handed down that goes against their own beliefs,

>but purr with approval when the same court issues a decision

>that confirms their beliefs.

No - not everyone does this, but as you demonstrated - and admitted - YOU do it. The creator of this thread does it. But not everyone is reeking of such rank hypocrisy. That's why you will reap what you sow. If you want judges to be vested with this great power, you're just going to have to accept that sometimes they will exercise it in ways that you dislike. That's precsiely what it's so crucial to restrain the judges - not just the ones you don't like, but also the ones you do like - from invalidating laws except when the Constitution actually prohibits such laws.

I ranted about the Supreme Court

>decision that handed Bush the election (although my ranting

>didn't have anything to do with the fact that the Court was

>unelected; the method of selecting Federal judges is

>established by the Constitution, which was democratically

>drafted and adopted).

But you just said that Bush wasn't democratically elected, rendering the above disqualifier totally false.

My ranting about that was based on my

>belief that the justices violated the Constitution and their

>own precedents by interfering in an issue that's normally the

>prerogative of the states (the conduct of elections) at a time

>when the state in question was busily trying to resolve its

>disputed election.

How come it's ok for the judges to "violate their own precedents" when it comes to precedents you don't like (such as Bowers), but it's awful and undemocratic for them to "violate their own precedents" (as you claim they did in the 2000 election) when it comes to precedents that you do like? You can't have it both ways, though you are certainly trying quite hard to have exactly that.

RE: Says who?

>How come it's ok for the judges to "violate their own

>precedents" when it comes to precedents you don't like (such

>as Bowers), but it's awful and undemocratic for them to

>"violate their own precedents" (as you claim they did in the

>2000 election) when it comes to precedents that you do like?

>You can't have it both ways, though you are certainly trying

>quite hard to have exactly that.

>

Well, you're perched so high on your high horse that you evidently couldn't understand what I wrote.

I understand perfectly well that judges will sometimes decide cases in ways that I don't like or agree with. As long as their decisions are intellectually honest I can live with that. The decision giving Bush the presidency was the most intellectually DIShonest thing I have ever seen, period. It also went against all of this court's own recent precedents about states' rights, which got blown out of the water by the election decision. One could go on and on about all the flaws in that decision, but other, finer writers have already done that, and will continue to do so because it's a decision that will be written about for decades.

Bowers was another intellectually dishonest decision. In this case, the court finally had the courage to admit that its earlier decision was wrongly decided and corrected its error, which IS intellectually honest. The decision overturning Bowers was also one of the best written and best reasoned decisions I've seen in a very long time. It's actually quite stunning that both of these decisions came from the same court.

As for violating their own precedents, the rule of "stare decisis" still is of great weight in our judicial system. While courts aren't bound by it, it's only in unusual circumstances that a court will reverse a decision, or a line of decisions. But time sometimes reveals the error of decisions (as in the case of Bowers) and the court is entitled to reconsider. As long as its reasons are clear and (again) intellectually honest, that fine. It's part of how our system is supposed to work. We're not supposed to have to be stuck with bad case law even when it becomes apparent that something is seriously wrong. That's how we eventually got rid of the Jim Crow laws, many of which were the result of earlier court cases stretching back to the Dred Scott decision.

You keep gliding right over the fact that the judicial system is part and parcel of our democracy. It's not more or less democratic than the other parts. It's an integral element of the system, which couldn't function at all without it. Without the judicial system, we wouldn't have a democracy. Evidently you don't believe in checks and balances, which is one of the critical roles the courts serve? And yes, federal judges are appointed for life. I think we all knew that? That was part of the constitutional design for the Republic developed by the Founders, who are supposed to be utterly revered by strict constructionists like you. Except, of course, you and your ilk don't have any compunction at all in ignoring the intentions of the Founders when it serves your purposes, like imposing that triumph of mediocrity on the U.S. as it's unelected President.

Getting back to our subject, like all parts of our democratic system, the courts occasionally screw up, since they're run by humans and not by angels. But Congress and the President screw up, too, and that's why the courts are there to provide checks and balances to keep them from going overboard. Similarly, Congress and the President provide checks and balances on the Judiciary if and when IT goes too far. Interestingly, that doesn't happen very often, which suggests that on the whole the judicial system works the way it was intended. Cases like the Bush election decision, thank G-d, are the exception and not an everyday occurrence.

RE: Says who?

>Haven't you seen all

>of the reports that every drawn out re-examination of the

>chads and the ballots by independent organizations still

>resulted in Bush getting more votes than Gore in FL?

No, I haven't. In fact, I haven't seen a single one. Of course, I did generally tune out anything remotely political after the media-induced numbness of the last election.

I'd love it if you could provide a credible source. I think I'm recovered enough to think about it again.

But if we go there, let's take it over to the politics forum (which I still don't read).

RE: Says who?

>You keep gliding right over the fact that the judicial system

>is part and parcel of our democracy. It's not more or less

>democratic than the other parts. It's an integral element of

>the system, which couldn't function at all without it.

>Without the judicial system, we wouldn't have a democracy.

>Evidently you don't believe in checks and balances, which is

>one of the critical roles the courts serve? And yes, federal

>judges are appointed for life. I think we all knew that?

>That was part of the constitutional design for the Republic

>developed by the Founders, who are supposed to be utterly

>revered by strict constructionists like you. Except, of

>course, you and your ilk don't have any compunction at all in

>ignoring the intentions of the Founders when it serves your

>purposes, like imposing that triumph of mediocrity on the U.S.

>as it's unelected President.

Bravo! This forum needs a key that auto-inserts these words into any reply to Doug.

Others may have even better auto-insertion ideas. :7

RE: Says who?

What so many of the posters seem to forget about the Florida election is that the state court actually invalidated a state law that the decision as to the winner of election must be certified within a certain number of days. The court kept extending that number of days even though the legislation specifically set forth the number of days within which the election must be certified. The end result is that the state court was in error first before this even got to the Supreme Court and the Supreme Court in its decision validated the original counts.

RE: Says who?

>What so many of the posters seem to forget about the Florida

>election is that the state court actually invalidated a state

>law that the decision as to the winner of election must be

>certified within a certain number of days. The court kept

>extending that number of days even though the legislation

>specifically set forth the number of days within which the

>election must be certified. The end result is that the state

>court was in error first before this even got to the Supreme

>Court and the Supreme Court in its decision validated the

>original counts.

But the Florida courts based their overriding of the state law on the state constitution, which they were authorized and indeed obliged to do.

Then, when the case came before the U.S. Supreme Court, Souter pointed out that Congress is where the Constitution provides for electoral conflicts -- being inherently political, not juridical -- to be worked out:

JUSTICE SOUTER, with whom JUSTICE BREYER joins and with whom JUSTICE STEVENS and JUSTICE GINSBURG join with regard to all but Part C, dissenting.

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. ___ (per curiam), or this case, and should not have stopped Florida’s attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court’s orders during the period of this review, see Bush v. Gore, post at ____ (slip op., at 1). If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U. S. C. §15. The case being before us, however, its resolution by the majority is another erroneous decision.

Bush won on the votes

>I'd love it if you could provide a credible source. I think

>I'm recovered enough to think about it again.

Deej - Do you think the New York Times is "credible"? They concluded DEFINITIVELY that Bush would have won had all votes been re-counted or had Gore been given the re-count he wanted.

Here's the key except from the abstract of the article on the New York Times site:

NATIONAL DESK | November 12, 2001, Monday

EXAMINING THE VOTE: THE OVERVIEW;

Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote

By FORD FESSENDEN and JOHN M. BRODER (NYT) 2527 words

Late Edition - Final , Section A , Page 1 , Column 1

ABSTRACT -

Comprehensive review of uncounted Florida ballots from 2000 presidential election, conducted by consortium of eight news organizations and professional statisticians, indicates George W Bush would have won election even if US Supreme Court allowed statewide manual recount of votes ordered by state Supreme Court; finds, contrary to allegations by partisans of Vice Pres Al Gore, that Supreme Court did not award election to Bush; says that Bush would have retained slender margin if Florida court order to recount more than 43,000 ballots was not reversed by Supreme Court, and that even under strategy Gore pursued at beginning of standoff, of filing suit to force recounts in four predominantly Democratic counties, Bush would have retained lead . . . .