Gay Marriage Legal now in Canada

[cosmo]

Wasn't it the courts who passed this into law, instead of the people? I'm not educated as to how Canadian law works, but it looks to me as if the judges are becoming tyrants, just as they are here in America.

Judicial tyranny is the law of the land here in America. If something passes through the legislature here in America, by the people, a radical judge will block the passing of the bill and tell us how they want this country to behave.

For example, states here in America have decided that they want to ban gay marriage, by voting this into law. The next day, a judge will push aside the votes of the people and impose their views on the masses, instead of upholding the law.

It's sickening to say the least.

[toasty]

Judicial tyranny is the law of the land here in America. If something passes through the legislature here in America, by the people, a radical judge will block the passing of the bill and tell us how they want this country to behave.

For example, states here in America have decided that they want to ban gay marriage, by voting this into law. The next day, a judge will push aside the votes of the people and impose their views on the masses, instead of upholding the law.

Dude, I'm not sure you know what you're talking about here. First, your comment suggests that the people pass legislation, which is not the general way of going about things. Furthermore, a "radical judge" does not block the passing of a bill. A judge's role is limited to reviewing and construing legislation that have actually become statutes in light of the constitution(s) and relevant statutory law -- this can only occur AFTER a bill becomes a statute AND someone challenges it. Judges do not sit at their benches picking off laws that don't meet with their worldview. That's absurd.

Here's how it breaks down with the whole checks-and-balances thing we've got going here. The judicial branch checks the other two branches by insuring that their actions comport with the relevant constitutions (state or federal). If the legislature creates a law that in contradictory to the constitution, the courts can strike down the legislation as unconstitutional if and only if the question is before them -- a judge cannot just strike down a law without a controversy challenging the constitutionality of that law. The legislature, in turn, has a check on the judicial branch -- they can propose an amendment to the constitution that, if ratified by the people and signed by the president, would effectively make the law and the constitution consistent and the law would then cease to be unconstitutional.

Federal law trumps state law and a state constitution cannot be inconsistent with the federal constitution when it comes to certain rights, so amending a state consititution will not allow you to do something you could not do under the federal constitution. That is why Bush is so gung ho about a constitutional amendment to ban gay marriage -- it is the only way that he can be assured that no state gay marriage ban is overruled by the US Supreme Court as unconstitutional.

[Yao]

You beat me to it again Toasty...dammit.

To make it simple: a judge cannot block or approve a new law on his own opinion: he has to do this with the constitution in mind. And the case must be brought before court if a judge is to pass judgment on it.

Even over here it works the same way.

[davetlv]

Cosmo, if you want to know what actually happened in Canada have a read of this!

http://news.bbc.co.uk/2/hi/americas/4082819.stm

[cosmo]

So, are you guys saying that judicial activism is not a problem here in America? Then, why is the 3-4 judicial spots that will be open during the next 4 years such a big deal? The fact is, is that the only way the far left in this country can get their agenda across, is through the courts. They can't have it passed through the legislature. So they have to resort to striking down law through the court system if something they do not agree with passes through the legislature, and actually becomes law. The problem in todays world is the meaning of the actual words themselves, and how words are being twisted to actually mean what someone thinks they mean.

http://www.amatecon.com/etext/jar/jar.html

If you don't think judicial tyranny exists, and is a threat to democracy for futures sake, think again.

[toasty]

"Judicial activism" is nothing more than a term people have come up with to describe judicial rulings with which they don't agree. With all due respect, your vantage point is clearly one of someone from the outside looking in, trying to make heads or tails of why a law was struck down or upheld.

Trial judges are bound to follow precendent set by the appellate courts above them, and those appellate courts are bound to follow the decisions of appellate courts above them, up through the USSC; trust me on this one, judges do NOT like being reversed, and do not generally deviate from precedent if there is something on point. Where the gray area comes in is where you are presenting a novel question of law on which there is no authority and a judge has to anticipate how a higher court will rule, or in the case of the highest levels, determine how a law is to be applied.

Although it is my sincere belief that most judges try to play it straight down the middle to the extent possible, it is fair to say that there are two camps of judicial thought -- those who apply the language of the constitution/relevant statutes strictly as written, and those who look to the underlying policies of that language and construe them with that framework in mind. This is not a new development in the law -- it has been around since Marbury v. Madison when the concept of judicial review was first developed -- and there is ample support for both schools of thought.

cosmo, you obviously come from the "strict constructionist" school of thought, and that is your prerogative. I happen to think that it makes sense when construing the constitution to recognize that it is well over 200 years old and that there are things are a part of our lives now that were not anticipated by our founding fathers.

For example, over the course of litigation, there is a process where both sides have to turn over documents that they have that are relevant to the case. Up until literally a couple of years ago, there was no mention of electronic data in the rules that covered this practice. Obviously, in this day and age, electronic data is an important, if not the preferred, means of storing information. Recognizing this, some judges interpreted the rule to include electronic data nothwithstanding that the terms appeared nowhere in the text, which should make sense to any rational person. In the wake of these rulings, the language of the rule was changed. Que sera sera.

The point is that just because you happen to disagree with a ruling doesn't mean that it is the product of some left-leaning maverick. There is now, and has always been, a great deal of support for both methods of statutory interpretation, and judges at the highest levels are often appointed based upon where they fall on this issue. That's how it works.

[runningman]

Luckily i was born after confederation where we sent England home.. (But with that topic brought up that is another reason why we should have gone to war) so i am not apart of the angilican church.. The church of England is the most corrpt ever.. Henry the 8th didn't like roman cathilic anymore so just started a new one with his beliefs.. Divorce.. instead of killing his wives like the one that lived in Heaver Castle for you english guys out there to help me.. As for the pope Davetlv he is the head of the biggest corporation known to man.. The Roman Catholic church is big and by pissing him off is not going to help your country.. That is why i need to leave here.. i hope i move to the USA in like 6-10 months.. Dave if gay people could be together and not piss off the pope then i would be for it.. But pissing off my "real" leader is not the way for me to want to be apart of this country.. By doing this they have promoted "gay marriage" as a "new thing to do" almost as if "everybodies doing it so lets make it cool".. i am sorry but i don't care if your gay but don't try to make it out to be the "normal thing to do".. its not normal.. i am sorry if i am offending any gay people but i don't believe that it is the way it was meant to be.. not because of the bible or Qu'ran or religion i just feel like it is wrong and how can you not like woman for fuck sake?? .. sorry.. out of character.. but i just don't want to be apart of a country that allows this type of arrangement to happen.. It's just wrong.. I really don't want to offend you Dave because you said you were gay or anybody else but i just don't believe that it is the way it is supposed to be..But you are going to come back and say "no offense taken but you don't want me to have the same civil rights as you because i like men?".. true i see your arguement.. you are human and should get the same right as everybody else.. but .. I don't know tough call for the politicians to make..

[cosmo]

"Judicial activism" is nothing more than a term people have come up with to describe judicial rulings with which they don't agree. With all due respect, your vantage point is clearly one of someone from the outside looking in, trying to make heads or tails of why a law was struck down or upheld.

Trial judges are bound to follow precendent set by the appellate courts above them, and those appellate courts are bound to follow the decisions of appellate courts above them, up through the USSC; trust me on this one, judges do NOT like being reversed, and do not generally deviate from precedent if there is something on point. Where the gray area comes in is where you are presenting a novel question of law on which there is no authority and a judge has to anticipate how a higher court will rule, or in the case of the highest levels, determine how a law is to be applied.

Although it is my sincere belief that most judges try to play it straight down the middle to the extent possible, it is fair to say that there are two camps of judicial thought -- those who apply the language of the constitution/relevant statutes strictly as written, and those who look to the underlying policies of that language and construe them with that framework in mind. This is not a new development in the law -- it has been around since Marbury v. Madison when the concept of judicial review was first developed -- and there is ample support for both schools of thought.

cosmo, you obviously come from the "strict constructionist" school of thought, and that is your prerogative. I happen to think that it makes sense when construing the constitution to recognize that it is well over 200 years old and that there are things are a part of our lives now that were not anticipated by our founding fathers.

For example, over the course of litigation, there is a process where both sides have to turn over documents that they have that are relevant to the case. Up until literally a couple of years ago, there was no mention of electronic data in the rules that covered this practice. Obviously, in this day and age, electronic data is an important, if not the preferred, means of storing information. Recognizing this, some judges interpreted the rule to include electronic data nothwithstanding that the terms appeared nowhere in the text, which should make sense to any rational person. In the wake of these rulings, the language of the rule was changed. Que sera sera.

The point is that just because you happen to disagree with a ruling doesn't mean that it is the product of some left-leaning maverick. There is now, and has always been, a great deal of support for both methods of statutory interpretation, and judges at the highest levels are often appointed based upon where they fall on this issue. That's how it works.

It is not the job of the court to rewrite the law, to create rights or to make policy decisions that would be properly made by the legislature.

If a law is clearly unconstitutional, then it is the job of the courts to declare it so. But like I said earlier, there are clearly duties that judges should do to uphold the law. Judges shouldn't be legislating from the bench.

That is the problem I have with the so called 'activist judges'.

[toasty]

It is not the job of the court to rewrite the law, to create rights or to make policy decisions that would be properly made by the legislature.

If a law is clearly unconstitutional, then it is the job of the courts to declare it so. But like I said earlier, there are clearly duties that judges should do to uphold the law. Judges shouldn't be legislating from the bench.

OK, but to get back to the gay marriage thing for a moment, the term "marriage" does not appear in the US Constitution, nor is the concept of heterosexual marriage discussed in the US Code or the federal regulations. Many states are similarly situated (although far less after the recent election cycle and the gay marriage amendments). In such a circumstance, there is no law to be rewritten and no rights are created unless you subscribe to the idea that gay people are not entitled to the same rights as anyone else. There isn't any language to strictly construe, so a judge has no choice but to rely upon interpretation -- that is different from legislating from the benches.

[cosmo]

It is not the job of the court to rewrite the law, to create rights or to make policy decisions that would be properly made by the legislature.

If a law is clearly unconstitutional, then it is the job of the courts to declare it so. But like I said earlier, there are clearly duties that judges should do to uphold the law. Judges shouldn't be legislating from the bench.

OK, but to get back to the gay marriage thing for a moment, the term "marriage" does not appear in the US Constitution, nor is the concept of heterosexual marriage discussed in the US Code or the federal regulations. Many states are similarly situated (although far less after the recent election cycle and the gay marriage amendments). In such a circumstance, there is no law to be rewritten and no rights are created unless you subscribe to the idea that gay people are not entitled to the same rights as anyone else. There isn't any language to strictly construe, so a judge has no choice but to rely upon interpretation -- that is different from legislating from the benches.

So, should we pass gay marriage in the legislature, or have a judge create and write new law? As it pertains to the state legislature of course.

The states should decide whether gay marriage should be legal in each state. This is where the DOMA comes in, if other states do not recognize gay marriage.

Let the people decide. If the people of Massachusets, or Oregon want gay marriage, so be it.

[Yao]

Referendum is still the most democratic institution in society I think...

Runningman: Also among animals gay conduct has been recorded. It is natural, wether you like it or not.
Apart from that, I can't understand how people can take a book so stricly that has been written by people and is therefore falleable. If it happens in nature, how can it be against God, who created it (at least that is what you believe I assume)?

You seem to have little room in your life for people that think or act differently from what the Bible prescribes. That is too bad, really. Half of the students on my department (African studies) are very religious, and there's only one that has eventually accepted me the way I am. The other ones have tried to really convert me, but as it became clear that that wasn't going to happen, they broke off contact with me.

People having their own religion doesn't bother me, it starts bothering me when they're coming to me saying what I should do and do not according to their beliefs.
Gay marriage does in no way affect Christians' lives personally and physically. Therefore gay marriage should not be banned on religious grounds.

I'm glad your god has given you a love for good music though :wink:

[picklemonkey]

Re: Gay Marriage Legal now in Canada

You might be right, but if marriage predates the birth of today's biggest religions, in what form did it exist before that?

[picklemonkey]

who cares let gays get married, makes no odds in my books..

couldn't have said it better. I don't give a shit if they get married, because it's not going to change my life one bit. This shit should've been done years ago in every country, instead of preventing people basic rights

[toasty]

So, should we pass gay marriage in the legislature, or have a judge create and write new law? As it pertains to the state legislature of course.

Depends upon what you mean by "pass gay marriage in the legislature, or have a judge create and write new law."

Many states' statutes do not address the issue one way or the other. What then is the status quo, and what would constitute "new law?" Even if you believe that homosexuality is agaisnt natural law, is a crime against nature or other such rubbish, there is nothing in a lot of states that would guide us as to what the current law on the issue is. This is important, by the way, because the standard for invalidating a law is different than the standard for upholding it.

In my mind, the Fourteenth Amendment makes the answer pretty easy:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I think the right to marry and enjoy the benefits thereof falls into the "life, liberty, or property" category. That's definitely just my opinion, though.

The states should decide whether gay marriage should be legal in each state. This is where the DOMA comes in, if other states do not recognize gay marriage.

Let the people decide. If the people of Massachusets, or Oregon want gay marriage, so be it.

Although I'm generally an advocate of states' rights, I'm not sure it would work here, because eventually you are going to run into a situation where there will be a dispute that is centered upon a state that does not allow gay marriage being asked to recognize one, or vice-versa (in the insurance context, for example). I believe that eventually, the Supreme Court is going to have to step in and decide the issue one way or the other. Despite the fact that 7 of the current justices are republican appointees, the Court is fairly balanced right now, with three judges that are reliably conservative, three that are reliably liberal, and three that are considered centrist. If the Court does address the issue and determines that gay marriage is acceptable, will that be an example of "judicial activism?"

[runningman]

yao i have a lot of room in my life for different people.. I just don't think they should use the religious term "marriage" for this.. they should call it something else.. A union or arrangement.. but they aren't married.. I wonder how many gay people there are in this server??