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Read The Ruling From Federal Judge Shelby Striking Down Ban On Same-Sex Marriage In Utah

December 20, 2013

Masterful.

Sweeping.

Correct.

6 Comments leave one →
  1. December 27, 2013 9:59 PM

    Tom,

    Actually the education at Hancock was lacking in many ways, and I was only mindful of that after I graduated and made my way into the world. I very much–honestly–find the argument in the large about these concepts most interesting. We may differ–but these ideas–on both sides matter. I have found–and I offer only if you care to have a rather fascinating and engaging read about all these types of issues from the start of our nation to the present–the following. James MacGregor Burns starts the first of three volumes with “The Vineyard of Liberty” and it presents how the term liberty and freedom has changed and morphed. Could Jefferson buy the Louisiana Purchase with out constitutional permission, and how did the Supreme Court begin, and did that too run counter to constitutional limits. On and one, issues after issues as the decades roll along—this is a college course in book form–it is that good. I offer it only as a thought if this stuff intrigues you. I bought the three books over time as they came on sale over Amazon, etc and love them, and hope you might too.

    If we do not chat before the New Year—then have a Happy New Year.

  2. Tom permalink
    December 27, 2013 6:04 PM

    While I am sure the quality of education in Hancock was beyond reproach, I was taught the amendment process. I think we could both cite examples of informal alteration of the meaning of the constitution we both favor, but if nothing is constant then what rights do we have? The amendment process requires a true national consensus, and only then after slow and careful debate. That politicians lack the will or that the nation is divided on issues is an argument for the amendment process and not against it.

  3. December 25, 2013 8:27 PM

    Tom,

    Thanks for your comment.

    A living constitution is a fact. It is something that was taught and understood back when I was a teenager in high school, and only has become more real as I have added to my reading and studying over the decades. There has been a living constitution since the very beginning of our republic.

    To state, as the ‘originalists’ do, that the words of the Constitution do not evolve with time is a seriously flawed idea. To pretend that the living America of ideas and events does not necessitate a Constitution that bends and adapts within the framework of guiding principles is one of the most bizarre and dangerous concepts that has ever been suggested. Pragmatic and logical citizens understand that past decisions made by the courts, public needs and expectations, along with the larger values that were implied in the Constitution, are needed to be used by judges when making rulings.

    As an example one of the issues that conservatives rail against is the idea that ‘privacy’ is protected in the Constitution. While it is true that the Constitution does not mention the right of privacy, over time there has been recognition that privacy is an unenumerated right. The Griswold Case is one that every high school kid learns about; as it was the first time that the Constitution protected a right to privacy. In that case it was about the right to contraceptives. In 1973 Roe v. Wade the issue of privacy was a central argument and focus, this time for the right of women to opt for an abortion. In the famed Lawrence v. Texas, privacy was used to strike down a law against gay sex.

    With a bit of a smile on my face I ask that you might recall this news story from January 2011 that underscores my point.

    “Members of the House might have thought they were bringing the Constitution alive by reading it aloud on Thursday. But they made a crucial error by excising its history. When they chose to deliberately drop the sections that became obsolete or offensive, and which were later amended, they missed a chance to demonstrate that this document is not nailed to the door of the past. It remains vital precisely because it can be reimagined.
    Having decided to spend their first moments in power proclaiming their devotion to the Constitution, Republican leaders might at least have read the whole thing. The part, for instance, where slaves “bound to service” are counted as three-fifths of a person. The part where fugitive slaves cannot gain their freedom by escaping to a free state. Or the part where ordinary citizens do not actually get a direct vote for their senator.”

  4. Tom permalink
    December 24, 2013 11:26 PM

    I would be very careful of suggesting that the Constitution is a living document shaped by the needs of a contemporary society; this is the pathway to oppression. Citizens and lawmakers who don’t like the constitution as it is should follow the amendment process. Everything else is just making stuff up and lying to yourself and the future.

    I realize you don’t like Dale’s slippery slope arguments, but he merely applies and follows the reasoning of the “living document” theory which is to say “screw the constitution.” For example, I’m sure you’ll note the recent polygamy case in Utah where the judge ruled for the polygamists based on legal arguments from LGBT cases and legislation.

    And to oppose polygamy is, I guess, bigotry.

  5. December 21, 2013 9:31 AM

    Your comment misses the whole point of how the constitution is a living document and is shaped by the needs of society. It always has been that way. That is my first point, and second, you seem to desire to cheapen and disregard the sincere and easily argued merits of full civil rights for a very sizable number of your fellow citizens. You are a better man than what this comment of yours suggests.

  6. December 21, 2013 8:25 AM

    How so when there is no right to marry in the Constitution? There is no right for LGBT or any other kind of human to marry whomever or whatever they want. Marriage is a social convention that states have chosen to allow and incorporate in state laws. Shall we construe the same Constitutional amendments for the same reason to permit five-year olds to marry or drink beer in bars? Or does equal protection under the law not apply to five-year olds? Or does sexuality have more equal protection under the law than age? If so, for what reason? The argument in Utah is flawed. The courts are now allowing a social convention to become legal even when the law does not permit it. Will a group of citizens now seek equality under the law because they are not married but seek the same benefits that married couples have? Or is it acceptable to discriminate against single LGBT and other types of humans? Doesn’t the 14th amendment apply to single people when the law discriminates against them? Why not?
    Sadly, America can no longer pass a Constitutional Amendment that safeguards the rights of all sexes and non sexed people to marry. That was the correct approach. Instead the courts choose to twist the law to benefit a percentage of the population. That twisting of the law now allows others to seek nondiscrimination for other reasons. I am tempted to consider seeking unemployment benefit for my grandchildren using the exact same Constitutional positions. The courts will twist in the wind when they rule that age discrimination is not the same age as sex discrimination and that states can discriminate by age at will. And I can hardly wait until I can sue the Ho Chunk tribe and the state of Wisconsin for denying me equal fishing rights because of my race. I will use Utah’s argument for same sex marriage as an example that individual protections trump all other types of discriminatory law established by the state.

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