Political Crossfire Forums

[StrangerWitCandy]

http://www.cnn.com/2006/LAW/10/25/jersey.samesex.ap/index.html

8:)

Quote: But the court left it to the legislature to determine whether the state will honor gay marriage or some other form of civil union.

We'll see!

[LostSoul3412]

:clap:

[Enoch]

Good job New Jersey! It's a step in the right direction toward equality. :-D

[F'losrix]

After a cursory read, it appears to be a 'friendlier' opinion than what came out of the New York and Washington high courts, but still leaves it up to the legislature to act.

Anyone know what happens if the legislature fails to provide some form of 'equalizing' law in the 180 days mandated by the court? I'm willing to bet a whole lot of nothing, since courts don't have the power to enforce their own rulings.

As StrangerWitCandy said, "we'll see".

[John Galt]

Disconcerning:

3. New Jersey's marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced same-sex marriage. (pp. 25-28)


Three decades ago, Justice (then Judge) Handler wrote that “[d]espite winds of change,” there was almost a universal recognition that “a lawful marriage requires the performance of a ceremonial marriage of two persons of the opposite sex, a male and a female.” M.T. v. J.T., 140 N.J. Super. 77, 83-84 (App. Div.), certif. denied, 71 N.J. 345 (1976). With the exception of Massachusetts, every state’s law, explicitly or implicitly, defines marriage to mean the union of a man and a woman. Although today there is a nationwide public debate raging over whether same-sex marriage should be authorized under the laws or constitutions of the various states, the framers of the 1947 New Jersey Constitution, much less the drafters of our 28 marriage statutes, could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced the right of a person to marry someone of his or her own sex. See, e.g., Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (“The institution of marriage as a union of man and woman . . . is as old as the book of Genesis.”), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972); Nancy F. Cott, Public Vows: A History of Marriage and the Nation 2-3 (2000) (describing particular model of marriage “deeply implanted” in United States history to be “lifelong, faithful monogamy, formed by the mutual consent of a man and a woman”); see also 1 U.S.C.A. § 7 (defining under Federal Defense of Marriage Act “the word ‘marriage’ [to] mean[] only a legal union between one man and one woman as husband and wife”).

Not as disconcerning:

13. The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union. Because this State has no experience with a civil union construct, the Court will not speculate that identical schemes offering equal rights and benefits would create a distinction that would offend Article I, Paragraph 1, and will not presume that a difference in name is of constitutional magnitude. New language is developing to describe new social and familial relationships, and in time will find a place in our common vocabulary. However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship. (pp. 57-63)

Disconcerning:

15. To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision. (p. 65)

What I am mainly concerned with this decision is the lack of care for stare decisis and the idea that times changing somehow changes meaning of laws. It is very disturbing. Secondly, although I can't much on this as it is a state issue, the idea that positive "rights" in the form of benefits are somehow "constitutional rights" makes me not like this decision.

[ToonArmyIsComing]

John Galt wrote: What I am mainly concerned with this decision is the lack of care for stare decisis and the idea that times changing somehow changes meaning of laws. It is very disturbing.

Times change the way a law is interpreted Galt. For instance, when constitution was written, there were no airplanes, internet or women running around. So, essentially, the way things like jurisdiction, equality, etc are implemented will be different in 50 years from now!

John Galt wrote: Secondly, although I can't much on this as it is a state issue, the idea that positive "rights" in the form of benefits are somehow "constitutional rights" makes me not like this decision.

The way you interpret the law matters IMHO. I am not an expert on the American constitution, but the Canadian constitution can be interpreted both in terms of negative rights and positive rights depending on your perspective. And various rulings throughout the years have shown that different people have different readings of the same document. Now, who is actually right? I am not sure if one could answer that question definitively.

[John Galt]

ToonArmyIsComing wrote: John Galt wrote: What I am mainly concerned with this decision is the lack of care for stare decisis and the idea that times changing somehow changes meaning of laws. It is very disturbing.

Times change the way a law is interpreted Galt. For instance, when constitution was written, there were no airplanes, internet or women running around. So, essentially, the way things like jurisdiction, equality, etc are implemented will be different in 50 years from now!

John Galt wrote: Secondly, although I can't much on this as it is a state issue, the idea that positive "rights" in the form of benefits are somehow "constitutional rights" makes me not like this decision.

The way you interpret the law matters IMHO. I am not an expert on the American constitution, but the Canadian constitution can be interpreted both in terms of negative rights and positive rights depending on your perspective. And various rulings throughout the years have shown that different people have different readings of the same document. Now, who is actually right? I am not sure if one could answer that question definitively.

There is no such thing as "positive rights" and even if there was there is no such legal rights enshrined in the Constitution. As for inerpretation, yes, times change, but the law remains the same. It has to. If it changes then the law means nothing.

[ElvinKnight]

http://www.nytimes.com/2006/10/27/us/politics/27marriage.html

2 years ago it was a ruling in favor of gay marriage in N.E. that the suedo conservatives used to ignite their base. I am not gay, so I know I don't understand how it must feel to be denied these rights, I am sympathetic, and feel it is very wrong that so many people in this country want to deny loving couples basic legal rights... but really, these cases seem to appear at the wrong time to ultimately, in the bigger picture, help these causes. If the Republicans rally around this (or even get enough of a lift to get away easier with their usual dirty tricks, AGAIN), and retain both houses of congress, it will hurt the gay cause, not help it. It will also hurt the Constitution of the US, freedom and democracy in America, world peace and many other things dear to most freedom loving people. People need to start considering how their actions, even their victories, may impact the bigger picture... 1 step forward, 3 steps back will not get you where you want to go. I am sure this is an emotional issue for many gays, I am sure it was for the couples that brought the case... I just hope and pray that they and all of us don't regret this small victory for justice, and end up loosing even more justice that we took for granted than we already have (PATRIOT ACT, MILITARY TRIBUNAL ACT, ILLEGAL WIRETAPPING)... there are other issues to consider! I pray to God that this doesn't let the current "leadership" hold on to power for another 2 years... none of us, especially gays, may survive that!

[F'losrix]

So, blame the gay people if Republicans retain majorities in Congress after the November 2006 elections?

So sick of being the scapegoat...

[ElvinKnight]

F'losrix wrote: So, blame the gay people if Republicans retain majorities in Congress after the November 2006 elections?

So sick of being the scapegoat...

Hmmm. I am sorry you took it that way. I knew someone would. I am not blaming anyone. I am bemoaning handing the current "leadership" of this country anything with which to energize their base of ignorant hateful bigots, and distract the easily distracted from the real issues, or at least from the few issues like Iraq and North Korea, that had them on the run.

I saw a clip of a recent interview with Nancy Pelosi where she was talking about taxes that I had a similar reaction to... except I don't think her cautious, halting and less than decisive and unconvincing answers were nearly as an emotional fire on gasoline rallying cry for the rabid right, a far right that was feeling less than enthusiastic about this election. Maybe they still are. The election hasn't happened yet.

I am tired of people not thinking beyond their most immediate needs and wants, even when they are justly deserved, instead of the greater good. I don't single out gays for that. That's true of most people. I am fed up with people reacting emotionally, when reason is called for (even for them to ultimately be successful at achieving their goals). I am tiered of the mindless squabbling of special interests, on both the left and the right, that keeps most of us on all sides from getting what we need, want and deserve, while a few take advantage of the anarchy to take everything for themselves. Who's to blame for all that? We are. All of us. Not gays, or whites or blacks, or men or women or Christians or Muslims. All of us.

This one just happens to be on the front page of the New York Times on-line less than 2 weeks from an important mid-term election. Couldn't be worse timing for a ruling that I am otherwise happy about.

... and how do the couples, lawyers and judge in this case, and the timing of this ruling reflect in any way on all gay people? I know some gay people that agree with me on this. That the timing of this is bad, and those who brought the case weren't thinking about timing in a strategic way for the larger cause.

Granted, I am a white heterosexual male, and so probably in the only group it's PC to bash, but I'm also not big on the PC thing. People are people as far as I am concerned. We too often identify with some label that makes us different, "special", and get all sensitive over it, when in fact we are all much more alike... and both not as special as we think, and in a way we become blind to by identifying with our differences, really more special than we can imagine. All of us.

[ToonArmyIsComing]

John Galt wrote: There is no such thing as "positive rights"

Galt, things like marriage rights, education, public health care, etc are positive rights. They do exist even in the US as far as I can tell!

John Galt wrote: and even if there was there is no such legal rights enshrined in the Constitution.

Well, that's true, but still they do exist because of the various legislations that have been passed by the US government.

John Galt wrote: As for inerpretation, yes, times change, but the law remains the same. It has to. If it changes then the law means nothing.

Galt, the application of the law always depends on the situation and time, so the way a law is interpreted in the courts in reality depends on the judges who apply and interpret these laws. And judges in reality are affected by their own views of laws and society. In effect, ALL judges are activist judges even if they deny it because all of them are applying their own understanding of the law affected by the events in the society. A law that was passed in 1950s could be deemed unconstitutional today because of a new way of applying the interpretation of the constitution. For instance, you can look at the sodomy laws. Maybe if the Roe v. Wade was heard today, it would have led to a different outcome, so it is not as black and white.

[John Galt]

ToonArmyIsComing wrote: John Galt wrote: There is no such thing as "positive rights"

Galt, things like marriage rights, education, public health care, etc are positive rights. They do exist even in the US as far as I can tell!

John Galt wrote: and even if there was there is no such legal rights enshrined in the Constitution.

Well, that's true, but still they do exist because of the various legislations that have been passed by the US government.

As "rights"? I don't think so.

Quote: John Galt wrote: As for inerpretation, yes, times change, but the law remains the same. It has to. If it changes then the law means nothing.

Galt, the application of the law always depends on the situation and time, so the way a law is interpreted in the courts in reality depends on the judges who apply and interpret these laws. And judges in reality are affected by their own views of laws and society. In effect, ALL judges are activist judges even if they deny it because all of them are applying their own understanding of the law affected by the events in the society. A law that was passed in 1950s could be deemed unconstitutional today because of a new way of applying the interpretation of the constitution. For instance, you can look at the sodomy laws. Maybe if the Roe v. Wade was heard today, it would have led to a different outcome, so it is not as black and white.

I am saying is that the law means one thing, not more than one. Regardless of how judges interpret it, it only means one single thing. Not what the authors wanted it to mean. Not what they would have wanted it to mean had they known our present circumstances. It only means what is written down in the law, nothing more, nothing less. To say that the law changes meaning says the law means nothing as it can mean whatever whomever is in power wants it to mean. A nation of men, not of laws, is no nation I want to be living in and not a nation worthy of continued existence.

[F'losrix]

John Galt wrote: I am saying is that the law means one thing, not more than one. Regardless of how judges interpret it, it only means one single thing. Not what the authors wanted it to mean. Not what they would have wanted it to mean had they known our present circumstances. It only means what is written down in the law, nothing more, nothing less. To say that the law changes meaning says the law means nothing as it can mean whatever whomever is in power wants it to mean. A nation of men, not of laws, is no nation I want to be living in and not a nation worthy of continued existence.
I see we're back to this old argument again.

What you ignore is that words (and the whole they represent when strung together) don't have a meaning independent from that assigned to them by people who approach legal questions and the written law from differing perspectives.

Moroever, this approach of yours amounts to the law existing for its own sake, not that of the people whose interests it's meant to serve. You would instead make us the slaves of the law. Like it or not, you live in a nation populated by people, and when the law is perceived to fail them, they will reinterpret it, rewrite it, etc.

If you don't want to live in a nation of men, I suggest you move to a deserted island, because it is a nation of men and women who write, debate, interpret, stretch, live under and sometimes outside the law (when it becomes too restrictive of their existence). I am not advocating lawlessness, or that people should simply be free to ignore the law if they don't like it. Some restriction of liberty is necessary to its own survival. I'm merely saying that like the people who create it, the law is imperfect, and not some God whose words are to be worshipped and given a reverence they sometimes don't deserve.

[F'losrix]

ElvinKnight:

I actually agree that the timing of this battle for marriage recognition was ill-timed. That said, people don't perceive their rights as a convenience or something to put on hold. You can't stop people wanting what they believe they have a right to, and when their belief and will to act are strong enough, you aren't going to persuade them to wait for a more politically expedient moment.

I don't have 50 years to wait for the government to get around to recognizing the fact that I've united with my partner to form a family unit for our mutual support, and to provide us with the same protections that hets take for granted all too often. I'll likely be dead or a widower by then. The point being, we aren't all on the same timetable. This question has more urgency for some couples than others. Not everyone is devoted to 'the cause', and it's frankly unreasonable to ask people to put their entire lives on hold indefintely, or to possess the political savvy to know when the time is right.

What some of us have come to realize, is that there likely never will be a time that is right if the issue isn't pressed.

I am fed up with being told to wait, wait, and wait some more. The difference between me and the people who pressed these lawsuits is that they had the strength of will to formally pursue their case and endure the criticism from all sides, whereas I have not. I may think their timing s*cks, but it doesn't stop me from hoping for a positive resolution and arguing for what I believe is right now that the battle has been joined.

[John Galt]

F'losrix wrote: John Galt wrote: I am saying is that the law means one thing, not more than one. Regardless of how judges interpret it, it only means one single thing. Not what the authors wanted it to mean. Not what they would have wanted it to mean had they known our present circumstances. It only means what is written down in the law, nothing more, nothing less. To say that the law changes meaning says the law means nothing as it can mean whatever whomever is in power wants it to mean. A nation of men, not of laws, is no nation I want to be living in and not a nation worthy of continued existence.
I see we're back to this old argument again.

What you ignore is that words (and the whole they represent when strung together) don't have a meaning independent from that assigned to them by people who approach legal questions and the written law from differing perspectives.

Moroever, this approach of yours amounts to the law existing for its own sake, not that of the people whose interests it's meant to serve. You would instead make us the slaves of the law. Like it or not, you live in a nation populated by people, and when the law is perceived to fail them, they will reinterpret it, rewrite it, etc.

If you don't want to live in a nation of men, I suggest you move to a deserted island, because it is a nation of men and women who write, debate, interpret, stretch, live under and sometimes outside the law (when it becomes too restrictive of their existence). I am not advocating lawlessness, or that people should simply be free to ignore the law if they don't like it. Some restriction of liberty is necessary to its own survival. I'm merely saying that like the people who create it, the law is imperfect, and not some God whose words are to be worshipped and given a reverence they sometimes don't deserve.

There is nothing wrong with the bolded word above, so long as it does not violate any other law, or the Law of the Land, which cannot mbe violated unless there is an Amendment.

[F'losrix]

John Galt wrote: There is nothing wrong with the bolded word above, so long as it does not violate any other law, or the Law of the Land, which cannot mbe violated unless there is an Amendment.
Ideally, yes. As a matter of practical reality, reinterpretation ends up being the path often taken due to the fact I noted above - that people approach the written law from differing perspectives. Your perspective is one that prefers the narrowest of interpretation, based on what you firmly believe the words mean, both independently and taken together as a whole.

What I see as your error, is your insistence that your belief about those meanings is representative of some objective fact. Dictionaries - no matter the period they were written in - are not rulebooks. They merely report on the most popularly understood usages, and are always playing catch-up. Can you prove to us that the authors sat down with a specific dictionary and examined the meaning of each and every word as they wrote? I seriously doubt it.

People intepret sentences based not only on the individual words, but their understanding of the context within which the sentence was written, and colored by their unique perspective of the world. You wish to ascribe the control of meaning to the words themselves, when in reality it is the person reading who ascribes meaning to the words, based on their own understanding (and I will grant you also, their misunderstanding) of them. Language is not the perfect solution you seek, and you are bound to be frustrated and disappointed by the failure of others to share your interpretation, which whether your like it or not, is subjective. There is no way to avoid it being so.

Edit: Please avoid the temptation to misinterpret what I've said as meaning that a person can call a duck a 'horse' and have this usage considered correct. The subjective interpretation of word meanings is still quite limited - it has to be for people to be able to communicate with each other at all. But some subjectivity still exists.

If you want proof - what do you envision when I use the word 'duck'? Different people picture different kinds of ducks, because the word 'duck' is too broad to sufficiently eliminate that portion of subjectivity used to conjure the image of a duck in their mind.

[ElvinKnight]

F'losrix wrote: ElvinKnight:

I actually agree that the timing of this battle for marriage recognition was ill-timed. That said, people don't perceive their rights as a convenience or something to put on hold. You can't stop people wanting what they believe they have a right to, and when their belief and will to act are strong enough, you aren't going to persuade them to wait for a more politically expedient moment.

I don't have 50 years to wait for the government to get around to recognizing the fact that I've united with my partner to form a family unit for our mutual support, and to provide us with the same protections that hets take for granted all too often. I'll likely be dead or a widower by then. The point being, we aren't all on the same timetable. This question has more urgency for some couples than others. Not everyone is devoted to 'the cause', and it's frankly unreasonable to ask people to put their entire lives on hold indefintely, or to possess the political savvy to know when the time is right.

What some of us have come to realize, is that there likely never will be a time that is right if the issue isn't pressed.

I am fed up with being told to wait, wait, and wait some more. The difference between me and the people who pressed these lawsuits is that they had the strength of will to formally pursue their case and endure the criticism from all sides, whereas I have not. I may think their timing s*cks, but it doesn't stop me from hoping for a positive resolution and arguing for what I believe is right now that the battle has been joined.

I don't disagree with anything you say here. I understand, as best I can. Like I said, I wasn't blaming anyone, just bemoaning the timing... and maybe venting just a little too much ;). The current Republican "leadership" scares the hell out of me.

Will Rogers once said, "I don't belong to an organized political party... I'm a Democrat!". I'm an Independent myself, but I usually vote Democrat on social issues, and for the lack of any other option ;). One reason why the Republicans win, when they do (especially the last few years), is they have more discipline in staying together, even when they have conflicting interests.

Regardless of the outcome in November, I hope NJ does the right thing with this ruling and it doesn't just die a quiet death.

[agentkgb]

Hurrah for New Jersey. :clap: :clap: :clap: