Jude 2

In a recent TV interview one of the lawyers representing the gays & lesbians in California said she was challenging the recent vote rejecting same sex marriage in that state. She is basing her argument on the fact "the majority cannot pass laws restricting the rights of the minority."
This caused me to wonder about their view on our federal laws against polygamy and incestuous marriages. If they oppose those laws they throw out their basis for arguing the "majority cannot pass laws which restrict the the rights of the minority." That leaves them with only one choice. They will have to support polygamy & incestuous marriages or abandon their efforts to legalize same sex marriages. Which do you think they'll do?

The issue being raised by the lawyer representing the homosexual groups is the classic Madisonnian Dilemma as Robert Bork would put it. How does one protect the minority from the tyranny of the majority or how does one protect the majority from the tyranny of the minority? As an issue, it is really nothing new. I like what one individual on here has below their post. Democracy is two wolves and one sheep voting on what is for dinner. Liberty is one well armed sheep contesting the vote.

Concerning the issue specifically for marriage, please cite the federal marriage laws which states who can and cannot be legally married, and then we can continue from there. To the best of my limited knowledge, marriage is part of the police powers which are reserved to the states.

Concerning actually taking this to the legal route, I am not so sure I would encourage the group to do so. There was a big move since the last time Cali voted on a ban against gay marriage, my advice would be to continue in the court of public opinion. (Worked locally for Sunday Sales.)

I've never looked at it except to know these things were illegal. I do know Utah was refused statehood until they changed their laws concerning polygamy. Those supporting same sex marriages in California seem to be saying it is unconstitutional for the state to enact a law restricting marriage to heterosexuals. Can you say the ban on same sex marriage is unconstitutional without saying state laws prohibiting incest (All 50 states have some sort of law) or polygamy are unconstitutional?

I believe SCOTUS has rules that states have a right to limit who can get married within their jursidiction. DOMA is constitutionally questionible, but I am not sure if anyone has ruled on it. So in theory, a state can recognize the relationships of same sex couples without changing any of the other rules. Or a state can get out of the marriage business altogether.

valley wrote:I believe SCOTUS has rules that states have a right to limit who can get married within their jursidiction. DOMA is constitutionally questionible, but I am not sure if anyone has ruled on it. So in theory, a state can recognize the relationships of same sex couples without changing any of the other rules. Or a state can get out of the marriage business altogether.

The folks who would contest the outcome in Prop 8 would have to pit the ban against the equal protection clause in the U.S. Constitution. Prop 8's passage amended the California constitution after the California Supreme Court decided that a statutory ban would violate equal protection under the state constitution. Amending the Constitution was the only way to democratically overrule the California Supreme Court as to what is and isn't constitutional in California. The only refuge left, absent another ballot initiative that changes this outcome, is to the federal courts. The 9th Circuit Court of Appeals could hold that the Prop 8 amendment violates the EPC of the U.S. Constitution. It wouldn't be surprising. If that makes review to the SCOTUS, and an Obama court has begun to take shape, it could become national precedent and swing open a door, much like Roe v. Wade, to a national right to homosexual marriage. The passage of Prop 8 could, in time, be the catalyst for what homosexuals actually want to happen --- a U.S. Supreme Court opinion that same-sex marriage is a right protected under the U.S. Constitution.

While I do not agree with these distinctions, "traits" or "preferences", if you will, such as incest and polygamy or any other sexual conduct are lumped into other categories for justifiably different treatment under the law. So, no, approving one does not open the door to approve others. Judges notoriously find preferred ways of distinguishing like things in order to get to the outcome they want. Happens every single day in every single court. It is the American way.