Friday, March 20, 2015

Legal Eagles Flying High

So, what do the geniuses at have for us this week, Zandar?  I'm glad you asked, as we have the legal stylings of one Frank Turek, author, man of faith, and law-arguer person.

The Supreme Court is about to decide if the 14th Amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no. 
The most decisive of these reasons is the fact that when the 14th Amendment was passed in 1868, homosexual behavior was a felony in every state in the union. So if the 14th Amendment was intended to require same-sex marriage, then every state in the union intended to throw the new couple into prison as soon as the marriage was consummated!

States had miscegenation laws then too.  Are you done ye...oh.

Some may say, “Who cares what they believed in 1868 about homosexuality? We’ve evolved since then.” 
That’s addressed by the second reason: laws and words have specific scopes and meanings. They don’t have unlimited flexibility as liberal justices tend to think. Neither the intent nor the text of the Constitution requires the states to redefine marriage. If the people of the United States have “evolved” on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently “evolve”—they need to convince a supermajority of federal and state legislatures to amend the Constitution. That’s the very reason our Constitution has an amendment process!

That's odd.  Is he saying that laws (passed by the legislative), court orders (the judicial) and executive orders (executive branch) are all null and void because they're not in the Constitution?  Because you know what?  Those branches have weighed in numerous times on the text and intent of the Constitution with respect to marriage.  The Supreme Court is about to do it again.  Pay attention. Now go aw...ugh.

If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? In fact, why have a Constitution at all? If it’s “evolving” or “living,” then it’s not really a collective agreement of the people—it’s a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people. 
Imagine if the people were to pass an amendment guaranteeing a right to same-sex marriage. Would you consider the Supreme Court to be legitimate if it imposed its own position and overturned the amendment? No, the people decide what the laws are, not the Court.

As to the first, the entire point of the judicial branch and in fact the express purpose of the Supreme Court is to determine if a law is constitutional or not.  As to the second, if the Constitution said that, it would be pretty hard to find it unconstitutional. Please go read an 8th grade civics text and quit bot...argh.

Third, the 14th Amendment was intended to prevent states from discriminating against newly freed slaves. At that time blacks and women didn’t even have the right to vote, yet no court ever thought it could use the “equal protection” clause to change state voting laws. So why do some district courts think they can use it now to change state marriage laws? Are we to believe that “equal protection” does not guarantee a woman’s right to vote but does guarantee a woman’s right to marry another woman? 

Since the people “evolved” on voting rights, they convinced supermajorities in Congress and of the state legislatures voted to add the 15th and 19th Amendments in 1870 and 1920 respectively. The courts knew they shouldn’t act as legislatures to grant rights not addressed by the Constitution. Neither should this Supreme Court.

There's this thing called "legal precedent" that allows the Supreme Court to determine if a law is unconstitutional or not.  In fact, that's exactly what these district courts did, including citing the legal reasoning of sitting Supreme Court justices. Again, express purpose of the courts is to do just that, with the US Supreme Court having the final say.

Please re-read that thing you're waving about and...what is it NOW?!?

Fourth, despite all the talk about equal rights, everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex. That law treats all people equally, but not every behavior they may desire equally. If people with homosexual desires do not have equal rights, then people with desires to marry their relatives or more than one person don’t have equal rights. The “born that way” justification doesn’t work either because that same justification could make any desired arrangement “marriage,” which means the logic behind it is absurd. The Court needs to acknowledge the fact that natural marriage, same sex-marriage, incestuous marriage, and polygamous marriage are all different behaviors with different outcomes, so the law rightfully treats those behaviors differently while giving every citizen the equal right to participate in marriage whatever its legal definition is.

Once again, Loving v Virginia. Actually read the decision, man.  Also, see the entire dismantling of "separate but equal".  You're expressly creating a class of people that doesn't have the same rights.  The "slippery slope" to polygamy and bestiality is nonsense because nobody's arguing for that. Now for the love of...SERIOUSLY ARE YOU STILL HERE?

Finally, the states make marriage law, not the feds. The U.S. Constitution says nothing about marriage. While the Supreme Court did overturn Virginia’s ban on inter-racial marriage, it did so because Virginia discriminated on the basis of race, which is precisely what the 14th Amendment was intended to prevent. There is no rational reason to discriminate on the basis of race because race is irrelevant to marriage. However, gender is essential to it. Even the 2013 Windsor decision, which partially struck down the federal Defense of Marriage Act, recognized that marriage is a state, not a federal issue. Since there is no 14th Amendment issue here, the Court must leave marriage to the states.

Except that the 14th Amendment actually reads the following:

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.

If you say that same-sex marriage is illegal, you're violating that part of the Constitution.  It's not hard, man.  That's the clause of the 14th they are talking about and it doesn't even mention race. And even if you ignore the 14th Amendment, there's the argument that the 5th Amendment's Due Process clause also provides such protections.

Now shoo and...I dislike you now.

Legal reasons such as these are all the Court is constitutionally permitted to consider. Polls and policy considerations are for the people or their legislatures, not the courts. Ryan T. Anderson writes in his recent column titled Memo to Supreme Court: Nothing in the Constitution Requires States to Redefine Marriage: “The overarching question before the Supreme Court is not whether an exclusively male–female marriage policy is the best, but only whether it is allowed by the U.S. Constitution. The question is not whether government-recognized same-sex marriage is good or bad policy, but only whether it is required by the U.S. Constitution.” 
Does the U.S. Constitution require same-sex marriage? No, the U.S. Constitution requires the Court to leave this issue to the states. If you believe otherwise, then amend the Constitution.

There are a number of actual Supreme Court justices and decisions that greatly disagree with you. I'm guessing you're going to meet five of these justices, maybe even six, in June.


Martin Pollard said...

Shorter Frank Turek: "F**k you all, the law and the Constitution says what I think it says!!!11!1! eleventeen !!1!!!!"

Scopedog said...

Couldn't have said it better myself.

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