Comments about ‘Timothy R. Clark: Proposition 8 and the living Constitution’

I look forward to the US Supreme Court re-affirming what California voters already decided.

I'm not Mormon - but with this I stand by my Mormon co-workers and friends.

Let's get back to work on this!

One man, one woman!

Very well written and thought out. Hear, hear!! We as a nation have indeed put ourselves in a precarious situation by allowing our judicial system to have corrupted the processes and freedoms God intended us to have. I fear for us all.

totally misguided opinion piece. the courts certainly do have the right to determine if legislation has violated civil rights. Regardless of what people vote for, if it is a violation, it is a violation. that is why we have courts.

Why are we seeing another article on this subject? The judges have declared that Proposition 8 was unconstitutional. They didn't go out and create a new law. They reversed something that a narrow percentage of people of California decided. I guess it is difficult to understand that we cannot vote away the rights of a group of people just because we don't approve of them.

I already know what a lot of you who disagree with this article in the context of the same sex marriage issue will say. I only point out that a court that uses its power to impliment a liberal policy that you may favor, can come back to bite you with a conservative one that would sent you through the roof. Elected officials may do the same, but at least they are accountable to the people. Federal Judges are not. And remember, Judges are all flawed human beings with opinions, they're not Gods. Their opinions can be as politically motivated as any politicians is. I'd rather be able to have a chance to "vote the bums out". You can't do that with the Judges. Isn't that one of the basic bumperstickers of liberal thought, "Power to the People"? It was at one time.

The phrase "living Constitution" is an interesting one. A meaningful amendement to the Constitution hasn't been passed for 40 years, so the only way it "lives" is through the courts. I think the right and left have both recognized that getting their way through the judicial system is easier than convincing a majority of Americans to vote their way.

If the "will of the people" is paramount to the rights of minority groups, African Americans would still be using separate facilities in the south.
Gay marriage does not hurt "traditional" marriage. Divorce hurts traditional marriage , and happens too frequently . I still don't understand how gays getting married hurts my marriage. I may not agree with their lifestyle, but the Constitution guarantees the rights of people and does not allow for discrimination, which is what this is.

"...traditional marriage clearly constitutes a compelling government interest. It is nothing less than the bedrock of civil society. Yet the ruling turns a blind eye to this in order to promote an alternatively preferred policy...".

Prior to 1865 the COTUS affirmed slavery.

The Constitution included several provisions that explicity recognized and protected slavery. Without these provisions, southern delegates would not support the new Constitution--and without the southern states on board, the Constitution had no chance of being ratified. Provisions allowed southern states to count slaves as 3/5 persons for purposes of apportionment in Congress (even though the slaves could not, of course, vote), expressly denied to Congress the power to prohibit importation of new slaves until 1808, and prevented free states from enacting laws protecting fugitive slaves.

From 1787 until 1865, slavery clearly constituted a compelling government interest for the South. It was nothing more than the bedrock of civil society in the South. The people in the South were opposed to the alternatelty preferred policy proposed by the North.

Thank goodness a "blind eye" was not turned in order to continue to affirm and promote slavery.

You've gotta Stand for Something, or you're gonna Fall for Anything. John Cougar Mellencamp

Good Work Tim!

I distinctly remember reading this same article, or one with the same wording in the DN within the past couple of weeks. Is DN just reprinting/recycling articles now?

14th Amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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."

It seems pretty straightforward to me.

On a side note, the CA Constitution is flawed. It should not be amenable to change by a simple majority. The difference between Prop 8 passing or failing was less than 5%.

'To witness unelected, unaccountable judges overturn the will of the people in the service of their desire to create a new right is a kind of tyranny that threatens to destroy liberty by degrees.' - Article

Another article?

Really?

The 'liberal' judges you are talking about:

Judge Joseph Walker, the original judge who struck down Prop 8...was first nominated to his post...by Ronal Regan. 1987.

He was APPOINTED to his post...by George H.W. Bush. 1989.

Nancy Pelosi, former Democratic speaker of the house actually CRITICIZED Walker for to 'incentive' to the gay and lesbian community.

This, is the 'liberal' judge you are talking about??

Sure, if you don't' know what you are talking about.

Also, Judge James Ware SUPPORTED Walkers ruling against Prop 8 on the appeal. June 2011.

And most recently, the 9th circuit ruled against prop 8.

I realize that the LDS church owns the Deseret news, but this is getting sad. To continue to bring up the issue, claim 'judicial activism'...

when the ONLY judge to rule in favor of Prop 8 was Mormon....

shows that 'judicial activism' is 1) Relative for conservatives. and 2) Shows no mention...

in the Deseret News.

azamatbagatov, you okay with gay marriage? Are you also okay with polygamous marriage? How about incestuous marriage? Or 3 men and 2 women marriage? First cousins marriage? Bestial marriage? Because once this door is opened thru interpretation and constitutionally unfounded argument there is no authority to prevent ANY association in marriage.

traditional marriage is called "traditional" because this "tradition" has been happening for thousands of years in the very same way, 1 man - 1 woman. There are always exceptions in thinking but they don't overpower the rule. Who created the rule? That is a great question! If it is in fact man-made then man can decide whatever he wants and marry whatever he wants.

My opinion is Gov't should never have been involved with the institution of marriage. It is a religious association. But Gov't is involved and the reason for it's involvement is taxes. However, because it is involved in the marriage business it now has responsibility to protect it, even though the constitution of the U.S. does not give gov't any authority to interject itself in marriage. But too late now. So this raging debate really boils down to what will be the future of this institution? You open this door and there is no closing anything, and combo, any idea. The very thing gay couples desire will be totally corrupted.

'azamatbagatov, you okay with gay marriage? Are you also okay with polygamous marriage?' - oldladyrunning | 10:44 a.m. Feb. 20, 2012

Why are they comparable?

Gay marriage, promotes mongamy.

Polygamy, was 1) stopped in 1890 in Utah. and 2) factually does NOT promote, monogamy.

Those against gay marriage use the 'slippery slope' argument. Claiming that gay marriage will 'lead' to some factual harm of this country.

When:

** After 5 Years of Legal Gay Marriage, Massachusetts still has the lowest state divorce rate...' - Bruce Wilson - AlterNet - 08/24/09

x5 years after gay marriage, Massachusets CONTINUES to have the lowest divorce rate...

more than 5 years after gay marriage became legal.


This data was collected from the 'National Center for Vital Statistics.

Gay marriage causes ZERO harm to anyone.

And even the Prop Prop 8 legal team (against gay marriage) could provide ZERO evidence of such.

You cannot base laws, on heresy and fiction.

@oldladyrunning

You know you made the same list that those who oppose interracial marriage made. It's a slippery slope logical fallacy.

Pagan-
"This, is the 'liberal' judge you are talking about??"
"You cannot base laws, on heresy and fiction."
"Gay marriage, promotes mongamy."

Do you know the purpose of a comma? I hope you aren't an English teacher.
Or are, you?

"[Are]you okay with gay marriage? Are you also okay with polygamous marriage? How about incestuous marriage? Or 3 men and 2 women marriage? First cousins marriage? Bestial marriage?"
--oldladyrunning

I see how you are trying to use the slippery slope argument here, but a look at our current laws and just a reasoned medical argument can put an end to your ideas here.

Polygamous marriages have been under intense scrutiny for years now. Let's just look at the news about public opinion on this--especially with the child abuse that we have seen with certain groups that practice polygamy.

There are compelling medical reasons to ban incestuous marriages. The possibilities of offspring with genetic disorders increase dramatically through such relationships.

Believe it or not, first cousin marriages are already legal in Utah under specific circumstances. First cousins may marry if both are 65 or older, or if both are 55 or older and one is unable to reproduce. Has that law damaged your own marriage?

Bestial marriage could never happen because one party of that sort of relationship cannot consent to the contract. Marriage is a contract between two people. Animals are not people. Animals are not capable of entering into a contract.

I think it's time we stop using these outrageous arguments about what allowing gay marriage could possibly lead to and be honest about why we don't want it. The real reason we like to hold rights from a group of people is because we want to remind them that we don't approve of them. We like to feel better, maybe even more righteous, than others, so we use laws to remind them that they are considered less than us. We need to change and treat all of our neighbors with dignity.

The 14th amendment is far from straightforward, Mr. Truthseeker, when self-serving people attempt to redefine universally well-understood terms, such as the definition of marriage as being between a man and a woman.

What if some people, for example, decided to redefine citizen to include all animals living in the U.S.? Suddenly the 14th amendment would force all Americans to be vegetarians and cease ownership of pets. The government is now obligated to protect the lives of all animals.

A similar and equally nefarious trick is being imposed by those who seek to redefine marriage. The 14th amendment was created in a world that universally and clearly understood marriage to be between a man and a woman. By redefining the institution of marriage and allowing government-endorced gay marriage, the 14th amendment suddenly forces all Americans to endorse and approve of homosexual behavior.

Proposition 8 merely re-established an understanding that existed universally prior to the creation of the 14th amendment. When a house has been built, you cannot allow someone to show up later and replace its concrete foundation with some other weaker material.

I'm surprised that no one has yet commented on the photo accompanying this article; in it, protestors hold signs that say "leagalize [sic] gay marriage." (When I join protests, I make sure my signs are spelled right!) In fact, I even try to make sure my comments about DN articles contain correct spelling (although I don't claim to be perfect). When I read others' comments, the impression I usually get is that many other people don't think twice about publicly displaying their typos (although if it were not anonymous, I bet people would be more motivated to do a spell and/or grammar check.)

Wow.

So people who are against marriage are so desperate for arguments...

they choose to focus on the spelling of their opponents...

instead of the arguments they make?

Let me show you, (comma!) the results of factually working to DENY someone the legal protections of marriage:

*'Kept From a Dying Partners Bedside' - By TARA PARKER-POPE - NY Times - 05/18/09

'...the couples had prepared for a medical emergency, creating living wills, advanced directives and power-of-attorney documents.'

And yet, even with Living Will, Medical Directive, Power of attorney and emergency contact information...

Janice Langbehn was kept from the bedside of her dying partner, Lisa Pond.

They were together for 18 years.

Harold and Clay. Sonoma county, CA.

** Gay Ca. veteran sues over denial of benefits By Jessica Gresko AP Published by Dsnews 02/01/12

Denial of Veterans benefits to legally married gay & lesbian military...

is just another reason Prop 8 and the 'Defense' of marriage act, are failing in court.

** Gay marriage wins rulings in pair of federal challenges' - By Denise Lavoie - AP - Published by DSNews - 07/08/10

From the article:
âUnder all three levels of scrutiny to which the equal protection clause has been applied â strict, intermediate and rational basis â traditional marriage clearly constitutes a compelling government interest. It is nothing less than the bedrock of civil society. Yet the ruling turns a blind eye to this in order to promote an alternatively preferred policy.â

How so? From what rational basis does Clark defend the assertion that âtraditional marriage clearly constitutes a government interest.â It would seem that Clark feels no need to prove his case, but would prefer the argument to stand on the basis of his empty authority?
The ruling turns a blind eye on an unconstitutional piece of legislative action. How does Clark not see this when he himself argues that the Constitution is âsilentâ with regards to marriage? Does he assume that the silence somehow grants preference to his âalternatively preferred policyâ?

Also from the article:
âWhere does judicial activism and the consequent diminishment of a representative process end? The answer is that it doesnât. In the end, you subscribe to a view that has no real boundaries and simply shadows the moral relativism of popular culture. The Constitution becomes a document from which an unending series of unenumerated rights lie fallow until such time as we want them.â
Is he serious about this criticism? Is Clark concerned that this current action could result in society having more rights? Freedom and liberty, or rights (particularly negative rights) are sort of hallmarks of the American ethos. You get to live and be happy, just so long as you donât trample on the rights of others. In other words, the whole point was to make America out of the fertile soil of liberty, including the fallow ground of future rights for future issues. Interestingly, that is part of the point of a âliving documentâ.
Lastly, Clark points out that the Constitution was largely comprised of negative rights, ie, the right to act without interference from the Government. Proposition 8 was a violation of a negative right. It is a law that interferes with the rights of homosexuals to marry. This is particularly relevant given Clarkâs argument that, again, the Constitution is silent on marriage.