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Post by Bevo on Sept 22, 2015 16:58:52 GMT
There are some things that even the Supreme Court cannot dictate to people of faith.
In this country, we have always tried to allow a happy medium between State and Religious edicts. This one, is EASY to fix, and I'm sure it will be.
That said, from a legal standpoint. I don't really understand: What happens when a law is struck down as unconstitutional? Is the entire law not invalid? How do they pick one clause or another out of a larger body of piece of legislation. From the beginning, Davis refused to issues ANY marriage licenses... not just licenses to gay couples. What Ky statute gave her the legal authority to issue ANY, if the law giving her the authority was declared invalid? It does seem to be unclear... at least, to the non-lawyer lay person.
Sorry, I kind of dropped out of this thread and didn't respond. The truth is, a lot of this is unclear even to lawyers. This stuff will be determined on a case by case basis. Sometimes the entire law is struck down, sometimes a portion. Depends on the judges' ruling. In this instance, it appears that the Supreme Court has established an affirmative right of gay marriage. Now they're not going to go through, line by line, the laws of every state and alter them. That's going to be left to other people. In this instance, it looks like Kentucky law didn't provide any mechanism for gay marriage. It was clearly written with the assumption that the people getting married would be a man and a woman. Now obviously no magical Supreme Court Fairy is going to come along and sprinkle fairy dust (huh huh, fairy, gay marriage) on the statutes and change everything. My guess is that that language is simply going to be treated as though it were gender neutral. Kentucky wasn't a part of Obergefell v. Hodges, the gay marriage decision. That was a case out of Ohio, I believe. Now the decision still affects Kentucky, obviously. And federal courts aren't going to just wait around for states to create gay marriage friendly laws. Suppose the Kentucky Legislature never got around to changing those laws. Kim Davis says in 2015, "oh I can't issue these marriage licenses because the language isn't gender neutral, the legislature will have to fix that when they reconvene next year." And then in 2016 they don't fix it. And then she just keeps doing the same thing. Now, where we are now isn't a good position for anyone to be in. I think Kim Davis had a rational argument for not issuing marriage licenses. It wasn't gonna win, but arguing that the statute says you've got to apply for the license in the woman's county of residence makes things uncertain in cases where there isn't a woman, or there are two women, that's a rational argument. Now she didn't actually make that argument until she was in jail -- she was really clear from the beginning that this was about her religious objection to gay marriage and that's it. She's not gonna get a do-over, the judge isn't required to pretend that her last minute argument was why she was really doing this. But obviously the statutes need to be rewritten so that all the mundane, normal details of marriage can be resolved.
Thanks for the follow up. It confirms what I thought I knew..
I have thought, from the beginning, that she would be in BIG trouble if she was, in ANY way, treating gay people differently from straight people. That would be clear discrimination, and a Federal judge would have a rightful authority to force compliance. But, if... as she did, she refused to issue ALL marriage licenses? Then, it becomes a matter of an elective official refusing to carry out part of their duties. As much as I might enjoy this concept, I don't think Judges have ANY jurisdiction here. I mean, Obama is refusing to faithfully execute a number of laws. Are the courts going to jail him for neglect? It's even murkier when we're talking about a Federal judge and a state official. For the life of me, I don't understand why all the legal eagles (and Prez hopefuls) haven't jumped on this lack of standing (yes, I know... I have the concept backwards) for the judge.
FYI>> I'm hearing on the news that Davis is, now... behaving differently on gay applications. Using her name on the stamp for straight couples, and a modified stamp on gay applications. This won't fly.
Bottom line to me is.... Accommodation for her can, and should be made. If the Kentucky legislature refused to act, then... I believe there would be cause for action against THEM, not against Davis. At least, that's how things would work if I were KING! :-)
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Post by Bevo on Sept 22, 2015 17:09:42 GMT
I don't think there's any way to know exactly what the Founders would have thought. In some of these cases, we're projecting our own ideas 200 years back in time and assigning beliefs to men who would have had no concept of what we are dealing with today. George Washington never had to deal with Scientology. The best we can do is to try to follow the principles set forth in the Constitution, as we understand them today. Even if someone is being perfectly honest, trying to interpret what the Founders would have thought on an issue, it's still just that person's ideas of who those men were. There's no guarantee that they are correct in their beliefs. Thomas Jefferson probably wouldn't have been cool with gay marriage, but hell maybe he'd have given it a thumbs up. The law can be changed wildly on the whims of judges, and I do not particularly like that. I disagree with a lot of the things that the Supreme Court has done over the years, particularly in regards to the 4th Amendment. But having judges just mouth some sort of respect for the Framers and say "this is what they would have wanted" doesn't make it any more legitimate.
I'm sure with you on that! What they've done to the 4th sickens me. NO WAY "anonymous tips" are equivalent to "sworn affidatives".... I don't care how you try to twist an interpretation. That, is simply a travesty.
I get that some things HAVE to be modified for new circumstances. And, from a practical sense, judges HAVE to provide some flexibility... to interpret laws unclearly written. But, some things MUST be constant.. or else, why have a constitution? History has proven: Government will TAKE whatever rights and privileges that the people will allow. Sometimes, we don't fully know what the "intent" of a constitutional clause was... but, often, we do. The guys that wrote this things also wrote a LOT to further explain the why. This "anchor baby" flap is a perfect example. The guy that wrote the 14th amendment, also wrote.. clearly... that it was NEVER intended to grant citizenship to a child born on US soil to parents who were in the country illegally. No court case has ever really challenged this exact proposition. And yet, everyone acts as if it's a bedrock foundational principle. Just makes me shake my freaking head.
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Post by aufan59 on Sept 27, 2015 5:06:50 GMT
Pretty clear. Government is completely removed from religion, unless it is to preserve public order, or said religion infringes on the rights of others. I do not understand how you interpret this as government can pick and choose which religions are legit, and decide whether you are sincere in your belief. That is well outside the scope and intention of the first amendment. Madison might laugh at my football religion, but wouldn't interpret it as something that would disrupt public order or infringe on others rights. And if he knew the role of government was to decide if my belief in football religion was sincere, decide if it was a legit religion, and then decide whether government should give me special treatment, he would cringe. This is not government abstinence. My point is that we've interpreted the first amendment well beyond the scope of the founder's intentions. I'm not saying that this is right or wrong. But the idea that we must strictly adhere to the presumed intentions of the founders is ridiculous and impractical. You would be very free to adhere to your football religion, without interference from the government. It wouldn't become an issue at all, until your employer fired you for not coming to work. If you tried to sue, claiming a religious exemption, the court would laugh at you and throw your case out. That would be preserving public order.
I wish you'd be more serious about this. The courts do treat religious claims seriously.... for the most part. But, they don't give carte blanche to any whacko claim.
I don't agree with your belief that we've exceeded the intent of the first amendment. Except, perhaps in the current attempt to eliminate any and all signs of religion from our government. Our founders started every session of Congress with a prayer. I don't think they saw any problem with that. For constitutional issues, I do believe the original intent, in as much as it is known, SHOULD be followed. Otherwise, the law can be changed wildly on the whim a handful of judges. That's the directions we're heading now, and it's NOT healthy. There are mechanisms provided to amend the constitution. Contrary to popular opinion, it's NOT impossible. But, it does require a fairly significant consensus.
So why is the court even deciding if my religion is legit? When my employer fires me for not showing up on religious football holidays, it was not government that prevented me from practicing my religion, thus all is right in the world according to the first amendment.
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Post by FLORIDA HERD FAN on Sept 27, 2015 12:51:47 GMT
What if the State of Kentucky, and perhaps other states, decided not to recognize the power of the federal government to enact any law or to render any judicial decision regarding marriage? If the Constitution does not specifically grant the federal government the power to regulate marriage, then why would Kim Davis not have the power to defy the decision of the U.S. Supreme Court? "The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791. It expresses the principle of federalism, which undergirds the entire plan of the original Constitution, by stating that the federal government possesses only those powers delegated to it by the Constitution. All remaining powers are reserved for the states or the people. In drafting this amendment, its framers had two purposes in mind: first, as a necessary rule of construction; and second, as a reaffirmation of the nature of the federal system." en.m.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution
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Post by Bevo on Sept 27, 2015 21:03:38 GMT
So why is the court even deciding if my religion is legit? When my employer fires me for not showing up on religious football holidays, it was not government that prevented me from practicing my religion, thus all is right in the world according to the first amendment. So long as you accepted your employers decision? The courts never would get involved. All would be right in the world. But, if you take issue...and go to the court, claiming a religious exemption, then the court MUST be the final arbiter. It is their rightful roll to make decision to settle disputes .
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Post by aufan59 on Sept 28, 2015 2:05:26 GMT
So why is the court even deciding if my religion is legit? When my employer fires me for not showing up on religious football holidays, it was not government that prevented me from practicing my religion, thus all is right in the world according to the first amendment. So long as you accepted your employers decision? The courts never would get involved. All would be right in the world. But, if you take issue...and go to the court, claiming a religious exemption, then the court MUST be the final arbiter. It is their rightful roll to make decision to settle disputes . Easy decision for the founding fathers. Government in no way inhibited my free exercise of religion, case dismissed.
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Post by Bevo on Sept 28, 2015 10:05:11 GMT
So long as you accepted your employers decision? The courts never would get involved. All would be right in the world. But, if you take issue...and go to the court, claiming a religious exemption, then the court MUST be the final arbiter. It is their rightful roll to make decision to settle disputes . Easy decision for the founding fathers. Government in no way inhibited my free exercise of religion, case dismissed. Right. Check back with us when you finish law school.
Be sure to take notes when they talk about the Civil Rights Law in 1964.
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Post by tigercpa on Sept 28, 2015 12:22:56 GMT
What if the State of Kentucky, and perhaps other states, decided not to recognize the power of the federal government to enact any law or to render any judicial decision regarding marriage? If the Constitution does not specifically grant the federal government the power to regulate marriage, then why would Kim Davis not have the power to defy the decision of the U.S. Supreme Court? "The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791. It expresses the principle of federalism, which undergirds the entire plan of the original Constitution, by stating that the federal government possesses only those powers delegated to it by the Constitution. All remaining powers are reserved for the states or the people. In drafting this amendment, its framers had two purposes in mind: first, as a necessary rule of construction; and second, as a reaffirmation of the nature of the federal system." en.m.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_ConstitutionThis is the problem...
Everyone is running around saying the Court "legalized" gay marriage. They didn't. SCOTUS did not, and can not, "legalize" anything.
What they, and various plaintiffs, did was circumvent established legislative process and created this touchy-feely, nebulous "right to dignity" - contained nowhere in the 14th amendment.
Federal supremacy is only applicable to the responsibilities assigned to the federal government. If federal supremacy applies to anything and everything, then the 9th and 10th amendments along with Constitution mean nothing.
But, as we have seen, the best way to force the progressive agenda on an unwilling populace, is to get the feds involved.
So, a question remains - when did one man / one woman marriage become unconstitutional?
At our country's founding? At the time of the Civil War? When?
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Post by aufan59 on Sept 28, 2015 16:37:33 GMT
Easy decision for the founding fathers. Government in no way inhibited my free exercise of religion, case dismissed. Right. Check back with us when you finish law school.
Be sure to take notes when they talk about the Civil Rights Law in 1964. I am talking about the founders intent. You are making my point, we have well exceeded the intent of the founding fathers.
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Post by tigercpa on Sept 28, 2015 16:52:16 GMT
So why is the court even deciding if my religion is legit? When my employer fires me for not showing up on religious football holidays, it was not government that prevented me from practicing my religion, thus all is right in the world according to the first amendment. So long as you accepted your employers decision? The courts never would get involved. All would be right in the world. But, if you take issue...and go to the court, claiming a religious exemption, then the court MUST be the final arbiter. It is their rightful roll to make decision to settle disputes . The idea of the Supreme Court being the national arbiter of what’s right and wrong and what is in accordance with the Constitution is found nowhere in the Constitution itself or in any of the papers written by the founders. Judicial review is a power that SCOTUS has claimed for itself and the other two branches and the states have ceded to it, but it’s clearly NOT in the established powers of the Court.
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Post by aufan59 on Sept 29, 2015 0:19:29 GMT
What if the State of Kentucky, and perhaps other states, decided not to recognize the power of the federal government to enact any law or to render any judicial decision regarding marriage? If the Constitution does not specifically grant the federal government the power to regulate marriage, then why would Kim Davis not have the power to defy the decision of the U.S. Supreme Court? "The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791. It expresses the principle of federalism, which undergirds the entire plan of the original Constitution, by stating that the federal government possesses only those powers delegated to it by the Constitution. All remaining powers are reserved for the states or the people. In drafting this amendment, its framers had two purposes in mind: first, as a necessary rule of construction; and second, as a reaffirmation of the nature of the federal system." en.m.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_ConstitutionThis is the problem...
Everyone is running around saying the Court "legalized" gay marriage. They didn't. SCOTUS did not, and can not, "legalize" anything.
What they, and various plaintiffs, did was circumvent established legislative process and created this touchy-feely, nebulous "right to dignity" - contained nowhere in the 14th amendment.
Federal supremacy is only applicable to the responsibilities assigned to the federal government. If federal supremacy applies to anything and everything, then the 9th and 10th amendments along with Constitution mean nothing.
But, as we have seen, the best way to force the progressive agenda on an unwilling populace, is to get the feds involved.
So, a question remains - when did one man / one woman marriage become unconstitutional?
At our country's founding? At the time of the Civil War? When?
The fourteenth amendment made it unconstitutional. Can you explain to me how the supreme court cannot legalize anything. They determine that bans on gay marriage were illegal, which is just another way of saying gay marriage is now legal, right?
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Post by Bevo on Sept 29, 2015 0:24:56 GMT
Right. Check back with us when you finish law school.
Be sure to take notes when they talk about the Civil Rights Law in 1964. I am talking about the founders intent. You are making my point, we have well exceeded the intent of the founding fathers. Not at all. Congress extended a right...as they are authorized to do. In a matter of dispute, over law, the courts decide. I think, that clearly WAS our founder's intent.
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Post by aufan59 on Sept 29, 2015 0:56:30 GMT
I am talking about the founders intent. You are making my point, we have well exceeded the intent of the founding fathers. Not at all. Congress extended a right...as they are authorized to do. In a matter of dispute, over law, the courts decide. I think, that clearly WAS our founder's intent. We used the system as the founding fathers intended, I agree. But did the founding fathers intend the first amendment to apply to private organizations? I don't think so. For example: We could in theory use the founding father's intentions to repeal the first amendment. Would this change the founder's intentions with the first amendment? Obviously not. Would it be within the founding father's intentions if we did change the first amendment? Obviously so. We are well beyond the scope of the founding father's intent with the laws that they wrote. However we are within the scope of the founding fathers with how we change or interpret the law.
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Post by Bevo on Sept 29, 2015 10:53:18 GMT
Not at all. Congress extended a right...as they are authorized to do. In a matter of dispute, over law, the courts decide. I think, that clearly WAS our founder's intent. But did the founding fathers intend the first amendment to apply to private organizations? I don't think so.
The proper question is: Did the original writers intend freedom of religious expression to be an individual right?
I'd have to go back and read some of their other writings on the subject. But, I suspect they wouldn't have much of a problem with this. Obviously, they didn't feel strongly enough to codify in the constitution. But, neither did they forbid such an extension.
The right extended by Congress in 1964 is not an absolute right. It's one that tries to define the compromises that should be reasonably made. Only people with an extreme anti-religion bias would really object to them.
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Post by Bevo on Sept 29, 2015 10:54:30 GMT
But did the founding fathers intend the first amendment to apply to private organizations? I don't think so.
The proper question is: Did the original writers intend freedom of religious expression to be an individual right?
I'd have to go back and read some of their other writings on the subject. But, I suspect they wouldn't have much of a problem with this. Obviously, they didn't feel strongly enough to codify in the constitution. But, neither did they forbid such an extension.
The "right" extended by Congress in 1964 is not an absolute right. It's one that tries to define the compromises that should be reasonably made. Only people with an extreme anti-religion bias would really object to them.
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