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Debates Forum

  1. 21 Mar '14 21:37
    Landmark decision in Detroit District Court overturns Michigan law by ballot initiative, banning "gay marriage".

    http://www.freep.com/article/20140321/NEWS06/303210099/Michigan-gay-marriage-ruling

    Most here know I don't like referendums or ballot initiatives due to excessive democracy. But does this mean that when a ballot initiative is overturned, that the court affirmatively can alter the State's law before the initiative?

    Before ballot initiative, there was no gay marriage in Michigan. The law neither affirmed it, nor defined it. As I see it, the ban is reversed, but that in now way affirmatively makes gay marriage legal. That would seem to be a job for the legislature, as it should have been instead of the ballot initiative.
  2. Subscriber no1marauder
    It's Nice to Be Nice
    22 Mar '14 05:45
    Originally posted by normbenign
    Landmark decision in Detroit District Court overturns Michigan law by ballot initiative, banning "gay marriage".

    http://www.freep.com/article/20140321/NEWS06/303210099/Michigan-gay-marriage-ruling

    Most here know I don't like referendums or ballot initiatives due to excessive democracy. But does this mean that when a ballot initiative is overturned, ...[text shortened]... d seem to be a job for the legislature, as it should have been instead of the ballot initiative.
    A ballot initiative that is passed becomes a law just like any law passed by the State legislature. If that law is found to be a violation of "Constitutional" rights the law is overturned. Moreover if the policy enshrined in the law is such a violation, it is void.

    A ruling saying that a gay marriage ban is an unconstitutional violation of equal protection or due process has one remedy; allowing gay marriage. Further legislative action is unnecessary.

    Your premise seems to be that there can be a violation of individual rights found but a court is powerless to remedy said violation. That would make a mockery of the Constitution.
  3. Subscriber no1marauder
    It's Nice to Be Nice
    22 Mar '14 08:32
    A further point is that the Michigan case is in reference to a Constitutional Amendment adopted by the voters in 2004. Michigan law had already been interpreted to ban gay marriage, but opponents wanted a more difficult to overturn prohibition.

    The decision is her: http://big.assets.huffingtonpost.com/Michigangaymarriage.pdf

    It relies on the Equal Protection Clause of the 14th Amendment and decides that the gay marriage ban fails even the most lenient standard of review called the "rational basis test" - the act challenged must merely be "rationally related to the achievement of a legitimate governmental purpose". In examining the purported interests given by the State of Michigan, the Court correctly found that the act failed the test. Quite a few prior decisions regarding gay marriage bans have reached the same conclusion.
  4. 22 Mar '14 09:17
    It is my belief that democratic methods should never be used when deciding something that affects only a minority. Instead the constitution and courts should take precedence - or the democracy should take place within the affected group only. So for a vote on gay marriage to be reasonable, I think one must first prove that gay marriage affects everyone in some way - or the vote should be restricted to the gay community.
    I think the same applies to issue like citizenship. In countries like Switzerland, citizenship is very hard to obtain even for people who were born there and spent their whole lives there. This is because the decisions are made by citizens (not residents). I think that at a minimum, all residents should get a say in the matter, and the citizens should first provide good argument that the decision affects them directly.
  5. Standard member Nick Bourbaki
    Son of FMF
    22 Mar '14 10:21 / 1 edit
    Originally posted by twhitehead
    It is my belief that democratic methods should never be used when deciding something that affects only a minority.
    What about democratic methods being used when deciding tax rates that only a rich minority should pay? Is that OK?
  6. 22 Mar '14 11:20
    Originally posted by Nick Bourbaki
    What about democratic methods being used when deciding tax rates that only a rich minority should pay? Is that OK?
    As I said, an argument must be made for how it affects the voters. In this case, although only the rich pay/or don't pay, it clearly affects everyone (as the taxes benefit everyone). In addition, if the alternative is a tax that affects everyone, the question then is what is a tax that affects everyone equally?
    So yes, I do think it falls within the domain of democracy, but it must still be handled with care and the justice system should ensure that it is not just a case of the poor majority taking it out on the rich.
  7. Standard member finnegan
    GENS UNA SUMUS
    22 Mar '14 11:59
    Originally posted by Nick Bourbaki
    What about democratic methods being used when deciding tax rates that only a rich minority should pay? Is that OK?
    We should try that some time. It compares favourably with using democratic methods to decide tax rates that only the rich can evade.

    You are making a category error. In most democracies (the US may be an exception) only a minority of citizens will be caught by criminal laws and sanctions but I have not heard that criminals are a minority in need of protection (accepting the need for reform of the criminal law in a country that imprisons such a big proportion of its black population).

    In Europe, only a minority of citizens make a living by fishing but there are increasingly strict laws to protect fish stocks and prevent over fishing.

    So maybe you can set out a case for giving the (very) rich special protection against taxes. The fact that they are a minority is not sufficient in itself. But guess what? That already happens. But I am not sure that it happens through a very attractive expression of democracy at work.
  8. 22 Mar '14 15:14
    Originally posted by twhitehead
    It is my belief that democratic methods should never be used when deciding something that affects only a minority. Instead the constitution and courts should take precedence - or the democracy should take place within the affected group only. So for a vote on gay marriage to be reasonable, I think one must first prove that gay marriage affects everyone in ...[text shortened]... er, and the citizens should first provide good argument that the decision affects them directly.
    "It is my belief that democratic methods should never be used when deciding something that affects only a minority. Instead the constitution and courts should take precedence..."

    The composition of the constitution and courts are directly or indirectly subject to democratic votes in most cases, so you must be objecting to direct simple majority democracy.
  9. 22 Mar '14 18:26
    Originally posted by JS357
    The composition of the constitution and courts are directly or indirectly subject to democratic votes in most cases, so you must be objecting to direct simple majority democracy.
    That is a tough one, yes. I think the constitution should lay down certain rules such as rights and equality. These then should supercede more specific laws that affect minorities.
    I am not sure how many countries actually follow a democratic process when creating their constitution. I know that in Zambia they have been trying to draft a new constitution for many many years and it just keeps getting delayed for political reasons. I know that in the US, everyone thinks 'the founding fathers' were gods who knew everything and wrote out the constitution for them.

    But I think that a constitution should not discriminate - however that constitution is obtained. So a constitution for example should not say that only men can vote, or only white people can vote. If you have direct simple majority voting on every subject then pretty soon the majority adjust everything for their own benefit - but sometimes they do things that do not really benefit them at all but rather are mostly to the detriment of a minority group.
  10. Subscriber AThousandYoung
    Poor Filipov :,(
    22 Mar '14 21:19
    Originally posted by twhitehead
    That is a tough one, yes. I think the constitution should lay down certain rules such as rights and equality. These then should supercede more specific laws that affect minorities.
    I am not sure how many countries actually follow a democratic process when creating their constitution. I know that in Zambia they have been trying to draft a new constitution ...[text shortened]... at do not really benefit them at all but rather are mostly to the detriment of a minority group.
    To start with, the Constitution can choose to allow only armed fighters to vote. This keeps the voting a reasonable approximation of what will happen if civil war breaks out. This is the principle that the Founders used when they decided to deny the vote to women and blacks (who were legal property and therefore not permitted to be armed).

    Universal sufferage is great but can't survive in a violence dominated environment.
  11. 23 Mar '14 18:36
    Originally posted by no1marauder
    A ballot initiative that is passed becomes a law just like any law passed by the State legislature. If that law is found to be a violation of "Constitutional" rights the law is overturned. Moreover if the policy enshrined in the law is such a violation, it is void.

    A ruling saying that a gay marriage ban is an unconstitutional violation of ...[text shortened]... ut a court is powerless to remedy said violation. That would make a mockery of the Constitution.
    Sorry, but overturning a law should leave the legal status the same as before that law was enacted.


    There was no provision for gay marriage in Michigan, or local ordinances prior to the ballot initiative. The reversal of the ballot initiative ought to leave the law as it was before enacted.

    Of course it is void, but it doesn't affirmatively endorse any other policy.
  12. 23 Mar '14 18:45
    Originally posted by twhitehead
    As I said, an argument must be made for how it affects the voters. In this case, although only the rich pay/or don't pay, it clearly affects everyone (as the taxes benefit everyone). In addition, if the alternative is a tax that affects everyone, the question then is what is a tax that affects everyone equally?
    So yes, I do think it falls within the doma ...[text shortened]... system should ensure that it is not just a case of the poor majority taking it out on the rich.
    In the US, democracy isn't supposed to be direct, as in referendums or ballot initiative. Most States and the Federal government have bicameral legislative bodies and require the executive sign off on new legislation. This is to protect minority opinions, and finally the courts can reject legislation as unconstitutional.

    What the courts usually can't do is replace that legislation with its opinion, legislating from the bench. My objection is that the court has apparently gone past rejecting the voter's choice, but made it's own legislation replacing the flawed referendum.

    In this case a single judge overruled both the voters, and replaced the legislature and executive approval.

    If the legislature wants to redefine marriage, that is within its power, but it ought not be the province of a single judge.
  13. Subscriber no1marauder
    It's Nice to Be Nice
    24 Mar '14 05:22
    Originally posted by normbenign
    In the US, democracy isn't supposed to be direct, as in referendums or ballot initiative. Most States and the Federal government have bicameral legislative bodies and require the executive sign off on new legislation. This is to protect minority opinions, and finally the courts can reject legislation as unconstitutional.

    What the courts usually can't ...[text shortened]... redefine marriage, that is within its power, but it ought not be the province of a single judge.
    It is beyond the legislature or the voters' power to define marriage as to violate the Equal Protection Clause of the 14th Amendment. Michigan law did it before the Constitutional amendment. To end the EPC violation, the Court properly applied a remedy that does so.
  14. 26 Mar '14 21:54
    Originally posted by no1marauder
    It is beyond the legislature or the voters' power to define marriage as to violate the Equal Protection Clause of the 14th Amendment. Michigan law did it before the Constitutional amendment. To end the EPC violation, the Court properly applied a remedy that does so.
    That was not the assertion of the lawsuit brought by the gay nurses. It was entirely about the referendum defining marriage in Michigan law. The arguments presented were a mish mash of stuff arguing pragmatic values, not legal principles.

    The standard definition of marriage preceded the United States Constitution, the EPC of the 14th amendment, and was clearly understood and supported in every State, and every city, county and township laws governing marriage.

    This judge capriciously legislated from the bench redefining marriage in such a manner that the EPC would apply. Certainly this was not without precedent, but wrong precedents have been applied before, often for long time before being overturned.

    Let's say that a referendum has been designed to define marriage as a contract between any two persons, regardless of gender? Let's say it passed. That would be a far more convincing change of the legal definition, than a judge overturning what amounted to an affirmation of what the majority already believed was a factual definition, supported by State and local law.

    The reality is that "gay marriage" wasn't even a thought on the horizon even a decade ago, never mind when the 14th amendment was enacted. Any comparison of gays being left out of marriage to slaves being left out of freedom is absurd.

    Marriage precedes the US government and Constitution, and probably dates back to your primitive societies under natural law. Do you think that natural law supports gay marriage?
  15. Subscriber no1marauder
    It's Nice to Be Nice
    30 Mar '14 13:23
    Originally posted by normbenign
    That was not the assertion of the lawsuit brought by the gay nurses. It was entirely about the referendum defining marriage in Michigan law. The arguments presented were a mish mash of stuff arguing pragmatic values, not legal principles.

    The standard definition of marriage preceded the United States Constitution, the EPC of the 14th amendment, and w ...[text shortened]... our primitive societies under natural law. Do you think that natural law supports gay marriage?
    Yes as it protects individuals in society from invidious discrimination which is what gay marriage bans are all about.

    States banned interracial marriage right up until the Supreme Court found such bans unconstitutional. The same arguments you are making were made in defense of that invidious discrimination.

    That homosexuals were a despised minority throughout the history of this country is a strong argument for, not against, the invalidation of laws that discriminate against them.