Wednesday, January 20, 2010

Gay Marriage and the Tyranny of the Majority

(below) Another "enlightened perspective" on the Gay Marriage issue.

Right now, in a  federal court in San Francisco, a case is being heard entitled "Perry vs. Swartzenegger" that will decide the fate of the recent state proposition that banned same-sex marriages in California. This was accomplished by appealing to the majority of voters in America's largest state. 

Here is a brief introduction to the case, from the "Suite 101" legal website:

"On January 11, 2010, arguments in the Perry vs. Schwarzenegger federal court case began. The case was filed by two same-sex couples in May 2009 in anticipation of the California Supreme Court’s ruling regarding Proposition 8. The main issue in the Perry vs. Schwarzenegger case is whether or not the proposition violates the United States Constitution by denying gay and lesbian couples equal protection under the law.

"The court case is being heard by US District Court Judge Vaughn Walker, a Republican appointee who has a reputation for independent thinking. The head lawyers who are challenging the ban are Theodore Olson, a noted conservative lawyer who supports same-sex marriage, and attorney David Boies. This pairing is quite noteworthy as Olson and Boies argued against each other in the famous Supreme Court case of Bush vs. Gore that decided the outcome of the 2000 United States presidential election. The lawyer for the Proposition 8 Campaign is an attorney by the name of Andy Pugno.

"The case is certainly a hot-button one for individuals on both sides of the issue. In fact, many gay rights advocates themselves opposed the filing of a lawsuit, arguing that a precedent in this case that was not favorable for the LGBT community could actually hinder the cause of gay rights."

 

As the writer above denotes, this case is a risk--an upholding of Proposition 8 in California by this court, or the final arbiter of Constitutional Law, The Supreme Court, could set back the cause of equal rights for Gay Americans.

 

Other sates, including Oregon, have also rejected the argument that same-sex couples have the right to be called "husband and wife" or "spouse".  Some states have provided some protections through "civil union" designations, but as yet only Massachusetts allows gay couples to call themselves "married". 

In this matter, most all of the "Red State" (Conservative-dominated) states still refuse to recognize that gay couple have a right to marry. Therefore, for example, a same-sex couple in the state of Oregon could be denied the rights of parenthood, hospital visitations when one spouse is sick, insurance protection, or any other right heterosexual couples take for granted.     

    Alexis De Touqueville, who memorably observed American customs directly in his travels through the young republic in the 1830's, had this observation about the  will of a majority through the electoral process to put the squeeze on citizens  whose peaceful affiliations they found unacceptable.  It is found in Chapter 18 of his book "Democracy in America", where he contrasts the tyranny of monarchs and tyrants and that sometimes arbitrary and often fickle thing, the Will of the Majority:  

" The master no longer says: "You shall think as I do or you shall die"; but he says: "You are free to think differently from me and to retain your life, your property, and all that you possess; but you are henceforth a stranger among your people....You will remain among men, but you will be deprived of the rights of mankind. Your fellow creatures will shun you like an impure being; and even those who believe in your innocence will abandon you, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence worse than death."

The words "impure being" could apply to the modern debate all civil libertarians face in dealing with this issue.  It is clear that many are uncomfortable with the idea that gay couples should have real equality before the law.  The "one man, one woman" argument holds sway for the majority.  Yet, do the opponents of gay marriage forget that they are walking and voting in the "proud" tradition of those who fought to keep black children out of decent schools and to deny the rights of mixed race couples to be married? It took a decision by the Supreme Court in 1967, "Loving vs. Virginia", to overturn laws against mixed race marriages.  Before that, these people were the "impure" ones to perhaps 80 percent of the nation who opposed black-white marriages.  I see little difference between the two situations (race or sexual preference) in regard to marriage since gender preference has never been prove to be as arbitrary by science as it has by false rumours and rare examples.   

The plain facts are clear.  The judicial system exists in our Constitution for many reasons, but one of them is surely to save groups from tyrannical opinions if those opinions happen to be currently in the majority. It was no good waiting for anxious older white people in the South and other parts of America to recognize that blacks and whites could sit in the same schools, drink from the same water fountains, live in the same neighborhoods and marry according to love and taste, not by skin pigmentation.  These laws had to be stricken not by the legislatures of state's, but upheld by the Federal Judicial system. 

 

One hopes and prays that when the time comes, and it will, that when The Supreme Court hears this case --which likely would rule 5-4 amongst its nine members one way or another--  that The Chief Justice John Roberts Court will do the right thing in regard to expanding freedom and contracting worry and fear of bigotry on behalf of a segment of citizens.      

 

 

60 comments:

  1. Remember that we're just one justice away from an extreme right-wing majority in the Supreme Court.

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  2. Well if it doesn't violate your constitution then it is time the Constitution itself was reviewed and updated because a Constitution which does not grant all citizens equal rights is a violation of the ideology of democracy and freedom.

    I personally believe that marriage itself is an outmoded institution, however as a pakeha heterosexual woman from a western democracy I appreciate that I have the right to make choices for myself - for example to choose whether I wish to marry or not. I see no reason why certain sections of our communities, such as homosexual men and women, should be denied the right to make those same choices. They, like me, should have the right to choose whether they wish to enter into a marriage or not. And these choices are very important - in western cultures couples who are married do indeed enjoy better rights and protections than those in defacto relationships. My own experience in the past attests to that.

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  3. I believe that the shaky legal ground that such bans stand upon is only held firm by the fear of the ostricisation De Touqueville suggests. The "majority" vote itself is in much question because of all of the misinformation that flooded the state from outside sources. If it is overturned though, those red states who are quite comfortable with there own bans will reopen an old argument that has gone on since uniting the colonies. Because this is now in federal court, it could now be argued in the supreme court that such rights become federal law, opening that old argument of state sovernty.This is already an issue should health care pass and states not have a choice whether to participate or not.I will be watching with great interest.

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  4. Altough I am far from an expert on Constiutional law, Iri Ani, I believe a strong case can be made under the 14th Amendment (one of three Constitional additions passed after The Civil War) that guarantees the right to equal protection for all citizens. One great thing about this document is that it has been amended eighteen times or so since the Constitution was first ratified by the orignal Thirteen States 220 years ago. That said, it is very difficult to amend to suit an specific case so there is always room for interpetation, and conservative jurists in the USA are very adverse to what is called "judicial activism"--which translates usually as anything that is not approved by conservatives in general, or set precedent.

    It is fortunate, however, that one of the main legal minds arguing the case on behalf of gay marriage is Theodore Olson, a Conservative jurist who is well known to The Supreme Court having served as the Solicitor General under none other than George W. Bush.

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  5. Me too Kenneth--I think you and I see the future of this in similar fashion.

    The issue of combatting misinformation and alarmism about "traditional" marriage as somewhow threatened by this inclusion will no doubt continue to crop up. It seems to me that marriages are far more threatend by adultery, alcoholism and domestic violence than anything that will be discussed in this case.

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  6. Ain't THAT the truth! I guess I'm still too 60's minded! Love is where you find it, I think,and grab it when you can.
    I've never been a big proponent of marriage, even though I was married for over 30 years, until my husband died. However, I feel that anyone over the age of consent should be able to marry whoever they love. Period.
    It ain't gonna happen here, though. Not on a national level,

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  7. This has been said of other changes and even after the change had been made, resistance was met. Shall we see the national guard called out to marriage ceremonies just as they had to walk children to desegregated schools? That very well may be until we finally get that none of us are free until all of us are free.

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  8. You kn ow, to me this is more a religious matter than a civil(uncivil?) one. Pursuit of happiness is being held hostage by the religious right, people so afraid of change that I'm not usre they evfen believe in fire! We can only hope that the Supreme Court will "do the right thing". It's hard enough to catch happiness. We don't really need more barriers against pursuing it!

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  9. couldn't agree more with you jaquie

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  10. I'm not sure why people are so frightened by this move. If it means two people making a commitment to each other, surely this is a good thing? I suppose prima facie, many will think it unnecessary in a society where couples simply live together. However, I believe there are real worries that if same sex couples share the cost of a home and one partner dies, the other may have problems staying in that property, even if they have drawn up a document with a lawyer. I believe marriage shows commitment in all things and the will for all worldly goods to be passed on to someone you love. Surely they have the right to rest easy, knowing the person left behind won't run into difficulties with family, who often oppose the relationship and we all know it still happens.

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  11. I don't understand why the constitution can't be changed anyway, everything needs updating, surely? But then I'm not American, and I've never really studied it.

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  12. The big problem with opening up that can of worms is that a Constitutional Convention would bring every nutbag from every corner of the country to bear, attempting to influence their Congresscritters to write in favors for their cause-du-jour.

    Let's not forget the powerful lobbies in America, which would virtually ensure that business, and not the people, would run the country.

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  13. Yeah, Astra, that pretty much sums it up. I used to imagine all the good things a Second Constitutional Convention might bring---and then think of Grover Nordquist and Gary Bauer and Newt and the Gang of Usual Suspects showing up in Philadelphia to do the deeds of their corporate masters and that would cure my desires.

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  14. Not through the ballot box, that's for sure, Jacquie. You're right there. And, yeah, love is hard enough tpo find, much less deal with the prejudices of strangers who have too much time on their hands.

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  15. Not through the ballot box, that's for sure, Jacquie. You're right there. And, yeah, love is hard enough tpo find, much less deal with the prejudices of strangers who have too much time on their hands.

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  16. Not through the ballot box, that's for sure, Jacquie. You're right there. And, yeah, love is hard enough to find, much less deal with the prejudices of strangers on top of that.

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  17. I think that's a very summation of the case for opening up marriage Cassandra. I don't know if this is an issue anymore in the UK, but I think all the reasons you mention there make this a "no brainer" to me. Why people would want to intercede in the domestic matters of consenting adults baffles me.


    We don't ask to have a church or a temple endorse ANY union of two people--that's why ( I thought ) we have a separation of church and state in the Constitution's First Amendment. And, as Jacquie, yourself and others have pointed out on this issue here, if people are not free in marriage from the possible difficulties a loved one might face from hostile relatives, then what rights do they have?

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  18. I agree Doug. Two of my very good friends Nick and Henri, got married the other day in a simple civil ceremony and I wish them all the luck in the world in their commitment to each other.

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  19. I have to confess to being ambivalent with regard to the subject of 'marriage', I have never seen it as significant to legitimise our commitments to another person through the auspices of either the church or the state.

    I don't have any faith in either of them.

    As a mariage objector I find it hard to work up a lot of enthusiasm for the debate when expressed in these terms, but if it is what people want, well why not?...let the church bells toll, lets have marriages of every one who wants to give up being a citizen and to be a 'spouse' instead.

    In the UK Liverpudlians are 'scouses' and across the world interelated couples are 'spouses', but I have no view on either condition personally, because personally is where it all begins and ends I think.

    I don't even accept that I am the 'legal person' they say I am, so I don't care if people are deemed married or not, it is utterly irrelevent to me, everyone by birthright should be entitled to the same legal status as free human beings in any civilised society I think.
    How we organise our domestic lives has nothing to do with the state or the church, or anyone else, so they can butt out and sod off so far as I'm concerned, it's all a question of respect really.

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  20. Don't they already? It sure looks like it from here.

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  21. It should indeed be irrelevant, however it often matters when a partner dies or when people break up. That's when you find out that married couples may well have more rights than others. I should know, I once gave a man a house.

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  22. I think that there are legal steps that can be taken Iri that do not require marriage to have taken place to protect citizens from exploitation and theft. To some large extent we can take steps that render marriage relatively meaningless, But such measures have nothing to do with our 'big day' or any of that money making nonsense that usually goes with it... however the odds are stacked against us and we can all make mistakes, we can all be 'victims'. This does not invalidate our opinions as adults and niether should it in my opinion.

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  23. This arch-romantic side to your politics comes as a bit of a surprise, AA :-)

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  24. Hear hear Jeff. That's what overturning this law does does for people like the American counterparts to Nick and Henri--if more people in America would just stop listening to propaganda and see these people as their co-workers and friends, this will not be an issue for the Far Right to flog the electorate with.

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  25. With the newest Supreme Court decision--allowing corporations to spend unlimited money on political campaigns--it id just gong to get worse Iri Ani and Astra--perhaps a lot worse.
    But you probably already know that.

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  26. Not all marriages are "religious". My husband and I were married by a justice of the peace, some are married by a notary public.
    There will always be people who believe in marriage. I didn't, until I got married. My husband was one of those who believed in it,
    With the laws the way they are in this country, inheritance laws I mean, marriage plays a big part. I think that's outmoded, but until laws like that change, same sex partners will never have equal rights to spouses. Not in this heavily christian country. And, honestly, for some that means their "pursuit of happiness". Some people can't be happy as a life partner, but can as a spouse.

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  27. I agree Jacquie. Both my marriages (including my current one) were performed in civil court. Although we are Christians, my wife and I felt no desire to have a big wedding with a minister and all that (and many non-religious people of course wouldn't even think about that. )

    For most gay couples , obviously, this has nothing to do with organized religion, and everything to do with legal equality with all other married couples.

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  28. I think it's a real shame too, that other people can determine everyone's sense of right and wrong. I suppose "society" has always been that way, though. We are all supposed to have the same rights in this country.
    Maybe some day we'll grow up.

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  29. I sure hope so Jacquie. A lot of other nations already have.

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  30. This whole post is such a trigger for me, sorry Doug. But the issue should not be about homosexuality or heterosexuality, it's really about legal issues that are sacrosanct for married people but where those not in that institution are often left out in the cold, depending on what country, state you are in, or the timing.

    There are many ways in which couples who are not "married" can protect themselves and I should point out that laws around this have improved here (around 2000, I think they were upgraded). But very often it does/did depend on the individuals becoming pro-active in their own interest and assumes that both individuals are honourable and respectful of each other. But young people whether heterosexual or homosexual, or people with stars in their eyes, often people who should know better, people who are nervous to bring up the subject as they are moving in together, often don't deal with it properly and at times don't know how to bring up the subject without seeming avaricious and grasping. This is especially true if the couple are starting out on an unequal basis - ie one may own property already while the other doesn't.

    Back in the eighties when it mattered to me, it turned out that I had to show a direct line between my wages and the mortgage but as I had had a broken work record because of having children, the mortgage had never gone out of my wage. Instead everything else had, like clothing the family, paying the phone and electricity, buying groceries etc. His wage had covered the mortgage, time payments and the car. Because he "contributed" to the mortgage he got the house. And the car incidentally. I got the kids.

    Which meant both me and the kids lost out.

    We didn't marry because I don't "believe" in marriage but that attitude served me ill. However had we got married it wouldn't have mattered a bean whose wage the mortgage was paid from. And I wouldn't have had to think about how to protect myself.

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  31. This is deja vu to me. One of the problems l have seen happen in my life as well, Iri Ani, is having a relative in the 70's who signed a pre-nuptial agreement with her first husband that cut her out of a proper share of the house and left her without either a real home of proper support for her two children...

    All because she married young and thought it was all going to be forever anyway and just signed away her rights to the property and the business this false-pious dog of a dude built up--all because she stopped working full-time to look after the the home more and, yes, he paid the mortgage on their house---one that he "gave to her as a "wedding gift" but was in reality a way for him to get his name first on the title of the property.

    This is the thing I cannot understand--- why moral bluenoses get all in a twist about the definition of marriage being sacrosanct when it can be circumvented by legal trickery played by an older partner over the younger. Thickos and strict legalisms like this is what rocks the foundation of marriage in a society far more than anything to do with sexuality.

    I'm glad some of this has been reformed in NZ. Not that its any great comfort to you I'd guess.

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  32. For the life of me, I cannot imagine why ANYONE would sign a pre-nup! Nor why, when one is "in love" one would even ask that!
    Guess I'm a romantic,I dunno. I know I won't marry again. I got lucky the first time.

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  33. I think when she signed the pre-nup it was also so new for middle-class people that she really didn't read it well. When her lawyer looked at it after the divorce started he had to laugh it was so water-tight! But like I said nobody but a few sharpies like this dude had ever heard of these little marriage bombs.

    Yeah, my advice to me grand-daughter when she's old enough--don't sign nothing!!!

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  34. Just recommend she not get married! lol That solves lots of problems!

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  35. Good advice as far as I'm concerned--until she's at least 30 and has a career.

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  36. Yeah, good luck with that. Didn't work with MY daughter! lol Hope you have better luck with your granddaughter.

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  37. Sheesh which is worse, having the rights and protections (via marriage) and then signing them away, or not having them in the first place.

    This is what you do when you are young and idealistic , you think it will be forever, or you think, I went in with nothing so if I leave with nothing that's fair enough. And maybe for the first few months that is true, but you have the kids and suddenly you realise your actions are going to affect them. All decisions like this should be reviewable and renegotiated every now and again, perhaps that also should be in the law. Because life changes, needs change. Or better still, all couples living together should be covered by the same equal laws.

    Perhaps also we need some better education/wisdom available. Like if you are going to marry/live with someone who is only interested in protecting their own interests while shagging you for ten years or so, and not interested in sharing even a dime with you (or even their own children) in the event you might break up, then maybe you should be rethinking the idea of being with such a miserable skinflint passing for a human being.

    Easy to be wise after the event. Better the laws protect you, no matter your gender or sexual preference.

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  38. Thanks.

    Once again, Jacquie, my fingers (and grandma's ) are crossed.

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  39. I totally agree with this---you cannot lock down a realtionship as if circumstances remain static. Things change, and the measure of a life together is not so cut-and -dried as I've seen it handled by the court system.

    There should be a legal clause protecting all parties including what was once called "common-law marriages" from expilotation.

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  40. I tired to respond to this last night but the font was all jumbled. Multi were having fun, I think.

    On the death of one of the partners, there seems to be the fear that he/she, maybe asked to leave the home they shared, I believe this is the main concern with gay couples. I'm really not sure how a simple legal document would hold up with all the relatives bossing in. What I do know, is it can take a long time to get sorted.

    We still haven't got to the stage where gay couples feel they can trust family to do the right thing.

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  41. That's exactly the scenario Cassandra .

    What good is a piece of legal paper to protect a surviving partner if the courts can throw it out or 51 percent of the voters decide otherwise? That's what the marriage option is for to cover heterosexual couples--so that's what is the best solution for gay couples.

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  42. This is very true Doug, but since 'common-law' is actually the law of the land here as established in legal judgements and precedents over the years. So in 'common law' jurisdictions like this it should follow that 'common law marriages' are indeed lawful and subject to all the rights and responsibilities that exist in formal marriages. This is not the case however and this is actually a human rights issue, since the law does not discriminate between partnerships cemented in various different sorts of marriages, it should not discriminate against partnerships that are not based upon any such ceremonies, but are freely entered into in 'common law'.

    There is a logical inconsistency in common law jurisdictions that do not address these human rights issues in a coherent or realistic manner here in the UK for example, except in the Mental Health Act (1983).

    Interestingly under the MHA you only have to live with someone as a partner (gay or straight) for 6 months to be what is known as their Nearest Relative under the Act... which is a legal status accorded to married partners and Civil partnerships too.

    The NR can make an application to have their partner detained under the the Mental Heath Act... if it can be supported by 2 medical recommendations(although they hardly ever do and in the overwhelming majority of cases these powers are exercised by people like myself) the NR can also arrange for their partners to be discharged from detention (with certain caveats) and have a significant role in British mental health law .

    So if cohabitees are given equality with married spouses under the Mental Health Act as they indeed are ....after 6 months together, it is a logical absurdity not to 'roll out' that status across the entire legal system.

    The law around the identity and role of the NR is actually quite complex, but it not only illustrates the contradictions in UK domestic legislation, but also that this assumed equality is evidenced in both common law and statute law in the UK.

    As I said initially this is I think a human rights issue which is overdue a remedy in most postmodern societies Doug.

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  43. So the MHA law creates a defacto recognition of a legal marriage with six months of co-habitation. But I gather the actual time a cohabitation without civil ceremony can be declared a legal marriage is somewhat beyond that. In the USA, it takes several years from what I understand.

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  44. I don't pitch for the other team but the constitution is one that can or you would think could be amended in some manner...but that's just my two cents Doug. It's always been a very touchy subject there as well as here. Here their was a new law placed in order to give allowance but it was a touchy subject when it did pending the province you resided in as it is within America...

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  45. I'm not sure of the Canadian legal situation on this, Jack--if its a matter for the provinces to settle. My main concern is equal protection for law-biding citizens, which is part of the American Constitution 14th Amendment. But, of course, the Supreme Court decides that.

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  46. I cannot understand why two people who are committed to each other should not enjoy the same rights as anyone else. One of the worst things I can think of would be not to be able to visit your mate in the hospital when they were very ill and perhaps dying. I've seen this happen, and it breaks my heart.

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  47. I think what this issue really demonstrated to me is how incredibly different life in America is to life in England.

    The gladiatorial US judicial system with media previews of the clash of the legal titans sounds to me more like the run up to a prize fight (or some other sporting trophy) than a judicial review of a matter germaine to civil liberties and citizenship.

    The case is like a Perry Mason trailer, everything is made for television and things only really exist if they are on television, or so it seems to me.

    We may be separated only by a common language but culturally we live on different planets I think.

    In saying all that I do not mean to imply that the Alice in Wonderland English legal system is a model anyone in their right mind would want to replicate, it comes replete with its own absurdities.

    But the meaning of marriage, the law, health and welfare, insurance, parenthood and what one of the people in the clip calls his 'respect' for the institution of marriage, is very different indeed here I think.

    I blame TV dinners for your absurdities and kippers at breakfast for ours Doug.

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  48. Yes, Christy, I would think that would sway a lot of the opposition, but for some reason It doesn't.

    Compassion for some has to come with conformity.

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  49. I just feel so strongly that Love is Love wherever you find it... and if the commitment is there, it IS a marriage and should be honored as such.

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  50. Television, not mankind, seems to be the new "measure of all things" over here AA. Such a worthy decision as the unanimous 1954 "Brown vs (Topeka Kansas) Board of Education"--the opening salvo in the legalistic fight against the congenital crime of racism in America---would likely be impossible today. The notion of an apolitical judiciary has gone by the way side.


    "Planet America" is quite a thing unto itself I'm afraid. I doubt such issues in England could be handled as mere soap opera as it is here.

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  51. Well, I'm not a "biblical scholar", but I understand that the bible has some passages denouncing anything not between a man and woman. Maybe denouncing is too mild a word, but I don't want to step on toes right now. Judges are supposed to be neutral, but being human, that's hard.
    Plus, everyone wants reelected, so they need to cater to their "moral majority". Hard to give up those salaries, you know.

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  52. Yes, Jacquie, this is no time to give up on a job that requires no outdoor work. ;-)

    Catering to the swaying wishes of the masses seems to have become as much a judge's job as a politician. The funny thing is that the judges are supposed to protect the interests of the minority, as was part of the intent of "equal protection" clause of the 14th Amendment.

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  53. And, if it's not political suicide, they do.
    Ya know, it seems to be that this kinda thing falls under civil rights AND the pursuit of happiness guarentee.
    But, what do I know?

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  54. Yes, the pursuit of happiness would seem to at least be in the spirit of lifting the ban on same-sex marriage.

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  55. Catching up here Doug and this Christy seemingly says it all. I am not sure why things have to be so complicated.

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