Prop 8 unconstitutional in Cali

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If you are going to try to make a legal argument, then at least make sure that you have the law on your side. When I went to law school, marriage was neither a privilege, nor a right. It is a benefit of law. Now I will grant you that this is the Canadian formulation of words, but our concept of "equal benefit of the law," falls fairly closely aligned to your "equal protection," concept.



Actually, I think you will find that there are very few rights that are enumerated in your Constitution. In point of fact, your Constitution is very explicit in setting out that the rule expressio unius exclusio alterus est does not apply. Read the Ninth Amendment sometime.



Most assuredly not. A plebiscite is only granted legal authority by the statute that authorizes it. While the Constitution of California might well set out that popular vote is sufficient to enact an amendment to the State's constitution, that authorizing statue is, itself, subject to federal constitutional scrutiny. It is trite law that you cannot do indirectly what is prohibited directly. Since the fourteenth amendment imposes an equal protection guarantee upon individual States, the people of the individual states cannot take actions that the State itself is prohibited from taking.



First, the Courts of Common Law jurisdictions have always had the right to create law--the Common Law is wholly and entirely the creation of judicial decision making. The privilege of the legislature is to enact law that conflicts with the Common Law and to have it prevail over the Common Law.

But in the instant cases, nowhere have the courts legislated from the bench. Rather, they have disallowed legislation enacted by legislatures and by referendum. It has been the privilege of the Courts to disallow unconstitutional legislation since 1803. Though there has been ample opportunity to overturn this well settled line of constitutional law, no jurisdiction has seen fit to do so.



Are you attempting to misuse the word, "oxymoron," ironically, or are you ignorant of its correct meaning? Given the lax statements of constitutional law that you have set out, I can't be sure.



Absolutely false. Nothing in the legalization of same-sex marriage compels a member of the clergy to celebrate a marriage between two people who are religiously barred.

Has the broad availability of divorce compelled Roman Catholic priests to celebrate a marriage in which one of the parties has a former spouse still living? Of course not. Has the institution of civil marriage compelled Orthodox rabbis to celebrate a marriage between a Jew and a Gentile? No.

On the other hand, though, the pre-existing definition of marriage did interfere with the rights of clergy. Can an imam perform a marriage between a man and a woman where the man already has a wife? Not only will such a bigamous marriage not be valid, in most jurisdictions the imam will be committing a criminal act in purporting to celebrate such a marriage.

Meanwhile, there are plenty of religious denominations that are perfectly willing to celebrate marriages between two members of the same sex, provided that the law allows for it. Are these clergy to constrained from the free exercise of their religion because of the bigotry of the majority?



Your political invective is significantly stronger than than your knowledge of the law.

While I have great respect for the Canadian Justice System, it is, to my knowledge more centered toward British Law then American. Having said that, might I suggest that you read some actual American case law sometime. And I totally dissent with with every argument you have made. There has been a lot of bench legislation going on in this country since the 1920's. Perhaps you should consider arguing law from the perpective of an American lawyer instead of a Canadian "British Law Trained" Barrister.

So in other words, you're arguing that states should have the right to deny marriage to mixed race couples? Because your argument could be used to make that point.
And the simple fact is, minorities do have rights that the law must protect. Gay Americans should not have their rights denied them just because they're an unpopular group.
And who the hell says liberals are a minority? Well, beside you and C-Pac. Most Americans hold to liberal positions, such as support of civil rights, social security, more and more for universal health care, and now, 51% supports gay marriage. We liberals aren't so much in the minority, after all.
On top of that, sometimes you have to shove change down people's throats. Otherwise black Americans would still be drinking out of separate drinking fountains and using different rest rooms, and could be denied service in public businesses, or jobs based on race, etc. Come to think of it, slavery ended because Lincoln forced it's end down the collective throat of the south.

-Bill, otherwise known as Kraichgauer

Okay, before I go on duty. I'll answer this last one. Then, I'm going to be busy for a while. First, we need to clarify things. And bear in mind that where I'm at, we don't have law libraries because most of the neighbors can't read. Now you are changing your argument. You have failed to argue that marriage is a civil right. Do you condede that marriage is a privilege and not a right? If not. let's establish exactly what marriage is first and foremost. Prove to me that marriage is a right and not a privilege.

Going on duty so I don't have to read your inces... No, just kidding!
As the federal government had made denying interracial marriage illegal, that I think makes marriage a right.

-Bill, otherwise known as Kraichgauer

In view of the current controversy, and the fact that there are doubters out there who just can’t seem to take the hint, one of them being a Canadian Barrister, I suppose that it is incumbent upon me to drop some napalm to wipe out the resistance that I am now getting from all sides. Because I am in an area without a law library and do not have access to Lexis/Nexis or Westlaw, I shall have to do this from the top of my head. So be it. You’ve asked for fight. You shall have your request granted. I claim the disclaimer that the citations may be off a little. Again, I am not near a law library. At least, if nothing else, you’ll understand why my fellow officers warn people that I am the last man anyone wants to surround or corner. But then again, having served in an Air Force search and rescue squadron, being surrounded is something I’ve become accustomed to. Of course, as a gentle reminder to my learned Canadian British Commonwealth Colleague, Canadian and British Law do not apply in the completely independent United States.

So let’s get on with it.

First Issue: Is marriage a right, privilege, or benefit of law? To answer this question, one must first define these terms as the US and State Courts do.

A marriage is an institution and is the foundation of American Society Am Jur 1st Mar 8. The status or relation of a man and a woman legally united as husband and wife. Baker v State, 86 Neb 775, 126 NW 300. Marriage is also a civil contract, but unlike other contracts, cannot be modified or abrogated by the parties themselves. In Re Campbell’s Estate, 260 Wis. 625, 51 NW 2d 709. And of course, marriage is a religious institution, and, in some religions, a sacrament.

A right is defined as a just and valid claim to what may be land, land or a privilege. Shaw v Proffitt, 57 Or 192, 109 P 584. Civil rights are necessarily distinguished from the elemental idea of absolute rights. If we were to consider civil rights as absolute, nothing but chaos could result. Nickell v Rosenfield, 82 Cal App 369, 255 P 760.

A privilege is defined as an advantage held by way of license, grant, or permission not possessed by others. Wisener v Burrell, 28 Okla 546, 118 P 999.

A benefit of law I shall define as a legal or equitable right not enjoyed by others originating by statute or case law. As we never used that term in first year law, the definition supra is the best I could do. I haven’t seen any American case law on it, but that doesn’t mean that it doesn’t exist.

Now, it has been argued that gay marriage is a civil right. If this were true, than marriage itself would have to be a civil right. This is not the case. If this were so, that legal phenomenon known as common-law marriage would have to be recognized by all fifty states. As of this writing, only sixteen states in the United States recognize common-law marriage. Furthermore, while the broad definition of civil rights “means the enjoyment of constitutional guarantees or statutory provisions preventing discrimination based on color, creed, gender, etc., marriage is not listed as one of them.” 15 Am Jur 2d Civ R 1. Folks, if it’s not defined by law specifically as a right, it’s not a right – period.

Marriage is allowable upon license, which fits into privilege. Again, a privilege is defined as an advantage held by way of license, grant, or permission not possessed by others.

Benefit of law may or may not apply, but I would require proof of American law that it does. I have seen none.

Thus, marriage is a privilege. The privilege of marriage can be denied as a matter of public policy in the United States if it is deemed best for the public interest. Klitzman v. Klitzman, 167 Wis. 308, 166 NW 789. Furthermore, marriages may be valid, except those contrary to the law of nature and those declared invalid on the grounds of public policy. In Re Campbell’s Estate, 260 Wis. 625, 51 NW 2d 709. Clearly, gay marriage is against the laws of nature, and is not viewed by a majority of American society as being sound public policy.

And now, the final broadside for the benefit of our Canadian friend who is a citizen of a British Commonwealth: Being a said citizen of said commonwealth does not give you legal standing on this issue in the United States. And in case said British subject tries to pull that move on me, I would like to respectfully educate said British subject of the fact that I am a registered law student of the State of California and thus have standing amici on this issue.

Lastly, please give my sincere regards to your Head of State, my cousin, the Queen.

Stars and Stripes Forever!! !!

-His Grace, Major Longshanks,
Direct Descendant of Charlemagne and a few other Royals,
and The Duk of Yuk.

Where is this "contrary to the law of nature" thing coming from? I sincerely doubt that it can be found in the constitution.
And you claim you're in a place where almost nobody can read? Where are you, in kindergarten, or the south?

-Bill, otherwise known as Kraichgauer

You must really be tired! The US still has one war going on you know - and if you look at my avatar you see that I'm not in country right at this second. And no I can't say where I am am at this second.

The Laws of Nature refer to Natural Law. Natural Law refers to those laws inherintly known to all (Don't kill, don't steal, etc.) Homosexuality is not considered natural by most people - no matter how many homosexuals try to portray it as being otherwise. I don't apologize for society or the law. I just argue it like it is.

This is Longshanks signing off. Something's happening and I have to go!

Okay, I concede I failed to look at your avatar. My bad.
As for natural law - I'm pretty certain it doesn't hold any legal sway in the United States of America. In fact, I've got a pretty good idea what would happen if a lawyer had argued natural law in a court of law.

-Bill, otherwise known as Kraichgauer

Natural law has been argued in the courts of the United States since day one of this country's exisitence and is still argued regularly. The US Supreme Court has accepted it in a number of cases. We can agree to disagree on a number of subjects. But facts are facts. And I don't consider homosexuality to be on the same par as race. Race and behavior are two different things. I don't think special rights should be given just because of deviant behavior. I don't think that deviant behavior shoud be rewarded. I also don't think that special rights, such as affirmative action, should be given just because of person's race either. Nobody has to like my opinion. Having served my country, however, I believe I have more than earned the right to it - unlike those who just take their rights for granted.

Well, I don't take my rights for granted. That's why it's so important to me that the same rights I enjoy should be extended to all other Americans. And outside the homophobic right, who says gays get special rights? It's a matter of extending rights to gays who have otherwise been discriminated against in the past. And for the sake of argument that homosexuality is just a matter of behavior - the fact is, they still deserve all the rights and protection afforded to any and all citizens under the law. If you believe that homosexuality is deviant behavior, well, you're more than entitled to your opinion. But just the same, gays, and those of us who support the rights of gay Americans, are also entitled to our opinion. No one is "rewarding" deviant behavior here. Rather, for us this is a civil rights issue. Why should a gay couple not have the same rights as my wife and me? If I end up in the hospital, my wife has the right to visit me, make decisions for me if I'm incapacitated, and - God forbid - can inherit our joint property if I die. Why can't gay couples have the same rights as this? I believe that homosexuality is part of the human condition, but even if it were a matter of choice, who cares? They're still Americans, and America is still land of equal rights.
I'm not even going to address affirmative action, because I'd probably be typing all day.
And while I honor and respect you for your service to me and all Americans as a soldier, I will not hesitate to tell you when I believe you're mistaken. Even an unpublished author and bohemian bum like me has that right, BECAUSE I AM AN AMERICAN, thank the Lord.

-Bill, otherwise known as Kraichgauer

We can a gree to disagree, as I've said before. Although I find it ironic that the term "homophobe" was coined by a bunch of hetrophobes. It's obvious you're ignoring my arguments on civil rights - even though I have defined them and explained them with backing case law that even SCOTUS upholds. It reminds me of that flip-flopping distant cousin of mine - Lincoln. I'm related through his mother's family, the Hanks. Lincoln was a secessionist before he ran for president you know. Just read his speaches from the late 1840's and early 1850's. But his biggest coup was the Gettysburg Address - what a joke that was! "Now are are engaged in a great civil war." Bull! A civil war is when 2 factions fight for control of the same government. The South was fighting to seperate - thus fighting a seperatist's war - not a civil war. So, we have had a war between the states, but never have we had a civil war. Point made: People will believe what they want to believe despite incontrovertable facts to the contrary. While I am against slavery - I am for state's rights. And as of late, many small business owners have been complaining to me of the Democrats' efforts to enslave them. I agree. But we all know that history repeats itself and it was the Democrats who supported the slavery in the Southern Confederacy. That is well documented.

I don't have a problem with people having opinions - but I do have a problem with people refusing to weigh in ALL of the facts and puting blinders on their eyes. And yes, I also have a problem with people with selective memories and journalists with selective agendas - Matthews of Hardball fame comes to mind - you know - that guy who gets some kind of sexual shivver up his leg whenever he see's Obama. Wonder what "My Belle Michelle" thinks of that?

The beauty of the military is that we see politics for what it is - BS! We understand right and wrong and there is no confusion. We take academia with a grain of salt - which is a good trait - and we believe in common sense - something a vast majority of politicians, lawyers, journalists, and academics on both sides lack.

Where the founding fathers screwed up is that they should have required that anyone desirous of holding public office should do some time in the military. Of course you have the throwbacks like those blow-hards like Kerry and Ron Paul who didn't learn anything from their military experience, but all in all it would have cut down on the BS.

On that note - we agree to disagree. Next topic, please.

Who is John Gault?

-Longshanks.

I disagree on Lincoln having ever been a secessionist - that's not what I had learned in college as a history major - but even if that were true, he ended up on the side of the angels.
And as far as states rights are concerned, they have led to nothing but a major headache for the country. States rights had led to the Civil War, as well as suppression of black Americans. The Civil War had decided the matter of states rights, as far as I'm concerned, so good riddance.
As for Democrats having had instigated the Civil War, and Jim Crow afterward, that is absolutely correct. That southern faction of the Democratic party has since become Republicans, while the political descendants of the northern Republicans have become Democrats.
And Chris Mathews? I consider him to be quite a bit more honorable than the bigoted liars on Fox Noise.
As for who is John Galt? John Galt was, as I'm sure you know, a literary invention of that Christ hating hag, Ayn Rand. Everything that woman insisted on was contrary to the charity and love of one's neighbor taught by Christ. I fail to see how Evangelicals making up the ranks of the tea party can look themselves in the mirror after promoting that woman and her selfish, egocentric agenda. As I've already stated, Evangelicals have tied themselves to right wing politics to the degree that they end up promoting an agenda that is often at odds with Christ's message.

-Bill, otherwise known as Kraichgauer

Cousin Abe's speeches advocating secession are on the internet. Ayn Rand is brilliant. The writers of the constitution advocated state's rights, as any federalist would, and there is a difference between charity and enforced socialism. My impression is that you misunderstand the difference, Even Jefferson advocated small government and no government interference. You have yet to defend any position you have maintained with documented fact. You make statements of thoughts but no fact to back them up. You appear to just take everything on blind faith. While faith and belief are two of the keys to Christianity, I require more concrete proof on secular matters.

-Longshanks

I may check out Lincoln's speeches - though the indisputable fact remains, he fought to keep our country united, thus keeping to his oath to fight all enemies, foreign or domestic.
And what the hell is wrong with the government helping the most vulnerable of us? My six year old daughter, who has been diagnosed with PDD-NOS (which is also on the autistic spectrum), receives special education by way of the government. If you want to call that socialism, go ahead. But the fact remains, because of that particular piece of "socialism," my little girl will be able to have a future in adult life. And so forgive me, but I could care less if that is somehow a burden on the rest of the country. And what's wrong with keeping people from going without food or shelter, or medical care because of poverty, job loss, or handicap? In fact, in Leviticus, the owners of grain fields had been commanded to leave some behind so the poor could eat. Sounds like an early example of enforced socialism to me. In fact, my church's Bible study group had agreed that that was exactly what it was.
And while Jefferson was entitled to his opinion, the America he was writing about was a pre-industrial, agrarian country. I hardly think the same ideas can be applied to an industrial nation like modern America, where a thriving population can literally live or die at the whims of the market, especially now that the gains of labor are being driven back. It's obvious segments of the country in need should be given help as they need it. Think of it as an investment in the American people.
And I don't consider myself to be taking everything on blind faith, but with an open mind - and yes, a bleeding heart . But I could just as easily accuse you of looking at the world through the prism of a right wing mind set, without regarding that the world extends beyond the Republican party, or the Southern Baptist Church. Those of us who disagree with you aren't Christ hating, America hating monsters, like Fox, Beck, and Limbaugh claim.
And for the record, I read Rand's Anthem in high school. I didn't see anything special about her writing, and her philosophy behind it was egotistic and self centered.

-Bill, otherwise known as Kraichgauer

Yes, yes, go on! It is obvious to me that you are disgusted with the fact that churches are better, more generous, more econimical and more efficient with charity than the government. Oh, what a bitter pill for you to swallow! Can I stand the irony of it all?