Blog Debate: Owen Answers Question 2

His response is here. I'll post my response tomorrow at 5pm.

5 Comments:

At 5:47 PM, Anonymous Keith said...

I think that Owen misunderstands a nuance about the Massachussetts decision that started this whole fiasco.

He states that: "The court gave the legislature 180 days to rewrite the law to allow gays to marry."

That's not exactly true. The court gave the legislature 180 days to CRAFT A SOLUTION THAT MEETS THE NEED OF EQUAL PROTECTION UNDER THE LAW. This could have been a list of various protections, or civil unions like Vermont, of full marriage. ANY of the three would have met the constitution's requirement.

The elected representatives of the people of Mass decided that marriage was the best solution.

In Wisconsin, we have thousands of families who have crafted various levels of legal and extra-legal protection. WE ARE NOT GOING AWAY. After Novemner 7th, someone is going to have to address our needs and our liberties.

If Helgeland vs. State of Wisconsin actually does get a hearing, the court ought to rule like Massachussetts: i.e. DO SOMETHING!

Without an amendment, the court would in fact give our elected representatives the freedom to craft a workable solution. Probably not marriage, but probably some kind of legal recognition of property rights.

With an amendment, there will only be one choice left to our senators and reps: Give one or two token liberties like hospital visitation or wills, as long as they don't look like marriage.

 
At 5:58 PM, Anonymous Anonymous said...

IIRC, the Mass. court clarifired its ruling later and basically said that anything short of full legalized gay marriage wouldn't pass "equl protection" muster.

- Owen
www.bootsandsabers.com

 
At 6:02 PM, Anonymous Kory said...

Owen's response seems to be much ado about nothing.

First of all, aren't our judges elected? If I'm correct, that would, in a sense make them elected representatives as well, unlike Massachusetts justices who are appointed. (I could be wrong though...)

Secondly, Massachusetts is not Wisconsin. Our constitution and courts are different. As we've already seen in Washington and New York, the states are not following any kind of trend that Massachusetts could have started.

If we're going to bring up Massachusetts though, why not discuss the after-effects of allowing gay marriage for the last ~3 years? Seems to me more and more people are OK with gay marriage in MA. Where's the fire now?

And finally, our message as advocates against the ban is that this proposed amendment as currently worded is messy (as we've seen in other states), unclear, and far reaching. If the power to govern the terms of marriage should lie with the state legislature then simply say as much in the amendment. Or, you could do something similar to what Hawaii did:

"The legislature shall have the power to reserve marriage to opposite-sex couples."

The truth of the matter is that it is not just about reserving the power to govern marriage to the legislature. If it was, that's what it would say.

If this amendment passes, the courts will have to sort the question of 'identical or substantially similar.' Once that language has gone constitutional, the legislature will be unable to change it again without another amendment. In the meantime (2+ years to get another amendment through MINIMUM), the lawsuits will be waged; benefits challenged and possibly lost, crimes gone unpunished to their full extent of law, etc.

Before the legislature can blame the courts for acting outside of the scope of duty, they must first pass clearly written laws for the justices to interperet. Many years ago the legislature was successful in creating a clear statute with the marriage legislation that exists on the books today. We can hold the courts accountable for their rulings, once we can establish a clear rule of law. This amendment is anything but clear. If it was, why the debate?

 
At 8:35 PM, Anonymous Ryan said...

Interesting. Owen admits that "[t]here will be no rational basis for the court to not rule that the statutory prohibition of gay marriage is unconstitutional."

That's exactly the purpose of the courts--to ensure that laws, when they are hurting American citizens, have some rational basis to be upheld--otherwise they are tossed out, even if it's against the will of the people.

Proponents of the ban seem to think that the role of the courts is to play into the legislature's and the majority's laps, when it's actually to protect citizens from harmful laws, especially when based in no rationality whatsoever (as Owen admits).

 
At 6:32 PM, Blogger Josh said...

Owen I also noticed that... any comment?

 

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