"Fester" <not@home.com> wrote in message
news:<Dzqnd.6418$iI2.708988@twister.southeast.rr.com>...

There are some other ones, like Brown v. the Board of Education, which
suggest that sometimes it is *exactly* the domain of a court to
determine if a fundamental constitutional principle has been violated
by a popular law.

Agreed.

I'm leaving this in, only to highlight that you, too, think there is
an appropriate place for the courts to intervene despite the relative
popularity of a law.

<snip>

I dissent from Scalia:-)

1) the entire notion of rights is based upon philosophic principles of
Locke, which hinge on rights of property -- and the first right of
property is one's own body. While it's reasonable and proper to
legislate by popular consensus what *acts are appropriate in a public
venue, it is outside the bounds of that philosophy to dictate what
actions between consenting adults may be enjoyed in private (this to
counter his notion that it is in the interest of the public, or the
government, to dictate moral behavior, such as certain sexual acts)

I ask you to read thread I started concerning Morality Laws and Animal
Rights. My disagreement with this point is discussed more fully there
than
space permits here. In a nutshell, I'll simply ask the question if laws
against cruelty to animals in the privacy of one's home should 1) be
allowed
to stand and 2) are justifiable on any but moral grounds.

I don't know.
It's my sense that laws governing cruelty to animals are justified by
a number of means, and depending on the case, may or may not run afoul
of constitutional protection. However, until they're challenged in
that regard, I suspect they'll stand. (I have a problem, as well, when
the penalty for cruelty to an animal exceeds that which is imposed
routinely for a crime against a human, but that gets us into an
entirely new subject...)

The point of that is, it is only upon *challenge* that the courts rule
on the constitutionality of a given law -- which applies to education,
integration, school prayer, and same sex marriage.

2) Marriage is about a whole lot more than sex (ask any couple who's
been married for a long time...) It is, outside of a religious
context, a committed relationship between two people for both legal
and emotional reasons. In Loving v. Virginia, it was called a
"fundamental right", thus recognizing the tendency of humans to desire
a public proclamation of their commitment to one another. But it is a
contract, which involves both rights and responsibilities enforced by
law. Thus, while it is not the domain of government to legislate
individual morality, it *is* in the public interest to encourage
certain stabilizing behaviors for the good of society overall.

That is your judgement of society's interests, and I respect it. Some
may
say (I don't) that the promotion of the immoral act of sodomy is against
the
state's interests. Is the promotion of morality in the state's interest?

The short answer is, I think morality changes with time. In the
public sphere, so long as it does not violate an individual right, it
is fine and appropriate for the state to legislate things in some sort
of conformity with the generally accepted standards of morality. In
the privacy of one's home, it is a different matter, and the state is
a fairly lousy and often draconian arbiter of morality.

So a state may prohibit, for example, public fornication, but a state
may not (to my thinking) catalogue what sorts of fornication may be
enjoyed in private, under what circumstances (excepting, of course,
cases of force or where age of consent is an issue, which I think are
constitutionally justified as well as plain common sense).

<snip>

You and I may agree that laws disallowing same sex couple is
counter-productive to the promotion of fidelity. Nonetheless, do
legislatures have the authority to judge that sodomy is immoral and so
seek
to discourage it, rather than to reward it?

I don't think so.
I'll skip, for the moment, hauling out Founder quotes, but I think
questions of personal moral codes were intentionally and explicitely
left to the population at large.

I know the DOI isn't a legal document, but it's a fairly good
philosophic exegesis. Governments are granted certain powers for the
specific purpose of more efficiently guarding the rights of
*everyone*, and most emphatically *not* for the purpose of enforcing
some standardized set of morals.

Thus, though we'd call theft
immoral, for instance, theft is also the violation of the property
rights of another. Murder is a violation. Assault is a violation.
Etc, etc, etc. Though there is overlap between what we'd call moral
and what is a violation of individual rights, the system is supposed
to be concerned (in an ideal world) with only safeguarding the rights
of all individuals, from encroachments by other individuals *and* by
the government itself (hence the separation of powers).

<snip>

I'll grant there's no perfect system.
But the purpose *of* the court is to weigh the constitutionality of
laws, popular or not. It would be nice if the states legislated
approval of same sex marriage -- but it's not really necessary, and in
fact, is probably superfluous.

Here is the bottom line in our disagreement. I would agree that it would
be
nice for legislatures to be as enlightened as you and I on the subject,
but
I don't think it is superfluous. I am far from convinced that the court
can
act properly in denying the legislature authority to define marriage in
the
traditional sense.

You know, Fester, the nice thing about the whole system is that, in
all honesty, *no* group can be trusted not to get carried away by
their own power and authority, so you have that cool balancing act.
You're not convinced the court, left unchecked, can be trusted; I'm
not convinced the legislature, left unchecked, can be trusted. I
imagine we'd both agree that the executive branch, left unchecked,
can't be trusted. So it's a fairly efficient policing system.

However...

Defining marriage in a traditional sense is going to be tricky.
And if some legislature somewhere decides that marriage is what it has
always been, an arrangement between a man and woman for cohabitation,
that's really fine -- and doesn't address the question.

The question then becomes, can the legislature legitimately prohibit
two people of the same sex from creating their *own* arrangements for
cohabitation, irrespective of whether they call it marriage or not?
And then, can the state then deny those committed couples the
privileges and benefits granted to the heterosexual couples?

"Separate but equal" was, on its face, an attempt to answer the equal
protection clause. It took a court ruling to enunciate that separate
was not equal -- and it wasn't.

But I have been contending that we are not discussing "separate but equal
here." In my opininon both equal protection and due process are
satisfied
by traditional marriage laws. The open question in my mind, is whether
legislatures should be allowed to pass laws on the base of "morality."

It's likely we're going to continue to disagree on this topic, as I
find arbitrarily determining that two people can't contract together
(no matter what you call it) a violation of equal protection.