Gay Marriage Approved by New York Senate

[MysticCat]

Originally Posted by Ghostwriter

This decision is controversial and I believe it tramples on states rights. It also does not recognize the child as a viable being/person deserving protection. It is all opinion and hence the reason I stated specifically the Bill of Rights and not all amendments. It is the reading/interpretation of the amendments that I disagree with. I suspect that if Roe v. Wade were to come up now a different opinion might be forthcoming. I simply do not read the 14th as the court did.

There is no question that the decision in Roe is controversial, nor is there any question that lots of legal scholars -- including many who support abortion rights -- think that Roe is terrible decision, both in its legal analysis and its jurisprudence. That said, it's still (at least in part) valid precedent, so whether you or I or anyone else agrees with it or not, it's the law and will be the law until the Supreme Court reverses its position or the Constitution is amended.

But I still don't get why you singled out the Bill of Rights as opposed to all amendments. The amendments that come after the Bill of Rights amend the entire Contitution, including (often) the Bill of Rights. The question shouldn't be "does it violate the Bill of Rights"; it should be "does it violate the Constitution." By what legal basis do the Bill of Rights take precedence over the rest of the Constitution?

[agzg]

Originally Posted by MysticCat

There is no question that the decision in Roe is controversial, nor is there any question that lots of legal scholars -- including many who support abortion rights -- think that Roe is terrible decision, both in its legal analysis and its jurisprudence. That said, it's still (at least in part) valid precedent, so whether you or I or anyone else agrees with it or not, it's the law and will be the law until the Supreme Court reverses its position or the Constitution is amended.

I'm under the understanding that the current legal precedent is set by Planned Parenthood v. Casey.

[Kevin]

Originally Posted by agzg

I'm under the understanding that the current legal precedent is set by Planned Parenthood v. Casey.

Yes, at least that's what it was when I was in law school. Back to Ghostwriter's states rights comment--Even in Planned Parenthood v. Casey, the anti-choice side wasn't framed as a "states rights" or 10th Amendement issue, it was that the state has a compelling interest in preserving life. Or at least that's the argument that carried the day.

Casey stood for a number of things, but the main theme is that once the fetus becomes viable outside of the womb, the states have the power to forbid abortion completely, except in cases where the health of the mother [this is not defined at all, and is arguably the exception which swallows the rule] is at risk.

Getting a little more "meta," the principles at play are the rights of the mother, i.e., the fundamental liberty interest she has in her privacy and the right to an abortion. When someone has a fundamental liberty interest, the state has to have a compelling state interest to override it. The Court found that once the fetus becomes viable outside the womb, there is in fact a compelling state interest. Not because of the 10th Amendment, but because the state has a compelling interest in protecting life.

[Ghostwriter]

Originally Posted by Kevin

Yes, at least that's what it was when I was in law school. Back to Ghostwriter's states rights comment--Even in Planned Parenthood v. Casey, the anti-choice side wasn't framed as a "states rights" or 10th Amendement issue, it was that the state has a compelling interest in preserving life. Or at least that's the argument that carried the day.

Getting a little more "meta," the principles at play are the rights of the mother, i.e., the fundamental liberty interest she has in her privacy and the right to an abortion. When someone has a fundamental liberty interest, the state has to have a compelling state interest to override it. The Court found that once the fetus becomes viable outside the womb, there is in fact a compelling state interest. Not because of the 10th Amendment, but because the state has a compelling interest in protecting life.

My opinion and that of many others is that the Constitution is silent on the issue of abortion. Again, my argument is that a State has the right to determine what rights are granted to their citizens. This is my belief whether it involves gay marriage, polygamy, gambling, drugs, abortion or other concerns. Hopefully the "Constitutional Right" to an abortion will some day be overturned and it will be thrown back to the States where I believe it belongs.

I am not arguing that abortions are "illegal" or not the law of the land at this time (because it obviously is). I am stating that I disagree with the way the law has been instituted (via Judicial fiat by SCOTUS). The NY process for allowing "gay marriage" is the proper methodology/blueprint for implementation IMO. Each state should be allowed to make their own laws regarding this and a host of other "compelling" issues.

[KSig RC]

Originally Posted by Ghostwriter

Again, my argument is that a State has the right to determine what rights are granted to their citizens.

Well, this is strongly oversimplified (which I imagine you realize, but for purposes of discussion we'll outline it) - states have the right to determine its own laws, provided those laws do not interfere with Constitutional/unalienable/etc. rights granted to the people, and the powers reserved by the Federal Government.

That distinction is important, because it's at the root of why what you want to happen (state-by-state legislation of early-trimester abortions) simply cannot, under current judicial interpretation: until the fetus is viable, the woman's body is her own to deal with, as is her right.

Also, can we declare a moratorium on unnecessarily inflammatory terms like "judicial activism" that really don't serve a discussion purpose? Making a judicial decision isn't "activism" - it's what judges are supposed to do. It's their job.

[Drolefille]

Originally Posted by Ghostwriter

My opinion

You can believe a lot of things, that doesn't make them actual legal points. Case law says other than what you believe. So, Don't Stop Believin' but there's a reason the lawyers in this thread are pointing out up one side and down the other the difference.

[DrPhil]

[Ghostwriter]

Originally Posted by Drolefille

You can believe a lot of things, that doesn't make them actual legal points. Case law says other than what you believe. So, Don't Stop Believin' but there's a reason the lawyers in this thread are pointing out up one side and down the other the difference.

Damn, I didn't know that this site was a "court of law" and we were arguing legal points. I guess only lawyers can disagree with a decision by SCOTUS or any other court in your world? Per your post, if one disagrees with a person with a JD after their name he/she are automatically invalidated.

Many of the lawyers on this thread happen to view things as you do. That doesn't mean an end to a discussion or that those who believe as I do have no valid points to offer legal or otherwise. I find it hard to believe that you or anyone else on this site agree with every decision by SCOTUS, the Federal Courts or any court for that matter. The more liberal of you and some of the attorneys on this site might even vehemently disagree with some of the most recent decisions to come out of the SC. Since these decisions were argued by lawyers and decided on by Judges I guess it necessarily invalidates your beliefs or your opinions.

Hmm, I wonder if a court ever gets it wrong (Plessy v. Ferguson?).

As usual, this is just you trying to pick another fight. Not playing in your cesspool this time.

[Drolefille]

Originally Posted by Ghostwriter

Damn, I didn't know that this site was a "court of law" and we were arguing legal points. I guess only lawyers can disagree with a decision by SCOTUS or any other court in your world? Per your post, if one disagrees with a person with a JD after their name he/she are automatically invalidated.

Yes I know you're easily confused. But you keep insisting that you "BELIEVE" a certain thing. Case law disagrees. You can find that case law wrong, but still that doesn't mean that you are correct. And since the case law exists, until or unless it is overturned, that is the current correct interpretation of the law. Your belief is irrelevant.

Also, post less than four paragraphs if you're going to tell me how much you don't care.

[Ghostwriter]

Originally Posted by MysticCat

But I still don't get why you singled out the Bill of Rights as opposed to all amendments. The amendments that come after the Bill of Rights amend the entire Contitution, including (often) the Bill of Rights. The question shouldn't be "does it violate the Bill of Rights"; it should be "does it violate the Constitution." By what legal basis do the Bill of Rights take precedence over the rest of the Constitution?

I believe Amendment 10 says it all and should end the debates but your point is valid and I amend my statement to include the whole Constitution.

I simply disagree with the current law on abortion and its reading and would rather us allow the States to make their own laws. We as a country tend to over look the part where powers not enumerated in this Constitution are granted to the States (Amendment 10) and fall back on the life, liberty, etc clause to try to argue everything and allow everything on a National basis.

[Kevin]

Originally Posted by Ghostwriter

I believe Amendment 10 says it all and should end the debates but your point is valid and I amend my statement to include the whole Constitution.

I simply disagree with the current law on abortion and its reading and would rather us allow the States to make their own laws. We as a country tend to over look the part where powers not enumerated in this Constitution are granted to the States (Amendment 10) and fall back on the life, liberty, etc clause to try to argue everything and allow everything on a National basis.

But case law says that this isn't a powers issue, which is what the 10th deals with. This is a rights issue.

In Constitutional law, just about everything can be viewed as powers of the states versus rights of the people. Those are the two forces usually at play.

The 10th Amendment would allow the states to proscribe abortion, absolutely true, BUT, case law says there's a fundamental liberty interest in abortion. That means the power of the state to proscribe abortion versus the right of the woman to have one must be weighed according to constitutional standards of review.

The applicable standard of review is often referred to as "strict scrutiny." To come out on top, the state has to prove a compelling state interest. See the above discussion for further elaboration on the point.