Gay Marriage Approved by New York Senate

[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.

[MysticCat]

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.

Not necessarily. Like I said earlier, lots of legal scholars think Roe and its progeny are terrible decisions, even if they're in sympathy with the outcome. Of course, courts get it wrong sometime, but there's no point in throwing an opinion out there if you're not willing to back it up or are unwilling to have it challenged.

Which brings us to . . .

Originally Posted by Ghostwriter

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

This to me is an interesting assertion, given your emphasis on the Bill of Rights. The whole concept of the Bill of Rights, the roots of which can be traced to Magna Carta, is that government does not have the authority to determine what rights it will and will not grant it citizens. Rather the perspective of the Bill of Rights is that the government, which can validly exist only with the consent of the governed, is required to respect the rights that citizens inherently possess. In the words of the Declaration of Independence, people "are endowed by their Creator with certain inalienable rights." In the view of the Bill of Rights, rights are not granted by the state; rights are held by the people.

At most, government must balance governmental needs with the rights of citizens, but under the Bill of Rights, the burden is always on the government to justify any intrusion on citizen's rights.