In the anti-miscegenation laws prejudice based on race was written into the law while in New Jersey as long as you meet the other criteria there is no prejudice based on sexual orientation is written into the law. The only way is to challenge them would be on the basis the roles are prejudiced toward a particular gender which is like challenging bathrooms because they are segregated on the basis of gender.

In many states berfore 1967, whites could marry whites and blacks could marry blacks, but whites and blacks could not marry each other. Loving v. Virginia ruled that this was discrimination under the equal protection clause. How is the New Jersey case any different?

On the question of when human life begins. I thought you held to the dictates of science. According to biologists the initial stage of the homo sapient organism, which the rest of us call a human being, begins as a zygote. There is some religious/philosophical mumbo jumbo that debates when a human being is a “person” which is certainly not something the courts should be deciding unless we live in a theocracy.

I find Wikipedea about as accurate as any tertiary source. It is about equivalent to a news article.

“the New Jersey state legislature created the right to get married in 1912, then the state legislature passed a law in 1992 prohibiting discrimination based on sexual orientation”

Can you prove a homosexual man was prohibited from marrying a homosexual female in New Jersey because that would be the only way New Jersey Marriage law discriminates based on marriage. Your point would be valid if there were a law forbidding discrimination based on sex but that would also force everyone to use the same bathroom.

That is not how the court ruled anyways. The court ruled that marriage rights have to be extended to homosexuals. The flaw is the discrimination in the law in based on marriage status and not on sexual orientation.

It seems New Jersey Judges have a problem with marriage.

Kerwin: The judicial court only has the power to judge. They can not put new meaning to a law. Their job is to apply it as the those who passed it intended it to be applied otherwise they are making laws.

Davef: “I have often wondered if we are living in the republic the founders intended, or have we squandered a hard won fresh start?”

Kerwin: Stop wondering. We are in a hierarchical system instead of a federation though there are still strong reminders of the former.

Kerwin: The Sixteenth and Seventeenth Amendments seemed to be the root causes which have allowed the federal government to control the states either by money or through the federal court system, The Seventeenth removed the check and balance of the state legislations from the federal government and the Sixteenth gave the federal government the money to manipulate the states.

Now the courts rule that the non-discrimination includes the right to marry. How are they ignoring the voice of the people?

The people did not legalize gay marriage. In fact, most experts say that if such a proposal made the ballot or legislature it would have been voted down. So in effect the decision to judiciate rather than legislate did in fact circumvent the voice of the people.

We protect minority religions from discrimination all the time and you don’t need science to tell you that religion is a choice.

The right to free religion is protected by the US constitution, and so is out of the realm of democratic debate. You can only compare other constitutional rights in this light.

If the constitution does not directly weigh in on an issue and the legislature has not directly weighed in on an issue, how do you determine the legality of that issue?

On abortion, the texas legislature did rule. It was a Texas Statute outlawing abortion which was the target of the Roe v Wade suit.

But to answer the overall question you posed, I believe the 10th amendment leaves such a decision in the hands of the state legislature. Texas had ruled on abortion, and the Supreme Court did see fit to generate a new constitutional right. On new issues, it is less clear – but we cannot shortcut the democratic process for judicial expediency.

Lets say there is a new situation, brought before a court, upon which no law has been enacted. The court should not be hearing the case. The court system is limited to issues of interpretation and application of laws, and constitutionality. If the constitution is silent on a particular item then so should the courts.

Can a group holding to a belief claim they are a minority because most people believe otherwise?
I find this question very intriguing. I hope we can examine it further. The answer may not be the clear “no” that you’ve implied. I’m not sure though.

I agree it is not an easy question. I suppose I have an issue with voluntary inclusion in a minority group. It is something I would be happy to discuss. Perhaps I can view that closer in another post.

It can be argued that it is, by definition, impossible to “create rights”. Following that argument, any rights that you allege the judiciary has created would simply fall under the 10th ammendment.

I should say new rights under the constitution. The constitution is not the be-all and end-all of rights to American people. In any event, I agree, and the 10th amendment puts such into the hands of the State and not the Federal government. I already sighted how Roe v Wade went outside of this process.

Most recently, this week, The New Jersey Supreme Court rules that homosexual couples should be accorded the same rights as heterosexual couples. This decision has taken the discussion out of the democratic process and foced a preconceived end result on the legislature. The New Jersey Supreme Court has decided that the voice of the people will not be heard in this issue and they are, sadly, protected as they are appointed judges, not elected.

Let’s see, the New Jersey state legislature created the right to get married in 1912, then the state legislature passed a law in 1992 prohibiting discrimination based on sexual orientation. Now the courts rule that the non-discrimination includes the right to marry. How are they ignoring the voice of the people?

If Homosexuality is a choice then I see no logical foundation upon which to grant the rights of a minority group.

We protect minority religions from discrimination all the time and you don’t need science to tell you that religion is a choice.

First and foremost, thank you, davef, for raising the issues “according to the constitutional merit[s], not the merit[s] of the item itself.” It’s a refreshing approach.

Disclaimer: I believe the answer to the abortion question derives from a question for which we as a species do not have a clear answer, so I don’t expect to convince anyone of my conclusion, nor vice-versa. I would, however, like to come to an understanding about the premise and how it leads directly to the conclusion.

Also, please do not succumb to the impulse to fast-forward my argument in an effort to thwart it. Coming to an understanding on the question(s) that form the basis of a debate will not invalidate your conclusion. You will still have plenty of opportunities to disagree with me.

- If the constitution does not directly weigh in on an issue and the legislature has not directly weighed in on an issue, how do you determine the legality of that issue? If they both indirectly weigh in in the same direction, the answer is pretty clear, but if they both indirectly weigh in in different directions, which takes precedence? Does the constitution always win or do you have to determine which one relates closest to the immediate issue? It’s a tricky business.

Also, I would be hesitant to use a definition from Wikipedia. It’s a great source for quick information, but it’s very nature prevents it from being an authoritative source. It’s best to follow its citations back to the original source.

Can a group holding to a belief claim they are a minority because most people believe otherwise?

I find this question very intriguing. I hope we can examine it further. The answer may not be the clear “no” that you’ve implied. I’m not sure though.

The courts do have an obligation to protect the rights of the few from trampling by the many, but they do not have the authority to create new rights.

It can be argued that it is, by definition, impossible to “create rights”. Following that argument, any rights that you allege the judiciary has created would simply fall under the 10th ammendment.

Time to go. I look forward to an interesting discussion in the morning.