The courts and the legislature are meant to cooperate together on matters of lawmaking, interpretation, and enforcement. One cannot do their job without the other. Same goes for the executive branch.

There is no such a thing as gay marriage. So, how can you legalize that which does not exist?

Should never be legal by any order, or, by the law of the jungle. The law of the land should stand against it, today, tomorrow and forever.

The last acceptable legal discrimination will fail a serious legal challenge hence the redneck-state-push-to-make-it-illegal-that-will-fail-a-serious-court-challenge. . .you can deal with it or move to a nation that blindly accepts theological dogma as law. . .certainly the Taliban would agree with you. . .

Neither should be used to legalize this abomination.

As noted within some prior comments, this argument (namely gay marriage should be left to the legislatures) is one of process rather than one regarding the ultimate subject. As such, this would get a single star; however, since the Left tends to run to the courts for these matters, I'll go with it nonetheless. First, public policy questions should always be addressed by the political and legislative processes, period. That's why society has them. The Supreme Court is simply not a super legislature to which to scamper for a legislative appeal. The Constitution is designed for limited restrictions on majority rule. Yes, the Equal Protection clause is one of these limitations, yet there is no equal protection violation here. (Nor was there one in "Loving" no matter how abhorrent we may find that situation by contemporary standards.) The wealthy are a minority, yet they pay more taxes. Women are a majority, yet there are laws protecting them. Marriage is behavior, and behavior can be regulated or banned. While being homosexual may or may not be a choice, homosexuality isn't a crime though homosexual acts may be. Gays can still marry under current law, just not as they would prefer. I may like cocaine and you beer, but I'm not discriminated against simply because my preferred drug is illegal and yours not. The bottom line is gay marriage (as other public policy issues, like abortion) should be won or lost in the courts of public opinion, not the courts which are ill suited to judge such matters without a clear constitutional mandate. [Note that my comments apply to the Federal Constitution and not those of the several states and commonwealths.]

How about this? Award marriage to heterosexuals and civil partnerships to gays. End of debate.

no way,no time ,no place.

Oh yeah, that's going to happen right away.

Courts should decide. The bumbling idiots that make up legislation would take years to decide and that would be a travesty.

Oh yeah? Well lets have abortion decided the same way. Whats that? You mindless Bible thumpers don't want to? Because you know it would be legalized handily because there aren't enough of you psychos? Wow, maybe you are smart.

14th Amendment equal protection clause should have legalized gay marriage right away.

Although I don't think it should be legislated at all, if it is going to have any vote, the public should be the ones who have the power to vote that law, not just some judges who are out of touch or some politicians. The thing which I don't like about the courts making laws is it doesn't seem as democratic.

In a perfect world, where everyone voluntarily agreed to uphold and respect the individual rights of other citizens, it would be preferable to address this issue through the legislatures. However, we don't live in a perfect world, and too many people are willing to deny other citizens access to even the most basic access to their constitutionally guaranteed rights. That's why the United States was founded as a Constitutional Republic, instead of a Direct Democracy. The Constitution, and especially the Bill of Rights, exists to protect our rights as individuals from with "will of the mob." A perfect example is the case of Loving v. Virginia, in which the Supreme Court overturned all of the laws in this country which made interracial marriages illegal. It would have been best if the legislatures of each and ever state had made this move willingly and of their own accord, but as is often the case when there is a question of an oppressed minority, the majority failed in it's moral task to uphold the general welfare of all citizens, and had to be coerced by the Courts. Same-sex marriage is an inevitability in this country (the U.S.). The constitutional principles and case-law precedents relating to this subject are crystal clear. If the opponents of same-sex marriage don't want to be dragged through the Courts and handed the inevitable and humilating defeat which awaits them there, they will need to choose to respect the rights of their fellow citizens willingly, before that happens. percivale

This is the worst argument on this list. This would be the equivalent of blacks in the South having waited around for their white neighbors to have elected representatives who would have proactively created legislation that would have ended Separate but Equal policies and integrated public schools. In short, don't hold your hand on your ass 'til it happens. Constitutional civil liberties are not to be decided appropriate or inappropriate at the whim of the masses. The Constitution exists, in part, so there are some rights that members of minority groups have regardless of whether or not the majority approves.

Very good. But let's point out that this isn't an argument against gay marraige.

I cannot see how this fits directly under the category premise, but it is accurate.

UPDATE: Andrew, PLEASE . . . the purpose of the court is to interpret the US Constitution, not (NOTTT!!!) protect the rights of the minority. That's nowhere in it, look it up. Homosexuals represent less than 50% of the population? Try less than 2%. In your opinion, the court's role is clear? It couldn't be more open to interpretation. It isn't hard to find the actual document - the US Constitution. Get a copy and read it before you pontificate such drivel as obvious truth. Sheesh. ORIGINAL COMMENT 4/15/05: While I do agree with the basic tenor of this statement, I take issue with mag's statement that the courts have an obligation to make sure the constitutional rights of all Americans are protected. That is not their responsibility and is not in the constitution. That responsibility really lies in the legislative branch in the writing of the legislation. The judicial branch interprets the law, they don't protect anybody from anything and they don't guarantee any rights to anybody. Period. Certainly, nobody could possibly make the case that the Founding Fathers perceived the judicial branch's activism of the past 40 years could be a good thing. They separated the powers as equally as they thought possible, knowing that the tyranny of the judicial branch, usurping powers expressly given to the legislative and executive branch, were inevitable and should be fought vigorously. Read the Federalist Papers.

Legislators represent the populus, Courts purpose for existence is to protect the rights of minorities that might get trampled in the representation of the populus. As homosexuals constitute less than 50% of the population, they are minorities. As gay marriage does not affect the rights of the populus, the court's role is clear.

It should not be legalized at all why should homosexuals have more rights then hetrosexuals.

This is the only way it should be legalized. If the collective public wishes to extend the definition of marriage to include homosexuals then the people should enact laws that reflect that will. More importantly through competing principles of tolerance and acceptance the public can determine what institutions should be tinkered with and which ones should be maintained unchanged. Personally I believe homosexuals shouldn't be allowed to marry. I do believe however they should be allowed to engage in civil unions that afford them the legal protections of married couples and fosters the virtues of stable relationships. These are decisions that should happen through the complex discussions in 50 different state legislatures, our congress etc- NOT in our run away court system. ****** Rodoedo, first of all welcome back to RIA- you were missed! Secondly you are totally off base on a few point here. I think you should remember it was the Dred Scott decision that struck down the Missouri Compromise and the Court under the auspice of individual property rights that expedited the Civil War. It was the Supreme Court imposing its ideology without proper authority that undercut the first priniciples of self government and removed the messy debate over slavery from public discussion. Similarly as it has today with abortion. It was legislative action through the Amendment process that led to the end of slavery, civil rights, voting rights, sufferage, and it was executive decisions from a democratically elected president that led to end of these horrific institutions. It was the decision of 6 despotic jurists that dehumanized all blacks both free and slave in Dred Scott. The judiciary wasn't created to throw out all laws it simply didn't like but only those narrowly incongruent with the original intent of the document. Please note if you read Article III section 2 of the Constitution the Supreme Court is only given original jurisdiction in specific matters. Congress is granted the ability to dissolve appellate benches and to create exceptions for laws that are beyond judicial review. Both Madison (the Father of the Constitution) and Jefferson believed in coordinate review whereby all branches equally interpreted the Constitution. To simply assume that appoval of nominations is the proper viable check upon judicial supremacy is absolutely false. Hamilton in Federalist #81 specifially names the impeachment process as a viable check (not for malfaesance but for improper us of authority). It was questionable whether the judiciary had the ability to strike down laws at all- and if they did they surely weren't authorized to create law upon some alternative higher prinicples like you suggest. Elections keep legislatures in line not unelected officials with life time appointments. And under what circumstance did the Framers of the 14th Amendment even come close to the inclination that the rights and privliges clause included gay marriage? Hell, they obviously didn't even believe it included the right to VOTE for blacks because they followed it up with the 15th Amendment. And now we're suppose to distort the 14th Amendment to the point where it includes gay marriage? If this is so the Constitution and its most basic principles are rendered meaningless. This charade of Constitutional grounding needs to be dropped and liberals need to start admitting to the fact that the Constitution means nothing to them- that they are ONLY interested in manipulating the system to impose upon society their secular religion and its code of ethics on the rest of us.

I understand the argument, but despite it's strength in comparison to some of the others here, it doesn't hold much weight. Sometimes the will of the public has to be defied in order to ensure that individuals are afforded their fundamental constitutional rights. As I stated on another item surrounding this topic, the public did not support emancipation of slaves and a war was needed to ensure that. Even then, the rights of the emancipated were not protected, and it was, yes, court action, not legislative action, that ensured that they were upheld. That is the reason for having a Judiciary in the first place- to examine the constitutionality of laws passed during the legislative process and throw them out. Additionally, the court has the power to mandate change when change must be forced (i.e. integration, even issues on a smaller scale like school finance). Sometimes, the judiciary must keep the legislature in check to ensure the protection of basic constitutional rights. Whether the right to marriage is a fundamental constitutional or human right is open to question. Nonetheless, the term activist judge has been sorely overused. Depending on one's perspective, justices dissenting with your own personal views can be considered activists. Indeed, the preservation of traditional institutions like marriage, as well as the extension of the right to marry to homosexuals, both can be construed as judicial activism. The fact is that the court is needed to force change when it is needed. There is no violation of the principles of checks and balances- the legislature has the authority to approve or reject nominees to the bench. In turn, the judiciary has the authority, and the responsibility to keep the legislature in line so as to ensure that it is meeting its constitutional obligation to the people.

This isn't an argument for or against gay marraige, but rather a process. When people use this argument it is always as a smokescreen to attract those without particular moral aversions to homosexual marraige. I believe the argument fills with straw a big hole in the anti-gay marraige argument, that being: how does this effect me? The idea is that gay marraige is undermining the constitution of our country and therefore effects everyone and should be fought. One of the many functions of the judiciary is to protect and uphold the rights of the minority. This is why it is important to have an independent judiciary, the legislature may do what the people want but that doesn't make it just. Judicial review is a backbone of this nations checks and balances. Most right-wingers would close a post like this with the reminder that this is America and if you don't like it you can leave, but I can't even do it sarcastically.

No I changed my mind, after being on this website, I realized that a lot of people will vote against it just because of unfair reasons, therefore it needs to be brought up all issues so that they can dismiss them as irrelevant :)

Once the judiciary decides a matter is constitutional, the constitution can be ammended to clarify the matter. That's the proper way to legislate it, and there's no need to undermine our system by attacking the judiciary for a handfull of decisions some people don't like. Regardless of which side of the issue you're on, a constitutional amendment is the means already provided for dealing with loose interpretation of constitutional matters. This is an argument without merit. The implication is that the independence of the judiciary should be undermined, which shows a lack of understanding or appreciation for the structure of the US federal government.

This is my biggest problem with the whole situation. I would come darned near voting for it if they would do it this way just because I hope it would send a message to other groups like this that it is possible to achieve change without sacrificing anything on behalf of the constitution. UPDATE: mattg, YOUR argument shows a lack of understanding of the structure of federal government. First of all, ther is no recinding of rights. Homosexuals have never been allowed to marry and theferore the right cannot be taken away. And the legislation has been used many times to take away rights, i.e. Prohibition, increasing drinking age to 21. Also, just because a judge dicides something is an issue of rights as you say, this has nothing to do whith what goes to the legislature. Congress (for the most part) dictates it's own agenda.

Obviously. Courts are there to uphold the laws, not make them.

This one seems to be the argument that reasonable right wingers are gravitating towards - I think because it's the only one that stands up at all. I understand the argument - laws should be changed according to the will of the people, and the way to do that is to have elected officials craft legislation that reflects the will of the people. But I also understand the argument that the Courts have an obligation to make sure that the constitutional rights of all Americans are protected. As the Constitution has clear language in it about equal protection under the law it would seem that you could make a pretty good case that gay Americans do not enjoy equal protection under the law with the current status quo, making any law that impacts their protection unconstitutional.