(I can’t sleep, so posting this hoping I can clear my head and rest)
Colbert may of nailed this one remarkably well here.
The current argument is, in the case of the Supra-Constitutional status of universal gay marriage being legal everywhere in the US, is clearly false. In the US Republic, in order for something to be referred to as legal, that was once illegal, there needs to be a existing law on the books somewhere, or a constitutional right declared. In a few states, this has occurred, and therefore in a few states, it exists as law, so it can be thus argued only in these jurisdictions, its legal. Other states, the majority in fact, were very firm in their stances no. They were obliged to recognize marriage licences from other states, but that’s it.
Colbert points to corporations as people. That was a legal fiction introduced by a medieval English court to get around the issue of suing corporations, that had limited liability clauses where individuals could not be sued, and the rules of the court that stated only people could bring cases against other people. They came up with a legal fiction, saying corporations were people, and could be sued. This was back in the era when the right to combat still existed (still technically exists in the US, as it was never used or outlawed here… we never had need to abolish it, the British only got rid of it after the revolutionary war, as some asshole declared his right to combat in court to the shock of everyone).
Homosexuality isn’t a listed protected group. Its a clear legal fiction… but its a legal fiction not based on a law, but constitutional amendment.
Last night, I looked into thus, and found the UK has created mechanisms for avoiding applying legal fictions to overcome actual laws:
en.m.wikipedia.org/wiki/Legal_fiction
Now, let’s play Devil’s Advocate, and in doing so accept the supreme court ruling that gays are a constitutional class of people deserving of special rights over and above others… protected groups can file charges they are discriminated against for characteristics X, Y, Z. Its very difficult, for example, for a white guy to sue for being discriminated against by white employers, even if technically he us due to Affirmative Action Laws, but a black person can in reverse… therefore, a black person, as a member of a group, has more rights, and therefore is more human before the law, as the law recognizes his unequal access to more protections. Gays magically have this ability now, which will undoubtly shift sooner or later (or attempts at least, hopefully it will fail, as most don’t gave any employment issues. I’ve already brought up how transexuals are discriminated by gays in Sad Francisco job markets) to inclusion under Affirmative Action.
If some of the people on this forum, many if whom strongly oppose the underlining idea that Corporations Are People, and push for clauses like the British rulings above, what happens to Colbert’s incredibly insightful observance? The law remains the law… still to this day, in West Virginian lawbooks, we have printed in our law books laws against witchcraft and communists. In pencil next to them, someone was nice enough to write in “don’t in force these laws anymore”. Still very much on the books. You strip people’s freedom of speech, freedom of assembly, and first amendment rights in a constitutional convention… which can legally be done (I by no means advocate it) these laws become fully valid once again. Why? Still on our books, still our code. People treat it like junk DNA.
Now, also still very much on the books… Gay Marriage is illegal most everywhere in the US. This is the actual state of the law. Corporations as people is very ancient… US more or less adopted it when the US agreed to continue the common law tradition, but occasionally these rules get tossed or are reexamined, and judges suddenly realize they don’t serve at the King’s leisure, but are judges in a Constitutional Republic, and perhaps judicial presidents in case law shouldn’t step all over the intent of laws, or supercede them.
Playing devil’s advocate, in support of Gay Marriage, given its a legal fiction… how would the US go about in the courts recognizing that Corporations as People is indeed a legal fiction, and recognize the intent of the law superceeds the rights of corporations, while likewise preserving the legal fiction that gays are a special class protected by the 14th amendment, even though it clearly does not.
Its a constitutional paradox, and limits our range of motion to fight against the idea that Corporations are People. I really can’t point to any laws passed since the revolution that specifically states they are. If they do exist, just how far do they state it (so we can determine their human hood) or is it just a reference to a assumption already inherited from antiquity? Its as much a force in our law here in the US as in England, but the English only examined this post revolution, and didn’t centralize it’s court system till much later under the Judicature Acts:
en.m.wikipedia.org/wiki/Judicature_Acts
The underlining issue with Legal Fictions is just this, courts won’t officially recognize its a legal fiction, at least in the beginning, as its a hot button issue… its absolutely necessary to act like it was absolutely normal and right to act so. I’m sure back in the 13th century, people asked if a corporation had a right to challenge a prosecuter in combat, or his champion (unfair fight, a whole corporation against one knight, however skilled and armored), or a Catholic Friar questioning if corporations have souls, and if they should be baptised and pay the tithe to the church, or be regarded as Jews or Heathens under the law.
This does produce numerous paradoxes. How can one advocate for the legal fiction of Gay Marriage, under the 14th Admendment, while arguing in a court for the removal of an aspect of a legal fiction of corporations that has for whatever reason found itself superior to the laws of the state? Could the British observance work in preserving the former while suppressing the latter?
Furthermore, what prevents this legal fiction… gays qualifying as a distinct group, from being applied to other made up groups? An example being, can people with tattoes become a protected group? Can nudists? Are we violating Nudists rights for free association? Pedophiles? Can people with remains of Siamese Twins (such as a tumor with a few teeth and hair that squeals when you poke it and shares kidneys and blood with you, but nothing else) get out of death sentences pointing out their attached twin suddenly is a person being unfairly sentenced?
We can make shit up left and right. Induce new categories of personhood to infinity. I’ll declare myself a woman, take a single hormone injection that does next to nothing in and of itself the first time around, and will sue for being discriminated against, cause women don’t get promited in company X. Its a bullshit recognition, and sure the hell wasn’t the intentions of anyone originally to do this post-civil war or during women’s emancipation.
At the same time, we can’t be setting precedent, punishing people for not warping their status through loopholes in declaration. We will reach a point where everyone will be a legal fiction, we will all become Pacific Islander Transexuals who also are Amish (to avoid the Obamacare Tax) and all live in our primary residence mist of the year… A van, also known as a Class B motor Home, registered in the state of Florida, to avoid paying state income tax in Illinois, New York, and California, and only “occasionally” use houses and apartments in those states for entertaining guests. There will just be one White Guy living in Des Moines who didn’t catch on, and us getting reamed by the courts left and right and being taken care of by everyone, while all the other “White Guys”, AKA the female pacific islanders, will curse him out for historical injustices inflicted upon their people!
That’s when Marty and the Professor visits in their Time Machine, looks around, and says “WTF”.
We are well into that WTF point.
Honestly… try hard here, reach down deep inside… find a argument you can present to a judge, such as reinstating Senator McCain’s Campaign Finance Reforms, in a way that supposes law superceeds rights granted by courts via Legal Fictions in this case, but doesn’t come to negate the Legal Fiction around gay marriage, that they are a independent group in their own right, and furthermore, how this will stop a group, such as Tee-Shirt and Short Wearers, to sue banks for not hiring them, or Nudist being arrested, denying their constitutional rights to free association. These are likewise groups of people who differ from the rest of the population save for a volitional matter in choice, had they been otherwise in their choices (compliance with the law) they would of been like everyone else.
In the case of Blacks, being black wasn’t their choice. They couldn’t choose to stop being black. Same for women. So for Asians. Foreign immigrants are born foreign, but can choose to become naturalized, then citizens… and gain additional rights. People from poor neighborhoods, like me, can choose not to commit crimes (I’m one of only two guts not to be sent to prison in my age group of males here growing up. They tried, but failed… didn’t do anything wrong, represented myself in court).
I honestly don’t see how we can do it. If you support gay marriage, but abhor Corporations being people, nothing short of a constitutional amendment at this point is possible, and that’s no guarantee the courts won’t just build another legal fiction to bring it right back out of defiance.
For all extents and purposes, as far as your outlook goes, its over. We know a law can’t superceed legal fictions in the US, but in the UK it can. Any argument is DEAD ON ARRIVAL as far as your concerned. That’s the paradox inherent now in our legal system.
I’m gonna go now and baptise Walmart. See you all later. (hopefully I can sleep)