[prewett]

The US court sure comes close to deciding moral issues, if not actually. Abortion: some people say killing babies is wrong and should be illegal; other people say a woman has the right to kill* her baby if it hasn't been born yet. Homosexual marriage: some people say it is wrong and should be illegal; others say it is right and should be legal. So if I think homosexual marriage is wrong, the court requires that the society I live in treat it as okay, which leaves many people feeling like the court is legislating morality. (Of course, the opposite is true, too) Furthermore, the court pretty much has to rule on things like this. So it's a pretty fine line.

* I freely admit to being biased on this issue, but the fetus has a heart-beat at 3 weeks; it's hard to say it's not living being. And if it's living, aborting/terminating it is technically killing it.

[dibujante]

No, this isn't true. This isn't how the US courts work. The US courts decide what is consistent with the law. Let's look at the two issues you're discussing, abortion and gay marriage. These were both decided by Supreme Court cases, Roe v. Wade and Obergefell v. Hodges, respectively.

In Roe, the court found that outlawing abortion would constitute a violation of rights already established in the Constitution, specifically the due process clause of the 14th amendment. This means that the same legal rationale for your right to abort is also the legal rationale that prevents a state from, say, passing a bill stating that "prewett is now a criminal because we say so."

In the case of Obergefell, the court decided that denying recognition for same-sex marriages from other states was a violation of equal protection, because opposite-sex marriages from other states were recognized. This is the same right that, say, allows you to marry someone of another race and then go to another state and have that marriage continue to be valid.

So no, the court is not deciding, morally, what is right and wrong. If you think that, that's probably the source of your confusion. The court is deciding that the implication of the constitution and laws as written demand this conclusion in order to be logically consistent.

You might disagree with the logical (or moral) basis of their decision. Sure.

You might say they're legislating morality. No.

[grzm]

I think I see what you're saying, and I agree that laws and morality are similar. That said, I do think they can be meaningfully distinguished. Edit: I understand you make this distinction as well.

The duty of the judiciary is to interpret and apply the law. The creation of the law is the job of the legislative branch. It seems to me that while people may agree or object to laws on moral grounds, the judicial branch is focussed on the application of the law itself, not the moral aspects of it. As the legislature creates the law, one could argue that they're more directly responsible for encoding morality into the law. Though some might think in some cases the judicial branch abuses it's interpretive duty by "legislating from the bench".

What do you think? Edit: I suspect we're actually quite close to agreeing.

[prewett]

I think we pretty much agree. Rights and morality are pretty closely related, so when the court rules on rights, it's pretty close to morality.

I think what upsets people about "legislating from the bench" is things like at least 25 states pass laws or constitutional amendments banning some form of homosexual marriage [1], which clearly reflects a substantial will-of-the-people, and the Supreme Court overrules the expressed will of the people and says it's unconstitutional. So now these people, have to live in a society that legally tolerates something they think is wrong and/or harmful to society long-term. Regardless of your view of whether the Court was "right," you can certainly see why people would be upset with this. No matter what the Court rules, someone is going to be unhappy, but given that homosexuals are 3% of the population and are driving the other 97% (which had expressed their desires through the democratic process), you can see the problem.

(I think this is why conservative Christians are voting for Trump in large numbers, despite the fact that many of them think he is not a good candidate. They are voting for a Supreme Court nominator, not a government leader. As a conservative Christian myself, I think this is foolish, but there it is.)

[1] https://en.m.wikipedia.org/wiki/List_of_U.S._state_constitut...

[ctrlalt_g]

A lot has happened in the past decade, and it's not 3% driving the 97%, not that it ever was (http://www.pewforum.org/2016/05/12/changing-attitudes-on-gay...).

But either way, the percentage of people who believe certain morals does not matter. No matter what our individual beliefs are, we bind ourselves to the law of the land. That's what it means to have a constitution. Even if 100% of Americans wanted to take away your freedom of speech or your freedom to bear arms, we could not do it legally.

[prewett]

The 3% is the percentage of people who are homosexual, not the people that support them, but I see your point.

In this discussion I'm not taking sides, just noting that the court needs to decide quasi-moral questions. Our interpretation of the Constitution depends on our current beliefs (and might even lead to an interpretation that the original founders would have rejected). The constitution clearly says that we have a right of free speech. However, as far as I am aware, it does not state that we have a) a right to marry, b) a right to do homosexual acts, or c) a right for homosexuals to marry. In fact, I believe B and C were illegal for large periods of time (anti-sodomy laws). I suggest that the Founders probably would not have seen homosexual marriage as a right. Due to changing morals, however, the Supreme Court now views it as a right. Were the laws constitutional before but not now? Were they always unconstitutional, but nobody challenged them? As a thought experiment, if societal morals changes to believe that homosexuality is actively harmful to society, would anti-sodomy laws be constitutional? The process of interpretation of rights necessarily involves our current beliefs.

[rblatz]

Can it survive on its own outside the mother's body? Or implanted into another mothers body? If not how alive is it? But more importantly how can you enforce upon a woman the sacrifice to her body and self to carry this fetus to term? Does she not have autonomy and control of her own body?