Federal bankruptcy court blasts Defense of Marriage Act

[Roderick Femm]

Story here (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/06/14/BA261JTSHR.DTL&tsp=1).

The latest legal manifesto for gay rights comes from an unlikely source - a 20-judge federal bankruptcy court, which unanimously declared that a law denying federal benefits to same-sex couples is unconstitutional.

This on top of the new federal judge upholding Judge Walker's ruling on Prop 8 (technically, the new judge rejected a challenge to Judge Walker's ruling based on him being gay.) Thread on that topic is here (http://boards.straightdope.com/sdmb/showthread.php?t=612460).

I am almost optimistic. Maybe federal recognition of same-sex marriage can happen in my lifetime. Woot!

(The superstitious side of me says I shouldn't celebrate too early for fear of jinxing the end result, but what the hell. Woot! again!)


Roddy

[Whack-a-Mole]

While this is good to see this will not be settled till a Supreme Court case settles it and the current Supreme Court will NOT be favorable to Gay rights.

They will be on the wrong side of the law but that won't stop them. If brought before them I suspect they will deny gay rights across the board. Constitution be damned.

[Oakminster]

While this is good to see this will not be settled till a Supreme Court case settles it and the current Supreme Court will NOT be favorable to Gay rights.

They will be on the wrong side of the law but that won't stop them. If brought before them I suspect they will deny gay rights across the board. Constitution be damned.

I think you underestimate the Court. I expect a majority decision favorable to gay rights. Also think it will be one of the conservative Justices writing the majority opinion. Possibly Scalia.

[Leaper]

But Scalia wrote the dissent in Lawrence v. Texas. While not saying anything about his political perspective, this, to my layman eye, at least mildly indicates that, jurisprudence outlook-wise, he may not be partial to such a majority as you predict.

[Whack-a-Mole]

I think you underestimate the Court. I expect a majority decision favorable to gay rights. Also think it will be one of the conservative Justices writing the majority opinion. Possibly Scalia.

Huh?

While anger is hard to prove, the opinions certainly show that Scalia has little enthusiasm for expanding gay rights. In the Colorado case, for instance, Scalia would have allowed the state to prohibit laws according gays and lesbians "protected status or [any] claim of discrimination." He called the anti-gay measure "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." Responding to the idea that the Colorado amendment reflected an "animus" toward gays, Scalia wrote: "I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy, or cruelty to animals -- and could exhibit even 'animus' toward such conduct."

In 2003, the court struck down a Texas law criminalizing same-sex sodomy. In his dissent, Scalia noted that the court "has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

SOURCE: http://articles.latimes.com/2009/mar/28/opinion/ed-scalia28

[Inner Stickler]

Jesus, what a dickbag.

[Oakminster]

I could be wrong, of course, but I think some arguments might reach him. Maybe a "full faith and credit" attack

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

wikipedia cite (http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause)

Arguably, Congress can require various hoops to proving the validity of foreign state official acts, but that text does not unambiguously grant Congress power to create exceptions to full faith and credit.

In the alternative, a failure by one state to recognize a marriage valid in another state might violate a fundamental right of interstate travel.

[Little Nemo]

Scalia is an originalist. Originalism is a legal doctrine that essentially says that the meaning of the United States Constitution is whatever Antonin Scalia thinks it should be.

[Recovering Republican]

While this is good to see this will not be settled till a Supreme Court case settles it and the current Supreme Court will NOT be favorable to Gay rights.

They will be on the wrong side of the law but that won't stop them. If brought before them I suspect they will deny gay rights across the board. Constitution be damned.


I'm not sure if that was the case.

Let's assume that the four right wingers- Roberts, Alito, Scalia and Thomas- the Catholic "gang", are going to be against it.

The liberal justices- Kagan, Sotomoyor, Breyer and Ginsberg- will probably vote for it. (And yes, three of them are Jewish. This country has a protestant majority, but the court is entirely Catholic and Jewish.)

That leaves Anthony Kennedy. Now, he's come down with the right wingers on abortion issues, more or less, but on the gay, not so much.

He was the deciding vote on Lawrence v. Texas that struck down all the sodomy laws. He was also the deciding factor on the Romner decision.

Walker crafted his ruling to specifically cite Lawrence and Romner as precedents, which would make it harder for Kennedy to be the guy to walk that back.

I think it is more likely that DOMA will be overturned, first, which may render the whole thing moot. As long as six or seven states recognize gay marriage, it doesn't matter what the other 43 do if they "Full Faith and Credit" clause applies.

[John Mace]

Scalia is an originalist. Originalism is a legal doctrine that essentially says that the meaning of the United States Constitution is whatever Antonin Scalia thinks it should be.

Textualist first, not originalist. As for your definition of originalism, that sounds more like the definition of the " living constitution" school of interpretation.

I would say nice try, but it wasn't.

Still, I'd be surprised to see the SCOTUS mandate SSM for the states. Not at this point.

[SmartAlecCat]

Still, I'd be surprised to see the SCOTUS mandate SSM for the states. Not at this point.

How about mandating recognition of state granted marriages?

[Bricker]

Scalia is an originalist. Originalism is a legal doctrine that essentially says that the meaning of the United States Constitution is whatever Antonin Scalia thinks it should be.

No, this is incorrect.

In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution and not impose new interpretations foreign to the original intention of the authors.

Was the original intent of the authors to allow same-sex marriage?

No.

But is YOUR wish that the Constitution mandates same-sex marriage?

Yes.

So it seems that originalism is, in fact, not as you describe it, and further, that your own philosophy is precisely what you described: the Constitution means what you think it should mean, as opposed to what those who wrote it thought it meant.

[Really Not All That Bright]

Of course, the original intent of the authors wasn't to allow interracial marriage, either, so it's a good thing there aren't more Justices who subscribe to textualism.

[Bricker]

Of course, the original intent of the authors wasn't to allow interracial marriage, either, so it's a good thing there aren't more Justices who subscribe to textualism.

That's true. A very forceful argument against originalism (not so much textualism, but to an extent) is that it produces undesirable results.

NOT that originalism makes the Constitution mean whatever the judge wishes it to mean.

[Really Not All That Bright]

I agree. Now, Clarence Thomas describes himself as an originalist, which does seem to mean the Constitution says whatever Scalia says it does.

[Polycarp]

No, this is incorrect.



Was the original intent of the authors to allow same-sex marriage?

No.

But is YOUR wish that the Constitution mandates same-sex marriage?

Yes.

So it seems that originalism is, in fact, not as you describe it, and further, that your own philosophy is precisely what you described: the Constitution means what you think it should mean, as opposed to what those who wrote it thought it meant.

Very well. Then let's abolish the Air Force. That certainly was not in the Founders' original intent.

The question to be asked has nothing to do with whether the Constitution "mandates" same-sex marriages. The question is whether the Federal government or any state can refuse recognition to a marriage duly contracted in accordance with the laws of another state. And whether Congress may excuse states from their mandated positive duty under the language of the Constitution. IMO it may not do so, but I'm sure you can find an emanation of a penumbra which will excuse it (probably the IOKIARDI clause).

[Steve MB]

Interesting sidelight:

...House Republican leaders have appointed a private attorney, Paul Clement, a former U.S. solicitor general, to take over the defense.

Clement filed arguments in the San Francisco case June 3, saying the law was justified by tradition and biological differences between same-sex and opposite-sex couples. He also accused Obama of abandoning his constitutional duties.

But Clement has yet to appear in the bankruptcy case, even though the court delayed the proceedings for two weeks at House leaders' request, Pfister said...

Judging from the GOP's actual record as a custodian of the taxpayers' money, I wouldn't be at all surprised if this Clement dude had gotten himself a deal where he collects five figures a pop for faxing a set of precanned talking points to each court that hears a DOMA case.

[Steve MB]

I could be wrong, of course, but I think some arguments might reach him. Maybe a "full faith and credit" attack.

Unlikely; the quoted opinions make it clear that Scalia sees himself as a policy-setter rather than a jurist.

[villa]

Was the original intent of the authors to allow same-sex marriage?

No.



Except this is an overly simplistic view of original intent, and one which is the flaw of the right wing interpretation of it. The intent of the authors was not to freeze things in place, but instead to provide a framework that would stand the test of time. And that included using language that by its very nature requires reference to changing attitudes.

For example, the authors didn't prohibit torture, or indeed any specific list of penalties, but instead prohibited "cruel or unusual punishment." The original intent of the authors was to create a living evolving document.

That's true. A very forceful argument against originalism (not so much textualism, but to an extent) is that it produces undesirable results.

NOT that originalism makes the Constitution mean whatever the judge wishes it to mean.

Actually the argument is that both originalism and textualism, in the way used by certain members of the Court, do mean the Constitution means whatever those Justices want it to mean.

The argument is that Justices claims certainty in language where there is none to provide the result they want. Or that they claim uncertainty in language where there is none to produce the result they want.

The argument against textualism isn't simply that the original text provides results that opponents of textualism don't want. It's that so-called textualists use and abuse the original text with a results oriented agenda, while trying to cloak their results orientation with an allegedly neutral process than is in fact far from it.

[villa]

I think you underestimate the Court. I expect a majority decision favorable to gay rights. Also think it will be one of the conservative Justices writing the majority opinion. Possibly Scalia.

I agree with you on the first 3/4 of this, just not Fat Tony writing it. If he does it will be a poison pill decision that includes some very unpleasant factors, but I don't think he will. He's too known as a culture warrior for there to be a majority around a decision of his.

My guess is 6-3 pro-SSM rights, with the decision by Kennedy, and Roberts signing on.

[LonesomePolecat]

Of course, the original intent of the authors wasn't to allow interracial marriage, either, so it's a good thing there aren't more Justices who subscribe to textualism.I don't recall that interracial marriage was forbidden throughout all the colonies and later the states, and I don't recall that any of the men who wrote the Constitution ever expressed their views on its legality.

The Constitution was written within a specific historical and cultural context; all documents are. The authors assumed many things which they did not explicitly state because they assumed the people for whom they were writing the Constitution would not need to have them explicitly stated. You can't tear the Constitution out of its historical and cultural context, and then use it to justify anything you want.

There is nothing in the Constitution which can reasonably be interpreted as granting a right to same sex marriage. Neither is there anything in the Constitution which can be interpreted as forbidding same sex marriage.

Same sex marriage isn't a constitutional issue.

[Rune]

Do you really think that a bankruptcy court is the proper venue to decide on important political and/or ethical decisions of a principal character?

[Little Nemo]

Textualist first, not originalist. As for your definition of originalism, that sounds more like the definition of the " living constitution" school of interpretation.
So it seems that originalism is, in fact, not as you describe it, and further, that your own philosophy is precisely what you described: the Constitution means what you think it should mean, as opposed to what those who wrote it thought it meant.Yes, that's pretty much exactly what I'm saying. Scalia is a living constitutionalist. Of course he claims to believe living constitutionalism is wrong and denounces other judges for using it. So he says he's an originalist instead and claims that's completely different.

Only it works out exactly the same way. Scalia never says he's inventing an interpretation. He says he's finding the original meaning of the text - which just happens to be the meaning of the text he likes but which nobody prior to him had found in that text in two hundred years.

Originalists get to be judicial activists while still being able to denounce judicial activism.

[SmartAlecCat]

Do you really think that a bankruptcy court is the proper venue to decide on important political and/or ethical decisions of a principal character?

That's an indication of the problems that come when you don't treat people the same.

Throughout society, weird things happen when subsets of society are treated differently -- bankruptcy court is one of those places.

Treat everyone the same and things just work.

[TriPolar]

I am almost optimistic. Maybe federal recognition of same-sex marriage can happen in my lifetime. Woot!


I'll never understand why so many people like you hate gay people so much that you want to see them married. I am in favor of new laws that will make different sex marriages illegal, hopefully annuling those already in existence.

This is your brain (http://www.youtube.com/watch?v=g4DMynVhUXg).

[John Mace]

Yes, that's pretty much exactly what I'm saying. Scalia is a living constitutionalist. Of course he claims to believe living constitutionalism is wrong and denounces other judges for using it. So he says he's an originalist instead and claims that's completely different.

Only it works out exactly the same way. Scalia never says he's inventing an interpretation. He says he's finding the original meaning of the text - which just happens to be the meaning of the text he likes but which nobody prior to him had found in that text in two hundred years.

Originalists get to be judicial activists while still being able to denounce judicial activism.

If we can find instances where Scalia decided cases contrary to his own political beliefs, will you agree to stop this silly hijack of this thread?

If not, then I think it best for anyone disagreeing with you to simply ignore your posts on this subject and let them stand as the gratuitous swipes that they are.

[villa]

If we can find instances where Scalia decided cases contrary to his own political beliefs, will you agree to stop this silly hijack of this thread?

If not, then I think it best for anyone disagreeing with you to simply ignore your posts on this subject and let them stand as the gratuitous swipes that they are.

No - because nobody should claim that a Justice will ALWAYS act in a certain way.

[Oakminster]

There is nothing in the Constitution which can reasonably be interpreted as granting a right to same sex marriage. Neither is there anything in the Constitution which can be interpreted as forbidding same sex marriage.

Same sex marriage isn't a constitutional issue.

Bullshit. See Section 1 of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Emphasis mine. Equal protection can reasonably be interpreted to mean that benefits the State awards to married persons must be given to all married persons without regard to sexual preference.

See the full faith and credit argument mentioned briefly above. SCOTUS may or may not buy either argument, but those points can certainly be reasonably argued.

[Really Not All That Bright]

I don't recall that interracial marriage was forbidden throughout all the colonies and later the states, and I don't recall that any of the men who wrote the Constitution ever expressed their views on its legality.

That's not the point. They clearly did not intend for the constitution to protect it, which is why I don't give a shit what they intended.

[Bricker]

... which just happens to be the meaning of the text he likes but which nobody prior to him had found in that text in two hundred years.



If this were true, you'd have a point.

But unfortunately, it's false.

Find me a case in which Scalia finds something in the text that nobody else found in two hundred years. Go.

[Bricker]

Bullshit. See Section 1 of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Emphasis mine. Equal protection can reasonably be interpreted to mean that benefits the State awards to married persons must be given to all married persons without regard to sexual preference.

See the full faith and credit argument mentioned briefly above. SCOTUS may or may not buy either argument, but those points can certainly be reasonably argued.

Oakminster is correct. It's not an unreasonable argument.

From a historical perspective, it's a novel argument, but it's not unreasonable; it tracks with the plain text. "Equal" is a pretty straightforward word.

Of course, we all know that it cannot mean literally equal for all persons. "The equal protection of the laws" means that 13 year olds must be permitted to vote, and have sex - right?

So there's obviously some test we must apply to determine what the actual rule is. And the claim that this protects same-sex marriage is a perfectly reasonable claim.

But it must come with the recognition that this is not a historical meaning of the phrase.

[Really Not All That Bright]

Find me a case in which Scalia finds something in the text that nobody else found in two hundred years. Go.
Sternberg v. Carhart, where he appears to suggest that partial birth abortion is apparently not governed by the inferred constitutional right to privacy because it grosses him out.

[jtgain]

I don't think that SCOTUS will want to take such a step after the 40 year outcry over Roe v. Wade. Even the supporters on the Court realize that it was a real piece of shit decision from a constitutional prospective. Do they really want to force this on the country by a 5-4 vote and reenergize the dying Christian Conservative movement?

I predict that Kennedy will punt and dismiss the case due to some mundane procedural rule and make everyone start from scratch.

[Really Not All That Bright]

Roe v. Wade bothers people because it relies on words that aren't actually there. Assuming SCOTUS strikes down DOMA, they'll be relying on words that are actually there. I don't think the two are analogous at all, except in the sense that the right will be outraged.

[horhay_achoa]

Oakminster is correct. It's not an unreasonable argument.

From a historical perspective, it's a novel argument, but it's not unreasonable; it tracks with the plain text. "Equal" is a pretty straightforward word.

Of course, we all know that it cannot mean literally equal for all persons. "The equal protection of the laws" means that 13 year olds must be permitted to vote, and have sex - right?

So there's obviously some test we must apply to determine what the actual rule is. And the claim that this protects same-sex marriage is a perfectly reasonable claim.

But it must come with the recognition that this is not a historical meaning of the phrase.

In Loving v. Virginia, the right to marry was determined to be a fundamental right, so any law restricting that right would need to meet strict scrutiny, which means there must be a compelling state interest. It is hard to see what the compelling state interest is in forbidding same-sex marriage.

[villa]

In Loving v. Virginia, the right to marry was determined to be a fundamental right, so any law restricting that right would need to meet strict scrutiny, which means there must be a compelling state interest. It is hard to see what the compelling state interest is in forbidding same-sex marriage.

Well the way people try to get out of that is a linguistic one - a man and woman of different races could, absent the law, marry. People argue that because the term marriage by its nature involves a man and a woman, there is no fundamental right for two people of the same sex to enter a relationship with the same rights and privileges as marriage.

[horhay_achoa]

Well the way people try to get out of that is a linguistic one - a man and woman of different races could, absent the law, marry. People argue that because the term marriage by its nature involves a man and a woman, there is no fundamental right for two people of the same sex to enter a relationship with the same rights and privileges as marriage.

I see. BS :)

[Little Nemo]

Find me a case in which Scalia finds something in the text that nobody else found in two hundred years. Go.McCreary County v. ACLU. The majority followed the precedent of Lemon v. Kurtzman. Scalia dissented. He said the Supreme Court had made the wrong decision in Lemon. Scalia wrote that displaying the Ten Commandments in a courthouse was allowable because it was "governmental affirmation of the society's belief in God".

Now show me where in the Constitution it says that the United States is a Christian nation. Scalia based his opinion on the fact that many people, such as Washington, Jefferson, and Marshall practiced Christianity (and he cherry picked his evidence even to reach that conclusion). But even accepting his evidence, so what? The fact that the majority of Americans have been practicing Christians does not give Christianity any official status. Christianity, in the eyes of the Constitution, is equal to Buddhism, Hinduism, Wicca, and Scientology. Or atheism. Even if society does believe in God, the government has no authority to affirm that belief.

But hey, Antonin Scalia knows what the founders really meant when they wrote "Congress shall make no law respecting an establishment of religion". He knows the original meaning of the text.

And the irony is that Marshall was a virulent anti-Catholic (as were many other people in eighteenth century America). If he had the power to establish a religion, he would have banned Scalia's own religion.

[LonesomePolecat]

Bullshit.
Bullshit, yourself. You're reading something into the Constitution that simply isn't there. The institution of marriage arose because it served specific social purposes which same sex marriage would not serve. The institution does not exist just to make life more convenient for individuals, and you are not being treated unfairly or unequally just because you can't get tax breaks, inherit your lover's Social Security benefits or have him put you on his health insurance at work.

[Inner Stickler]

And what specific social purposes are those?

[Jack Batty]

Enriching divorce lawyers.

[Inner Stickler]

Ah but should same sex marriage be recognized, then gay couples can enrich divorce lawyers just as much as straight couples. Remember that his position is that there are social purposes that straight marriage serves which could not be served by a gay marriage.

[Cheesesteak]

you are not being treated unfairly or unequally just because you can't get tax breaks, inherit your lover's Social Security benefits or have him put you on his health insurance at work.So.... If the government declared that your personal relationship would be eligible for none of these benefits, while everyone else's is, you wouldn't think it unfair?

Put me down as also being interested in these specific social purposes. I presume, of course, that you would be OK with legally dissolving all marriages that fail to serve those purposes.

[Punoqllads]

Well the way people try to get out of that is a linguistic one - a man and woman of different races could, absent the law, marry. People argue that because the term marriage by its nature involves a man and a woman, there is no fundamental right for two people of the same sex to enter a relationship with the same rights and privileges as marriage.This begs the question about what defines marriage absent the law. Religion? Well, Unitarians have blessed same-sex marriages. Procreation? Well, then, are you going to tell all those infertile couples that they're not really married? Families? Guess what -- lots same-sex couples want to have families. That's the entire point.

[Jack Batty]

Jeez, first they want to use the word, 'marriage,' now they want to use the word, 'families.' What's next? Do we have to start referring to them as 'human beings' too?

[Bricker]

McCreary County v. ACLU. The majority followed the precedent of Lemon v. Kurtzman. Scalia dissented. He said the Supreme Court had made the wrong decision in Lemon. Scalia wrote that displaying the Ten Commandments in a courthouse was allowable because it was "governmental affirmation of the society's belief in God".

Now show me where in the Constitution it says that the United States is a Christian nation. Scalia based his opinion on the fact that many people, such as Washington, Jefferson, and Marshall practiced Christianity (and he cherry picked his evidence even to reach that conclusion). But even accepting his evidence, so what? The fact that the majority of Americans have been practicing Christians does not give Christianity any official status. Christianity, in the eyes of the Constitution, is equal to Buddhism, Hinduism, Wicca, and Scientology. Or atheism. Even if society does believe in God, the government has no authority to affirm that belief.

But hey, Antonin Scalia knows what the founders really meant when they wrote "Congress shall make no law respecting an establishment of religion". He knows the original meaning of the text.

And the irony is that Marshall was a virulent anti-Catholic (as were many other people in eighteenth century America). If he had the power to establish a religion, he would have banned Scalia's own religion.

I can trivially refute you: Scalia's opinion was joined by Rehnquist and Thomas (and Kennedy as to parts II and III). So at the very least, two or three people found the same thing Scalia did.

But let's forget about that. Let's point out instead that Scalia's opinion begins by pointing out:


George Washington added to the form of Presidential oath the concluding words "so help me God."
The Supreme Court under John Marshall opened its sessions with the prayer, "God save the United States and this Honorable Court."
The First Congress instituted the practice of beginning its legislative sessions with a prayer.
The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.
The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim "a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favours of Almighty God."
President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789, on behalf of the American people "`to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be...'"
That same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."


What about all those guys? Didn't they also find those same things? How can you say not one person other than Scalia found those things in the text?

Here's language from an 1892 Supreme Court decision, Church of the Holy Trinity v. US:

But beyond all these matters no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. The commission to Christopher Columbus, prior to his sail westward, is from "Ferdinand and Isabella, by the grace of God, King and Queen of Castile," etc., and recites that "it is hoped that by God's assistance some of the continents and islands in the 466*466 ocean will be discovered," etc. The first colonial grant, that made to Sir Walter Raleigh in 1584, was from "Elizabeth, by the grace of God, of England, Fraunce and Ireland, queene, defender of the faith," etc.; and the grant authorizing him to enact statutes for the government of the proposed colony provided that "they be not against the true Christian faith nowe professed in the Church of England." The first charter of Virginia, granted by King James I in 1606, after reciting the application of certain parties for a charter, commenced the grant in these words: "We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters-Patents, graciously accept of, and agree to, their humble and well-intended Desires."



Didn't they also find what Scalia did?

Your argument is that they were wrong to do so... not that they don't exist.

Right?

[Voyager]

Do you really think that a bankruptcy court is the proper venue to decide on important political and/or ethical decisions of a principal character?

The reason it wound up in bankruptcy court was that a federal bankruptcy trustee rejected the bankruptcy application of a same sex couple due to the DOMA. Where should it have gone?

[psychonaut]

I'll never understand why so many people like you hate gay people so much that you want to see them married. I am in favor of new laws that will make different sex marriages illegal, hopefully annuling those already in existence.I suppose you're joking, but I agree with you in part. The (legal) institution of marriage should be not so much criminalized as abolished. The state should have no say in who one choses for one's partner(s).

[psychonaut]

Bullshit. See Section 1 of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Emphasis mine. Equal protection can reasonably be interpreted to mean that benefits the State awards to married persons must be given to all married persons without regard to sexual preference.Then why couldn't it be reasonably interpreted to mean that the benefits the State awards to married persons must be given to all married persons without regard to the number of persons in such a union? Or indeed to all persons, married or otherwise? (I'm not trying to be snarky. I'm honestly interested in knowing how one arrives at the limits of what is "reasonable" in their interpretation of this amendment.)

[TriPolar]

I suppose you're joking, but I agree with you in part. The (legal) institution of marriage should be not so much criminalized as abolished. The state should have no say in who one choses for one's partner(s).

Yes. I believe the search for equal rights has lead to the creation of a right that never existed in the first place. I don't recall the part of the Constitution guaranteeing the right of anybody to get married. The marriage contract as a civil matter shouldn't be restrictive because of the equal protection clause. But this stupid desire by gay people to suffer the eternal damnation of wedded bliss has turned marriage into a religious matter under the law, violating the 1st amendment (I know, it's not the first or only cause of that). I think the only solution is to rid the law of any reference to marriage. Civil contracts of any value addressing this subject should be equally applied to any two adults. Currently, the actual major effects of these stupid laws is in the sharing of health care benefits and hospital visitation rights. Hardly the stuff of a sacred institution.

[John Mace]

I think the applicability of the 14th hinges on two things:

1. Is Homosexuality an innate characteristic or a "lifestyle choice".? If the latter, then the 14th needn't apply.

But even if it is the former:

2. Does homosexual conduct have an adverse affect on society?

Pedophilia is not a "lifestyle choice", but we recognize that it is a danger to society. Homosexuality? That would be a tough case to make.

And so, it's not so much that the constitution changed, but our understanding of the nature of homosexuality that has changed. For much of our history, people were convinced that it was a danger to society. That it was a "lifestyle choice" that led to other unwanted behaviors. But experience and science tells us otherwise.

Still, I can't see a consistent legal opinion that would allow SSM but disallow plural marriage.

[TriPolar]

Still, I can't see a consistent legal opinion that would allow SSM but disallow plural marriage.

What prevents a contract being limited to two parties?

[Chronos]

Quoth Bricker:George Washington added to the form of Presidential oath the concluding words "so help me God."No, he didn't change the form of the oath himself. He said the words of the oath in their full form, and then independently said four words after he completed the oath. Yes, most or all other Presidents since then have done the same thing, but that doesn't attach any official meaning to those four words. The form of the oath remains that laid out in the Constitution.

[Oakminster]

Then why couldn't it be reasonably interpreted to mean that the benefits the State awards to married persons must be given to all married persons without regard to the number of persons in such a union? Or indeed to all persons, married or otherwise? (I'm not trying to be snarky. I'm honestly interested in knowing how one arrives at the limits of what is "reasonable" in their interpretation of this amendment.)

I'm afraid I don't have an answer for you. I think such an argument could certainly be made, but getting 5/9 of SCOTUS to buy it seems unlikely.

[Punoqllads]

Still, I can't see a consistent legal opinion that would allow SSM but disallow plural marriage.If you thought divorce was complicated when there were two parties involved, I'd bet a multiparty divorce would be exponentially more complicated. Just a conjecture, though.

[Voyager]

If you thought divorce was complicated when there were two parties involved, I'd bet a multiparty divorce would be exponentially more complicated. Just a conjecture, though.

You don't have to conjecture - it happens all the time in Islamic countries. Our tour guide in Egypt divorced her husband after he took a second wife (not because of it.) It was expensive for her, but that was due to the sexist laws, not the fact of divorce per se.

For sure any recognition of plural marriage would have to allow multiple men and one woman as well as multiple women and one man. Unlike SSM, there would be a lot of data the court could look at as to the effect on society.

[Whack-a-Mole]

Textualist first, not originalist. As for your definition of originalism, that sounds more like the definition of the " living constitution" school of interpretation.

I would say nice try, but it wasn't.

Still, I'd be surprised to see the SCOTUS mandate SSM for the states. Not at this point.

Scalia describes himself as an Originalist:

I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.

SOURCE: http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm

[Voyager]

I think the applicability of the 14th hinges on two things:

1. Is Homosexuality an innate characteristic or a "lifestyle choice".? If the latter, then the 14th needn't apply.

But even if it is the former:

2. Does homosexual conduct have an adverse affect on society?

Pedophilia is not a "lifestyle choice", but we recognize that it is a danger to society. Homosexuality? That would be a tough case to make.

And the Prop. 8 defense tried to make that case, and failed rather miserably. While the defense was fairly incompetent in their choice of witnesses, it is unclear that there is much of an argument for harm to be made.

[Whack-a-Mole]

Still, I can't see a consistent legal opinion that would allow SSM but disallow plural marriage.

I think it is covered by the "compelling state interest" bit.

Imagine a man with (say) three wives and 10 kids among them. Assume one wife wants to divorce. How do you equitably divide the assets? Can she force the sale of the home and take what...25%? Can the man argue if she does that she will be leaving his other kids and wives homeless and unable to afford another home? Does she get 20% child support since she has (say) two of the ten kids rather than full child support? Can the man claim custody because if the mother takes the kids she would be splitting up the family and depriving those kids of their other brothers and sisters?

The list goes on. Such arrangements would be a legal mess and I cannot see a good way for the state to equitably see to the division of assets and debts and custody.

[Saint Cad]

Bullshit, yourself. You're reading something into the Constitution that simply isn't there. The institution of marriage arose because it served specific social purposes which same sex marriage would not serve. The institution does not exist just to make life more convenient for individuals, and you are not being treated unfairly or unequally just because you can't get tax breaks, inherit your lover's Social Security benefits or have him put you on his health insurance at work.

I heard an argument that at the time of the Constitution, the marriage between a man and a woman was so engrained that the Founders would have considered marriage between a man and a woman an unenumerated right. SSM, not so much.

[John Mace]

Scalia describes himself as an Originalist:

He describes himself as I said (http://en.wikipedia.org/wiki/Originalism#Original_meaning):

The most robust and widely cited form of originalism, "original meaning" emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in English law, even before they were put into the Constitution of the United States." Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; see Matters rendered moot by originalism, infra) to establish out what particular terms meant. See Methodology, infra).

Justice Scalia, one of the most forceful modern advocates for originalism, defines himself as belonging to the latter category:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

This is to distinguish from the idea of seeking the "original intent" of the founders, which is what most people think of when they see the term "originalism".

[John Mace]

What prevents a contract being limited to two parties?

I meant that within the context of the analysis I gave in post 51. Polygamy is not a "lifestyle choice" in the sense that it is impossible to love more than one other person and it isn't inherently damaging to society.

And the Prop. 8 defense tried to make that case, and failed rather miserably. While the defense was fairly incompetent in their choice of witnesses, it is unclear that there is much of an argument for harm to be made.
Indeed. It was almost as if they thought their case was self evident, and that they needn't do anything other than press it as so.

[Punoqllads]

The institution of marriage arose because it served specific social purposes which same sex marriage would not serve.Could you please enumerate one or more of those specific social purposes?

[boytyperanma]

Indeed. It was almost as if they thought their case was self evident, and that they needn't do anything other than press it as so.

I don't think they thought their case was self evident, if they thought it was, I doubt they would have demanded the case not be broadcast. To me that's not the actions of people who believe their cause is self evident

[Really Not All That Bright]

What prevents a contract being limited to two parties?
Privity.

A contract is, by legal definition, a bilateral agreement. There are lots of agreements which are, in principle, multiparty contracts, but courts almost invariably construe them as a set of bilateral contracts. Even when they don't, they essentially find them to be implied-in-fact contracts between noncontracting parties, and they only do that for the purpose of establishing whether liability can exist under the arrangement of the not-really-contracted parties.

Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband* and the second/third/whatever wife. Not the husband, wife and other wife.

*or wife and second husband, or whatever.

[Oakminster]

Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband* and the second/third/whatever wife. Not the husband, wife and other wife.

*or wife and second husband, or whatever.

A potential end run around privity for plural marriage might be a partnership, or even an LLC, which I guess could be something like partnership with a pre-nup.

[Really Not All That Bright]

But the point of a partnership or LLC is that it creates a fictional entity composed of certain assets of the principals. That's only really useful in terms of how others would relate to the participants in a group marriage.

[Oakminster]

But the point of a partnership or LLC is that it creates a fictional entity composed of certain assets of the principals. That's only really useful in terms of how others would relate to the participants in a group marriage.

It would also provide for a means of "divorce" with or without dissolving the fictional entity. Courts know how to dissolve such entities, and the partnership/shareholder agreement and/or bylaws allow an opportunity for an equivalent of a "no fault" divorce.

Of course, I suppose the disposition of children as corporate assets could be a little tricky.....

[Little Nemo]

Another questionable Scalia decision: Blatchford v. Native Village of Noatak.

Here's the text of the 11th Amendment in its entirety: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Now a reasonable reading of that text would say that it prohibits a state government being sued by the residents of another state or country. But I read it forwards and backwards, up and down, and I see nothing in that text that says a state government can't be sued by the residents of that state.

But, according to Antonin Scalia, that's the original meaning of the text. He says the 11th Amendment gives a state immunity from lawsuits filed by its residents. Or in his words: Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472 (1987) (plurality opinion); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 290 -294 (1973) (MARSHALL, J., concurring in result); and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."

We understand an amendment to stand not so much for what it says - If anyone can find a more anti-constructionist line in any Supreme Court decision, I'd like to see it.

[Punoqllads]

Of course, I suppose the disposition of children as corporate assets could be a little tricky.....Hmm ... do you need to amortize their depreciation in value over time?

[Cheesesteak]

I heard an argument that at the time of the Constitution, the marriage between a man and a woman was so engrained that the Founders would have considered marriage between a man and a woman an unenumerated right. SSM, not so much.At the time of the Constitution, it was totally OK to buy and sell slaves, and only white male property owners were allowed to vote. So I'm going to go ahead and take what the Founders considered "engrained" about marriage and throw it in the trash along with all their other beliefs that have no place in a modern civilized society.

[Folacin]

Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband* and the second/third/whatever wife. Not the husband, wife and other wife.

*or wife and second husband, or whatever.

We're outside of common law, but once SSM is legalized, then wouldn't a plural marriage be between all parties? I'm guessing that 'sister-wives' don't consider themselves married to each other (only to the husband), but in a SSM world, I'd thnk that would change (assuming the legality of plural marriage).

Although, as a complicating factor, I guess that within the plural marriage, Andy could be married to Bill and Christie, while Bill and Christie don't marry each other. And, I guess, Christie could also be separately married to Don and Donna (who may or may not be married to each other). The potential combinations and permutations I think would make the legal recognition unlikely.

[TriPolar]

I meant that within the context of the analysis I gave in post 51. Polygamy is not a "lifestyle choice" in the sense that it is impossible to love more than one other person and it isn't inherently damaging to society.


Privity.

A contract is, by legal definition, a bilateral agreement. There are lots of agreements which are, in principle, multiparty contracts, but courts almost invariably construe them as a set of bilateral contracts. Even when they don't, they essentially find them to be implied-in-fact contracts between noncontracting parties, and they only do that for the purpose of establishing whether liability can exist under the arrangement of the not-really-contracted parties.

Even if there were such a thing as multiparty contracts in common law, consider this: who are the contracting parties in a plural marriage? Just the husband* and the second/third/whatever wife. Not the husband, wife and other wife.

*or wife and second husband, or whatever.

A potential end run around privity for plural marriage might be a partnership, or even an LLC, which I guess could be something like partnership with a pre-nup.

But the point of a partnership or LLC is that it creates a fictional entity composed of certain assets of the principals. That's only really useful in terms of how others would relate to the participants in a group marriage.

Ok, to clear this up, privity would mean a contract is normally between just two parties? That seems to define that a 'marriage contract' or 'civil union' could be between just two people and not include plural 'marriage' or 'unions'.

If so that is even more of a reason that the matter of marriage should only be addressed in the law in terms of a contract, based on existing contract law, without special circumstances based on the traditional marriage concept. Which I thought was the basis for civil marriage as started in Europe before this country was formed.

Does anyone know how this is currently addressed in other countries?

[Bricker]

In Loving v. Virginia, the right to marry was determined to be a fundamental right, so any law restricting that right would need to meet strict scrutiny, which means there must be a compelling state interest. It is hard to see what the compelling state interest is in forbidding same-sex marriage.

In Baker v. Nelson, which was decided subsequent to Loving, the justices did not agree with your certainty.

[E-Sabbath]

So the right to marry is not a fundamental right, Bricker?

Or... does the word 'substantial' have some meaning that I am not familiar with in law-talking? Sort of like 'ceremonial deism'?

Does, perhaps, Baker need to be re-examined in the light of Lawrence v. Texas?

Does, perhaps, Baker need to be taken for a very minimal sort of precedent, as it's a dismissal, rather than a full ruling?

[Bricker]

Another questionable Scalia decision: Blatchford v. Native Village of Noatak.

Here's the text of the 11th Amendment in its entirety: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Now a reasonable reading of that text would say that it prohibits a state government being sued by the residents of another state or country. But I read it forwards and backwards, up and down, and I see nothing in that text that says a state government can't be sued by the residents of that state.

But, according to Antonin Scalia, that's the original meaning of the text. He says the 11th Amendment gives a state immunity from lawsuits filed by its residents. Or in his words: Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472 (1987) (plurality opinion); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 290 -294 (1973) (MARSHALL, J., concurring in result); and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."

We understand an amendment to stand not so much for what it says - If anyone can find a more anti-constructionist line in any Supreme Court decision, I'd like to see it.

Sure. Hans v. Louisana stood for exactly the same thing. So Scalia found the same thing in the 11th that the authors of Hans did.

Right?

So it's pretty clear by now that you won't be either supporting your outrageous claim or admitting it was in error. Par for the course.

[Left Hand of Dorkness]

Then why couldn't it be reasonably interpreted to mean that the benefits the State awards to married persons must be given to all married persons without regard to the number of persons in such a union? Or indeed to all persons, married or otherwise? (I'm not trying to be snarky. I'm honestly interested in knowing how one arrives at the limits of what is "reasonable" in their interpretation of this amendment.)
As others have pointed out, multiple-partner marriages are much more complex.

You could extend marriage to same-sex couples with a crayon: in the law books, cross out "man" and "woman" and "husband" and "wife" and substitute "partner." Boom, you're done.

But for multiple marriages, there are all sorts of issues to figure out.

Bob is in an irreversible coma, and the doctors ask Bob's survivors from his plural marriage whether to pull the plug. Linda and Charles say yes; Nancy and Wayne say no. What happens?

Bob dies without a will. What happens to his property?

Forget Charles and Wayne; they've left the marriage. Now it's just Bob and Nancy and Linda. When Bob dies, are Nancy and Linda automatically divorced? Does it depend on whether they're straight or bi?

Nancy divorces Bob and Linda. She wants visitation rights with Linda's children, no blood relationship to herself. Linda desperately doesn't want any contact between her kids and Nancy. What happens?

You may have straightforward answers to all these questions, but you can also see (one hopes) that any answer is controversial, and would probably end up litigated. And there are many, many more weird situations that could arise in a plural marriage that are not covered by current law.

I'm all about legalizing plural marriages, eventually. But the legal structure just isn't there right now. Let's get SSM taken care of, and then move on to the thornier cases.

[Bricker]

So the right to marry is not a fundamental right, Bricker?

Yes, it is.


Or... does the word 'substantial' have some meaning that I am not familiar with in law-talking? Sort of like 'ceremonial deism'?


Yes, it does.


Does, perhaps, Baker need to be re-examined in the light of Lawrence v. Texas?


Maybe in light of the general reasoning of Lawrence, but certainly not in its specifics:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

Does, perhaps, Baker need to be taken for a very minimal sort of precedent, as it's a dismissal, rather than a full ruling?

Dismissal for want of a federal question are precedential. A ruling that SSM bans violate the Constitution wuld need to overrule Baker.

[villa]

As others have pointed out, multiple-partner marriages are much more complex.


Plural marriages, apart from the issues you mention, also as practiced tend to be associated with many societal ills, such as sexual abuse and mistreatment of male children.

There is therefore a significant governmental interest in their regulation, which simply isn't present with SSM. Now we can argue over whether that interest should lead to all plural marriages being banned, but it is a very different situation to that of SSM.

[TriPolar]

Plural marriages, apart from the issues you mention, also as practiced tend to be associated with many societal ills, such as sexual abuse and mistreatment of male children.

There is therefore a significant governmental interest in their regulation, which simply isn't present with SSM. Now we can argue over whether that interest should lead to all plural marriages being banned, but it is a very different situation to that of SSM.

These same problems occur in traditional marriages. There is no distinquishing characteristic of plural marriages, or two party marriages, that justifies a significant governmental interest in their regulation. As demonstrated by the lack of all but minimal governmental regulation of traditional marriages.

[Little Nemo]

Sure. Hans v. Louisana stood for exactly the same thing. So Scalia found the same thing in the 11th that the authors of Hans did.

Right?

So it's pretty clear by now that you won't be either supporting your outrageous claim or admitting it was in error. Par for the course.Yes, because if there's one thing Scalia has always stood for, it's respect for the decisions of his predecessors. You'll never heard any suggestion from him that a past decision may have been wrong.

What's your opinion of the substance of my post? Do you feel that the original meaning of the 11th Amendment forbids residents of a state from suing the state? And if so could you explain to me where that is in the text so I can see it?

[villa]

These same problems occur in traditional marriages. There is no distinquishing characteristic of plural marriages, or two party marriages, that justifies a significant governmental interest in their regulation. As demonstrated by the lack of all but minimal governmental regulation of traditional marriages.

Well, this isn't the thread for it, but that these problems occur in traditional marriage isn't the point. They are significantly more prevalent in plural marriage. I don't know if their prevalence justifies the ban, but sometimes people's freedoms are restricted because of other people's misbehavior.

[Chessic Sense]

nor deny to any person within its jurisdiction the equal protection of the laws.

Emphasis mine.

No, I'm pretty sure it's typed in boldface on the original document. Pretty sure.

[Voyager]

As others have pointed out, multiple-partner marriages are much more complex.

You could extend marriage to same-sex couples with a crayon: in the law books, cross out "man" and "woman" and "husband" and "wife" and substitute "partner." Boom, you're done.

But for multiple marriages, there are all sorts of issues to figure out.


Maybe, but we have plenty of examples of modern societies where they have been figured out.
Being a product of my society I am viscerally against multiple marriage, but arguments by opponents of it are making me rethink my position. I suspect solving these issues is going to be simpler than solving the IP rights problem. Are the societal woes that come with multiple marriages because of the fact of the marriage or are they products of the society? Will allowing all varieties, such as multiple men one woman, solve them?
I can see a benefit of enforcing 1-1 matching, maybe, but that is about it.

[Chronos]

Maybe, but we have plenty of examples of modern societies where they have been figured out.All of the prior legal precedents I know of for multiple marriage are for relationships where the man is considered superior, and has a number of wives, all subordinate. Such systems are certainly simple enough, but they are not something a civilized society ought to emulate. I agree with several other posters that there's nothing inherently morally odious about multiple marriage, but that a just implementation of it would be extremely complicated, and has not yet been fully worked out. Let's go after the low-hanging fruit first.

[Oakminster]

No, I'm pretty sure it's typed in boldface on the original document. Pretty sure.

I kinda doubt it. The 14th Amendment was proposed in 1866 and adopted in 1868. And a picture of what I assume is the "original" in the National Archives appears to be handwritten without any attempt at boldface.Cite (http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution)

The typewriter appears to have been invented in 1870 give or take a few years.
Cite (http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution)

[E-Sabbath]

Okay, what's substantial mean in law-talking, Bricker? Cause that's clearly the lynchpin of that ruling.

[Lakai]

Oakminster is correct. It's not an unreasonable argument.

From a historical perspective, it's a novel argument, but it's not unreasonable; it tracks with the plain text. "Equal" is a pretty straightforward word.

Of course, we all know that it cannot mean literally equal for all persons. "The equal protection of the laws" means that 13 year olds must be permitted to vote, and have sex - right?

So there's obviously some test we must apply to determine what the actual rule is. And the claim that this protects same-sex marriage is a perfectly reasonable claim.

But it must come with the recognition that this is not a historical meaning of the phrase.

I disagree with your historical interpretation of the phrase.

The drafters of the amendment understood very well that the Courts would determine the meaning of "equal protection of the laws".

We can also make the safe assumption that they did not expect it to apply to everyone. But do you really think that they expected the amendment to apply to the same facts that were understood by everyone in 1868? Is there some theory of interpretation that says you must apply the law assuming all known facts to the legislature at the time the law was written?

That seems pretty ludicrous. Back then the legislature thought homosexuality was sinful. Now we know better. If the legislature in 1868 had the same social science research that is available to us now, their understanding of how "equal protection" should apply would be different.

Laws are sometimes written vaguely because they require fact specific application. Not the facts in 1868, but the facts that appear in front of the judge when the case is brought before him.

[Left Hand of Dorkness]

Maybe, but we have plenty of examples of modern societies where they have been figured out.
Which modern societies have it "figured out"? Here's an article on countries that recognize polygamous marriages (http://en.wikipedia.org/wiki/Legal_status_of_polygamy#Countries_that_recognize_polygamous_marriages). All of them mentioned in the article, AFAICT, recognize Islamic-style polygamous marriages--that is, cases in which one man marries multiple women, and the women have little contact with one another. Is that how you believe we should handle it--that is, we should only allow people to enter multiple marriage contracts if they follow an Islamic model? Because I'd vociferously oppose that approach.

And if you don't propose we follow that model, then I don't believe you're correct that we have plenty of examples of modern societies where they have been figured out. I believe my original objection, that legalizing multiple marriages is far more complex than legalizing same sex marriages, stands.

[Farmer Jane]

Yes. I believe the search for equal rights has lead to the creation of a right that never existed in the first place. I don't recall the part of the Constitution guaranteeing the right of anybody to get married. The marriage contract as a civil matter shouldn't be restrictive because of the equal protection clause. But this stupid desire by gay people to suffer the eternal damnation of wedded bliss has turned marriage into a religious matter under the law, violating the 1st amendment (I know, it's not the first or only cause of that). I think the only solution is to rid the law of any reference to marriage. Civil contracts of any value addressing this subject should be equally applied to any two adults. Currently, the actual major effects of these stupid laws is in the sharing of health care benefits and hospital visitation rights. Hardly the stuff of a sacred institution.

Marriage has a history of being dominated by Protestant Christian theology in the U.S, but the right to cohabitation and create a family is a right to the 'pursuit of happiness'.


But unfortunately, Scalia agrees with you. (http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html)

Still, it seems silly that one can get married in Iowa and not have that marriage be valid in Nebraska. I wonder if you can get married to a s/s partner in one state, go back to your home state, and apply for another marriage license. :eek: What if I married Sara in Iowa and then came to Colorado after Sara and I broke up and married Jim without divorcing Sara? Did I break a law (bigamy) or not?

I think one reason why people don't get as up in arms about s/s marriage as being a civil rights issue (and I'm talking about that other 50 per cent of America here, not SD) is because no one is going to arrest you in Nebraska for being in a SSR or SSM.

[Bricker]

Laws are sometimes written vaguely because they require fact specific application. Not the facts in 1868, but the facts that appear in front of the judge when the case is brought before him.

Why was the Nineteenth Amendment necessary? After all, the Fourteenth Amendment clearly mandates equal protection of the laws, and thus it should forbid a state from denying women the right to vote.

Why did the states have to pass a separate amendment guaranteeing that the right to vote could not be denied or abridged on account of gender?

[Bricker]

Yes, because if there's one thing Scalia has always stood for, it's respect for the decisions of his predecessors. You'll never heard any suggestion from him that a past decision may have been wrong.

What's your opinion of the substance of my post? Do you feel that the original meaning of the 11th Amendment forbids residents of a state from suing the state? And if so could you explain to me where that is in the text so I can see it?

The original text of the amendment does not forbid residents of a state from suing the state.

But the "substance" of your post was that Scalia finds things in the text that no one else does. In this case, Scalia was continuing to uphold the interpretation of the 11th Amendment that was first done in Hans, and confirmed many times since.

Your point was that Scalia is willing to use his own peculiar interpretation even where no other precedent exists. "In two hundred years," I believe you said.

And even now, you refuse to actually type out the words, "OK, I was wrong to say that," or any variant thereof.

Despite the fact that Hans v. Louisiana was decided in 1890, one hundred and twenty years ago.

Were you wrong? Yes or no?

[Lakai]

Why was the Nineteenth Amendment necessary? After all, the Fourteenth Amendment clearly mandates equal protection of the laws, and thus it should forbid a state from denying women the right to vote.

Why did the states have to pass a separate amendment guaranteeing that the right to vote could not be denied or abridged on account of gender?

Voting was different because there was the 15th Amendment that gave African Americans the right to vote. Since the 15th Amendment was passed right after the 14th Amendment, you can argue that Congress did not think the 14th Amendment applied to voting rights.

It's also possible that both the 19th and 15th Amendments were passed to make certain equal rights a little more clear.

Just because Congress passed a law to overturn DADT, doesn't mean that the Courts could not have overturned it using the equal protection clause.

[Musicat]

But let's forget about that. Let's point out instead that Scalia's opinion begins by pointing out:


George Washington added to the form of Presidential oath the concluding words "so help me God."
The Supreme Court under John Marshall opened its sessions with the prayer, "God save the United States and this Honorable Court."
The First Congress instituted the practice of beginning its legislative sessions with a prayer.
The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.
The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim "a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favours of Almighty God."
President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789, on behalf of the American people "`to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be...'"
That same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
And Jefferson had (and used) slaves, too, but I'd like to see Scalia use that as original intent support to justify race issues.

[villa]

And Jefferson had (and used) slaves, too, but I'd like to see Scalia use that as original intent support to justify race issues.

Well there's no doubt that the original intent of the Constitution was to permit slavery and racial discrimination. Then you had that whole Civil War thing, and those three amendments to the constitution, which sorta trumps the whole original intent of the framers.

[Bricker]

Voting was different because there was the 15th Amendment that gave African Americans the right to vote. Since the 15th Amendment was passed right after the 14th Amendment, you can argue that Congress did not think the 14th Amendment applied to voting rights.

It's also possible that both the 19th and 15th Amendments were passed to make certain equal rights a little more clear.

Just because Congress passed a law to overturn DADT, doesn't mean that the Courts could not have overturned it using the equal protection clause.

Yes, but YOU think the EP clause applies to voting rights, don't you?

My point is that if you allow the EP clause to mean, "Any unequal application of the law to two different classes of people can be undone by the courts," then you eviscerate our notion of self-governance.

[Bricker]

And Jefferson had (and used) slaves, too, but I'd like to see Scalia use that as original intent support to justify race issues.

Scalia is well aware of the Thirteenth Amendment.

But that's the point: the Thirteenth Amendment was passed by the actual amendment process: the elected members of Congress proposed it; the elected members of the state legislatures approved it.

When you amend the Constitution like that, you are consistent with our belief in "We The People" being the ultimate lawmakers in the country.

When you introduce a substantive change in law by action of unelected judges, on the other hand, you are not consistent with that belief.

[Lakai]

Yes, but YOU think the EP clause applies to voting rights, don't you?

My point is that if you allow the EP clause to mean, "Any unequal application of the law to two different classes of people can be undone by the courts," then you eviscerate our notion of self-governance.

The limitation on the EP clause is that it provides heightened protection to suspect classes. You do agree that the 14 amendment doesn't limit the classes, and that it applies to more than just African Americans?

The suspect class analysis should be a factual one, not limited to the classes of people the Congress of 1868 thought deserved equal protection.

The Congress of 1868 did not think women should have heightened protection, but now the EP clause treats them as a suspect class as well.

According the Wikipedia, some of the criteria that SCOTUS listed to describe a suspect class includes the following:

The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.

They possess an immutable and/or highly visible trait.

They are powerless to protect themselves via the political process. (The group is a "discrete" and "insular" minority.)

The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society.

Our knowledge of the second and last items have evolved since the 1800s. We now know homosexuality is an immutable trait, and we know there is nothing about homosexuals that prevents them from contribution meaningfully to society. I see no reason why we shouldn't update our EP interpretation to fall in line with our knowledge of these new facts.

[Farmer Jane]

We now know homosexuality is an immutable trait,

One: while I'm not sure if I care whether or not it is, it has yet to be proven. And I don't know how today's science would hold up in court if you tried to put forth that claim. :/ **

Two: That doesn't account for the high number of bisexuals in the glb movement.

Three: I think SSM should be legal anyway.


I suppose there is a difference between 'born' gay and 'gay now and can't change it'. For the latter, there's solid evidence. The former: uncertain.


eta : Does anyone have cites for polling on if Americans think this should be done via courts or legislatures?

[Bricker]

According the Wikipedia, some of the criteria that SCOTUS listed to describe a suspect class includes the following:


I'm well aware of those criteria.

But since my point was that allowing the judiciary to make substantive changes to the law is inconsistent with our notions of self-governance, you cannot rebut that argument by showing me more evidence of how the judiciary has made substantive changes to the law.


Our knowledge of the second and last items have evolved since the 1800s. We now know homosexuality is an immutable trait, and we know there is nothing about homosexuals that prevents them from contribution meaningfully to society. I see no reason why we shouldn't update our EP interpretation to fall in line with our knowledge of these new facts.

Neither do I... if by "we" you mean our duly-elected legislators, since they represent our legislative will.

But I suspect you mean "we," the judicial branch.

And while I agree the change is a wise one, I would much rather see it come from the legislature, not the judiciary.

[Miller]

Why was the Nineteenth Amendment necessary? After all, the Fourteenth Amendment clearly mandates equal protection of the laws, and thus it should forbid a state from denying women the right to vote.

Why did the states have to pass a separate amendment guaranteeing that the right to vote could not be denied or abridged on account of gender?

In most of the states that have, in the last ten or fifteen years, passed anti-SSM legislation, SSM was already illegal in that state. I'm not saying that proves anything, one way or the other, about the 14th, I'm just saying, sometimes laws are redundant. The existence of the 19th amendment does not necessarily prove anything about any of the previous amendments.

[Bricker]

In most of the states that have, in the last ten or fifteen years, passed anti-SSM legislation, SSM was already illegal in that state. I'm not saying that proves anything, one way or the other, about the 14th, I'm just saying, sometimes laws are redundant. The existence of the 19th amendment does not necessarily prove anything about any of the previous amendments.

Name a couple.

I assume you're not talking about a state that passed a constitutional amendment when they already had statutory law forbidding SSM, because those two are obviously not redundant. The law can be invalidated by a state court's interpretation of its own constitution; the state constitutional amendment cannot.

[villa]

I'm well aware of those criteria.

But since my point was that allowing the judiciary to make substantive changes to the law is inconsistent with our notions of self-governance, you cannot rebut that argument by showing me more evidence of how the judiciary has made substantive changes to the law.

Well they aren't making substantive changes to the law - they cannot. They are simply striking laws that violate the constitution. Unless you want to overturn Marbury what is the alternative?

Neither do I... if by "we" you mean our duly-elected legislators, since they represent our legislative will.

But I suspect you mean "we," the judicial branch.

And while I agree the change is a wise one, I would much rather see it come from the legislature, not the judiciary.

I'd love to see it coming from the legislature too. But if they pass unconstitutional laws, then it is the duty and responsibility of the judiciary to prevent those laws standing.

It seems your issue isn't with the courts' actions, but instead a different interpretation of what the constitution actually requires. So aren't you really being as results oriented as those you oppose on this?

[Miller]

One: while I'm not sure if I care whether or not it is, it has yet to be proven. And I don't know how today's science would hold up in court if you tried to put forth that claim. :/ **

There's pretty strong evidence that, at least for some people, sexuality is an immutable characteristic. The so-called "ex gay" ministries, that attempt to cure people of their homosexuality, have a failure rate somewhere around 95% This isn't conclusive: it's possible that some people have a changeable sexuality, and some people do not, and it's the latter group that is drawn to ex-gay ministries precisely because they lack this ability. But the evidence is pretty clear that, at least for a sizable percentage of the population, sexuality is a fixed characteristic.

Personally, I don't think sexual orientation can be changed through an act of will. However, I also think sexuality is much more complex than is allowed by our pretty simplistic trinary paradigm.

Two: That doesn't account for the high number of bisexuals in the glb movement.

Do you have any evidence for there being a "high number" of bisexuals in the gay rights movement? I'm asking not as a challenge, but because I'm genuinely not sure how large that segment of the movement really is. My impression is that it's actually quite small, but that's mostly based on personal observation, not empirical study.

Regardless, the actual percentage of bisexuals in the movement doesn't matter one way or the other, because bisexuality isn't the same thing as having a mutable sexuality. I'm bisexual myself. I couldn't stop being bisexual if I tried. It is, as near as I can tell, a permanent fixture of my identity.

[Bricker]

Well they aren't making substantive changes to the law - they cannot. They are simply striking laws that violate the constitution. Unless you want to overturn Marbury what is the alternative?


I hear ya.

But... the thing is that we might consider this on a sliding scale. There is no way to write a bright-line rule for judges to follow, I grant, without eviscerating Marbury. But we can select judges that have fidelity to the general concept of judicial intervention. A judge who sees his role as assisting social change through the law will not, as a general rule, respect the idea that the legislature alone should make law.

I remember during Sotomayor's confirmation hearing a speech of hers came out in which she said something about the courts making new law, and then hastily modified it, adding a very conscious wink-wink to her words along the lines of "of course judges don't make law..."


I'd love to see it coming from the legislature too. But if they pass unconstitutional laws, then it is the duty and responsibility of the judiciary to prevent those laws standing.

It seems your issue isn't with the courts' actions, but instead a different interpretation of what the constitution actually requires. So aren't you really being as results oriented as those you oppose on this?

No, unless the "result" you refer to is my desire to see the legislative power remain with the legislature.

[Miller]

Name a couple.

I assume you're not talking about a state that passed a constitutional amendment when they already had statutory law forbidding SSM, because those two are obviously not redundant. The law can be invalidated by a state court's interpretation of its own constitution; the state constitutional amendment cannot.

That's fairly near the same situation, isn't it? Presumably, the people who passed, say, Texas's anti-marriage law, did not think that their constitution allowed gay marriage. However, they saw a possible danger that someone might interpret it that way, so they passed a new law making their interpretation clearer. Although I do not think this is necessarily the case with the 14th, the same argument could be applied there: the 14th should have allowed women the vote, but because there was disagreement over the point, the 19th was adapted to settle the issue.

Perhaps a better example would be this: you believe (IIRC) that the second amendment guarantees the right to private gun ownership. Others have argued that it should only apply to members of a state militia. If, in response to this controversy, a new amendment was passed that guaranteed private gun ownership in more explicit language than exists in the second, would this be proof that your interpretation of the second was incorrect?

Again, I'm not arguing one way or the other about what the 14th actually allows, particularly as applied to women's suffrage. I just think that using the 19th as proof of what the 14th means is a very weak argument by itself.

[villa]

But... the thing is that we might consider this on a sliding scale. There is no way to write a bright-line rule for judges to follow, I grant, without eviscerating Marbury. But we can select judges that have fidelity to the general concept of judicial intervention. A judge who sees his role as assisting social change through the law will not, as a general rule, respect the idea that the legislature alone should make law.


I don't agree that the legislature alone should make law, and nor I think do you. The entire Anglo-American system is based on judge made law - its simply not possible for a legislature to fill out the entirety of law.

I am not sure what the judge's motivation has to do with it - if a judge believes that the Fourteenth Amendment protects homosexuals from discrimination, he's duty bound to find the law unconstitutional. That's not assisting social change, that's enforcing the constitution.

No, unless the "result" you refer to is my desire to see the legislative power remain with the legislature.

But it is a question of what that power is - it is clearly not the power to legislate in violation of the constitution.

[Farmer Jane]

The existence of the 19th amendment does not necessarily prove anything about any of the previous amendments.

But no one thought the 14th Amendment would extend voting rights to women. Amendment 14 clearly states 'male'.
(http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution)
Suffragists tried to get a clause for women, but they failed. Some suffragists - Anthony being one of them - were outright against the 14th Amendment altogether as it only provided suffrage rights to black males.

Sure, English lacks a gender-neutral pronoun, but the Declaration of Independence (yes, I understand that's not the Constitution) was never meant to be for both of the sexes. Nor was the 14th Amendment. The drafters could have continued to use the word 'persons', but instead chose to use the word 'male'.


There's pretty strong evidence that, at least for some people, sexuality is an immutable characteristic.


I think one of the strongest cases that the gay rights movement has made is how prevalent gays really are, when in fact, they're not. I grew up hearing 'ten per cent' (thanks, Kinsey) all of the time, when it's nowhere near that high.

I'm not sure if it helps/hurts/doesn't matter to the immutable argument, but I don't know if the Court sees all 'immutable' characteristics the same. I think one of the disconnects between the black community and the equality movement is that you are born black, period. Your parent (or a parent) is black, your history is black, your future is black.

With being gay, lesbian, or bisexual, there's probably a degree of nature & nurture before that 'cemented into eternal gayhood ;) ' status. We can't point to one - or even ten - things that make one's sexual orientation what it is. Now, when I'm at the Red Ball or a Pride event or a delegates convention, it never occurs to me. I don't care.

But when I think about how SCOTUS may treat the issue and how the case could be argued, then I wonder if it would come up and if it does, how SCOTUS would rule on that issue. I mean, SCOTUS can strike down a law on more than one ground, or you can have 6 justices voting to strike down a law on the basis of Z, with one saying it also violates X, even if the other five think not.

If the Court strikes down anti SSM laws and says that they are discriminatory, I think it paves the way for a host of new cases. Because right now, Arkansas does not allow gays to adopt, as it only allows married couples to adopt. The purpose behind it was religious and conservative, of course, but let's say the SSM marriage is allowed. Can Arkansas pass a new law that says only hetero couples can adopt/foster children?


The so-called "ex gay" ministries, that attempt to cure people of their homosexuality, have a failure rate somewhere around 95% This isn't conclusive: it's possible that some people have a changeable sexuality, and some people do not, and it's the latter group that is drawn to ex-gay ministries precisely because they lack this ability. But the evidence is pretty clear that, at least for a sizable percentage of the population, sexuality is a fixed characteristic.

I know, I agree that trying to forcibly change one's sexuality is a horrible thing to do. If the patient in question wants to be 'straight', then I think that they should feel comfortable enough to talk to a psychiatrist about it. Because some do.

Do you have any evidence for there being a "high number" of bisexuals in the gay rights movement? I'm asking not as a challenge, but because I'm genuinely not sure how large that segment of the movement really is. My impression is that it's actually quite small, but that's mostly based on personal observation, not empirical study.

Maybe I shouldn't say 'movement'. Sorry. See above.


Regardless, the actual percentage of bisexuals in the movement doesn't matter one way or the other, because bisexuality isn't the same thing as having a mutable sexuality. I'm bisexual myself. I couldn't stop being bisexual if I tried. It is, as near as I can tell, a permanent fixture of my identity.

That's an interesting way to think of it. I have had ss/relationships, but I consider myself heterosexual based on my overall sexual preference and plans for the future.

Conservatives also see things like gays and bisexuals being more prevalent in cities and it adds to their case that 'being gay is a lifestyle', eg., choice. I mean, I choose not to have relationships with women and I'm 100 per cent OK with that.

That's fairly near the same situation, isn't it? Presumably, the people who passed, say, Texas's anti-marriage law, did not think that their constitution allowed gay marriage. However, they saw a possible danger that someone might interpret it that way, so they passed a new law making their interpretation clearer. Although I do not think this is necessarily the case with the 14th, the same argument could be applied there: the 14th should have allowed women the vote, but because there was disagreement over the point, the 19th was adapted to settle the issue.


I don't think so. The 14th was never intended for women. It was specifically not intended for women, actually. There was no oversight. Safe to say that no one in Tejas thought that gays would be trying to get married when they wrote their Constitution.

Perhaps a better example would be this: you believe (IIRC) that the second amendment guarantees the right to private gun ownership. Others have argued that it should only apply to members of a state militia. If, in response to this controversy, a new amendment was passed that guaranteed private gun ownership in more explicit language than exists in the second, would this be proof that your interpretation of the second was incorrect?

Again, I'm not arguing one way or the other about what the 14th actually allows, particularly as applied to women's suffrage. I just think that using the 19th as proof of what the 14th means is a very weak argument by itself.

On its own, sure. In context, no.

I think that the 19th Amendment ensures that women are protected under the 14th.

I don't agree that the legislature alone should make law, and nor I think do you. The entire Anglo-American system is based on judge made law - its simply not possible for a legislature to fill out the entirety of law.

I am not sure what the judge's motivation has to do with it - if a judge believes that the Fourteenth Amendment protects homosexuals from discrimination, he's duty bound to find the law unconstitutional. That's not assisting social change, that's enforcing the constitution.



But it is a question of what that power is - it is clearly not the power to legislate in violation of the constitution.

The legislature alone should make law. The courts may review law, but they do not make it.

[Miller]

But no one thought the 14th Amendment would extend voting rights to women. Amendment 14 clearly states 'male'.
(http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution)
Suffragists tried to get a clause for women, but they failed. Some suffragists - Anthony being one of them - were outright against the 14th Amendment altogether as it only provided suffrage rights to black males.

As I said, I'm not making an argument about the 14th amendment one way or the other. I just think Bricker's argument that the 19th amendment proves what the 14th said or intended to say is particularly weak. The point he's trying to prove may be correct, but I don't think that argument works as a way of demonstrating it.

I think one of the strongest cases that the gay rights movement has made is how prevalent gays really are, when in fact, they're not. I grew up hearing 'ten per cent' (thanks, Kinsey) all of the time, when it's nowhere near that high.

I don't know that I've ever seen the number of gays in society put forward as an argument, by itself, that gays should have equal rights. Except in a, "There are more of us than you think/Someone you know could be gay," sense, which is basically an emotional appeal. Even if Kinsey were correct, I don't think the difference between 10% and 5% is terribly significant. Either number is small enough that, to most people, homosexuals are going to be seen as a small and relatively unimportant group.

I'm not sure if it helps/hurts/doesn't matter to the immutable argument, but I don't know if the Court sees all 'immutable' characteristics the same. I think one of the disconnects between the black community and the equality movement is that you are born black, period. Your parent (or a parent) is black, your history is black, your future is black.

I'm fairly certain the court does not see all immutable and innate characteristics as equal. Nor should they: just because something is innate and unchangeable, it doesn't follow that it's necessarily good. Sociopathy, for example.

If the Court strikes down anti SSM laws and says that they are discriminatory, I think it paves the way for a host of new cases. Because right now, Arkansas does not allow gays to adopt, as it only allows married couples to adopt. The purpose behind it was religious and conservative, of course, but let's say the SSM marriage is allowed. Can Arkansas pass a new law that says only hetero couples can adopt/foster children?

Presumably, if the court finds that the Constitution protects the rights of gays to marry, it will be part of a general finding that says that gays on the whole are a protected class, and so can't be discriminated against in any way, and not just in matrimony. So Arkansas's hypothetical adoption law would not pass muster, if the state were compelled to recognize SSM.

I know, I agree that trying to forcibly change one's sexuality is a horrible thing to do. If the patient in question wants to be 'straight', then I think that they should feel comfortable enough to talk to a psychiatrist about it. Because some do.

Ex gay ministries don't generally attempt to forcibly change someone's gender - although I suppose one could argue the point when it comes to youth ministries. But in the west, at least, virtually everyone who enters an ex gay program is there because they want to be there. And I think that's terrible. A competent psychiatrist would work with a patient to resolve their feelings of shame or guilt over being gay, not their feelings of homosexual attraction. The people who run these ministries are, essentially, psychological butchers. They're causing immense harm to the people they're claiming to help.

That's an interesting way to think of it. I have had ss/relationships, but I consider myself heterosexual based on my overall sexual preference and plans for the future.

That's pretty much exactly what I meant when I said that sexuality is much more complex than our simplistic gay/straight/bi paradigm. A lot of people can't wrap their heads around the idea of someone who identifies as straight, but has had same sex relationships in the past, because the assumption in sexuality is that it's basically a toggle - when in fact, it's a dial. There isn't a precise point where heterosexuality becomes bisexuality, or when bisexuality becomes homosexuality.

Most people tend to use "bisexual" as a catch-all category for anything that doesn't fit in the previous two categories. Which, as a bisexual, bugs the hell out of me, because I see a distinct difference between some like myself, who's actively interested in romantic relationships regardless of gender, and yourself, who tried it for a while when you were younger, but aren't interested in it as a long-term life choice. But a lot of people will look at someone like you, and say, "Well, she must really be bisexual, because she dated a woman ten years ago," or worse, "Well, she must have been bisexual back then, but now she's not, so that means we can justify discrimination against gays because it's just a lifestyle choice."

[Farmer Jane]

I don't know that I've ever seen the number of gays in society put forward as an argument, by itself, that gays should have equal rights. Except in a, "There are more of us than you think/Someone you know could be gay," sense, which is basically an emotional appeal. Even if Kinsey were correct, I don't think the difference between 10% and 5% is terribly significant. Either number is small enough that, to most people, homosexuals are going to be seen as a small and relatively unimportant group.


*I* always thought the emotional appeal worked the best. When I was younger (er...yeah I'm already a bit young), I'd see the 10 per cent thing a lot. I even used it myself. It seems to have disappeared a bit over the years.

I'm fairly certain the court does not see all immutable and innate characteristics as equal. Nor should they: just because something is innate and unchangeable, it doesn't follow that it's necessarily good. Sociopathy, for example.

Exactly, and that is why I wonder to what degree/application of immutable is going to be considered here.

Presumably, if the court finds that the Constitution protects the rights of gays to marry, it will be part of a general finding that says that gays on the whole are a protected class, and so can't be discriminated against in any way, and not just in matrimony. So Arkansas's hypothetical adoption law would not pass muster, if the state were compelled to recognize SSM.


Maybe. Sex offenders (and no I am not doing the slippery slope thing, it just comes to mind right away) can marry and don't have to be sterilized, but the state can reject their applications to be foster/adoptive parents. They can do the same with alcoholics, felons, anyone that doesn't pass muster, etc. I'm curious as to what grounds SCOTUS would strike down anti gay marriage bans. And what is the point of State Constitutions if SCOTUS can overrule them?


Ex gay ministries don't generally attempt to forcibly change someone's gender - although I suppose one could argue the point when it comes to youth ministries. But in the west, at least, virtually everyone who enters an ex gay program is there because they want to be there. And I think that's terrible. A competent psychiatrist would work with a patient to resolve their feelings of shame or guilt over being gay, not their feelings of homosexual attraction. The people who run these ministries are, essentially, psychological butchers. They're causing immense harm to the people they're claiming to help.

I think there should be an option for people to seek counseling that isn't faith based. Whatever comes of that therapy is between the patient and therapist. (A good therapist will not make a diagnosis, but will explore where the feelings are coming from and where the patient wants to go.) There are some, who, try as we may, will never be comfortable with their sexuality. :/

A lot of therapists here do counseling on glbt issues. I assume it comes up a lot, and I'd hypothesize that many people walk out of there going, Oh hey. It's OK to be gay.

There are also straight men who like to engage in m2m as a means of domination, not mutual sexual attraction or love. That is something that shouldn't be ignored.

Which, as a bisexual, bugs the hell out of me, because I see a distinct difference between some like myself, who's actively interested in romantic relationships regardless of gender, and yourself, who tried it for a while when you were younger, but aren't interested in it as a long-term life choice.

Women are a pain in the ass. *

:)




*Yes, I see the irony in my statement.

[Farmer Jane]

Add: I understand the concept of judicial review re: state constitutions. It's just an annoyance I have, as these things could swing either way.

[Miller]

*I* always thought the emotional appeal worked the best. When I was younger (er...yeah I'm already a bit young), I'd see the 10 per cent thing a lot. I even used it myself. It seems to have disappeared a bit over the years.

Often, yes, but not so much in a court of law. But the "Someone you love may be gay" argument works just as well for 5% as it does for 10% In the US, 5% of the population still works out to, what, 15 million? That's still a shit-ton of people.

I think there should be an option for people to seek counseling that isn't faith based. Whatever comes of that therapy is between the patient and therapist. (A good therapist will not make a diagnosis, but will explore where the feelings are coming from and where the patient wants to go.) There are some, who, try as we may, will never be comfortable with their sexuality. :/

There is an option: regular, non-ideologically driven therapy, which is never going to make the claim that it can "cure" homosexuality, because any reputable therapist knows its impossible. The clinics that offer a "gay cure" are engaging in simple fraud. They are offering a service they know will not work, and arguably, they know that by offering it, they're causing more harm to their patients than they would if they did not offer it.

While I'm not entirely convinced that such services should be illegal, I don't think there is any context in which running such a clinic is either a wise, or a moral decision.

Women are a pain in the ass. *

Right. Like dating gay dudes is a walk in the park.

(also ironic)

[Bricker]

Although I do not think this is necessarily the case with the 14th, the same argument could be applied there: the 14th should have allowed women the vote, but because there was disagreement over the point, the 19th was adapted to settle the issue.


Did any court entertain such an argument? Did any suffragist make that argument in any sort of notable forum?

[villa]

The legislature alone should make law. The courts may review law, but they do not make it.

This has never been the case in the Anglo-American system (http://en.wikipedia.org/wiki/Common_law), and I don't see why people think it should be so now.

[villa]

And what is the point of State Constitutions if SCOTUS can overrule them?


Because the Federal Constitution provides a base level of rights below which no state may go. States may (and do) in their own constitutions increase protections above the federal minimum.

[Lakai]

I'm well aware of those criteria.

But since my point was that allowing the judiciary to make substantive changes to the law is inconsistent with our notions of self-governance, you cannot rebut that argument by showing me more evidence of how the judiciary has made substantive changes to the law.

I don't see how the criteria I listed qualifies as making substantive changes. Someone has to determine who the EP clause applies to. Is the Court supposed to apply it to all "persons," or can it create a test in order to balance the interests that the clause was designed to protect?


Neither do I... if by "we" you mean our duly-elected legislators, since they represent our legislative will.

But I suspect you mean "we," the judicial branch.

And while I agree the change is a wise one, I would much rather see it come from the legislature, not the judiciary.

My point is that the change did come from the legislature, when they created a vague EP clause and left it up to the judiciary to apply it on a case by case, fact sensitive basis.

[Farmer Jane]

This has never been the case in the Anglo-American system (http://en.wikipedia.org/wiki/Common_law), and I don't see why people think it should be so now.

Villa, please don't nitpick my semantics. We were talking about SCOTUS. Federal common law is precedent, and it is based on constitutionality. It is something a shade different than what states have in place. You know that. :rolleyes:

[Farmer Jane]

There is an option: regular, non-ideologically driven therapy, which is never going to make the claim that it can "cure" homosexuality, because any reputable therapist knows its impossible. The clinics that offer a "gay cure" are engaging in simple fraud. They are offering a service they know will not work, and arguably, they know that by offering it, they're causing more harm to their patients than they would if they did not offer it.

While I'm not entirely convinced that such services should be illegal, I don't think there is any context in which running such a clinic is either a wise, or a moral decision.


Oh, no, I think you misread me. I think the ideo-clinics can go. But the regional psych associations aren't going to pull those licenses. What I meant is that people who are having issues with their sexuality should feel like they can go to a shrink without being ostracized by any community.

Right. Like dating gay dudes is a walk in the park.

Too bad you weren't born a chick. ;)

[Northern Piper]

Again, I'm not arguing one way or the other about what the 14th actually allows, particularly as applied to women's suffrage. I just think that using the 19th as proof of what the 14th means is a very weak argument by itself.

Except one of the reasons for the 19th Amendment was that the SCOTUS had held that denying women the vote did not violate the 14th Amendment: Minor v. Happersett (http://en.wikipedia.org/wiki/Minor_v._Happersett). A constitutional amendment was necessary to ensure women had a constitutional right to vote. At the time the 19th was adopted, there was no ambiguity or differing interpretations on this point.

[Farmer Jane]

Villa, please don't nitpick my semantics. We were talking about SCOTUS. Federal common law is precedent, and it is based on constitutionality*. It is something a shade different than what states have in place. You know that. :rolleyes:

* and/or other laws.

At any rate, you know what I was talking about and the sentiment I was expressing (kind of like that rhetorical question you felt like answering).

[villa]

Villa, please don't nitpick my semantics. We were talking about SCOTUS. Federal common law is precedent, and it is based on constitutionality. It is something a shade different than what states have in place. You know that. :rolleyes:

It's not nitpicking. Statements like "the legislature alone should make law" are just refusing to recognize that throughout Anglo-American legal history the role of judges in making law has been extremely important.

[Captain Amazing]

Did any court entertain such an argument? Did any suffragist make that argument in any sort of notable forum?

Minor v. Happersatt (1875), unless I'm misunderstanding your question. That's the court case that said the 14th amendment doesn't give women the right to vote. From the summary of the case in the decision:

The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.'

And the constitution of the State of Missouri thus ordains:

'Every male citizen of the United States shall be entitled to vote.'

Under a statute of the State all persons wishing to vote at any election, must previously have been registered in the manner pointed out by the statute, this being a condition precedent to the exercise of the elective franchise.

In this state of things, on the 15th of October, 1872 (one of the days fixed by law for the registration of voters), Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not [88 U.S. 162, 164] a 'male citizen of the United States,' but a woman. She thereupon sued him in one of the inferior State courts of Missouri, for wilfully refusing to place her name upon the list of registered voters, by which refusal she was deprived of her right to vote.

The registrar demurred, and the court in which the suit was brought sustained the demurrer, and gave judgment in his favor; a judgment which the Supreme Court affirmed. Mrs. Minor now brought the case here on error.

Mr. Francis Minor (with whom were Messrs. J. M. Krum and J. B. Henderson), for the plaintiff in error, went into an elaborate argument, partially based on what he deemed true political views, and partially resting on legal and constitutional grounds. These last seemed to be thus resolvable:

1st. As a citizen of the United States, the plaintiff was entitled to any and all the 'privileges and immunities' that belong to such position however defined; and as are held, exercised, and enjoyed by other citizens of the United States.

2d. The elective franchise is a 'privilege' of citizenship, in the highest sense of the word. It is the privilege preservative of all rights and privileges; and especially of the right of the citizen to participate in his or her government.

3d. The denial or abridgment of this privilege, if it exist at all, must be sought only in the fundamental charter of government,-the Constitution of the United States. If not found there, no inferior power or jurisdiction can legally claim the right to exercise it.

4th. But the Constitution of the United States, so far from recognizing or permitting any denial or abridgment of the privileges of its citizens, expressly declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

5th. If follows that the provisions of the Missouri constitution and registry law before recited, are in conflict with and must yield to the paramount authority of the Constitution of the United States.

The court decided:

The [14th] amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen.

It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. [88 U.S. 162, 172] But if it was not, the contrary may with propriety be assumed.

[Farmer Jane]

It's not nitpicking. Statements like "the legislature alone should make law" are just refusing to recognize that throughout Anglo-American legal history the role of judges in making law has been extremely important.

I'm just asking that you take what I say in context.

edit: I just re-read. I was not decrying judicial review or trying to spout some right-wing 'legislate from the bench' BS, but it's possible I misunderstood what you originally said.

[Miller]

Did any court entertain such an argument? Did any suffragist make that argument in any sort of notable forum?

I don't know. Whether or not they did doesn't really have any bearing on my argument, which has nothing to do with the actual content or application of the 14th.

[Bricker]

Minor v. Happersatt (1875), unless I'm misunderstanding your question. That's the court case that said the 14th amendment doesn't give women the right to vote. From the summary of the case in the decision:

The court decided:It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. [88 U.S. 162, 172] But if it was not, the contrary may with propriety be assumed.

Well, then, seems the question WAS raised, and answered definitively in the negative. The Fourteenth Amendment did NOT confer the right to vote upon women.

[Bricker]

I don't know. Whether or not they did doesn't really have any bearing on my argument, which has nothing to do with the actual content or application of the 14th.

Oh.

Then would you mind restating your argument? If it has nothing to do with any actual content or application of the 14th, then I am afraid I have misunderstood it.

[Captain Amazing]

Well, then, seems the question WAS raised, and answered definitively in the negative. The Fourteenth Amendment did NOT confer the right to vote upon women.

Obviously, hence the 19th. But the state of 14th amendment jurisprudence has changed pretty substantially since 1875, and I think it's quite probable that, were this a case of first impression now rather than 1875, the court would have come to a different result.

[Bricker]

Obviously, hence the 19th. But the state of 14th amendment jurisprudence has changed pretty substantially since 1875, and I think it's quite probable that, were this a case of first impression now rather than 1875, the court would have come to a different result.

True. But it's my contention that since 1875 we have surrendered to the courts substantial law-making authority, and that this is a perfect example. We now rely on the courts to fix general problems with the law; we want the Constitution to serve as a general moral guide. "Unconstitutional" has become synonymous in the public mind with "wrong," "unwise," and "unjust," and we seem to want our federal judges to be the ones to correct wrong, unwise, and unjust laws instead of our legislators.

That's a perfectly workable system, but it's not as consistent with our notions of self-government as it could or should be.

[Bricker]

A follow-on thought about how this thinking evolves to truly change the original meanings... In 1964's Reynolds v Sims, the Warren Court famously found that "...legislators represent people, not trees or acres..." so the Equal Protection Clause requires that seats in both houses of a state's legislature have to be apportioned on a population basis.

That would have been a real surprise to the proponents of the Fourteenth Amendment, some of whom were US Senators, a house decidely NOT apportioned on a population basis.

[Fear Itself]

Scalia is an originalist. Originalism is a legal doctrine that essentially says that the meaning of the United States Constitution is whatever Antonin Scalia thinks it should be.We can always hope Scalia chokes to death on a cannoli before the end of Obama's second term.

[Bricker]

A follow-on thought about how this thinking evolves to truly change the original meanings... In 1964's Reynolds v Sims, the Warren Court famously found that "...legislators represent people, not trees or acres..." so the Equal Protection Clause requires that seats in both houses of a state's legislature have to be apportioned on a population basis.

That would have been a real surprise to the proponents of the Fourteenth Amendment, some of whom were US Senators, a house decidely NOT apportioned on a population basis.

And another one:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


What does that mean?

How do you ignore the then-understood meaning of "suits at common law?"

Or if you don't, how do you justify any new spin on what this amendment requires?

[villa]

And another one:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


What does that mean?

How do you ignore the then-understood meaning of "suits at common law?"

Or if you don't, how do you justify any new spin on what this amendment requires?

I think that clause is actually very important for constitutional interpretation. It shows that the framers, when they chose to be specific, knew how to be specific. Which leads me to the belief that where they chose to use more general language, they intended it to be applied in a different fashion.

So if we look at the Fourteenth in light of the Fifteenth (which was very close in time, though not exactly the same), the fact that the Fifteenth specifically states on grounds of race, while equal protection in the Fourteenth isn't, suggests to me that the drafters did not intend the protections of the Fourteenth to be applied only on racial grounds.

[Bricker]

I think that clause is actually very important for constitutional interpretation. It shows that the framers, when they chose to be specific, knew how to be specific. Which leads me to the belief that where they chose to use more general language, they intended it to be applied in a different fashion.

So if we look at the Fourteenth in light of the Fifteenth (which was very close in time, though not exactly the same), the fact that the Fifteenth specifically states on grounds of race, while equal protection in the Fourteenth isn't, suggests to me that the drafters did not intend the protections of the Fourteenth to be applied only on racial grounds.

Except that the framers of the Seventh Amendment were not the same people as the framers of the Fourteenth.

[Really Not All That Bright]

The framers of all the amendments are different, unless any were adopted unanimously.

[villa]

Except that the framers of the Seventh Amendment were not the same people as the framers of the Fourteenth.

I wasn't making the argument that they were. My argument is that given that there are very specific elements of the Bill of Rights, we can presume that where the Bill of Rights is less specific, it is so for a reason.

And when we look at the 14th and 15th in conjunction, we can see that those framers were capable of being specific when they chose to be - as in the 15th, and less specific when they chose to be, as in the Equal Protection clause.

[psychonaut]

The framers of all the amendments are different, unless any were adopted unanimously.I think you mean "simultaneously", not "unanimously". And it's my understanding that the first ten amendments were indeed adopted at more or less the same time.

[Bricker]

I wasn't making the argument that they were. My argument is that given that there are very specific elements of the Bill of Rights, we can presume that where the Bill of Rights is less specific, it is so for a reason.

And when we look at the 14th and 15th in conjunction, we can see that those framers were capable of being specific when they chose to be - as in the 15th, and less specific when they chose to be, as in the Equal Protection clause.

Did you use that same analysis with the Second Amendment, by chance?

[villa]

Did you use that same analysis with the Second Amendment, by chance?

I don't need to. The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further.

[villa]

I think you mean "simultaneously", not "unanimously". And it's my understanding that the first ten amendments were indeed adopted at more or less the same time.

I think he means unanimously. Given that otherwise they are the product of compromises.

[Miller]

Oh.

Then would you mind restating your argument? If it has nothing to do with any actual content or application of the 14th, then I am afraid I have misunderstood it.

My argument is that the existence of the 19th amendment, by itself, doesn't prove anything, one way or the other, about the 14th amendment. There seems to be plenty of evidence that the 14th was never intended to give equal rights to women. But the existence of the 19th is not, in and of itself, part of that evidence.

[Really Not All That Bright]

I think you mean "simultaneously", not "unanimously". And it's my understanding that the first ten amendments were indeed adopted at more or less the same time.
I think he means unanimously. Given that otherwise they are the product of compromises.
Yup. If delegate X didn't vote for a particular amendment, he can hardly be called a "framer" of it. So every constitutional amendment has a different set of framers, though obviously there's some overlap.

The point is that if we can't construe one in light of the others, we can't construe any in light of the others.

[Bricker]

My argument is that the existence of the 19th amendment, by itself, doesn't prove anything, one way or the other, about the 14th amendment. There seems to be plenty of evidence that the 14th was never intended to give equal rights to women. But the existence of the 19th is not, in and of itself, part of that evidence.

I don't agree. We can infer that it's much easier to obtain the right to vote (or any right) via court decision rather than by constitutional amendment. The courts have discovered hundreds of rights and byproducts of rights lurking about in the Constitution, but it's only been amended 27 times.

[ElvisL1ves]

It shows that the framers, when they chose to be specific, knew how to be specific. Which leads me to the belief that where they chose to use more general language, they intended it to be applied in a different fashion.

The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further.

One of these things is not like the other ...

[villa]

One of these things is not like the other ...

No really they aren't. They both come from the bedrock principle of statutory construction. If the meaning of the words are plain, one does not look beyond the meaning of the words. In places the meaning of the constitution is absolutely plain. Just because one does not like the result mandated by that plain language does not mean one should deliberately seek to create an ambiguity in the language that isn't there.

[Strassia]

I hear ya.

But... the thing is that we might consider this on a sliding scale. There is no way to write a bright-line rule for judges to follow, I grant, without eviscerating Marbury. But we can select judges that have fidelity to the general concept of judicial intervention. A judge who sees his role as assisting social change through the law will not, as a general rule, respect the idea that the legislature alone should make law.

I remember during Sotomayor's confirmation hearing a speech of hers came out in which she said something about the courts making new law, and then hastily modified it, adding a very conscious wink-wink to her words along the lines of "of course judges don't make law..."


I always felt she got a bum rap for that comment. What she said was that policy was made at the appellate level. She was saying that it was the duty of the appellate to define the limits of how the lower courts should apply laws. When the legislature leaves ambiguity in the law, or when laws conflict, the appellate has to decide, with the SCOTUS being the final decider.

[ElvisL1ves]

No really they aren't. They both come from the bedrock principle of statutory construction. If the meaning of the words are plain, one does not look beyond the meaning of the words. In places the meaning of the constitution is absolutely plain. Just because one does not like the result mandated by that plain language does not mean one should deliberately seek to create an ambiguity in the language that isn't there.Absolutely. But to reach the second conclusion of yours I quoted, you have to find a way to pretend the "plain language" of the first half of the Second Amendment isn't actually there. As you say yourself, the framers were specific when they thought they had to be, and in that single sentence, they were pretty damn specific about its reason.

Not to mention that the principle you claim in that first sentence is hardly "bedrock".

[Punoqllads]

Absolutely. But to reach the second conclusion of yours I quoted, you have to find a way to pretend the "plain language" of the first half of the Second Amendment isn't actually there. As you say yourself, the framers were specific when they thought they had to be, and in that single sentence, they were pretty damn specific about its reason.The "well-regulated" in "well-regulated militia" means "in good working order". The first half of the second amendment can be reasonably construed to be clarifying what is considered "arms", namely, the type of weaponry that would be used by a citizens' militia.

[ElvisL1ves]

Exactly. But "The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further" is thereby not a reasonable construction (construal? Whatevs).

[Strassia]

Exactly. But "The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further" is thereby not a reasonable construction (construal? Whatevs).

Sure it is: Because reason A exists, B must not be infringed.

A (the need for a well regulated militia) is a justification, but it has no effect on the actual requirement. Now you could argue that if A is no longer true we should repeal, but that doesn't change the plain language reading of the amendment.

[ElvisL1ves]

The framers stated a specific, finite reason for the amendment. Per villa's analysis, that they had a reason for doing so and that that reason must be taken into account in an honest reading, that results in a specific, finite range of that right in alignment with that reason.

How he reaches the opposite conclusion, and so emphatically that he even uses it as an example, is for him to explain.