1st Circuit Court of Appeals: Defense of Marriage Act is Unconstitutional

[David42]

Originally Posted by lawbuff

The language "for want of a substantial federal question" is very confusing, and until I read the Baker case years ago when the CA question 1st came up around 2005, I had never heard the term myself.

A "Summary decision", as Baker was, IS a decision on the merits, while a DENIAL of Certiorari is not. There WAS a federal question, it is just the "dismissal for want of" is confusing.

This outlines it and the prcedential value of Baker and discusses the Hicks/Miranda ruling on exactly what is a dismissal for want of a substantial federal quesion.

Through "Doctrinal developments", an inferior court can be released of the binding effect of Baker. Some say there are 2 DD's since Baker, Lawrence v. Texas, and Romer v. Evans.

http://en.wikipedia.org/wiki/Baker_v._Nelson

I disagree that either of these has any bearing on gay marriage. Romer stands for the proposition that a group cannot be stripped of any protections; lawrence stands for the proposition that the cops cannot invade your privacy to convict you for your sexual practices.

I agree with you that the terseness of these sorts of dismissals leads to confusion. Gay activists tend to insist that Baker has no precedential value, even though it does. I see the supreme court meaning more or less there is no violation of federal right when they say no federal question.

[David42]

Originally Posted by lawbuff

That would take some research, but concerning SSM, most have provisions that exclude other state marriages, here is Ohio's Constitution:

§ 15.11 Marriage Amendment

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions.

This is an inclusion clause to out of state non recognition also.

Now, Ohio did away with Common law marriages in 1991, but had a grandfather clause. Whether out of state CL marriages would be recognized, that would also take some research, probably at the law library.

I can answer your question on common law, not to say I have cites handy. The states have always recognized common law marriages validly formed in other states.

As far as Ohio's amendment, my claim is that it is unprecedented to refuse to recognize a marriage in another state BEFORE the gay marriage issue. Which I admit I haven't researched, so could be wrong. it was never an issue in my experience; I never handled a case where anyone said we're not going to recognize this marriage from another state.

[David42]

Originally Posted by David42

I disagree that either of these has any bearing on gay marriage. Romer stands for the proposition that a group cannot be stripped of any protections; lawrence stands for the proposition that the cops cannot invade your privacy to convict you for your sexual practices.

I agree with you that the terseness of these sorts of dismissals leads to confusion. Gay activists tend to insist that Baker has no precedential value, even though it does. I see the supreme court meaning more or less there is no violation of federal right when they say no federal question.

I meant

"Romer stands for the proposition that a group cannot be stripped of any and all protections across the board;"

[Bryan Ekers]

Originally Posted by David42

You need to cite legal authority for this proposition, rather than mere self-satisfaction.

The Canadian Supreme Court. If the American Supreme Court ends up not agreeing, then they'll have made a mistake. A mistake they can legally rationalize, no doubt, but still a mistake.

Please cite in the law the principle that marriage is a fundamental right for any and all pairings, or accept that a fundamental right does not devolve on all pairings.

You 14th Amendment looks on point to me. I'm disinclined to look for ways to have to explain why you should be treating your citizens equally and fairly. I know that current American law (in most states, anyway, and not at the Federal level) has not reached the necessary stage for this particular form of equal treatment, and is grinding along at its slow pace. I look forward to them eventually coming to the just and correct conclusion.

We never had a founding principle that gay marriage is a fundamental right. We do have a founding principle that each state has a prerogative to determine what marriage is.

Well, I don't think marriage is mentioned in your constitution, but "equal protection of the laws" is, so I guess a conflict was inevitable.

With a track record of 31 states forbidding it in their constitutions, more forbidding it in their statutes, and only 8 upholding it, I think you optimism is misplaced.

With younger people being more casually accepting of gay rights and older people gradually dying off, I guess we shall see.

[Bricker]

Originally Posted by Bryan Ekers

The Canadian Supreme Court. If the American Supreme Court ends up not agreeing, then they'll have made a mistake. A mistake they can legally rationalize, no doubt, but still a mistake.



You 14th Amendment looks on point to me. I'm disinclined to look for ways to have to explain why you should be treating your citizens equally and fairly. I know that current American law (in most states, anyway, and not at the Federal level) has not reached the necessary stage for this particular form of equal treatment, and is grinding along at its slow pace. I look forward to them eventually coming to the just and correct conclusion.

So far as I am aware, the Canadian Supreme Court interpreted Canadian law. And I am sure they did a bang up job of it.

But the US Supreme Court and the inferior federal courts that sit below it do not look to Canadian law as an authority.

I don't know how things work in Canada, but here, the courts are supposed to interpret the written law, not decide for themselves what constitutes wise, fair, equal policy.

While our supreme law does indeed refer to "equal protection of the laws," that phrase has a framework. We don't treat convicted prisoners equally, for example. We allow the law to define two classes of people, and treat those two classes unequally.

You're arguing for a change in the law. In the United States, that should come from the legislature.

[Bryan Ekers]

Originally Posted by Bricker

So far as I am aware, the Canadian Supreme Court interpreted Canadian law. And I am sure they did a bang up job of it.

But the US Supreme Court and the inferior federal courts that sit below it do not look to Canadian law as an authority.

Well, a useful example, then. Anyway, I'm sure an eventual SCOTUS pro-SSM decision will rely on American legal precedents and thus be legally justifiable, as an eventual SCOTUS anti-SSM decision will be. Heck, I assume the majority and dissenting opinions will both have oodles of supporting law and the issue will just come down to how the nine cast their votes. I get it - gay marriage could be legalized or it could be outlawed and either outcome can be justified.

It is only my humble opinion (well, me and the SCC, who no doubt studied the relevant precedent for its decision) that one outcome is fair and the other is not.

I don't know how things work in Canada

For the most part, pretty well, thank you.

While our supreme law does indeed refer to "equal protection of the laws," that phrase has a framework. We don't treat convicted prisoners equally, for example. We allow the law to define two classes of people, and treat those two classes unequally.

Sure, you legally can treat homosexuals unequally. Why do you want to?

You're arguing for a change in the law. In the United States, that should come from the legislature.

It should, but it sometimes does not. Ref: Brown, Loving, Lawrence... It's my understanding that periodically striking down laws is part of the judiciary's function, and that (along with executive veto) is what keeps the legislature in check.

[Bricker]

Originally Posted by Bryan Ekers

It is only my humble opinion (well, me and the SCC, who no doubt studied the relevant precedent for its decision) that one outcome is fair and the other is not.

Sure, I get that.

But let me offer you an extreme example. Let's assume I show up in Clarence Thomas' house about 2:00 AM with a severed horse's head, tape his mouth shut, and explain to him that if he votes against SSM, he and his wife are next.

And sure enough, the Court's decision is 5-4, with legal scholars around the country shocked that Thomas joined the major to find SSM is required by Equal Protection.... a just and fair outcome, yes?

But would you have any concerns about this process?

It should, but it sometimes does not. Ref: Brown, Loving, Lawrence... It's my understanding that periodically striking down laws is part of the judiciary's function, and that (along with executive veto) is what keeps the legislature in check.

Yes, but.

When the judiciary strikes down laws, they are supposedly doing so because those laws conflict with the Constitution.

When the judiciary takes the same Constitution that has existed since 1789, or 1867, and declares that even though no one has changed a single word, no one has added even a single comma, the meaning of the words have changed dramatically... then the judiciary is moving away from their correct function and turning into a super-legislature, a body of wise philosopher-kings who decide what's best for the country even if the majority doesn't know it yet.

I agree that the outcome of same-sex marriage is both just and fair.

But I worry about reaching a just and fair result by an improper method.

[John Mace]

But, if in the course of 200 years, a condition which was long considered a mental illness and to have a corrupting moral influence is now considered a simple matter of biology with no "illness" associated with it, then does it not make sense to interpret the constitution in a way that reflects that knowledge? Knowledge that simply wasn't available to our earlier citizens?

Imagine that our constitution had been written in the 16th century, when many Western Europeans believed in witches and witchcraft. Would it be wrong for an 18th century judiciary to overturn laws which condoned the killing of someone for practicing witchcraft even if much of the citizenry still believed witchcraft to exist?

[David42]

Originally Posted by Bryan Ekers

The Canadian Supreme Court. If the American Supreme Court ends up not agreeing, then they'll have made a mistake. A mistake they can legally rationalize, no doubt, but still a mistake.

This is an O.P. that concerns American case law. While it is true that the opinions of foreign courts are occasionally raised in Supreme Court arguments, their value is of little weight. They can be viewed as persuasive, but I doubt that the court will look to foreign courts when it has adequate precedent in it's own body of jurisprudence.

Originally Posted by Bryan Ekers

You 14th Amendment looks on point to me. I'm disinclined to look for ways to have to explain why you should be treating your citizens equally and fairly. I know that current American law (in most states, anyway, and not at the Federal level) has not reached the necessary stage for this particular form of equal treatment, and is grinding along at its slow pace. I look forward to them eventually coming to the just and correct conclusion.

A circular argument. The 14th amendment itself asks the question of whether a fundamental right exists. It is not the source of the right, or the source that protects the right. It just makes sure that people in similar situations are treated equally under the law, unless of course a valid governmental reason exists to not do so.

Originally Posted by Bryan Ekers

Well, I don't think marriage is mentioned in your constitution, but "equal protection of the laws" is, so I guess a conflict was inevitable.

See above

Originally Posted by Bryan Ekers

With younger people being more casually accepting of gay rights and older people gradually dying off, I guess we shall see.

There is also a trend that young people have more liberal views (in every generation) and when they grow older, their views often shift in a more conservative direction.

Add to that a declining birthrate, so that new pro-gay voters are added at a slower and slower rate, I am confident that it will be a long time before the 31 change their minds. We shall see.

[David42]

Originally Posted by Bryan Ekers

Sure, you legally can treat homosexuals unequally. Why do you want to?

Who says we want to? It would only be unequal if they can be shown to have the right, which has not been adequately done.

State courts have held that their state constitutions demand the recognition of such a right. So far, no court has yet said, per se, that gays have a fundamental right to marry under the federal constitution.

I have no problem with states recognizing gay marriage or not as they will. I do have a problem with a federal mandate that all states have to have gay marriage.

In my view, since we are dealing with an institution that has been seen as fundamental, some caution is warranted. We know that changes in the concept of marriage has resulted in fewer marriages or increased divorce in the past, or both.

Since this is a change in the concept of marriage, we should be viewing this an experiment.

Gays want to do a few two or three year studies and proclaim "no problem." But when I was in school, my sociology professor pointed out time and again that major changes in social structure need a minimum of two generations of study before we can have any real confidence as to what impact it has. At this point, the studies of gay marriage are premature in my view.

No-one can say they know one way or the other that gay marriage will or will not have a serious harmful impact on the state of marriage.

While you can label me as a hateful enemy of gays, that is hardly the case. I would be wholly against it if on the other hand the supreme court were to rule that no state can have gay marriage.

I like it the way it is now; with a few states engaging in the experiment and most states showing concern. This is the beauty of the American system, that we have a system where the states that desire to can engage in social experiments and others can wait and see what happens. I do not have a deaf ear to gays; but neither do I have a deaf ear to those against it.

[Bryan Ekers]

Originally Posted by Bricker

Sure, I get that.

But let me offer you an extreme example. Let's assume I show up in Clarence Thomas' house about 2:00 AM with a severed horse's head, tape his mouth shut, and explain to him that if he votes against SSM, he and his wife are next.

And sure enough, the Court's decision is 5-4, with legal scholars around the country shocked that Thomas joined the major to find SSM is required by Equal Protection.... a just and fair outcome, yes?

But would you have any concerns about this process?

Well... if it's Thomas....


I don't get the point of the hypothetical. Attempting to coerce a government official, or bribe them, or otherwise improperly influence them, is something I trust we can agree is bad. Even though I'd agree with this particular outcome, this just encourages the same method being used against another Justice (or Thomas again, for that matter) to a result I wouldn't agree with.

That said, it wouldn't surprise me if there'd been a Justice who, on some issue, let his or her vote be determined by a coin-flip or other arbitrary means.

Yes, but.

When the judiciary strikes down laws, they are supposedly doing so because those laws conflict with the Constitution.

When the judiciary takes the same Constitution that has existed since 1789, or 1867, and declares that even though no one has changed a single word, no one has added even a single comma, the meaning of the words have changed dramatically... then the judiciary is moving away from their correct function and turning into a super-legislature, a body of wise philosopher-kings who decide what's best for the country even if the majority doesn't know it yet.

Thing is, I don't see that the meanings of the words have changed that much - it's just there were (and I guess still are) a number of unspoken understandings that the protections just didn't apply to some kinds of people (or perhaps more accurately, that prior to the 14th, the Federal Government was sharply limited in what it could outlaw, but the state governments were not and thus could draw all kinds of exclusionary lines). For example, the Constitution refers to the rights of "citizens", but that apparently didn't include women until the more enlightened 20th century (well after the 14th was ratified, I should add) decided it did. In fact overall, the trend has been one of expanding interpretation of the word "citizen" from a time when it was casually accepted to only mean white Christian males to, I dunno... all Americans.

As far as I can tell, the moment the 14th was ratified, that should have legalized gay marriage on the spot. It should also have given women the vote, nullified all bans on interracial marriage, indeed nullified all state laws based on race or gender. The fact that it didn't just means that "person" and "citizen" (words that appear frequently in the text of the 14th) were understood to not apply to all Americans.

I don't see the dramatic re-interpretation you imply - just that what was exclusive, citizenship/personhood, is now inclusive to a degree I'm sure would have shocked the Founders, who I'd guess weren't expecting to be bumping elbows with women and darkies at the polls.

In any case, I get that the Constitution itself is the broad guideline of government, hence most amendments (starting with the 13th, I guess) throw in language to the effect of "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." It is clearly intended that the nitty-gritty details of how a constitutional protection is applied is (typically) up the legislature, with the occasional whip-crack of the judiciary telling them a particular application is contrary to the letter and/or spirit of the constitution.

It shouldn't be the case that laws have to be struck down in this manner. Ideally the legislature would repeal laws that make distinctions among citizens for the express purpose of treating them unequally when no real reason for such treatment exists, but legislatures are notoriously resistant of such actions, even passing laws to formalize and increase the inequality when it starts to look like that inequality is threatened. It's understandable - unlike the "body of wise philosopher-kings", legislators live in constant fear of not getting re-elected, and voters by-and-large just love inequalities, or at least more than homilies like "and justice for all", which many Americans can recite by rote but otherwise pay little mind to.

The legislators, collectively, do have their trump card, though - they could ratify another amendment. Any given week, gay marriage could be permanently banned (or at least as permanently as amendments get, Ref. the 18th) from the U.S., and there won't be anything the "philosopher-kings" could do about it.

I agree that the outcome of same-sex marriage is both just and fair.

But I worry about reaching a just and fair result by an improper method.

Well, blackmail and horse-heads notwithstanding, I guess we'll have to disagree on how this is "improper". I recognize the importance of the legislature, in your country and mine, but I have a small and permanent amount of distrust in it, and I'm glad for the occasional (and only occasional) intervention of what I'd called "learned elders" (rather than "philosopher-kings") to tell the legislature what it can't do. And if what they're saying the legislature can't do is treat citizens unequally without a damned good reason, I'm by default in favour.

[Bryan Ekers]

Originally Posted by David42

A circular argument.

Not really - that would suggest no overall progress is being made. I see the Americans gradually (if grudgingly) sliding toward equal treatment of its citizens, in what I'll assume the wording of the 14th intends, even if the people who actually ratified it in 1868 had no idea it would be applied in this way.

The 14th amendment itself asks the question of whether a fundamental right exists. It is not the source of the right, or the source that protects the right. It just makes sure that people in similar situations are treated equally under the law, unless of course a valid governmental reason exists to not do so.

I cheerfully admit the significance of "source" escapes me, but in any case I'm still waiting for someone to explain what "valid government reason exists" in this case. I get that they can legally ban gay marriage - I just don't get why they should or, beyond some kind of homophobia or as a sop to the homophobia of the voters, why they want to.

Add to that a declining birthrate, so that new pro-gay voters are added at a slower and slower rate, I am confident that it will be a long time before the 31 change their minds. We shall see.

Do you consider this something worth... celebrating? Something just and fair and desirable? If so, we'll have to disagree.

Originally Posted by David42

Who says we want to?

I thought your point was 31 states really really really wanted to.

It would only be unequal if they can be shown to have the right, which has not been adequately done.

Well, perhaps I'm more eager to push for equal treatment under the law than you, or 31 of your states, or something.

I have no problem with states recognizing gay marriage or not as they will. I do have a problem with a federal mandate that all states have to have gay marriage.

Well, I'm not going to argue that you don't have the right to have that problem.

In my view, since we are dealing with an institution that has been seen as fundamental, some caution is warranted. We know that changes in the concept of marriage has resulted in fewer marriages or increased divorce in the past, or both.

Well, this is where you start to lose me, suggesting without foundation that gay marriage will cause or accelerate the problems you see in the institution of marriage.

Since this is a change in the concept of marriage, we should be viewing this an experiment.

Gays want to do a few two or three year studies and proclaim "no problem." But when I was in school, my sociology professor pointed out time and again that major changes in social structure need a minimum of two generations of study before we can have any real confidence as to what impact it has. At this point, the studies of gay marriage are premature in my view.

And you have the right to that view. I just don't agree the "concept" of marriage is being changed in any significant way, any more than the concept of voting changed when it was extended to women. Oh, no, there will be two penises involved! Or two vaginas! .... how horrible, shocking.... whatever.... oh no.... the horror, the horror....

(I'm attempting by the above use of ellipses to suggest lack of affect, in case that was unclear)

No-one can say they know one way or the other that gay marriage will or will not have a serious harmful impact on the state of marriage.

By that argument, nothing can be done, ever. It's been only two generations since Brown, right? Maybe three? Perhaps serious harmful impact on the state of education is just around the corner and you should pre-emptively resegregate the schools just to be safe.

More recently, American 18 year-olds got the vote. Oh, no...! Chaos could hit at any moment...! Upheaval, destruction.... dogs and cats, living together... mass hysteria..... oh, no....

(The gist is that I find your concerns less-than-compelling)

While you can label me as a hateful enemy of gays, that is hardly the case. I would be wholly against it if on the other hand the supreme court were to rule that no state can have gay marriage.

As far as I can tell, at most, you're an impediment to gays, kind of a passive speed-bump on the road to equality. Has your particular state held any referendum votes on the issue and if so did you vote against gay marriage? Have you donated time or money to any anti-SSM campaigns? That's when you start sliding into being hateful.

I like it the way it is now; with a few states engaging in the experiment and most states showing concern. This is the beauty of the American system, that we have a system where the states that desire to can engage in social experiments and others can wait and see what happens. I do not have a deaf ear to gays; but neither do I have a deaf ear to those against it.

Well, the beauty of the Canadian system is that we didn't waste time dicking around like that. Once same-sex couples got legal rights and benefits in 1999, the hop to actual gay marriage (first in most of the provinces, ultimately approved by the Feds) came in 2005. If our nearly-seven-year "experiment" with no negative results doesn't suggest anything to you, I have my doubts that you are seriously interested in "studying" (as opposed to just "delaying") the issue.

[David42]

Originally Posted by Bryan Ekers

Not really - that would suggest no overall progress is being made. I see the Americans gradually (if grudgingly) sliding toward equal treatment of its citizens, in what I'll assume the wording of the 14th intends, even if the people who actually ratified it in 1868 had no idea it would be applied in this way.

I cheerfully admit the significance of "source" escapes me, but in any case I'm still waiting for someone to explain what "valid government reason exists" in this case. I get that they can legally ban gay marriage - I just don't get why they should or, beyond some kind of homophobia or as a sop to the homophobia of the voters, why they want to.

Do you consider this something worth... celebrating? Something just and fair and desirable? If so, we'll have to disagree.

I thought your point was 31 states really really really wanted to.

Well, perhaps I'm more eager to push for equal treatment under the law than you, or 31 of your states, or something.

Well, I'm not going to argue that you don't have the right to have that problem.

Well, this is where you start to lose me, suggesting without foundation that gay marriage will cause or accelerate the problems you see in the institution of marriage.

And you have the right to that view. I just don't agree the "concept" of marriage is being changed in any significant way, any more than the concept of voting changed when it was extended to women. Oh, no, there will be two penises involved! Or two vaginas! .... how horrible, shocking.... whatever.... oh no.... the horror, the horror....

(I'm attempting by the above use of ellipses to suggest lack of affect, in case that was unclear)

By that argument, nothing can be done, ever. It's been only two generations since Brown, right? Maybe three? Perhaps serious harmful impact on the state of education is just around the corner and you should pre-emptively resegregate the schools just to be safe.

More recently, American 18 year-olds got the vote. Oh, no...! Chaos could hit at any moment...! Upheaval, destruction.... dogs and cats, living together... mass hysteria..... oh, no....

(The gist is that I find your concerns less-than-compelling)

As far as I can tell, at most, you're an impediment to gays, kind of a passive speed-bump on the road to equality. Has your particular state held any referendum votes on the issue and if so did you vote against gay marriage? Have you donated time or money to any anti-SSM campaigns? That's when you start sliding into being hateful.

Well, the beauty of the Canadian system is that we didn't waste time dicking around like that. Once same-sex couples got legal rights and benefits in 1999, the hop to actual gay marriage (first in most of the provinces, ultimately approved by the Feds) came in 2005. If our nearly-seven-year "experiment" with no negative results doesn't suggest anything to you, I have my doubts that you are seriously interested in "studying" (as opposed to just "delaying") the issue.

It is undeniably clear that you have no understanding of American Constitutional law, and the principles involved, or any particular knowledge of the fourteenth amendment, nor do you show any slightest inclination to learn about them.

You have utterly failed to establish that there is any gay right to marriage under the federal constitution, have no precedent to suggest, just a mindless conviction that you're right and by golly I should accept that on your say-so alone. 10,000 gay activists can't be wrong, now can they?

As I suggested before, Please consider starting a "Gay Marriage is undeniably Good and we must Have It Immediately everywhere with no thoughtful reflection" thread. This is not it.

My state does not have initiative. Kansas is one of the thirty-one states that ban gay marriage in it's constitution. We do have referendum, where the legislature proposes a law or amendment to the constitution and the people vote on it. 70% of voters approved the ban.

Six months or so before my state senator had asked me what I thought on the issue, and I told him about what I've told you here. He voted for it. Personally, I told him I wanted the referendum.

I did not vote in that election. I had broken my back three weeks earlier and in another part of the state than where I was registered. I was in a great deal of pain and did not have much of anything beyond praying for relief on my mind.

I've never donated to any anti-gay marriage group and in fact, in the 90's twice donated to gay rights groups in general issues. Do you not grasp that I'm a Libertarian? As a Libertarian activist our paths have crossed with gay activists, and I assure the friends I made then are my friends now. Knowing me personally (rather than spewing invective at anyone who disagrees) allows them to know I do not have "hate fags" as a motivation.

As I consider your posts beyond any real discussion of the legal issues involved, I am calling them a highjack of the thread and am not responding to any further posts of yours.

[Bricker]

Originally Posted by John Mace

But, if in the course of 200 years, a condition which was long considered a mental illness and to have a corrupting moral influence is now considered a simple matter of biology with no "illness" associated with it, then does it not make sense to interpret the constitution in a way that reflects that knowledge? Knowledge that simply wasn't available to our earlier citizens?

Imagine that our constitution had been written in the 16th century, when many Western Europeans believed in witches and witchcraft. Would it be wrong for an 18th century judiciary to overturn laws which condoned the killing of someone for practicing witchcraft even if much of the citizenry still believed witchcraft to exist?

It does violence to our notions of self-government, John. If the judiciary can substitute its judgement on the wisdom of a law for the legislature, then they have become the super-legislature.

Like it or not, a sovereign nation has the power to put people to death for practicing witchcraft. I don't like the idea of putting people to death for any reason, much less witchcraft, but the sine qua non of sovereignty is the power to create and impose a legal system.

That change -- abolishing laws against witchcraft -- has to come from the legislature. Or the claim that the people, through their elected representatives, hold the reins of government is simply a fiction.

[John Mace]

Originally Posted by Bricker

It does violence to our notions of self-government, John. If the judiciary can substitute its judgement on the wisdom of a law for the legislature, then they have become the super-legislature.

Like it or not, a sovereign nation has the power to put people to death for practicing witchcraft. I don't like the idea of putting people to death for any reason, much less witchcraft, but the sine qua non of sovereignty is the power to create and impose a legal system.

That change -- abolishing laws against witchcraft -- has to come from the legislature. Or the claim that the people, through their elected representatives, hold the reins of government is simply a fiction.

Those are all good points, and I am certainly on record here as being strongly behind the idea of self-government being paramount. However, I'm thinking of the role of the judiciary here. If their role is to determine what constitutes a protected or suspect class, shouldn't they use science to do that?

But perhaps you don't think that should be the role of the judiciary. Frankly, I'm not so sure myself.

ETA: Can you comment on post #96? You might be one of the few posters here who could answer that question.

[David42]

Originally Posted by Bricker

It does violence to our notions of self-government, John. If the judiciary can substitute its judgement on the wisdom of a law for the legislature, then they have become the super-legislature.

Like it or not, a sovereign nation has the power to put people to death for practicing witchcraft. I don't like the idea of putting people to death for any reason, much less witchcraft, but the sine qua non of sovereignty is the power to create and impose a legal system.

That change -- abolishing laws against witchcraft -- has to come from the legislature. Or the claim that the people, through their elected representatives, hold the reins of government is simply a fiction.

If a state made laws against witchcraft, or it's modern name, wicca, and the Supreme Court struck it down as a violation of first amendment religious freedom, wouldn't you agree with that?

[Bryan Ekers]

Originally Posted by David42

It is undeniably clear that you have no understanding of American Constitutional law, and the principles involved, or any particular knowledge of the fourteenth amendment, nor do you show any slightest inclination to learn about them.

Oh, I don't think you can correctly draw any of those conclusions. I'm merely an educated layman, to be sure, but I think I have a fair handle on the processes involved, including the use of legal categories and legal prongs and whatnot. I merely don't care as much about wading into the legal minutiae to find a justification for a particular position.

Actually, looking down your post, I can see a few misplaced assumptions.

... just a mindless conviction ... Please consider starting a "Gay Marriage is undeniably Good and we must Have It Immediately everywhere with no thoughtful reflection" thread ...

You assume I've given this issue no serious thought or reflection? Please. That's a rather pathetic and obvious attempt at dismissal. Suppose I'd mulled the issue over for a year before coming to my current position? Or five years? Or ten? You have no way of knowing, but by the standard you're proposing any timespan less than two generations is not enough to evaluate the potential risks.

My state does not have initiative. Kansas is one of the thirty-one states that ban gay marriage in it's constitution. We do have referendum, where the legislature proposes a law or amendment to the constitution and the people vote on it. 70% of voters approved the ban.

Six months or so before my state senator had asked me what I thought on the issue, and I told him about what I've told you here. He voted for it. Personally, I told him I wanted the referendum.

I wouldn't have, myself. I don't think civil rights should be a majority-rule situation, and I believe I cite historical example in support. I'm not keen on direct votes for constitutional amendments, either, but that's a more general issue. It's been tried twice in my province in my life, and it wasn't fun either time.

I did not vote in that election. I had broken my back three weeks earlier and in another part of the state than where I was registered. I was in a great deal of pain and did not have much of anything beyond praying for relief on my mind.

I've never donated to any anti-gay marriage group and in fact, in the 90's twice donated to gay rights groups in general issues. Do you not grasp that I'm a Libertarian?

I hadn't grasped anything about you. It's not like I keep a Doper scorecard.

As a Libertarian activist our paths have crossed with gay activists, and I assure the friends I made then are my friends now. Knowing me personally (rather than spewing invective at anyone who disagrees) allows them to know I do not have "hate fags" as a motivation.

As I consider your posts beyond any real discussion of the legal issues involved, I am calling them a highjack of the thread and am not responding to any further posts of yours.

Well, you invited me to label you "a hateful enemy of gays", and I declined, instead describing certain conditions that would make me reconsider. Then you got all indignant. Yes, I guess it's best that you take a break from me.

[John Mace]

Originally Posted by David42

If a state made laws against witchcraft, or it's modern name, wicca, and the Supreme Court struck it down as a violation of first amendment religious freedom, wouldn't you agree with that?

To be fair, and since I was the creator of that hypothetical, let's just say that a US Constitution written in the 16th century would not have had a clause protecting religious freedom.

But you're right about laws written under the actual US constitution.

[Bryan Ekers]

Originally Posted by John Mace

Those are all good points, and I am certainly on record here as being strongly behind the idea of self-government being paramount. However, I'm thinking of the role of the judiciary here. If their role is to determine what constitutes a protected or suspect class, shouldn't they use science to do that?

Do they? Does SCOTUS hold hearings akin to congressional testimony where experts are invited to offer up opinions and demonstrations on the current state of science? Just looking over the recent activities of the subcommittee of Research and Science Education, to pull one promising-sounding example, shows testimony from witnesses in the scientific community. I assume other committees do the same, to various degrees. Does SCOTUS have the time or resources to pursue independent scientific inquiry?

Just curious. I can see why they would not, limiting themselves to purely legal arguments.

[Bricker]

Originally Posted by David42

If a state made laws against witchcraft, or it's modern name, wicca, and the Supreme Court struck it down as a violation of first amendment religious freedom, wouldn't you agree with that?

Yes, of course.

But I interpreted the hypo to provide for some kind of witchcraft language in the Constitution itself.

[John Mace]

Originally Posted by Bryan Ekers

Do they? Does SCOTUS hold hearings akin to congressional testimony where experts are invited to offer up opinions and demonstrations on the current state of science? Just looking over the recent activities of the subcommittee of Research and Science Education, to pull one promising-sounding example, shows testimony from witnesses in the scientific community. I assume other committees do the same, to various degrees. Does SCOTUS have the time or resources to pursue independent scientific inquiry?

Just curious. I can see why they would not, limiting themselves to purely legal arguments.

When the issue of SSM comes before the SCOTUS, I would expect the attorneys arguing in favor would present such scientific/medical evidence as exists that homosexuality is an immutable trait. So, no, they won't hold hearings outside of the context of a specific case, but they will do so when the case is argued before them.

[Bricker]

Originally Posted by John Mace

Are there any SCOUTS justices on record as not accepting the idea of a "suspect class" in the first place? I would suspect (pun intended) that Thomas falls in that category. Maybe Scalia. But not anyone else.

So far as I know, every current SCOTUS member accepts the idea of differing levels of scrutiny and certain suspect classes.

[John Mace]

Originally Posted by Bricker

So far as I know, every current SCOTUS member accepts the idea of differing levels of scrutiny and certain suspect classes.

Interesting! I would never have guessed that.

[Bryan Ekers]

Originally Posted by John Mace

To be fair, and since I was the creator of that hypothetical, let's just say that a US Constitution written in the 16th century would not have had a clause protecting religious freedom.

It would probably also be "pro" on the cruel and unusual punishments issue.

[David42]

Originally Posted by John Mace

When the issue of SSM comes before the SCOTUS, I would expect the attorneys arguing in favor would present such scientific/medical evidence as exists that homosexuality is an immutable trait. So, no, they won't hold hearings outside of the context of a specific case, but they will do so when the case is argued before them.

Appellate courts before the time of Louis Brandeis had never really heard of such a thing. By briefing the Supreme Court with the expert opinions of professionals in other fields, he is credited with creating the idea of presenting such evidence in an appellate case. Such briefs are commonplace now, but the lawyers still know what a "Brandeis brief" is. It blurs the line between appellate practice and trial practice if you ask me, but I'm not really against it.

He also almost single-handedly created our right to privacy jurisprudence.

[Stratocaster]

Originally Posted by Bricker

So far as I know, every current SCOTUS member accepts the idea of differing levels of scrutiny and certain suspect classes.

Bricker, do you disagree with their protocols, which consider these standards? I'm not sure I'm following you. Do you believe that these standards are reasonable, but homosexuality as a suspect class would miss them? Or that the standards are examples of "doing violence to self-government"?

I'm no expert, but it seems self-evident that homosexuality would meet the standard for a suspect class. I'm missing where you'd see the activism in such a conclusion, unless you think that whole protocol is an example of activism.

[Bryan Ekers]

Originally Posted by David42

Appellate courts before the time of Louis Brandeis had never really heard of such a thing. By briefing the Supreme Court with the expert opinions of professionals in other fields, he is credited with creating the idea of presenting such evidence in an appellate case. Such briefs are commonplace now, but the lawyers still know what a "Brandeis brief" is. It blurs the line between appellate practice and trial practice if you ask me, but I'm not really against it.

He also almost single-handedly created our right to privacy jurisprudence.

Interesting, but the scientific information is still formatted for lawyers and presented by them. Does SCOTUS ever invite (or subpoena) testimony from nonlawyer expert witnesses directly?

[Bryan Ekers]

Originally Posted by Stratocaster

Bricker, do you disagree with their protocols, which consider these standards? I'm not sure I'm following you. Do you believe that these standards are reasonable, but homosexuality as a suspect class would miss them? Or that the standards are examples of "doing violence to self-government"?

I'm no expert, but it seems self-evident that homosexuality would meet the standard for a suspect class. I'm missing where you'd see the activism in such a conclusion, unless you think that whole protocol is an example of activism.

Well, I gather it could also hypothetically be influenced by people menacing Justices with severed horse heads, i.e. (assuming I now understand the point of that hypothetical) the individual justices are prone to interpret what standards are being met while being influenced by their personal experiences and opinions and, from an outsider's perspective, will sometimes yield a favourable result and sometimes not. These nine people (or really just one or two of them if the vote is close) occasionally hold the massive power to nullify the actions of the legislative branch. That doesn't strike me as something to be overly concerned about (as long as the occasions are relatively rare) but mileage varies.

I'm not personally aware of any instance where a Justice was coerced (or eliminated, Pelican Brief style), but I suppose it could happen. It could happen at most any level of government.

[David42]

Originally Posted by Bricker

So far as I know, every current SCOTUS member accepts the idea of differing levels of scrutiny and certain suspect classes.

There might be some confusion here as to what the board thinks.

I believe that Bricker is saying that all nine justices substantially agree on the methodology of analysis in equal protection jurisprudence.

I do not think he is passing on a question of whether all nine justices are substantially in agreement on whether any particular group is a suspect class, or otherwise entitled to a particular level of scrutiny in that analysis. The answer here is yes, they have differing ideas. Yes Scalia and Thomas would be more prone to not see gays as a suspect class, I would think.

[Bryan Ekers]

'The board" ? Only five people have posted to this thread in the last ~28 hours.

[Bricker]

Originally Posted by David42

There might be some confusion here as to what the board thinks.

I believe that Bricker is saying that all nine justices substantially agree on the methodology of analysis in equal protection jurisprudence.

I do not think he is passing on a question of whether all nine justices are substantially in agreement on whether any particular group is a suspect class, or otherwise entitled to a particular level of scrutiny in that analysis. The answer here is yes, they have differing ideas. Yes Scalia and Thomas would be more prone to not see gays as a suspect class, I would think.

Yup.

[Bryan Ekers]

Well, their differing ideas at least ensures a variety of opinion and interpretation of a given issue. What mechanism, if any, should be available to the citizen to challenge a long-standing (or even not-so-long-standing) law that he claims is unjust? Ride it out and hope the next legislative session will repeal it?

[Stratocaster]

Originally Posted by David42

There might be some confusion here as to what the board thinks.

I believe that Bricker is saying that all nine justices substantially agree on the methodology of analysis in equal protection jurisprudence.

I do not think he is passing on a question of whether all nine justices are substantially in agreement on whether any particular group is a suspect class, or otherwise entitled to a particular level of scrutiny in that analysis. The answer here is yes, they have differing ideas. Yes Scalia and Thomas would be more prone to not see gays as a suspect class, I would think.

But, Bricker, your comments on "violence to self-government" tip your hand (I think)--are you in agreement, then, with Scalia and Thomas? Why? Or do I misinterpret? Have they, the justices, tipped their hands? Why might they not see a suspect class here?

If you'd rather not share, no biggie. I am genuinely interested (though I may not see an answer till I'm back from a business trip; leaving shortly).....

[Bricker]

Originally Posted by Stratocaster

But, Bricker, your comments on "violence to self-government" tip your hand (I think)--are you in agreement, then, with Scalia and Thomas? Why? Or do I misinterpret? Have they, the justices, tipped their hands? Why might they not see a suspect class here?

If you'd rather not share, no biggie. I am genuinely interested (though I may not see an answer till I'm back from a business trip; leaving shortly).....

I do see a suspect class here.

But not because of anything new. I have come to believe, from a factual standpoint, that if you apply the famous "Footnote Four" from Carolene Products, the result is that gays are entitled to at least intermediate scrutiny.

[David42]

Originally Posted by Bricker

I do see a suspect class here.

But not because of anything new. I have come to believe, from a factual standpoint, that if you apply the famous "Footnote Four" from Carolene Products, the result is that gays are entitled to at least intermediate scrutiny.

Further development of the footnote four idea has resulted in qualifying such classes with characteristics such as: a) an immutable distinguishing characteristic;
b) economic disadvantage; and c) political powerlessness.

Let's compare women/gender (intermediate) and black/race (strict) with gay:

a) an immutable distinguishing characteristic: There is nothing to see with a gay that makes them gay. As a woman and a black can both usually be determined to be so with not much more than a glance, these classes both have immutable distinguishing characteristics as classes. Gays claim near 100% genetic causes, but such a claim has yet to be proven. There is no genetic "gay" test as there is for other genetic issues. You can't go to the doctor and ask him to screen you for homosexuality.

There is one way and only one way to know for sure if a person is gay, and that is if they tell you they are. You could possibly surmise that someone is gay from their behavior, but that is not true as a class.

Are you willing to create a suspect classification based on the say-so of people claiming to be in that class alone? Whereas when a woman or a black walks into the courthouse to sue for discrimination, we can be sure, because of immutable distinguishing characteristics, they are what they claim they are. Now I guess you're saying it's a given based on a person's say-so. How will we detect a false gay rights lawsuit for a million dollars once we create this classification? I'm not gay but I say I am, now pay.

b) economic disadvantage: there can be no denying that nearly all blacks used to be poor. Even today we pay less to women than we do men for the same job at the same company. In comparison, gays as a group have been found to have a median income of around 50k while the rest of the country is earning 35k.

c) political powerlessness: In my view the most debatable. There was a time when gays were fairly powerless politically in this country. Nevertheless, that began to change when they got organized. We don't view women as politically powerless or blacks today. They both gained political power.

Personally, I don't count a group as politically powerless if they haven't tried to influence the political process; being powerless and failing to avail yourself are two different things. Once gays became political, they began to gain clout almost immediately (in comparison to blacks, for whom it took almost a hundred years of political complaining despite organizing themselves, although they did have some success along the way).

Today gays are succeeding at gaining political clout. Half the country supports them even as far as gay marriage. We have seen openly gay people in Congress and a lot more in state legislatures. Gays have been successful in several states getting laws changed to their liking. All without being designated a suspect class by the courts beforehand. In comparison, blacks got little done without the courts first stepping in. Women had an easier time than the blacks did, though with the political process; the right to vote was a political victory; desegragation required court action.

There are many laws in this country that protect gays that were passed by the ordinary political process.

I do not find, in comparison to precedent classes, that gays have either an immutable characteristic, are economically disadvantaged, or are politically powerless.

[Northern Piper]

Originally Posted by Bryan Ekers

Hey, I can only hope that what SCOTUS eventually does with the issue is on the side of justice. The Supreme Court of Canada (SCC) made that call way back in 2005 and nothing bad happened as a result.

Minor qualification, Bryan: the SCC did not hold that same-sex marriage was constitutionally required; rather, it held that same-sex marriage was not contrary to the Constitution. Same-sex marriage was then implemented nationally by the Civil Marriage Act passed by Parliament.

[David42]

Originally Posted by Northern Piper

Minor qualification, Bryan: the SCC did not hold that same-sex marriage was constitutionally required; rather, it held that same-sex marriage was not contrary to the Constitution. Same-sex marriage was then implemented nationally by the Civil Marriage Act passed by Parliament.

Somehow it is no surprise that Bryan's "cite" to a precedent turns out to not be a cite to the proposition that gays have a right to marry, after all.

[stpauler]

Is there a reason you're hung up assuming that all justices use precedent? Scalia and Thomas are originalists and don't believe in stare decisis to make their decisions. Scalia even said "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right."

Originally Posted by David42

Further development of the footnote four idea has resulted in qualifying such classes with characteristics such as: a) an immutable distinguishing characteristic;
b) economic disadvantage; and c) political powerlessness.

A) Immutable. Can't change being gay.

On August 4 the American Psychological Association adopted a resolution that says there's no scientific evidence therapy can make gay people straight. In a review of 83 English-language, peer-reviewed studies from 1960 to 2007, an APA task force found nothing to suggest that therapy could steer a member of a sexual minority (a term that encompasses all varieties and degrees of same-sex attraction) toward heterosexuality. Moreover, the task force found insufficient evidence to illuminate whether such therapy might in fact do harm.

B) Economic disadvantage. Not sure where your claim comes from since you didn't cite anything. But:
Report: Gay couples similar to straight spouses in age, income
The couples had an average age of 52 and household incomes of $91,558, while 31% were raising children. That compares with an average age of 50, household income of $95,075 and 43% raising children for married heterosexual couples.
Hmm, actually looks like GLBT families are making less actually.
Here's another cite:
Interestingly, Clark found that “[g]ay males earn less than straight males, often much less. Meanwhile, lesbians earn more than straight females.”

So it looks like B is also showing proof.

And C: Political powerlessness is a no-brainer. GLBTs are completely disproportionately represented in the US. Of the 535 members of congress, three were gay in the 111th. 0.56% is quite politically powerless. And public polls are meaningless when laws have been enacted. Up until a couple months ago, it was completely legal to be kicked out of the US armed forces for saying that you were GLBT.

And frankly, statements like this:

Originally Posted by David42

Once gays became political...

almost sounds like you are assuming gays are a new thing that haven't been around and have never voted before.

[Northern Piper]

Originally Posted by David42

Somehow it is no surprise that Bryan's "cite" to a precedent turns out to not be a cite to the proposition that gays have a right to marry, after all.

There is ample court precedent in support of that proposition in Canada. By the time Parliament enacted the Civil Marriage Act, the courts in 10 of the 13 provinces and territories had ruled that same-sex marriage was required by the Constitution. The three exceptions were Alberta, Prince Edward Island and Nunavut. It's just that the Supreme Court did not rule on that particular point in the Marriage Reference.

[Northern Piper]

Just to follow-up on this point, the 2004 Supreme Court of Canada reference decision was an advisory opinion, requested by the federal government, a process which is permitted under our Constitution. However, while reference decisions are strongly persuasive, they are not binding in law. That was one of the reasons the Court declined to answer Question 4, whether same-sex marriage was constitutionally required:

Originally Posted by Supreme Court headnote

Finally, an answer to Question 4 has the potential to undermine the government’s stated goal of achieving uniformity in respect of civil marriage across Canada. While uniformity would be achieved if the answer were “no”, a “yes” answer would, by contrast, throw the law into confusion. The lower courts’ decisions in the matters giving rise to this reference are binding in their respective provinces. They would be cast into doubt by an advisory opinion which expressed a contrary view, even though it could not overturn them.

By declining to answer Question 4, the SCC left in place the 10 court decisions across the country which had held that same-sex marriage was constitutionally required.

[David42]

Originally Posted by Northern Piper

There is ample court precedent in support of that proposition in Canada. By the time Parliament enacted the Civil Marriage Act, the courts in 10 of the 13 provinces and territories had ruled that same-sex marriage was required by the Constitution. The three exceptions were Alberta, Prince Edward Island and Nunavut. It's just that the Supreme Court did not rule on that particular point in the Marriage Reference.

Not being Canadian I never concerned myself with those cases, I would have to read them.

Nevertheless it is still true that the cite Bryan Ekers proferred did not prove the principle he said it did.

[Try2B Comprehensive]

Originally Posted by David42

My state does not have initiative. Kansas is one of the thirty-one states that ban gay marriage in it's constitution. We do have referendum, where the legislature proposes a law or amendment to the constitution and the people vote on it. 70% of voters approved the ban.

Being Canadian, Brian Ekers might not realize Kansas is ground zero in the effort to force religion into government, among various other hard-right goals. It'd take some digging to provide specifics, but I'm sure we could fill a whole thread discussing it. It is like that population is cut off from the rest of America to some degree and has a huge religious chip on its shoulder. For example, see Kansas Board of Education removes references to evolution from school curriculum.

/back to lurking

[David42]

Originally Posted by Try2B Comprehensive

Being Canadian, Brian Ekers might not realize Kansas is ground zero in the effort to force religion into government, among various other hard-right goals. It'd take some digging to provide specifics, but I'm sure we could fill a whole thread discussing it. It is like that population is cut off from the rest of America to some degree and has a huge religious chip on its shoulder. For example, see Kansas Board of Education removes references to evolution from school curriculum.

/back to lurking

'On February 13, 2007, the Board voted 6 to 4 to reject the amended science standards enacted in 2005. The definition of science was once again returned to "the search for natural explanations for what is observed in the universe." '

http://en.wikipedia.org/wiki/Kansas_evolution_hearings

Please do keep in mind that Bryan Ekers was challenging me personally for my role in Kansas becoming a non-gay marriage state.

I responded by explaining what role I had in the process, which was a full explanation of the issues involved to one state senator and not voting in the election.

I don't see the point in trying to prove that Kansans voted for no gay marriage because of being religious freaks by bringing up the vote of the school board on evolution. I can guarantee that at least one state senator took seriously a non-religious view in settling the question.

At any rate, what the board of education did in 2005 with evolution/I.D./creationism was very very controversial. It really was a fluke of electing too many religious conservatives to the board (vote 6-4). Many Kansans were opposed. And as you can plainly see, 4 of the 6 who voted for the change were removed from office by the voters the first chance they had. It is largely common knowledge that the relevant voters did so because they were outraged at the evo/I.D./creationist thing.

It is not a very fair debating tactic to bring up the Kansas school board without also showing what the people of Kansas did in response. With that in mind, one could also argue that Kansas is ground-zero for eliminating religious freaks trying to take over our schools, and thus is more progressive than your state. But that's not fair if your state had never tried it to begin with.

Next, will you argue that Westboro/Phelps family are representative of Kansans in general? it's like trying to argue that California is ground zero for insane race war theories because of Charles Manson. Is the Manson Family representative of Californians in general?

[John Mace]

Originally Posted by Bricker

I do see a suspect class here.

But not because of anything new. I have come to believe, from a factual standpoint, that if you apply the famous "Footnote Four" from Carolene Products, the result is that gays are entitled to at least intermediate scrutiny.

By "anything new", do you mean anything new in the last decade, or anything new in the last 100 years? I'm seeing the latter.

[Bricker]

Originally Posted by John Mace

By "anything new", do you mean anything new in the last decade, or anything new in the last 100 years? I'm seeing the latter.

No, I think the last ten years have produced a slough of factual evidence that homosexuality is much less a choice and much more an innate characteristic. So that piece of factual information, applied to the criteria laid out in Footnote Four, support the application of a heightened scrutiny.

[John Mace]

Originally Posted by Bricker

No, I think the last ten years have produced a slough of factual evidence that homosexuality is much less a choice and much more an innate characteristic. So that piece of factual information, applied to the criteria laid out in Footnote Four, support the application of a heightened scrutiny.

Oh. I'd disagree on the timeframe, but that isn't really important.

And this goes back to my post about the court using scientific evidence when looking at the law, even if popular sentiment isn't accepting of the science. Seems to me you are now accepting my analysis of the 18th century court analyzing 16th century legislation whereas you rejected it before.

Not trying to set a trap or anything, but I am honestly confused.

[Bricker]

Originally Posted by stpauler

Is there a reason you're hung up assuming that all justices use precedent? Scalia and Thomas are originalists and don't believe in stare decisis to make their decisions. Scalia even said "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right."

Scalia and Thomas, eh?

But according to your own link:

Thomas, says Scalia, "doesn't believe in stare decisis, period."

"If a constitutional line of authority is wrong, he would say let's get it right," says Scalia. "I wouldn't do that."

I notice you left off the "I wouldn't do that," line from Scalia. You had to, since that gave lie to your claim that both Thomas and Scalia shared this view. You claimed they both didn't, linked to a quote from Scalia saying Thomas didn't, and excised the very next line, where Scalia affirms he does.

Why did you do that?

[stpauler]

Originally Posted by Bricker

Scalia and Thomas, eh?

But according to your own link:



I notice you left off the "I wouldn't do that," line from Scalia. You had to, since that gave lie to your claim that both Thomas and Scalia shared this view. You claimed they both didn't, linked to a quote from Scalia saying Thomas didn't, and excised the very next line, where Scalia affirms he does.

Why did you do that?

Probably because I stopped reading. Oops.

Here's more info on his opinion re: stare decisis though:

Criterion for following stare decisis should not be whether you think the decision is mistaken or not. The criteria should be how wrong it was.

Scalia uses three criteria in determining whether to overturn precedents:

1) Was the decision wilfully wrong?

2) Has the wrong ruling been generally accepted? (For example, Scalia thinks the incorporation doctrine, which uses the 14th Amendment to apply the Bill of Rights against state governments, is mistaken. That said, it is now so widely accepted that Scalia wouldn’t think about reversing it).

3) Does the existing precedent put me in the role of a legislator rather than a judge? On the abortion question, for example, Roe v. Wade establishes that laws placing “undue burdens” on women’s reproductive choices are unconstitutional. Scalia has no idea on how a judge can figure out whether something is an “undue burden” or not. Such questions should be left to legislative determination.

This quip is even more direct:

Life is too short: you can’t question everything in every case! “Do you want us to review Marbury every time? Go on to the next mistake.”

And:
On stare decisis (adhering to judicial precedent): The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the 'central holding.' It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version.
Planned Parenthood v. Casey, 505 U.S. 833 (1992) (dissenting).

The Court's statement that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'curb the discretion of federal judges is, of course, rhetoric rather than reality; no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.' The Court's temptation is in the quite opposite and more natural direction -- towards systematically eliminating checks upon its own power; and it succumbs. (
Ibid..

Today's extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.
Minnick v. Mississippi, 498 US 146 (1990) (dissenting).

[Bricker]

Originally Posted by John Mace

Oh. I'd disagree on the timeframe, but that isn't really important.

And this goes back to my post about the court using scientific evidence when looking at the law, even if popular sentiment isn't accepting of the science. Seems to me you are now accepting my analysis of the 18th century court analyzing 16th century legislation whereas you rejected it before.

Not trying to set a trap or anything, but I am honestly confused.

No, no -- I am saying that what should always be done, no matter the century, is apply the known facts to the existing law.

In your example, we imagined a penalty for witchcraft. Now, with modern understanding, we ask if we can simply erase that penalty by court decision. I said no: that this change would have to come from the legislature. That's because the text is very clear and to the point. If instead we imagine that the 16th century law didn't name witchcraft, but instead prohibited "...any exercise of supernatural power that can cause physical injury to another..." then it's a different story. We could imagine that for years, people were convicted using that language of witchcraft, because everyone knew that witch's curses can cause physical injury.

But with modern understanding, a court can hold a trial, and reach factual findings that witchcraft has no such power.

Do you see the distinction?

[David42]

Originally Posted by stpauler

Is there a reason you're hung up assuming that all justices use precedent? Scalia and Thomas are originalists and don't believe in stare decisis to make their decisions. Scalia even said "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right."

I will not hesitate to say that all the Justices are well aware of their power to ignore stare decisis and set new precedent. If you're claiming that Thomas never observes precedent, you're wrong. If you're trying to prove that none of the nine are ever in favor of overruling precedent, you're wrong again.

Originally Posted by stpauler

A) Immutable. Can't change being gay.

No study yet, even those that claim a genetic component is proved, has eliminated environment as a factor, that I know of. Because the media seems eager to trumpet initial findings, but slow to publish the stories about how they cannot be replicated, the public has a false impression of the immutability of gay. For instance, LeVay's work claiming a different brain structure for gays was widely announced in the media, but when it was roundly debunked wheb it came to peer review, there was a much lesser impact in the news. I first saw that as front-page headline news.

The story that his findings were wrong in the same newspaper was very short and buried in the back pages.

There are still gay activists today saying LeVay proved immutability!

The fact is there is no genetic test for gay, and thus no way, outside a person's claim, to prove someone is gay. creating a class that cannot be identified except for their own say-so is entirely judicially unprecedented to my knowledge. (Not counting overruled district courts.)

Originally Posted by stpauler

B) Economic disadvantage. Not sure where your claim comes from since you didn't cite anything. But:
Report: Gay couples similar to straight spouses in age, income
The couples had an average age of 52 and household incomes of $91,558, while 31% were raising children. That compares with an average age of 50, household income of $95,075 and 43% raising children for married heterosexual couples.
Hmm, actually looks like GLBT families are making less actually.
Here's another cite:
Interestingly, Clark found that “[g]ay males earn less than straight males, often much less. Meanwhile, lesbians earn more than straight females.”

So it looks like B is also showing proof.

Have a look at this:
http://downloads.frc.org/EF/EF08L43.pdf

Otherwise, are you expecting me to cry a river at learning gays only make 91k? Doesn't sound disadvantaged to me.

Originally Posted by stpauler

And C: Political powerlessness is a no-brainer. GLBTs are completely disproportionately represented in the US. Of the 535 members of congress, three were gay in the 111th. 0.56% is quite politically powerless. And public polls are meaningless when laws have been enacted. Up until a couple months ago, it was completely legal to be kicked out of the US armed forces for saying that you were GLBT.

And DADT was changed by the political process; Congress IS listening. As far as showing a politically disadvantaged group, it would be better to

Gays, for instance, have never, as a class, been denied the right to vote. Contrast blacks and women who had to fight for it.

Originally Posted by stpauler

And frankly, statements like this:
almost sounds like you are assuming gays are a new thing that haven't been around and have never voted before.

Honestly, it is a relatively new thing; not the practice of homosexual sex, that's as old as the hills. As a class of persons self-identifying as gay, it is fairly new. Pretty much before the late 19th century, homosexual behavior was lumped in with anything else as "perversion" that wasn't heterosexual married sex. Gays simply did not identify in a major way as "gay."

For instance, some activists point to ancient Greece or Rome as proof that homosexuals exist, not just as a class, but as an approved social class, but this is not true:

"The ancient Greeks did not conceive of sexual orientation as a social identifier, as Western societies have done for the past century."

http://en.wikipedia.org/wiki/Homosex...ancient_Greece

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