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.
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.” ’
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?
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.
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.
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:
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).
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?
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.
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.)
Have a look at this:
Otherwise, are you expecting me to cry a river at learning gays only make 91k? Doesn’t sound disadvantaged to me.
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.
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.”
[/QUOTE]
(My emphasis)
Yet in comparison to Blacks we say no such thing. Immutability in race is a 100% certainty, with the possible exception of Michael Jackson.
With sex changes and hermaphrodites in the picture, I agree it’s not a 100% certainty of immutability. But I suppose someone who has sex-change surgery could elect to change back. “Keep those on ice, doc, just in case.”
But in the sense that a person born one sex is going to permanently stay that sex, gender is also 100% immutable. A hermaphrodite is also going to stay hermaphrodite.
Yet we find that there do exist people who one day self-identify as straight, and then later change to gay, and vice versa.
I am sure you are not willing to say that gay is immutable with the same force we say race or gender is immutable, are you?
My only claim was that stare decisis was not a foregone conclusion. So, you’re wrong in your assumption that I was wrong.
Except for the ones I have shown on peer-reviewed APA documentation? Ok. I think that those would be admissable whereas your speculation would be ignored with the handwaving.
Care to quote the relevent part? I don’t like to click on PDF downloads from the Family Research Council (which is a far from unbiased source).
DOMA is still alive and active.
Is voting the sole litmus test? No. Then your claim has a large hole in it.
Stopping slavery is a relatively new thing too. It’s a weasel word and really doesn’t help defend your claim.
Same-Sex Relationships in Early Civilization
Ancient evidence survives of kingdom-sanctioned, same-sex cohabitation, as in the tomb drawings of Niankhkhnum and Khnumhotep Evidence exists that same-sex marriages were tolerated in parts of Mesopotamia and ancient Egypt. Artifacts from **Egypt, for example, show that same-sex relationships not only existed, but the discovery of a pharaonic tomb for such a couple shows their union was recognized by the kingdom. **
Yes, I do. Maybe I wasn’t clear in painting my original hypothetical, but I hadn’t imagined an actual constitutional sanction of killing witches. Just a law against witchcraft with the penalty being death. And there needn’t have been a constitutional sanction because, as with homosexuality, everyone knew it existed and was bad. Same with the 14th. The idea that we would need to include protection of gays in the wording would have been absurd to 99.9% of the people in the US at the time.
Noted, and while I’m sure there’s a huge philosophical chasm between “you can make it legal” and “you can’t make it illegal”, in practice it doesn’t seem to have mattered.
The real significance of citing Canada as an “authority” is not that it need be cited in a corresponding SCOTUS decision, but rather that it should be cited as an authoritative example of:
-a technologically advanced liberal democracy with a competent court system
-implemented same-sex marriage some years ago
-and suffered no ill consequences, social or legal, as a result
Thus undercutting any notion that the issue must be “studied” for “two generations” (what, forty to fifty years?) which David42 suggested in this thread and magellan01 has suggested in earlier threads. It’s a conveniently far-off timeframe that the decision can be delayed indefinitely in the name of “caution.” Similar is the use of vague criteria like “disillusionment”.
Assuming a relevant case makes it to SCOTUS in the near future, either by an appeal of the 1st Circuit’s decision or some other pending litigation, I’ve no doubt that some of the justices can legally support a position pro, and some can legally support a position con. It’s not clear to me that any radically new constitutional interpretations have to be used for either and in fact we could start (and it looks like Bricker has already started) making predictions how the vote will go based on, I assume, partisan politics. Why pick Thomas in the horse-head intimidation example of a Justice whose vote must be swung to the pro-SSM side to break a tie, unless we’re assuming that his vote is a default “no” and the other Justices have split 4-4? I guess we’re to accept such a vote to likely split as Roberts/Scalia/Alito vs Ginsburg/Sotomayor/Kagan with Breyer/Kennedy being tossups. Will any Justice twist the Constitution, or ignore it, to rationalize an otherwise unsupportable decision he or she has already reached? Conceivably. It’s happened before, I’m sure, but my question of post #132 stands unanswered, asking for an alternative.
On reflection, the hypothetical example is actually kind of insulting, suggesting as it does that I might be okay with coercive means to get desired ends. I gather the lack of follow-up questions or comments means the predicted result did not occur.
So… it could go either way? The Justices will have within their discretion to vote pro or con and we’ll see how the tally goes?
Do we? What race is President Obama? And why?
Also, significantly, the path by which SCC became involved and the path by which SCOTUS will eventually become involved are quite different. It wasn’t some dissatisfied Canadian citizen contesting a law and clawing his way through the appeals process, but Parliament itself asking if the relevant legal changes were constitutional. SCC said “sure”, and in what I guess was their “wise philosopher-king” manner figured that religious institutions were not going to end up forced to perform same-sex marriages, an oft-repeated fear expressed by numerous Americans.
The will of the Canadian people was not destroyed in the process. Or if it was, I didn’t hear about it.
Well, just as a side-comment, I guess “gay” (and “straight”) are not immutable, in the sense that one could become utterly disinterested in sexual activity, be it with one’s own or the opposite gender. Old people, I guess, or those with depression, can lose all such interest. One can’t really get “tired” of having a race and settle into a neutral beige, but one could reach a point where all sexual interest evaporates and the issue of “gay or straight” becomes moot.
Just saying.
Well, I agree that observing stare decisis is not a foregone claim. If only you’d put it that way to begin with. As it was, it looked like a claim that Thomas utterly refuses to use precedent.
If you have a study that shows 100% immutability in a way comparable to race, please trot it out. it’s not handwaving to point out that these studies do not show “immutability” in the same way race is immutable; i.e., race has 0% environmental factor. Nevertheless, the most important part of my argument is the fact that there isn’t any test for gay and the only way we know any particular person belongs to this class is his say-so. Perhaps one day there might be a reliable genetic screening test for gay. The opinions of psychologists that there is no value in trying to change someone is not the same thing as cold hard facts of whether a gene or complex of genes causes gay with absolutely no environmental considerations.
It is you who handwaves away the fact that no study (unless you can produce one) accepted on peer review entirely eliminates environmental factors. Gay cannot be shown to be immutable to the same degree race can be.
It is all relevant. Read it or not as you choose. Perhaps not liking to click on links to information you do not like is one reason you are making the reasoning mistakes you are making.
I expect you not to make claims of bias unless you are willing to do so when a gay researcher comes up with gay evidence that would help your claim instead of hurting it. There are plenty of quotes within the paper I cited from gay activists themselves that show that overall, gays are not economically disadvantaged as a class.
Perhaps you are unaware that President Obama ordered the justice department to not defend DOMA? Are you saying gays do not have a sympathetic ear in the Whitehouse? Pro-gay legislation is frequently passed; the gay activists crow that it’s just a matter of time until the whole nation allows gay marriage, which doesn’t seem to square with political powerlessness.
Further, I never had a claim that voting rights is the sole litmus test; that is your strawman. It is one of several factors to consider.
various races have long been recognized, regardless of whether they were slaves or not. We did not wake up one day in the 1860’s and say, “Wow, I just noticed these slaves are a distinct group of blacks!” Indeed we justified slavery because they were a distinct group, not because it did not occur to us to identify the difference between whites and blacks.
You really ought to rethink this one, maybe?
Once again, I never claimed there was no homosexual behavior or even marriages. But it’s a modern construct to call them gay marriages. Your evidence here does nothing to show that gays were regarded as a distinct group, just a few examples of behavior.
In my Greece example, a gay marriage wasn’t seen as different from heterosexual ones in any major way. In both, the masculine role is complemented by the feminine role and that was the construct. “Two husbands” was unknown in Greece.
Further, pederasty (today gays want to draw a distinction and claim gays don’t do this, but then they keep pointing to a culture that was all about it to defend themselves) is what was not just accepted, but almost expected out of a “man.” This was a rite of passage. It was also expected that a man would go on and marry a woman after being sodomized as a boy. There just wasn’t a comparable “class” to modern gays.
I agree completely.
I gather, though, that sexual activity is not a critical issue to legal marriage. Two people who are both quadriplegic will not be engaging in sexual relations (at least by the Clintonian standard) but they can be legally married, if they are adults, not closely related by blood, and not already married.
And, as U.S. law currently stands, have differing (albeit nonfunctional) reproductive organs. Why this last aspect is important continues to escape me.