This doesn’t provide much nuance. Could you expand on it just a tad?
Have you just met Bricker for the first time? Cultural values should be reflected in laws, not by reinterpreting old laws that reflect past cultural values. If society’s values have changed then society should change the laws through the proper process. So it has to be re-written even if that’s a big job.
Were homosexual individuals treated as outcasts at the time? was there any real concern for public bathroom access or marriage equality?
Is it not equally possible that they craffted the law to include ‘sexual orientation’ as part of the class and simply didnt feel the need to call it out ‘seperately’?
You’re… seriously asking if homosexuals were widely discriminated against in the 1960s?
I think some people had the idea that if the government is permissive of or facilitates discrimination by private individuals, its the same thing.
If representative democracy seems to be moving us in the direction of justice and fairness, it’s a good path to be taking. If it stops doing so, we need to look for a different path. I’m interested more in the destination than the path we take to get there.
“Just as entitled”? No, in the same way that someone driving on I-40 to go shoot his ex-wife ought to be taken off the road, whereas I shouldn’t be. If you’re using the same law for poor ends, the ends delegitimize the means you’re using.
The system is functioning well if it’s moving us toward fairness and justice, and it’s functioning poorly if it’s moving us away from those values, as far as I’m concerned. When someone says that gay people should sit back and let their rights be trampled because they gained them in the wrong way, I have very little patience with that argument. The process does not legitimize the outcome; the outcome is a referendum on the process.
Yup.
The path matters, LHoD. If you build a highway into the jungle you make it just as easy to drive in as to drive out. Your flippant attitude towards a proper and defined process should be revolting to anyone who believes in proper governance.
Its an honest question - I know it seems much more prevelant in the mindset today - I have no honest idea of what the average mindset was then.
Again, though, you aren’t the only one who wants to define what “fairness and justice” look like. The reason we have a system is because there are a whole bunch of people who want that job. The value of standardizing the process is that an agreed-upon method for creating law is its own reward, and if you don’t accept the current method when you dislike the results, then neither will I when I don’t.
The current Senate rules disintegration is emblematic of this dissolution. Each side sees the other reject the process in favor of their desired outcome, and then feels free to breach it even more themselves . . . which, inexplicably, the first side regards as outrageous and licenses them to depart even further. Etc, etc.
I realize we can run this back to the point where Jefferson felt affronted that Burr openly campaigned for President, and likely can trace it to when Achilles slew Hector. But I argue that the results of this are not generally positive.
Also worth noting that the majority seems calculated to also require that Title VII protect gender identity claims. All the more reason for SCOTUS to take it. Thoughts on where Kennedy lands?
Look up sodomy laws and homosexuality being listed in the * Diagnostic and Statistical Manual of Mental Disorders*.
I think Kennedy would concur in the result here, but I don’t see him adopting the majority reasoning (or the Katzmann concurrence in the 2nd circuit). I bet there’s a five-justice majority opinion that preserves the result with a limited rationale that he’d join.
Sure. And I’ll listen to what other folks say, and I’ll evaluate whether a change in the system creates bigger problems than it solves, absolutely. But ultimately I gotta make that call for myself, and if a system is not working toward what I consider good ends, I’m not going to support that system. And I’m certainly not going to oppose the system that has, over the last several decades, achieved many of our society’s proudest moments, out of a nebulous sense that some day the legislature might be out in front of the judiciary. When that day comes, I’ll face that day.
CarnalK, whether you find me revolting is of less than no concern to me.
No. It’s not equally possible.
It’s not even close.
OK. But my point is that I believe you are factually wrong in your interpretation of how cultural values change. Not morality wrong or obtuse or of difficult political philosophy. Factually wrong in your description of the world. That’s a different argument than the ones you are dismissing. My argument is that you cannot distinguish between technological and cultural change on the factors you give. Whatever is applied to one must be logically applied to the other.
Is it perhaps worth noting in this discussion that laws against sodomy are still on the books in some places? Is that in any way relevant?
Bricker, you already told us that you agree with this on textual grounds. It was shown to you that it was sexual discrimination, and you said you agreed.
Have you gone back on this, or are you just singling out something that apparently has no bearing on whether the argument is correct or not?
I get that this is your pet issue. But you already know where we stand. And you claim you never argue moral issues, which you very much know this is. The law is silent on what the correct role of judges is, which means that we decide based on what we think is right–our morality.
This is just as true for you. I think that, if there is more than one possible interpretation, your duty to what you believe is right takes over. This holds for everyone. You think a judge’s duty is to Scalia’s “textual originalism.”
You will not convince anyone who isn’t already convinced. Especially not by taking on an issue where most of us agree with the outcome.
Fair enough - and yes, my original thoughts were clearly naive and not very well thought out as stated.
- but the laws themselves have now been struck down based on privacy - As there is no ‘right to privacy’ in the constitution, yet that same ‘right’ has been used for various other, similar, rulings. (Roe V. Wade, etc)
If the ‘right to privacy’ and the ‘equal protection clause’ can be extended to matters of sexual orientation - being used to strike down countless discriminatory practices - then is it not reasonable that ‘sex’ can be extended to ‘sexual orientation’ as a plain reading of the text without any other wording in Title VII or new laws being required? It seems quite the natural extension of the intent of the law as crafted.
Read absolutely literally, the First Amendment protects the right to sacrifice virgins to volcano gods and the Second Amendment protects the right to own nuclear weapons. But society and our legal system agree that the broad rights guaranteed by these amendments do have limits. So we can prohibit six year olds from driving cars and buying cigarettes.