No, it doesn’t. Strict scrutiny applies to race and alienage classifications regardless of what right is burdened. That’s why, for example, strict scrutiny applies to racial classifications in government contracts, which are not a fundamental right (Adarand Constructors, Inc. v. Pena, 515 U.S. 200); public education, which is not a fundamental right (Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701); postsecondary education, which is not a fundamental right (Grutter v. Bollinger, Bakke, et al.); prison roommate assignments, which are not a fundamental right (Johnson v. California, 543 U.S. 499)… is that enough to be going on with?
Strict scrutiny is applied to laws burdening the exercise of fundamental rights via the Due Process Clause, not the Equal Protection Clause.
But thanks for “fighting my ignorance”. :dubious:
They don’t turn on any studies. The right is enjoyed by same sex couples or it isn’t.
As far as I know, SSM advocates have only cited studies to rebut claims that same-sex parenting somehow harms children. I haven’t cited any “pro-gay studies” and don’t intend to. You have a very irritating habit of ascribing other peoples’ views to posters indiscriminately. I neither know nor care whether same-sex parents are harmful to children because it’s irrelevant to the issue of whether same-sex couples can marry.
Here are two of the trial courts which found that marriage was a fundamental right which same-sex plaintiffs were entitled to.
I am not going through all the SSM cases for you. As I pointed out before, the Due Process argument is much weaker than the Equal Protection argument so I expect most of the courts ruling in favor of same-sex plaintiffs never reached it.
And the first circuit held in Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) that EP was entirely foreclosed, thus there is no question of what standard of review to apply, and since Windsor did not touch the same questions, it can only be held (if indeed this is correct) that it implemented heightened scrutiny for sexual orientation (not clear at all) it still said nothing about whether federal issues were still foreclosed.
From Mass v. USDHHS: (My Bold)
**Equal Protection.The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset byBaker v. Nelson,409 U.S. 810,93 S.Ct. 37,34 L.Ed.2d 65(1972). There, a central claim made was that a state’s refusal to recognize same-sex marriage violated federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question.Id.
Bakeris precedent binding on us unless repudiated by subsequent Supreme Court precedent.Hicks v. Miranda,422 U.S. 332, 344,95 S.Ct. 2281,45 L.Ed.2d 223(1975). FollowingBaker,“gay rights” claims prevailed in several well known decisions,Lawrence v. Texas,539 U.S. 558,123 S.Ct. 2472,156 L.Ed.2d 508(2003), andRomer v. Evans,517 U.S. 620,116 S.Ct. 1620,134 L.Ed.2d 855(1996),4but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.”Mandel v. Bradley,432 U.S. 173, 176,97 S.Ct. 2238,53 L.Ed.2d 199(1977) (per curiam).Bakerdoes not resolve our own case but it does limit the arguments toones that do not presume or rest on a constitutional right to same-sex marriage.
**
Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012)
And you have no opinion of McShane failing to follow that precedent? He also said this is matter for Rational Basis review since it is not Gender discrimination? He said it, not me.
OR is it possible that you do not understand that each case turns on its own facts? Do you not understand there may be different types of classification here, and that McShane faced different questions?
The point is SmithKline v Abbott doesn’t even involve a law being challenged. It is about juror discrimination.
But when a law is being challenged, the classification turns on the law itself. Thus what SmithKline holds is useful in another case of juror discrimination but cannot really be applied in a precedential fashion. It could be persuasive, though.
Moreover, SmithKline applies to fourteenth amendment Equal Protection jurisprudence what the Supreme Court only said was the case under the fifth Amendment.
Windsor, Syllabus: “2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”
This however, is not exactly the question before the court:
"Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state. " I have verified the same in multiple briefs of the parties, and this same question was asked from the district court through the appeals court and right into the Supreme Court. I have asked anyone to shed some light on how this is happening, but no-one offers an opinion or explanation. Why not ask under the fourteenth amendment? We know the fifth’s due process and the 14th’s equal protection overlap and sometimes concern each other, but are we seeing a merger in Windsor?
Now, this area of overlap is admittedly confusing.
Have a look at this overview:
In part, it says: (Bold is the text from the cited source, non bold is my comment specifically in our area of inquiry:
**Discrimination.—“Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.”66 At other times, however, the Court assumed that “discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.”67 **
At this juncture please note the 5th Amendment is applicable to the federal government whereas the 14th provides “No State shall…” And Windsor concerns what Congress has done, and not a state, except that a state has been contrary and has gay marriage. That’s why we cannot come under the 14th in Windsor.
The theory that was to prevail seems first to have been enunciated by Chief Justice Taft, who observed that the due process and equal protection clauses are “associated” and that “*t may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. . . . [Due process] tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.”68
I suppose it makes sense that the overlap in either or both of two ways: Either when the feds and state have acted in concert, thus invoking both, (but the fifth is applicable to the states, too) or when we have an EP situation the fifth was meant to protect as well, and only the federal government acts.
** Thus, in Bolling v. Sharpe,69 a companion case to Brown[p.1357]v. Board of Education,70 the Court held that segregation of pupils in the public schools of the District of Columbia violated the due process clause. “The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.**
So, the fifth Amendment here is similar, but not identical to 14th Amendment EP, and not interchageable. EP is more explicit than any equality protection the due process clause has.
**“Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.
“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”**
So what applies to the states applies to the feds, more or less.
But now we hear that 14th Amendment EP jurisprudence is the same as fifth Amendment jurisprudence after all:
“Equal protection analysis in the Fifth Amendment area,” the Court has said, “is the same as that under the Fourteenth Amendment.”71 So saying, the court has applied much of its Fourteenth Amendment jurisprudence to strike down sex classifications in federal legislation,72 reached classifications with an adverse impact upon illegitimates,73 and invalidated some welfare assistance pro[p.1358]visions with some interesting exceptions.74 However, almost all legislation involves some degree of classification among particular categories of persons, things, or events, and, just as the equal protection clause itself does not outlaw “reasonable” classifications, neither is the due process clause any more intolerant of the great variety of social and economic legislation typically containing what must be arbitrary line–drawing.75 Thus, for example, the Court has sustained a law imposing greater punishment for an offense involving rights of property of the United States than for a like offense involving the rights of property of a private person.76 A veterans’ law which extended certain educational benefits to all veterans who had served “on active duty” and thereby excluded conscientious objectors from eligibility was held to be sustainable, it being rational for Congress to have determined that the disruption caused by military service was qualitatively and quantitatively different from that caused by alternative service, and for Congress to have so provided to make military service more attractive.77
So anything we learn under Windsor under the fifth Amendment must also apply to the states.
What did we learn in Windsor?
Well, the problem is simply put, conflicting definitions of marriage at the state and federal level. New York has said YES, two lesbians are legally married. The Federal Government under DOMA said NO, they are not.
Again, simply put, anyone can draw from Windsor that in this case at least, the state controls the definition and the federal government must follow. It is also equally easy to see how there is invidious discrimination because the federal government had never cared before, but now, clearly associated with the prospect of gay marriage, they have to jump in and try to stop it.
So, no problem, it is easy to think. What goes for the feds goes for the states. Nevertheless it is not as easy as that.
Let’s try to convert Windsor’s problem to a purely state problem:
Windsor: The state says Yes and the Feds say No.
Windsor converted to a state problem: The state says YES, and the state says NO. Now, Marley’s Oregon case and Hollingsworth may get eerily similarin that the state says yes to civil unions but no to marriage for same sex couples, which is kind of like the state saying yes and the state saying no at the same time.
But what state with an SSM ban alone is saying anything like YES and NO at the same time?
You’re standing on the notion that prior to 1990 all marriage cases discussing the right to marry included SSM?
Your really need to prove that. If you do not, I am disregarding you as disruptive and having no contention to contribute anything of merit.
Perhaps NEVER addressed you say? It was addressed! Allow me to fight your ignorance please:
BAKER v NELSON was an SSM case and proves anything the Supreme Court said about marriage excludes SSM. I have shown you some state court cases–which you fail to address-- that hold it is one man and one woman, and specifically.
Baker came up in 1971. Loving, before it, was handed down in 1967. It was a unanimous 9-0 decision. Four years later, six of the nine Loving justices (isn’t the pun rich in a discussion of SSM? If they were so Loving, why didn’t they all marry?)
were on the court for Baker. The Baker court refused certiorari. However, it doesn’t take 7 justices to grant cert., so we can’t claim those six weren’t enough to grant cert. In FACT, it only takes four justices to grant cert. So, a minimum of six Baker justices must have agreed that Loving did not apply to SSM.
In fact, the argument you advance is the precise exact argument the plaintiffs in Baker had. And the answer? You’re wrong.
If you stick to your insistence on ignorance which is beyond mere vincible ignorance but is becoming very well maintained ignorance, I’m not discussing anything more with you. You can think what you think.
You can think what you think, you’re entitled to that, and you can say in your opinion Baker was wrong, or whatever, but you cannot say it is a fact that the Supreme Court (or even more ridiculous, any court at all) has had this question before 1990. They did, and I have MORE than satisfied your demand for proof.
Wrong. It applies to both “suspect classifications” and/or whether a fundamental right is involved. If either is true, then strict scrutiny under EP is applied. A failure to apply strict scrutiny means there is no suspect classification in the law AND there is no fundamental right involved.
A lot of this is answered in post 162, please apply it.
You’re welcome. How about we set out to fight our own ignorance together? I ain’t proud. I never stopped being a law student, and no-one knows everything.
Right. But some people think the APA overruled Baker, somehow.
Well, if you know someone else is wrong, why don’t you say so? there’s such a thing as tacit agreement–which in this case exists where your goal isn’t ummm, “fighting ignorance” but instead forming a coalition to shout me down. You may not be doing this knowingly, but do you indeed also complain to pro-gay SSM posters when they say something wrong, or let it slide because they have the same goal as you, proving someone else wrong? How about we fight everyone’s ignorance, even people coming to your same conclusion with mistaken reasoning?
Please take the time to tell me now whether you disagree with some other poster on any of these issues. If you don’t, I’ll assume tacit agreement. Or better yet, take it up with them.
I’ll have a look and probably have some questions.
In fact I have some now, being able to know somewhat what they must contain:
How did these courts come to a conclusion that Windsor represents a doctrinal change warranting strict scrutiny, or independently come to a conclusion there is such a right when so much says No? Cause the controversy over Windsor is much more soundly described as whether to apply heightened scrutiny instead of rational basis. I’m seeing support for either claim in Windsor, and the Windsor court didn’t much clarify.
Showing me two is reasonable enough, I did not ask you for all, just some.
I see the core of our disagreement is that I see it the other way around–EP doesn’t work at all, and Due Process stands a chance.
If you want a little treasure hunt, I’ll tell you there is something I deliberately said wrong–and while you guys are all harping over what I have right and saying it’s wrong, none of you seem able so far to catch what I deliberately said wrong.
This is in use as a tool to help me discern attitudes and knowledge. if I said something even I agree is deliberately wrong, why haven’t you guys caught it? After a fair chance, I’ll tell you what it is. But it doesn’t change much of anything.
But you are being much more reasonable now, and I thank you for it.
I could make this issue more clear. An already recognized right does not turn on science, ever.
However, when the question is the initial grant of a right, then knowing the facts in order to decide whether to grant or withhold the right, and science can be helpful… That’s why I would want study.
No, sorry. But the cases on point are confusing and tend to conflate EP and fundamental rights due process theories so I can see why you didn’t understand.
I don’t know if someone else is wrong, although I corrected Antinor for you on the previous page. I am saying these studies are only relevant to rebut claims of harm to children, which is not a consideration here.
Actually, Not all that Bright, I had missed the last few exchanges on page three with Antinor. My use of tacit agreement is mistaken and unwarranted in your case.
Are you asking about McShane not following the 1st circuit for precedent? If so, I would say that since he’s not in the 1st circuit, it’s not precedent for him. From my reading, it appears that would have used heightened scrutiny, but didn’t because Smithklein wasn’t yet final. (Although he also says that it really doesn’t matter, since the law couldn’t even withstand rational basis)
From what I gather, what is actually happening is traditional marriage defenders are using heterosexual studies to say “we know this is good, but we’re not so sure about the rest.”
When SSM arguments began in earnest, they had made a mistake, which was to compare gays to those studies, which was unfair.
But the core problem I have with the studies on gay parenting and the heterosexual studies is that we know the heterosexual family studies are accurate to a very high degree because many of them used the most rigorous scientific standards possible. It is easy to random sample heterosexual families and get a representative sample.
But same sex headed families have some good results, just not up to the same standards. The use convenience sampling and some of them weren’t worth the paper they were written on except maybe to seek funding for a better study, which is a way snowball studies are often used. A researcher tries to get people interested in finding out more at the start by doing the cheapest, easiest studies.
We know there is a good reason why–and it is the only reasonable fact we can glean from the NTFS, the infamous Regnerus study–out of 1500 subjects, only one was raised through 18 years by a same sex couple.
I agree we can’t draw much from Regnerus’ one kid, but he did happen to show some negative results. The criticism was unwarranted because Regnerus said from the start this was weak, and to draw any conclusion at all he was forced to look at gay single parents and other methodological problems. he said it wasn’t the highest standards and was flawed.
And even though the gay studies I have read likewise admit all their methodological flaws (Keep in mind, peer review includes peer agreement on the recognition of flaws, too) and worse flaws than Regnerus, no-one shouts them down. I don’t give a shit about his funding because that is just the way funding for studies works. GLSEN GLAAD and the HRC have all provided funding to gay researchers hoping to find pro-gay results.
Quick question about the Oregon ruling. Would it be correct to say that his ruling is that same sex marriage is required based on EP because opposite sex couples can marry?
Not at all. You are, as is your wont, moving the goalposts. I am pointing out, once again, your habit of making declarations that are not supported by fact. Your claim was that you could find “lots of” references where authorities stated that “marriage defined as one man and one woman is a fundamental right.” You cannot. There was certainly the presumption prior to around 1990 that marriage was exclusively heterosexual and, in the U.S., there were most likely decisions that supported monogamy. However your claim that you can identify “lots” of authorities who support your claim is based on a bait-and-switch proposition that the unstated presumption of heterosexual union is identical to the explicit statement that it meant “one man and one woman.”
Now, the language in Baker v Nelson is similar enough to what you posted that your single citation trumps my use of doubting “any.” (I did not claim never, only a doubt that any existed). I will note, however, that that is exactly one decision that actually uses language closer to what I have described as simply the common understanding of the terms at the time. I will further note that it satisfies my contention that it did not appear in any decision until the issue of same sex marriage was raised.
You have no “lots” of authorities.
I have no need to prove a straw man that you attribute to me.
As to the rest of your harangue, I have made no claim that marriage was always intended to include same sex partners. I simply find that your persistent overstatement of your personal beliefs and interpretations need correction so that you do not mislead others reading this thread.
Well, I think I FINALLY understand what you are getting at.
What I still do not understand is why you would think, conceding that it was the common presumption that marriage does mean one man and one woman (except a bit of polygamy, this country has never known anything else until SSM) that a case stating marriage is a fundamental right, would mean anything other than “marriage defined as one man and one woman is a fundamental right,” hen that’s all they knew.
methinks you’re still on the same trip about finding my specifc words in these cases. True, you concede that Baker is close enough, so maybe you’re not looking for the exact same words. Bit I also showed you two state corut cases that are specifically about SSM and they say the same thing.
Yes indeed, the HOST of authorities the Bruning court spoke of involves quite a few where the presumed definition the court is working under, or the secondary authorities as part of the HOST, is that of one man and one woman. They didn’t need to point out it is one man + one woman because everyone knew and those were the couples before the court.
Why, with one man and one woman before him in a case with no gays, would the court bother with something like "marriage is a fundamental right, but only to you two, and not to a gay pair. Why would you expect them to?
I still fail to see why this is important–whatever you say, it is still true all cases declaring marriage to be a fundamental right have been in the context of traditional marriage and cannot mean a fundamental right for SSM. If you’re trying to make a point against that, I don’t see how. Yes, you have proven my exact words aren’t in Loving or inner or Zablocki or whatever else. But I do still have a bunch of authorities where it’s a traditional marriage case and there’s a fundamental right involved. Do you know how many state Supreme Court cases there are that mention marriage is a fundamental right in all the various cases they have gotten about divorce and such? Shit, they mention it just to show the gravity of the situation and mention they do not dissolve serious bonds like that lightly and just how serious all this is…
For sure, I am not going to show you more when you do not acknowledge the few I gave you. Really Not All That Bright tells me he’s )I don’t know, she?) is not going to go through all 14 cases he may be talking about–he gave me two, and that is reasonable enough. I gave you two, and with all my honor I promise more, but I ain’t gonna work my fingers to the bone if you do not even acknowledge I did show you more than just Baker. If you’re gonna dismiss an additional two, why show you ten? Have a look at those two and we’ll go from there.
Cause you haven’t disproved I can show a bunch till you look at the ones I give you, and you haven’t mentioned anything more about those cases to correctly say I have only showed one. Was I wrong with those two state court cases? If so please say how before saying I have only produced one.
And what is so damn important about 1990? I don’t recall anything important concerning gay rights in 1990. Baehr, the case that kicked this all off, was in 1993.
Ok, because you were quoting from the 1st circuit when you asked that question so I wasn’t sure. Which 9th circuit precedent are you referring to? I think I missed which 9th circuit case/s you are referring to. Sorry about that, easy to get lost in long threads.
In Perry (Been a while since I read that decision!), the 9th circuit agreed with the District Court that EP was violated, although that particular case was about withdrawing a current right. That was vacated since the people that appealed were determined by SCOTUS to not have standing, so it’s not precedent anyway.
I think it may not happen as soon as you think because the gay rights groups are going to be really careful which case they pick to take before THIS Supreme Court.
Judge Robert Jackson famously said “We are not final because we are infallible, we are infallible because we are final.”
If they take a case before SCOTUS and lose that could easily set the movement back years. Back in the early 80s, when SCOTUS ruled that anti-Sodomy laws were constitutional in Bowers v. Hardwick, that was a huge and unexpected defeat that took almost 20 years to get overturned.
Because you insisted that it was an explicit assertion of the court when it was nothing more than a presumption of the time. You overstate your position, (and then double down with your “lots of” examples when that is simply not the case). The assertion that the law has always been explicit in defining marriage as “one man and one woman” is a favorite claim by those opposing SSM. That is simply not the case. For you to echo that view and claiming that there are “lots of” examples of that assertion when, in fact, there is only a single case that expresses that idea, is a bit disingenuous. (Loving is not part of this discussion. I noted, originally, that you might find many opinions asserting marriage as a fundamental right. However, nothing in Loving addresses the “one man and one woman” issue that is the explicit point I have challenged.)
However, that is exactly the problem that opponents and proponents of SSM often wish to ignore. The earlier cases decided were all based on a presumption of heterosexual union. When proponents ignore that heterosexuality was so much an assumption that it was not explicit, they are being disingenuous by failing to recognize that society and language have changed. However, when opponents pretend that there has been explicit language regarding “one man and one woman,” they are simply making up stuff that is not actually in the record.
I would not. So why do you try to make explicit a point that was merely understood and was only made explicit on one occasion?
And you keep trying to steer this back to the “fundamental right” claim that I acknowledged from the onset, as if you are making some point. The point is the linkage of the fundamental right with an explicit assertion of “one man and one woman.” It is not explicit in any earlier case except Nelson, in which the court based its ruling on common understanding and not an actual point of law.
1990 was my conservative guess of when SSM might have come to the courts. If it is 1993, so much the better. You echo the assertion that the courts have always held marriage to be between “one man and one woman” when, in fact, outside Nelson, and prior to Baehr, no court addressed the issue of “one man and one woman” because societal understandings meant that the issue did not come to the courts. By implying that the courts have “always” held that marriage is between “one man and one woman” when, in fact, the courts never addressed the issue because it simply never came up, you are overstating your position. You claimed to have “lots of” examples and you have one.
I assume he means SmithKline, the case you (Antinor) mentioned earlier where the Ninth Circuit applied elevated scrutiny. On page 15-16 of the Oregon opinion (thank you for linking) McShane explains that SmithKline was not yet final and thus not yet binding (a decision is not “final” until the time for appeal passes and the court’s mandate issues.)
What’s rubbing me the wrong way here is I never claimed Loving and the like EXPLICITLY held one man +one woman. I admit I was not clear, but you are reading a LOT into my statements. When I said “Express Purpose” it was in response to a question asked by someone else where it appeared to me it was obvious it was understood that the state expresses the purpose, or offers justifiction, or explains it or whatever. If I am wrong and I ever said Loving and the like were explicit, show me.
However, this does not mean opponents of SSM make a presumption–certainly not a rebuttable one. It’s a fact that those cases were talking about one man one woman because, one, they’re weren’t any SSM couples and two) the cases were a man and a woman before the court. None of the marriage “fundamental right” cases help you, even if they weren’t about SSM, which is what you’re trying to do–say Loving means there must be legal gay marriage based on “it was just an understanding,” an understanding it would help you to understand.
Having shown you two more cases other than Baker, and you insisting that is only one, your position is not very tenable. There are a lot of authorities and you refuse to look, and if you won’t look, I have no choice but to leave you in your ignorance, and I surely am not going to do more to prove my claim until you look at the additional two I did give you.
It is ironic that you are taking this “explicit” business so far when any “explicit” was something you pinned on me by reading it into my comments–which weren’t explicitly making the claim–you read an implication into my comments and stand on it to tell me I can’t read something implied in Loving. That’s rich and pregnant with irony.
The Good old “Times Have Changed” argument. That is a question for the legislature or the ballot box. If the majority of our people have indeed changed in their views then prove it at the ballot box. I dispute that this claim warrants judicial imposition of SSM. And if your point is “times have changed” then it makes no sense why you’d expect me to disprove that with the older, and not more recent, cases.
The actual fact of the matter is the view of marriage has changed for some. They have encouraged gay marriage for the public to accept by mostly fraudulent, manipulative propaganda. Not only that most of the support is in the youth–who are naturally more liberal about sexual issues and have idealistic views of love–and who happen to have the least life experience in these matters. They also tend not to vote as much.
So I translate your objection of “Times Have Changed” to “But they have tricked the kids.”
By the time they’re responsible enough to vote, many will have changed their minds.
It’s not a handful of experts who get to say the public consciousness has shifted–it is the legislature or the voters themselves to determine if this is indeed so. This is no reason to use in court.
That’s why I didn’t think he meant Smithkline, because as I had noted it wasn’t yet binding precedent. The scrutiny issue has been interesting, his decision isn’t the first I’ve read where they say ‘It really doesn’t matter, because this doesn’t pass constitutional muster under ANY scrutiny level’.