Thank you, I was wondering if that was really an accurate characterization. I wrote it as sort of a reflection of what I had heard in various news stories in the past.
And may I just take a moment to say that this thread must be one of the most valuable threads in a long time - all those lawyers, and not a billable minute in any of it!
Roddy
Ah. Thanks.
The way that a lot of interest groups depending on the judiciary to “back them” (say, for example, the SSM advocates who want Prop 8 to get ruled unconstitutional) seems to lead to the perception that the Judicial Branch sure has a lot of clout, even without enforcement power of it’s own.
(I can’t tease this info out of wiki: How many US Supreme Court Justices were impeached?)
Then you’re problem is with the design of a common law system. You might want to time-travel back to Medieval England and see if you can fix that.
Let’s stick with equality issues here. I don’t want to get into a huge debate about the ICC or 1st Amendment.
You’re all over the map here. Sometimes, according to you, we’re supposed to look at the text of the amendment. Sometimes, we’re supposed to look at the framer’s intent. And sometimes we’re supposed to look at current practices at the time of adoption. But the only interpretive technique I can gather from your postings is that we’re supposed to choose whichever method yields your preferred interpretation and we’re supposed to ignore stare decisis. That, in and of itself, isn’t objectionable. People always choose whatever methodology yields their preferred interpretations. But quit pretending that you are doing something different than everyone else does.
This is completely circular logic. The reason is because “unelected officials” in Washington specifically interpreted the 14th to not include a woman’s right to vote (Minor vs Happersett (1875)). So, basically all you’ve done here is point at one common law interpretation of the 14th and arbitrarily decided that it’s the correct one. And the fact that you are putting forth an argument that basically rests on court interpretation shows how conflicting and arbitrary your argument is.
I’m going to be charitable here and assume you meant to say “since the passage of the 14th.” Obviously, pointing at things that happened “since the founding” is nonsensical in the context of racial issues, since we have intervening amendments since the founding.
But here, again, the argument on it’s face is useful, but it’s not, by itself, conclusory. In our system (common law with multiple sovereigns), it often takes legal changes significant amounts of time to percolate through the system. Simply saying “this is what people were doing” doesn’t tell us much, since people routinely violate the law and constitution. If you want to argue that Loving was incorrectly decided, you’re going to have to provide something else.
Ah, so we’re back to a textual argument. If we’re just looking at the text, then the text of the 14th is about the denial of “equal protection of laws” and the denial of “privileges and immunities.” You’ve decided that both of these should be read narrowly. I don’t agree, and there’s no reason I should agree, because why should I pick your narrow interpretation over my broader one? Particularly when the narrow interpretation you’re peddling leads to odious results such as states being able to segregate along racial lines or arbitrary discrimination against women? [Note: I’m aware that the P&I clause is gutted, but if we’re going to reopen the 14th, then I have to ask why it should be gutted].
Anything can be turned on it’s head. The non-expansive view of rights you peddle can equally be used for quite nasty results (as you yourself acknowledge). So, again, this argument amounts to nothing really.
Are you making an originalist argument now? Because, if you’re going to do that, you should at least do some basic research about the framing of the 14th and the debates leading up to its ratification. There’s ample evidence that at least some of the framers intended for the 14th to apply to racial segregation. For example, see this article on John Bingham or this article on the EP Clause (specifically the section on “Black Codes”).
One can even argue that the framers of the 14th didn’t intend for it to be restricted by rather expansive, and that’s why they chose the wording they did. For example:
You keep claiming that you are looking at the text of the 14th. But what you are actually doing is ignoring the general language used in the text, and then demanding that we ignore it too. Why should I? The language is general, and if you want to demand a narrower interpretation by looking at the intent of the framers or widespread practices at the time of adoption, you’re going to have to actually do some research into what was happening at the time of adoption.
Finally, making statements that accuse your opponents of proposing that people in the 1860s were dealing with gay marriage issues is dishonest argumentation. Nobody is proposing that Congress was sitting around debating gay marriage in 1865, and you know that full well, and you know your opponents know it too. So constantly throwing that out as if it is a useful rejoinder only makes it look like you have no idea what you are talking about.
Such a broad interpretation of “equal protection” cannot help but open a Pandora’s box to every “right” under the sun. My sister in law receives Medicaid. I do not. That’s an equal protection violation there.
Sure, I have an income and she does not, but instead of looking at it like that, let’s just group ourselves into “income earners” and “non income earners”. Such a law puts us income earners at an unequal status to non income earners.
I have a right to all of the benefits of citizenship like Medicaid, and the only reason that the state denies it to me is because I am an income earner. It is time that us income earners stand up and demand our equal rights under the constitution. They told black people that they weren’t human, told women they couldn’t vote, told gays they couldn’t marry, and now they tell us income earners that we can’t have Medicaid. It is time for the injustice to stop.
Do you see how any issue can become an equal protection one just by defining yourself as some sort of disadvantaged group?
So the ends justify the means? That’s a bad way to preserve an ordered society.
Though how bad a way it is depends on what specific means are employed. If it’s just “judicial activisim pushing enlightened morality”, that’s not quite as bad as “murders and riots in the name of enlightened morality”.
What you seem to constantly miss is that your standard is no better. Gays aren’t protected. Neither are women. Why stop there? Neither are ethnic Chinese. Or ethnic Japanese. Or Blacks of Hatian descent. Or Black women. The list of people we could exclude from protection under your arbitrary reading could never end. But somehow even though your interpretation leads to such results, that’s the one we should choose. I think I’ll pass.
Er, aren’t there separate laws (constitutional amendments, whichever) that specify an alternate standard to use intead for the cases of women, ethnic Chinese, ethnic Japanese, Blacks of Hatian descent, and Black women?
I think the point is that rational scrutiny has its place, and that if you don’t like what happens when gays are subjected to it, then the correct approach is not to eliminate rational scrutiny, but instead to just get sexual preference specifically to have a higher scrutiny level.
We’re talking about constitutional interpretation, not general laws. But not really, as the 14th is currently interpreted. Under the 14th, governments generally cannot discriminate on the basis of race (strict scrutiny). Whites, ethnic Chinese, ethnic Japanese and blacks of Haitian descent fall under this category. Under the 14th, the government needs a pretty good reason to discriminate (intermediate scrutiny) on the basis of gender.
That’s not what his argument is. He dislikes the entire foundation of constitutional jurisprudence around the 14th. jtgain has made it clear that he doesn’t care for any of these common law tests of the 14th.
No, because the farmers in Yellen could show an “actual causal relationship” between the government policy and their injury (Warth v Seldin). In other words, the farmers could show that they would be directly harmed by one interpretation of the act; they’d have to buy their land at market prices rather than at the below market prices they could buy at if the act applied to the Imperial Valley. The intervenors in this case can’t show direct injury if the proposition is overturned, except maybe, if they were the sponsors, of the cost of getting the proposition on the ballot in the first place.
And why isn’t that an injury? Surely they would not have devoted time and money to this measure if it were constitutionally defective. They’ve lost that time and money to no effect unless Prop 8 is upheld.
Do you think it would be ok to deny Medicaid based on sexual preference? Are you being discriminated against if you choose to not get married?
“Marriage” is not some magical/mystical thing as regards the state. The state merely grants those who gate married various benefits.
You also seem to think there is something magical about “equal protection” and if you aren’t one of these disadvantaged groups then you are the one somehow being taken advantage of. All these other people get stuff because they whine a lot (or something).
Homosexual people are not asking for special protection. They are asking for the same rights you enjoy (presuming you are heterosexual).
If you pursue that line of argument, doesn’t that open up a pretty crazy amount of standing, if everyone who has ever spent money on or publicly advocated for a policy has standing to defend the policy? Would that work the other way around too? If I file comments in an agency rulemaking proceeding, and the agency decides the other way, can I then petition for a writ of mandamus? I wouldn’t have spent the time and effort to file the comments had the agency not started a rulemaking. I feel injured.
I think what he’s asking is why it’s ok to discriminate against people who earn income and not against homosexuals? In other words, why is it not ok to discriminate against gay people when it’s ok to discriminate against a whole bunch of other people?
Compared to the alternative, sometimes it does
It’s tiring that “ends justifying the means” have become this cliche rallying cry for people on anything they don’t like. Not all means are equally moral nor are all end equally immoral. The fact is that courts have historically been at the forefront of more rights, more protections, and more equality for oppressed minorities. This undeniable fact should prove that sometimes it is better to ignore an unjust law than spend time and effort fighting it legally
Yes, but the decision about who you can discriminate against and what types of discrimination are acceptable is essentially arbitrary. We can come up with with legal, philosophical, economic or moral arguments to justify positioning the line anywhere we choose. As he himself acknowledges, the place where he chooses to draw the line would allow governments to segregate on the basis of race and arbitrarily discriminate against women. I don’t see what’s so great about choosing to draw the line there.
Our current legal methodology is to delineate somewhat around immutable characteristics, and if that’s the place where we’re going to draw the line, then there’s more than enough evidence to shift homosexuality from the non-immutable side of the line to the immutable side of the line. Is there perfect evidence? No, but you’re never going to get that in the real world anyway. But if we’re going to err, I’d rather err on the side of expanding individual rights rather than on the side of discrimination, particularly in a case such as SSM, where providing the right will not really harm anybody.
Note: I understand that you were trying to clarify his argument, so this response is more for him than for you.
BTW, 9th upheld the stay and put the case on a expedited track, it seems.
Yes, it does. But the reverse is crazy, too: California pemits referendums sponsored by citizens. If the California AG refuses to defend a suit against the validity of a citizen-sponsored referendum, it appears he may doom it to the chopping block.
Not allowing some standing to someone in cases like that means that the state has its own mehtod of vetoing referendums, which certainly runs contrary to the whole idea behind a referendum.
ANd here’s what I can’t wrap my head around: how can they have standing at trial, but not on appeal? The order refers again to Arizonans for Official English Committee (AOE) v. Arizona, but that case involved the state being party to the initial proceeding and then deciding not to appeal. Here, the state was never party to the suit to begin with.
Well the Attorney-General of California is subject to being recalled by the electorate, impeached & removed from office by the Legislature, or simply losing a re-election bid. Ditto for the Governor. Now impeachment is a politcal impossiblity in this case, there’s not enough time left in either of their terms for a recall, and neither is running for re-election (though Brown is running for the Governorship).
California’s constitution may be crazy & fucked up (highly fucked up), but does provide the Legislature and the electorate with methods of removing gov’t officials who fail to do their duty. This is no crazier than allowing out-of-state interest groups and a slim majority of voters to strip basic human rights from a minority with ease.
In general it does, but in this particular case it does not. Even if 90% of California voters wished to take some action to require the state to act, there is literally nothing they could do.
The state is party to the original suit. They’re the defendant, or at least the Governor and Attorney General are in their official capacities. They didn’t actively try to defend the law, but they were still parties to the suit. The difference in this case is that, in the other case, AOE wasn’t a party to the original suit and just sought to intervene when the state announced it wasn’t going to appeal, while in this, California Families has been involved in the case since the beginning.
Reread the Brigham Young Law Review article. It talks about how the circuits are divided in terms of intervenors and standing, between those circuits that say, “Potential intervenors must have Article III standing to intervene in the case” and those circuits that say,“Potential intervenors don’t need Article III standing to participate in the case”; having lower standards for intervenors, and the 9th Circuit is the second type of circuit. But in the circuits where intervenors don’t need Article III standing to intervene, someone trying to appeal still needs article III standing.
Remember, too, that this was a permissive intervention and not an intervention of right. The district court judge could have refused the motion.