Then those judges are bigots and liars. Otherwise, that “valid state interest” wouldn’t only come up when homosexuals are involved.
I asked if he’d be ok with it. I did not ask if he thought it was legal.
In another thread around here recently I complained about a kid who got sent to jail for 17 years for a consensual blow job. I do not believe I argued that he was illegally convicted. I argued the law was appalling to produce such a result and suggested it was a place where jury nullification would be in order. While I know you dislike jury nullification it is legal (or at least not illegal).
None of our rights under the constitution are absolute. I already mentioned that a rational and logical case can be made for denying children the right to vote and so on. Further, being five years old is not an immutable condition and all humans regardless of race or gender or what have you will experience being five on their way to being six and eventually 18 (barring an untimely death).
For SSM no logical, rational reason can be put forward by the state to deny marriage to a part of their population. A part whose sexual preference is immutable unless you wish to argue that if you are only married to Mrs. Bricker just because it happened that way…you could as easily and happily have chosen to marry some guy. Point being your sexual attraction is just a choice no more difficult than whether to have Fruit Loops or Captain Crunch for breakfast.
Seems to me you are suggesting that if the State says we cannot have SSM because they are afraid Martians will attack because Martians are opposed to it that is sufficient. It doesn’t have to make sense. It doesn’t have to be provable. Just as long as the State can express any reason whatsoever that’s fine. Or perhaps no reason at all really.
That makes sense to you?
Well, sorta. Imperial County is joining the appeal, and must brief the standing issue (as well as any other appealable issues they identify. If they lose the standing issue, then the rest of their brief is moot.
I see.
But since HE was arguing about what was legal, why did you suddenly switch to asking him if he’d be OK with it?
Notice you didn’t simply ask, neutrally, if he’d be Ok with it. You said: *So, under your theory, if the US went to this extreme it would be by the will of the people and you’d be ok with this. Is that correct? *
His “theory” has always been about the law. I don’t recall him advancing any “theory” about anything else. And you stated that he WOULD be ok with it, and then asked for confirmation, which is a bit different from simply asking if he has a preference on the matter.
You may well have intended to limit the scope of your question to his personal feeling and exclude his legal theory, but that meaning doesn’t really come through.
You have also done the same thing to me, more than once.
Yes. Because the cure (elevating the courts to where they get to decide the substantive law) is worse than the disease.
The legislature that is motivated by fear of Martians can be replaced in one election.
The lifetime federal judge cannot.
And more than that, even: because governments derive their just power from the consent of the governed.
The point is to show what allowing the state to legislate morality could lead to. He is saying that since the state has legislated morality it is ok to continue to do so. I was using an extreme example (one that actually exists on the planet) to throw into sharp relief what he seems to be ok with. I was challenging his assumptions on what is “proper”.
Legally we have, in fact, seen that the state does have limits on what it can legislate as “moral”. To wit see Lawrence v. Texas.
As a matter of law we have constitutional protections and the state does not have a constitutional right to legislate morality as it likes. They can to some extent but are circumscribed by our constitutional rights.
As such the people are protected from jtgain’s morality police (thankfully) and my example to jtgain was to illustrate to him that his notions, left unchecked, are dangerous to all people.
It is easy to allow someone else’s rights to be trampled on. Most people can see the issue more clearly if you show that what they are actually ok with could very well bite them in the ass too. Diminishing one group’s rights diminishes all of our rights.
It might be worse than the “cure” if left unfettered.
Thing is the courts are limited in how far they can go in telling the state if it overstepped its bounds.
We are talking about discrimination here and that you seem to think the state is, essentially, free to discriminate against a group of people with no reason whatsoever is amazing. It may currently be the way of things but it is still shocking.
“Rational basis with teeth” makes sense and should be the case across the board and not just here. I am not suggesting the state clear the hurdle of strict scrutiny for all things. Merely that since we are talking about the constitution the state should at least clear a rather simple bar of, “Is there a state interest at stake and is the law based on facts , is it rational and is it logical in reaching those state interests.”
Again, it is abundantly clear there is discrimination here. A particular group is being denied equal protection of the laws…a constitutional right that they enjoy same as you and me. For the state to undo a constitutional protection you do not think they need a bit more than, well, nothing? The state is free to do it if it feels like it?
Personally I think intermediate scrutiny would make sense here particularly if you do not want to create to new legal creature in the form of rational basis with teeth. But then I think rational basis should have teeth period. Baby teeth maybe but at least some teeth.
I agree that intermediate scrutiny is appropriate here.
But in general, I don’t agree that rational basis with teeth, even baby teeth, is correct as a low-water mark.
I think we’re at a good “agree to disagree” point. To me, the value in being part of a government in which the people are sovereign is incalculable. The mere fact that our judges have thus far been (generally) benign philosopher kings does not ameliorate the bitter taste of living under the rule of a philosopher kingdom.
And I suspect that your love for the idea that judges can make such decisions would vanish the instant a federal judge found a “right to life” in the Fourteenth Amendment for the unborn.
I would not like the decision but at least here there is a position that can be articulated on both sides. There is a rationale from the pro-life side that is defensible to an extent (inasmuch as you can claim life starts at conception…the issue is what level of protection that life merits at that point versus the rights of the mother).
There is NO rationale from the state on opposing SSM. So they miss even baby-teeth scrutiny (as Judge Walker showed in Perry).
OK, so just to be clear:
Virginia passes the Unborn Right to Life Act, outlawing abortion after a finding that both the state and federal constitutions prohibit the taking of life without due process, and that “life” refers to any human being from the moment of conception onwards.
Petitioner Jane Rosa is unable to get an abortion and sues, claiming this law violates her federal constitutional rights under Roe and Casey. The judge hearing the case finds, sure enough, a Fourteenth Amendment right to life that reaches the unborn. The Fourth Circuit affirms.
Now your reaction is that you don’t like the decision, but you agree it’s perfectly legitimate and ought to be respected as the ordinary working of the judicial role in society. Right?
Yes and no.
In your hypothetical what is ignored are the mother’s rights which I think are important too so I’d probably come on here and complain about that decision and call it an error in judgment.
In the end though someone needs to make the decision and as long as the judge is applying the determined facts and issues a ruling that is supported by the facts then we have to live with it. The judge in your case ignoring other relevant issues (the mother’s rights) would seem to make the decision dubious at best however. To say the unborn has all the rights and the mother has none would seem, on the face of it, problematical as a matter of law.
I wouldn’t respect it any more than I would a decision declaring that blacks can be legally enslaved by whites, or that women can be legally raped. Such a decision simply demonstrates that the court is motivated by bigotry and has no moral authority; nor does any government that enforces such laws.
Yeah, I know you wouldn’t be cheering for it. But “an error in judgement” sounds to me as though you concede he can make such a call, and you simply disagree with the way he made it.
Whereas I feel that such a ruling would be an affront to the judicial role, an outrage.
Those are contradictory statements. Nobody anywhere has said that no reason is sufficient reason. This is exactly what I am saying. Nobody has said that a state can pass a law with no reason. Everyone has said that no reason at all fails rational basis.
The statements are not contradictory.
I get it when Bricker states the current state of the law and how Rational Basis works. My issue is I don’t like it.
As for no reason whatsoever I suppose the government has to give a “reason” but if I understand Bricker correctly the reason does not actually have to be rational or logical or much of anything. As such it really amounts to no reason because it is nearly always possible to gin up some excuse since it need have no relationship to reality whatsoever.
To suggest it must puts in the Rational Basis with Teeth realm which currently does not exist.
See, this I do not get. Your issue with Philosopher Kings and all that. This is the system we have got and philosopher kings are necessary to the system (although “kings” rather overstates it).
You seem to adhere to a rigid legal interpretation. The law says “X” and that is it. No interpretation necessary.
Thing is that does not really work.
First a law cannot be written for all contingencies. It is just impossible. This gets us into things like jury nullification (which we debated recently). The law may be written to catch a pedophile and put him away for 17 years. When it puts away a kid for a consensual blow job for 17 year the law has failed. The law cannot contemplate all possibilities but a jury, presumably, can look at the specifics of a given case and think here is one where the law is just too overbearing to apply. In your world tough luck. The law says “X”, you (general “you”) technically did “X” and that is all that is we need to know. Off to jail with you for life. Nevermind if it is a travesty of justice.
Second, particularly with the constitution, the law is vague. Look at the constitution. It is succinct. Consider the 2nd Amendment as an example. Seems pretty straightforward yet people have been debating what it means for decades. Someone has to interpret it and that is, by design of the founding fathers, the role of the court. So too with this discussion. What does “equal protection of the law” mean when applied? There are no easy answers.
Third, the FF’s were very cognizant of the tyranny of the majority and spoke about it. To suggest legislatures should be the final word runs counter to what the FFs intended. If we granted ultimate authority to the legislatures and disallowed judges from applying the constitution where would that leave us? With your take on EP and the stunningly low bar of rational basis that gives legislatures carte blanche to do what they want to different groups of people (and there is plenty of history of state governments doing exactly that when they can get away with it). In the US that would leave us with an awful patchwork. You and Mrs. Bricker got married in (presumably) Virginia. You are married wherever you go in the US. Now imagine no, you are married in some states but not others depending on the local laws of each state. Or you can get an abortion here and not there. Are you breaking the law to leave your state where it is illegal to get an abortion to go to one where it is legal? Not meaning to dwell on specifics here I merely mean to show what a mess you could end up with if we restrict judges as you would seem to have it.
As for Philosopher Kings they are not really kings in the sense of being sole dictators. There are a lot of check and balances in the system. Lose your court case? Appeal it. Lose that? Appeal it. Many courts as you move up are multiple judges hearing the case. The SCOTUS has nine of them so no one is “king”. If the courts still decide dramatically wrong get the laws changed (as was done in many places after the SCOTUS handed down the Kelo decision). If a new law doesn’t change it in theory a new amendment could. If that doesn’t work maybe wait a decade or two to get a more sympathetic court. Point is we do not have one person handing rules down from on high and that is it.
Where do you draw the line between choice and immutable?
Sure, most people could flip a coin between Fruit Loops and Captain Crunch.
What if I would get up and hour early and drive to the store to get my Fruit Loops instead of eating the Captain Crunch in the cupboard? Does that give my Fruit Loops 14th amendment protection? Can I call myself and other Fruit Loop lovers like me a group that deserves equal protection?
Probably not. But at what point would it deserve protection? A hundred of my friends and I vomit at the sight of Captain Crunch and drive across three states for Fruit Loops? That’s not immutable, I could force myself to not eat Fruit Loops and boycott cereals entirely.
I’m curious as to what makes something a “group” of people; not just a group of people (like stamp collectors, baseball fans, or dog lovers) but a GROUP of people that get equal protection under the 14th amendment.
RBw/T is evolving – people have pointed to examples already. Essentially, what I see as happening is that the principled conservatives of the Courts are realizing that edentate RB is being used more and more to excuse away legislative behavior that is for all practical purposes dictatorial in scope – and thanks to the two major parties’ stranglehold on redistricting, legislators are becoming less and less answerable to their constituents. So they are saying, in essence, “Be prepared to show how this law furthers a legitimate governmental interest – even if it does it poorly.” IMO, Romer set the new standard.
And Bricker is uncomfortable with this because, well, the law is the Law. If a legislature wants to make owning cars illegal, they have the privilege of doing so – and never mind that their constituents may need those cars for carrying out their daily lives; it’s implicit in the police power that they can do it. The country did quite well its first hundred years with nobody owning cars.
sigh
I posted a link to this earlier.
Here is how the courts currently do it (I know some here do not like this method but it is the way of it today).
Interestingly, in 2006, the Eighth Circuit considered this claim, and said:
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).