Yep, you do win. Quite often, actually. It’s called:
(1) Motion for directed verdict at the conclusion of plaintiff’s case; or
(2) Motion to dismiss on the grounds that the complaint fails to state a claim upon which relief can be granted; or
(3) Motion for summary judgment.
Look into it – it’s interesting stuff.
Until you read the law and understand how our system of adjudication and burdens of proof works (actually works, not how you’d wish it to work), which you obviously haven’t, I’m done arguing law with you.
Now, once you two have finished smirking, perhaps you could assess the probability of your favored “I don’t have to offer a case” approach (one that, you failed to notice, I already acknowledged is a real one) actually working in a Supreme Court case deciding the basic constitutionality of a law. If you have doubts about that behind your bravado, perhaps you could finally accept the challenge already given of stating what that sound argument could possibly be. Surely you’ve harbored fantasies of actually arguing a case there; how about picking this one and seeing where it takes you? Can it, in fact, if followed honestly, take you anywhere but a reaffirmation of equal protection? Why not?
I’ll assume the numerous other points you’ve failed to address in your unfoundedly-snarky replies are thereby conceded as acknowledgments of your lack of grounding, and I’ll further hope that both of you learned counsels have a better understanding of the value of argument vs. vitriol than you’ve showed here. You are, I trust, trying to convince others that you’re right, not just excoriate them. Right?
You seem to think you can repeat, “But… but… EQUAL PROTECTION!” as though the mantra has some sort of meaning.
The existing case law has provided us a method of analzying claims under the Equal Protection Clause.
Do you have the slightest clue what that process is?
Seriously. Walk me through your understanding of how an Equal Protection claim should be analyzed.
Because you’ve shown yourself remarkably resistant to learning anything from the posts of people who know… and I don’t mean people just on my side. You seem to have a vague notion that there’s a method of analysis for Due Process, and maybe another oen for Equal Protection, but every time you write, you reveal that the distinction is not clear to you.
I’m very disinclined to spend time writing a detailed post that you will immediately dismiss. So you tell me first: what is your understanding of how an Equal Protection claim should be analyzed?
Dewey,Bricker, I just had a thought. It’s not a thought that I’ve researched or anything, so it could be totally left-field, but I’ll throw it out there anyway.
A goodly percentage of the Framers were lawyers, and all of the Framers grew up under the English common law system. Under that system, Parliament enacted relatively few, broad statutes, and it was the job of the judiciary to fill in the interstices, including applying the law to numerous situations the Parliament never even considered. As a result, the primary mover in the creation of English law was the courts rather than Parliament.
Given that legal context, wouldn’t it make sense for the Framers to believe that they did not have to spell out every right, but instead rely upon the judiciary to develop what rights logically flow from the particular ones set forth in the Constitution? IOW, (just to throw y’all some red meat) in the “penumbra” and “emanations” of the enunciated rights?
There was a good article in last month’s Atlantic about Karl Rove and how he developed his counter-incumbency tactics in Texas and Alabama. Apparently Rove popularized hot-button terms like “activist judges” and “personal injury lawyers” as propaganda scapegoats. I think you would have a hard time finding references to “activist judges” prior to Rove’s ascendance in the early to mid 90’s. Karl Rove is a genius. An evil and twisted genius perhaps, but deadly effective at what he does.
Well, but isn’t another interpretation that the conservatives didn’t begin to coalesce around this issue till the '80s (I certainly think the notion, if not the specific phrase, of “activist judges” was fully formed at the time of the Bork borking) was because the “activism” was a fairly new thing (dating from, say, the mid-'60s/Warren days), and organized opposition to it took awhile to bubble up in a recognizable form?
Graglia’s Disaster By Decree* stated a forceful and coherent case against “legislating from the bench” (in the context of forced busing). It came out in 1976.
And speaking of Graglia . . . well, I’m just an earnest seeker after truth and funny Sicilian-style putdowns, both of which he’s got in spades.
But you Longhorns have my condolences. If anything is a violation of the chimerical “equal protection right” not to have unpleasant things foisted on them, it’s the continued tenure of Mack Brown.
You are now simply substituting obtuseness for argument. Disappointing to be sure, but no longer unexpected.
If you do in fact know, you might try an actual explanation above the level you’ve displayed here. As it is, you’re just pounding the table.
For pity’s sake, the purpose is clear enough to any native speaker of English who is not hobbled by a certain historically-dubious and still-fringe ideologuism. If a law does not apply equally to all persons, then it violates equal protection guarantees under the Constitution. Is that so controversial or impalatable a notion to you? Is it less controversial than the assertion that when you go into court, it obviously helps to actually have a case of your own to present? I am disinclined to get into the subject further with someone with as little willingness to discuss it in good faith as you’ve displayed here.
Huerat88, your own lack of a response can also be taken as acknowledging that you’ve been exposed as well.
This book, more than any other, is responsible for my views on con law (it was required reading in Graglia’s Con Law II class). It is out of print today, but if you can find a copy, I highly recommend giving it a read.
Actually, yes. The problem is that the law is in no small part about categorizing people and treating them differently based on that categorization. Children are treated differently than adults, felons are treated differently than the law-abiding, etc, etc. If the equal protection clause was taken at its literal face value, it would invalidate virtually every law on the books.
I think Bricker’s request was very fair: lay out your understanding of how the equal protection clause ought to operate in greater than bumper-sticker slogan detail.
Oh, by the way, Dewey, since neither **Bricker ** nor **Huerta88 ** are willing (or perhaps able?) to say how they’d actually present a case in the Supreme Court against SSM, other than that ever-helpful “We wouldn’t have to” line, maybe you’d be willing to outline one?
Of course. Other rights and responsibilities, both by the persons in question and by others, come into play as well and have to be balanced. But limitations on EP have to be based on those other rights and on clear reasoning stemming from those rights. Can you defend refusing equal protection when those other factors do not come into play? What other persons’ rights override a gay couple’s equal protection? Are they the same ones that allowed antimiscegenation laws to remain in effect until very recently?
I’m presenting an argument, you people so far are not.
They’re absolutely correct, and you’re absolutely wrong. Laws are presumed constitutional. Absent the presence of a burden-shifting element (e.g., a law that makes distinctions based on race), all the state has to do for its law to survive judicial review is respond to the arguments of those attacking the law[sup]1[/sup]; it does not have to make an affirmative case of its own.
[1] Theoretically, it doesn’t even need to do this, although failing to so respond would only work practically if the opponent’s argument is totally insane.
While I acknowledge the truthfulness of this statement as it applies to practice, I have a problem with this. I think every law should require explicit justification based on Constitutional authority. No law should be passed unless the Congresscritters can establish their authority to pass the law. This would probably mean that fewer bills are passed. To me that’s a plus.
“That government is best which governs least.”
But I think you and the others are dodging ElvisL1ves’ challenge. You know that the challenge to DOMA and other SSM bans will be on Equal Protection claims, among others. I’m sure you’ll acknowledge that the state will respond with more rationale than “presume the constitutionality of all laws” because that will be woefully inadequate. The three-pronged test is going to come up. What arguments would you offer to defend the constitutionality of the bans against the Equal Protection claims?
Take it for whatever the hell you want, to be sure. I doubt that your understanding of the rules of evidence surpasses your understanding of the rules of procedure, precedent, and burdens of proof, or of the Constitution, so fallacies will no doubt abound when you step into that arena as well.
I wasn’t kidding when I told you to come back when you’d learned about burdens of proof – I see no point in arguing about a subject some of whose basic building-blocks you’ve shown yourself to be ignorant of. That’s fine – not everyone has specialized knowledge in every area. If you’re a civil engineer, I’d not start arguing about what the stress load of a bridge support **ought certainly to be ** ,in my opinion. If you were William Perry and I was Michael Chang, I’d probably be disinclined to take up your challenge to a tennis match. There’s something about constitutional jurisprudence, though, that seems to bring out the self-assured litigator in everyone. Well, fine – but layman opinions of technical issues are of little interest to me.
Here is where the problem first arises, and why we seem to continually be talking past one another. You are taking what appears, as you say, to any native speaker of English a perfectly clear phrase - Equal Protection - and applying it more or less literally.
That’s not unreasonable.
But it happens to be wrong.
Now, this may sound strange coming from a guy that trumpets the value of strict constructionism – what is what you’re doing if not the strictist of construction, after all?
But when we’re construing a law, one of the goals is to assume the drafters of the law intended to avoid an absurd result. Maybe I should not say “goal” - it is, in fact, one of the RULES of construing a statute.
If a law applies equally to all persons, how might we send felons to prison? The law MUST treat convicted felons differently than acquitted felons, and treat persons unaccused of any crime differently than both. The law treats persons under 21 differently than persons over 21 when the topic is purchasing alcohol. The law treats persons under 16 differently when it comes to consenting to sex. The law treats mentally ill people differently when it comes to criminal responsibility.
Clearly, the words “equal protection” do not mean “treat everyone equally.” They cannot.
So what do they mean?
What is the method of analysis we use to determine that treating felons differently than non-felons is okay, but a law treating blacks differently than whites is a violation of Equal Protection? And how about a law treating health care providers differently than maintenance workers? Where along the spectrum would that fall?
Clearly we cannot simply say, “A law must apply equally to all persons,” and end our analysis there.
An entire body of case law has arisen that outlines how we analyze Equal Protection claims, in detail.
Are you at all interested in hearing an outline of it?
Every federal law does in fact contain such a justification, because the federal government is one of limited, enumerated powers. The most commonly cited source of such authority is the commerce clause – you’ll see plenty of federal legislation that has right up front a finding that whatever the regulated subject happens to be “substantially impacts interstate commerce.”
The states do not need to do any such thing, since they have general police powers – all they have to do is be sure their legislation is not prohibited. They don’t have to point to any particular special grant of authority in order to legislate.
I agree as a policy matter, but this is not a basis for judging constitutionality.
Sexual orientation is not a suspect class. Laws discriminating based on sexual orientation need only survive rational basis review, a test nearly impossible to fail (Romer notwithstanding). The state will simply say it wishes to preserve an important societal institution and note childbearing and rearing as being key facets to that institution, and that will be more than enough to survive rational basis. Hell, I’m not persuaded by those arguments myself as a policy matter, but they are plausible enough to survive the very low bar presented by the rational basis test.
Given Romer and the dicta of Lawrence, I’m not sure that surviving rational basis will be enough. Isn’t it plausible, maybe even likely, that a intermediate scrutiny test will be applied. It is, afterall, a sexually-based discrimination.
Also what’s the rationale that SSM bans don’t fail the Lemon test? It seems fairly clear that their basis is religious.
Thanks, homebrew - you have the nub of it. Perhaps Counsels can set aside their obvious overriding personal dislikes of me and give *you * a *substantive * answer instead. There is still a chance for some ignorance-fighting to be done here, even if it hasn’t happened yet.
Bricker, I already responded to your questions in a reply to Dewey. Scroll up. FTR, do you intend to reply to my challenge as to what case you would present against SSM in the Supreme Court? After all these failures/refusals on your part to acknowledge it, accompanied by some very unenlightening language I have to think you know there isn’t a good case - is that true? Is there one that comports with your acknowledged remarkably-flexible view of what your devotion to “strict constructionism” entails?
Huerta88, a little life advice for ya: When you’re full of shit, and the person you’re addressing knows it, it’s best to shut up.