Oh that’s genius. Let the same legislature that passes the discriminatory laws in the first place decide who gets protection.
So, you are suggesting that the courts interpret the laws and the constitution in a way they know that the legislature did not intend? What do you call that school of constitutional intrepretation-- dictatorship?
How do you think the courts came up with protection against racial discrimination except by refering to the 14th amendment?
I’m not suggesting anything of the sort, however, according to Bricker, that’s perfectly permissible under rational review. Regardless of what the legislature intended when it passed the law, the court can OK it if the court itself can think of a reason why someone somewhere would think the law was rational, regardless of whether any actual legislator ever thought of it.
Sorry, where does the word “race” appear in the 14th Amendment? Where are any classifications of protection established in the text of the 14th Amendment?
Is it your contention that it was the intent the legislature in WA to legalize SSM?
it doesn’t say “race” explicitly, but that is the most reasonable way to read it. Do you think that Congress intended the 14th amendment to legaize SMM?
While I’ll let Otto speak for himself, that’s certainly not my contention.
Is it your contention that it was the intent of the legislature in WA to prohibit SSM so that procreation wouldn’t be adversely affected?
I don’t pretent to be able to read the minds of legislators.
You leave that to the judges.
As for my contention, it’s my contention that writers frequently end up with results which are far afield of what they may have intended. Did the people who wrote either the Washington state constitution or the 14th Amendment explicitly have same-sex marriage in mind when they wrote? No. Does that mean that the words they did write are inapplicable to SSM? Again, no.
This threads inevitably end up at this point: what is the proper role of the judiciary? And this is a question on which I think reasonable people may disagree. Those who want a strong judiciary see it as a fine thing - a mechanism of protecting the rights of minorities with little downside to it. Those on my side of the river see it as a threat to self-governance, an end-run around the basic principles that we get law made by the leaders we elect.
I think we’re all in agreement with the general principles here, just very much at odds on the particulars.
There is absolutely no doubt that if the City Council wants to make First Street one-way, or the State Legislature wants to make medicine with active ingredients including ephedrine compounds illegal without a prescription, they have every power to do just that.
On the other hand, there is absolutely no doubt that the court system has the right to declare a law that violates a clear Constitutional guarantee null and void as being unconstitutional. If Congress takes it into its collective head to require that every Federal agency begin the work day with the Lord’s Prayer said aloud, that’s an Establishment Clause violation, pure and simple.
Where it gets tricky is the rather broad guarantees in which some Constitutionally guaranteed rights are worded. What the heck is “equal protection of the laws”? What is “due process of law” and how is it guaranteed? What are “cruel and unusual punishments” and how can they be recognized? What sorts of searches and seizures are “unreasonable” and does that distinction define some sort of right to privacy without spelling it out?
On these, reasonable people can disagree.
For me, the legislatures should have the privilege of making laws that do not violate those constitutional guarantees. And the courts should be the protectors of those guarantees against violation by act of the legislature. But I can see where decent people can question whether law X really violates guarantee Y, or imposes an unfair discrimination on people.