# Pat Robertson claims federal judges are greater threat than al Qaeda/Nazi Germany **URL:** \ **Category:** The BBQ Pit\ **Created:** [May 3, 2005, 3:02am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171 "2005-05-03T03:02:08Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [May 4, 2005, 3:36am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/81 "2005-05-04T03:36:19Z")
> [@Dewey Cheatem Undhow](#): > > Nitpick: assuming the federal standard is the same as the Massachusetts standard, gender classifications are subject to intermediate scrutiny. The concurrence doesn’t actually state which of the two tests it is applying; I suspect intermediate, but with the same result. You assume incorrectly with regards to federal and MA equal protection standards. The MA equal protection clause: > [@](#): > > Article CVI. Article I of Part the First of the Constitution is hereby annulled and the following is adopted:- > > All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin. Now, I don’t _know_ that the MA courts haven’t treated some of these classifications differently from others, but the constitution clearly puts them on par with one another. The concurring opinion says this: > [@](#): > > With these two propositions established (the infringement on a fundamental right and a sex-based classification), the enforcement of the marriage statutes as they are currently understood is forbidden by our Constitution unless the State can present a compelling purpose further by the statutes that can be accomplished in no other reasonable manner. Compelling purpose, no other reasonable manner. That sounds like strict scrutiny to me. I guess I could be wrong, though. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [May 4, 2005, 4:08am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/82 "2005-05-04T04:08:00Z")
> [@Dewey Cheatem Undhow](#): > > But in ceding that point, you cede the whole case. Like God in the face of the Babel Fish, your argument disappears in a poof of logic. > > If you cede that there’s an argument to be made in favor the procreative basis for marriage, you cede that such a basis is not irrational (it may not be _persuasive_, but it is not _irrational_). If reasonable minds can differ, then irrationality is not afoot. And if the argument is not irrational, the law must survive rational basis analysis. > > In departing from that analysis, the court is using some alternative test while still calling it “rational basis.” And in doing so, they’re engaging in activism – they are changing the rules of the game to tilt the decision towards an outcome they favor. It is a clever, subtle activism, but if you step back and look beyond the sophistry, I think applying the activist label is perfectly reasonable. I like this argument. You can’t disagree with me over whether the rational basis test has been met, because disagreement entails that it has been. Very slick. You might want to watch the comparison to the Babel fish argument, however, since it entails a contradiction and hence can be used, if its premises are accepted, to prove that black is white, and the next thing you know you’ll be run over at the next zebra crossing. First, we need evidence that MA courts have historically employed the bar-so-low-it’s-just-painted-on-the-floor version of the rational basis test with regards to their interpretation of the state equal protection clause. Second, assuming you pass the first test, you need to show that changing how the rational basis test is applied amounts to activism. It may disrespect _stare decisis_, but neither you nor I think _stare decisis_ is an absolute rule. The low-bar rational basis test isn’t derived from any text anywhere, so shifting to a tiny-bit-higher-bar rational basis test wouldn’t run afoul to anything explicit. Third, you need to show that the case for some higher level of scrutiny is also so weak as to require activist interpretations. (I think we agree that the statute has no chance of passing any higher scrutiny.) Then, and only then, will I concede that the court was activist. The first issue I don’t have a clue about. You can probably come up with something for the second, though whether it will convince me of “activist decision” rather than “bad decision” is an open question. The third I don’t think you can do. ---
**Author:** ![EddyTeddyFreddy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eddyteddyfreddy/32/18796_2.png) [@EddyTeddyFreddy](https://boards.straightdope.com/u/EddyTeddyFreddy)\ **Post date:** [May 4, 2005, 5:28am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/83 "2005-05-04T05:28:35Z")
It’s “the Supreme _ **Judical** _ Court of the Commonwealth of Massachusetts” – “the _ **SJC** _” is the proper acronym. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [May 4, 2005, 5:39am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/84 "2005-05-04T05:39:59Z")
What is the status of the proposed Mass. constitutional amendment that would ban gay marriage but allow civil unions? ---
**Author:** ![Mockingbird](https://avatars.discourse-cdn.com/v4/letter/m/c68b51/32.png) [@Mockingbird](https://boards.straightdope.com/u/Mockingbird)\ **Post date:** [May 4, 2005, 9:51am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/85 "2005-05-04T09:51:43Z")
> [@Diogenes the Cynic](#): > > But the law DID violate their state constitution. That was the ruling of the state supreme court and theirs is the opinion which is binding. > > No they didn’t. All they did was uphold what the constitution already stated. > > You can disagree with their interpretation, but as a matter of procedural fact, that is what happened. The state supreme court reviewed a law and found it violated their own state constitution. It is not “dishonest” for me to say so. Dewey will bullshit his way into perverting the reality of a situation into the dog and pony show he’d like it to be. He has as much validity as the Chicken Lawyer on Futurama selling the Chewbacca defense with less class. ---
**Author:** ![Biffy\_the\_Elephant\_Shrew](https://avatars.discourse-cdn.com/v4/letter/b/e47c2d/32.png) [@Biffy\_the\_Elephant\_Shrew](https://boards.straightdope.com/u/Biffy_the_Elephant_Shrew)\ **Post date:** [May 4, 2005, 11:41am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/86 "2005-05-04T11:41:28Z")
> [@Liberal](#): > > PinkMarabou might be surprised to learn that he’s right wing. 😃 **PinkMarabou** might be even more surprised to learn that he’s a he. ---
**Author:** ![PinkMarabou](https://avatars.discourse-cdn.com/v4/letter/p/ec9cab/32.png) [@PinkMarabou](https://boards.straightdope.com/u/PinkMarabou)\ **Post date:** [May 4, 2005, 12:04pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/87 "2005-05-04T12:04:09Z")
> [@Biffy the Elephant Shrew](#): > > **PinkMarabou** might be even more surprised to learn that he’s a he. If that’s the case, my poor husband will get the shock of his life! He’d be so sad without my volumtuous parts and long red hair. ☹ Female. Very, very, very liberal. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [May 4, 2005, 12:06pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/88 "2005-05-04T12:06:44Z")
> [@Metacom](#): > > So what? > > It’s certainly true that someone who’s left wing can confuse someone who’s right wing, but the comment you responded to was specifically discussing judicial activism, which is primarily a right-wing rallying cry. I don’t hear of many left-wing politicians misusing that specific term. Obviously, that doesn’t mean that they don’t misuse other terms, but hopefully that would be so blatantly obvious that it wouldn’t warrant a comment so I assume you’re obtusely trying to get at something else? I believe that the obtuseness rests on you, since the point I’m making is quite plain. I see both sides talking about judicial activism; the only difference is that one side says it’s rampant while the other says it doesn’t exist. I see both sides talking about the same thing. Meanwhile, your contention has been that one side is misrepresenting what judicial activism is, while the other side (yours, of course) is innocently mislead by the scoundrels. Your bias is almost Wagnerian in its boldness. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 4, 2005, 1:04pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/89 "2005-05-04T13:04:34Z")
> [@PinkMarabou](#): > > If that’s the case, my poor husband will get the shock of his life! He’d be so sad without my volumtuous parts and long red hair… It may surprise you to learn that, despite slanderous opinions to the contrary, the vast majority of men are quite capable of deep and lasting emotional commitments entirely innocent of carnal considerations. Well, maybe not the vast majority. Many, many men. Some. A few. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 4, 2005, 1:51pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/90 "2005-05-04T13:51:12Z")
> [@Liberal](#): > > I see both sides talking about judicial activism; the only difference is that one side says it’s rampant while the other says it doesn’t exist. I think it exists, I just don’t think it’s rampant or that it was present in either Goodrich or in the Schiavo case. For me, a classic example of judicial activism would be the whole cloth fabrication of “Ceremonial Deism,” an imaginary loophole in the 1st Amendment which was concocted solely to preserve Establishment violations. I don’t see conservatives complaining about that one. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [May 4, 2005, 2:11pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/91 "2005-05-04T14:11:39Z")
> [@Gorsnak](#): > > I like this argument. You can’t disagree with me over whether the rational basis test has been met, because disagreement entails that it has been. Very slick. Well, that isn’t quite the argument. The argument is that you can’t say reasonable minds can differ on a question and at the same time say that your opponents are acting irrationally. If you say one, you cannot say the other. Remember, the court in applying rational basis isn’t deciding if procreation is in fact central to marriage; they are only deciding if a rational legislator could hold that view. > [@Gorsnak](#): > > The first issue I don’t have a clue about. You can probably come up with something for the second, though whether it will convince me of “activist decision” rather than “bad decision” is an open question. The third I don’t think you can do. The first and second can be dealt with by simply understanding that rational basis is the polite, legalese way of saying “this isn’t the sort of thing the equal protection clause is supposed to deal with.” The third is dealt with by simply recognizing that we take the case as written: the Massachusetts Supremes did not in fact make the case about a specifically protected class. They could have twisted themselves into making it a gender case, ala Justice O’Connor in _Lawrence_, an approach with rather serious problems of its own, but they did not do so. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [May 4, 2005, 2:12pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/92 "2005-05-04T14:12:42Z")
> [@Mockingbird](#): > > Dewey will bullshit his way into perverting the reality of a situation into the dog and pony show he’d like it to be. > > He has as much validity as the Chicken Lawyer on Futurama selling the Chewbacca defense with less class. And I love you, too, snookums. When come back, bring argument. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [May 4, 2005, 2:14pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/93 "2005-05-04T14:14:00Z")
> [@Diogenes the Cynic](#): > > For me, a classic example of judicial activism would be the whole cloth fabrication of “Ceremonial Deism,” an imaginary loophole in the 1st Amendment which was concocted solely to preserve Establishment violations. Out of curiosity, do you think exempting libel or false advertising from free speech protection is activist? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 4, 2005, 2:28pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/94 "2005-05-04T14:28:54Z")
> [@Dewey Cheatem Undhow](#): > > Out of curiosity, do you think exempting libel or false advertising from free speech protection is activist? If there is no written law exempting those things, then yes, it would be activist for a judge to do it. It would represent a failing on the part of the legislature not have written those exceptions already, not on the bench for being forced to uphold them as free speech. Of course, once the legislature does pass those laws, they are subject to a constitutional test by the judiciary. I may disagree with whatever decsion they make in that regard but it would not be activist for them to disagree with me unless they put words into the constitution. ---
**Author:** ![PinkMarabou](https://avatars.discourse-cdn.com/v4/letter/p/ec9cab/32.png) [@PinkMarabou](https://boards.straightdope.com/u/PinkMarabou)\ **Post date:** [May 4, 2005, 2:42pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/95 "2005-05-04T14:42:26Z")
> [@elucidator](#): > > It may surprise you to learn that, despite slanderous opinions to the contrary, the vast majority of men are quite capable of deep and lasting emotional commitments entirely innocent of carnal considerations. > > Well, maybe not the vast majority. Many, many men. Some. A few. No, my husband would be sad without my “funbags”. I assure you. He would really be confused if I became a man overnight. Then we’d have the issue that DtC and Bricker and DCU are arguing about. 😉 I’m not knocking less-built women here, but it’s pretty obvious that I am a woman. No one is mistaking it when they see what I look like. I didn’t think after looking at my screen name anyone would question it, but you never know. Maybe there are men out there who like their clothes and shoes adorned with [pink marabou.](http://www.5thfloorproductions.com/sepimasl.html) ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [May 4, 2005, 3:52pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/96 "2005-05-04T15:52:19Z")
> [@PinkMarabou](#): > > Maybe there are men out there who like their clothes and shoes adorned with [pink marabou.](http://www.5thfloorproductions.com/sepimasl.html) I know quite a few, actually. Of course, considering the circles I run in… 😃 ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 4, 2005, 4:14pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/97 "2005-05-04T16:14:51Z")
> [@This Year's Model](#): > > What is the status of the proposed Mass. constitutional amendment that would ban gay marriage but allow civil unions? Just barely passed the last session of the Great and General Court (that’s “Legislature” in states whose names are not derived from the Pilgrims). It has to pass again, most likely will not, and that’ll be the end of it. **Bricker** , I do sort of admire your ability to claim that this: > [@](#): > > We are mindful that our decision marks a change in the history of our marriage law. mean this: > [@](#): > > Were they changing the law? Sure they were. How do I know? Because they said, in their opinion They said they were making a change in the _history_ of the law, not the law itself. You’re still strenuously arguing that a court that’s interpreting a law according to the relevant constitution is therefore being impermissibly activist. If they weren’t, they wouldn’t be doing their job. We know this is a matter you get emotional about, sure, but it would help you more to be rational. > [@Dewey](#): > > If the law doesn’t actually violate their state constitution, it is activist to strike down that law. > > This is a really stupid bit of sophistry on your part, BTW. They did “create law”: they effectively crafted a new provision for the Massachusetts constitution out of whole cloth. A more honest poster would recognize that that is what Bricker was referring to. A more honest poster than \*you \* would recognize that the law did indeed violate the MA state constitution. That’s exactly what the ruling _said_. It is not possible that you could not have known that before dumping on \*\*Diogenes \*\* for telling the truth. We know you’re not that stupid - are you? ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [May 4, 2005, 4:24pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/98 "2005-05-04T16:24:43Z")
> [@PinkMarabou](#): > > If that’s the case, my poor husband will get the shock of his life! He’d be so sad without my volumtuous parts and long red hair. We have a lot of volumtuous people in Ohio. The Big and Tall Stores do a whopping business. This is not in any way an observation regarding **PingMarabou**. ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [May 4, 2005, 4:25pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/99 "2005-05-04T16:25:59Z")
> [@Dewey Cheatem Undhow](#): > > Well, that isn’t quite the argument. The argument is that you can’t say reasonable minds can differ on a question and at the same time say that your opponents are acting irrationally. If you say one, you cannot say the other. Wha? (Caution: an analogy taken from abstract mathematics follows. It was the first thing that came to mind, sorry.) Argument A: the smallest hyperbolic 3-manifold is the Weeks manifold. Argument B: the smallest hyperbolic 3-manifold has yet to be found. Argument C: the smallest hyperbolic 3-manifold is a small fluffy fruit bat found only in Antarctica on the days after a full moon. Reasonable minds can differ on whether A or B is correct, but C is irrational, and those two statements are not contradictory. Just because reasonable minds can differ doesn’t automatically mean that _all_ arguments get a pass. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [May 4, 2005, 6:40pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/100 "2005-05-04T18:40:56Z")
> [@Diogenes the Cynic](#): > > If there is no written law exempting those things, then yes, it would be activist for a judge to do it. It would represent a failing on the part of the legislature not have written those exceptions already, not on the bench for being forced to uphold them as free speech. So you therefore believe that the first amendment protects libel and false advertising? Is it activist when the Supreme Court carves out those exceptions? > [@ElvisL1ves](#): > > A more honest poster than you would recognize that the law did indeed violate the MA state constitution. That’s exactly what the ruling said. It is not possible that you could not have known that before dumping on Diogenes for telling the truth. We know you’re not that stupid - are you? Again with the circular reasoning: the ruling’s conclusion is correct because that is what the ruling concluded. > [@Orbifold](#): > > Reasonable minds can differ on whether A or B is correct, but C is irrational, and those two statements are not contradictory. Just because reasonable minds can differ doesn’t automatically mean that all arguments get a pass. Well, I never said that, unless you completely ignore the context of my remarks. In this case, there’s only one premise – marriage’s primary purpose is procreation. If you find that premise to be of the kind over which reasonable minds can differ, even if you disbelieve it yourself, you cannot also say it is irrational. [Previous page](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171.md?page=4) [Next page](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171.md?page=6)