# 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:** 6
**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, 7:01pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/101 "2005-05-04T19:01:05Z")
> [@Dewey Cheatem Undhow](#): > > So you therefore believe that the first amendment protects libel and false advertising? I don’t know. That’s for the Supreme Court to decide. I think that it’s perfectly reasonable for the legislature to draft such laws and allow them to be tested. > [@](#): > > Is it activist when the Supreme Court carves out those exceptions? If they do it all by themselves without a prior written law, then yes. But it would _not_ be activist them to decide that an anti-libel law drafted by a state legislature violated the first amendment and to strike it down. I might strongly disagree with the decision but it wouldn’t be activism. > [@](#): > > 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. I do _not_ believe that any reasonable person actually believes that, especially if they are willing to grant the privelege to heterosexual couples who have no theoretical chance of producing natural children. I certainly don’t believe you would be able to find a single legislator who would say that. ---
**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, 7:02pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/102 "2005-05-04T19:02:56Z")
> [@Dewey Cheatem Undhow](#): > > Well, I never said that, unless you completely ignore the context of my remarks. Clearly, context is a poor communication medium. However, you have clarified your point and I now see what you meant. Thank you. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [May 4, 2005, 7:03pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/103 "2005-05-04T19:03:11Z")
> [@Dewey Cheatem Undhow](#): > > 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. How about if a judge rules that it isn’t rational, does that make the judge “activist?” ---
**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, 7:08pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/104 "2005-05-04T19:08:30Z")
> [@Dewey Cheatem Undhow](#): > > Again with the circular reasoning: the ruling’s conclusion is correct because that is what the ruling concluded. Again with the dishonest avoidance. If you’re not asserting that the man+woman-only law was indeed in accordance with the MA Constitution’s equal rights protections by some reasonable, historically-supported chain of argument, the rest follows. \*Are \* you asserting that, or are you just being a dick again? > [@](#): > > 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. There is no reasonable position that that has ever been the case, that marriage has ever been wholely or even primarily about procreation. Unless you’re also asserting that couples past the age of childrearing may not entitled to be married, you cannot claim that “reasonable minds may differ” about it. Or are you just being a dick again about that, too? You and **Bricker** seem determined to be the kind of lawyers who give the other one percent a bad name. ---
**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, 9:20pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/105 "2005-05-04T21:20:47Z")
> [@Diogenes the Cynic](#): > > I don’t know. That’s for the Supreme Court to decide. I think that it’s perfectly reasonable for the legislature to draft such laws and allow them to be tested. You don’t get off that easy. What you’re doing is allowing the Court to do your thinking for you. I asked what you thought the first amendment meant in terms of libel. Why are you willing to assert what that amendment means with regard to, say, “In God We Trust” on money, but not in the case of libel law? > [@Diogenes the Cynic](#): > > If they do it all by themselves without a prior written law, then yes. Libel is a common-law tort. I beseech you to answer in light of this new information. > [@Diogenes the Cynic](#): > > I do _not_ believe that any reasonable person actually believes that, especially if they are willing to grant the privelege to heterosexual couples who have no theoretical chance of producing natural children. I certainly don’t believe you would be able to find a single legislator who would say that. So is it your position that any law which is not perfectly inclusive with respect to its purpose is irrational? That its supporters are also irrational? ---
**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, 9:24pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/106 "2005-05-04T21:24:18Z")
> [@Hamlet](#): > > How about if a judge rules that it isn’t rational, does that make the judge “activist?” Depends on how laughable his argument for irrationality is. In this case, saying as much would put the _Goodridge_ majority in the position of saying that three of their colleagues were not just wrong, but irrational. It would also require ignoring the data those colleagues cited to in their dissent. ---
**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, 9:47pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/107 "2005-05-04T21:47:26Z")
> [@Dewey Cheatem Undhow](#): > > You don’t get off that easy. What you’re doing is allowing the Court to do your thinking for you. I asked what you thought the first amendment meant in terms of libel. Why are you willing to assert what that amendment means with regard to, say, “In God We Trust” on money, but not in the case of libel law? Are all constitutional questions equally easy to analyze? Is it unreasonable to have an opinion that one thing is more clearly violative than another thing? In the case of false advertising, I think that a case can be made that it is not free speech, _per se_ but a use of speech designed to defraud others for pecuniary gain, and as such, the fraud is not protected In the case of libel, I’m less sure. I’m sure that a case could be made that if the person who was libeled was damaged by it, and the libeler knew the libel was false, then the victim should be entitled to civil damages, but I don’t KNOW that it’s a slam dunk exception to free speech. I think it’s a gray area in some regards. I would not thnk it necessarily outrageous if the Supreme Court decided it was protected. I don’t have an opinion that I would feel completely confident defending as constitutional but my impulse, of course, is to say that people have a right not to be lied about in print, or at least should have the ability to be compensated if they are damaged by those lies. > [@](#): > > Libel is a common-law tort. I beseech you to answer in light of this new information. I don’t know enough about the authority of common law to be able give you an informed opinion. I will say that I’m not comfortable with judges making decisions based on laws which are not written down. > [@](#): > > So is it your position that any law which is not perfectly inclusive with respect to its purpose is irrational? That its supporters are also irrational? The MA law _was_ perfectly inclusive with respect to this hypothetical purpose of procreation. It did not exclude any hetero couple who was theoretically capable of producing natural children. The problem was that it was imperfectly _ex_clusive. It excluded some people who could not have children but did not exclude all people who could not have children, and there was no rational basis for deciding who could be excluded and who could not. ---
**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, 10:31pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/108 "2005-05-04T22:31:16Z")
> [@ElvisL1ves](#): > > Again with the dishonest avoidance. If you’re not asserting that the man+woman-only law was indeed in accordance with the MA Constitution’s equal rights protections by some reasonable, historically-supported chain of argument, the rest follows. \*Are \* you asserting that, or are you just being a dick again? As I’ve said in the past, I am not licensed in Massachusetts and am not familiar with the legislative history behind the adoption of their state constitution and its attendant amendments. Thus, I cannot say with total certainty that their equal protection clause would not mandate recognition of gay mariages by the state. Having said that, if such a history existed, I’m pretty sure the _Goodridge_ majority would have mentioned it. > [@ElvisL1ves](#): > > There is no reasonable position that that has ever been the case, that marriage has ever been wholely or even primarily about procreation. Unless you’re also asserting that couples past the age of childrearing may not entitled to be married, you cannot claim that “reasonable minds may differ” about it. Or are you just being a dick again about that, too? I’ll ask you what I asked **Dio** : is it your position that a law must be perfectly inclusive as to its intended purpose in order to be rational? Again, I’m not terribly persuaded by the procreation argument, but the “not perfectly inclusive” line of attack does not render it irrational. ---
**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, 10:45pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/109 "2005-05-04T22:45:45Z")
> [@Diogenes the Cynic](#): > > Are all constitutional questions equally easy to analyze? Is it unreasonable to have an opinion that one thing is more clearly violative than another thing? OK, I’ll give you an easier one: shouting fire in a crowded theatre. May the state constitutionally prohibit such speech, and on what grounds? > [@Diogenes the Cynic](#): > > In the case of false advertising, I think that a case can be made that it is not free speech, _per se_ but a use of speech designed to defraud others for pecuniary gain, and as such, the fraud is not protected. I could make the same argument for antisedition laws: it’s just a use of speech designed to foment treason, and as such it is the fomenting of treason that is not protected. Far easier, I think, to simply say it’s an exception to the general rule in favor of free speech. > [@Diogenes the Cynic](#): > > In the case of libel, I’m less sure. I’m sure that a case could be made that if the person who was libeled was damaged by it, and the libeler knew the libel was false, then the victim should be entitled to civil damages, but I don’t KNOW that it’s a slam dunk exception to free speech. I think it’s a gray area in some regards. I would not thnk it necessarily outrageous if the Supreme Court decided it was protected. I don’t have an opinion that I would feel completely confident defending as constitutional but my impulse, of course, is to say that people have a right not to be lied about in print, or at least should have the ability to be compensated if they are damaged by those lies. Why is this easier to defend than “In God We Trust”? More to the point, why is it OK for a court to uphold the constitutionality of the former, but not the latter? > [@Diogenes the Cynic](#): > > The MA law _was_ perfectly inclusive with respect to this hypothetical purpose of procreation. It did not exclude any hetero couple who was theoretically capable of producing natural children. The problem was that it was imperfectly _ex_clusive. It excluded some people who could not have children but did not exclude all people who could not have children, and there was no rational basis for deciding who could be excluded and who could not. Serves me right for trying to save keystrokes. By “perfectly inclusive,” I was trying to get at “neither over- nor under-inclusive.” So, let me ask the question again in slightly different form: Is it your position that any law which is over- or under-inclusive (or both) with respect to its purpose is irrational? That its supporters are also irrational? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 5, 2005, 1:34am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/110 "2005-05-05T01:34:51Z")
> [@Dewey Cheatem Undhow](#): > > As I’ve said in the past, I am not licensed in Massachusetts and am not familiar with the legislative history behind the adoption of their state constitution and its attendant amendments. Thus, I cannot say with total certainty that their equal protection clause would not mandate recognition of gay mariages by the state. That’s one of the more weasely ways we’ve seen here of admitting to being wrong. Funny how your lack of familiarity with the case doesn’t prevent you from blathering on about it, isn’t it? As you do here: > [@](#): > > In this case, saying as much would put the Goodridge majority in the position of saying that three of their colleagues were not just wrong, but irrational. It would also require ignoring the data those colleagues cited to in their dissent. If you had actually read the dissents, you’d have noted that they’re not based on “data”, but on the concept that the decision properly lies with the legislature and not the courts. Why the hell do you think you can offer legal opinions here, even under an alias, when you are so transparently ignorant of the subject matter? Is that ethical? Here’s a fucking hint for you: The job of interpretation belongs to the Supreme Court. They so interpreted. You have offered no argument to suggest that they were wrong, just childish denunciations of those who suggest there aren’t any. Who are you trying to convince, and of what? Huh? > [@](#): > > I’ll ask you what I asked **Dio** : is it your position that a law must be perfectly inclusive as to its intended purpose in order to be rational? Right after you tell us whether or not you think your newly-discovered history that the purpose of marriage is defined to be procreation is rational or not. No more weaseling like this, please: > [@](#): > > Again, I’m not terribly persuaded by the procreation argument, but the “not perfectly inclusive” line of attack does not render it irrational. Nobody but you has said a fucking thing about inclusiveness. The issue is rationality. You ain’t got it. Now go find a clue before you embarrass yourself, your colleagues, and your profession any further. ---
**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 5, 2005, 2:25am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/111 "2005-05-05T02:25:06Z")
> [@Dewey Cheatem Undhow](#): > > OK, I’ll give you an easier one: shouting fire in a crowded theatre. May the state constitutionally prohibit such speech, and on what grounds? I’ve actually always thought Olly Holmes was kind of full of shit on that one. Whether the State can constitutionally prohibit it is for the court to decide. I will say that the court cannot proactively prohibit that speech if the state has not already done so. > [@](#): > > I could make the same argument for antisedition laws: it’s just a use of speech designed to foment treason, and as such it is the fomenting of treason that is not protected. Far easier, I think, to simply say it’s an exception to the general rule in favor of free speech. Maybe. As long as those exceptions are written by in the legislature and not on the bench (and as long as they are found constitutional by the bench). > [@](#): > > Why is this easier to defend than “In God We Trust”? More to the point, why is it OK for a court to uphold the constitutionality of the former, but not the latter? I don’t know that is _is_ constitutional to uphold the former but I will say there is a difference insofar as a free speech exception for fraud and libel serves to prevent public harm. “Ceremonial Deism” prevents no harm at all. It does not protect anybody from being damaged. There is no public interest being served by drawing the exception. There is no negative consequence in removing it. It’s a pointless exemption. > [@](#): > > Serves me right for trying to save keystrokes. By “perfectly inclusive,” I was trying to get at “neither over- nor under-inclusive.” So, let me ask the question again in slightly different form: > > Is it your position that any law which is over- or under-inclusive (or both) with respect to its purpose is irrational? My position is that a law which _disciminates_ irrationally violates _Equal Protection_ > [@](#): > > That its supporters are also irrational? This is kind of a strawman, I think. Just because I think a person supports one bad law or has one irrational prejudice does not mean that I think the whole person is irrational. I believe that we probably all have some beliefs which are not completely rational, though we may not always be aware of it. I don’t think any human is going to 100%, perfectly rational on every single issue, especially when religion gets involved (and before I get piled, I don’t mean that religion is irrational, I mean that _disagreements_ about religion often tend to cloud rationality). ---
**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 5, 2005, 2:37pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/112 "2005-05-05T14:37:31Z")
> [@ElvisL1ves](#): > > That’s one of the more weasely ways we’ve seen here of admitting to being wrong. I haven’t admitted to being wrong, and I’m really not sure how you could get that out of what I actually wrote. Did you not bother to read the next sentence? The one where I wrote “Having said that, if such a history existed, I’m pretty sure the Goodridge majority would have mentioned it.”? All I’m saying is that while it’s theoretically possible that this history behind the authorship of the Massachusetts constitution would support _Goodridge_, I think that’s pretty damn unlikely. I also have yet to see any evidence from _Goodridge_ supporters to that effect. > [@ElvisL1ves](#): > > Funny how your lack of familiarity with the case doesn’t prevent you from blathering on about it, isn’t it? As you do here:If you had actually read the dissents, you’d have noted that they’re not based on “data”, but on the concept that the decision properly lies with the legislature and not the courts. I have read the case, and I specifically referenced the portion of the dissent to which I was referring. To wit: the dissent cites to several sources for the proposition that procreation is central to marriage. It does so in the context of rational basis analysis. Read it for yourself. Section C.2. of Justice Cordy’s dissent. Here’s a [link to the opinion](http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html) again in case you missed it earlier. > [@ElvisL1ves](#): > > Why the hell do you think you can offer legal opinions here, even under an alias, when you are so transparently ignorant of the subject matter? Is that ethical? Come again? Where exactly have I been transparently ignorant? > [@ElvisL1ves](#): > > Here’s a fucking hint for you: The job of interpretation belongs to the Supreme Court. They so interpreted. You have offered no argument to suggest that they were wrong, just childish denunciations of those who suggest there aren’t any. Who are you trying to convince, and of what? Huh? No, really, have you bothered to read my posts at all? No argument? What the hell do you think all this discussion about the rational basis test has been about? > [@ElvisL1ves](#): > > Right after you tell us whether or not you think your newly-discovered history that the purpose of marriage is defined to be procreation is rational or not. No more weaseling like this, please: Nobody but you has said a fucking thing about inclusiveness. The issue is rationality. You ain’t got it. Indeed, the issue is rationality. You and Dio have suggested that the position that procreation is central to marriage is irrational in part because we allow couples to marry who cannot have children. So I’m trying to clarify your position. Are you saying that mere over- or under-inclusiveness with respect to a stated purpose renders a law irrational? I also take issue with your characterization of my remarks as “weaseling.” Surely you can disagree with someone and not also think them irrational. I disagree that procreation is the principal purpose of marriage, but I do not think that holders of that viewpoint are necessarily irrational in their position. That’s all I said. Why is that “weasely”? ---
**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 5, 2005, 2:53pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/113 "2005-05-05T14:53:10Z")
> [@Diogenes the Cynic](#): > > I don’t know that is _is_ constitutional to uphold the former but I will say there is a difference insofar as a free speech exception for fraud and libel serves to prevent public harm. “Ceremonial Deism” prevents no harm at all. It does not protect anybody from being damaged. There is no public interest being served by drawing the exception. There is no negative consequence in removing it. It’s a pointless exemption. You mean, other than the fact that a lot of people want those things? Certainly a lot of people think it is in the public interest to have such benign displays. And where do you get this “public harm” basis for free speech exceptions anyway? My point, in any event, is that strict constructionists allow all of these unwritten exceptions – libel to free speech, benign religious displays to the establishment clause – because historically the authors of the first amendment understood that the text did not protect or prevent those things. Even a hard-core Scaliaite textualist would look to see how a legal term of art was understood at the time of its writing. I don’t think you can be an establishment clause fundamentalist and simultaneously take a more moderate view of free speech. And I think that’s the paradox your stated position puts you in. > [@Diogenes the Cynic](#): > > My position is that a law which _disciminates_ irrationally violates _Equal Protection_ Well, sure, but I’m trying to get at how you measure whether a given type of discrimination is irrational. Let me ask for a third time: Is it your position that any law which is over- or under-inclusive (or both) with respect to its purpose is irrational? > [@Diogenes the Cynic](#): > > This is kind of a strawman, I think. Just because I think a person supports one bad law or has one irrational prejudice does not mean that I think the whole person is irrational. Well, I didn’t mean to imply that. Allow me to rephrase: do you believe that a person who supports a law that is under- or over-inclusive with respect to its purpose is acting irrationally with regard to that law? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 5, 2005, 3:30pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/114 "2005-05-05T15:30:17Z")
> [@Dewey Cheatem Undhow](#): > > I haven’t admitted to being wrong Sure you have. We can all read between the lines. > [@](#): > > All I’m saying is that while it’s theoretically possible that this history behind the authorship of the Massachusetts constitution would support _Goodridge_, I think that’s pretty damn unlikely. I also have yet to see any evidence from _Goodridge_ supporters to that effect. You have the decision itself. That’s all anyone needs. You have access to the reasoning in it, too - and, as already stated, you haven’t called it wrongly decided, either - just derided it as “activist”. > [@](#): > > To wit: the dissent cites to several sources for the proposition that procreation is central to marriage. It does so in the context of rational basis analysis. It uses the forms but not the content. The proposition is patently a recent invention specifically created to rebut the one that equal rights means equal rights. One of those propositions has the force of history behind, one does not, despite your insistence on calling it “data”. The one that does not is not even the product of reasoning or reasonability, and yes, that makes it “irrational”. > [@](#): > > Come again? Where exactly have I been transparently ignorant? By admitting you didn’t have the background to make the claim above. > [@](#): > > No, really, have you bothered to read my posts at all? No argument? What the hell do you think all this discussion about the rational basis test has been about? The search to find that such a rational basis existed, or even could exist. There is none, no rational one as already noted, and therefore there is no argument. You’ve in effect shown us an MS Word template for a document and claimed to be a document. > [@](#): > > You and Dio have suggested that the position that procreation is central to marriage is irrational in part because we allow couples to marry who cannot have children. It is partly that, and partly its transparent post-hoc rationalization, with no grounding in historical fact. > [@](#): > > Are you saying that mere over- or under-inclusiveness with respect to a stated purpose renders a law irrational? Not the point. Don’t be obtuse - you know you can’t get away with that. The problem with your attempt at an argument here is _non_-inclusiveness - there is no historical or cultural basis for it. > [@](#): > > I also take issue with your characterization of my remarks as “weaseling.” Surely you can disagree with someone and not also think them irrational. I am happy to call your claims “bullshit” instead, if you prefer, although the term is less precise. That gives them no higher probative value, of course. Just for the sake of fun: Was the MA decision wrongly arrived at? Was the prohibition against SSM not in violation of the state constitution’s equal rights protection? Does a claim to the contrary have any basis outside its proponents wish that there were one? A simple yes or no, which you have not yet provided despite your obfuscatory furor, would be welcome, but frankly not expected. ---
**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 5, 2005, 4:21pm UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/115 "2005-05-05T16:21:15Z")
> [@Dewey Cheatem Undhow](#): > > You mean, other than the fact that a lot of people want those things? Certainly a lot of people think it is in the public interest to have such benign displays. What a lot of people want is irrelevant. The government is not permitted to violate the establishment Clause no matter how many people want it. That’s the whole point. “tyranny of the majority” and all that. The question of whether the state may endorse a particular religious view is not subject to public referendums. > [@](#): > > And where do you get this “public harm” basis for free speech exceptions anyway? I didn’t say it was a basis for exeptions. I’m not convinced that it is. I was just pointing out that if a case needed to be made for a difference between libel laws, etc and Ceremonial Deism, that was it. Some exceptions arguably protect a greater good and others do not. I’m not trying to argue that the “public harm” basis is necessarily constitutionally legitimate, I’m just saying that at least it’s an _argument_. The public can be damaged without thsoe exceptions. The public _cannot_ be damaged by taking “In God We Trust” off the quarters. > [@](#): > > My point, in any event, is that strict constructionists allow all of these unwritten exceptions – libel to free speech, benign religious displays to the establishment clause – because historically the authors of the first amendment understood that the text did not protect or prevent those things. Even a hard-core Scaliaite textualist would look to see how a legal term of art was understood at the time of its writing. I still think it’s activism. I think those exceptions need to be drafted by the legislature, not by judges. > [@](#): > > I don’t think you can be an establishment clause fundamentalist and simultaneously take a more moderate view of free speech. And I think that’s the paradox your stated position puts you in. But I haven’t contradicted myself. I think I’ve said clearly that I believe it’s just as activist for a judge to create a libel exception as to create Ceremonial Deism. I think the legislature has to write the exceptions and the courts have to decide if they’re constitutional. I may agree that some exceptions should exist but I _don’t_ believe it’s the place of the courts to create them, even if I philosophically believe those exceptions should exist. > [@](#): > > Well, sure, but I’m trying to get at how you measure whether a given type of discrimination is irrational. Let me ask for a third time: Is it your position that any law which is over- or under-inclusive (or both) with respect to its purpose is irrational? I think I may just be having a little trouble parsing the semantic intent behind your question. Is it possible to say that I think a particular exception _within_ a law is irrational without saying the entire law is irrational? If you’re asking for an all or nothing pronouncement on the law as a whole, then I would have to say that a law which discriminates arbitrarily and without regard to its stated purpose is irrational, yes. > [@](#): > > Well, I didn’t mean to imply that. Allow me to rephrase: do you believe that a person who supports a law that is under- or over-inclusive with respect to its purpose is acting irrationally with regard to that law? Yes. ---
**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 6, 2005, 12:32am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/116 "2005-05-06T00:32:54Z")
> [@ElvisL1ves](#): > > Sure you have. We can all read between the lines. I don’t write between the lines. > [@ElvisL1ves](#): > > You have the decision itself. That’s all anyone needs. The majority opinion is silent on the question of whether the authors of the Massachusetts constitution intended it to encompass gay marriage. Again, I’m wondering if you’ve read it. > [@ElvisL1ves](#): > > You have access to the reasoning in it, too - and, as already stated, you haven’t called it wrongly decided, either - just derided it as “activist”. Well, I think saying the latter implies the former. > [@ElvisL1ves](#): > > It uses the forms but not the content. The proposition is patently a recent invention specifically created to rebut the one that equal rights means equal rights. One of those propositions has the force of history behind, one does not, despite your insistence on calling it “data”. The one that does not is not even the product of reasoning or reasonability, and yes, that makes it “irrational”. Actually, what I called “data” were the legal and academic sources cited by the dissent. What would you prefer I call them? And again, have you actually read the damn thing? You can’t just wish those away. And even if you do not find them ultimately persuasive (as I’ve said, I’m not), I do not think you can call those who give them greater weight “irrational.” > [@ElvisL1ves](#): > > By admitting you didn’t have the background to make the claim above. I don’t think you’re reading what I actually wrote terribly carefully. Try again. > [@ElvisL1ves](#): > > The search to find that such a rational basis existed, or even could exist. There is none, no rational one as already noted, and therefore there is no argument. You’ve in effect shown us an MS Word template for a document and claimed to be a document. Gee, assume your conclusions muich? > [@ElvisL1ves](#): > > Not the point. Don’t be obtuse - you know you can’t get away with that. Well, it quite is the point. I’m trying to get a handle on your standard for irrationality. Is over- or under-inclusiveness with regard to a law’s purpose sufficient to render such a law irrational in your view? > [@ElvisL1ves](#): > > The problem with your attempt at an argument here is _non_-inclusiveness - there is no historical or cultural basis for it. No basis at all? What of the authority cited by the dissent? > [@ElvisL1ves](#): > > Just for the sake of fun: Was the MA decision wrongly arrived at? Was the prohibition against SSM not in violation of the state constitution’s equal rights protection? Does a claim to the contrary have any basis outside its proponents wish that there were one? I am virtually certain that the answers to these questions are “yes,” “yes,” and “no,” although as I’ve said, I am not familiar enough with the history of the authorship of the Massachusetts constitution to say so with absolute certainty. While it is theoretically possible that those authors intended their language to envelop gay marriage, I consider that possibility to be extremely remote, to put it mildly. > [@ElvisL1ves](#): > > A simple yes or no, which you have not yet provided despite your obfuscatory furor, would be welcome, but frankly not expected. Have you stopped beating your wife? A simple yes or no, please. ---
**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 6, 2005, 12:46am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/117 "2005-05-06T00:46:10Z")
> [@Diogenes the Cynic](#): > > What a lot of people want is irrelevant. The government is not permitted to violate the establishment Clause no matter how many people want it. That’s the whole point. “tyranny of the majority” and all that. The question of whether the state may endorse a particular religious view is not subject to public referendums. Well, I’d say it’s hardly irrelevant, at least not in the sense that it matters not a whit. Laws and practices are presumed constitutional for a reason – we defer to the majority in the absence of a clear constitutional violation. > [@Diogenes the Cynic](#): > > I still think it’s activism. I think those exceptions need to be drafted by the legislature, not by judges. Again, libel is a common-law tort, developed over time by judges. True, some states have codified that stuff, but that’s a modern invention. > [@Diogenes the Cynic](#): > > I think I’ve said clearly that I believe it’s just as activist for a judge to create a libel exception as to create Ceremonial Deism. I think the legislature has to write the exceptions and the courts have to decide if they’re constitutional. Good. At least you’re on record as a constitutional wingnut who won’t be taken seriously by any serious school of constitutional thought, from the strictest of strict constructionists to the loosest living constitutionalist. > [@Diogenes the Cynic](#): > > > [@Dewey Cheatem Undhow](#): > > > > Well, I didn’t mean to imply that. Allow me to rephrase: do you believe that a person who supports a law that is under- or over-inclusive with respect to its purpose is acting irrationally with regard to that law? > > Yes. So, say, setting the driving age at 16 is irrational? Not just bad public policy, but _irrational_? Because plenty of kids under that age are presumably mature enough to handle the responsibility of driving, and plenty of adults aren’t. The law is both overinclusive and underinclusive with respect to its purpose. So is it irrational? ---
**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 6, 2005, 1:21am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/118 "2005-05-06T01:21:55Z")
> [@Dewey Cheatem Undhow](#): > > Well, I’d say it’s hardly irrelevant, at least not in the sense that it matters not a whit. Laws and practices are presumed constitutional for a reason – we defer to the majority in the absence of a clear constitutional violation. In the case of state endorsements of religion, there is no such absence. > [@](#): > > Again, libel is a common-law tort, developed over time by judges. True, some states have codified that stuff, but that’s a modern invention. Again, I don’t know enough about the authority of common law to ahve an opinion about it, and I am far more comfortable when the law is officially codified. > [@](#): > > Good. At least you’re on record as a constitutional wingnut who won’t be taken seriously by any serious school of constitutional thought, from the strictest of strict constructionists to the loosest living constitutionalist. If you say so. > [@](#): > > So, say, setting the driving age at 16 is irrational? Not just bad public policy, but _irrational_? > > Because plenty of kids under that age are presumably mature enough to handle the responsibility of driving, and plenty of adults aren’t. The law is both overinclusive and underinclusive with respect to its purpose. > > So is it irrational? I think that in order to make this analogy more accurate the law would have to extend a right to some people who have no theoretical ability of fulfilling the purpose of the privelege while excluding others. For instance, if the alleged purpose of the law is to prevent unsafe drivers from driving but a special exception is made for unsafe drivers with red hair, then the law is irrational. ---
**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 6, 2005, 2:05am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/119 "2005-05-06T02:05:26Z")
> [@Diogenes the Cynic](#): > > I think that in order to make this analogy more accurate the law would have to extend a right to some people who have no theoretical ability of fulfilling the purpose of the privelege while excluding others. For instance, if the alleged purpose of the law is to prevent unsafe drivers from driving but a special exception is made for unsafe drivers with red hair, then the law is irrational. But it does. The purpose of the law is to prevent unsafe drivers, but there is an exception for unsafe (but as-yet accident-free) drivers aged 16 or older. The point I’m driving at is that adminstrative convenience allows laws to be under- or over-inclusive. We use 16 as a driving cutoff because it’s too difficult to investigate the driving proclivities of each individual driver (we test 'em, sure, but that tells us nothing about their daily driving habits). Similarly, one can believe that marriage is principally about procreation and still accept that barren couples may marry because it’s simply too difficult to screen the fertile from the barren. ---
**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 6, 2005, 2:22am UTC](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171/120 "2005-05-06T02:22:37Z")
I still think the car analogy would require an exception for people who are _known_ to have no theoretical chance of being able to drive safely. For instance, if the law allowed blind people to drive but not people with Downs Syndrome. And the special exception in the marriage laws does not just include people who have not been tested for fertility but people for whom it is unequivocally known have no theoretical chance of conception. Do you believe it would be rational and within the purpoes of marriage laws to make it illegal for a woman who has had a hysterectomy to get married? There is no need for testing there. What about women who are past menopause? What about a cutoff age? [Previous page](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171.md?page=5) [Next page](https://boards.straightdope.com/t/pat-robertson-claims-federal-judges-are-greater-threat-than-al-qaeda-nazi-germany/302171.md?page=7)