Pat Robertson claims federal judges are greater threat than al Qaeda/Nazi Germany

[Hamlet]

@Bricker

Well, I’ve briefly reviewed the opinion.

I did also. I’d appreciate any corrections or suggestions you would have about my description of the decision. Here’s what I took from it:

Section 29 reads: Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

The court found that the Amendment violated the First Amendment, Equal Protection, and amounted to a Bill of Attainder.

First Amendment: The First Amendment protections that the Court considered were the freedom of association, which, in turn, is divided into two separate ideas: the right to relationships and the right to petition for redress. As to the right to relationships, the Court indicated there were two different kinds of relationships involved, those of expressive (speech) association, and those of intimate association. The court stated:

As applied to the undisputed facts of this case, the court finds that Section 29, as written and as applied, imposes significant burdens on both the expressive and intimate associational rights of plaintiffs’ members and creates a significant barrier to the plaintiffs’ right to petition or to participate in the political process. Although not central to disposition of this case, the court finds Section 29 burdens rights of intimate association. The amendment goes far beyond merely defining marriage as between a man and a woman. By its terms, Section 29 mandates that Nebraska will not recognize or give effect to “the uniting of two persons” in a same-sex relationship “similar to” marriage. This language, especially given the expansive reading it has been afforded in Nebraska, potentially prohibits or at least inhibits people, regardless of sexual preference, from entering into numerous relationships or living arrangements that could be interpreted as a same-sex relationship “similar to” marriage.

The court also went on to find that Section 29 would deny citizens the right to seek a myriad of benefits from the legislature, including seeking such horrible things as hospital visitation, domestic partnerships benefits, health care benefits, organ donation and funeral arrangements, bereavement leave, private employer benefits, survivorship benefits and adoption. So the court found that Section 29 was unconstitutional because it was vague and overbroad in it’s reach of First Amendment rights.

The Court also found Section 29 was unconstitutional because it violated Equal Protection. In that discussion, the Court, to no one’s surprise, relied heavily on the Supreme Court decision in Romer v. Evans. It stated: “The court finds that Section 29 is indistinguishable from the Colorado constitutional amendment at issue in Romer.” It went on to say:

Although not mentioned by name, the State has focused primarily on the same class of its citizens as did Colorado. Through Section 29, the State of Nebraska attempts to limit the rights of that same class to obtain legal protections for themselves or their children in a “same-sex” relationship “similar to” marriage. Like the amendment at issue in Romer, Section 29 attempts to impose a broad disability on a single group. Also, as in Romer, the lack of connection between the reach of the amendment and its purported purpose is so attenuated that it provides evidence that Section 29 has no rational relationship to any legitimate state interest.

Of course, here is my favorite part of the ruling:

The State contends that a majority of Nebraska citizens have decided that Section 29 is the will of the people. In most instances, the popular vote carries much weight and should be afforded great deference. However, “[o]ne’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). Further, “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736 (1964).

“[The framers of the Bill of Rights] knew times can blind us to certain truths and later generations can see the laws once thought necessary and proper in fact serve only to oppress.” Lawrence v. Texas, 539 U.S. at 579. “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Dep’t. of Agriculture v. Moreno, 413 U.S. at 534. The court finds that Section 29 inflicts “immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.” Romer, 517 U.S. at 635.

Simple and elegant.

Finally, the court found the Amendment to be a Bill of Attainder, that had the effect of unconstitutionally punishing a group of people.

Very interesting case. I, too, await the opinion of the Eighth Circuit. I think, as predicted, that Romer had a huge influence on the judge here, and will in the Eighth Circuit.

[Hamlet]

@Shodan

Well, if you are suggesting that the legislature should simply remove the topic of gay marriage from the jurisdiction of the courts, that would be fine with me, and respectful of the Constitution. And I would be perfectly happy with the impeachment and removal from office of any judge who tried to impose a new right of gay marriage by fiat.

Just so I know, it appears it’s not just a process issue with you, unlike Bricker or Dewey. Are you against gay marriage? Could you give me your reasoning?

@Shodan

So characterizing anyone who refuses to support gay marriage is a bigot, and that is fair debate, but refusing to allow your political opponents to define a problem so that it cannot be resolved except on their terms is not?

:shrugs:

Note: I didn’t call you bigot. Don’t let little things like fact and reality get to you though. Shrug all you like, I’ve laid out precisely my problem with attempting to debate with you.

@Shodan

f you find it so trying to debate someone who disagrees with you, good luck finding a thread in GD or the Pit. You’re as bad (almost) as that Scott_plaid idiot. If you don’t want to debate, then don’t debate. Chiming back in periodically with “I could refute you, but I won’t bother because you’re such a meanie that you don’t accept my argument without question” is a waste of electrons.

Note: that’s not what I said either. I have no problem debating with Bricker or Dewey or anyone who pays attention and doesn’t constantly misstate what I say. The problem is you, fuckwad, not the debate.

@Shodan

I’ve already mentioned that. I guess that makes me a grown-up. Who’da thought?

Until this very thread, I would’ve. Thanks for proving me wrong though.

@Shodan

The right to gay marriage? It doesn’t appear in the Constitution. I got there by reading the Constitution. If all this stuff:
is code-speak for gay marriage, the Constitution doesn’t address them because they aren’t there.

It ain’t “code speak” for anything, doofus, they’re all rights that have been recognized over and over by the judiciary.

So, it is fair to say you refuse to recognize those as rights protected in by the Constitution? All the judicial precedent be damned. And each of those is fair game for the legislature to do with as they will? Wow. Just… Wow.

@Shodan

Sounds good to me. Are you asserting that “people” here means courts? Or are you going to produce the evidence that the conscience of the county is so shocked at the notion of denying gay marriage that they vote in its favor overwhelmingly? Or that gay marriage is so fundamental to our traditions that it has been well-established in the common law for the last century?
Not at all hard. Now apply the same concepts to the courts, and we are home free

Just wondering if you think that rights can be found outside of the text of the Constitution. Seems to me, and the Supreme Court, that rights such as “no right to intimacy, no right to privacy, no right to court paid attorneys, no right to marry, no right to not marry, no right to celibacy, no right to raise you own child.” would fit that definition. Just trying to understand where you’re coming from. And the more I learn, the scarier it is.

[Hamlet]

@John Mace

When I say the Constitution isn’t about enumerating rights, I mean that (per the 9th amendment) rights don’t have to be listed in order to exist. But that isn’t really the main point. The main point is that the constution exists to define the scope of governmental powers. There is nothing in the constitution granting the state the right to regulate the sexual activities of adults.

So it was a matter that the anti-sodomy laws were not enacted pursuant to the “general welfare” clause rather than because the law infringed upon some right? IIRC, that’s part of the ruling in some of the State level courts striking down sodomy laws. Texas didn’t buy it though. Intriguing idea that I never really thought about.

@JohnMace

I didn’t say “enact”, I said expand. Even if I accept the right to marriage, per the SC in Loving, it all depends on what the defintion of “marriage” is. What do you think the justices meant when they used that term? Did they mean “the union of a man and a woman” or "the union of any two people’ or “the union of any number of people”? Also, your assertion assumes that the SC, today, would recognize the right of same sex couples to marry. Do you really thing that is so? If not, what does the right to marriage mean?

Well, as Justice Greavey stated in Goodridge: “A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide.” Under Mass. law, homosexuals were not denied the right to marry, they could marry anyone of the opposite sex that they wanted to. They were just denied the right to marry the person of their choice. That’s the problem.

[John_Mace]

@Hamlet

So it was a matter that the anti-sodomy laws were not enacted pursuant to the “general welfare” clause rather than because the law infringed upon some right? IIRC, that’s part of the ruling in some of the State level courts striking down sodomy laws. Texas didn’t buy it though. Intriguing idea that I never really thought about.

I have to admit that I’m more or lessing guessing that the Texas state constitution does not authorize the state to regulate the private sex lives of its citizens. I can’t claim to have read that constitution. If, in fact it does explicitly allow that regulation, then I will stand corrected.

IANAL, and you are, so help me out here… A general welfare clause has to have some limits on it, otherwise it can be used to justify any state action. It’s unclear to me how someone could argue that the private sex lives of adults was a matter of general welfare.

Did those laws infringe upon some right? I would say that, pursuant to Roe, they would infringe on a right to privacy. But that’s a pretty controversial claim. I think I would just stick to the fact that government has not been authorized by the people, in the constitution, to regulate this behavior.

Well, as Justice Greavey stated in Goodridge: “A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide.” Under Mass. law, homosexuals were not denied the right to marry, they could marry anyone of the opposite sex that they wanted to. They were just denied the right to marry the person of their choice. That’s the problem.

That summarizes the issue very well, I think. And the issue is: has the definition of marriage changed? How would one go about determining that? Again, it would seem that the best way would be to put it to the people to decide. How can a judge possibly set himself up as the arbitor of the definition of a social institution such as marriage?

And just a reminder… we are talking solely about **process **here. I have no problem with SSM, and fully support it. Being fairly strongly libertarian, my preference would be for the state to butt out of marriage altogether. But if we’re going to have a state sanctioned institution, it should be open to any two people. In principle, I have no problem with legalizing polygamy-- I’m just unsure of how difficult it would be to modify our laws for multi-level marriages.

[Hamlet]

@John Mace

I have to admit that I’m more or lessing guessing that the Texas state constitution does not authorize the state to regulate the private sex lives of its citizens. I can’t claim to have read that constitution. If, in fact it does explicitly allow that regulation, then I will stand corrected.

IANAL, and you are, so help me out here… A general welfare clause has to have some limits on it, otherwise it can be used to justify any state action. It’s unclear to me how someone could argue that the private sex lives of adults was a matter of general welfare.

Well, if you want to go by what the State of Georgia argued in Bowers v. Hardwick (which had upheld sodomy legislation), one could say:

“It should be permissible for the General Assembly to find as legislative fact that homosexual sodomy leads to other deviate practices such as sado-masochism, group orgies, or transvestism, to name only a few. Homosexual sodomy is often practiced outside the home such as in public parks, restrooms, “gay baths,” and “gay bars” and is marked by the multiplicity and anonymity of sexual partners, a disproportionate involvement with adolescents, and, indeed, a possible relationship to crimes of violence. Similarly, the legislature should be permitted to draw conclusions concerning the relationship of homosexual sodomy in the transmission of Acquired Immune Deficiency Syndrome (AIDS) and other diseases such as anorectal gonorrhea, Hepatitis A, Hepatitis B, enteric protozoal diseases, and Cytomegalovirus, and the concomitant effects of this relationship on the general public health and welfare.”

In addition, they argued that the anti-sodomy statute was necessary to protect its citizens from the adverse effects caused by those who engage in sodomous acts. They also argued that the immortality of sodomy could influence the rest of the public’s moral welfare.

The Court ultimately agreed with the state, even though the state lacked proof to support its assertions that sodomous acts are “physically dangerous” or a threat to the public’s well being, they still upheld the laws. The Court supported the state’s view that sodomous acts “for hundreds of years, if not thousands, have been uniformly condemned as immoral.” Justice Blackmun, in his dissent, discussed the issue and stated: “The core of petitioner’s defense of § 16-6-2, however, is that respondent and others who engage in the conduct prohibited by § 16-6-2 interfere with Georgia’s exercise of the " ‘right of the Nation and of the States to maintain a decent society,’ " Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in § 16-6-2 “for hundreds of years, if not thousands, have been uniformly condemned as immoral” is a sufficient reason to permit a State to ban them today.I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s scrutiny.” (cites omitted). Blackmun went on to rip the majority and saying there was no rational basis for anti-sodomy laws. Unfortunately, the majority did not agree.

In addition in Stewart v. U.S., the DC Court of appeals stated: “we find that the prohibition of sodomitic acts is a reasonable exercise of the right of the legislature to maintain a decent society.” There are other cases along these lines also.

@JohnMace

Did those laws infringe upon some right? I would say that, pursuant to Roe, they would infringe on a right to privacy. But that’s a pretty controversial claim. I think I would just stick to the fact that government has not been authorized by the people, in the constitution, to regulate this behavior.

It’s not a bad argument at all. One that even the Cato institute would agree with.

@JohnMace

That summarizes the issue very well, I think. And the issue is: has the definition of marriage changed? How would one go about determining that? Again, it would seem that the best way would be to put it to the people to decide. How can a judge possibly set himself up as the arbitor of the definition of a social institution such as marriage?

But that’s still missing the point. Defining marriage as just between a man and woman is akin to defining marriage as just between a white people, or the right to own property to only rich, white people. Your still giving a right to some people but not others.

[Hamlet]

@Hamlet

They also argued that the immortality of sodomy could influence the rest of the public’s moral welfare.

Make that “immorality” not “immortality”. Now I have to get a picture of Connor MacLeod screaming “There can be only one!” while having anal sex with Ramirez. Where’d I put that brain bleach.

[John_Mace]

@Hamlet

Well, if you want to go by what the State of Georgia argued in Bowers v. Hardwick (which had upheld sodomy legislation), one could say: In addition, they argued that the anti-sodomy statute was necessary to protect its citizens from the adverse effects caused by those who engage in sodomous acts. They also argued that the immortality of sodomy could influence the rest of the public’s moral welfare.

The Court ultimately agreed with the state, even though the state lacked proof to support its assertions that sodomous acts are “physically dangerous” or a threat to the public’s well being, they still upheld the laws. The Court supported the state’s view that sodomous acts “for hundreds of years, if not thousands, have been uniformly condemned as immoral.” Justice Blackmun, in his dissent, discussed the issue and stated: “The core of petitioner’s defense of § 16-6-2, however, is that respondent and others who engage in the conduct prohibited by § 16-6-2 interfere with Georgia’s exercise of the " ‘right of the Nation and of the States to maintain a decent society,’ " Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in § 16-6-2 “for hundreds of years, if not thousands, have been uniformly condemned as immoral” is a sufficient reason to permit a State to ban them today.I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s scrutiny.” (cites omitted). Blackmun went on to rip the majority and saying there was no rational basis for anti-sodomy laws. Unfortunately, the majority did not agree.

In addition in Stewart v. U.S., the DC Court of appeals stated: “we find that the prohibition of sodomitic acts is a reasonable exercise of the right of the legislature to maintain a decent society.” There are other cases along these lines also.

But the Georgia laws applied to hetersexual sodomy as well. The arguments in favor of the law only address the supposedly negative aspects of homosexual sodomy. But even then, the reasoning is circular-- it must be kept illegal because only criminals do it.

It’s not a bad argument at all. One that even the Cato institute would agree with.

I thought that even many pro-choice legal experts consider *Roe *to be poorly argued. Maybe I was wrong about that.

But that’s still missing the point. Defining marriage as just between a man and woman is akin to defining marriage as just between a white people, or the right to own property to only rich, white people. Your still giving a right to some people but not others.

Which brings us right back to where we started-- ie, that the 14th amendment was intended to outlaw racial discrimination. Besides, there is no method of determining who is white and who is not white, other than by circular reasoning-- ie, you’re white if your parents are white. Gender, OTOH, does lend itself to nonarbitrary classification.

I think we can all agree that the 14th amendment would not have been ratified if it had a trailer attached that said “this also leglalizes same sex marraige”. Clearly the original intent was NOT to do so. But even for those who advocate the “living document” approach to the constitution would have to admint that the same thing is true today-- such an amendment would be overwhelmingly defeated. Given that fact, how can the court rule that the 14th amendment must be interpretted to allow gays to marry? In fact, if the SCOTUS were to rule thusly, I have no doubt that a federal constitutional amendment to ban gay marriage would pass.

[Ms2001]

@ElvisL1ves

Yes, by all means try it. Show us how ridiculous the claim is. Fight our ignorance. Please.

This should be very interesting.

All right. You said you could enumerate rights held by other people that would be infringed by allowing children to drive… so start enumerating and I’ll match them.

[elucidator]

An arcane question about the definitions of gender. What about a transexual?

If Bruce wants to marry Fred, but they can’t because they are both male, what is the standard if one of them changes his gender, surgically? Are there any distinctions, state by state, in the manner by which they define gender?

[John_Mace]

I think there are state-by-state distinctions. But I bet if you post that question in GQ, one of our resident transgendered posters would be able to rattle off the answer in a second.

[Scott_Plaid]

Yes/No. Interestingly enought, I recalled this, when a few pages ago, Bricker said:

Is the proceration restriction supported by reason? Sure. Is it the best solution? No. Some infertile couples are permitted to marry. But it’s quick and easy to check the private parts of a couple and determine that there’s one of each variety, and that handles much of the load. Best way? No. But there’s reasoning behind it.

and I said, among other things:

@me

Crazy reasoning, yes. Any glance at male/female couples becoming married at age 80, regardless of Viagra, would lead one to conclude the women womb could likely not “handle the load” Oh, and re checking if they have “one of each”, it isn’t that would be true if it really happened, but in fact, male-male couples have been allowed to marry, due to the fact that legally, one of them is female, having been born that way. It is would take reconstitute surgery to allow the formerly female partner to bear children, so no, they are not “checking the privet parts”

http://boards.straightdope.com/sdmb/showpost.php?p=6147214&postcount=218

[Dewey_Cheatem_Undhow]

Good news: my home intarweb connection is working.

Bad news: it’s going in and out like I’m living in a third-world backwater.

Good or bad news, depending on your POV: No way am I going to try to respond to the eight jillion posts that have been made over the past few days.

@Hamlet

Just wondering if you think that rights can be found outside of the text of the Constitution.

Pop quiz: if a restaurant wishes to discriminate against its clientele on the basis of race, is there anything in the constitution that would prevent it from doing so?

Of course there are rights found outside of the text of the federal constitution. **Bricker **and I just think that a judge’s whim is not an appropriate place to locate those rights.

[Dewey_Cheatem_Undhow]

@John Mace

I have to admit that I’m more or lessing guessing that the Texas state constitution does not authorize the state to regulate the private sex lives of its citizens. I can’t claim to have read that constitution. If, in fact it does explicitly allow that regulation, then I will stand corrected.

The states, unlike the feds, are not creatures of limited, enumerated powers. They hold the general police power, and can legislate in any fashion that does not conflict with federal law or their own constitution.

[Harborwolf]

@Shodan

You are aware, no doubt, that the Constitution can be amended to outlaw slavery and give the vote to women, are you not?

Yeah, funny story about that. Shortly after I posted, and as I was half way to work this little voice pops up in the back of my mind.

“You forgot the amendments dipshit. If you keep being that stupid, you’re never going to impress Jodi Foster.” So if I may indulge myself in a smiley… :smack:

“Equal protection” as shorthand for “gay marriage” strikes me like that. If you can “interpret” the clause to say that, you can interpret it as saying literally anything. And therefore the power of judges becomes unlimited, and we have lost the rule of law.

This seems like a variation on the slippery slope arguement, and it’s still silly no matter how stupid I may be.

Interpreting equal protection in a manner that allows gays to marry in the same or a similar manner to everyone else is not stretching anything to the breaking point. I don’t recall seeing any language in the original document about gays and/or marriage so saying that gay marriage is against the will of the founding fathers is kooky.

[Dewey_Cheatem_Undhow]

@Bricker

Did ya like Hadley v. Baxendale?

Personally, I’d have gone with the Mr. Hawkins’ Hairy Hand, but I’m gruesome that way.

Or Palsgraf perchance?

[John_Mace]

@Dewey Cheatem Undhow

The states, unlike the feds, are not creatures of limited, enumerated powers. They hold the general police power, and can legislate in any fashion that does not conflict with federal law or their own constitution.

Apparently the feds aren’t much restricted, either.

But in that case, I’ll take the right to privacy for $400, Alex.

[elucidator]

@Dewey Cheatem Undhow

… **Bricker **and I just think that a judge’s whim is not an appropriate place to locate those rights.

Oh, those giddy, flighty, whimsical sillies in thier black robes…

[Taber]

@Shodan

Taber - if I understand you correctly, you are saying that the First Amendment applies to Internet message boards even though they didn’t exist at the time the Bill of Rights was ratified. Correct? My response would be that it would be fairly easy to show that the original intent of those who wrote the First Amendment was to protect - from government, mind you - most forms of communication, both oral and written. They did, after all, protect both “speech” and “the press”. The original intent, therefore, is clear.

Now, it remains for the proponents of SSM to show that the original intent of the equal protection clause (or due process, or free speech, or whatever clause you think applies) was to establish gay marriage. This is especially important because gay marriage seems to be fairly clearly against the will of the majority.

Yes, yes, I hear the immediate response that “the Constitution is there to protect the rights of minorities!!!” In part - yes. But first you have to establish that the Constitution does, and was intended to, establish gay marriage as a minority right. Which you do by quoting the text of the Constitution in which this is made clear, or the writings of those who established the Constitution in which they acknowledge gay marriage as a right.

If you cannot do that, you wind up where Hamlet seems to be - admitting that gay marriage is not in the Constitution, and that judges do not have the power to put things into the Constitution. In which case, gay marriage is not legitimate until the states or the people establish it, either thru Constitutional amendment or referendum or what have you.

Regards,
Shodan

Getting my information on what equal protection means from here: http://www.law.cornell.edu/topics/equal_protection.html , it seems clear that equal protection is relevant to gay marriage restrictions.

After all, equal protection means that

the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances.

, and while is is possible to argue that being gay is not a “similar condition,” The similarities significantly outweigh the differences. The condition of a gay guy wanting to marry is identical to the condition of a straight guy wanting to marry, except that it is not for the purpose of procreation, and the gender of the significant other is not opposite.

Given that

the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in activity yet denies other individuals the same right

, it is clear that equal protection clause is a valid question in this case, as the state granted a particular class of individuals the right to engage in marriage, yet denies other individuals the same right.

I suspect some may object that gays can marry people of the opposite gender. This is ridiculous as marriage is a contract of various rights and responsibilities between two lovers, and the state grants the legal recognition of straight lovers making that contract, but denies recognition of two gay lovers wanting to make that same contract.

[Blalron]

@Mr2001

Suppose gays were allowed to marry, but only after a 5 year waiting period. Wouldn’t you say that’s still unfair discrimination, even though they’d grow out of their situation eventually?

It’s discrimination because only gays are subjected to the waiting period. If the waiting period was uniformly applied to everyone, then it would not be discrimination.

[John_Mace]

@Dewey Cheatem Undhow

The states, unlike the feds, are not creatures of limited, enumerated powers.

BTW, why is this? As a fan of limitted government, I wonder what necessitates this difference, or has it just traditionally been so?