However, there is a gulf between “large inferential leaps are inappropriate” and “no discretion at all.” I envision a Court that interprets the Constitution’s words without reading in huge unintended changes, a Court with great deference for the legislature.
But I agree that this approach tends to create a Constitution that is large and unnecessarily specific … IF it’s continued over the long haul. But I hope that the message sent by the ratification to the Court would be persuasive. It’s hard for me to imagine a Court obstinate enough to continue reading sweeping new federal rights into the Constitution in the face of a determined electorate reversing them.
Nonsense. Your position is not perfectly consistent with your textualism, as there is no possible way you can say with a straight face that the authors of the 14th thought that some part of its text limited equal protection to issues of race. There’s nothing whatsoever in the text to justify that. You are relying entirely on an originalist argument here.
And where in the hell did I ever say everything ought to be subject to strict scrutiny, may I ask? I have said I think that equal protection ought to apply across the board, yes. I have said that I think all but the most inane of statutes would pass a more difficult test than the rational basis test, yes. I have said nothing beyond that. For the record, I should think statutes should be subjected to tests of varying degrees of difficulty, depending on how much of a burden they impose on people, etc. Heck, the lowest bar could perfectly well go on being the rational basis test, in cases were the issue is relatively trivial, like, say, regulations on truck-side advertisements. Thinking that a government ought to be able to provide some justificatory grounds for the legislation it enacts is hardly making a mockery of the law.
Well, if all Cecil is claiming is that the evidence shows that traditional marriage is the favoured vehicle for childrearing, I have no problem with it. The question, however, then becomes one of what the heck his point is. You see, I took Cecil to be thinking that he was writing something of relevance to the question of gay marriage. However, the fact that society might prefer children to be raised by married parents has no relevance to the issue of allowing gay marriage - since naturally, increasing the number of people who can wed is not going to decrease the number the number of children reared by married parents. So either Cecil thought there was some deleterious connection between allowing gay marriages and the conditions under which children are raised, or he wrote an entire paragraph that has nothing whatsoever to do with his topic. I assumed that he thought he was being relevant. Perhaps you are right, and he was just rambling on. That might make the paragraph less odious, but it wouldn’t raise my opinion of the thought process behind it a whole lot.
When the hell did I ever declare myself a textualist or an originalist? I’m a strict constructionsist, but am undecided between the two main approaches covered by that label.
I explained earlier in the thread why my view of equal protection is quite consistent with textualism. As I noted then, textualism contains a germ of originalism – it looks to how the text would have been understood by the drafters. And nothing in the historical record indicates that the drafters of the fourteenth amendment thought their wording meant anything broader than a simple proscription on governmental racial discrimination.
My position may not be consistent with your caricature of textualism, but I assure you it is perfectly consistent with the real thing.
I think you have. For equal protection to apply “across the board,” then by definition the same test must be used for each equal protection challenge. I assume that you don’t want to use a lesser test for racial matters, which means that all other matters must be elevated to strict scrutiny.
This is meaningless. What test are you proposing for determining “how much of a burden” a statute imposes? Upon what basis to you call your test proper?
What you’ve basically said above is “I want a rule that will stop the laws I dislike while permitting the laws I like (or that I don’t mind).” That’s meaningless. It’s a wish, not a rule. If you’re going to suggest the status quo is wrong, it’s generally a good idea to have an alternative in mind.
Somehow I doubt those who made their livelihoods from truckside advertisements would consider their interest “trivial.” Somehow I doubt excluded New Orleans pushcart vendors would consider their interest “trivial.”
You’re being deliberately obtuse. His point is that the reason marriage exists is to foster the raising of children. He cites to the figures he does as evidence for this proposition (evidence, not proof; be sure you know the difference). It’s not that complicated a point.
Somehow I think those same New Orleans pushcart vendors know the difference between issues that deal with innate characteristics such as race, gender and sexuual orientation and issues that are less important such as chosen profession. I’m guessing you can tell the difference, too, but you are too pigheaded to admit it. There is nothing to stop a pushcart vendor from getting a different job. It’s somewhat more difficult for me to stop being gay or Jodi to stop being a woman. It follows that laws based on innate characteristics are more burdersome and therefore should require strict strutiny.
So the Homebrew Test would keep the two tests pretty much as they exist now: rational basis and strict scrutiny. And the new rule would be that if a law is predicated upon an “innate characteristic,” such as sexual preference, gender, or sex, then it is subject to strict scrutiny. If the law is predicated on a matter of personal preference, such as employment, choice of religion, choice of housing, and the like, it would be subject only to the rational basis test.
Is that a fair summary of the proposed Homebrew Test?
I’m curious, Homebrew, if you have any basis for drawing that particular distinction outside of “that’s the way I think things ought to be”?
I’m also curious to know if the Homebrew Test elevates the test for gender-based distinctions to strict scrutiny (rather than mere intermediate review).
sigh That’s what this whole damned thread has been about. I believe the 14th Amendment’s assurance of Equal Protection and Due Process apply. I believe that Strict Scrutiny should apply whenever discrimination is based on an innate, immutable characteristic, such as race, gender, sexual identity and sexual orientation. To do otherwise is not Equal Protection.
Although most of the attention of Equal Protection is given to cases where a minority is discriminated against; the protection goes for everyone. A gay bar shouldn’t be able to fire a straight bartender just because he’s straight.
But what basis other than “that’s the way I think it ought to be” do you have for your position?
I believe my position is based on the a reading of the amendment closest in line to what its authors sought to accomplish (which is the most proper goal of interpretation because it pays due respect to notions of self-goverance).
The rest of your post seems to be confusing my question, though. I didn’t ask you what you thought the equal protection clause implied; that much is reasonably clear. I instead asked you why you thought it implied that, beyond “that’s what I want it to mean.” Put another way, upon what basis do you draw the distinction you seek to draw?
And if you’d make your position on the test for gender distinctions crystal clear, I’d appreciate it. I want to be absolutely certain I fully understand your stance. Are suggesting strict scrutiny rather than heightened review for gender distinctions?
And I will point out, for the umpteenth time, that your interpretation of the Fourteenth Amendment violates the Ninth and Tenth Amendments. The notion of “equal protection includes gay marriage” is an “interpretation” so divorced from the text and spirit of the Constitution as to constitute new legislation and the establishment of a new right.
Which establishment is solely the province of the states or the people, either by explicit amendment or action by state legislatures or Congress. Not nine old farts in black robes.
And, to say it again, you are being fundamentally dishonest in refusing to discuss the necessary implications of your proposed new rights.
If you wish me to believe that the Fourteenth Amendment necessarily includes gay marriage as part of “equal protection”, you can either [ul][li]show how that principle does not equally apply to polygamy, incest, or whatever[/li][li]admit that it does, and argue that this is desirable as part of your fundamental redefinition of marriage, or [/li][li]withdraw your support for this “interpretation” of the Fourteenth Amendment and go lobby Congress, or state legislatures.[/ul] [/li]
My intellectual dishonesty? Pardon me a contemptuous snigger.
In the context of a discussion regarding US Constitutional policy, and having reference to nothing else, you propose a statement made by no one in this thread. Then, when called on the fact that it is obvious bullshit in this context, and had essentially nothing to do with the argument, you resort to calling me intellectually dishonest. Huh.
If you are proposing that the Supreme Court ought to take the history of ancient Sparta as binding precedent or something, at least have the balls to say so clearly, and you can try to weasel your way out of discussing the drawbacks of that half-baked idea as well.
I will only mention that it cannot be assumed that not recognizing gay marriage is, by definition, discrimination on the basis of sexual orientation. I don’t like this tendency towards circular reasoning. Whether or not gay marriage is a fundamental right is a question for the states, or the people, as I think we are agreeing. I think.
Because the Supreme Court erred in finding a right to gay marriage in (2).
No, it is founded in the notion of limited government, and self-government. The establishment of fundamental new rights by the Supreme Court, instead of by the states or the people, is an error. See (2).
You lost me on these last two. The states or the people should have the power to establish new rights. They need it.
They can secure new rights under the Constitution by amendment, or by act of Congress, or by the state legislatures by legislation.
I would say that amending the Constitution, even to make it clear that the states have the right to decide as regards gay marriage, is more fundamentally democratic than establishing gay marriage by judicial fiat. Is that what you are asking?
I don’t support any amendment. I have stated so repeatedly - at least, I did until Otto proposed his principle of “Give me what I want, and damn the consequences”.
I am reluctant to amend the Constitution. My reasons are as follows:
[ul][li]It probably wouldn’t work. A Court that is willing to interpret the Constitution as it stands is not going to be stopped from interpreting any and all new amendments as saying nothing in particular, and coming up with “interpretations” that are just as much an establishment of new law as gay marriage is. [/li][li]Once you start amending the Constitution to outlaw one bizarre notion, the lid is off and the Constitution grows to the size of a phone book. Thus the accessiblity of the fundamental law of the land, which ought to establish principles only and be interpreted with respect for the intent as clearly understood, takes another hit. [/li][li]It is unnecessary. If we can find federal judges and Supreme Court justices who respect the clear intent of the Constitution instead of treating it as a Rorschach test into which they can read anything at all, we have done more to establish a fundamentally free republic than a dozen new amendments.[/ul] Not that this will forestall the idea of gay marriage, or any other new right. You can have those as well as limited government, if you are willing to take the time to persuade rather than getting five old nags on the federal bench to ram it down our throats by force. But if you can’t persuade, you have to live with the consequences. Majority rules, except if a right is already enshrined in the Constitution (and gay marriage ain’t there). If you want a new right enshrined, have at it, but realize that majority rules there as well. [/li]
Democracies are supposed to be self-governing. Setting up judges as above the will of the majority is a bad idea, as it would be with any other ruling cabal. Even if the cabal agrees with you in the short run.
Adult sex toy vendors and strip club owners in the fifty-first state of Brickerland were dealt a blow yesterday as a federal court ruled that state restrictions on their respective industries were valid.
Federal Judge B. Bricker ruled that the state had offered a valid rationale for its laws imposing hefty operating permit prices on sex shops, ostensibly to fund health inspections of any sex toy designed to contact bare flesh. And armed with a legislative finding that strip clubs caused a decrease in property values and an increase in vice-related crime, the state’s laws forbidding nude dancing were also upheld.
Judge Bricker’s ruling applied the so-called Homebrew Test, noting that neither stripping or selling sex toys was an ‘innate characteristic’, and that the laws limiting these would therefore be judged under a rational basis test. Under this judicial test, the state has only to show a legitimate interest in regulation and rational connection between the interest to be regulated and the law at issue. Described as the “test almost impossible to fail,” the court found that regulating the employment of strippers and the sale of sex toys was within the state’s reach.
Advocates for the adult industry vowed to appeal the rulings, but court observers say that the Homebrew Test is so well-thought out and carefully designed that the ruling is likely to be upheld.
Christian groups, which had lobbied heavily for the laws at issue, were described as pleased with the ruling.
Nice bit, Bricker, but to be perfectly fair to Homebrew, he’s only been talking about fourteenth amendment equal protection. The strip club stuff would also have to be evaluated under the first amendment, and Homebrew hasn’t articulated what test he prefers for those cases.
Good point. I tossed the strip clubs in for fun, but I agree that there’s some expressive conduct to be evaluated there. I might well be reversed on that ruling.
It doesn’t need to be assumed that allowing the legal ability for heterosexuals to marry the person of their choice whilst disallowing homosexuals the same ability is discrimination on the basis of sexual orientation, since it follows logically. I don’t see any circular reasoning. I’m not sure if there is any fundamental right to legal marriage for anyone but the question wouldn’t be answered by the vote of a legislature. And I don’t think equality on the basis of sexual orientation as a fundamental human right is even in question.
The states need to be able to discriminate against gays because SCOTUS fucked up? So right now, when SCOTUS hasn’t erred on it, the states don’t need that power but following a SCOTUS decision they magically will? It is clear that my question was about the reasoning for them needing the power, not about the effective cause for a possible amendment to give them such.
The power I speak of is the power to abridge the right (see 7), not the power required to protect the right. Back to the question: why do they need the power to abridge the rights of homosexuals? If they don’t need it, why should they have it anyway? You said your answer was grounded in the notions of limited governance and self-governance, how would they not also have applied to the amendments I mentioned, or any future amendment?
No, I’m not asking that.
Ahh this explains your replies, you’re here to argue that SCOTUS would/does misinterpret the Constitution, not to actually defend the amendments. Yet you still seem to be asserting that the goal of the non-Musgrave amendment, to give the power back to the states, is justified even though you don’t think the amendment itself is a good idea.
[QUOTE]
[li]Once you start amending the Constitution to outlaw one bizarre notion, the lid is off and the Constitution grows to the size of a phone book.[/li][/QUOTE]
(Emphasis added) Interesting choice of words there Shodan, do you consider gay marriage a ‘bizarre notion’ or is it that you think this amendment would lead to another amendment to outlaw some unnamed bizarre notion? Although I suppose you could twist ‘outlaw’ to mean taking SCOTUS’ ‘bizarre’ notion of there being a constitutional basis ‘out of the law’ and thereby ignore the millenia old meaning of the word.
Judges need to be above (‘outside’ is a better way to put it) the will of the majority or else the courts could be replaced by polls.
Under the Ninth and Tenth Amendments, yes, it would be answered. And the whole point of my posts to this thread is to say that it is exactly there (by the states and the people) that the question should be answered - not by the Supreme Court.
If you are including gay marriage as “equality on the basis of sexual orientation”, yes, it is indeed very much in question. Hence the thread.
No. They need the power now, they have the power now, it would be an error by the Supreme Court to abrogate that power now.
The Ninth Amendment establishes that there can be new rights established. The Tenth Amendment establishes where the locus of responsibility lies to establish any new rights - in the states, or the people. Not the Supreme Court.
Which is why I don’t generally support new amendments. The states and the people have the power to establish new rights. An amendment that says “The states have the right to decide whether or not to establish gay marriage” is redundent. The states have that power now, under the Tenth Amendment. The Supreme Court does not have that power, under any clause of the Constitution. Whether or not the Fourteenth Amendment establish gay marriage is not a question for the Supreme Court, since to decide one way or another would abrogate the rights of the states, or the people, to establish new rights.
The only circumstance under which it would be appropriate for the Supreme Court to address the topic of gay marriage is if a Constitutional amendment was passed establishing gay marriage as a fundamental right. Thus the establishment would be in accord with the Ninth and Tenth Amendments, and the Court could then take up the business of interpreting the intent of this new gay marriage amendment.
In the absence of such an amendment, the power to establish gay marriage as a right lies entirely with the states, or the people. They have that power now. Passing either the Bricker amendment, or any other amendment mentioned in this thread, is entirely unnecessary and irrelevant to what the states and the people can do now. They can do what the amendments say they can do right now, without any amendment. What I am arguing against is the Supreme Court doing this. It is not their right, it is the right of the states or the people.
The amendments that give them such already have been ratified. The Tenth Amendment gives them that right.
No such right has been established. The idea of gay marriage as a fundamental right is the province of the states, or the people. Therefore, no rationale need be given to justify the right of the states or the people to establish or withhold gay marriage. The Tenth Amendment already does this.
What the hell are you talking about?
The states and the people do need the ability to establish new rights. They should have it, because establishing new rights is an important method of implementing the evolving understanding of what constitutes a basic human right. But this must be done in a fundamentally democratic fashion, in order to respect the rights of the people to self-government. Having new rights imposed by unelected judges is a fundamental violation of limited government.
Why wouldn’t it apply to new amendments? Because amending the Constitution is a fundamentally democratic process, unlike the notion of having judges massage the Constitution to fit their personal prejudices.
Why do the states need the power? Because the Supreme Court, and other federal judges, have a history of making up new rights almost out of whole cloth and foisting them onto the American electorate. Which is stupid, and undemocratic.
The suggested amendments are (in my opinion) a misguided attempt to get the courts to abide by the Ninth and Tenth Amendment. I have already detailed my reasons for thinking the attempt mistaken, but I agree completely with the sentiment behind the reasoning - that the courts should not be the place where new rights are established. Those rights should only be established by the states or the people. Because that is what the Ninth and Tenth Amendments do.
I don’t think I can make this any clearer.
Correct.
Although no amendment is necessary to “give” the power back to the states or the people. They have the power now. They ought to retain it. They can best retain it, not by passing further amendments which can be ignored, or “interpreted” away, but by appointing judges who respect the intent of the Constitution, and the rights of the people to self-governance.
Yes to the second, no to the first. The “bizarre notion” is the idea that it is the business of the federal judiciary to dream up new rights and impose their ideas on the rest of us. Or incestuous unions, polygamy, or other notions that advocates of court-imposed gay marriage tend to avoid discussing.
My experience is that people only say this when they think the judges agree with them. Once they are confronted with the idea that judges might be “outside” the will of the majority who agrees with something they want, things tend to change.
Once you have established the principle of “it doesn’t matter what the Constitution says, and it doesn’t matter what the majority says, what the judge wants is above all that and must be obeyed”, you no longer get to pick and choose what rulings get handed down. Maybe you applaud this decision when it establishes gay marriage. Would you be equally pleased when the Court endorses “round up the Japs (or the Muslims) into prison camp!” or “execute that fourteen-year-old - old enough to kill, old enough to die”?
Or even “To heck with the Florida Supreme Court - the recounts are over and we have a President”.
As has been noted before, they could have just said “race” in the text. I’m pretty sure they were familiar with the word – it’s in the 15th Amendment proposed only a few years later. While no one can argue that race was foremost in the minds of Congress when the Amendment was drafted, that actually augurs against your position: since they were thinking about race, they would have remembered to explicitly limit the clause to race if they wanted to. They didn’t do it; therefore, they didn’t want to. Anyway, the Equal Protection Clause doesn’t simply apply to race – it’s also been held to apply to national origin and gender. Therefore, any position that the clause doesn’t protect gays requires the advocate to state why it doesn’t – similarly, any position that it should or does requires that us on the other side explain why it should. (More on that later.)
You assume the infaliabilty of the system here, and I know you don’t believe in it. If the 19th is required because the Equal Protection Clause doesn’t cover sex, then what the hell is the 15th Amendment there for? Either the 19th Amendment was required because the 14th Amendment was misinterpreted, or for some reason voting isn’t covered in the Equal Protection Clause. But in either case, the exact same rationale can be applied to the 15th Amendment. OTOH, your position is that the 19th is needed because women weren’t covered by Eq. Prot., but that position is clearly inconsistent with the 15th Amendment – because that amendment was apparently required despite the fact that the Eq. Prot. Clause does apply, inarguably, to race. The existence of the 19th says nothing about the scope of the Equal Protection Clause, because the 15th shows that even when the subject (race) is centrally within Eq. Prot.'s sphere, you need a voting-rights amendment anyway.
This was addressed to a non-lawyer, so I understand that it wasn’t meant as a strawman (as indeed you acknowledge by your next sentence). But as you’re aware, the fact that some classes are protected by heightened scrutiny under Eq. Prot. and some aren’t isn’t an argument why any given class shouldn’t be – at least once we’ve recognized that at least some classes other than race should qualify, and as noted above, that ship has sailed.
So then we’re left with the question as to whether gays should be considered a protected class. It seems to me they should be under the rationale the Court has used to protect other classes – they have been the victims of invidious discrimination based on an (essentially) immutable personal characteristic that permeates their life, and we can’t trust the political process to make rational decisions about the extent to which their rights should be vindicated (as we probably can with the New Orleans street vendors) because the same invidious discrimination makes it more difficult for them to form political alliances AND because their numbers and the fact that they appear out of nowhere makes it even harder for them to develop local power bases over generations.
[QUOTE=Shodan]
[LIST][li]show how that principle does not equally apply to polygamy, incest, or whatever[/li][li]admit that it does, and argue that this is desirable as part of your fundamental redefinition of marriage, or [/li][/QUOTE]
I’ll take the bait here. Yes, it may be the case that recognizing gay marriage requires the government to recognize polygamous or incestuous marriages.[FN1] So what? The thesis is that the decision as to who to marry should be left to the individuals involved, not the government. I don’t give a fuck who you marry, and if someone wants to marry six dudes, that’s fine – as long as they all consent. What business is it of mine? More importantly, what business is it of yours? The government doesn’t prohibit seven people from cohabitating. The government doesn’t prohibit them from raising a child together. The only thing it prevents is their marriage.
–Cliffy
[FN1] That said, if my Equal Protection analysis in my previous post is correct, then gay marriage !==> polygamous or incestuous marriage, because these groups don’t seem to qualify as a protected class. Anti-incest laws, in particular, would be IMO acceptable because the psychological power inside families could make consent meaningless even amongst adults – plus, it has the effect of subverting or demolishing support-networks that most people rely on when raising children. These are reasons that would support a law even if it discriminates against a protected class and is therefore subject to strict scrutiny.
I would like for all participants in this thread to read Cliffy’s analysis above. THIS is an excellent example of a cogent, clear, and persuasive argument that is directly on point.
As it happens, I don’t agree with it, but it’s an excellent argument.
Those who attempted babble instead of analysis, please take note.
So it is a fundamental redefinition of marriage, and the establishment of the idea that deciding how many people to marry and whether or not your sister is included is a fundamental new right. And as such, is the proper province of the states or the people, and not the Supreme Court.
I, too, would like to applaud Cliffy’s excellent post, and suggest that Homebrew, et al, take note – this is how serious constitutional discussions proceed.
Cliffy, I started to crank out a reply but realized that a proper response would take a fair chunk of time to assemble, time I don’t have right now. I’d also like to take a gander at some resources I have at home. I’ll try to post a reply at some point this weekend. I can crank out replies to silly arguments in my sleep, but serious arguments require a bit more effort.
