Read Matthew more closely, Weirddave - at no time does Jesus acknowledge that “the things that are Caesar’s” includes control over religious and moral matters; in fact, he’s actively rejecting the concept by rejecting Caesar’s money. The religion and moral structure he purports represent is pretty explicitly above mundane civil matters. But our friend Izzy, and now you, are apparently claiming the opposite, as part of supporting a particular reading of the letter of the law above the spirit of the law, and yes, you do need to explain why.
mrblue92, thanks for stating the argument more clearly and concisely than I have.
No news here - we agree to that. Your final sentence does not follow from the rest. (Technically it does not enforce celibacy on homosexuals, though this may be the practical result. Same as nudists).
There’s an old story from Abraham Lincoln, who once asked someone how many legs a donkey would have if you called his tail a leg. The guy said five. No, said Lincoln, just because you call his tail a leg doesn’t make it one - it is still a tail.
Having said that, I’m unsure what your point is here.
The distinction between public and private conduct might be relevant to other arguments. It is not relevant to whether or not disproportionate impact based on different inclinations violates Equal Protection.
I don’t necessarily intend to respond to all your lies, as you apparently intend to keep going on and on. But as I am responding to mrblue anyway, I note in passing that I am not claiming the opposite, and have made no claims and have implied nothing at all regarding this issue.
Not me, I was simply answering the specific question. The point of the verses I posted was that the Pharasies were trying to get Jesus in trouble by making him say that you shouldn’t pay taxes. He neatly avoided their trap by acknowledgeing that secular laws must be followed.
Fair enough, except that was not the specific question here, which in fact was a challenge to find any mainstream cite for questions of morality required to be always subject to mundane laws, instead of vice versa as is the basis of the Scalia/Izzy letter-of-the-law-based rationalization of immoral behavior. Matthew does not do that, although one might prefer to say he’s simply calling the realms of morality and of law separate and unrelated. The challenge remains unresponded to IMHO, except with sophistry and not a little invective.
Izzy, try pointing out and actually addressing any of “my lies” instead of hysterically dismissing anything challenge to your precious self-image. You are, I hope you realize, not helping yourself at all here with all this invective, although this is the right forum for it.
This is almost surreal. There is not a single of your lies that I have not specifically addressed in this thread. It is you who have blithely ignored this, while continuing to make up new lies.
I shall address the general issue at greater length here.
Are you claiming laws against public nudity enforce celibacy on nudists? If not, then how is that the same?
Let me try to elaborate. You are distinguishing between homosexuals on one hand and homosexual conduct on the other. The point I was getting at is that it’s much the same as if you tried to distinguish between a jaywalker and jaywalking conduct. Maybe I believe jaywalking should be legal and would like to do it–after all, it doesn’t harm anybody if there aren’t any cars around. By having a predilection for jaywalking, I am a jaywalker, at least as much as someone can be a homosexual without having sex.
Now, you might argue that Scalia is right because of this–that criminal law by its nature must single out groups:
But the important distinction is this: What kind of groups are we impacting and for what reason? If we follow Scalia’s logic, criminalization of any act inevitably targets those predisposed to commiting that act… but that’s tautological and says nothing about the acts we wish to criminalize. By what logic is equal protection under the law ever a consideration within that scope? Laws against murder must target murderers; laws against rape, rapists; laws against larceny, thieves; laws against public nuisance, noisy and messy people; laws against miscegnation, interracial couples. If predispositions are to be our only guide, one can define them however he wishes and the entire concept of Equal Protection evaporates.
In that sense (that of arguing predisposition), his analogy may seem to be a valid nit-pick to a snippet of O’Connor’s semantics, but I personally do not believe it directs itself properly on the opinion as a whole, particularly with regards to spirit (in terms of essence of purpose); nor do I think it is even ultimately effective as an argument–the blatant difference between public and private behaviors in the analogy in question bears that out.
You are, of course, entitled to a different opinion.
Of course it doesn’t enforce celibacy. But there is nothing sacred about celibacy. It enforces something else. (I earlier invented a term for it, but terminology is not significant.) A law banning certain sexual acts will have the impact of enforcing celibacy on those who only enjoy these types of acts. A law banning certain clothed statuses will have the impact of enforcing an uncomfortable clothed state on those who only enjoy these types of states of dress. These are exactly analogous.
I’ve lost track of where this argument is directed. I agree that if, for whatever reason, you decide to define a jaywalker as someone who has a predilection for jaywalking (as opposed to someone who actually jaywalks) then it would be exactly analogous to homosexuality/sodomy. The same legal principles would apply. What is the point of all this?
I disagree. If we follow Scalia’s logic, Equal Protection is a valid consideration when the disparate impact is not solely based on predisposition to do the act. Saying “Whites may do this while Blacks may not” violates Equal Protection, for example. For a general overview of the concept, see here.
(But you say “If we follow Scalia’s logic” - what about if we don’t follow Scalia’s logic? By your logic, why are your examples not violations of Equal Protection?)
Are there laws preventing nudists from being naked in their PRIVATE domiciles? Public Nudity and Private consensual sex are not analogous and anyone who tries to make that arguement is either being intentionally obtuse or too stupid to preside in a Kangaroo Court much less SCOTUS.
I bet there are certain Roman Catholics who might argue differently!
I’m afraid we must disagree. You may be able to draw a partial analogy, but not an “exact” one due to the aforementioned distinction between private and public acts. In any event, I have no problem with the concept of public nudity anyway (within reason), even though I’ve no wish to run around naked. That is another topic entirely…
The point was that both are tortured definitions. If you ban jaywalking conduct, you are targeting jaywalkers. If you ban homosexual conduct, you are targeting homosexuals. Now you appear to be OK with this. But you originally stated, “Living as a homosexual might indistinguishable from being homosexual. But this does not mean that performing homosexual sodomy is indistinguishable from being homosexual.” My original argument centered around the proposition that though you can make that minor semantic distinction, the practical fact is that the only people who are going to be affected by a law against homosexual sodomy are homosexuals themselves–as obviously homosexual sodomy is an essential characteristic behavior, effectively defining the majority of homosexuals. Under such laws in question, homosexuals do not get to have sex. Heterosexuals do get to have sex.
You do have a point that some types of sex/nudity/other random behavior can be made illegal. But if you read your own cite, it would tell you that, “Traditionally, the Court finds a state classification constitutional if it has ‘a rational basis’ to a ‘legitimate state purpose.’” The defense of a law against an Equal Protection claim depends not entirely on arguments of classes which we have established–it also must be able to display such a purpose if it is to survive. Thus Scalia’s criticism, and hence his argument is incomplete until he makes this crucial point. (He does address this of course, with the “traditions” argument, which I personally find lame and blind.)
Not “solely” of course. But Scalia would seem to either have us dismiss it entirely or depend on it for any and every law. Predisposition must be still taken into account in any rational review–it is one factor among many, but in some (not all) cases it can be a determining one. A prime example where predispositions would seem to be important is the Jim Crow voter registration tests that did not specifically target blacks by the wording of the law, but had that exact effect. (I can’t recall off-hand how we got rid of those laws specifically, though. If anyone has time to find the caselaw…)
As I pointed out above, the idea of a “legitimate state purpose” is key. Protecting citizens from each other’s potential brutality/idiocy is a damn fine purpose in my opinion.
I suppose this could be taken as a hijack that would be better suited to a debate of its own, but I’d like to interject here that it would be a good thing if we could just delete the term “sodomy” (or at least “homosexual sodomy”) from the legal vocabulary. It’s got just about as much place in American jurisprudence as “blasphemy,” and there’s no denying it’s got way too much cultural baggage attached to it for it to be useful in any setting where careful deliberation is needed.
As I noted earlier, the fact that they are not analogous for all sorts of other issues does not mean that they are not analogous for purposes of Equal Protection. Equal Protection is not something that depends on - or has anything to do with - public or private status. All it means is that the law must treat all equally - whether it is regulating public or private conduct is not relevant to this particular principle.
Well we both agree as to the practical impact. Question is to whether this practical difference violates Equal Protection
This is incorrect. There are two completely separate arguments that would defeat Equal Protection, and Scalia makes both independently. The first is that Equal Protection does not protect against different impact in terms of desire for the banned activity. The second is that rational basis is enough to deny Equal Protection. Scalia addresses this as an independent point:
You’ve alluded to this latter argument, and noted that you find it lame and blind. OK. But my posts to this thread concern the first argument, which is a stand-alone point.
I’m not sure Scalia would adopt the position that you claim. But in any event, your earlier statement that if we take predisposition to be our only guide, Equal Protection evaporates is still incorrect, as there are many Equal Protection cases that do not depend on predisposition.
If we strip away all the semantics, this is where we are disagreeing. The rational basis is not a “stand-alone point”.
Reviewing the Scalia quote…
Instead of “nudity/nudist”, you could use “auto repair/mechanics” or “mental incompetency/incompetents”. But that wouldn’t give us legal justification to invalidate Equal Protection arguments for laws singling out mechanics or incompetents. There would also have to be a rational basis for singling them out. Requiring auto mechanics as a group to give an estimate before carrying out repairs would seem to be rational. Forbidding sex with all auto mechanics would not.
You did not address the Jim Crow laws, but this is why I mentioned them. The populace should know its history, and it just so happens that we disqualify voters who don’t know the life story of Jefferson Davis. After all, we’re not really selecting against blacks with a law like this, only the uneducated.
Of course with race, that’s where “strict scrutiny” comes in. Still, anyone who is sufficiently clever and obfuscates enough can provide enough of a modification of a class to suit their purposes and creating the most unfair of laws. Maybe all people with “excessively large” mammary glands should be required go without bras and wear tight tops in order to conserve the raw materials used in garment manufacturing. Sure, women are predisposed to having large breasts and wearing bras. Scalia’s hand-waving argument (“and nudists are predisposed to nudity…”) would amount to a “what’s your point”? Of course the point is that there is no legitimate state interest for such a law that picks out that particular class.
Aren’t you tired of arguing this yet? I feel like I’m beating a dead Justice.
I think it is. So did Scalia, who said so explicitly, as I noted. You can disagree with him, of course. But you should understand that his rational basis argument was not relying on the “predisposition” argument that he raised initially. And as I mentioned earlier, I am not discussing the rational basis argument. I am discussing the predisposition one. And the predisposition one is the one connected with the nudist analogy.
Here’s how Scalia put it:
Unequal treatment based on differing preferences does not violate Equal Protection. If it did, then banning nudity would violate Equal Protection.
Even if unequal treatment based on differing preferences DOES violate Equal Protection (IOW even if 1) is false), a rational basis is enough to allow for unequal protection.
You appear to be saying that 1) & 2) are the same argument, and that the nudity analogy was meant to apply to both. If so, you are in error.
If I’ve led you to believe I think they are the same argument, then I have not made myself clear or you have misinterpreted me. They are not the same argument… however, I don’t think there’s a definite bifurcation either–it’s more of a 1a/1b question.
But here’s one problem, now demonstrated for all to see…
Your Point 2 says that a rational basis is enough for unequal protection.
It follows that the lack of a rational basis will disallow a law on the grounds of Equal Protection.
Yet you (now mistakenly representing Scalia, according to you previous posts) claim “banning nudity would violate Equal Protection” only if “nequal treatment based on differing preferences” violated Equal Protection.
I think you will agree that this is completely false! You know full well that a nudity ban will (at least in today’s Court) survive the rational basis test, and thus such a ban will not violate Equal Protection entirely. So in truth it might trigger the first step (preferential treatment), but will be upheld due to the second requirement (that there is a rational basis for unequal protection–granted, public health is in some ways a weak argument but existing blanket laws would sadly survive).
I don’t think you made that slip intentionally, but I do think this is precisely the problem with such an analogy. Even you, who I presume understands what Scalia was supposed to be saying, ended up pushing it over the edge into hyperbole.
The other point is regarding the aforementioned bifurcation… there is a certain rationality to defining “preferences” in the first place. In that sense then, the “Point 2” rational basis is inextricably linked to the logic of the original class distinction, as rationalities must (hopefully) maintain consistency. After all, people don’t seriously refer to being able to murder someone else as a “preference” unless they’re psychotic, so it’s rather difficult to say [regarding O’Connor’s conduct versus classes bit] that “the same could be said any law” as Scalia claims unless he is indeed exaggerating.
#2 is a logical error. (I’m sure those familiar with logic have some Greek term for it.) Essentially, if B follows from A, this does NOT imply that the absence of A means an absence of B.
I’m amazed that this is so difficult for you to understand. Scalia offered two arguments, either one of which would negate the Equal Protection argument. He offered the nudity argument in support of the first only.
Beyond this, what you seem to be saying is that in the particular example of nudity, the “preferences” argument is not needed, because it will suvive without it, based on the rational basis test. OK, perhaps or perhaps not - this might be a separate debate (I imagine some nudists might disagree with you). But at worst, it was a poorly chosen analogy - there are probably others that he could have used. The essential principle is unchanged (that being that “preferences” is enough to disallow an Equal Protection claim - at least in Scalia’s opinion).
A belated thought, significantly tangential to the course of the ongoing flameage.
I’ve seen a lot of dismissiveness, here and elsewhere, directed at the idea that being gay isn’t central to a gay person’s personality or life. Or, if it is, that that centrality isn’t relevant for various reasons.
And I look at that, and I wind up confused. The centre of my life is my family; my husband, my mate, our extended network of friends and loved ones. My orientation is pretty fundamental to defining what I consider family, as well as who is a part of it and in what ways. It informs my decisions about where I want to live, how I want to spend my time, and other matters; it will have a big effect on my children when I have them, determining parental and support roles and responsibilities.
I have a quirk of orientation that means that I have the option of getting some of my family supported legally, and that at least some of my sexual activity is considered legitimate relationship-building and supporting stuff, no matter which orifices (if any) are involved – I’m a woman attracted to men.
I see that many gay folks are looking to define their families, who is part of them and in what ways. And this Supreme Court decision gets some of the laws off their asses about letting their sexual activity as a relationship-building and supporting function continue unmolested. Building and maintaining a family isn’t something as dismissable as a ‘preference’; it’s something that can be central to a life, one of the most important things, and it’s hard enough to do without threat of legal intervention.
Well-written indeed, Lilairen, and a point very much forgotten by both sides on this issue. One’s orientation is so much more than who one chooses to sleep with. It impacts every aspect of your life, from the home to your friends to your job… everything can by affected by it in some way. It simply is not something most people can cut out and still be a whole individual.
