Judge overturns Calif. gay marriage ban

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Originally Posted by LittleFuzzy

I've told you before and I'll tell you again. That's not what Loving did. The case was explicitly limited to invidious racial discrimination by the authoring justice, applying a heightened legal standard which SCOTUS has regularly denied should be applied to homosexuality. Loving is not and will not be precedent here.

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This seems to have become a megathread about gay marriage in the States, but originally it was about California. And California's Perry v Schwarzenegger did cite Loving as precedent.

According to Wiki multiple US Court of Appeals have cited Loving as precedent in striking down gay marriage. The fourth and tenth both used Loving as precedent, while the ninth used Loving to demonstrate that tradition was an insufficient reason to accept tradition.

Were all these courts wrong?

They can cite the case, but it doesn't mean they are correctly citing the case. In order to do so, they would have to apply a very new legal standard to homosexuality that I suspect would have a great deal of impact on many areas of the law.

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Originally Posted by RandBlade

This seems to have become a megathread about gay marriage in the States, but originally it was about California. And California's Perry v Schwarzenegger did cite Loving as precedent.

According to Wiki multiple US Court of Appeals have cited Loving as precedent in striking down gay marriage. The fourth and tenth both used Loving as precedent, while the ninth used Loving to demonstrate that tradition was an insufficient reason to accept tradition.

Were all these courts wrong?

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Those courts were trying to get SCOTUS to reconsider its position wrt homosexuality and strict scrutiny.

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Originally Posted by LittleFuzzy

Those courts were trying to get SCOTUS to reconsider its position wrt homosexuality and strict scrutiny.

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FFS, answer the question as it was asked. If every legal ruling used "precedent"....hardly anything would change.

SCOTUS isn't going to expand strict scrutiny. The justices of the court would prefer to remove categories, to slowly do away with having the heightened standard at all. It exists solely because the various levels of government, because society itself, demonstrated attitudes were too firmly entrenched, for the courts to continue to accord them the presumption of a rational basis for their actions toward those selected categories. The rapid change demonstrated with the acceptance of homosexuality (from a legal history standpoint) is a demonstration that such attitudes are not so deeply entrenched wrt orientation. You realize that gender is also not a strict scrutiny class, right? Nor age, nor any number of other categories. SCOTUS has only extended it to race, national origin, religion, and partially to alienage (state action regarding non-citizens is under strict scrutiny, federal action is examined by the more usual rational basis standard)

You neglected to mention male gender bias in your analysis.

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Originally Posted by RandBlade

This seems to have become a megathread about gay marriage in the States, but originally it was about California. And California's Perry v Schwarzenegger did cite Loving as precedent.

According to Wiki multiple US Court of Appeals have cited Loving as precedent in striking down gay marriage. The fourth and tenth both used Loving as precedent, while the ninth used Loving to demonstrate that tradition was an insufficient reason to accept tradition.

Were all these courts wrong?

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Incidentally, did you actually look at any of those rulings Wiki cited? I haven't looked at the two appellate decisions you reference since I'd have to dig just to find out which rulings they were, but I did just go over Vaughn Walker's decision in Hollingsworth again, and the Loving decision gets cited twice. Once, as part of a laundry-list of cases justifying the claim that marriage in general is a right, and then later as part of a historical analysis demonstrating that attitudes change. It was not used as precedent the way you are trying to use it as precedent.

And how are you using precedent, Fuzzy?

Since you ask, GGT, I'm not using Loving as a precedent at all.

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Originally Posted by LittleFuzzy

Since you ask, GGT, I'm not using Loving as a precedent at all.

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Why?

While the text of the ruling in Loving tried to be very specific, it included one pretty general opinion:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."

I don't know what standard of scrutiny an American court would need to apply to arrive at the conclusion that it's okay to deny a citizen "one of the basic civil rights of man". The question doesn't have to be about whether or not it's as unacceptable to discriminate people based on sexual orientation as it is to do so based on race. The question could instead be about whether or not the specific measure is acceptable in and of itself.

I get where you're coming from, but I don't think I buy the arguments of those who're trying to argue that the implications of Loving are inherently limited in scope. It's like trying to argue about whether or not it's more okay to rape someone based on their race than to do so based on their sexual orientation. It may be an interesting debate (maybe) but at some point everyone's going to have to stop and think, "Hang on, rape's just not okay."

So I'd say that the finding that it's not okay in principle to deny people "one of the basic civil rights of man" supercedes any findings along the lines of it being more okay to deny such a right based on sexual preference than it is to do so based on race. Attempts to focus the discussion on the latter question is distracting geekiness at best, invidious misdirection at worst (though your intentions are not in question). peace

(I recognise that the ruling focused on the 14th amendment, and I don't think it's easy to argue that marriage equality is unambiguously required by the 14th amendment. However, both the right to equal protection and the requirement for substantive due process would in important ways seem to support marriage equality and run counter to several arguments that are mustered in support of marriage inequality :o)

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Originally Posted by Aimless

While the text of the ruling in Loving tried to be very specific, it included one pretty general opinion:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."

I don't know what standard of scrutiny an American court would need to apply to arrive at the conclusion that it's okay to deny a citizen "one of the basic civil rights of man". The question doesn't have to be about whether or not it's as unacceptable to discriminate people based on sexual orientation as it is to do so based on race. The question could instead be about whether or not the specific measure is acceptable in and of itself.

I get where you're coming from, but I don't think I buy the arguments of those who're trying to argue that the implications of Loving are inherently limited in scope. It's like trying to argue about whether or not it's more okay to rape someone based on their race than to do so based on their sexual orientation. It may be an interesting debate (maybe) but at some point everyone's going to have to stop and think, "Hang on, rape's just not okay."

So I'd say that the finding that it's not okay in principle to deny people "one of the basic civil rights of man" supercedes any findings along the lines of it being more okay to deny such a right based on sexual preference than it is to do so based on race. Attempts to focus the discussion on the latter question is distracting geekiness at best, invidious misdirection at worst (though your intentions are not in question). peace

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As I said, where Loving was cited as a precedent recognizing marriage as a personal right, it was just one in a long line of cases recognizing that. It's come up in cases about maternity leave, custodial rights, taxation, estate law, you name it. When SCOTUS does eventually strike down any bans, it's going to do so without strict scrutiny which means Loving has less weight than Griswold vs Connecticut. Another case where marriage as a personal right comes up but more importantly is the keystone for modern jurisprudence declaring that the state just has no business weighing in on a whole set of personal decisions.

You can say it's distracting geekiness, Minx, but. . . you don't understand. Arguing Loving in this context is like declaring Sweden didn't allow free exercise of religion until 2000, due to the state support and funding for the Church of Sweden. Your quote of the material from Loving is proof you don't understand. There's another passage in Loving, the one cited in Hollingsworth which I referenced, "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men," which applies but the declaration of marriage as a fundamental civil right is one of those little jargon triggers for lawyers and judges because, for solid historical-legal reasons, it immediately makes them think of whether they're dealing with a protected category or not.

In the past, I have not liked the argument that marriage equality is unambiguously required by the 14th amendment. The recent wave of decisions marks appellate disagreement with me. I haven't read them all but the reasoning in the ones I have is toward a reading independent of the core ruling in Loving.

On the subject of distracting geekiness, the Court will not acknowledge any claim here under substantive due process. Since the Rehnquist court, the Supremes have held that if another Constitutional provision applies, claims have to be analyzed according to that provision and not SBD. That's probably a good thing atm because under the current court, Scalia and Thomas might be able to muster up enough support to overturn SBD entirely.

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Originally Posted by LittleFuzzy

As I said, where Loving was cited as a precedent recognizing marriage as a personal right, it was just one in a long line of cases recognizing that. <snip>

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Reading that I understand that you say that Loving wasn't crucial in the establishment of marriage as a civil right, but rested on the notion of marriage as a civil right as recognized in previous jurisprudence?

I'm not sure if Loving was crucial in the establishment of marriage as a civil right. It certainly wasn't in recognition of it as a personal right (I acknowledge the division between civil rights and personal rights is all kinds of messy and unclear). But because of how Loving was ruled, inasmuch as gay marriage is a civil rights issue before the courts, a ruling on it will be parallel to rather than built on the precedents from Loving. Unless the Court entirely reverses its direction and decides that homosexuality should fall under strict scrutiny and the Court should look at it through substantive due process, which is something that just isn't going to happen.

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Originally Posted by Hazir

Now that is a cool bunch of arguments. I especially like that one where you admit that the referenda were a nightmare. But it doesn't match with the one where you rile against the expansion of equal treatment, because that's of course the courts slowly doing their job as a counterweight to the mob rule you despise.

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Except that the courts are changing their stance based on popular opinion...

The entire point of our constitutional republic is to guarantee certain rights against mob rule. If the Supreme Court is interpenetrating the constitution to mean something that was never intended by the authors of it (or the specific amendment were are referring to) the protections enshrined int he constitution are worth less than the paper they were written on.

The courts are not and never have been immune to pressure, nor was it expected that they would be. Nor intended that they should be. They're just supposed to be harder to influence and pressure, to be a speedbump forcing the rest of the government to go slow enough that the various branches or the demonstrative will of the people they respond to are really sure about where they're going. That's why the Courts have almost no actual power despite their great authority. Hazir was right, the bans were exactly the sort of knee-jerk fad that the courts are in place to slow down. They rose in a wave as response to legislative action in other states.

And I'm fairly sure that when the Equal Protection clause was written after the Civil War, the writers really meant the principle exactly as it looks. They may have been horrified as to what another society would imagine in the first place, but they meant the principle

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Originally Posted by LittleFuzzy

The courts are not and never have been immune to pressure, nor was it expected that they would be. Nor intended that they should be. They're just supposed to be harder to influence and pressure, to be a speedbump forcing the rest of the government to go slow enough that the various branches or the demonstrative will of the people they respond to are really sure about where they're going. That's why the Courts have almost no actual power despite their great authority. Hazir was right, the bans were exactly the sort of knee-jerk fad that the courts are in place to slow down. They rose in a wave as response to legislative action in other states.

And I'm fairly sure that when the Equal Protection clause was written after the Civil War, the writers really meant the principle exactly as it looks. They may have been horrified as to what another society would imagine in the first place, but they meant the principle

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One again the protection is useless if it can mean something completely different than what the authors indicated.

Take for example "Cruel and Unusual Punishment"

How in the world can some justices consider certain forms of the Death Penalty *that were completely legal* when the bill of rights were introduced now consider that to mean cruel and unusual punishment? When courts overreach freedom of the people's democratic decisions are curtailed. When courts don't uphold the amendments (Such as freedom of speech) the principle freedoms that we wanted to be safe from mob rule are lost. Those are two distinct dangers but both are real.

Popular pressure should have no bearing on how the courts review a case. The courts are a check on a mob rule - not just going with the flow. The courts also shouldn't crown themselves king and thwart democratic process if it is NOT going against one of the freedoms granted by the constitution.

In any event my point remains people will be in favor of their political pet issues over the appropriate process almost 100% of the time. For example - if folks who dislike abortion hear about a court ruling that stated the 14th amendment applied to the unborn and now abortions are illegal they would be in supportive of it because they care more about their pet issue then about constitutionality. People simply don't care about precedent. They don't care how shaky their freedoms become and they don't care about court overreach.

But do you think the courts are pandering to the public now by allowing gay marriage? Or do you reckon they used to do exactly that by not considering it unconstitutional?

On a side note, IANAL but a phrasing like cruel and unusual sounds exactly like they want it measures against the general idea of what is considered cruel or unusual at any time, otherwise they could have just listed what shouldn't be allowed.

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Originally Posted by Lewkowski

One again the protection is useless if it can mean something completely different than what the authors indicated.

Take for example "Cruel and Unusual Punishment"

How in the world can some justices consider certain forms of the Death Penalty *that were completely legal* when the bill of rights were introduced now consider that to mean cruel and unusual punishment? When courts overreach freedom of the people's democratic decisions are curtailed. When courts don't uphold the amendments (Such as freedom of speech) the principle freedoms that we wanted to be safe from mob rule are lost. Those are two distinct dangers but both are real.

Popular pressure should have no bearing on how the courts review a case. The courts are a check on a mob rule - not just going with the flow. The courts also shouldn't crown themselves king and thwart democratic process if it is NOT going against one of the freedoms granted by the constitution. The authors of the Constitution have deliberately gone with a more Common Law basis of government which allows interpretations rather than a more exhaustive and specific Civil Law basis.

In any event my point remains people will be in favor of their political pet issues over the appropriate process almost 100% of the time. For example - if folks who dislike abortion hear about a court ruling that stated the 14th amendment applied to the unborn and now abortions are illegal they would be in supportive of it because they care more about their pet issue then about constitutionality. People simply don't care about precedent. They don't care how shaky their freedoms become and they don't care about court overreach.

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Because that is the entire purpose of allowing justices to decide. By using vague words like "cruel and unusual" you leave it open to interpretation as to what constitutes cruel and unusual punishment.

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Originally Posted by RandBlade

Because that is the entire purpose of allowing justices to decide. By using vague words like "cruel and unusual" you leave it open to interpretation as to what constitutes cruel and unusual punishment.

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Or so the document wasn't 90,000 pages long outlining every single possible thing humans can do to another.

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Originally Posted by Lewkowski

One again the protection is useless if it can mean something completely different than what the authors indicated.

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One of the Founders, Alexander Hamilton, considered exactly that objection in Federalist #78. He said it was meaningless (specifically, that "it can be of no weight to say. . .") because literally everything a judge does is interpret and if that's an issue than we need to just do away with having a judiciary at all. "The observation, if it proved anything, would prove that there ought to be no judges." If justices are misbehaving, there are remedies, first and foremost among them that the judiciary "is beyond comparison the weakest of the three departments of power"

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Take for example "Cruel and Unusual Punishment"

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No, you want to make an original intent argument, you make it with the topic at hand. You argue that the writers of the 14th amendment would have actually written "equal protection under the law, except when the law addresses marriage" if only they'd known. You prove that they intended marriage to be an exception to the Constitutional principle they instituted.

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Popular pressure should have no bearing on how the courts review a case. The courts are a check on a mob rule - not just going with the flow. The courts also shouldn't crown themselves king and thwart democratic process if it is NOT going against one of the freedoms granted by the constitution.

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Funny, if the courts don't act then they're not checking mob rule but if they do act they're thwarting the democratic process. Sorry Lewk. Hamilton addressed this topic too. He agreed that the courts were a check against "mob rule," that their authority was necessary "to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."

But the thing here is that your "democratic process" IS going against one of the freedoms granted by the Constitution. Because he ALSO said "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant. . . a departure from it, prior to such an act."

The writers of the 14th did not address this topic. It is up to the courts, by their very nature "to liquidate and fix their (the laws) meaning and operation"* in the case of a dispute. When it did come up in the national conscious, the people failed to annul or change the fundamental law when they were passing their bans.

*To clarify that phrasing, I turn your attention to Federalist #82, which also puts paid to the whole originalist school of thought.

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THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'T is time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE

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Originally Posted by LittleFuzzy

One of the Founders, Alexander Hamilton, considered exactly that objection in Federalist #78. He said it was meaningless (specifically, that "it can be of no weight to say. . .") because literally everything a judge does is interpret and if that's an issue than we need to just do away with having a judiciary at all. "The observation, if it proved anything, would prove that there ought to be no judges." If justices are misbehaving, there are remedies, first and foremost among them that the judiciary "is beyond comparison the weakest of the three departments of power"



No, you want to make an original intent argument, you make it with the topic at hand. You argue that the writers of the 14th amendment would have actually written "equal protection under the law, except when the law addresses marriage" if only they'd known. You prove that they intended marriage to be an exception to the Constitutional principle they instituted.



Funny, if the courts don't act then they're not checking mob rule but if they do act they're thwarting the democratic process. Sorry Lewk. Hamilton addressed this topic too. He agreed that the courts were a check against "mob rule," that their authority was necessary "to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."

But the thing here is that your "democratic process" IS going against one of the freedoms granted by the Constitution. Because he ALSO said "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant. . . a departure from it, prior to such an act."

The writers of the 14th did not address this topic. It is up to the courts, by their very nature "to liquidate and fix their (the laws) meaning and operation"* in the case of a dispute. When it did come up in the national conscious, the people failed to annul or change the fundamental law when they were passing their bans.

*To clarify that phrasing, I turn your attention to Federalist #82, which also puts paid to the whole originalist school of thought.

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Interestingly enough the fact that Hamilton felt he had to respond... is proof that there was a reasonable discourse about the issue. Furthermore interpreting the law is clearly necessary because things are *not* always clear cut. However declaring something is 'cruel and unusual' that the authors themselves didn't find cruel and unusual is obviously an absurd stretch and by allowing justices to rule that way they undermine ALL of our freedoms. Yes there is a check on the judiciary however given the current political climate no one would even make the suggestion of impeaching. I'm guess in Hamilton's era that would have been a lot different. I also like to use the cruel and unusual item because by looking at a similar thing that doesn't have nearly as much emotional buy in the argument can be framed differently. The whole issue I have is people wanting to see what they feel is right happen at the cost of the appropriate process that protects everyone.

How far do you want to take the equal protection argument? What if a 40 year old man wants to get married to his 10 year old lover. After all the authors of the amendment didn't specifically say "equal protection under the law, except when the law addresses age of consent." Hell why stop at 10? Section one clearly applies to ALL citizens since children born in America are citizens then all age based restrictions are clearly unconstitutional. Now obviously this is pure hyperbole but CLEARLY the amendment was not meant to remove age restrictions on consent just as CLEARLY the section wasn't written to legalize gay marriage. Age is clearly a biological issue. Just like gender is. As is race. Why should we discriminate based on any of these biological issue at all?

Fuzzy there are two issues with justices taking the matter into their own hands. They are separate but are part and parcel of the same problem.

1. The justices violates the Democratic process by overreaching and using their own opinion instead of the constitution to erect or strike down laws as they deem fit. This is overstepping their bounds and takes away the rights of the people to have Democracy.

2. Thee justices choose to side with the 'mob rule' as opposed to what is in the constitution itself. The will of the people should be carried about the Legislature NOT the courts. The courts are a check against Democratic action that would restrict the essential liberties of the people. The potential ruling of the courts wasn't what I was specifically complaining about but rather the fact that it is only NOW being considered because public opinion has changed. That's dangerous. The courts shouldn't care if gay marriage has no support or near 100% support.

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Originally Posted by Lewkowski

proof that there was a reasonable discourse

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stupidity is not reasonable

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Originally Posted by Lewkowski

Interestingly enough the fact that Hamilton felt he had to respond... is proof that there was a reasonable discourse about the issue.

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You. . . do remember what the Federalist Papers are right? They're the pre-ratification arguments and rebuttals Hamilton, Madison, and Jay wrote in response to the dissenting sides in the push get the new Constitution ratified, replacing the old Articles of Confederacy with a new, more closely integrated federal system, the United States.

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I also like to use the cruel and unusual item because by looking at a similar thing that doesn't have nearly as much emotional buy in the argument can be framed differently.

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You're using it because you think it'll be an easier route to argue and that if you "won" somehow, it would automatically prove your position on the 14th amendment right by proxy. But it wouldn't because you'd still have to prove that they didn't really mean it when they established that new Constitutional principle. Regardless, Hamilton's quoted text from Article #82, repeated in numerous other artices, already proves you wrong on cruel and unusual. They KNEW that their text wouldn't always be suitable and that future figures, like judges building up the body of jurisprudence, would be the ones defining meaning and making adjustments as time went by.

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How far do you want to take the equal protection argument?

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Gay relationships have already been sanctioned as a basic personal right though, protected from government intrusion. You have no problem going that far yourself, as best I can recall. Was I wrong? Do you think it's in-line to arrest people for being in a relationship with someone of the same gender?

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Fuzzy there are two issues with justices taking the matter into their own hands. They are separate but are part and parcel of the same problem.

1. The justices violates the Democratic process by overreaching and using their own opinion instead of the constitution to erect or strike down laws as they deem fit. This is overstepping their bounds and takes away the rights of the people to have Democracy.

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But they are using the Constitution. The text is right there. You're trying to argue something that not one person behind that amendment ever said, ever uttered so much as a casual thought about. And you're using that source-less argument to insist that they didn't really mean the plain text of what they wrote into the Constitution.

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2. Thee justices choose to side with the 'mob rule' as opposed to what is in the constitution itself. The will of the people should be carried about the Legislature NOT the courts. The courts are a check against Democratic action that would restrict the essential liberties of the people. The potential ruling of the courts wasn't what I was specifically complaining about but rather the fact that it is only NOW being considered because public opinion has changed. That's dangerous. The courts shouldn't care if gay marriage has no support or near 100% support.

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The mob rule, the "ill humor. . .Which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community," are the bans on gay marriage thrown up when a couple of states made proper democratic-process decisions themselves. And many of those bits of mob rule, including the one addressed by this thread when it began, arose from acts of direct democracy, not legislative action, an approach which most of your "founders" didn't want in the first place. You're right, the courts are a check against democratic action that would restrict the essential liberties of the people. Which is why the courts are acting here, they're doing exactly that.

Fuzzy - the fact that it was being discussed at and warranted being addressed in the Federalist Papers means that it was a possible issue. That's it nothing more, nothing less. The Federalist papers are actually very interesting but they certainly aren't in lock step with every one of our Founding Fathers.

My argument is that the courts are overreaching just like the nonsense that goes on in with cruel and unusual punishment. Speaking of which do you even agree outlawing the DP and using the cruel and unusual punishment clause as justification is ridiculous?

I've been pretty clear with my perspective - the government shouldn't be getting involved in people's personal lives. Two dudes want to have sex? Not my business. I view myself as primarily a libertarian so laws against homosexual activity, prostitution, gambling, motorcycle helmet laws, drugs and seat-belt laws are all more or less equally repugnant.

Are you really making the argument that the author's of the 14th amendment meant it to apply to homosexual marriage?

Except the courts are overreaching. Let me phrase this a different way. If modern day attitudes toward homosexual marriage were instead attitudes of 40 years ago would this even be considered being up for discussion with the Supreme Court? If the answer is no then we got a problem.

For the record I'll re-state my position. Government should do away with marriage as a secular institution. Instead replace it all with contracts. I don't really see it being politically feasible but it has a huge number of benefits.

1. From an equity perspective why should married people get more rights than non-married people?
2. Piggy backing from the equity perspective it would also mean we end (except thought already grandfathered in) the extra costs widow/divorcee benefits that drain social security. Would this be of any issue for a single man? http://www.cbsnews.com/news/what-you...cial-security/ Bottom line - married people shouldn't be getting extra benefits single people wouldn't.
3. People are heavily invested in the notion of 'marriage' from a social perspective. They get right upset about letting people they don't think should be married get 'married.' Take the emotion out of it completely. Since government no longer recognizes things as marriage there *should* be no issue if two people decide to get married and call themselves married sans government blessing.
4. Gays (and I guess close relatives since you know equal protection clause) can gain all the defacto benefits of married people with contractual law.
5. Much less government regulation and the crazy patchwork quilt of laws concerning it, divorce and alimony. If all is stipulated via contract there would be very little reason to get the courts involved outside of merely determining what occurred.

It would be a win/win for everyone!

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Originally Posted by Lewkowski

Fuzzy - the fact that it was being discussed at and warranted being addressed in the Federalist Papers means that it was a possible issue. That's it nothing more, nothing less. The Federalist papers are actually very interesting but they certainly aren't in lock step with every one of our Founding Fathers.

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He responded because people tried to object to the proposed Constitution on the grounds that it provided for an independent judiciary. They were afraid that a judiciary independent of Congress, and with the power of judicial review (which was the primary topic of the 1st half of that particular article) would actually be more powerful than Congress. And the Federalist Papers are THE guide to the thinking of the Founding Fathers wrt the Constitution. It is the seminal work for original intent, the Founding Fathers "Reader's Guide" to the Constitution. And it doesn't agree with you. But what you really mean when you say "original intent" is "Lewk's imagination," not any actual communication the people who wrote the Constitution provided.

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My argument is that the courts are overreaching just like the nonsense that goes on in with cruel and unusual punishment. Speaking of which do you even agree outlawing the DP and using the cruel and unusual punishment clause as justification is ridiculous?

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Your argument is that if somehow you can be right on "cruel and unusual" that means you're right on equal protection. But it's not true even if the logic worked that way because you can't point to anything suggesting they had an alternative meaning of equal protection in mind. Not a single damn word. Your imagination is not a suitable substitute. I don't care what you argue about cruel and unusual and I'm not going to grace it with an rebuttal because it doesn't matter, you'd still have to prove the equal protection argument anyway. So stop wasting both our times and try and do that.

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I've been pretty clear with my perspective - the government shouldn't be getting involved in people's personal lives. Two dudes want to have sex? Not my business. I view myself as primarily a libertarian so laws against homosexual activity, prostitution, gambling, motorcycle helmet laws, drugs and seat-belt laws are all more or less equally repugnant.

Are you really making the argument that the author's of the 14th amendment meant it to apply to homosexual marriage?

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I think they wouldn't have accepted sodomy at all. They'd have argued that since it wasn't accepted as a behavior protected by privacy rights in the first place, equal protection for marriage in such a context could never even come up. But that prereq has already been blown out of the water and it doesn't leave any leg to stand on for not providing equal protection. So the courts can either take the text at face value, or they can accept "imagination of what someone else might have thought, without any documented evidence" as their evidentiary standard. Which they aren't going to do for obvious, REALLY GOOD, reasons.

Fuzzy explain the limits of the equal protection clause.

Can we treat citizens differently under the law based on behavior? (Criminal record for example?)

Can we treat citizens differently under the law based on biological characteristics? (such as age?)

Can we treat citizens differently under the law based on geographical location? (Such as paying different taxes in different states?)

Here is my beef on a broader scale. This is the toxic attitude I'm concerned with:

If you dislike abortion and the court rules in favor of your perspective on it, they did a good job.
If you like abortion and the court rules in favor of your perspective on it, they did a good job.

If you like unions and the courts rule in favor of your perspective on it, they did a good job.
If you dislike unions and the courts rule in favor of your perspective on it, they did a good job.

Apply this to nearly every major issue. Gay Marriage, Gun Control, Immigration, Terrorist detainment and Campaign Finance Reform.

In today's political climate people DON'T CARE about WHY the court rules the way they did only if the court ruled in favor of their political perspective. That is dangerous. That means our constitutional freedoms are in jeopardy. The fact that the court takes into consideration popular perspective is a bad trend and there is no reason why the courts would rule now on gay marriage as opposed to 50 years ago other than popular perspective.

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Originally Posted by LittleFuzzy

Your argument is that if somehow you can be right on "cruel and unusual" that means you're right on equal protection. But it's not true even if the logic worked that way because you can't point to anything suggesting they had an alternative meaning of equal protection in mind. Not a single damn word. Your imagination is not a suitable substitute. I don't care what you argue about cruel and unusual and I'm not going to grace it with an rebuttal because it doesn't matter, you'd still have to prove the equal protection argument anyway. So stop wasting both our times and try and do that.

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Debate is about reaching common ground. If can't at least admit the court has overreached on cruel and unusual punishment then there is no feasible way to convince you that it overreached on equal protection. It isn't just about using it as an example, it is also about measuring your receptiveness to the very idea of court overreach vs. original intent.

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Originally Posted by Lewkowski

Fuzzy explain the limits of the equal protection clause.

Can we treat citizens differently under the law based on behavior? (Criminal record for example?)

Can we treat citizens differently under the law based on biological characteristics? (such as age?)

Can we treat citizens differently under the law based on geographical location? (Such as paying different taxes in different states?)

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The answer to all of those is multiple "it depends." It depends on the characteristic being used to try and treat people differently. It depends on what exactly is being done to treat them differently. It depends on the process being used and why it is being used, and it depends on more besides. In the law, everything is rife with exceptions. Let me draw up an example using the first on the list, behavior. If someone possesses evidence of a crime, the government can compel them to turn it over. It's even criminalized not doing so, as obstruction of justice, and that's ok. Except when it's not because the 1st amendment protects the freedom of the press and you'd be charging a journalist for doing their constitutionally-protected job. Except then the courts can hold the journalist in contempt and put them in jail without formal charges.

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Originally Posted by Lewkowski

Debate is about reaching common ground. If can't at least admit the court has overreached on cruel and unusual punishment then there is no feasible way to convince you that it overreached on equal protection. It isn't just about using it as an example, it is also about measuring your receptiveness to the very idea of court overreach vs. original intent.

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No, that's not what this is about. It isn't what you've done regarding the topic in the past and everyone knows its not what you're going to do here. You demonstrated that the instant you chose to deny that the work explicitly explaining the Founders intent didn't do anything of the sort. You said "in today's political climate people don't care why the court rules. . ." I'm not people. But apparently you are.

<I didn't see a dedicated thread about Indiana's recently passed "Religious Freedom Restoration Act"....so will add that controversy to this discussion.>

There's been a huge national debate about Equal Protections and Religious Freedoms, the role of government, and clashes between state and federal legislation since (at least) Prop 8 in California. Plus Pharmacists who refused to fill prescriptions for Plan B because it violated their religious beliefs, and Hobby Lobby wanting a 'religious exemption' from the ACA so they wouldn't have to include birth control in their employee health insurance plans....it's no wonder the Indiana RFRA, as written, got so much backlash.


Lewk, since a lot has changed since the 17th century, don't you think it's a good thing that our Constitution was written so it could evolve over time? It's not like the Founding Fathers had the modern, science-based understanding about human development, behaviors, let alone what's a disease, that we do today -- ffs many credited Satan for practically everything from seizures to crop failure! :rolleyes:

And to Fuzzy, couldn't much of today's State House politicking about gay marriage, or 'religious exemptions' based on homophobia been avoided.....if we'd included gender in an Equal Rights Amendment decades ago?

"It depends." Yeah that's a solid stand to make! This is the problem - unless our rights are concrete they are fragile. That is why it is critical that we use the original intent of the amendment and not allow justices to decide what they think is best. Justices should never even *consider* if a law is 'just' 'good' or 'effective.' That is not part of their job description.

Fuzzy - the constitution, unless amended, should be have an unchanging meaning. I'm willing to concede technology changes could lead to a useful purpose of interpretation but other than that it should never change. If you think it should change based on popular sentiment than those freedoms enshrined in the constitution have no protection from rob rule.

GGT - The constitution can absolutely evolve... through the amendment process. Any other 'evolution' breaks down the protections within the constitution.

Except as Fuzzy has said the original intent wasn't for the text to be concrete and inflexible. So why would you want it to go on so-called original intent without going on that intent?

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Originally Posted by Lewkowski

"It depends." Yeah that's a solid stand to make!

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What do you expect? You're talking about 200+ years of jurisprudence ferreting out the application of the material in a five-page document to every situation disputed under it. Nothing in the law or the US Constitution creates clean simple lines.

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This is the problem - unless our rights are concrete they are fragile. That is why it is critical that we use the original intent of the amendment and not allow justices to decide what they think is best. Justices should never even *consider* if a law is 'just' 'good' or 'effective.' That is not part of their job description.

Fuzzy - the constitution, unless amended, should be have an unchanging meaning. I'm willing to concede technology changes could lead to a useful purpose of interpretation but other than that it should never change. If you think it should change based on popular sentiment than those freedoms enshrined in the constitution have no protection from rob rule.

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The Constitution is five pages long. Even relying on original intent it can't have an unchanging meaning because there will always be disagreement about what the intent was and how it applies. See Plessy v Ferguson and [Brown v Board[/i]. You and I have been having one of this disagreements here. You can't provide shit to substantiate your claim that the people who wrote and ratified the 14th amendment valued discrimination on grounds of sexual orientation over the principle of equal protection. No one knows what their intent was because they never had to consider the topic in the first place.

I wonder why Lewk thinks that a five-page document is able to answer every single question in a final and unambiguous way. Because if that were the case we wouldn't need huge tomes containing codes of law, their interpretations and regulations, judges or lawyers in the first place.

Then again, this is the same guy who thinks that the Bible does give definitive answers. Which has thousands of pages, mind.

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Originally Posted by Khendraja'aro

I wonder why Lewk thinks that a five-page document is able to answer every single question in a final and unambiguous way. Because if that were the case we wouldn't need huge tomes containing codes of law, their interpretations and regulations, judges or lawyers in the first place.

Then again, this is the same guy who thinks that the Bible does give definitive answers. Which has thousands of pages, mind.

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Except that it isn't going to answer everything... I've never even suggested it would! Instead it gives a framework and some 'hard stops' on laws that would violate it. If you want to change the constitution the process exists to amend it. The process should *not* be get politically similar minded folks appointed to the supreme court.

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Originally Posted by RandBlade

Except as Fuzzy has said the original intent wasn't for the text to be concrete and inflexible. So why would you want it to go on so-called original intent without going on that intent?

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There are reasons to interpret things but not reasons to interpret them completely opposite to what was intended! Changes in technology are a prime example. However if you go with the 'anything goes' crowd do you see how that means the protections enshrined int he constitution become weaker? If someone can interpret the constitution to mean political speech shouldn't be protected by the 1st amendment doesn't that concern you? (If you lived here of course).

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Originally Posted by LittleFuzzy

The Constitution is five pages long. Even relying on original intent it can't have an unchanging meaning because there will always be disagreement about what the intent was and how it applies. See Plessy v Ferguson and [Brown v Board[/i]. You and I have been having one of this disagreements here. You can't provide shit to substantiate your claim that the people who wrote and ratified the 14th amendment valued discrimination on grounds of sexual orientation over the principle of equal protection. No one knows what their intent was because they never had to consider the topic in the first place.

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Sorry but you're being deliberately obtuse about this. If we could all get in our magic time machine and go back and ask them what do you think they would say?

And again if you want to go to absurd lengths here you never answered my earlier questions outside of "depends." Really? The constitution isn't 'depends' it should be self evident. And the supreme court should *never* make a value decision on who it will help, harm, weather it is good for the country or not and neither should they take into consideration popular opinion. They have a narrow job that they have decide to broaden at the cost of the democratic process AND our freedoms depending on the case they look at.

Can you at least admit that the freedoms within the constitution are more at risk when supreme court justices make decisions based on popular opinion?

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Originally Posted by Lewkowski

Sorry but you're being deliberately obtuse about this. If we could all get in our magic time machine and go back and ask them what do you think they would say?

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It doesn't matter what their values were, if they didn't put them in the Constitution. This bias against homosexuality never gets mentioned in the document. As I believe you mention, there is a mechanism for putting that sort of provision in if it's intended and desired. If you went back to the Founders and asked, maybe they would have put in a provision explicitly allowing secession (and certainly not enough states would voted to ratify at the time if they'd been aware of how things would play out in the 1860s, every state would have balked, not just the South), but they didn't and by the time it came for the issue to be considered things had changed.

I already told you how things would play out if same-sex marriage was a question back then. They'd have relied on the general hostility toward homosexuality, as codified in anti-sodomy legislation, to preempt any such challenge. Well that anti-sodomy legislation wasn't given much respect even when it was still on the books. The attitudes of the people had changed, as was normal and acceptable and which was getting reflected in what was and wasn't legal exactly as the legislative environment should work and was intended to work. And now that homosexuality is legal, equal protection has to apply to its derivative acts, like marriage.

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The constitution isn't 'depends' it should be self evident.

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If that were true there wouldn't be any need for argument before a panel of judges in the first place. The entire US legal edifice is built upon the adversarial principle. Deal with it.

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And the supreme court should *never* make a value decision on who it will help, harm, weather it is good for the country or not and neither should they take into consideration popular opinion. They have a narrow job that they have decide to broaden at the cost of the democratic process AND our freedoms depending on the case they look at.

Can you at least admit that the freedoms within the constitution are more at risk when supreme court justices make decisions based on popular opinion?

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No I can't. Our freedoms are more at risk when we try to reduce the act of judgement into inflexible and unthinking robotics. That makes abuse easier, not harder. And I will point out yet again that here you are arguing AGAINST the freedoms guaranteed us in the Constitution.