it's our tax dollars at work x 2, since we taxpayers are footing the bill to collect all the data, which is then repackaged by the for-profit services.

AccuWeather gave Santorum $4K in the last election cycle...Senator "Man on Dog" works cheap for all the grief this is going to cause him.

Exactly - we've already paid for the data, and now they want us to pay for the privilege of accessing it. And yes, the CEO and his family gave $4000 last cycle, and have gave $2750 to the Santorum 2006 campaign, according to FEC.gov.

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

I couldn't care less about the NWS issue, especially since I am sure everyone involved knows the bill will go nowhere.

On the other hand, you should at least characterize his position on Lawerence correctly in that he predicted in the face of much ridicule that if the Supreme Court were to find a Constitutional right to sodomy in Lawerence, that we would be rapidly on the way to court mandated gay marriage, bigamy and polygomy.

He has been proven 100% correct, so what is your issue?

So I guess he gets a free pass on this idiotic NWS issue, because of course if it won't get passed, it's like it never happened, right?

As for Lawrence, perhaps you should practice what you preach, Art. Below is the entire quote in context, from an AP interview easily accessible via the Web.

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. Because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out. And the further you extend it out, the more you — this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.

Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality —

So once again, assuming you can read that, explain to me exactly how I mischaracterized his comments - he mentions marriage as a bedrock institution with relation to heterosexuality and suggests that because homosexuality is not heterosexuality, it will erode a basic societal unit. Nowhere does he say that the Court would be pressured to pursue gay marriage, polygamy, etc. Rather, he argues that the, in his opinion, unguaranteed notion of personal privacy opens the door to all of these practices, including bestiality and pederasty, as you will note.

So perhaps here, as in other discussions on ST, you should actually read in context what you're so willing to discuss publicly.

Or is it just too easy to knee-jerk reflexively defend a Republican, despite his non-libertarian stance on personal privacy?

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

Nowhere does he say that the Court would be pressured to pursue gay marriage, polygamy, etc. Rather, he argues that the, in his opinion, unguaranteed notion of personal privacy opens the door to all of these practices, including bestiality and pederasty, as you will note.

Yeah, that's what Art said. And he's right, and so is Santorum.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

I guess you don't understand yur own quote. Here is the most important part, all in the context of Lawrence.

And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.

Within a few months, the MA Supreme Court, referencing Lawrence, created the right to gay marriage, a right he references later in your quote. You just don't get any more prophetic than that.

Given the reasoning in Lawrence, I don't see how the Supreme Court can uphold bans on gay marriage, incest and polygomy, but with that gang, you just never know.

Your statement was: once you allow homosexuality (or in fact fail to criminalize it) you are immediately on the slippery slope to the legalization of bigamy, bestiality and pederasty. It is not an issue of allowing homosexuality. It is an issue of finding a Constitutional right to sodomy. Those are two completely different concepts that you mischaracterized.

As an example, it wouldn't be hard to convince me to vote out the Texas sodomy law. I would probably go along. A Constitutional right to sodomy is just not there. More penumbras and emanations.

One is legislative judgment arrived at through democratic processes. The other is a nondemocratic fabrication of a right by five men in black pajamas.

Hopefully, you can see the difference, but since you can't parse your own quote, maybe not.

I don't even know if Santorum has a position on whether the Texas or PA legislatures should criminialize sodomy. So far as I know, he does not.

Sorry, don't give a damn about the NWS issue. I am sure that pressing issue will grip the rest of the public though, so keep at it.

>>>>Hopefully, you can see the difference, but since you can't parse your own quote, maybe not.

Look at Art go!

He's a *master* of parsing the language...witness the excellent crypto-racist work he's done over on the Bolton thread.

You keep calling those "spades," Art...it's why we love you.

witness the excellent crypto-racist work

I'm honestly disappointed, Larry. Pulling the race card is beneath you.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Beneath who now?

I'm not the one lauding DPM for calling spades "spades", am I?

The Old Man has had all day to explain his-self...he's chosen not to do so.

Not choosing my words carefully is the only thing beneath me, Vitus.

Ah, I just find it sub-standard work, considering your usual contributions. Like I said, honestly disappointing, if only on aesthetic grounds.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

>>>disappointing, if only on aesthetic grounds.

Noted...but I strongly disagree.

I didn't say Art is a racist because I have no way of knowing that...but there's no doubt he used crypto-racist language on a point having to with issues relating the black community, and has yet to either clarify or explain himself.

Given that the task of defending Art's woefully inept word selection has somehow fallen to you, how do you think such a thing should be handled "aesthetically"

Would you prefer we not parse the parser because the results are messy, or is there another, more gentle, characterization I should have chosen?

Do tell...and while you're at it, share with us your "aesthetic" opinion of the original phrase in question.

but there's no doubt he used crypto-racist language on a point having to with issues relating the black community, and has yet to either clarify or explain himself.

Oh, I doubt he had any intent of using that language in a racist matter.


Given that the task of defending Art's woefully inept word selection has somehow fallen to you

You misunderstand. In the first place, I don't see that Art's selection of words needs any defending. In the second place, when I said I was honestly disappointed with your choice to play the race card- twice- I meant it. I usually enjoy reading your posts.

share with us your "aesthetic" opinion of the original phrase in question.

What, "calling a spade a spade"? I think anyone who really thinks it's an inherently racist phrase, or that Art intended as a racial insult has serious issues of their own. I doubt that applies to you, though- I think you're just using it as a cheap way to score some points, like a common demagogue might. Like I say, it's honestly disappointing.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

No, I understand my quote quite clearly. And I understand the context of Lawrence. And most importantly, I understand the demogoguish stance you take towards it and your flawed logic.

And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.

The Court said no such thing. What it did say is that people have a constitutional right to privacy regarding consensual relations, of which homosexual relations is one. This has nothing to do with gay marriage, which is a question of the state sanctioning a relationship for legal purposes, and certainly nothing to do with incest, bestiality, or pederasty, because, and I shouldn't even have to explain this, those are relations that can be showed to involve coercion or lack of consent. Polygamy is a different question, which I don't have an answer to.

Your statement was: once you allow homosexuality (or in fact fail to criminalize it) you are immediately on the slippery slope to the legalization of bigamy, bestiality and pederasty. It is not an issue of allowing homosexuality. It is an issue of finding a Constitutional right to sodomy. Those are two completely different concepts that you mischaracterized.

No, I didn't mischaracterize. You choose to portray it as a Constitutional "right" to sodomy. My "parsing" of your words suggests that you believe that it is effectively a state sanction or endorsement of such activities. This is simply untrue. Rather, the Court simply says that it is unconstitutional for laws to ban such activities amongst consenting adults who are protected by the 14th Amendment, among others. This distinction may mean little to you. Even if I took your stance, that it suggests a right to sodomy, this simply doesn't extend to other more repugnant activities for the reasons stated above. Your slippery slope has a few potholes in it, and gay marriage isn't one of them.

As for your attack on "activist" judges, as I read it, I'm not sure what your problem is. Apparently you believe that legislative processes should trump all, despite arguable unconstitutionality, or for that matter, the mercurial nature of some of our lawmakers. If you want to revise the separation of powers doctrine, you should just come out and say that, rather than argue circuitously about judges simply because you disagree with the outcome of their decisions. Based on your logic, we'd still have Jim Crow laws and segregation as the law of the land. Or do the guys in black pajamas become venerable legal experts when you agree with them? And would you suddenly start arguing about federalism if George W. Bush were suddenly John Kerry?

And the question is not whether you give a damn about the NWS issue - rather would you care if it were Hillary Rodham Clinton as the sponsor and not the great mind of Rick Santorum?

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

No, I wouldn't give a damn about the NWS issue if it were Hillary's proposal either. Keep going on this issue right through 2006 though. You should get good traction with NWS obsessed electorate.

It is obvious that you simply don't understand the role of the Supreme Court and the state legislatures in the context of our constitutional democracy. I would be happy to take the time to explain this to you, but I am off to St. Anthony's. I will try again Sunday night if you are interested.

Just as a hint, the Court overturned the Texas law, and the laws of 12 other states, by finding that they violate the newly discovered constitutional right to sodomy. They have no power to overturn laws on any other basis.

Predictably, and predicted by Santorum, the MA Supreme Court took that decision and created the constitutional right to gay marriage.

More later, if you are receptive.

AJ... I see that you still have this democratic-majority rule is ultimate determining factor for defining right from wrong or even good from bad... this is not always the case.

What happen to the Bill of Rights? These are rights that can not be re-defined by majority rule.

For example... what if a law was passed that would make it illegal for Jews to marry Gentiles? (BTW, I intentionally chose that example).... would you agree to this majority-rule based removal of a right and denial of equal treatment under the laws? Based on your argument, the answer would be yes... My answer would be No. By the same token, I see other laws in the same light - specifically, the gay-marriage issue.

Joe Moya

Why don't you take the time to educate the masses, instead of taking the Brian286 route of pretending to know something and begging off when forced into a corner.

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

The problem is not that it's even a majority rule issue - its not as if these issues were put to a national referendum - although the gay marriage issue was seen in various state referenda.

It's that elected officials, with somewhat unpredictable preferences can ram it through, due partially to the vagaries of gerrymandering and the impurity of the legislative process. And then it becomes a question of whether the majority, especially a narrow majority, has the right to remove protections for minority classes. Perhaps this is why the Founders were smart enough to make Constitutional amendments so difficult to pull off.

As for your example, I believe there are a few states still with miscegenation laws on their books (although I don't think your particular example would count) - and I'm quite certain there are those whackos who would argue against the Court striking these downs on the same grounds - the creation of a Constitutional "right". And apparently when the Court extends basic protections to all classes; i.e., prevention of discrimination on various grounds does it then get called "activist". Apparently only certain people (those who aren't likely to be discriminated against) are due the benefits of incumbency. But that's an outcome of extended conservatism.

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

Ok... so that sounds like a more "real life" observation of the current form of democracy which we have... one that is special interest driven. In which case, the arguments of representative government becomes diluted. And, when swayed toward an extreme (whether it be left or right) the idea of special interest becomes dangerous and the real threat to a society.

I buy that argument...

As for my example, the reason I used it is this... the argument of gay rights being a choice seems to echo as a basis for denying the equal treatment under the law. At last look, religion is a choice... so, if you use the argument as gay being a choice (which (btw) according to gays - it is not) then you would have to say that "IF" there were miscegenation laws as related to religious choice discrimination benchmark, then the argument of dening cross-religious marriages would be sitting in the same position as gay marriages.

If I read you correctly, then this idea fall's under your idea of "certain" people do not fall under basic protections. And, some (special interest groups?) define anyone (i.e., judges) who try an extend equal protection under the law (and, counter to the general will of the VOTING population) gets deemed as activist. In essense, the activist (in this situation) becomes the "real" constitutional definition of the greater good... with those ideas, I agree.

FWIW Joe Moya

e-PS... speaking of gerrymandering... have you looked at the Texas Congressional districting changes lately... wow... if democrats were a racial minority, this gerrymandering in Texas would fallen under a civil rights violations laws.

Yeah, pretty much. One of the right's nagging contentions is regarding what they consider the activist court, which is ironic since most of them are Republican nominees.

They're considered activist for a number of reasons, depending on who's saying it. In this context it's because of their extension of Constitutional protections to groups that at the then-present time can be discriminated against. Examples could include women, ethnic and religious minorities, the handicapped, and now potentially, gays.

What's interesting is that in the past, most cases regarding these groups revolved mostly around employment and similar types of situations. But with gays, its even more elementary than that - it's their simple right to engage in consensual relations, without disrupting or impacting others in any measurable way. I'm not up on current employment law, but my understanding is that job discrimination on the basis of sexual orientation is still a pretty muddy area.

It comes down to a core intellectual question - what constitutes a "protected" group and why? You mentioned choice as one criteria. Perhaps there are others.

I'm not sure I agree with you when it comes to whether it conflicts with the voting population. I'm not sure that comes up, and frankly I'm not sure its reliably measurable. I think the key question here for me is whether the right is arguing about the sanctity of the process or just pissed off when the outcome doesn't go their way.

My feeling is that it is the former. The process wasn't exactly controversial for some time, and it's remained the same pretty much since the beginning of the republic. And given how sharply partisan the country has become, and you can see this from Art's posts from the election period, the process is now a problem pretty much because of the outcomes it produces. I alluded to this earlier when I talked about federalism - when conservatives disagree with the reach of the federal government, typically when Democrat control, they always talk about federalism and state's rights. But when it's a Republican administration, this ostensible core principle becomes unsurprisingly absent from the dialogue. Democrats have a problem with federalism to the extent that it's history has been deeply marred by issues of slavery and segregation - state's rights were often invoked by the Jesse Helms and Strom Thurmonds of the world when trying to justify an otherwise self-evidently repugnant public policy.

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

I will take this to mean that, no, you are not interested in understanding the role of the Supreme Court and the Constitution.

I guess like Joe M, you don't know what the Constitution says, never read it, but you are quite certain it protects those "rights" with which you agree, but not those "rights" that you oppose.

Life is much simpler that way.

we've had this discussion before, but...

is it your opinion that the substantive rights contained in the constitution(vs. procedural guidelines) must be validated by an act of congress that, typically, will follow popular will? supposing there was an absolutely clear violation of the constitution--say congress passed laws in accordance with constituents' wishes(most of them) saying that women could no longer vote. is it not the supreme court's role to step in and overturn that legislation even if it counters popular opinion? or would women have to convince congress to repeal the law?

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f/k/a mclamb6

Boy, now that is a tough question. Hmm, let me see:

Amendment XIX
The right of Citizens of the United States shall not be denied or abridged by the United States or by any state on account of sex.

Tough call, but it looks vaguely like the law you describe is in direct conflict with the Constitution, so it goes.

Saying otherwise would be as stupid as the Supreme Court's looking at the First Amendment that says "Congress shall make no law ... abridging freedom of speech" and concluding that Congress can make a law abridging freedom of speech in the 60 days before an election.

Sorry, I just remembered that they actually did that, but, hopefully, you get my point anyway.

The setup of the Constitution is pretty clear. It is primarily a restriction on government. It says, for the most part, Congress can't do this and Congress can't do that.

You can take it to mean whatever you want. You will either regardless of what I actually say anyway.

For the record, I asked your for an explanation of your assertion, but apparently it was easier to just throw an ad hominem insult instead. Talk about keeping life simple.

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

ok, then what if congress repealed the civil rights act as applied to women and then passed laws saying women couldn't be engineers, attorneys, or doctors. can the women challenge that law in court? what result? can the court say that's no good or does it need to defer to congress?

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f/k/a mclamb6

I can't answer all of those questions well, but for the most part Congress can not say that individuals can't engage in professions. Really their only hook into trying to exert that right would be their right to regulate interstate commerce.

That right of Congress has been expanded enormously by a long line of bad decisions by the Supreme Court. One of the most agregious was their ruling that a farmer who grew his own grain for his own consumption nevertheless could be regulated by Agriculture laws passed by Congress because his usage "affected" the interstate market. A fair reading of the Constitution though, would preclude that.

I can not make the same statement about whether states could pass some of those laws. I simply do not know the answer to that.

Obviously government can pass laws treating the sexes differently. Try using the women's locker room, if you want first hand experience in that matter.

If the old Equal Rights Amendment had passed, the answer to all of those questions would be a definite no. Presumably, you would be able to use the women's locker room too. I imagine gay marriage would have then become a constitutional right as well.

ok, so the states pass those laws(gender discrimination in teh work place not based on physical differences, but rather on a notion that women were inferior to men) rather than congress. could the court invalidate them or would they just have to defer? can the court enforce substantive rights in the constitution, such as equal protection even if the laws were in line with popular opinion?

what if the congress said that drug distribution was punishable by branding an "d" on people's cheeks? 51% of the country thought it was a good idea. could the court invalidate those punishments based on "cruel and unusual punishment"?

or even more generically, district court, court of appeals, and supreme court all see a substantive constitutional violation in a given case even though it conflicts with congressional enactments, should the court defer? what if the court is unanimous the whole at every level?

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f/k/a mclamb6

district court, court of appeals, and supreme court all see a substantive constitutional violation in a given case even though it conflicts with congressional enactments, should the court defer?

Either I'm misunderstanding that, or it's a stupid question. If there's a constitutional violation, nobody says the courts should defer. The question isn't what the courts should do when there's a constitutional violation, it's that the courts have been refusing to defer even when there is no constitutional violation.

what if the court is unanimous the whole at every level?

Irrelevant.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Sorry, I simply don't know that answer when you ask the state questions. Obviously the Court can enforce equal protection, Amendment XIV, Article 1.

Since that punishment has never been imposed before and there is no reason to think that authors of the Constitution considered that acceptable at any time, that punishment would certainly be a candidate for cruel and unusual.

I don't understand your last question since there are no specifics.

I get a real laugh out of the Equal Protection arguments. Coming from an angle you might relate to, Equal Protection was one of the major reasons underlying the ending of the counting of ballots in Florida in 2000. Give me a break, my rights in Broward are violated if Palm Beach Country continues to count votes? Get real.

my impression of art's position is that there is little role for the supreme court. if there is a non-obvious constitutional issue, i.e. potential equal rights issue vs. denial of voting rights based on gender, it seems as if art believes that the court should defer to congress' views as shown through the legislation they see fit to pass. as if the default position should be deference to congress.

i disagree. the court's job is to interpret the constitution and give teeth to substantive rights contained in the constitution. it's not to defer to congress on close issues.

and the reason i threw in the unanimity factor is that art, in the past, has indicated that a wide consensus from the court(s) is indicative of a more credible decision that flies in the face of congressional acts.

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f/k/a mclamb6

the question in my hypothetical really boils down to whether women would have substantive rights contained in the constitution to preclude such gender discrimination in "professional" fields and whether you'd view a decision invalidating, again hypothetically, 29 state laws enacting such discrimination. or would the women have to bide their time by lobbying their state legislatures to change the law for a change in those policies to be considered legitimate?

or to go back to the standard issue on this board, you have a real problem with gays seeking redress in the courts for the gay marriage issue. but if something is unconstitutional, it's unconstitutional regardless of how popular it is or whether congress enacts laws stating otherwise. it is the court's duty to act in those cases if someone brings the case before them and they shouldn't defer to the whims of congress.

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f/k/a mclamb6

Usually the term substantive rights means rights that aren't in the Constitution, but which the person using the term really think ought to be in there so the Court should find them in there. (In a pinch, penumbras and emanations work well.) The first such case like that to my knowledge was the Dred Scott decision. That one didn't turn out so well when seven southern judges found a substantive right to slavery.

Again, I wish I could answer your state questions better. I simply can not.

Bans on gay marriage are simply not unconstitutional. The word gay and the word marriage don't even appear in the text. We can all sit here and make up substantive rights all day long. If you want it in the Constitution, you really have to pass an amendment.

I concede that legislatures can and do pass lousy laws, just as Courts make lousy decisions. Just because a law is lousy, doesn't mean it is unconstitutional.

I don't understand the shot about my not finding a need for the Supreme Court. It was their job to uphold the black letter of the law of the First Amendment and strike down Campaign Finance Reform. They didn't do it. Then again, it was Bush's job to veto it, and he didn't do that either.

The Court upholds laws in direct violation of the plain meaning of the text, and they strike down laws unaddressed by the text of the Constitution. Gee, I wonder why judges get criticized?

my impression of art's position is that there is little role for the supreme court.

My impression is that Art is closer to being right than you are.

The court's role is obviously to interpret the Constitution, and deferring to Congress on "close issues" has not much to do with anything, as far as I can see. But not every issue is addressed by the Constitution. Lots of issues, in fact. If an issue isn't addressed by the Constitution . . . there's no legitimate court role.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

ok, equal protection. what's that mean?

cruel and unusual punishment. what's that mean?

due process. what's that mean?

those are all issues addressed by the constitution.

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f/k/a mclamb6

"equal rights. what's that mean?"

Where is "equal rights" in the Constitution? Obviously when talking about something like "cruel and unusual punishments" the courts have to interpret what that means. As for due process, the Constitution says "without due process of law" so, I suppose, as long as the law is followed, due process has been met. No interpretation required.

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Slowguy

(insert pithy phrase here...)

and i think it's ridiculous to frame issues so narrowly. equal protection is broad. due process is broad. cruel/unusual is broad. just to name 3. to think that issues or phrases that aren't mentioned specifically within the constitution, leaving aside gay marriage for a second, couldn't be subsumed in perfectly logical, reasonable fashion within those terms explicitly mentioned within the constitution.

to state that every specific issue before the court must appear exactly in the constitution or that new issues can't arise that fit perfectly well within the substantive rights guaranteed by the constitution means that the constitution's restrictions are relegated to a specific meaning at a very specific point in history and thus their meaning/importance fades as time passes, leaving it all up to the good graces of the legislature.

to state that substantive rights are usually things that aren't found in the constitution is not a logical argument. equal rights = a substantive right. free speech, freedom of religion, right to bear arms, freedom from unreasonable searches and seizures, no cruel/unusual punishment, etc. are all substantive rights. it's the court's job to enforce those, regardless of unpopularity of the decision or current moral sensibilities.

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f/k/a mclamb6

sorry, equal protection.

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f/k/a mclamb6

"sorry, equal protection"

Well, again, the document says "equal protection of the laws." So long as any given law is applied equally to all people, that requirement is met. It doesn't say every citizen should have the same exact status or rights under the law. Just that the laws, once passed, must be applied equally.

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Slowguy

(insert pithy phrase here...)

As I said, you can make up any specific rights you want with that logic. Right to slavery in Dread Scott. You can make up a substantive right for me to marry my son if you want. Equal protection for sure. You can get a really euridite judge to come up with penumbras and emanations, and that judge will be lauded so long as his penumbras agree with the mainstream press.

Should his penumbras differ from their agenda, of course, he will be a right wing extremist.

By the same logic, you can come away with Congress shall make no law to mean Congress can make a law. You just need a sufficiently brilliant jurist to explain why.

You want to leave policy decisions to the good graces of unelected, unaccountable judges. Then, you no doubt blame the other side when you are shocked, shocked that the judicial confirmation process falls apart.

On the other hand, if you just insist on the model in which judges dispassionately apply the law, rather than make up new law according to their personal policy preferences, life gets pretty simple.

It must be nice to read the Constitution with your mindset. Every time you read it, you come away very pleased to find that it agrees with your opinions in every detail. When your opinions change, fortunately, so too does the Constitution.

right, but when is the law being applied equally? does it just have to have neutral language? what if there is neutral language but the law only affects a certain subset of people and was specifically intended to affect those people? do they have equal protection?

look, i am perfectly willing to accept that a judge might say denying same sex marriage is not an equal rights violation. i'd disagree, but i'd accept it, no problem.

and i am perfectly willing to accept that certain laws will affect/inhibit certain groups and be perfectly constitutional. but i find it ludicrous to argue that some of the items i have listed aren't susceptible to more than one interpretation nor that new issues couldn't arise which aren't specifically mentioned in the constitution yet fall squarely within other, broader clauses or sections of the constitution.

i fail to see how the constituion has any relevance outside of a historical document if the broader elements can't apply to contemporary issues...

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f/k/a mclamb6

nope, the constitution means the same thing every time i read it. for instance, equal protection means that you can't arbitrarily discriminate against specific subsets of people.

you bring up free speech. can i threaten people? why not? congress shall make no law right? can i yell fire in a theater? why not? there was no specific exception to threats or inciting a riot in the amendment...

having a different opinion doesn't make someone a right wing extremist. equating abortion with the holocaust, however, does.

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f/k/a mclamb6

I certainly agree that interpretation is part of the courts jobs. Federal courts get to interpret federal laws, and I suppose, state courts get to interpret State laws. And, if you are going to concede that interpretation is part of the deal, then you have to concede that any two judges might interpret something differently. What I think Art is opposed to is the idea of judges "interpreting" the Constitution to have specifically enumerated specific rights that it obviously doesn't or of judges looking at laws and "interpreting" them to be un-constitutional regardless of the issue at hand not being addressed by the Constitution.

your best argument is probably the 9th Amendment which I read as saying that just because certain rights are enumerated in the Constitution, that doesn't mean other rights not mentioned might not also exist. In those cases, if a certain right is not covered by the document, and the people want it to be guaranteed, they need an Amendment making it so. If all they can get support for is the passage of a law protecting that right, they have to live with the fact that another law could just as easily be passed taking that right away without any conflict with the Constitution. Likewise, although the 9th says that there may be other rights retained by the people, it doesn't say what they are, and it is up to the people through legislation to decide what those rights should be. Judges deciding what those rights should be is stretching the definition of "interpretation" way too far.

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Slowguy

(insert pithy phrase here...)

How can one have a law that is "applied equally to all people" but still "doesn't say every citizen should have the same exact status or rights under the law"

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"How can one have a law that is "applied equally to all people" but still "doesn't say every citizen should have the same exact status or rights under the law"

By saying that citizens under the age of 21 can not purchase alcohol. That law is equally applied to all persons, yet clearly gives a different status to people under 21 than it does to people over 21.

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Slowguy

(insert pithy phrase here...)

When you read the Constitution 10 years ago, did you find the right to gay marriage in there?

Was the effort to pass the Equal Rights Amendment misguided since that right was already in there? If so, when did it get in there?

Do I have a constitutional right to an incestuous marriage with my son now, or will that not morph into a constituional right for another 20 years or so?

When did the substantive right to abortion come into existence?

Why wasn't there a substantive right to slavery in the free states in the Constitution?

Obviously free speech rights, or any right, conflicts with other rights if you push the envelope far enough. We need courts and legislatures to make these trade offs.

but again, to return to same sex marriage as a stepping off point, if the court rules that gays are being discriminated against and being denied equal protection, how is that legislating? the court wouldn't be saying "there is a constitutional right to same sex marriage" it would say the states or congress is violating the equal protection clause in arbitrarily discriminating against gays.

what is most confusing to me is how people can argue that equal protection isn't implicated when talking about same sex marriage and bans thereon. it might be a permissible mode of discrimination, but it is discrimination. or when some would argue that "cruel and unusual" punishment is not a term whose meaning shifts with time. for instance, i think roper(juvenile death penalty) got it wrong, but not because of a wacky rule of law that was applied, but rather just an erroneous conclusion.

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f/k/a mclamb6

when there were specific laws banning same sex marriage, it ran afoul of the equal protection clause. (unless of course someone can provide a legit justification for such laws.) simply because no one challenged the laws doesn't mean it wasn't problemmatic.

no, the effort to pass the era was not misguided. there would be some differences between that and equal protection, which permits some gender discrimination based on real(i.e. physical, i.e. child birth) differences between men and women. under the era, those differences would not longer be a constitutionally sufficient justification to sustain laws that makes allowances between men and women.

no, i don't think there will ever be a right for an incestuous same sex marriage. incest is a choice, which, for me, operates as sufficient reason to deny certain behavior(gay isn't a choice in my mind and while marriage is a choice, it would still be a prohibition based on innate characteristics).

what other rights do free speech conflict with?

where in the constitution does the gov't have the right to regulate medical procedures?

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f/k/a mclamb6

Still, you can't really say that the law is equally applied to all people. The problem with your statement is that those two things are mututally exclusive. What you can say is that there's a good reason to treat under-21 year-olds differently than over-21 year-olds, and that reason trumps demands for equal treatment.

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"to return to same sex marriage as a stepping off point, if the court rules that gays are being discriminated against and being denied equal protection, how is that legislating? the court wouldn't be saying "there is a constitutional right to same sex marriage" it would say the states or congress is violating the equal protection clause in arbitrarily discriminating against gays"

Well, there's a couple of issues that I see. First, if the laws of the State in question specifically said that marriage pertains to a man and a woman, then the courts would have no cause to say there was a lack of equal protection under the law. If the state wanted to pass a law that said only a man and a woman could get married, again, if the Courts said they couldn't, they woul, in effect, be legislating instead of interpreting law. For the courts to be able to say that gays were being arbitrarily discriminated against, they have to interpret what the existing law means, and see if it's being applied equally. If the urrent law is vague enough that one could interpret "marriage" to mean any union of any 2 people, then I guess the courts might have a leg to stand on.

"it might be a permissible mode of discrimination, but it is discrimination"

Well, that's the problem when a word carries such a negative connotation. One can certainly be "discriminating" without being a bigot, but the term carries negative feelings with it, so people don't want their side to ever be described as a "discrimination" view.

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Slowguy

(insert pithy phrase here...)

"Still, you can't really say that the law is equally applied to all people"

Sure I can. In every case, the law is applied based on your age. Every person is equally allowed to purchase alcohol if they are older than 21. It isn't applied to some people if they are 21 and a little bit, and some of they are almost 21, and to some if they are 21 and white, but not if they are 21 and black. The law is applied the same way in every case.

"What you can say is that there's a good reason to treat under-21 year-olds differently than over-21 year-olds, and that reason trumps demands for equal treatment"

Now you must be kidding. Are you saying that you can write a law that is unconstitutional just so long as there is a really good reason?

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Slowguy

(insert pithy phrase here...)

Sure I can. In every case, the law is applied based on your age.

Big deal. I can write a law based on race, but it will apply to men and women equally. Is that equal treatment? Of couse not. Equal means equal, not "equal except for variable X"

Now you must be kidding. Are you saying that you can write a law that is unconstitutional just so long as there is a really good reason?

Read the First Amendment. I have the right to free speech. How come, I cannot yell fire in a crowded theater?

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So if I'm understanding you, you think that minimum age drinking laws and laws against yelling "fire!" in a crowded theatre are unconstitutional?

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

"I can write a law based on race, but it will apply to men and women equally. Is that equal treatment?"

No, it's not "equal treatment", but since the Constitution doesn't guarantee "equal treatment", who gives a shit? The reason you can't discriminate in certain areas with regard to race is because we have passed laws that say so. It's not because of the Constitution. The only right that the Constitution explicitly guarantees regardless of race is the right to vote.

"Read the First Amendment. I have the right to free speech. How come, I cannot yell fire in a crowded theater?"

Ok, that's fair enough. There are several "exceptions" to various Amendments, especially the free speech stuff. However, that doesn't change the fact that laws can be applied equally to everyone, yet not give everyone the same status.

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Slowguy

(insert pithy phrase here...)

Nope...

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"I can write a law based on race, but it will apply to men and women equally. Is that equal treatment?"

No, it's not "equal treatment", but since the Constitution doesn't guarantee "equal treatment", who gives a shit?

Fine... is it equal protection?The reason you can't discriminate in certain areas with regard to race is because we have passed laws that say so.

Ever hear of Brown v. Board of Education?

However, that doesn't change the fact that laws can be applied equally to everyone, yet not give everyone the same status.

Uh.. no. By definition that is impossible.

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"Ever hear of Brown v. Board of Education?"

Of course I've heard of it. The Supreme Court didn't say that the Constitution explicitly guaranteed equal treatment for blacks. they said that the Constitution guranteed the students equal protection under the laws that established public schools. Notice that private schools, restaurants, etc were not covered. that's because the law said every kid had to go to school, but it didn't say every person got to go to a restaurant. For all that stuff, you got the civil Rights act of 1964. That law is what covers discrimination, not the Constitution.

"Uh.. no. By definition that is impossible"

Um, no, it isn't. You were treated equally under the law against drinking underage as I was treated, and as your kids were treated, and as my brother was treated, and as my dad was treated, etc, etc (providing the law was in effect before you were 21 of course)

All people are treated equally under that law. Every person is prohibited from buying alcohol before they are 21, and are allowed after they are 21. Not equal status, but equal protection and application.

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Slowguy

(insert pithy phrase here...)

The government can regulate medical procedures under the interstate commerce clause. There is the occasional quake who gets around the FDA by operating strictly inside state boundaries.

I guess you are serious that no one ever challenged the laws. Up until recently most states had laws that held sodomy illegal. Those were challenged all the time, and as recently as 15 years ago, upheld by the Supreme Court. Not only was same sex marriage illegal, even homosexual sex was illegal. Try again though.

You can make whatever arguments you want in favor of gay marriage. I probably wouldn't argue with you because there are certainly some sound points to be made. What you can't argue is that homosexual marriage and regular marriage are the same. They simply are not. Two things that are fundamentally different are just not equal.

Free speech rights conflict with the right to live when Fire! is shouted in a crowded theatre. That is pretty basic and well settled.

There is a real good thread on polygamy on this forum. Some "research" still is required to fill in the gaps, but you will soon find polygomy advocates who will advocate polygomy as a constitutional right by way of logic that will soon be indistinguishable from gay marriage advocates. Santorum is right about that prediction too. Take the word polygamy out, and the arguments apply word to word for incest.

He is probably wrong about beastality and abuse of minors because of the consent issue.

When O'Conner wrote Lawrence, she knew the logic led inevitably to gay marriage and from there to incest and polygomy. So she included a specific statement that her logic did not lead there. I guess she figured that solved something.

Just a few months later, the MA Supreme Court created a gay marriage right, citing Lawrence.

If you go down a path that solves your particular policy preference, you really don't have a right to complain when someone else uses the exact same logic to solve their particular policy preference, even if you abhor it. Chickens come home to roost.

I wote (over 2 posts):

"I can write a law based on race, but it will apply to men and women equally.... is that equal protection?

You wrote

Supreme Court didn't say that the Constitution explicitly guaranteed equal treatment for blacks. they said that the Constitution guranteed the students equal protection under the laws

Which of course is correct, and also basically answers my question with the predictable "of course it would not be equal protection" So I dont understand your initial objection.You were treated equally under the law against drinking underage as I was treated....

Well, you can phrase it that way, but clearly the law does not treat the under 21 crowd the same as the over 21 crowd. But maybe this is a special case, since everyone starts out under 21, and most get older. Can you think of other equal protection but not equal status laws that dont involve age?

Anyway, back to my earlier point, I believe you're mistaken as to how laws have been decided by the courts to be consistent with or inconsistent with the 14th Amendment. There's not such thing as an "equal protection with unequal status" test. What there is/was, although the language changes over time, was the notion that the goverment may treat different groups differently (eg. unequal status) if there was a compelling reason to do so, and that the reason wasn't arbitrary or "invidious." I think that basic idea has remained constant, what has changed how carefully the courts have scrutinzed laws, and forced the state to really convince them that the differential treatment was warranted.

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"clearly the law does not treat the under 21 crowd the same as the over 21 crowd"

No, it treats all people equally. All people are allowed to buy alcohol once they turn 21. I don't see where you're getting lost. As I said, it treats all people equally, but applies a different status to certain groups. Keep writing, you're making my point for me.

"Can you think of other equal protection but not equal status laws that dont involve age?"

You are not allowed into a women's lockerroom. All people are equally protected against members of the opposite sex coming into their locker room, but clearly women and men have a separate status.

"So I dont understand your initial objection"

I'm not sure which "initial objection" you mean. My point was that Equal Treatment based on race is not guranteed by the Constitution, it is guranteed by the Civil Rights Act of 1964. If the population chose to do so, they could pass a law reversing that act. Of course it wouldn't fly, but, strictly speaking, it wouldn't be unConstitutional.

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Slowguy

(insert pithy phrase here...)

My point was that Equal Treatment based on race is not guranteed by the Constitution,

Equal treatment base on race by the governent is protected by the 14th Amendment.

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aj... I've read your "constitutional aurgment" posts. And, I find them frequently lost in details that ignore many basic and general concepts (or at least they are perverted without sound reasoning)... and, I've watch you get shot down as a result... or, I should say... in my opinion, they appear to have been shot down...

You constantly can't or don't answer basic questions... you constantly fall back on complex replys... you refuse to answer the simple questions with simple answers. Somehow, you perceive that as being "below" your abilities to communicate.

As I see it... most posters which have taken the time to answers your posts with detail have won the debates (contrary to what you might think... being the constitutional genious you percieve yourself as...). There are much smarter and less time constained individuals than I when it comes to making better and more sensible counter points to your opinion.

Trio_jeepy may have replied with a request for you to explain your assertion... but, I already knew that would be useless. I simply posted SOME agreement to a few points that Trio made... you simply wanted to insult our posts and counter-posts.... now, is that any way for a legal genious as yourself to act?

FWIW Joe Moya

what gays challenged a marriage law? none that i know of. and every court upholding sodomy laws was dead wrong in my opinion. and it has very little to do with gay rights. the gov't, in my opinion, never had a right to regulate that. speaking of, what was their basis for regulating sex?

is a straight marriage the same a gay marriage? no. BUT the right of a consenting adult to marry another consenting adult is EXACTLY the same whether it's straight or gay. that's where equal protection comes in. there is no logical argument that can be made that shows the right of a gay to decide who they want to marry is any different than that of a straight person.

where's the right to live when someone yells "fire!", but there isn't actually a fire written in the constitution?

i've been through the polygamy argument. i've explained my position as to why i see differences. it might ultimately prove an untenable position. if so, i wouldn't be overly bothered by it.

and i am not complaining if they employ the same logic to get to polygamy. it's not my bag, wouldn't bother me if they went that way. but right now there are differences between polygamy and homosexuality unless there is better research to show otherwise, in my opinion.

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f/k/a mclamb6

Then help me out, jhc, I'm not following your reasoning to whatever your point is.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

"Equal treatment base on race by the governent is protected by the 14th Amendment"

Well, what I said is that equal treatment based on race is not guranteed by the Constitution. I never mentioned equal treatment by the govt. If I want to start a club and not let in blacks, nothing in the Constitution says I can't. What the XIVth says is that no State can deny a person in its jurisdiction equal protection of the laws. It doesn't say that the federal govt has to afford equal protection. It also doesn't say that everyone has to be treated equally. It says that a state can't decide that a black man can't file charges against an assailant, but a white person can.

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Slowguy

(insert pithy phrase here...)

My point is that slowguy's definition as originally stated (So long as any given law is applied equally to all people, that requirement is met. It doesn't say every citizen should have the same exact status or rights under the law. Just that the laws, once passed, must be applied equally.) simply isn't right. Although that may his personal interpretation of the 14th Amendment, that's not how the test that the courts have used to determine if a law violates the equal protection amendment. Here's the test

http://en.wikipedia.org/...een_Plessy_and_Brown

Strict scrutiny (if the law categorizes on the basis of race): the law is unconstitutional unless it is the "least restrictive means" of serving a "compelling" government interest.

Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest. Note that in past decisions "sex" generally has meant gender.

Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

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and to give some context to the definitions provided by jhc, if strict scrutiny is applied, the law is finished. there has never been a law that passed this test.

intermediate has been satisfied in gender cases for things based on actual differences between males and females--i.e. physical differences.

anything follow rational basis will likely be upheld. i am unaware of the court striking something down using a "pure" rational basis test.

and that's where the battles in these cases lie. what will the group be classified as because that dictates the level of rationale the state must provide in order to have a regulation upheld.

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f/k/a mclamb6

The Supreme Court upheld Georgia's ban on sodomy in the Hardwick case in 1986. "Any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable."

Your point was that gay marriage bans were never tested. That point is absurd since gays couldn't even get over the ban on gay sex, much less gay marriage until recently.

I don't think the federal government would have a basis to regulate consentual sex. Those matters are left to the states.

The start of this thread was a contention that Santorum is evil because of the horrible predictions he has made about the results of the ruling that ultimately came down in Lawrence. You have now conceded that the logic in Lawrence leads to gay marriage and maybe polygomy, so I guess I made my point. It sounds like incest gets swept in too since it just about "the right of a consenting adult to marry another consenting adult."

There is the obscure passage in the preamble about insuring Domestic tranquility. The speech you refer to is really more of an action in this context that can lead to harm.

A Constitution is a framework of principals. If extended too far, various principals will conflict with each other, so the Founders created courts to resolve these potential conflicts and legislatures to balance rights. You know this, so don't be argumentative.

There is no end to equal protection arguments once you open them up along the lines you describe.

MA Supreme Court held that the bans on gay marriage failed the rational basis test. They held 4-3 that the state provided no reasons whatever for the ban to continue. One would think if there were no reason whatever then the 49 other states and the three other judges would agree, but I digress.

I have no problem with people asserting gay marriage is a desireable public policy. I have a real problem with four judges asserting that there is no reason whatever to oppose gay marriage. That is just silly.

"Although that may his personal interpretation of the 14th Amendment, that's not how the test that the courts have used to determine if a law violates the equal protection amendment"

And my point is not that the courts don't use that standard, but that that standard is clearly not laid out in the Constitution. Just because the courts have decided that is how they will determine if a law is ok or not, doesn't mean that the Constitution says that's how they should make their determination. To think that the 14th, which was ratified in 1868, was originally meant to protect the rights of all races to be treated equally is ludicrous.

To get back to the original point I was trying to make, there is a difference between "interpreting" what the words in the Constitution mean, and departing completely from the document because judges just think the Constitution ought to mean something. In the latter case, it is incumbent on the courts to allow the legislature to pass laws to expand the rights of the citizens. If the people want a right that isn't laid out in the Constitution, they have to get it through legislation, not judges deciding they want to create that right out of thin air. If the people want a right to be permanent, they have to pass an amendment, not convince a judge to issue a ruling that just says that right is in their somewhere. If the people can't get support for an amendment, then they get to pass a law, so long as it doesn't conflict with the Constitution, and in that case, they have to understand that the law could be reversed later on if public opinion changes. Nothing in the Constitution gurantees anyone the right to marry whoever they want. If a State passes a law saying that "marriage" only applies to heterosexual couples, nothing in the Constitution contradicts that. If a State wanted to pass a law saying "marriage" could extend to gay couples too, nothing in the Constitution would contradict that either. However, there is nothing in there that comes even close to something a judge could reasonably interpret to be a gurantee of a gay persons right to marry.

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Slowguy

(insert pithy phrase here...)

There is a difference between "no reasons whatever for the ban to continue" and "there is no reason whatever to oppose gay marriage".

It reads to me like the MA SC is saying the State has provided no valid reasons to continue the ban, though there may actually be valid reasons. It's just that the State hasn't provided them yet. And I could be wrong, but back when this was all unfolding I don't think the MA SC said the MA Congress had to pass a law making gay marriage legal, I thought they said the MA Congress had to pass a law on the issue one way or the other. If I'm right, then the MA SC did exactly what you have maintained since I've been on the board: they said the State has to decide the law, which the SC and courts will then enforce.

On this subject I know nothing, but does MA make any of its decisions by looking at the other 49 states? Or do they make their decisions totally on MA law? I'd assume they turn a blind eye to other states, but like I said, I don't know how this works.



Finally, I must stress, again, I don't think MA is talking about gay marriage. There's nothing about this (to my knowledge) that is forcing churches in MA to perform ceremonies. This is about civil unions and purely for legal purposes. The marriage part has always been defined as a religious aspect to the civil union (state license). Further, I actually think if one is a proponent of keeping the sanctity of religious marriages intact then one would want to make it so non-religious people wouldn't have to get "married". We need to remove the religious aspect from the legal state aspect. If you just want to be in a civil union, apply for the license and go to a court house. If you just want to get married go to a church. If you want both, get a license, and go to a church.

i don't think there is any gov'tal authority that could permissibly regulate the sex of two consenting adults, and i don't think that needs be stated in any document. the idea is that gov't, whether state or federal, derives its authority from the power granted to it by the people. i've seen nothing that indicates that the people have ceded authority to the gov't to regulate sex between consenting adults.

back to free speech, what about libel, slander, or porn?

i have in no way conceded that the logic in lawerence will lead to the inexorable move to gay marriage or polygamy. simply because someone employs the same logic does not mean it will persuade the court. what i said is that i would personally have no problem if someone legalized polygamy and used the same rationale to do so.

i will submit that removing bans on gay sex would permit challenges to gay marriage bans, because you are right, without clearing that hurdle, attacking gay marriage would be difficult. again, however, that does not mean by permitting gay sex, you must permit gay marriage. what it should have alerted people to do was to examine their marriage policies and develop a better justification, one that would withstand constitutional scrutiny.

and the "end" of equal protection arguments comes in the court's tests to apply equal protection. yes, anyone can make an equal protection argument over any issue. just because they make the argument doesn't mean it's valid. equal protection is written in broad terms. if you want to be a slave to intent then it would only apply to blacks and that's it. women--screwed. mexicans--sorry. chinese--not so much. and that is an utterly ridiculous proposition.

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f/k/a mclamb6

i don't think there is any gov'tal authority that could permissibly regulate the sex of two consenting adults, and i don't think that needs be stated in any document.

And there you have it. Art's point is proved- you don't think any government has any business regulating something, and whether or not it's actually stated in any document, you're going to say it's a Constitutional issue. What the hell good is the Constitution if you can do that?

i've seen nothing that indicates that the people have ceded authority to the gov't to regulate sex between consenting adults.

So- incest laws gotta go, huh? Curious as to what you think about bestiality laws? (I know it's not sex between two consenting adults, but then again, the only party in that kind of case with any Constitutional rights is a consenting adult.)

And what do you mean you've seen nothing that indicates people have ceded authority to regulate sex? You can't be serious with that.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

No, the MA SC ordered the MA state legislature, a coequal branch of government, to pass a law authorizing gay marriage. The MA legislature actually went back and asked if passing a law authorizing civil unions was enough. The MA SC said, no, we said gay marriage and you will pass that law on the schedule we gave you. Don't make us tell you again.

I am generally opposed to gay marriage, but my reasons are not convincing or cogent enough to persuade anyone, so I won't try. I am absolutely opposed to gay marriage mandated by judges though. If the arguments in favor of gay marriage are compelling, democracy will work through the process.

This whole thing looks like the abortion battle all over. Had the SC not taken the issue out of the democratic process by creating a constitutional right to abortion out of thin air, reasonable abortion rights would have been approved democratically in a compromise that most people would accept even if they weren't happy with it. That is exactly what happened in England for example. Abortion is a non issue there. Here, the illegitimately gained right tears at the governmental fabric.

"i've seen nothing that indicates that the people have ceded authority to the gov't to regulate sex between consenting adults"

You're kidding right? What about the countless laws that were passed over the years, starting almost from the very beginning of the U.S. that regulated sex? You can't have anal sex. You can't have oral sex. In some areas it's against the law to cheat on your spouse. You can't have sex with your adult children. Etc, Etc.

It's a relatively new idea that govt has no business at all in the bedroom.

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Slowguy

(insert pithy phrase here...)

so simply because those sex laws are on the books, that means the people ceded that authority?

and my argument is that a right to privacy doesn't need to be written in a constitution. it's innate as part of your membership into the club of consenting adults. your argument seems to be that there needs to be a written "right to privacy", otherwise it doesn't exist and it(my or anyone else's private lives) is open to gov't regulation. i'd argue it should be exactly the opposite. without a grant of authority to regulate my private life(for me this is one of those "inalienable things), they don't have the power....

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f/k/a mclamb6

so simply because those sex laws are on the books, that means the people ceded that authority?

If it helps you to think of it that way, yes. Same applies to every other law, of course.

and my argument is that a right to privacy doesn't need to be written in a constitution. it's innate as part of your membership into the club of consenting adults.

It may or may not be "innate" to consenting adults. That's a completely irrelevent question. It's not in the Constitution, therefore it isn't Constitutionally protected. You can't say it's in there just because you want it to be. You can say it should be in there, and you can put it in there, maybe, but it isn't in there.

your argument seems to be that there needs to be a written "right to privacy", otherwise it doesn't exist

No, my argument is that if it isn't written in there, it isn't legally recognized.

without a grant of authority to regulate my private life(for me this is one of those "inalienable things), they don't have the power

So, exactly what laws do you think states have the authority to pass? Seat belt laws gotta go, too, right? What else?

Just as a side note, I find it funny how the same people who see the Constitution as you do can read so much into it except what's actually there. What's your position of federal gun laws? How about the tenth amendment? Isn't the government pretty explicitly barred from being involved in about 80% of the things it is involved in? But somehow, while certain parts of the Constitution seem to say much more than they do, other parts say much less. Interesting.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Providing Constitutional protection to gay sex already has lead to gay marriage in MA. As I said, the MA Supreme Court cited Lawrence in its opinion.

If you take your view and the view of the reasoning in Lawrence as equal protection, I really don't see how you logically stop gay marriage, polygamy, incest and the like. If you say A, you have to say B.

That is why I, and presumably Santorum think Lawrence is a terrible and dangerous decision. If you want to pass a law to get rid of anti sodomy laws, I really don't care. Just don't do it via fanciful interpretation of the Constitution.

anything follow rational basis will likely be upheld. i am unaware of the court striking something down using a "pure" rational basis test.

I'm not sure about "pure', but Lawrence was a rational basis test, wasn't it?

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And my point is not that the courts don't use that standard, but that that standard is clearly not laid out in the Constitution.

OK, point taken. But neither is your standard, right?To get back to the original point I was trying to make...

I know, it's the age-old debate.

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i'd have to look...

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f/k/a mclamb6

Can you point to a law that forbids sex between two consenting adults who are related? Say, between first cousins. I'll make it easier: show me a law that forbids sex between a mother and a son, when the son is over 21. Note that the original statement to which you replied referred to regulating *sex*, not marriage.

There may be incest laws regulating sex, I'm merely speculating.

As for bestiality, there are laws that protect animals against cruelty; bestiality would, I'm sure, be found by the courts to be cruel.

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"Go yell at an M&M"

this argument is exactly why many opposed a bill of rights. by making specific exceptions in the form of rights, people were afraid of the negative implication that anything not listed was fair game for regulation.

it depends under what authority congress is regulating fire arms. i thinkt he commerce clause has been interpreted pretty expansively to the detriment of the states and to the point of stretching plausibility. it's almost become a federal police power. if, however, it is viewed as a national security issue, i think that is an appropriate area for federal regulation and centralized decision making.

unfortunately for the 10th amendment, it's general nature has left it open for gutting. state authority has definitely been eroded between the relegation of things such as the 10th amendment to afterthought status and the expansion of commerce clause powers. in some ways, that might be a good things because local gov'ts are facing some serious fiscal crises. on the other hand, it could be argued that the expansion of federal power has been a contributing factor as states rely on the feds and willing give up their authority in exchange for funds.

i don't think my views on the constitution with respect to social issues do any damage whatsoever to the document and, in fact, are directly in line with the language, spirit, and intent...

and i wouldn't say the gov't is explicitly barred from about 80% of the pies its fingers are in, but there is most definitely some stretching of authority that strains plausibility to justify federal involvement...

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f/k/a mclamb6

the majority based its view on the due process clause and it's basic rationale was as follows:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. "

o'connor, in her concurrence, purports to apply rational basis, but qualifies it thusly:

We have consistently held, however, that some objectives, such as "a bare ... desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

she mentions rational basis, but it's clear she's applying something at least along the lines of intermediate scrutiny...

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f/k/a mclamb6

There may be incest laws regulating sex

There are. Take my word for it, or check google.

Course, you'll have to sort through all the articles about the legal challenges to bans on incestual marriages, too.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

How about this one from Florida?

826.04 Incest. ---
Whoever knowingly marries or has sexual intercourse with a person to whom he is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest, which constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. "Sexual intercourse" is the penetration of the female sex organ by the male sex organ, however slight; emission of semen is not required.

Note that the original statement to which you replied referred to regulating *sex*, not marriage.

Like I said, there are plenty of laws criminalizing incestual sex, as opposed to simply barring incestual marriage.

But I'm curious- if you think there's no reason to ban incestual sex, what's your reason for banning incestual marriage?

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

You have read into my questions an assumption that is without merit. At no point did I comment on whether I approve of these bans. In fact, I do. I see verifiable societal harm in allowing such practices.

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"Go yell at an M&M"

You have read into my questions an assumption that is without merit.

Humblest apologies.

I see verifiable societal harm in allowing such practices.

Brace yourself, then, cause I got news: The bans on incest are unlikely to hold up in the current legal atmosphere.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

No need to apologize. Why do you think the bans will not hold up?

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"Go yell at an M&M"

Why do you think the bans will not hold up?

http://archives.cnn.com/...ossman.incest.04.09/

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

By the same logic that the bans on sodomy were struck down. Equal protection argument. Take out the term sodomy, insert incest, change nothing else. The logic is indistinguishable. Private sexual conduct, privacy, penumbras, blah, blah, blah.

Of course, my analysis assumes that logic was actually used in the Lawrence case. More likely the desired result was predetermined by the judges' policy preferences, and the logic followed to paper over the decision.

Well, vitus, your article only deals with cousin-cousin mariages (and implicitly, sex). As only 24 state prohibit cousins from marrying, there's hardly a national consensus on the issue currently.

More fundamental in our society would be the taboo of brother-sister, or parent-child, no? Any reason to think that would change?

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As only 24 state prohibit cousins from marrying, there's hardly a national consensus on the issue currently.

Yet another argument for allowing incest- no national consensus against it. Excellent.

More fundamental in our society would be the taboo of brother-sister, or parent-child, no? Any reason to think that would change?

There's no reason to think it wouldn't. (The taboo might remain, but there's hardly a legal case that can be made against it that will hold up in the face of current legal trends.)

What are you going to argue? That it's OK for cousins to get married, but not a brother and sister? On what grounds?

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

That it's OK for cousins to get married, but not a brother and sister? On what grounds?


The fact is that the further the degree of relativity there is, the less taboo (and the less reason by virtue of preventing genetic abnormalities) there is from prohibiting relatives from marrying. Where do you draw the line?

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The fact is that the further the degree of relativity there is, the less taboo (and the less reason by virtue of preventing genetic abnormalities) there is from prohibiting relatives from marrying.

You keep talking about taboos, as if that means anything. It doesn't.

As for the increased chance of genetic abnormalities, how much greater a chance is there for a mother-son, or brother-sister relationship? And how is that any of the state's business? The state already allows marriages in which there's a high likelihood of genetic abnormality. For example, the state doesn't prevent one from being married and having kids if one has a serious inherited disease. The state doesn't prevent a blind couple, or a deaf couple, from marrying. The state doesn't prevent two retarded people from marrying.

Not only that, in some of those cases, the argument against allowing marriage might actually be stronger, since not only do those couples stand a greater chance of passing on a defect, they are also arguably less able to care adequately for children.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

"so simply because those sex laws are on the books, that means the people ceded that authority?"

If the people elect representatives who then pass laws and the people don't challenge those laws for decades or even centuries, then yes, the people have ceded that authority.

"and my argument is that a right to privacy doesn't need to be written in a constitution. it's innate as part of your membership into the club of consenting adults. your argument seems to be that there needs to be a written "right to privacy", otherwise it doesn't exist and it(my or anyone else's private lives) is open to gov't regulation"

I don't know what Vitus thinks, but to me, it's not that the right may not exist, but it certainly isn't a Constitutionally protected right. If it's not in the Constitution, and you don't pass a law protecting it, then you can't reasonably expect to have that protection. That's what the legislature is for. You can stomp your foot and say "But I should have a right to the privacy of my bedroom" all you want, but that doesn't make it so unless some law says so.

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Slowguy

(insert pithy phrase here...)

New FL state slogan:

"Move to FL and you can have gay sex with your cousin!"

OK so social taboos dont mean anything, and the state has no business worrying about genetic abnormalities. So, what's the justifiticatino for incest laws? Just because it's in Leviticus?

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OK so social taboos dont mean anything That's your basic argument in Lavender Room Debate Number 1, right?

state has no business worrying about genetic abnormalities. Or one could argue that it does, but since it isn't enforcing any rules in any other case in which genetic abnormalities are likely, it's got no business singling out people who want to marry Mom.

what's the justifiticatino for incest laws? You tell me. So far, it looks like Art- and Santorum- is right, huh? Damned slippery slope . . .

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

If the people elect representatives who then pass laws and the people don't challenge those laws for decades or even centuries, then yes, the people have ceded that authority.

No, it means the majority has ceded the authority. Big difference.

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I'll help you out, jhc.

As I see it, there are two legitimate reasons for banning incestuous relationships/marriages.

One is that they're immoral. Society has a legitimate right to legislate issues of morality. But since you've long ago tossed this out as a legitimate concern, let's move quickly to the other reason.

Government has a serious- overwhelming, even- interest in protecting the family as the fundamental building block of society. What this means is that we must, ultimately, decide upon and enforce a definition of family. It cannot be an ever-shifting, amorphous thing left up to every individual to decide for himself.

What happens when you discount this idea, and the idea that the traditional marriage/family structure must be protected is exactly what we've seen play out in our many conversations about it in here. If you don't define a marriage as a permanent institution between one man and one woman from different families, as we always have done until recently, you open the floodgates to every sort of "marriage" someone can imagine. First it becomes dissolvable, then it's open to homosexual relationships, then you can't consistently prevent polygamy, now you can't present a cogent argument against incest. (Anybody who thinks that bestiality will continue to remain illegal because of animal cruelty laws is delusional, btw.) It won't stop there, either- there will be other alterations that you'll be just as unable to prevent. But my imagination isn't that good.

Now, none of those things in and of themselves will bring down society, for the simple reason that not many people will desire to take part in them. There aren't many homosexuals, and probably far fewer who would seek a polygamous or incestuous marriage. BUT, the damage will be in how allowing these practices affects mainstream attitudes towards marriage, and how much value the majority of people place on the institution. Disastorous.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

THe taboos statement was yours dude

"You keep talking about taboos, as if that means anything. It doesn't"

If you cant think of a good reason to ban incest, I dont really care.

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THe taboos statement was yours dude

Right. What I was trying to say is that since you've invalidated sexual taboos as legal arguments in one area, you can't turn around and use them here. You're whole argument for gay marriage hinges on the idea that taboos against homosexual relationships can't be legislated, since doing so would violate someone's rights. You can't now use taboos against incest as a legal ground for banning incest.

If you cant think of a good reason to ban incest, I dont really care.

Of course I can. But like I said in my previous post, you've already thrown out the best reasons I can give as right wing nonsense. So what I'm curious to know is what reason you can offer, instead?

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

I hasnt read your post above when I made my last reply.

And I guess I think we have to be very careful when "legislating morality" because more often than not, it ends up being legislating religion which violates the 1st Amendment under any mainstream interpretation of the Constitution.

You point on the state not really taking steps to prevent genetic abnormalities in other cases is interesting... I'm going to have to tihnk about that. Still, I don't buy your main argument about maintaining a traditional definition of the family. I think the CNN article you posted had much better arguments against incest...

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Still, I don't buy your main argument about maintaining a traditional definition of the family.

I'm aware. Which is why I'm so curious to see if you can provide a different reason that you think will hold up. So far, nope.

I think the CNN article you posted had much better arguments against incest...

Those being?

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

These ones... esp. #1

According to Mead, the taboo has strong benefits: Because certain sexual and marital relationships are categorically forbidden, and the categorical ban is instilled early on in children's minds, children can grow and develop affectionate, close bonds with a wide span of relatives, without the intrusion of "inappropriate sexuality." Children can "wander freely, sitting on laps, pulling beards, and nestling their heads against comforting breasts-neither tempting nor being tempted beyond their years."

Levi-Strauss focused on the benefits of the incest taboo to society at large. The ban on intrafamily marriage forces families to reach outward and connect with other families -- and it is those connections between many different families that make society function.

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While I don't disagree with either one of those arguments (in fact, I rather think they're a subset of my larger argument), if you think they're likely to withstand today's typical court scrutiny, you be crazy.

With regards to number one: The argument, obviously, will be that what's in question isn't incest with a minor, but only incest between two adults of the age of majority. There will be much wailing and gnashing of teeth at the suggestion that these two people, who are deeply in love with each other, could ever harm a child. Just like being gay doesn't make one a pederast, loving your grown-up sister doesn't make you a child molester. How dare you accuse them of such sickening behavior? And so on.

With regards to number two: This one would get laughed right out of court, particularly since society is already become far more insular than it used to be. Even if that weren't the case, and families were as connected as they used to be, I don't see many courts denying someone the right to marry who they want because it would mean the resulting family is somewhat more isolated than they otherwise would be.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

"No, it means the majority has ceded the authority. Big difference."

Well, since it's been awhile since we got every single person in the U.S. to agree to anything, the majority is how we do it here. It's not like there's been a centuries long fight to get your anal sex rights back. The idea that govt has no business in the bedroom is relatively new.

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Slowguy

(insert pithy phrase here...)

If gay marriage, incestual marriage, and polygamy came before the Supreme Court - I'd suspect that the liberal/center-keft justices would apply a rational basis test to the incest and polygamy issues, and would uphold the laws. On the other hand, I'd suspect that they'd apply a "rational basis+" (like O'Connor in Lawrence) or possibly even an intermediate scrutiny test if liberal enough, to the gay marriage issue. The outcome of this case would of course depend on the composition of the Court.

Tha's the reason I'm faily confidant that gay marriage will eventually be legalized (probably via the Courts) but not polygamy or incestual marriages.

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I'd suspect that they'd apply a "rational basis+"

"Rational basis +"?? Are you just making stuff up now?

Tha's the reason I'm faily confidant that gay marriage will eventually be legalized (probably via the Courts) but not polygamy or incestual marriages.

What you're saying is that since you think enough judges will eventually agree with you on gay marriage, they'll find a way to mandate it, and since you assume that they'll continue to think as you do that polygamy and incest are icky, they'll find a way to keep those practices illegal. Sounds like an honest, above-board approach to me.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

"Rational basis +"?? Are you just making stuff up now?

If you had read this thread more carefully and/or O'Connor's opinion in Lawrence you'd know what I'm talking about.What you're saying is that since you think enough judges will eventually agree with you on gay marriage, they'll find a way to mandate it, and since you assume that they'll continue to think as you do that polygamy and incest are icky, they'll find a way to keep those practices illegal. Sounds like an honest, above-board approach to me.


Actually, what I think is that since homosexuality is an innate, innocous characteristic of a significant number of people (and yes, I consider 1-10% significant, whatever the true number is), laws which discriminate against gays require a higher level of scrutiny than those which discriminate against polygamists or.. uh.. incesters, which actually is a lifestyle choice and at least in some circmstances has been shown to have real, negative effects.

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If you had read this thread more carefully and/or O'Connor's opinion in Lawrence you'd know what I'm talking about

I read it, jhc. Point is, you're not even attempting to apply any serious, legitimate, consistent legal principle to the question. You're just trying to manipulate court reasoning to achieve the outcome you want.

Actually, what I think

Enough. What you think is that homosexuality is morally OK, and polygamy and incest aren't. You have no serious argument in support of your position. That's all. You can't make any real claim to be protecting an individual's rights, and you can't make any real claim to trying to protect society, or marriage, or anyone else. You just think gays should be able to do what they want, that's all, even though you don't want to extend your reasoning in support of gay marriage to anyone else.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Hey guess what? I said it was a prediction on how the Court would handle those cases. How that makes me trying to "maniplulate court reasoning" is beyond me.

Enough. What you think is....

I could give two shits whether you believe me or not.

You have no serious argument in support of your position.

I've made plenty of serious, rational, and factually correct arguments in support of my position in a number of threads. I know you dont like them, but again, I dont really care.

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I've made plenty of serious, rational, and factually correct arguments in support of my position in a number of threads.

Maybe, but you've refused to apply them consistently. That's kind of a problem, I think.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Your reasoning in support of your opinions is fine. It just has nothing whatever to do with the Constitution.

Sorry though, it is pretty tough to argue that polygamy is not innate behavior. That behavior is certainly way more common than homosexuality.

That is the problem with the entire line of reasoning. Your bottom line is that the answer lies in the personal policy preferences of whoever is on the court at the time. It doesn't lie in the Constitution, and it doesn't lie with the people.

We are supposed to listen with keen interest to the latest fatwah from the robed clergy, I mean judges, and fall in line with no thought of criticism.

Small wonder we have so much trouble selecting judges now that we let them make social policy

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