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Author Topic: Justice Scalia: 14th Amendment Does Not Protect Against Gender Discrimination  (Read 2739 times)

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Offline alxnjshTopic starter

Quote
The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

In a newly-published interview with the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Interesting take and a view into one of the more conservative Justices on the Supreme Court. I seem to recall an argument in this thread (it was one I started I believe) about the Justices and how they are clouded by their interpretation of law. That interpretation is seen through a lens of education, history, religion, gender, etc. I will once again say that the greatest fear I have in the U.S. government is the Supreme Court. Presidents and Congress get elected and snubbed. The 5 ultra-conservatives are there for life.

Offline Sure

On the contrary, feminists (who are mostly liberals) love the fact that the 14th amendment doesn't protect against gender discrimination. It's why they can push for women to have the right to give up babies for adoption at birth and not have any lingering legal attachments while men do not have to have the same option, among other things.

Anyway, legally there are only three (if I recall) things that the Supreme Court has ruled one can never, full stop, discriminate against: Religion, Race, and Ethnicity.

Offline Jude

I'm sure if you asked the people who wrote the 14th amendment and voted for it, "What about the gays?  Do you intend this amendment to protect them too?" they would've said no.  For some legal scholars that is, in and of itself, reason enough to interpret the law this way.  The good news is, even if you take that narrow view, that doesn't mean that gays shouldn't be discriminated against, just that the Constitution in intent and legal tradition can't be taken to mean that.  So there's nothing stopping us from changing the constitution to be more in line with our values, it just means that you have to make the argument to other people and not try for an automatic "the Constitution says this, so it is" victory.

In due time homosexuals will receive the rights they deserve now, until then, it sucks.

Offline kylie

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        Might check out this historians' brief...    First thing I can find describing views of same-sex relationships in colonial America. 
This supports the line Foucault adopts, which is that "homosexuality" is not a term that has social meaning before industrialization. 

Quote
It was only in the late nineteenth century that the very concept of the homosexual as a distinct category of person developed. The word “homosexual” appeared for the first time in a German pamphlet in 1868, and was introduced to the American lexicon only in 1892. JONATHAN NED KATZ, THE INVENTION OF HETEROSEXUALITY 10 (1995).
So first, I think if we are going to try and do the founders any justice, then we have to study whatever they actually might have been dealing with... 
There were same-sex activities, but whatever did they make of them?

Quote
I'm sure if you asked the people who wrote the 14th amendment and voted for it, "What about the gays?  Do you intend this amendment to protect them too?" they would've said no.
       This may strike you as an odd question but...  Is there historical evidence to support this?  From the brief, sodomy standards were inconsistent in early America.  They often were not applied to women.  They were not justified as moral demands of religion.  Speaking broadly, there was one big group of formally suspect acts.  I gather leaders would fuss about them along with many other moral failings of the populace now and again.  We now tend to divide that field of activities into narrower "styles" of homosexual, pedastry, bestiality, and simple failure to pursue childbirth.  Moreover, the historians here write that it was not such a big deal:

Quote
The relative indifference of the public and the authorities to the crime of sodomy continued in the first century of independence. For instance, only twenty-two men were indicted for sodomy in New York City in the nearly eight decades from 1796 to 1873.
       
Now just going by this one report, it seems conceivable to me that some founders might have thought,
"Well why not protect those people.  We need their labor happy much more than we actually care about that."

Quote
The good news is, even if you take that narrow view, that doesn't mean that gays shouldn't be discriminated against, just that the Constitution in intent and legal tradition can't be taken to mean that.
       A couple problems with this... 
       
       First, that sounds like an exceptionally narrow view to me.  If you generalize it, then I believe many of the functions of government we take for granted today would be challenged as "not in the original" etc.  I realize some people say they are trying to do just that, but the claim seems hollow when their representatives fail to list many actual budget cuts for consideration.

       Second, simply saying that some provision does not appear in the Constitution is not solid proof that none of the founders "intended" it to come to pass.  Assuming no one spilled tea on their draft or rushed through a section and missed a sentence...  Where out of this endlessly debating Convention do we find proof that the document contains "all we ever intended for all future generations to do; this and no more."    The Constitution is the product of a long negotiation.  Courts may look to the letters and documents of the age, among other things (such as current facts), when they have to interpret whatever this little document means.   It is not a perfect statement of a single movement or individual's ideals as they would stand intact. 

       There is also a possibility that we simply are not reading their language with the same focus and meanings that they used.  Much as many people tended to assume they had opinions about homosexuality, when they did not conceive of it.  That does not mean they would necessarily not treat people with same-sex relationships as worthy of equal opportunities and protection from harm.  It sounds like, actually their society didn't provide the same threats for one to be protected from in the first place.     

« Last Edit: January 04, 2011, 12:39:33 PM by kylie »

Offline Beguile's Mistress

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Interesting take and a view into one of the more conservative Justices on the Supreme Court. I seem to recall an argument in this thread (it was one I started I believe) about the Justices and how they are clouded by their interpretation of law. That interpretation is seen through a lens of education, history, religion, gender, etc. I will once again say that the greatest fear I have in the U.S. government is the Supreme Court. Presidents and Congress get elected and snubbed. The 5 ultra-conservatives are there for life.
Fortunately, the Supreme Court is not populated by immortals but by members whose terms are finite.  It behooves the citizens looking for equality across the board for all people to elect presidents and members of congress who are far seeing and flexible in their viewpoints so that changes to our Constitution, which is meant to be an organic document, can be allowed to guarantee freedoms to all that are now enjoyed by some.

On the contrary, feminists (who are mostly liberals) love the fact that the 14th amendment doesn't protect against gender discrimination. It's why they can push for women to have the right to give up babies for adoption at birth and not have any lingering legal attachments while men do not have to have the same option, among other things.

Anyway, legally there are only three (if I recall) things that the Supreme Court has ruled one can never, full stop, discriminate against: Religion, Race, and Ethnicity.

I am a feminist.  I believe that men and women need to be given a level playing field when it comes to careers, education and financial matters.  I do believe that some issues are gender specific, though, and need to be evaluated on that basis.  There are parents of both sexes that wish to abrogate their responsibilities when it comes to the children they are unable to provide with a home or financial support.  There are also parents who chose to not provide a home or financial support to their child.  The same rules should apply to both biological mother and father when it comes to parental rights and the responsibility to support a child. 

Those are my beliefs, something I would support if asked.  I'm sure there are some who would argue with my call for total equality.  That's their right and privilege.  Have at it!

Offline Sure

You know, something I've never understood: Why does it matter what the anyone intended? If Congress makes a law saying, "Everyone from the state of Idaho must own a potato." and everyone from Idaho goes and buys potatoes grown in China, Congress can't say, "But we intended them to buy American Potatoes! Clearly that's illegal!" Intent should be a non-issue as opposed to what is actually stated. That is the only way that a law can be consistent: Purposive, Originalist, and Living arguments all mean that the meaning can change while a necessary component of law is consistency.

Quote
I am a feminist.  I believe that men and women need to be given a level playing field when it comes to careers, education and financial matters.  I do believe that some issues are gender specific, though, and need to be evaluated on that basis.  There are parents of both sexes that wish to abrogate their responsibilities when it comes to the children they are unable to provide with a home or financial support.  There are also parents who chose to not provide a home or financial support to their child.  The same rules should apply to both biological mother and father when it comes to parental rights and the responsibility to support a child.

Those are my beliefs, something I would support if asked.  I'm sure there are some who would argue with my call for total equality.  That's their right and privilege.  Have at it!

If you'd prefer, I can switch in 'NOW' for feminists. But I think it's fair to say position taken by an organization with half a million supporters who call themselves feminists, indisputably the largest feminist organization in the United States, is 'feminist'.

It was not my intent to claim that every feminist everywhere supports it, in the same way saying 'Republicans like tax cuts' does not mean to imply every Republican everywhere likes tax cuts. You have my apologies for any confusion.

I would point out, though, that your claim that certain things should be dealt with in a gender-specific manner is still enough for the Supreme Court to support it's position that gender discrimination and sexism should not always be illegal.

Offline Beguile's Mistress

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I would point out, though, that your claim that certain things should be dealt with in a gender-specific manner is still enough for the Supreme Court to support it's position that gender discrimination and sexism should not always be illegal.

Of course, discriminating against a person because of any intrinsic value or using gender as a rationale for denying what is due should be illegal.

Discriminating between the male and female (using the distinct differences between the genders [or among genders]) to determine or negotiate the proper and equitable settlement of a situation is a proper technique.
« Last Edit: January 04, 2011, 07:28:48 PM by Beguile's Mistress »

Offline Noelle

Of course, discriminating against a person because of any intrinsic value or using gender as a rational for denying what is due should be illegal.

I'd just like to gently remind you that discriminating for a group isn't a desirable option, either. I think it's fair to say that discrimination on a more general base probably shouldn't be happening ;P I think we need to recognize that there are differences and inequalities between the sexes naturally (because obviously men can't carry a child) and use discretion from there to try and make a fair balance. But practically speaking, you can only level the playing field so much, especially when you're translating rights and freedoms and such -- you're always going to have biological differences in existence, and thus, different decisions to make.

I have to agree with Sure on this one, though. Why are we even considering intent and 'could-have-beens'? They have no practical, real-world bearing on the way we use the Constitution now. Maybe Thomas Jefferson meant to include a clause where it became okay to jump the fence and impregnate your slaves, but alas...

But let's just look at historical context for the hypothetical, shall we? We can basically agree that homosexuality has been around basically forever (to some extent) in every culture known to man. We can probably infer the general opinion of homosexuals by the founding fathers simply by looking at how the rest of society viewed them at the time. In 18th century America, homosexuality was not accepted, homosexuals did not have a large and organized group to represent them in the political arena, and they were still the vast minority. I can say with a fair amount of certainty that the founding fathers, quite frankly, probably could not have cared less about representing homosexuals in our nation's first establishing documents in the same way they probably weren't being terribly mindful of slaves or women's suffrage.

Offline Jude

Quote from: Justice Kennedy
At the outset it should be noted that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.
If you believe the source, and I do given that he's a far better legal scholar than myself or anything else I could dig up, then what the colonies did or didn't do in relation to sodomy is totally beside the point of their opinions on homosexuality.

The really cool part is that none of what I wrote there is at all relevant because the amendment that guarantees equal protection under the law wasn't written in the 18th century or by the Founders, so a great deal of what you said is completely irrelevant, Kylie.  The 14th Amendment was passed during Reconstruction in 1868.
« Last Edit: January 04, 2011, 06:26:42 PM by Jude »

Offline kylie

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        You're right, Jude, I'm used to hearing the founders this and the founders that whenever the subject comes up...  So I read them in where you said something else.  I probably need more sleep...   ::)

        However since you went to the trouble to stretch the point by saying "totally irrelevant," do you honestly suppose none of those authors would attempt to justify such a position with claims of long-standing national tradition, references to the founders and the like?  I would be a little surprised then.

        Also, I wonder if some of the arguments about "the spirit of the law" and the arguments that shaped the final document might not also apply to the 14th Amendment.  Just because something was not included, how certain can we be that no one ever wanted it...  Was there no controversy and debate at all surrounding the nature and scope of the 14th Amendment?  I wonder.
« Last Edit: January 04, 2011, 08:52:47 PM by kylie »

Offline Noelle

I'm not really sure how much national tradition comes to pass in the first one hundred years of a country's life, AKA the time period between the Constitution and the passing of the 14th amendment. In the scope of history, I don't think I would consider that long-standing at all.

Unless you're honestly supplying some kind of substantive reference that points towards one of the founders actually considering things like homosexuality, this is really just speculation and it does become harder to see the relevancy when that's all you've got. We can speculate all we'd like and wax philosophic over whether or not Franklin had gays on the brain or if a group of intelligent men who had the know-how to form a country really just "knocked over their tea" and magically had his memory wiped clean what could've been an extremely important addendum like discriminating against an entire demographic -- but where are your indicators of such outside of your own thoughts?

For me, I think history indicates a pretty clear attitude towards homosexuals by the populace at the time. (spoiler: it's not good)

The founders weren't sages and oracles. They were just as subject to societal views at the time as anyone else and including a clause about gays would have been incredibly unpopular, probably more so than today. They were people, not gods or psychics or anything. Homosexuality has almost never been cast in a positive light in this country, it's been kept mostly underground and forced into its own subculture for that very reason. Even if there IS some strange document that professes their "true intent" and it somehow includes sexual orientation and the like, I would put money that it wouldn't make a shred of difference to those who oppose homosexuality today and we'd still be fighting roughly the same battle.

Offline Jude

Considering that the authors/supporters of the 14th amendment were radical Republicans enacting a piece of legislation to significantly alter what they thought was a flaw in the Constitution created by the Founding Fathers which nearly destroyed the country only a couple years before, I kind of doubt they'd echo that faux-traditionalist sentiment.

I also don't see how anyone can possibly think that this "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" could be interpreted as "homosexuals must be granted equal rights."  The original text only discusses actions of the state and rights aren't even mentioned (though I know it's been interpreted to include Federal actions in the past, I just don't see how).

Furthermore, this amendment did not result in the immediate nullification of laws which prevented women from voting (it wasn't until over 50 years later in 1920 when the 19th amendment was passed, granting women the right to vote), which really just goes to show that it has nothing to do with gender discrimination.  Keep in mind that at its core the 14th amendment is reconstruction era policy:  it's primary purpose was preventing state-based discrimination in the south against freed slaves (and it wasn't even successful at that considering states began to enact Jim Crow Legislation seven years later unimpeded, which continued for over 75 years).

I have a problem with "judicial revision" of a law decades (or in this case, over a century) after it was enacted based on liberal interpretations.  If you don't like what a law says, then change it to say what you want it to.  If more protections and provisions are needed, then add them.  It's true that the judiciary has a responsibility to keep unconstitutional laws from being enacted, that's something I support, but that doesn't mean changing the definition of long-standing legal conventions way after the fact.  We practically need a statute of limitations; if the Supreme Court doesn't catch it in the first 50 years, why should they have the power to overturn it later?

Intent matters because human language is open to so many meanings, and the proper interpretation based historical evidence helps tie the law to the actual reason it was enacted. If you want something else passed, support the legislators who will represent your interests then let congress do its job.  So long as the majority of the country supports whatever you wish to change, there should be no problem.  I think if you're looking to force the acceptance of legislation which could not be Democratically enacted, there has to be an urgent enough reason act against the will the country and the spirit of Democracy (as popular sovereignty and protection of the individual are competing principles in that scenario).

At this point I know that the discussion becomes subjective:  some people think that the cause of gay marriage is urgent enough to justify judicial unilateralism.  I disagree even though I'd vote for it and support it if it ever went to ballot in my state or in the country, but that's another topic.
« Last Edit: January 04, 2011, 11:52:38 PM by Jude »

Offline alxnjshTopic starter

Fortunately, the Supreme Court is not populated by immortals but by members whose terms are finite.  It behooves the citizens looking for equality across the board for all people to elect presidents and members of congress who are far seeing and flexible in their viewpoints so that changes to our Constitution, which is meant to be an organic document, can be allowed to guarantee freedoms to all that are now enjoyed by some.

I concur, though...selfishly speaking...it makes no difference. To me they are basically immortal for the members of the court do not change very often. Meaning, I've known only few Justices in the grand scheme of things. The changes to equality most likely will not be changed by the Court in my lifetime.

Offline DarklingAlice

The course of politics and history does not run selfishly alx. It's not exactly fair, but at the same time it prevents a mercurial nature from taking hold of the system.

Offline Oniya

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I concur, though...selfishly speaking...it makes no difference. To me they are basically immortal for the members of the court do not change very often. Meaning, I've known only few Justices in the grand scheme of things. The changes to equality most likely will not be changed by the Court in my lifetime.

Each of the last four Presidents (Reagan through Obama) has appointed multiple justices.  Not all of the current justices are particularly young (you have to have a certain amount of life experience to be considered seriously), so it's still possible for the next President to be able to appoint one.  I think the reason that you've only 'known' a few is because most appointments aren't really a big news event.  I have specific memories of Sandra Day O'Connor (first woman on the Court) and Clarence Thomas (Coke can) being appointed - the other ten or so didn't register as much on my radar, to be honest.

Offline alxnjshTopic starter

Each of the last four Presidents (Reagan through Obama) has appointed multiple justices.  Not all of the current justices are particularly young (you have to have a certain amount of life experience to be considered seriously), so it's still possible for the next President to be able to appoint one.  I think the reason that you've only 'known' a few is because most appointments aren't really a big news event.  I have specific memories of Sandra Day O'Connor (first woman on the Court) and Clarence Thomas (Coke can) being appointed - the other ten or so didn't register as much on my radar, to be honest.

Yes, understandable...all the current Justices were appointed in my lifetime. However, the opportunities for appointment of more progressive judges is low. The conservative judges on the court are the young members. Bader Ginsburg, Kennedy, and Scalia are next to go I would imagine. A liberal, a swing and a conservative. Alito, Roberts, Thomas...they are young in the scheme of things.

Offline Serephino

Just because something isn't specifically mentioned doesn't mean it doesn't apply.  The Constitutions and the amendments were meant to be open ended.  One thing we do know the Founding Fathers intended was for the structure of the government to last.  They were smart enough to realize that times would change.  Part of why the Supreme Court exists is to interpret and apply everything to our modern world.

Offline Jude

People often forget that the Founders did not agree amongst themselves on a whole lot of important issues.  States rights vs. Federal power has been a constant theme in American Politics because we've never agreed on it, going back to the publishing of the Federalist Papers.  There is no one unifying intent by which our government was created (except stability and success, and those are not intent, but aims).

As far as the "living constitution" argument goes, there are Founding Fathers who appeared to agree with it (though you have to interpret their words that way, the term living constitution was NOT coined until much later) and many who appeared to oppose the concept.  Check out Thomas Jefferson's words in a letter after being inaugurated as president:  "The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption."

I think the question can be asked separate of history in a very simple way.  Do you want law to be interpreted through the biases of the current time or law to be a body of rules that have cultural and historical context so that law means something permanent and unchanging based on the original purpose it was intended to serve?

The constitution can be changed by adding law to it or repealing law that was added.  We don't need to reinterpret what's there in order to change our government:  that merely gives a shortcut which can circumvent our Democratic processes.  I think it is far more important to stand against policies which do that than it is to enshrine a potentially damaging principle for short term gain.

Offline kylie

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Quote from: Jude
I also don't see how anyone can possibly think that this "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" could be interpreted as "homosexuals must be granted equal rights."
          Let's have some examples.  A right to be free of workplace discrimination...  A right to tax breaks that give others material advantages when they marry...  A right not to be harassed and detained by police due to orientation...  These all seem pretty consistent with "privileges and immunities" to me.   The original as quoted does say "any person" and it does not say "any person except women or those in a same-sex relationship."  It seems to me that in order to actually adhere to what is written, we have to allow that the principle may have broad implications.  If not, it's all rather meaningless because the law as written doesn't say which groups (in terms of race, class or gender among others) actually are the happy, protected ones -- you know, the ones you don't want us going beyond.

Quote
Furthermore, this amendment did not result in the immediate nullification of laws which prevented women from voting (it wasn't until over 50 years later in 1920 when the 19th amendment was passed, granting women the right to vote), which really just goes to show that it has nothing to do with gender discrimination.
         What they imagined or wanted is only part of the argument.  There is also a question of what we think is best, here and now.  It's a matter of principle.  Otherwise, every time you modify the tax rate or add a little commerce clause, we would be required to have a constitutional convention.  And/or a popular vote...  If we only focused on what the original authors perhaps imagined, then at every turn we have to start from scratch laying out original principles.  But it's not a huge secret that society changes -- so we don't.  We say, okay now we are on a specific course.  It is one not so different from the broader and better principles among those offered before.  And honestly, that is a partly subjective choice influenced by the objective conditions we face today.  But now we are going to go forward and achieve a program; we find it not altogether against that broadly stated idea of greater good the founders put forth.  "All in favor?"  And those who prefer to stick with traditionalist, male-authoritarian outfits where women have no formal rights in the community (or pick your favorite alternative), vote nay.  They may even find a way to go on living like that (to the extent they have influence in the state government or the judiciary determines they may yet be tolerated).  The rest of us don't just give up because we might get in a little tussle with them someday.

Quote
I have a problem with "judicial revision" of a law decades (or in this case, over a century) after it was enacted based on liberal interpretations.  If you don't like what a law says, then change it to say what you want it to.  If more protections and provisions are needed, then add them.
         I think it's more accurate to say in many cases:  If you don't like how people reinterpreted a law in order to make it applicable today, you will call it revisionist.  If you like the new interpretation or you feel it is "safe" or timely enough, then are you still going to call for a whole new law -- just to create a laundry list of all the groups who will be included?  "Whoops!  We forgot to explicitly mention that Charismatic Pentacostals are on the list.  I guess they just don't count as a protected religion until we get back to Philadelphia in four years.  Oh and Jane, please double check that you listed all stages of fetus under Version 67.316 where everyone has added their subjects to be counted in the 300 page addendum under 'right to life and liberty.'  Or else, we we'll be without a leg to stand on when we argue for the anti-abortion law."

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Do you want law to be interpreted through the biases of the current time or law to be a body of rules that have cultural and historical context so that law means something permanent and unchanging based on the original purpose it was intended to serve?
          Something unchanging?  Equality is a pretty basic concept.  Perhaps we could maintain something pursuing that, with a little bit of scrutiny?  However, it is not always necessarily supported by majority rule.  Frequent majority rule is not necessarily consistent with any tradition of constitutional authority at all.  The Constitution promises that government will protect the property system and equal rights (as if "private property" were a fundamentally egalitarian concept historically -- but anyway).  Popular majority rule does not necessarily act in support of even the most basic principles of economic order in the Constitution.  Conflicts like these are why we have a Judiciary to begin with. 

        For example:  Take voter initiatives in Western states that raised more public services than income to cover them for many years.  Voters refused or circumvented plans by their own elected representatives and broke the bank.  Later, the same initiative process was used again.  This time, it meant that the voters were choosing more directly which groups will be divested because the community previously set up a failing budget through the ballot box.  Are those groups going to have equal protection in that situation?  I don't see how, unless a court comes along and says: "No you don't get to choose this, after all.  Unconstitutional choice."
 
       Now if you want the whole context to be really unchanging, we'd just have to get those women and Blacks and Hispanics back where they were.  No, thank you.

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It's true that the judiciary has a responsibility to keep unconstitutional laws from being enacted, that's something I support, but that doesn't mean changing the definition of long-standing legal conventions way after the fact.  We practically need a statute of limitations; if the Supreme Court doesn't catch it in the first 50 years, why should they have the power to overturn it later?
       Under that sort of logic, why should we tether only the courts to tradition?  Why not the public or their representatives?  Why should the Executive have any choice in whether to end a war in one year if we haven't won in twenty?  There was an original commitment based squarely in context of that day 49.5 years ago.  Heaven forbid we turn around and change our minds on anything.   Oh, what?  You say even the majority has moved beyond bell bottoms and is unionizing via Facebook?  Too bad, the court statute of limitations has not yet expired.  We can't do anything about libel on the Internet...

 
« Last Edit: January 11, 2011, 06:48:21 AM by kylie »

Offline Jude

          Let's have some examples.  A right to be free of workplace discrimination...  A right to tax breaks that give others material advantages when they marry...  A right not to be harassed and detained by police due to orientation...  These all seem pretty consistent with "privileges and immunities" to me.   The original as quoted does say "any person" and it does not say "any person except women or those in a same-sex relationship."  It seems to me that in order to actually adhere to what is written, we have to allow that the principle may have broad implications.  If not, it's all rather meaningless because the law as written doesn't say which groups (in terms of race, class or gender among others) actually are the happy, protected ones -- you know, the ones you don't want us going beyond.
If we're going to be strictly literal, the law says that you can't give one person privilege or immunity and not another.  However, whether or not this is going on depends entirely on how you define those privileges or immunities.  Your example of marriage or example, it isn't legal to give tax breaks to some people that marry and to give tax breaks to others that don't.  That's already illegal.  Homosexuals can marry as well.  Marriage is simply defined as a union between a man and a woman thanks to DOMA, so it doesn't even make sense to talk about two men being married.  There's no contradiction of law here.  Would I like to see this changed?  Yes.  But that doesn't mean I can dream up contradictions which aren't actually there.  As far as discrimination on the basis of orientation goes, I don't think there's a federal law currently that outlaws that.  It would be inconsistent if it was OK to discriminate against homosexuals but not against heterosexuals, and because both are currently OK, there's no contradiction.
         What they imagined or wanted is only part of the argument.  There is also a question of what we think is best, here and now.  It's a matter of principle.  Otherwise, every time you modify the tax rate or add a little commerce clause, we would be required to have a constitutional convention.  And/or a popular vote...  If we only focused on what the original authors perhaps imagined, then at every turn we have to start from scratch laying out original principles.  But it's not a huge secret that society changes -- so we don't.  We say, okay now we are on a specific course.  It is one not so different from the broader and better principles among those offered before.  And honestly, that is a partly subjective choice influenced by the objective conditions we face today.  But now we are going to go forward and achieve a program; we find it not altogether against that broadly stated idea of greater good the founders put forth.  "All in favor?"  And those who prefer to stick with traditionalist, male-authoritarian outfits where women have no formal rights in the community (or pick your favorite alternative), vote nay.  They may even find a way to go on living like that (to the extent they have influence in the state government or the judiciary determines they may yet be tolerated).  The rest of us don't just give up because we might get in a little tussle with them someday.
That's not how constitutional law works.  You can add new provisions to the body of law so long as they do not conflict with existing law.  You only need to modify the constitution with an amendment when new laws conflict with existing laws.  Thus it's fine to add new taxes and such so long as they do not conflict with other areas of law.  Adding additional protections is simply putting another layer into effect.

As far as enacting what we think is best here and now into law, that's what legislation is for, not judicial review.
         I think it's more accurate to say in many cases:  If you don't like how people reinterpreted a law in order to make it applicable today, you will call it revisionist.  If you like the new interpretation or you feel it is "safe" or timely enough, then are you still going to call for a whole new law -- just to create a laundry list of all the groups who will be included?  "Whoops!  We forgot to explicitly mention that Charismatic Pentacostals are on the list.  I guess they just don't count as a protected religion until we get back to Philadelphia in four years.  Oh and Jane, please double check that you listed all stages of fetus under Version 67.316 where everyone has added their subjects to be counted in the 300 page addendum under 'right to life and liberty.'  Or else, we we'll be without a leg to stand on when we argue for the anti-abortion law."
If you know that the intent of the law and how it was used for over 100 years was x, then reinterpreting it as y can be seen as nothing but revisionist.  I don't see how you can view it in any other way.
          Something unchanging?  Equality is a pretty basic concept.  Perhaps we could maintain something pursuing that, with a little bit of scrutiny?  However, it is not always necessarily supported by majority rule.  Frequent majority rule is not necessarily consistent with any tradition of constitutional authority at all.  The Constitution promises that government will protect the property system and equal rights (as if "private property" were a fundamentally egalitarian concept historically -- but anyway).  Popular majority rule does not necessarily act in support of even the most basic principles of economic order in the Constitution.  Conflicts like these are why we have a Judiciary to begin with.
You forget that it doesn't matter what the constitution says if a strong majority agrees with it.  The constitution can be changed; this additional measure requiring the approval of the majority (or a strong majority) exists to slow down the speed at which the country's foundation can be modified.  This limits political power that individuals have, which helps keep our republic stable.  Revisionists want to reduce the stability of our country by changing what is and isn't acceptable for the courts to do for the sake of short-term gain.
        For example:  Take voter initiatives in Western states that raised more public services than income to cover them for many years.  Voters refused or circumvented plans by their own elected representatives and broke the bank.  Later, the same initiative process was used again.  This time, it meant that the voters were choosing more directly which groups will be divested because the community previously set up a failing budget through the ballot box.  Are those groups going to have equal protection in that situation?  I don't see how, unless a court comes along and says: "No you don't get to choose this, after all.  Unconstitutional choice."
I see your point.  The majority is not always right, I don't disagree at all with that.  But giving the majority the self-determination that they're due is a matter of principle.  Just because they're not right doesn't mean you get to deprive them the right of being wrong.  That's not how Democracy works.  You either respect that principle, or you start tossing things out in the name of enacting your own agenda, which will eventually be used later by people who disagree with you to tear down what you built.

It is logical to fear the tyranny of the majority, but even moreso to continue to fear the tyranny of the individual:  or in this case five (out of nine) individuals.
       Now if you want the whole context to be really unchanging, we'd just have to get those women and Blacks and Hispanics back where they were.  No, thank you.
I think it's unrealistic to say that if judicial review wasn't used to give blacks rights other avenues wouldn't be.  I don't see any reason to believe why any group wouldn't enjoy the same protections they do through legislative means if the option of revisionism was off the table.  To even begin establishing that you'd have to actually come up with numbers that show the majority of voters were against what was being done to begin with (and even then it would require much more savvy to craft an argument that shows legislative solutions wouldn't have worked in the following years, it may not even be possible).  Yet every time this debate has cropped up on E and people have used that as an example, no one has been able to produce any evidence to show that.  I'm fully willing to admit that civil rights progress probably would've been slower without the judicial revisionism.  That doesn't change my point of view however, as I think preserving the integrity of the third branch of government is more important than short-term gains.
       Under that sort of logic, why should we tether only the courts to tradition?  Why not the public or their representatives?  Why should the Executive have any choice in whether to end a war in one year if we haven't won in twenty?  There was an original commitment based squarely in context of that day 49.5 years ago.  Heaven forbid we turn around and change our minds on anything.   Oh, what?  You say even the majority has moved beyond bell bottoms and is unionizing via Facebook?  Too bad, the court statute of limitations has not yet expired.  We can't do anything about libel on the Internet...
I don't understand how what you said follows from what I said.  You are saying that my logic implies that it would be reasonable to alter the courts to be, basically, a reactionary legislative branch.  We already have a legislative branch.  I'm beginning to wonder what you believe the purpose of the courts is.  I believe the Judicial Branch exists for two reasons:  to ensure that the law is enforced with as little bias as is possible and to ensure that new law added to the books is consistent with previously established law.  I don't really understand what you think the purpose of the Judicial Branch should be.

I have a feeling we're not going to come even close to convincing each other of anything, because we have a fundamentally different view of what American Government should be.  I take a more conservative approach because I know that rapid, unchecked change can turn cancerous and destroy an otherwise stable institution.  You seen more interested with short-term progressive goals.  I want to see workplace discrimination on the basis of gender and sexual identity be made illegal.  I want people who identify as any gender (including none should they reject the notion of gender altogether) to be able to marry whoever they wish and have that be recognized as equal to a heterosexual relationship in the eyes of the law.   We have a fundamentally different focus, and I think at this point I really just a matter of which we value more in a completely subjective way.
« Last Edit: January 11, 2011, 06:45:54 PM by Jude »

Offline mystictiger

Now that my brief internet drought is over, I'm back and glad to see an interesting thread is in the offing.

I have been struck by the use of certain terms so far, particularly the word 'feminist'. If feminism means the belief that men and women should be equal, then I am a feminist.

I wonder, though, are there certain jobs that men or women are just simply better at due to physiological differences? A woman can handle, on average, higher G-forces than a man can. Therefore our fighter-pilots should be female. By contrast, how many women would feel happy with a male midwife (there are male midwifes in the UK - a mere handful - and are proving remarkably popular).

Further, rather than try and torture old laws into covering new situations, the best route for legislation is... through the legislature. I am frequently shocked at the amount of legislation that comes from US courts. In the UK, we have a vaguely similar concept (in terms of the European Court of Human Rights and the European Court of Justice), but in much smaller quantity. The key here is that the state has to change its legislation to be in line with these judgments rather than the judgments - for the most part - having direct effect. Still, where big things happen, they do so at an incremental pace. I am reminded of the recent Irish case about abortion.

I have never been able to understand why the US supreme court is able to act like a third legislature, and would be grateful for insight on this.

Also, the notion that homosexuality is a social construct of the 1900s is... well... revisionist nonsense. If this were the case, why are there laws outlawing sodomy that date back to the Old Testament?

Offline kylie

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Quote from: Jude
If we're going to be strictly literal, the law says that you can't give one person privilege or immunity and not another.  However, whether or not this is going on depends entirely on how you define those privileges or immunities.
       I think actually, the problem is more who counts as a full person.  That should be clear when you run into confusion about what is or is not "adding" a new meaning.  Historically, this was a problem with Blacks in particular.  As far as I know, that was not resolved by writing "and now Blacks will count as full persons for voting purposes" while omitting women.  Rather, they wrote no one will be denied this and that -- and proceeded to act in a contrary fashion so that we got to fight over how that shall be applied and enforced.  For Blacks, for women, and for gays much alike in the broader picture. 

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Your example of marriage or example, it isn't legal to give tax breaks to some people that marry and to give tax breaks to others that don't.  That's already illegal.  Homosexuals can marry as well.  Marriage is simply defined as a union between a man and a woman thanks to DOMA, so it doesn't even make sense to talk about two men being married.
        The way you put that is really foggy.  States can recognize same-sex marriages if they so choose.  It's only blocked for the purposes of federal agencies under DOMA.  However, DOMA itself cannot supercede the principles of the Constitution in the eyes of a Court.  It's just a present law on the books, but it fails if judicial review says so.  The principles reach beyond whatever particular historical context it was written in, or else we throw the thing out and start over (either formally, or in fact).  Which brings us back to Equal Protection.  That is an Amendment.  DOMA is not at the same level.  And if it were, it should also be challenged on the basis of First Principles.  Which do say everyone is equal, not just certain kinds of people.  That does not logically allow for things like Blacks being 3/5 of a man, women being denied the vote, or gays being denied security and material rights through laws codifying marriage to exclude them.  If we have any consistency. 

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As far as enacting what we think is best here and now into law, that's what legislation is for, not judicial review.  If you know that the intent of the law and how it was used for over 100 years was x, then reinterpreting it as y can be seen as nothing but revisionist.
        See above.  Judicial review is for applying principle as far as we can observe it stretches.  We don't need a whole amendment to say: "They never envisioned gay marriage when they said all people are equal but now we do, so we must now have a convention to observe that in fact we do manipulate wealth through marriage and funny we just noticed now, but this happens to conflict with any original principle of equal freedom."

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The constitution can be changed; this additional measure requiring the approval of the majority (or a strong majority) exists to slow down the speed at which the country's foundation can be modified.
         Judicial review also exists to make sure that first principles get applied reasonably to present situations -- even when the majority would be just as happy to run over a minority.  Deal with it and stop shouting "revision" when you think it's too risky to stand up for even what was actually written. 

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Just because they're not right doesn't mean you get to deprive them the right of being wrong.  That's not how Democracy works.  You either respect that principle, or you start tossing things out in the name of enacting your own agenda, which will eventually be used later by people who disagree with you to tear down what you built.
       Maybe not -- but that is how the republican end of government works, to the extent that it "works" at all.  It's one thing if the principle of equality or not were real foggy.  Then an amendment might make sense.  It's quite another matter to stand for 'stability' at the express expense of groups on the receiving end of particularly heated discrimination today.  You're waving around "your own agenda" as if only minorities have them.  Just because your position is restrictive doesn't mean it's any less productive of an outcome with real consequences.

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I don't see any reason to believe why any group wouldn't enjoy the same protections they do through legislative means if the option of revisionism was off the table.
       First you recognize tyranny of the majority is entirely possible, then you insist it's somehow more likely among judges than the population, and then you contort around full circle and say this.  We've had this argument before.  I don't really care if the system can be manipulated the same way for different ends.  I care what ends it's being manipulated for now.  Slowing down the process or restricting it to generation-long cycles or more, as you seem to be advocating, only means that whoever can game it at the moment will definitely fend off contests for a longer period of time.  If there is no contest, then no matter how many same-sex couples are doing just fine, there won't be people putting two and two together at the policy level to do anything about it.  That has so many detrimental consequences for individuals, for the economy, and for social order in the meantime. 

       You also don't have a firm historical basis to argue that if gay marriage were established, it would be badly defended against challenges.  It's all hypothetical.  You're speaking from a situation where all we've seen is the opponents of gay marriage saying, "This is unknown" or "unnatural" or "too soon, oh no the horror" (this is everywhere in the DADT debate too)...  You can't really predict what would happen after approval because then a different set of interests might come together and start resisting change under a new kind of rhetoric.  Actually holding a positive position of "look, now we've done it and the world didn't end and some good things happened" is different from having to battle with "but that's un-Christian" or "that's not mentioned in the Constitution."

       I think I've already spoken to most of the rest above... 

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I have a feeling we're not going to come even close to convincing each other of anything, because we have a fundamentally different view of what American Government should be.  I take a more conservative approach because I know that rapid, unchecked change can turn cancerous and destroy an otherwise stable institution.
        Sure, people dying on fenceposts, bullied guys all over the place with people constantly hounding them with anti-gay epithets (not a few of them feminine guys and not necessarily gay anyway), thousands of children with one (or sometimes more -- noting polyamorous among the more often gay-inclusive crowd) parent(s) without legal status in a society with a pretty rampant divorce rate to begin with...  Common job discrimination and economic discrimination with little to no recourse...  You have a peculiar idea of what counts as stability versus cancer -- and what apparently are just acceptable costs by the wayside. 

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I want to see workplace discrimination on the basis of gender and sexual identity be made illegal.  I want people who identify as any gender (including none should they reject the notion of gender altogether) to be able to marry whoever they wish and have that be recognized as equal to a heterosexual relationship in the eyes of the law.   We have a fundamentally different focus, and I think at this point I really just a matter of which we value more in a completely subjective way.
      Have you paid any attention to much I've written about gender around here?  I've said before that I think the pursuit of marriage equality is a problem strategically -- but then, I tend to think that marriage itself is a problem so if you want to talk about views that are really lacking any constituency out there...  Now, as you were saying so stridently:  Where exactly did you ask me how I felt about gender and sexual identity in the workplace, and where did I say I didn't want those things?  Where did you prove that we could never have those and incorporate gay marriage too?  If you think we're not going to agree on something we've actually discussed, that is fine.  But as far as this part goes...  I do think you're skidding all over the place, and seeking without merit to put all sorts of words in (or out of) my mouth in a really random attempt to sound "more progressive than thou."  You still don't convince me that merely holding off -- how long, I cannot really see -- on pursuit of equality, out of some vague hope that it will somehow be easier to hold onto later, is necessarily going to pan out. 

« Last Edit: January 12, 2011, 12:32:29 PM by kylie »

Offline Jude

The last paragraph of my response where I named all of the things that I want to see happen was not an attempt to differentiate myself from you, quite the opposite.  I was saying we agree on all of that.  My point was that where we place more importance is different.  I think it's more important to have judicial processes which aren't easily hijacked by special interests in the sake of stability, and you believe that it would be better to accept that the judiciary has the power re-align law so that it is consistent with current social context for the sake of creating a greater degree of equality for various minorities.

In as much as you seem to want to argue that point...
Quote from: Kylie
        Sure, people dying on fenceposts, bullied guys all over the place with people constantly hounding them with anti-gay epithets (not a few of them feminine guys and not necessarily gay anyway), thousands of children with one (or sometimes more -- noting polyamorous among the more often gay-inclusive crowd) parent(s) without legal status in a society with a pretty rampant divorce rate to begin with...  Common job discrimination and economic discrimination with little to no recourse...  You have a peculiar idea of what counts as stability versus cancer -- and what apparently are just acceptable costs by the wayside.
You're naming problems but not discussing how prevalent they are, or what solutions you'd give.  It seems to me you'd prosecute people for bullying and using anti-gay epithets (resulting in a crackdown on free speech).  Then you'd rewrite law so that polygamy is equally as respected as monogamy (bankrupting insurance companies as people attempt to use their policies through their employers to cover a multitude of spouses and children).  Next you'd tell businesses that they can't discriminate against employees on the basis of sexual and gender orientation, and the lawsuits would start to fly when people in the customer service field are asked to conform to a standard of professional appearance for the sake of being presentable to customers (whose biases will cause them to avoid businesses with "scary looking" gender queer individuals serving as the face of the company in transactions with the general public).

I know you'll disagree with me on the implementation of some of those fixes and that I have strawmanned you slightly in that reply, but I wanted to include an example of solutions that might come out of ham-handed judicial review and the unintended consequences of them, and even that doesn't account for the actual expression of the policy which will suffer due to bureaucratic and governmental inefficiency.  Ultimately though you want to tell members of our society how to behave through means of force (and make no mistake, that's exactly what law is) without a legitimate popular mandate backing up the legal decrees made by the judicial branch in the name of recontextualizing.  I don't think that would create a more stable society; things are shaky enough as is without the judiciary forcing a cultural renaissance backed by prosecution on the entire nation.

Things suck for homosexual individuals today.  It isn't fair, it isn't right, but it isn't comparable to slavery.  Not even when the intersexed, transexual, and gender queer individuals suffer today in our society is anywhere close to the atrocities that lie in the past of our country and our species.  Things have improved vastly even from the 1950s for homosexuals in particular, and the march of progress continues (but is slow).

Every person out there who has ever said "it won't get better through popular means or by the will of the majority" has time and again been proven wrong.  We didn't need the Supreme Court to get Don't Ask Don't Tell through.  There would be an anti-discrimination law for homosexuals on the federal books right now if LGBT activists hadn't torpedo'd the legislation because it didn't include transexual discrimination as well.  I've never seen a single good argument to back up the point of "it has to be done by the judiciary."  And if it doesn't have to be done by the judiciary, then why not wait?  Why imbue more power into the hands of nine sitting judges who could just as easily use it to overturn Roe v. Wade as they could DOMA?  It seems incredibly short-sighted to me to support such a course of action.
« Last Edit: January 12, 2011, 04:50:25 PM by Jude »

Offline kylie

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Quote from: Jude
I think it's more important to have judicial processes which aren't easily hijacked by special interests in the sake of stability,
         Does the term special interest have any particular meaning to you here except 'numerical minority'?  What happens when you add up the forsworn interests of LQBTQ and those of racial minorities, other sexual orientations not commonly protected, gender and bio-sex minorities, the working class and so many others?  You say they are not all the same so each can safely be ignored separately.  I think they are fabricated, misrepresented, divided and conquered under a pretty uniform (though sweeping and sometimes uneven) rhetoric/strategy of "tradition," supposed naturalness, intimidation, and denial of resources.  Add them all up and we're not talking about a minority.  We're talking about millions of people who fail to organize and deal with very basic, common ideological problems because they are repeatedly and constantly socialized to imagine themselves as victimized only individually, locally and precisely as "minority" (or if you like "special") identities.

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and you believe that it would be better to accept that the judiciary has the power re-align law so that it is consistent with current social context for the sake of creating a greater degree of equality for various minorities.
        I tend to believe Power (the big entrenched System version of Power) should be pushed to live up to a modicum of its rhetoric, play the game out, and then we move on as necessary.  If Power is supposedly vested in the Courts, let's let them have their piece on what is their purview.   Or it will happen in a less predictable way.  I don't think Power is really that interested in stability itself, and I don't think the game it plays necessarily ensures relative stability in the long run either.   That seems to assume that the minorities will never notice a pattern, and that by the time their most symbolic figures start to talk to each other, civil society will organize faster to give them a popular majority and a favorable law.  It doesn't always happen that way.  Vanguard figures talk to each other across group boundaries.  Spectacular abuses happen or a few people decide as they see no real change in their lifetime, you know what do we have to lose if I'm a martyr in just a certain way.  People get fed up and do tragic, expensive and/or disastrous stuff.

       I don't think you have factored in the day to day economic costs of the abuses we have -- let alone what may happen down the road in your model.  Those sorts of costs are covered up by the way the system stands.  So touche on the business of not providing a full empirical solution with bills in triplicate polled to pass with 52% by 2020, graphs, economists, climate change psychology analyses, and flowcharts.   
 
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In as much as you seem to want to argue that point...You're naming problems but not discussing how prevalent they are, or what solutions you'd give.  It seems to me you'd prosecute people for bullying and using anti-gay epithets (resulting in a crackdown on free speech).
         I'm pretty sure the distinction between hate crimes and free speech law has been batted around a lot on here.  If you still refuse to accept that there is any such viable distinction or such to be maintained by law, I think that's sad but I'm not going to bother repeating it all here.

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Then you'd rewrite law so that polygamy is equally as respected as monogamy (bankrupting insurance companies as people attempt to use their policies through their employers to cover a multitude of spouses and children). 
       It sounds like in the short term, you're really concerned about people taking advantage other than the polygamists and poly.  I'd imagine it would be some time before many of them had the guts to dump the oppositional values and do it just for the money.  In that time, we can talk about how much it's actually costing or saving.  Probably with a conservative figure to be safe, because it seems many poly people with large, stable families now include wealthier heads of household.  On the whole though, isn't this the same as the argument against national health insurance?  If the costs are out of control, deal with the corporate regulations that help put them there or really, move to a more unified system to disperse the risk if necessary.  Veks has mentioned that many times in the health care threads.  If your issue is more to do with raw population control, I'd bet there's another thread for that too.

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Next you'd tell businesses that they can't discriminate against employees on the basis of sexual and gender orientation, and the lawsuits would start to fly when people in the customer service field are asked to conform to a standard of professional appearance for the sake of being presentable to customers (whose biases will cause them to avoid businesses with "scary looking" gender queer individuals serving as the face of the company in transactions with the general public).
        Well the more established GLT elements have been compromising a lot on this sort of thing for years -- at least avoiding your "scary" and often serving up a predictable dichotomy of gender roles even if they don't match some of the sex prescriptions so much.  They've invested quite a bit in it and often enough, take a certain odd pride in doing so.  So again, I don't imagine that even given an ideal legal environment there would be some immediate sea change in behavior and a massive culture shock.  There's a cushion.  We don't need a 20 or 50 year wait for a maybe popular majority, which may seesaw all over (due to new splinter issues or new reactionary campaigns as keep happening regardless --  historically) after that anyway, for all we know.

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I wanted to include an example of solutions that might come out of ham-handed judicial review and the unintended consequences of them, and even that doesn't account for the actual expression of the policy which will suffer due to bureaucratic and governmental inefficiency.
        I don't see that ham-handedness and inefficiency are issues that are obviously limited to the process following my direction rather than yours.

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Ultimately though you want to tell members of our society how to behave through means of force (and make no mistake, that's exactly what law is) without a legitimate popular mandate backing up the legal decrees
        I can see how you see it that way.  To me, it still sounds rather like the "death panels" rhetoric.  Providing support for things that lots of people are doing anyway out of belief or necessity, and many more are tolerating or quite happy with, while some poll numbers fuss swing this way or that is hardly wringing everyone by the arm on this one issue.  It's also a little funny to talk about things like popular mandate in order to oppose gender rights -- when one Party continually relies on the votes of the South and certain other regions with highly race-loaded rhetoric (anti-welfare, anti-income equality, anti-infrastructure where Blacks suffer for it predictably and disproportionately) in order to get "mandates" to vote on things like DOMA.  And then to say these aren't similar issues.  The least you could do if you're going to take that road is to say that you believe all minorities must stay where they are to maintain order more or less indefinitely. 

       That is, unless you can show a neat roadmap for how no one will oppose them each getting a mandate in this, or maybe the next or the next generation...  I can't imagine any such neat map.  In history as I understand it, there have been many backlashes and swings of votes (and yes of judges and legislatures and executives too over time) after courts say this or that.  But you don't want us to reach that point so anyone has protection and we see what that looks like in the meantime.  You're happy denuding the scope of the courts specifically.  Funny they just happen to be the ones left holding the ball at the moment for rights.  Will you say the same thing if the executive repeals DOMA?  If a court rules that child custody from a state with gay marriage must be recognized in a state with DOMA (as they have)?  Where does this end?

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Every person out there who has ever said "it won't get better through popular means or by the will of the majority" has time and again been proven wrong.
       I think if you look at the history of the South, you'll find race has not gotten better very fast -- even today -- simply by will of the majority.  It's taken the Civil War, a really flawed effort at Reconstruction (which you might say is a very good example from the Southern voters' point of view -- perhaps you feel the North should have better given up then), the National Guard for school integration, MLK marching and dying to get more federal attention how many years later.  And we still have Southern counties refusing mass transit with thinly veiled worried about "what kind of people" are going to ride it out of the city.  That's popular majorities for you, too.  We can go round and round on which mode or branch of government is more imperfect, or we can go for transparency and push what principles are we upholding and applying to what's going on now and what will affect the thinking and of a generation before the polls maybe go this way or that and backlash, etc. on and on.

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There would be an anti-discrimination law for homosexuals on the federal books right now if LGBT activists hadn't torpedo'd the legislation because it didn't include transexual discrimination as well.
        If you assume that people would actually vote for a law against that sort of discrimination -- I don't really know -- I agree, that sort of division has been a problem.  You can see that problem of people not being able to compare their problems.  Compare the broader ones now, and race and gender won't look so different.


« Last Edit: January 18, 2011, 07:40:30 AM by kylie »

Offline Jude

Equating an argument that is a fundamental fact (it isn't like we pull out the feather dusters and tickle you until you comply with the law) with death panel rhetoric is unfair no matter how you slice it.

And you still haven't stated what you believe the purpose of the Judiciary is in fundamental terms, just talked about the things you would have it do, which to me just smacks of supporting abuse of power towards your own ends, all the while leaving that avenue of abuse wide open for the conservative backlash that follows to take things just as far.

Please, without using abstract rhetoric about "big entrenched systems of power" give me a clear statement of what you believe the purpose of the Judiciary is.
« Last Edit: January 18, 2011, 10:29:12 AM by Jude »