U.S. Politics: Houston Avoids Second Disaster

[DMC]

6 minutes ago, Lew Theobald said:

However, it provides no analysis under the Equal Protection clause.  Absent any explanation as to HOW the Equal Protection clause applies, limits are placed on any binding implications that might otherwise be sweeping..

I don't know what this means.  From Oyez:

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The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law. Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the fundamental right of same-sex couples to marry. 

Seems to be pretty clear analysis to me - as well as a clear explanation as to how the EPC applies.  And the implications were sweeping:  it legalized SSM in every state of the union.  What limits were placed "on any binding implications?"  And what more sweeping implications are there?

[OldGimletEye]

On 8/29/2017 at 7:07 PM, Lew Theobald said:

Yes, you are right, to an extent.  The opinion mentions the Equal Protection clause.  However, it provides no analysis under the Equal Protection clause.  Absent any explanation as to HOW the Equal Protection clause applies, limits are placed on any binding implications that might otherwise be sweeping..

I’d imagine the opinion went down something like:

1. We’ve recognized before that marriage is a fundamental right within the scope of substantive due process, and we probably mentioned that before in cases like Loving v. Virginia.

2. Accordingly, the state must have a strong justification for denying marriage.

3. Because a particular group is being denied the right to marriage, a fundamental right under our substantive due process clause jurisprudence, this case invokes equal protection clause issues too.

4. The state has no compelling justification to prohibit marriage in these cases.

4. Accordingly we find bans on marriage to be unconstitutional per the substantive due process clause and the equal protection clause.

[OldGimletEye]

On 8/29/2017 at 7:10 PM, dmc515 said:

It is true that Title VII of the CRA is based on the commerce clause, but the entire basis of the CRA is the EPC, its incorporation, and section 5 of the 14th amendment.

There would be no reason to for the government to assert that the CRA was passed pursuant to the Commerce Clause, if it could have passed that legislation pursuant to the 14th or 5th Amendments. That is what the case of Heart of Atlanta Motel v. United States was about.

[OldGimletEye]

On 8/29/2017 at 7:23 PM, Lew Theobald said:

There's a huge amount of case-law and case-rules on the Equal Protection Clause.  Equal Protection analysis is generally a bit more involved and intricate than "Equal Protection, so There".  If the Court had explained its reasoning, then the binding implications of the holding would apply in a huge variety of other contexts.

Because the holding provided no explanation or elaboration as to how the Equal Protection Clause applies, the implications are largely limited to same-sex marriage itself.

 

Uh I bet the court said something to the effect that since a fundamental right was involved, strict scrutiny of the governments ban was the standard of the review.

[OldGimletEye]

On 8/29/2017 at 7:26 PM, Lew Theobald said:

That's a substantive due process analysis, except that the words "equal protection" are thrown in at the end.   Which is a fair summary of the court's decision.

Except in these kinds of cases both substantive due process and equal right protections issues are usually intertwined. Once a fundamental right is involved, because of substantive due process, then strict scrutiny under equal protection gets implicated.

[OldGimletEye]

On 8/29/2017 at 7:33 PM, Lew Theobald said:

You would lose that bet.

You sure about that?

[DMC]

9 minutes ago, Lew Theobald said:

Equal Protection analysis is generally a bit more involved and intricate than "Equal Protection, so There".  If the Court had explained its reasoning, then the binding implications of the holding would apply in a huge variety of other contexts.

The court did explain its reasoning, I simply quoted the Oyez summary.  If you want to read the actual opinion, there's much more analysis of the EPC therein.  And again, what binding implications in a huge variety of other contexts are you referring to?

[Manhole Eunuchsbane]

1 minute ago, OldGimletEye said:

You sure about that?

Are you prepared to watch a 57 minute You Tube video?

[DMC]

11 minutes ago, OldGimletEye said:

There would be no reason to for the government to assert that the CRA was passed pursuant to the Commerce Clause, if it could have passed that legislation pursuant to the 14th or 5th Amendments. That is what the case of Heart of Atlanta Motel v. United States was about.

Yes.  What I'm saying is the CRA is not possible without both the EPC and the Commerce Clause.  This appears to be an argument based on our respective biases towards our favorite constitutional clauses.

[OldGimletEye]

Did somebody want to take a bet?

Quote

Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Lovingv. Virginia, 388 U. S. 1, 12 (1967) , which invalidated bans on interracial unions, a unanimous Court held marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men.

 

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Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. 

 

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A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held "the right to marry is of fundamental importance for all individuals"). 

 

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The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. 

 

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The equal protection analysis depended in central part on the Court's holding that the law burdened a right "of fundamental importance." 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383 387, that made apparent the law's incompatibility with requirements of equality. Each concept liberty and equal protection leads to a stronger understanding of the other.

 

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And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383 388; Skinner, 316 U. S., at 541.

 

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These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. 

https://supreme.justia.com/cases/federal/us/576/14-556/opinion3.html

[OldGimletEye]

On 8/29/2017 at 7:36 PM, Manhole Eunuchsbane said:

Are you prepared to watch a 57 minute You Tube video?

No not really. LOL.

[Clegane'sPup]

2 hours ago, James Arryn said:

it boggles my mind when you see supporters 'defend' Trump

I picked a line from your post so that I could type this thought ---

What boggles my little pea brain is how the hell a reality show personality became POTUS. Perhaps I do not know the correct questions to ask. HTF did Trump become POTUS?

Someone made it possible for Trump to be POTUS. Was it the political system or the American public.

 

[OldGimletEye]

On 8/29/2017 at 7:58 PM, Lew Theobald said:

Hey, maybe I missed something.  Here's a link to the decision.  You want to find the passage I missed?

https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

But yes, you're right.  Normally, an analysis under the Equal Protection clause would have involved an discussion as to whether the court was applying strict scrutiny or some other kind of scrutiny, together with the reasons why. 

I posted a bunch of  passages. See above.

I didn't even read the case, until just a few minutes ago. But, I could guess at the courts reasons. Once a fundamental right is invoked, then strict scrutiny applies under the Equal Protection Clause. Now it may not have used that term in it's opinion in this particular case, but that's how it analyzes these sort of cases.

And that is what seemingly happened in this case.

[OldGimletEye]

On 8/29/2017 at 8:01 PM, Lew Theobald said:

I thought the bet was about the court applying "strict scrutiny"?

Uh which it seemingly did because it said a fundamental right was involved.

[Manhole Eunuchsbane]

1 minute ago, Lew Theobald said:

Are you still going on about this?  You don't have to watch it if you don't want to.  Really!

Lighten up Lew, they're called jokes.

[DMC]

4 minutes ago, Lew Theobald said:

A paragraph mentions the Equal Protection, and then says that the Due Process and Equal Protection clause are connected.  Then the court spends a few paragraphs citing several cases which involved both clauses.  

Your point?  Care to actually answer this question:

28 minutes ago, dmc515 said:

And again, what binding implications in a huge variety of other contexts are you referring to?

 

9 minutes ago, Clegane'sPup said:

Someone made it possible for Trump to be POTUS. Was it the political system or the American public.

Easy answer:  Both.

[Clegane'sPup]

4 minutes ago, Lew Theobald said:

Hillary?

While I can appreciate what I perceive to be satire Hillary did not have a reality TV show.

 

8 minutes ago, dmc515 said:

18 minutes ago, Clegane'sPup said:

Someone made it possible for Trump to be POTUS. Was it the political system or the American public.

Easy answer:  Both.

Okay, Now what? I mean the USA has a ---- I can't, I just am at a loss for words.

[DMC]

2 minutes ago, Lew Theobald said:

If they had actually provided an Equal Protection analysis, I could have speculated as to the implications.  But they did not provide an Equal Protection analysis.  So who knows what the implications would have been.

If only five SCOTUS judges knew they had to live up to your amorphous standards of "actual analysis."

4 minutes ago, Lew Theobald said:

Thus if a person wants to marry his aunt, or his dog, or multiple partners, or his laptop computer; and sues under the Equal Protection clause; or if pair of bachelors in an asexual bromance sues for equal rights under the Equal Protection clause; or Monks in a monastery sue for equal rights under the Equal Protection clause; the courts can just say "The decision does not apply to you".  And the Plaintiff has no argument to the contrary, because their is no analysis which Plaintiff can claim applies equally to his own case.

Other than the asexual bromance - which I assume would be protected - these are all ridiculous implications that were never going to happen.

[OldGimletEye]

On 8/29/2017 at 8:15 PM, Lew Theobald said:

If they had actually provided an Equal Protection analysis, I could have speculated as to the implications.  But they did not provide an Equal Protection analysis.  So who knows what the implications would have been.

Oh but it did.

Quote

the synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court's holding that the law burdened a right "of fundamental importance." 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383 387, that made apparent the law's incompatibility with requirements of equality. Each concept liberty and equal protection leads to a stronger understanding of the other.

 

[DMC]

5 minutes ago, Clegane'sPup said:

Okay, Now what? 

We Fight!