Wow.. Now I can Marry Him

[Guest Raidne]

Wait, is that the part where you argued that Prop8 does not violate equal protection because a straight man is as equally prohibited by this law to marry another man as a gay man is?

Ahahaha. That's funny. Very clever. A+ constitutional law exam answer.

So yeah, he's got a point there. This is why the law can always use a healthy dose of plain 'ol common sense.

But fine, let's define our class as "people who want to marry people of the same sex."

The same sort of trickery shows up in other issues, also, like pregnancy discrimination, where some courts like to define the class as "pregnant persons" instead of "women" since not all women can become pregnant, etc., etc., thereby avoiding any gender discrimination issue.

At that point, the best arguments I have are basically throwing up my hands and going "oh come on."

ETA: Really, though, it can always, always, always be fixed by just redifining the class. It makes the analysis longer on the whole "level of scrutiny" thing, because on every single point you'll have to make the case that "people who want to marry people of the same sex" are, for all intents and purposes, gay. Yeah.

[Ser Reptitious]

Pax,

And didn't Kennedy casted the decisive vote in both Heller and Citizens United?

I love how we haven't heard a peep from Tempra since you posted this.

[Tempra]

Oh you are? Well, that's new. You kept telling me to read Lawrence and, particularly, the bit in Lawrence about contemporary values, so I put together the best interpretation that I could - that being the one you haven't responded to. So did you (1) mistakenly cite to Lawrence, or are you (2) misunderstanding the argument in Lawrence?

Because I'm just going to guess that there's not a lot in Lawrence about judicial restraint! Ha!

In this case, no this case is not a model of judicial restraint. I'm not a conservative so it's not a real problem for me when the Court recognizes that human rights are being violated even though it has not done so in the same context before, as long as they're not wrong.

I thought you were actually arguing that they were wrong. Guess not?

ETA to FLOW: The difference is in the word "will." And everything else? It would be pretty confusing if we were saying, you know, the will of the people to ban gay marriage conflicts with the will of the people to include gay marriage in the meaning of the word liberty.

You took the time to read through the whole discussion in the old US politics thread and this is what you come up with? This whole "will of the people" discussion started because I said Kennedy will not vote to overrule prop8 because of the strong anti-gay marriage support in this country, unlike the virtually non-existant support for anti-sodomy laws in Lawrence. Kennedy spent several paragraphs of his opinion de-constructing the argument in Bowers that anti-sodomy laws were the will of the people. He noted that anti-sodomy laws dwindled from all 50 states down to 3.

One of the primary tenets of judicial restraint is for judges to respect the republican form of government and to defer to the legislature when the the Constitution is not clearly violated. Homosexuals are NOT a protected class. Laws targeting homosexuals receive rational basis review. As such, I find it highly unlikely that Kennedy will strike down 30+ states' bans on gay marriage. Kennedy stuck down sodomy laws when they were virtually unenforced and unopposed. It is easy to see why those laws would fail rational basis review. It is a whole different animal for Kennedy to strike down prop8 (and all gay marriage bans) with such broad support. Walker may have believed that prop 8 failed rational basis review, but I doubt Kennedy will.

[Tempra]

Tempra,

So do you concede that judicial restraint is more of an ideal that is adhered to simply when it's convenient to the majority of the SCOTUS judges?

I'm not that cynical. Judicial restraint doesn't require that the court defer to the legislature at every turn. Such a belief would gut the court of any power. Heller and Citizens United are much more constitutionally grounded decisions than say Griswold.

And didn't Kennedy casted the decisive vote in both Heller and Citizens United?

I guess? We assume that Kennedy is the decisive vote in most 5-4 decisions because the liberal and conservative blocs tend to be monolithic.

What's your point?

[Ser Reptitious]

Tempra,

Judicial restraint doesn't require that the court defer to the legislature at every turn.

Interesting admission. So when exactly does the court defer to the legislature and when not?

What's your point?

The point is that "the will of people" didn't seem to persuade Kennedy in those instances, so why should it be a key factor for him here?

[TrackerNeil]

I'm not that cynical. Judicial restraint doesn't require that the court defer to the legislature at every turn. Such a belief would gut the court of any power. Heller and Citizens United are much more constitutionally grounded decisions than say Griswold.

So the court should overturn the legislature sometimes but not all of the time? Most people would probably agree with that opinion, Tempra, although I am disturbed that, by you, this decision is "much more constitutionally grounded" than that one, when the legal scholars often disagree with you.

[Tempra]

Tempra,

Interesting admission. So when exactly does the court defer to the legislature and when not?

Courts will not defer to the legislature when the law is unconstitutional. How do we know if it is unconstitutional? When the law fails to pass the various standards of review:

For laws that discriminate on the basis of race, alienage (state legislatures only) or fundamental rights, the state must prove that there is a compelling state interest, the law must be narrowly tailored to achieve that state interest, and it must be the least restrictive means available.

For laws that discriminate on the basis of gender or legitimacy, the state must prove that the law is in furtherance of an important state interest and is substantially related to that interest.

For laws that discriminate based on anything else, the plaintiff must prove that there is NO rational basis for the law.

Laws that discriminate against homosexuals get the last review (rational basis). Ninety nine times out of one hundred, the law will (and should) be upheld.

The point is that "the will of people" didn't seem to persuade Kennedy in those instances, so why should it be a key factor for him here?

Because both of those cases directly and unequivocally invoke the first and second amendments. Gay marriage does not directly and unequivocally invoke any amendment. The court will have to open Raidne's "liberty umbrella" a little more to recognize that gay marriage is protected.

So the court should overturn the legislature sometimes but not all of the time? Most people would probably agree with that opinion, Tempra, although I am disturbed that, by you, this decision is "much more constitutionally grounded" than that one, when the legal scholars often disagree with you.

See above for when the court should overturn laws passed by a legislature.

Which legal scholars? Law professors are overwhelmingly liberal, and unlike academics in math or science, their work is largely policy driven. Law professors deserve (and receive, from what I understand) less deference than other academics.

Most likely, the lines are probably drawn down ideological lines. Conservatives will defend Heller and Citizens United as Liberals have defended Griswold and Roe.

[Guest Raidne]

This whole "will of the people" discussion started because I said Kennedy will not vote to overrule prop8 because of the strong anti-gay marriage support in this country, unlike the virtually non-existant support for anti-sodomy laws in Lawrence. Kennedy spent several paragraphs of his opinion de-constructing the argument in Bowers that anti-sodomy laws were the will of the people. He noted that anti-sodomy laws dwindled from all 50 states down to 3.

No. Nowhere in the text of the decision, here, does Kennedy say "will of the people."

Having established that beyond any possible doubt, can we stop using that phrase? It makes no sense in a judicial context and its use here is flatly wrong.

The decision goes like this:

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers.

Then he reviews the case history establishing sexual privacy as part of "liberty" under the 14th Amendment.

Then, he turns back to Bowers and says:

The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

Then, having explained how the Bowers court sidestepped the real issue, which is liberty, he says:

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.”

This is really not that necessary, but Kennedy goes on to establish how this is wrong, and, in fact, prohibiting gay sex does not have ancient roots.

Then, Kennedy says - and this is important:

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Then Kennedy reviews the way in which we, as a society, have come to view sexual privacy as part of liberty:

In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.

This is where he reviews international cases, the repealing of many state laws, etc., and states, again, that Court precendent has established sexual conduct as within the meaning of privacy found to be part of the meaning of liberty as stated in the 14th Amendment.

Get it? It is not that we willed privacy into the meaning of liberty, or anything like that. It's that our values have come to include sexual privacy as part of liberty, and this is overwhelmingly supported by case precedent.

I have no doubt that despite this review you still just do not get it but if anyone else was interested, I hope this has been a useful review of the Lawrence decision for them.

Moving on, the relevant thing about Lawrence is that in the text itself it lets us know that Kennedy would not consider the Lawrence decision to be controlling precedent over this issue, and that, instead, it will probably fall under Romer.

He says in the decision:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

Yikes. But that's because this is about privacy. Marriage is not about privacy. And we can see that Kennedy agrees with me on that. So, it'll be about equal protection. Like Romer (which, incidentally is the case where Scalia, in the dissent, argues that the existence of the pink mafia is reason gays should not have protected class status - it's a really horrifying, mean dissent and a must-read for everyone), the law is directed against "a solitary class persons who [are] homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships.”

In Romer, the Court found that the discriminatory law was "born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose, i.e. it was passed because the people who passed it are grossed out by gay people and for no other reason.

And that it precisely what would happen here if the decision is ever appealed. Anyone know anything about this?

ETA: Just to be clear, Raidne does not think Raidne's liberty umbrella extends to gay marriage because marriage is not about privacy. Quite the opposite. This is not what Raidne has argued, and this constant mischaracterization of Raidne's argument is why Raidne thinks Tempra is, more likely than not, an idiot.

Raidne thinks prohibiting gay marriage violates the equal protection clause. Raidne cannot imagine how Raidne could have possibly been more clear about this.

[Ser Reptitious]

Raidne,

Thanks for that extensive summary of the case law. Very informative! :)

Tempra,

For laws that discriminate based on anything else, the plaintiff must prove that there is NO rational basis for the law.

I'd say the Plaintiffs have already accomplished that in this case.

But perhaps you would argue that the proponents of proposition 8 simply presented their arguments poorly? If that's the case, could you perhaps provide us with a rational basis on which laws banning gay marriage can be justified?

[Guest Raidne]

The more I think about this, I don't even know if we really even need to get into levels of review.

I mean, okay - what's the state action? Banning gay marriage. What's the government interest?.....Banning gay marriage? Protecting marriage by banning marriage? Hmmm...it's not like it is with, say, private property takings where the government interest is economic development or something like that.

I guess you could say promoting traditional family values? I really have no idea.

This should be interesting.

ETA: Just to be clear, once we're identified the interest, i.e. economic development, we then ask whether there is a rational basis for believing that the state action is related to the government interest, i.e. whether plowing a neighborhood of single-family homes to build a parking lot could plausibly lead to economic development in the form of greater tax revenues. By the way, in that case, the answer is...yes! Like everyone says, it's a really low standard. But before you get there, I need to hear some kind of identified government interest.

[Tempra]

No. Nowhere in the text of the decision, here, does Kennedy say "will of the people."

Having established that beyond any possible doubt, can we stop using that phrase? It makes no sense in a judicial context and its use here is flatly wrong.

No, what? And, yes, please, we can replace "will of the people" with legislatively passed laws and popularly enacted constitutional amendments.

The decision goes like this:

Then he reviews the case history establishing sexual privacy as part of "liberty" under the 14th Amendment.

Then, he turns back to Bowers and says:

Then, having explained how the Bowers court sidestepped the real issue, which is liberty, he says:

This is really not that necessary, but Kennedy goes on to establish how this is wrong, and, in fact, prohibiting gay sex does not have ancient roots.

Then, Kennedy says - and this is important:

[i]Then Kennedy reviews the way in which we, as a society, have come to view sexual privacy as part of liberty:

This is where he reviews international cases, the repealing of many state laws, etc., and states, again, that Court precendent has established sexual conduct as within the meaning of privacy found to be part of the meaning of liberty as stated in the 14th Amendment.

Get it? It is not that we willed privacy into the meaning of liberty, or anything like that. It's that our values have come to include sexual privacy as part of liberty, and this is overwhelmingly supported by case precedent.

I have no doubt that despite this review you still just do not get it but if anyone else was interested, I hope this has been a useful review of the Lawrence decision for them.

Excuse me for the long quote, but here's what follows your last quote:

In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring).

This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277—280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15—16.

In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court’s decision 24 States and the District of Columbia had sodomy laws. 478 U.S., at 192—193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197—198, n. 2 (“The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct”).

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

...

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution–A Firsthand Account 81—84 (1991); R. Posner, Sex and Reason 341—350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11—12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

As I have said before, Kennedy goes into great detail to show that even if anti-sodomy laws were deeply ingrained in this nation and western civilization (as claimed in Bowers), that is not the case today. The laws have have either been repealed or not enforced.

You said "Get it? It is not that we willed privacy into the meaning of liberty, or anything like that. It's that our values have come to include sexual privacy as part of liberty, and this is overwhelmingly supported by case precedent." As FLoW pointed out, this is just a semantic difference. Popular opinion has obviously shaped our values. I'm not sure why you have a hard time grasping this fact.

Moving on, the relevant thing about Lawrence is that in the text itself it lets us know that Kennedy would not consider the Lawrence decision to be controlling precedent over this issue, and that, instead, it will probably fall under Romer.

As i've already stated a few times, I never claimed Lawrence was precedent for gay marriage.

He says in the decision:

Yikes. But that's because this is about privacy. Marriage is not about privacy. And we can see that Kennedy agrees with me on that. So, it'll be about equal protection. Like Romer (which, incidentally is the case where Scalia, in the dissent, argues that the existence of the pink mafia is reason gays should not have protected class status - it's a really horrifying, mean dissent and a must-read for everyone), the law is directed against "a solitary class persons who [are] homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships.”

In Romer, the Court found that the discriminatory law was "born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose, i.e. it was passed because the people who passed it are grossed out by gay people and for no other reason.

And that it precisely what would happen here if the decision is ever appealed. Anyone know anything about this?

ETA: Just to be clear, Raidne does not think Raidne's liberty umbrella extends to gay marriage because marriage is not about privacy. Quite the opposite. This is not what Raidne has argued, and this constant mischaracterization of Raidne's argument is why Raidne thinks Tempra is, more likely than not, an idiot.

Raidne thinks prohibiting gay marriage violates the equal protection clause. Raidne cannot imagine how Raidne could have possibly been more clear about this.

The equal protection argument is not the strongest argument because the plaintiff has to prove that there is no rational basis for the law. Instead, the fundamental rights argument is the stronger argument because it receives strict scrutiny review..

Judge Walker said: "The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right." Judge Walker said that gay marriage is marriage and not a distinct relationship. Because marriage is considered a fundamental right, California needed a compelling state interest to burden the fundamental right.

The fundamental right argument is a much harder obstacle for prop 8 proponents.

As for Romer, the very fact finding process that liberals have been touting as being hard to overrule makes it very easy for Kennedy to limit the ruling to California, if he chooses to affirm the trial court's ruling. Would Kennedy really determine, without extensive fact finding from the 30+ states barring gay marriage, that all the laws are borne out of animosity? Unlikely.

[Tempra]

Raidne,

Thanks for that extensive summary of the case law. Very informative! :)

Tempra,

I'd say the Plaintiffs have already accomplished that in this case.

But perhaps you would argue that the proponents of proposition 8 simply presented their arguments poorly? If that's the case, could you perhaps provide us with a rational basis on which laws banning gay marriage can be justified?

Rational basis review is very easy to meet:

The traditional rational basis test, as applied in cases such as Williamson v Lee Optical, is extremely deferential--some would call it a total abdication of judicial responsibility. Under this traditional test, a state law must be upheld if it (or the classification it contains) is rationally related to any legitimate interest of the state. Moreover, the legitimate interest of the state need not be one that actually motivated legislators to enact the legislation. It is enough if the interest is now advanced and that it is "conceivable." If attorneys for the state lack the creativity to come up with a conceivable interest, some justices are willing to help out and supply one themselves.

What couldn't pass under this rationale? Preservation of scarce resources, for one, should pass quite easily under rational basis review.

In Romer, Colorado tried this very argument. The result? Kennedy ignored it. He ignored virtually every argument without discussion. That's a rather easy way to get around an unfavorable standard of review, but that requires a bit of judicial activism to do so. It is rather hard to predict when the Court will ignore its own law and engage in judicial activism. Law professors have even had to make up the neat little name, "rational basis with bite," to explain otherwise unexplainable decisions such as Romer or Cleburne.

Scalia's dissent may have been "mean," but it was right. Kennedy's opinion was just mean.

[Guest Raidne]

You said "Get it? It is not that we willed privacy into the meaning of liberty, or anything like that. It's that our values have come to include sexual privacy as part of liberty, and this is overwhelmingly supported by case precedent." As FLoW pointed out, this is just a semantic difference. Popular opinion has obviously shaped our values. I'm not sure why you have a hard time grasping this fact.

Ah, okay, finally. You agree with FLOW that looking to the contemporary standards to define the meaning of the term is the same as passing de facto legislation enacting new rights.

So, for example, if a law was passed affecting all phones, and then the Court found that the word "phone" did not include "smartphones" because they determined that people, in practice, only use their phone capabilities about 30% of the time they were using the device, the Court would be impermissibly passing legislation.

Gotcha. Well, this is kind of an issue, right? To avoid it, you'd have to change the process and make it so the Court could certify these questions directly to the legislature for a vote. It's not a bad idea, but it would require an Amendment. Personally, I'm okay with trusting the Court to sort these things out - I believe in the integrity of the institution.

And amendments work both ways - we could always pass an Amendment stating there is NO right to privacy in the Constitution, or that gay marriage will always be illegal (apparently people do think that's necessary since there's been an ever-present effort to do just that).

The equal protection argument is not the strongest argument because the plaintiff has to prove that there is no rational basis for the law. Instead, the fundamental rights argument is the stronger argument because it receives strict scrutiny review..

You are all over the place. Marriage as a fundamental right can be applied to equal protection or due process to raise the level of scrutiny. They're not opposed. It's a kind of argument you can make under either clause.

Be honest: have you taken all your Constitutional Law classes yet?

Would Kennedy really determine, without extensive fact finding from the 30+ states barring gay marriage, that all the laws are borne out of animosity? Unlikely.

You've been asked to state some other reason, besides animus, for wanting to ban gay marriage and have been apparently unable to do so. So has everyone else. The only argument I hear is circular - we can't have gay marriage because it's gay. And Marriage. And marriage isn't gay. So yeah, I think it's looking pretty freaking likely.

Preservation of scarce resources, for one, should pass quite easily under rational basis review.

Wait, is this your example? Preventing gay marriage preserves resources? Tell me that story, because I don't get it.

Oh, I looked up Romer.

For the sane amongst us, please enjoy the hilarity of the following enumerated "legitimate" reasons the state of Colorado put forth to justify it's amendment(ballot initiative, naturally) that preventing the legislature or anyone else from enacting any legislation whatsoever that had the intention of preventing discrimination against gays. Seriously, that's what it did - I'm not kidding. Of course they said it prevented "special laws." You know, the same "special laws" you get to have if you're a racial minority or female.

(1) Preserving other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections

(2) The interest in conserving resources to fight discrimination against other groups.

Therefore, you know, your interest in making sure that gays can be discriminated against in housing, and the interest of only spending money on people that actually matter, i.e. don't screw other dudes.

In Romer, Colorado tried this very argument. The result? Kennedy ignored it. He ignored virtually every argument without discussion.

Oh, he did? To me, it looks like he said:

The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.

I can't help it. I don't have anything else to say either. I guess he could have said that discriminating against groups by determining which discriminated against groups should receive resources that prevent discrimination is clearly discriminatory, and not a legimate government purpose?

I think the majority makes it clear that the state of Colorado managed to pass such a clusterfuck of an Amendment - an Amendment that facially denied equal protection of the law - that it was kind of hard to spend more than a few paragraphs saying why.

Scalia's dissent may have been "mean," but it was right. Kennedy's opinion was just mean.

Oh hell, as long as I have it up, I'll quote from Scalia's dissent:

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm'” homosexu­als, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws...

The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit....

I have to cut in here - you know, assuming they're not fired for being, you know, gay. This is classic Scalia - the amendment makes it so that the City of Denver cannot pass an ordinance making it illegal to fire people for their sexual orientation - honestly, it did. It's as if Alabama voted to prevent anti-discrimination law against black people, and Scalia said, well, that's fine, it's not like it directly orders them to start lynching right now.

Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws...

I just put that in there to show the mean-spiritedness - worrying that laws can't go in place for hate crimes, to discourage people from burning people alive because they are gay, as happened to Matthew Shephard - is, you know, hand-wringing. What an asshole.

And here's the good stuff - in the precise words of Antonin Scalia:

First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct.

And

But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct...

And, I apologize also for the long quote, but here's the pink mafia section:

The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation").

By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities-- Aspen, Boulder, and Denver--had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code §13-98 (1977); Boulder Rev. Municipal Code §§12-1-1 to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV §§28-91 to 28-116 (1991). The phenomenon had even appeared statewide: the Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agency heads to "ensure non discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035 (Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.

This man is a Justice on the Supreme Court. This is the most loathesome opinion I have ever read, and I believe it will go down in history on the same par as "two generations of imbeciles is enough."

Now you all know, specifically, what Tempra is saying is right.

[Lord Mord]

Tempra,

Scalia's dissent may have been "mean," but it was right. Kennedy's opinion was just mean.

I don't know that Scalia was mean -- insofar as he was correct, it was simply machine-precise. For a society peopled by machines, it would be damn near perfect.

I really don't see why legislation regulating sexual mores is subject to nothing more than traditional bias. "Oh, well, we've always felt this way -- really doesn't matter if it's the dumbest or most brainlessly vicious fucking thing since the dawn of time, we've always felt this way about this (or that) sexual act, so in our brainless, hateful, selfish fucking ignorance we will persist, with full force of law and arms, because we're fucktards and because we can." I mean, seriously, how dare any system be so constituted and adopt any pretense of interest in human rights?

[Guest Raidne]

I strenuously object to the idea that Scalia is a bright machine. He's either not particularly bright, or is conscious of the fact that he's using rhetorical tricks to make what appears to be an actual logical argument to the casual observer.

On its bare face, if groups like women and racial minorities can have "special" laws and gays can't, it's discrimination.

And, as I've stated before in this thread, the argument about murderers or whoever else is simple. Let's use pedophiles.

Yes, pedophiles are immutable. They can't help it and they find it very hard to change. Yes, laws against child molestation single out pedophiles. This is true. Hell, let's even say that pedophiles as a group have little political authority and are vulnerable to abuse by the majority. Let's subject laws against them to strict scrutiny. Okay then.

Nevertheless, the state has a compelling interest in preventing sexual abuse of children, and laws preventing sexual abuse of children are, in fact, narrowly tailored to meet that interest.

Fucking duh. Murderers probably lose out way back at immutability, but if you wanted to say laws against murder single out sociopaths or whatever, you'd end up with the same result: state has an interest in preventing murder, law preventing murder meets that interest.

Now, is he either an idiot and incapable of doing this analysis, or does he know all this perfectly well, and he's just an asshole who likes to confuse poor law students that lack critical thinking skills like our Tempra with rhetorical tricks that sound like rational argument, but in fact, are full of so many logical errors and inconsistencies that two pages of text could keep a Philosophy 101 class busy for days?

[Lord Mord]

Raidne,

On its bare face, if groups like women and racial minorities can have "special" laws and gays can't, it's discrimination.

That depends how you define "gays". Scalia does so in terms of behavior, and his point is that the Court has already ruled in the past that states are able to employ tradition-based prejudices in legislating sexual behavior -- an idea he himself seems to find not incompatible with the Constitution.

I find the notion repugnant, and the idea that we should live by precision rules grossly improper and a bit stupid, but insofar as history and our jurisprudential tradition bear him out, I cannot argue that his point is invalid -- certainly not on its face.

Now, is he either an idiot and incapable of doing this analysis, or does he know all this perfectly well, and he's just an asshole who likes to confuse poor law students that lack critical thinking skills like our Tempra with rhetorical tricks that sound like rational argument, but in fact, are full of so many logical errors and inconsistencies that two pages of text could keep a Philosophy 101 class busy for days?

Here's the thing, though: he's taking it that it's not the Federal courts' role to instruct the states in what they're supposed to consider as in their own interests, beyond what is Constitutionally mandated. As much as I detest Originalism, I'm not so arrogant as to say it's just flat Wrong. It's just really, really loathsome and gross, but a person who espouses this philosophy has a point.

How can the will of the people, especially as expressed in their, by necessity most deliberate and cautious body of work, the Constitution, possibly be properly executed, when nine non-elected persons can cancel portions when they want to? I may not like it, but I think I pretty much have to accept that a government as responsive as I wish ours to be requires leaving this pretty massive question unanswered. Scalia, for all his faults, at least has an answer.

It's just that, as I mentioned, I find the answer itself faulty, because it's an answer for machines -- input (x) get (y) answer, every time. A body of law for governing a people should be rather more subtle than that.

[Tempra]

Ah, okay, finally. You agree with FLOW that looking to the contemporary standards to define the meaning of the term is the same as passing de facto legislation enacting new rights.

So, for example, if a law was passed affecting all phones, and then the Court found that the word "phone" did not include "smartphones" because they determined that people, in practice, only use their phone capabilities about 30% of the time they were using the device, the Court would be impermissibly passing legislation.

Gotcha. Well, this is kind of an issue, right? To avoid it, you'd have to change the process and make it so the Court could certify these questions directly to the legislature for a vote. It's not a bad idea, but it would require an Amendment. Personally, I'm okay with trusting the Court to sort these things out - I believe in the integrity of the institution.

And amendments work both ways - we could always pass an Amendment stating there is NO right to privacy in the Constitution, or that gay marriage will always be illegal (apparently people do think that's necessary since there's been an ever-present effort to do just that).

I am not going to go that far. I have been attacked for 15+ pages for stating that the court takes into account the will of the people (sorry). In the case of gay marriage, the court will takes into account public opinion in two ways. First, the court will give deference to the people by applying rational basis review for the equal protection claim (the standard used by judge walker). Second, the court will take into account public opinion when it determines whether gay marriage is a fundamental right, which requires the court to determine whether gay marriage (the liberty interest) is "so rooted in the traditions and conscience of our people as to be ranked as fundamental" Snyder v. Massachusetts, 291 U.S. 97 (1934). It is quite impossible at this point to deny that the court DOES take into account what people think.

Whether the court SHOULD look into popular opinion and the history and traditions of this country is a whole other discussion.

You are all over the place. Marriage as a fundamental right can be applied to equal protection or due process to raise the level of scrutiny. They're not opposed. It's a kind of argument you can make under either clause.

Be honest: have you taken all your Constitutional Law classes yet?

Apparently, Judge Walker and I took some pretty crappy Constitutional law classes, as we both approach the analysis in a similar way: denial of a right is analyzed under the due process clause and discrimination based on status under the equal protection clause.

See here:

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943). Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Carey v Population Services International, 431 US 678, 686 (1977). Because the government defendants declined to advance such arguments, proponents seized the role of asserting the existence of a compelling California interest in Proposition 8.

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents

stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Doc #159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbianswithout any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more thanenshrine in the California Constitution the notion that oppositesex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Strict scrutiny for the fundamental rights claim (due process) and rational basis for the equal protection claim.

Read pages 109 to 135 of his opinion for his due process and equal protection analysis. It reads just as I have stated it. I may be wrong, but I am in good company.

And I am finished with law school.

You've been asked to state some other reason, besides animus, for wanting to ban gay marriage and have been apparently unable to do so. So has everyone else. The only argument I hear is circular - we can't have gay marriage because it's gay. And Marriage. And marriage isn't gay. So yeah, I think it's looking pretty freaking likely.

You must have skipped my response to mormont where I said that I do not believe there are any rational reasons, which is why I have not provided any. To be clear, I do not believe there is any valid reason to ban gay marriage. I do think gay marriage bans ARE constitutional because of the overwhelming deference given to the legislature under rational basis review (the appropriate standard of review, imo).

Wait, is this your example? Preventing gay marriage preserves resources? Tell me that story, because I don't get it.

It doesn't matter what the example is. ANY reason related to a legitimate state interest is enough to survive rational basis review. Preservation of scarce resources is undeniably a legitimate state interest. How does it apply to gay marriage? Well, there are several reasons, beyond love, that gay people want to marry: tax benefits, social security, etc. All of those benefits cost the government money.

Oh, I looked up Romer.

For the sane amongst us, please enjoy the hilarity of the following enumerated "legitimate" reasons the state of Colorado put forth to justify it's amendment(ballot initiative, naturally) that preventing the legislature or anyone else from enacting any legislation whatsoever that had the intention of preventing discrimination against gays. Seriously, that's what it did - I'm not kidding. Of course they said it prevented "special laws." You know, the same "special laws" you get to have if you're a racial minority or female.

Therefore, you know, your interest in making sure that gays can be discriminated against in housing, and the interest of only spending money on people that actually matter, i.e. don't screw other dudes.

Oh, he did? To me, it looks like he said:

I can't help it. I don't have anything else to say either. I guess he could have said that discriminating against groups by determining which discriminated against groups should receive resources that prevent discrimination is clearly discriminatory, and not a legimate government purpose?

I think the majority makes it clear that the state of Colorado managed to pass such a clusterfuck of an Amendment - an Amendment that facially denied equal protection of the law - that it was kind of hard to spend more than a few paragraphs saying why.

What you just quoted was 3 sentences in the second to last paragraph. That is not a discussion of the arguments in favor of the amendment, it is an absolute dismissal..

The Amendment reads as follows:

"No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing." Ibid.

Homosexuals do not receive protected class status under the equal protection clause, yet when a state removes protected class status under state law, all of a sudden they are facially denied equal protection of the law?

Scalia summed up the law nicely:

Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 9. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation.

Oh hell, as long as I have it up, I'll quote from Scalia's dissent:

I have to cut in here - you know, assuming they're not fired for being, you know, gay. This is classic Scalia - the amendment makes it so that the City of Denver cannot pass an ordinance making it illegal to fire people for their sexual orientation - honestly, it did. It's as if Alabama voted to prevent anti-discrimination law against black people, and Scalia said, well, that's fine, it's not like it directly orders them to start lynching right now.

This is rather deceiving:

Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 4. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid.

In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 8. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In Evans v. Romer, 882 P. 2d 1335 (1994), the Colorado court stated:

"t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, §24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, §24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, §28-3-506, 11B C. R. S. (1989); and for any legal, off duty conduct such as smoking tobacco, §24-34-402.5, 10 AC. R. S. (1994 Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti discrimination laws intended to protect gays, lesbians, and bisexuals." Id., at 1346, n. 9 (emphasis added).

The Court utterly fails to distinguish this portion of the Colorado court's opinion. Colorado Rev. Stat. §24-34-402.5 (Supp. 1995), which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import of the Colorado court's conclusion that it is not affected is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death benefit payments to the "life partner" of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored.

[Former Lord of Winterfell]

Ah, this is really a philosophical question. See, I don't presuppose that the word "liberty" had any fixed meaning that everyone knew and understood when the 14th Amendment was passed. For me, it's not a "changing over time" kind of issue. It's simpler than that. It's just like, behold, there is this word "liberty" in the 14th Amendment. What then does this amorphous word "liberty" mean, and what, specifically, are we seeking to guarantee under the umbrella of liberty when we use that word?

And then, we look at what liberty means. I'm a pragmatic person, and I like courts to work hard, so in my book, we should look at (1) what it meant when the bill or amendment or constitution in question was passed based on the meaning of the word at the time as evidenced by relevant historical literature,

Didn't you just say above that can't be known or determined?

(2) the legislative history, to see if the drafters and/or people who voted for or against it talked about what it meant,

(4) what the word conceptually means now.

Because, sometimes, options 1-3 are not going to be very englightening if we're seeking to define "privacy" in, say, the context of electronic communications, or "marriage" as an insitutution that is primarily about love, and not a quasi-business partnership arrangement that is primarily about the ownership and inheritance of property.

Of course, if you don't view "marriage" or "privacy" as some sort of independent Constitutional rights, then there's no need to do that. Electronic communications aren't protected by an amorphous, undefined "privacy" right, but by application of the protections contained in the 4th amendment. Does tapping into someone else's phone lines and listening to their communications constitute a "search"? The so-called "right to privacy" need not be manufactured or invoked to protect those communications.

So, it's not really like that. We don't know what they thought then, and we barely know what they think now. We're just trying to define a word here.

The problem with that approach is that it not only makes actual constitutional rights subject to dissipation at the will of judges, but actually approves of the methodology used to dissipate those rights. If "liberty" is flexible enough to take into account "current views", then why can't that approach be used to shrink, not just expand, what those words actually mean? Using that methodology, a court could argue that the needs of modern society, including increased security we need, mean that "liberty" should be read far more narrowly than they have been in the passed. A floating definition can float both ways, and the people are powerless to protect their rights because any new amendment they pass is subject to redefinition as a matter of policy.

Right-o, great example. How do you know that thermal imaging is a search? To ask what people in the 18 century would think about thermal imaging is pure conjecture, the legislative history doesn't tell us anything, and the legislative intent isn't really all that helpful. All we can ask is what a "search" is, and whether thermal imagining is, you know, like that or not. By modern standards.

There's been tons of stuff written on how you do that analysis under a textualist/originalist approach in various cases and in various articles. You look at the right as it was then understood, and determine what interest was being protected. So in the context of the 4th amendment, what did the warrant requirement for home searches protect? Well, it protected people from the government being able to observe or hear what was going on in that home. Articles/cases/speeches from that time can flesh that out more.

So, does thermal imaging of what is happening inside a home provide information to the government that the government wouldn't have been able to obtain back then without invading your home? Perhaps a decent argument either way, but I'd say yeah. The government of 1783 couldn't have known where you were within your house without a warrant, and the government of 2010 shouldn't be able to do that either.

It's no different in a liberty/privacy concept, it's just that the concept of liberty is so broad that it includes entire other abstract concepts, like privacy, as opposed to a "search," which is pretty much already at its simplest abstract level and can only be broken down into particulars. Liberty, if you will, is like a meta-right. In fact, it's very difficult to give particular examples of liberty - it almost has to be broken down into other abstract concepts.

The same type of analysis can be done with liberty by looking to the liberties that were in existence at the time the Constitution or amendments were enacted. All using "modern" definitions really does is give judges the power to use their own definitions. Or reduce our constitutional protections to whatever definition an opinion poll shows is popular at that time. Some of which you may not like at all.

[Guest Raidne]

That depends how you define "gays". Scalia does so in terms of behavior, and his point is that the Court has already ruled in the past that states are able to employ tradition-based prejudices in legislating sexual behavior -- an idea he himself seems to find not incompatible with the Constitution.

I find the notion repugnant, and the idea that we should live by precision rules grossly improper and a bit stupid, but insofar as history and our jurisprudential tradition bear him out, I cannot argue that his point is invalid -- certainly not on its face.

I'm not sure I follow you here - I think we're talking about two different things. The particular facts in Romer are what makes the reasoning so egregiously wrong, because the issue is an Amendment making it impermissible for local governments to pass laws aimed at preventing discrimination for a particular group of people. Which is facially unequal protection under the law, as it is permissible to pass laws preventing discrimination against any other group.

I don't mean that, say, making sodomy illegal and arguing that it wouldn't violate the equal protection clause is blatantly stupid in the same sense. It's wrong, IMO, but there's an argument to be made, as you say. But the Colorado Amendment and Scalia's dissent on that case is either stupid or disingenuous.

Also, just a side point, the defining "gay" thing is hilarious and only relevant to people who send their kids to please-make-my-son-straight camp. And, let's be real, for discrimination purposes, people aren't following you home to see if you're actually banging other dudes, etc. It's an identity issue. I'm pretty sure this is not at all a confusing issue for gay people.

As much as I detest Originalism, I'm not so arrogant as to say it's just flat Wrong. It's just really, really loathsome and gross, but a person who espouses this philosophy has a point.

Again, I think we have a disconnect. I think looking to what people meant at the time the text was written is one of many valid ways to examine a document. I don't think it's at all loathesome and gross. Why would it be? It's a method. I don't follow you here.

How can the will of the people, especially as expressed in their, by necessity most deliberate and cautious body of work, the Constitution, possibly be properly executed, when nine non-elected persons can cancel portions when they want to? I may not like it, but I think I pretty much have to accept that a government as responsive as I wish ours to be requires leaving this pretty massive question unanswered. Scalia, for all his faults, at least has an answer.

What is it?

Scalia finds things to be unconstitutional just as often as any other Justice.

It's just that, as I mentioned, I find the answer itself faulty, because it's an answer for machines -- input (x) get (y) answer, every time. A body of law for governing a people should be rather more subtle than that.

No, they may say that it works like that - that it's a very formalist way of going about it, but it's not. The law isn't like that. And neither are they. Review Scalia's decisions - you do not input X and get Y every time. The law is a social science - it cannot be simplified to calling balls and strikes and anyone who says it can is either stupid or lying to you. Period. Maybe saying that makes me arrogant, I don't know, but it's my honest opinion.

[Guest Raidne]

Didn't you just say above that can't be known or determined?

Sorry, strictly speaking, what I mean is that the original, historical meaning of a term can't be known or determined better than anything else can be known or determined, and in a lot of cases it's worse. For instance, only the most ardent legal realist would do this, but theoretically you could give a national survey asking people what "liberty" means and come up with an actual answer that's reliably what the majority of people think liberty means. But a historical investigation is just that - historical. You can't ask the people and you can never, ever know for certain what they thought.

And I know there’s a “method” (it was a large piece of this paper I wrote on takings because it turns out the Originalist approach would actually support economic development takings – oops – which I happen to be against, and we covered it at length in my statutory interpretation class, naturally). But by the standards of, say, a historian, it's amateur hour. It’d be interesting to get someome like Galactus to take a look at the historical investigation done by Originalist judges and see what his opinion is of the rigor of their research. It's pretty bogus. Historical research aiming to get at what someone, or more than one someone, thought at the time is really, really complicated stuff. And one of the hardest things about doing historical research is getting rid of your own bias. I believe the prevailing opinion in the field of history is that this cannot actually be done.

So, does thermal imaging of what is happening inside a home provide information to the government that the government wouldn't have been able to obtain back then without invading your home? Perhaps a decent argument either way, but I'd say yeah. The government of 1783 couldn't have known where you were within your house without a warrant, and the government of 2010 shouldn't be able to do that either.

Good example. For me, this is like evolutionary psychology - you can tell a pretty good story either way. I could make a pretty compelling case that for people in the 18th century, it was physical inconvenience of having to let someone in your home that mattered - the violation of your space. As long as you don't know you're being "searched," you're not being inconvenienced and your space isn't being violated. Historically, the issue with searches comes out of trespass – that was the issue in all three cases that historically inspired the 4th Amendment – Wilkes, Entick, and Writs of Assistance.

Furthermore, at the time the 4th Amendment was enacted, there was no such thing as a government police force, and if there was, it would have been a local government force, which in the 18th century would not have been subject to the 4th Amendment at all. Nor, by the way, is there any indication that it was intended to cover criminal investigations. I mean, what the 4th Amendment was for, as shown by those three cases, is to prevent the King’s cronies from ransacking your place and taking all your revolutionary pamphlets. Presumably it did not, say, prevent your neighbors from peering through your windows to see if you had a third nipple and conducted Sabbats at midnight and thereby deciding to burn you as a witch.

To get to the point where a law designed to keep the King from snatching your pamphlets can protect you from thermal imaging technology that can spot your grow-lamps, well, let’s just say there’s a decent amount of expansion of the scope of that right that has to go on. Do you really not think so?

Just to be clear, this is not what I think. I just mean to show that historical interpretations are malleable and can be made to say all kinds of things. That's why, you know, there's still this discipline called history - because it's not like we can just finally nail down what was going on in 13th century France and get on with it already.

Honestly, when I think of thermal imagining, what comes to mind first is Scalia's musings on naked women taking showers. Ew.

Of course, if you don't view "marriage" or "privacy" as some sort of independent Constitutional rights, then there's no need to do that. Electronic communications aren't protected by an amorphous, undefined "privacy" right....

It’s kind of a small point, but they certainly are. There's 4th Amendment search law also, the ECPA, and tort privacy law, but the constitutional privacy right under the 14th Amendment is, for instance, the one that would matter if I, as a federal employee, wanted to challenge the right of my office tech guy to read what I'm writing right now.