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February 07, 2012

Comments

Is there any news story you can't twist into a call for the election of that lame RINO?

ALL the evils you associate with Obama will continue under Romney. ALL. I will make a bet with you right now that if elected, Romney does nothing to stop the liberal agenda on gay marriage, global warming, or unlimited immigration.

It's the 9th Circuit, in general, and Judge Reinhardt, in particular. So the odds of it being overturned are surpassingly high.

By the way, unless I am mistaken, "guys" didn't write the due process clause, but rather a gay - John Bingham.

Correction to the correction - I meant "guy" not "gay." Context-based Freudian slip.

Half Sigma aligns himself with Evangelical proles in condemning gay marriage? That's a shocker. You're too smart to buy the screwball argument that a gay married couple in the neighborhood will destroy your marriage. So what is behind your hostility to gay marriage, or is it a purely legalistic argument that the Equal Protection Clause does not apply to gays?

[HS: The historical purpose of the 14th Amendment is to protect freed slaves and give them the same rights as everyone else. It's not the rule of law for judges to make up whatever they want it to mean because they think it's what the democratic process ought to be doing.]

Orignally intended to protect blacks against the excesses of reconstruction, the 14th has instead become the anti-majoritarian amendment, now precluding everything the majority wants: immigration control, death penalty for minors; profiling at airports; safe public schools; employment testing; traditional marriage.

There's only one candidate in the race whose actions show a deep commitment to the original principles of the Constitution, and his name isn't Romney.

Yup.

Democracy means nothing to these elitists.

If the California legislature isn't Constitutionally required to PASS the law, it can't be unconstitutional for the voters to rescind it.

Funny how democracy and permission to have a culture and norms is available to Libyans and Egyptions but not for Americans.

The problem is that court decisions are not made based on the Constitution, but on previous court decisions. This allows for a lot of "creep" over time.

Oh no, the evils of the 14th Amendment. What we need to do is take an axe to all those incorporation cases so that state government can ignore the Bill of Rights the way the holy Founding Fathers intended.

>>"You're too smart to buy the screwball argument that a gay married couple in the neighborhood will destroy your marriage."


Allowing courts to usurp the powers properly reserved to the people does a lot worse than just destroy my marriage. It that were all it did I'd be a lot less disturbed by this ruling. It destroys the whole idea of America being a country where the people make the laws, where the people rule themselves. It's a direct assault on the core idea of America.

>>"will make a bet with you right now that if elected, Romney does nothing to stop the liberal agenda on gay marriage, global warming, or unlimited immigration.'

You think that Romney is going to appoint liberals to the US Supreme Court? (which is driving the liberal agenda on all these things) I'll be happy to take that bet. How much money do you have to lose?

"Half Sigma aligns himself with Evangelical proles in condemning gay marriage? That's a shocker." - Mark

I'm not religious at all but I feel strongly that the proper way to organize society is between a man and a woman. If gay marriage is legalized polygamous marriage is around the corner. 20% of men having 80% of the sex would become cemented into law.

providing equality to recently freed slaves may have been the original intent but the words actually used mean something.

"Obama will appoint more liberals to the Supreme Court and they will agree that the Constitution requires not only gay marriage, but also requires us to fight global warming and allow unlimited immigration." - Half Sigma


On the flip side a more liberal court would likely overturn NDAA/SOPA/PIPA etc. This is important because when the authorities retroactively criminalize internet "hate speech" it'll be people like us thrown into the gulags so it's a trade off.

Caplan wrote:

"You're too smart to buy the screwball argument that a gay married couple in the neighborhood will destroy your marriage."

A couple of things are true:
(1) Marriage is being stripped of all meaning and cultural norms are being discarded.
(2) The marriage rate among heteros is way, way down in just the last 15 years or so.

(2) means a giant welfare state, which can only be reduced by a restoration of (1)

But also:

Same sex marriage was never about gays first (since most of them aren't even interested when given the chance statistics show), and it is not the reason why the liberal establishment will invest 100% of its political capital there far above and beyond issues that are much more numerically consequential, like abortion.

The reason is they want to use antidiscrimination law eject from the public square institutions, such as churches, that have traditional social mores, and that provide competition to the power of the state. Right now religious institutions (along with lots of secular institutions) are in major partnership with the government on healthcare, education, provision of welfare, adoption and so forth.

The goal of course is a massive expansive of the state, which you should care about because that is a diminishing of all of us as individuals.

This is the reason Marxist regimes for most of the 20th century have made the elimination of the church their first and last priority, while leaving 100 million dead worldwide, 17 holocausts worth. Left wing totalitarianism's biggest hinderance is the church and people of faith, and if the public square is closed to all but secular institutions by force of law, you consciously or not aid the totalitarian impulse of the left.

Gays aren't a protected class, are they? How can he apply the 14th?

The 14th Amendment: pissing off conservatives since 1868.

"Orignally intended to protect blacks against the excesses of reconstruction, the 14th..."

Uh...what "excesses" of reconstruction was the 14th Amendment protecting blacks against?

If the authors of the 14th Amendment wanted it to be more limited in scope they should have written it in more explicitly limited language. I get tired of the argument that it's the job of future generations to respect the crappy lawyering of previous generations, and operate within some mythical mind-reading "intent" rather than the words as written.

In any case, I would not be surprised if this passes the Supreme Court. Though conservative on a lot of issues, Justice Kennedy often rules in favor of things that (in his mind) brings the US in line with other western democracies. I'm not a fan of that logic, usually, but honestly, the arguments against gay marriage are just getting so lame and tired at a time when it's increasingly clear that most Americans really don't care. I'd like to see the end of this non-issue once and for all.

Who gives a crap? I don't see your other fears on the horizon either. I just want Citizens United and The Patriot Act repealed.

HS has been influenced by clarence Thomas and Antonin Scalia vision of what is a constitution (and perhaps by the Federalist society). I totally disagree with them, but i love to listen to them, they are truly intelligent people. Thomas is above the pack with chief justice Roberts. Listening to oral arguments from US supreme court is one of my favourite passtimes, here in Paris.

and it's a pity that Thomas has decided to keep silent ...

Go Mitt!

OT, the New York Times has finally found the one form of immigration they can't bring themselves to actively cheer for and, judging by the one of the article, feel uneasy about - Asian immigrants who pay full freight to our greedy, corrupt, universities and who drive elite whites out of their preferred colleges:

https://www.nytimes.com/2012/02/05/education/international-students-pay-top-dollar-at-us-colleges.html?_r=1

Nationwide, higher education financing has undergone a profound shift in recent years, with many public institutions that used to get most of their financing from state governments now relying on tuition for more than half their budgets. But legislators and taxpayers still feel deep ownership of the state institutions created to serve homegrown students — and worry that something is awry when local high achievers, even valedictorians, are rejected by the campuses they have grown up aspiring to.

“My constituents want a slot for their kid,” said Reuven Carlyle, a Democrat state representative from Seattle. “I hear it at the grocery store every day, and I’ve got four young kids myself, so I get it.

“We are struggling with capacity, access and affordability,” he said. “But international engagement is part of our state’s DNA. We have a special economic and social relationship with China, and I am happy to have so many Chinese students at the university.”

Still, Jim Allen, a counselor at Inglemoor High School in Kenmore, Wash., an affluent suburb north of Seattle, said: “Families are frustrated. There aren’t as many private colleges here as in the East, and a lot of families expect their children to go to U.W.”

Unlike many other state universities, the University of Washington did no overseas recruiting before this academic year, when it staged recruiting tours in several countries. So the rapid growth in international applications — to more than 6,000 this year from 1,541 in 2007, with China by far the largest source — was something of a surprise. Last spring, another surprise was the percentage who accepted offers of admission: 42 percent decided to enroll, up from 35 percent the previous year.

“As best I can make out, it’s just word of mouth,” said Mr. Ballinger, the admissions dean. “We’re well known in China, we’re highly rated on the Shanghai rankings, and we have a lot of contacts.”

Applications from abroad present some special challenges. Because the SAT is not given in mainland China, the university does not require international students to take it. Although it does not pay recruiting agents, Mr. Ballinger said he knew many applicants hired them, so the university does not consider Chinese applicants’ personal essays or recommendations. (Yes, he also knows that some affluent applicants in the United States get extensive help from paid private counselors.)

>>"If the authors of the 14th Amendment wanted it to be more limited in scope they should have written it in more explicitly limited language."


I'd be happy if they had even bothered to get it ratified in a Constitutional fashion! But the two problems go together - the reason why it is such a garbled and incoherent mess is that it WAS rammed through at gunpoint with zero debate.

According to Stats Canada, about 1/6th of same-sex couples were married. 5/6ths were cohabiting.

http://www42.statcan.ca/smr08/smr08_118-eng.htm

I think that most gays/lesbians like the idea of being able to marry than actually marrying. Its more of a societal approval badge than anything else.

IMO, this was a decision that was lead by the result, but IAMNL.

>>"On the flip side a more liberal court would likely overturn NDAA/SOPA/PIPA etc"


Yeah? That's a bit like saying that "a liberal court would be more likely to rule against the government on eminent domain".

In reality in "Kelo" the five liberal justices Stevens, Kennedy, Souter, Ginsburg, and Breyer overruled the conservatives and said that the government can too confiscate your property for any damn reason they like, including to give it to a rich businessman who didn't feel like paying the market rate for it.

HS as a resident of NYC, I'm surprised you're against Proposition 8. Why shouldn't gay couples be allowed to marry and gain the same tax treatments as a stable tax payer?

I would rather have laws banning out of wedlock births, than having gay couples adopting and providing a stable new age two parent nuclear family home. The government sponsored PC liberal education machine will provide positive indoctrination of children into accepting that having two fathers or two mothers are perfectly normal and isn't an acceptable cause for bullying, so what's the harm?

When the government gets out of the business of rewarding people for being married with tax breaks and for having kids, then you can expect that individuals who are discrimated against by not being able to get these breaks to fight for them. This isn't about marriage, this is about benefits, taxes and insurance.

No state has any law preventing homosexuals from getting married. It is not the fault of the state that marriage does not suit most homosexuals because they are not generally attracted to the opposite sex.

There is no discrimination.

The state did not create marriage, it cannot decree it to be something else. It can only pass laws requiring us to pretend otherwise.

No, this isn't a "religious" point of view.

If EVERYONE has the SAME right to marry someone of the opposite sex and NO ONE has the right to marry someone of the same sex THEN there is NO 14th amendment violation!!!!!!!!!!!!!!

I think large scale, out of control Mexican immigration is a bigger threat to our nation and our culture than gay marriage, but no one listens to me. Gay men who want to marry are what, 1% - 2% of the population? Maybe not even that much. OTOH, in 50 years the percentage of the population that is Hispanic has gone from 3% to 17%, headed for 25% Real Soon Now. Do that, and encourage that same population to have an antagonistic view toward the host culture...what could possibly go wrong?

That said, at the risk of sounding like Whiskey, it's single women who are driving the gay marriage push in the Democratic party. Yes, gays are influential in the Democratic party, but there are not enough of them who vote to explain the big deal this has become, so naturally one is inclined to look for the voting bloc that does support the notion, and has some electoral heft. Which leads to the women.

As for the GOP, they're going to argue that Hispanics will "save" the GOP by lining up with them against gay marriage - they're "natural conservatives" you know. Bull. If Hispanics were in point of fact social conservatives and there was a shred of evidence that they voted that way, there would be a very vocal faction in the Democratic party howling to close the border. But they don't vote that way, so, no howling.

who cares one way or the other about gay marriage. marriage as an institution was desecrated long ago, all put into motion by reagan no less when he made california the first state to allow no-fault divorce. the decidedly conservative citizen's united decision is a far shittier, far more consequential decision than anything a court could come up with regards to gay marriage or global warming (granted a liberal could come up with something equally shitty as citizens united with regard to immigration).

I favor gay marriage, but I totally agree that this was an awful decision. "Equal protection of the laws" simply means that whatever laws are passed must apply to everybody. If there is a law saying that you can't marry people of your own gender, the 14th Amendment just means that the government has to enforce the law against everybody.

"Equal protection of the laws" does not mean that laws are not allowed to distinguish between people. Otherwise 5-year-olds could drive and 60-year-olds would not be allowed to drop out of high school.

"As for the GOP, they're going to argue that Hispanics will "save" the GOP by lining up with them against gay marriage - they're "natural conservatives" you know."

I suspect this is rationalization, of the Sweet Lemons variety:

http://www.urbandictionary.com/define.php?term=sweet%20lemons

or, as one Republican (Claytie Williams) said about rape "If it's inevitable, just relax and enjoy it"

Mitt Romney will appoint conservative judges for one reason: the Republican base will completely abandon him ( and his hopes for re-election) if he doesn't.

Plus, we all know, I hope, that liberal judges don't follow the Constitution, as Ginsburg recently admitted. They use the court to create their own social engineering, and they then find a random part of the Constitution to back up their decision. They always know their ruling before the case even begins.

The takeover by the left of the law schools and judgeships is the most underreported failure by conservatives in this country.

Joe's analysis is quite spot on, and I'd just add that it's important to realize the extent to which gay-bashing is used by the Republican Party as a cover for all manner of crimes against conservatism.

The easiest thing in religion is to demonize a sin you'll never commit, and the easiest thing in democratic politics is to prioritize a policy that demands the smallest sacrifice from the least number of people.

There is a misunderstanding here, the question is not if gay people should have the right to marry, but if the constitution tell people that they don't have the right to exclude people from marryng. It doesn't prevent people from going to congress and pass a law allowing them to marry.

A remaining question is, the same originalist could change their talking in that case and say, the constitution ban you from doing that (passing a law allowing gay marriage). In that case, i suppose Scalia would be inconsistent, but Thomas (despite his wife tea party implication), would rather consider the law, constitution, adhering strictly to it's conservative stance (as it did with state law relative to drugs in California).

Then , this averall position (originalist, strict definition of constitution principles) is, despite it's external coherence, extremely fragile if you consider the judge office of interpreting the law in a wider context. But it's to complex to develop this matter here ....

"You think that Romney is going to appoint liberals to the US Supreme Court? (which is driving the liberal agenda on all these things) I'll be happy to take that bet. How much money do you have to lose?"

First we have to agree on the definition of "liberal". I would certainly be willing to bet he'd appoint someone like Souter or Stevens. But more importantly, Supreme Court appointments are only a small part of what Romney has to do if he wants to thwart the liberal agenda on gay marriage, global warming, or unlimited immigration. What he mainly has to do is purge the bureaucracy of liberals, and frankly I don't see him doing that.

"If the authors of the 14th Amendment wanted it to be more limited in scope they should have written it in more explicitly limited language."

Yes, they should have known that insane liberals a century and a half later would twist their words out of all recognition! Damn you, stupid 19th century politicians, how could you not have foreseen the lunatic agenda of the 21st century and written ironclad, loophole-free language to prevent it?

"I get tired of the argument that it's the job of future generations to respect the crappy lawyering of previous generations,"

It is crappy lawyering to fail to prevent something utterly unimaginable to you that's going to happen 150 years in the future?

I never thought things would be as nuts as they are now even 20 years ago.

If the intention of 14th amendment was so narrow in focus as HS contends then it would have been written in narrow terms to only protect freed slaves. Of course the intention was much more broad: to provide equality for all, which is why it was written in broad terms.

It is entirely appropriate to apply to gays and there is little doubt that SCOTUS will agree if they take up prop 8.

Look at all these LIEbertarians coming out of the woodwork to defend gay marriage.

[i]This isn't about marriage, this is about benefits, taxes and insurance.[/i]

You're dumb. Only a small number of homosexuals get married in states where it's allowed, so it's not about those things at all. As other people have pointed out gay marriage is just another weapon in the war against the traditional Western society. If gay marriage is protected under the Constitution then so is every other kind of marriage.

A few more comments.

(1) The legal reasoning is that California has no rational basis for endorsing civil unions but denying to gays the title of "marriage."

(2) Since gays are not a protected class, analysis of laws affecting gays is under rational basis review (or rational basis "with bite," depending on how far we stretch Romer v. Evans)

(3) The Court will merrily overturn this precedent, since it misapplies rational basis review. Under rational basis, the legislature doesn't even need a reason to make a distinction. There just has to be some possible reason that somebody later can dream up.

(4) But, most likely, Judge Reinhardt is just buying time. That's why he crafted a narrow, but not a broad, holding. On remand, he might strike down the law again via a different rationale.

In short: welcome to America.

>>"The legal reasoning is that California has no rational basis for endorsing civil unions but denying to gays the title of "marriage.""

There is nothing legal about the "rational basis" doctrine which the courts have concocted out of thin air. Nothing in the Constitution grants judges the power to strike down laws on the grounds that judges don't think that they are "rational".

>"First we have to agree on the definition of "liberal". I would certainly be willing to bet he'd appoint someone like Souter or Stevens."

Yeah, yeah. I asked you how much? $10,000? $20,000?

I guess the question is, how much can you afford to lose?

>>"If the intention of 14th amendment was so narrow in focus as HS contends then it would have been written in narrow terms to only protect freed slaves. Of course the intention was much more broad: to provide equality for all"


"Equal protection of the laws" does not translate to "equal outcomes for all" or "equality for all". It simply means what whatever the law is, it applies to everyone equally.

The fact that current marriage law does not allow you to marry your golf clubs is not a violation of "equal protection of the laws", because the same law applies to everyone, not just to you.

>"I think large scale, out of control Mexican immigration is a bigger threat to our nation and our culture than gay marriage, but no one listens to me."


I think that allowing judges to make the law is a bigger threat to our nation than anything else.

Out of control Mexican immigration and "gay marriage" are merely symptoms of this larger and much more dangerous problem. If the American people decided that they want gay marriage, I'd be fine with that.

All of you people shrugging your shoulders with indifference at the thought of a court created "right" to gay marriage - what will you say if/when the courts decide that there is a "right" to government healthcare and order the legislature to pay for it?

"gay-bashing is used by the Republican Party"

Nonsense. Did the Republican Party conspire with the the lefties to attack on this front so they could "defend" it? No. Conservatism is defensive by nature and does not get to pick its battles.

What annoys me about the gay marriage issue is that it is more about societal approval or disapproval than constitutionality.

Protip: The US government isn't a bludgeon to impose your entire worldview on society. If you want to keep gays out of marriage, keep it out of government. If you want gays in marriage, keep it out of government. No government-greased slippery slopes to polygamy or theocracy required.

There, America. Your retarded bullshit debate is solved. Your welcome.

The thing which worries me about gay marriage is that the norms surrounding gay long-term relationships will be imported into the concept of marriage.

http://inductivist.blogspot.com/2010/07/gay-couples-teach-us-that-open.html

http://inductivist.blogspot.com/2010/02/gay-couple-promiscuity.html

“In a study of 566 gay couples, only 45 percent had even made the promise to be monogamous.The findings are so essential to the welfare of American society, the NIH forked out 3.5 million additional dollars to continue the study for five more years.

And these coupled gay men generate catchy memes for the rest of us. Dean Allemang, who just started a new relationship, dispensed this gem: “I don’t own my lover, and I don’t own his body,” he said. “I think it’s weird to ask someone you love to give up that part of their life. I would never do it.” ”

I don’t know many men who would sign up to an institution where the partners are expected/morally obliged to be emotionally faithful but not sexually faithful. It is much easier for women to get casual sex than men, so any man signing himself up to that deal would be signing himself up for cuckoldry and cuckoldry is the absolute worst thing that can happen to a man pursuing a long-term mating strategy, and it is the evolved moral norms surrounding the long-term mating strategy which marriage as a cultural institution is/was developed around/for.

Of course, if people became more knowledgeable about evo-bio/evo-psych and instead started calling marriage essentially what it is, the social-codification of the long-term mating strategy in humans, then this concern wouldn’t really matter. (no worrying about importing norms anti-thetical to the reproductive interests of one party in the relationship and subsequently which disincentivises the pursuit of the strategy from that party as its definition is strictly evo-bio/evo-psych.)

Also, the easiest way to get young men to avoid something is to make it seem ‘gay’.

"Yeah, yeah. I asked you how much? $10,000? $20,000?

I guess the question is, how much can you afford to lose?"

I'm not gonna lose that bet, so whatever you want to bet is fine with me.

Most homos argue for "separation of church and state". And marriage is a religious rite. Therefore, the obvious position for homos would be to get the government out of the marriage business altogether. Rather than arguing for "gay marriage" they should be arguing that the government doesn't have a right to regulate ANYONE'S marriage. That would be morally consistent and I could support that. But they won't argue for that. Because "gay marriage" isn't about "rights" because they already have the legal right to do pretty much anything they want. They just want the government to endorse it. It's about forcing others to approve their behavior. And that's an abuse of government.

"If you want to keep gays out of marriage, keep it out of government."


To expect there to be no coupling at all between government and non-government institutions is a libertarian fantasy.

Good news is that none of that is necessary here. Gays are allowed to marry if they wish.

No discrimination.

The expectation that the government can re-order nature so that misfits don't have to make hard choices is a lefty fantasy.

It's not about the day-to-day facts/statistic/problems of gay marriage. It's about how the judiciary is undermining the democratic process. Decisions like these rob individual states of the ability to decide for themselves whether they want to tolerate those impacts or not.

I don't care one way or the other about the original framers of the amendment rolling over in their graves, because I'm more of a textualist than an originalist, although the two views cross paths in many ways.

The problem here is that courts have laid out a doctrine for interpreting the amendment, and they focus their attention on analogical historical relationships. Perhaps you can carve out respect for parent/children, married couples, and maybe---MAYBE---even intimate relations between two people. But gay marriage is so far removed from tradition and history---the very things that the court supposedly looks to in determining whether or not a substantive right is at play and stricter scrutiny applies---that court action in this direction just adds more confusion to the doctrine and undermines its legitimacy.

'The fact that current marriage law does not allow you to marry your golf clubs is not a violation of "equal protection of the laws", because the same law applies to everyone, not just to you.'

The problem with that argument is that the court already rejected one similar to it in the context of interracial marriage.

The idea that courts think they have the courts think they should redefine for us something as basic as marriage is scary.

The idea so many yearn for this sort of omnipotent, omniscient, benevolent dictatorship is understandable. Trouble is humans can never measure up. You'll have to look elsewhere for your god.

"To expect there to be no coupling at all between government and non-government institutions is a libertarian fantasy.

Good news is that none of that is necessary here. Gays are allowed to marry if they wish.

No discrimination.

The expectation that the government can re-order nature so that misfits don't have to make hard choices is a lefty fantasy."

-

Except there is discrimination because as it stands marriage is not just a social institution, but a legal status with benefits.

The government doesn't need to approve or disapprove of marriages like an overbearing parent. They need to get out of marriage entirely, except when there are consent issues. It has nothing to do with 'reordering' nature but unnecessary governmental involvement. Most social norms can be left up to individuals and communities.

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