Author Topic: Justice Antony Kennedy retiring  (Read 9033 times)

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #200 on: July 05, 2018, 12:52:55 PM »
I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.
  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
  I'm not ignoring this.  I'm waiting for somebody to explain why it matters if they are doing something other than just deciding what they think the result should be and then coming up with a justificaiton after the fact. 

Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
  The 16th amendment authorizes an income tax; it doesn't specifically authorize a progressive income tax. 

When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So far you've made two cases for why denying same sex marriage is constitutional:

1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.

I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
  I will cop to not being able to get on people's level sometime.  But I have reread my posts and you coming up with #2 is not on me. 


Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #201 on: July 05, 2018, 01:02:01 PM »

Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.

I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?

swampwiz

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Re: Justice Antony Kennedy retiring
« Reply #202 on: July 05, 2018, 01:03:09 PM »
I see no silver lining and no way of stopping this.

A Democratic President expands the Court.

It seems unlikely but millenials outnumber boomers and boomers are dying. When the court is way out-of-sync with the populace, the populace makes the court fit.

Only after Congress and the president amend 28 U. S. C. §1

Quote
The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

(June 25, 1948, ch. 646, 62 Stat. 869.)

When Garland was being denied confirmation, I considered the scenario in which only when the POTUS & Senate control were of the same party would new justices be added - with the result that the Court would dwindle in size until the next time when such unitary control were to happen again.  It seems that once the number drops to 5, there is no quorum, and thus no Court.

Of course, this law will be updated to be 11 (or 13, etc.).

FIPurpose

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Re: Justice Antony Kennedy retiring
« Reply #203 on: July 05, 2018, 01:41:17 PM »
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So you believe that there is no equal treatment for women under the constitution?

FIPurpose

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Re: Justice Antony Kennedy retiring
« Reply #204 on: July 05, 2018, 01:48:30 PM »
And do you believe that Brown v Board was a bad interpretation?

GuitarStv

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Re: Justice Antony Kennedy retiring
« Reply #205 on: July 05, 2018, 02:11:28 PM »
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So you believe that there is no equal treatment for women under the constitution?

Women are explicitly allowed to vote, so have equal treatment in that area.  That's it though.

I mean, unless you believe that the equal protection clause should apply to more than just race.  Which the Supreme Court did in the 70s Reed v. Reed case.

Kris

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Re: Justice Antony Kennedy retiring
« Reply #206 on: July 05, 2018, 03:06:22 PM »

Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.

I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?

https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872

robartsd

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Re: Justice Antony Kennedy retiring
« Reply #207 on: July 06, 2018, 08:37:36 AM »
Women are explicitly allowed to vote, so have equal treatment in that area.  That's it though.

I mean, unless you believe that the equal protection clause should apply to more than just race.  Which the Supreme Court did in the 70s Reed v. Reed case.
The 19th amendment granted all women the right to vote in 1920. This indicates that the equal protection clause of the 14th amendment was not used to protect against laws that differentiated between citizens based on sex. In light of the 19th amendment, an originalist view of the 14th amendment probably ought to hold that the equal protection clause is only intended to prevent racial discrimination. Of course a textualist view can easily interpret the 14th amendment as providing protection against discrimination based on other characteristics as well as race since race is only part of the historical context of the amendment not the text.

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #208 on: July 06, 2018, 08:55:26 AM »
Women are explicitly allowed to vote, so have equal treatment in that area.  That's it though.

I mean, unless you believe that the equal protection clause should apply to more than just race.  Which the Supreme Court did in the 70s Reed v. Reed case.
The 19th amendment granted all women the right to vote in 1920. This indicates that the equal protection clause of the 14th amendment was not used to protect against laws that differentiated between citizens based on sex. In light of the 19th amendment, an originalist view of the 14th amendment probably ought to hold that the equal protection clause is only intended to prevent racial discrimination. Of course a textualist view can easily interpret the 14th amendment as providing protection against discrimination based on other characteristics as well as race since race is only part of the historical context of the amendment not the text.

So you've been arguing that the 14th obviously can't extend to protect other classes because it was written for a specific purpose, and that since we had to ratify the 19th, obviously an idea like the 19th amendment is not covered in the 14th so you can't extend the 14th to include things like homosexual marriages.

Except the 19th was written not because the 14th was deficient, but because our congressmen were deficient. We can obviously see that things such as Japanese Internment are obvious violations of the 14th amendment, but they still happen anyways. The original authors' purpose can and should be bigger than simply the original purpose of their writing.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #209 on: July 06, 2018, 10:44:30 AM »

Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.

I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?

https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872

So y ou're answer is that you are pulling things out of your ass?  Or that you're not good at reading comprehension?

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #210 on: July 06, 2018, 10:49:13 AM »
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So you believe that there is no equal treatment for women under the constitution?
  I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking.  For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons). 


Kris

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Re: Justice Antony Kennedy retiring
« Reply #211 on: July 06, 2018, 10:49:42 AM »

Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.

I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?

https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872

So y ou're answer is that you are pulling things out of your ass?  Or that you're not good at reading comprehension?

Sorry, dude, but when you actually write things like "With a homosexual customer, lots of people identify as different things through their life, so arguably it's not who that customer is he's discriminating against"... well, it's pretty hard to not comprehend that you're considering homosexuality as something you can sort of put on or take off as your moods change.

They're your words. At least stand by them. Personally, I find them pretty gross. 


Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #212 on: July 06, 2018, 11:00:15 AM »

Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.

I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?

https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872

So y ou're answer is that you are pulling things out of your ass?  Or that you're not good at reading comprehension?

Sorry, dude, but when you actually write things like "With a homosexual customer, lots of people identify as different things through their life, so arguably it's not who that customer is he's discriminating against"... well, it's pretty hard to not comprehend that you're considering homosexuality as something you can sort of put on or take off as your moods change.
  Not withstanding the fact that I was talking about somebody else's argument, the fact that people identify as different things doesn't say anything regarding whether they choose their sexuality or not. 



They're your words. At least stand by them. Personally, I find them pretty gross.

I think it's pretty gross that you think there is something wrong with some people having a changing view of their sexuality over time.  Why do you think you should get to criticize people who are attracted to same sex people and opposite sex people at different times in their life?  Or that they are being somehow disingenuous or hypocritical or whatever it is that you think is so wrong about it?

Kris

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Re: Justice Antony Kennedy retiring
« Reply #213 on: July 06, 2018, 11:07:33 AM »

Jrr85 has demonstrated in the past a fair amount of uncertainty about whether homosexuality is a choice.

I'm sure you can provide a cite where I've weighed in one way or another and you are not just pulling things out of your ass?

https://forum.mrmoneymustache.com/off-topic/patronizing-businesses-who's-owners-hold-different-beliefs/msg2028872/#msg2028872

So y ou're answer is that you are pulling things out of your ass?  Or that you're not good at reading comprehension?

Sorry, dude, but when you actually write things like "With a homosexual customer, lots of people identify as different things through their life, so arguably it's not who that customer is he's discriminating against"... well, it's pretty hard to not comprehend that you're considering homosexuality as something you can sort of put on or take off as your moods change.
  Not withstanding the fact that I was talking about somebody else's argument, the fact that people identify as different things doesn't say anything regarding whether they choose their sexuality or not. 



They're your words. At least stand by them. Personally, I find them pretty gross.

I think it's pretty gross that you think there is something wrong with some people having a changing view of their sexuality over time.  Why do you think you should get to criticize people who are attracted to same sex people and opposite sex people at different times in their life?  Or that they are being somehow disingenuous or hypocritical or whatever it is that you think is so wrong about it?

Thanks, man. You're just proving my point.

FIPurpose

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Re: Justice Antony Kennedy retiring
« Reply #214 on: July 06, 2018, 11:13:12 AM »
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So you believe that there is no equal treatment for women under the constitution?
  I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking.  For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).

Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?

Dabnasty

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Re: Justice Antony Kennedy retiring
« Reply #215 on: July 06, 2018, 12:23:34 PM »
I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.
  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
 
I'm not ignoring this.  I'm waiting for somebody to explain why it matters if they are doing something other than just deciding what they think the result should be and then coming up with a justificaiton after the fact. 

It matters because you're trying to use an analogy to justify something but the thing being presented as analogous has this glaring difference.

Quote
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
  The 16th amendment authorizes an income tax; it doesn't specifically authorize a progressive income tax. 

When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 

No, but that wasn't my point. You're right, religion is protected from discrimination by a separate clause and therefore is a poor analogy here. just like taxation.

Quote

So far you've made two cases for why denying same sex marriage is constitutional:

1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.

I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
  I will cop to not being able to get on people's level sometime.  But I have reread my posts and you coming up with #2 is not on me.
I'm not saying that you believe either of these two things, but rather that your arguments depend on them. Why are you using progressive taxation as a defense of unequal laws for homo and heterosexuals?

To clarify, progressive taxation is discrimination. We've determined that it is acceptable discrimination and I would agree with that. But if #2 is not the argument you're making, then please explain what was you're point in bringing up progressive taxation?

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #216 on: July 06, 2018, 06:40:57 PM »
https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/

It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.


Kris

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Re: Justice Antony Kennedy retiring
« Reply #218 on: July 06, 2018, 08:00:53 PM »
https://www.washingtonpost.com/opinions/with-judicial-nominees-democrats-have-only-themselves-to-blame/2018/07/05/2225c65c-8067-11e8-b660-4d0f9f0351f1_story.html?noredirect=on

Lol.

Yeah. McConnell’s blatant refusal to have hearings for a sitting president’s nominee doesn’t matter at all.

Also... Obama packing the court with liberal judges? Seriously? He proposed people, as is his right. They got in. That’s how it works.

FFS.
« Last Edit: July 06, 2018, 08:04:38 PM by Kris »

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #219 on: July 06, 2018, 08:04:19 PM »
https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/

It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.

There are so many holes in that editorial hit piece that it might as well be considered Swiss cheese.

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #220 on: July 07, 2018, 12:08:39 AM »
https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/

It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.

There are so many holes in that editorial hit piece that it might as well be considered Swiss cheese.


https://mobile.nytimes.com/2018/06/30/us/politics/first-amendment-conservatives-supreme-court.html

The title is "How Conservatives Weaponized the first amendment".

It does seem that conservative view points are increasingly the ones being censored. And that the attitude on the left is moving away from first amendment absolutism.

But why was the other one a hit piece?

DarkandStormy

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Re: Justice Antony Kennedy retiring
« Reply #221 on: July 10, 2018, 09:45:34 AM »
So Trump nominates for SCOTUS a judge who believes the President should be above the law while in office.   Hmmm.

jim555

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Re: Justice Antony Kennedy retiring
« Reply #222 on: July 10, 2018, 11:40:46 AM »
So Trump nominates for SCOTUS a judge who believes the President should be above the law while in office.   Hmmm.
When he saw that he said to himself "we have a winner".

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #223 on: July 10, 2018, 11:56:25 AM »
I'm not looking for a hypotehtical.  The oberfell decision was an obvious overreach, people just agree with the result.  Again, what you are calling "using common sense" is just legislating from the bench.  "It's ok for the supreme court to legislate from the bench because they are not going to do anything crazy, they're just going to use common sense".  A lot of people will think it's common sense that not only does the constitution not protect abortions, the 14th amendment actually prohibits abortions nation wide because allowing a baby to be killed off is not affording it the protection of the law.  it's a bad idea to take questions like that out of the normal political process.   

You keep saying this, but that doesn't make it true.

Rights were previously granted to married straight couples that were denied to gay couples.  The supreme court decided that this was a violation of the 14th amendment.  That's not "legislation from the bench", it's a judgement made based on original intent of the constitution.  That's not overreach.

I mean, you could make the argument that they should have made it illegal for all straight couples to receive marriage benefits . . . but that's not what you appear to be arguing.
  It is overreach if you accept some form of originalism as the right approach.  You can certainly argue that originalism is not the right approach.  What I am pointing out is that people should consider whether they will be happy with whatever approach they think is the right one (which my impression is that most people just think it justices should just be results focused; e.g., it's bad to not recognize same sex marriages, therefore they should rule that same sex marriages must be recognized) if the court is controlled by people they disagree with politically. 

If their answer is I won't be, but that's just the political process and the way to protect against that is to win presidential and senatorial elections, that's at least a logically consistent and logically defensible position.  But those people shouldn't be complaining about Garland not getting a vote.  That's just politics if we are explicitly accepting that judges not only are political actors but should be.

The 14th Amendment clearly states that all people are to be granted equal protection of the laws.  Gay people were not being granted equal protection.  That's about as originalist as you can get. 

To argue against gay people having the same rights as straight people you need to pre-assume that marriage for some reason is only between a man and a woman.  That's not original to the constitution.
  To argue that anything other than a head tax is fair requires you to assume that people can be differentiated based on income.  That's not original to the constitution.

OK?  I mean, that's a nice red herring and all, but we weren't talking about a head tax.  We were talking about originalism on the supreme court and the Oberfell decision . . . specifically, you claimed that it was an example of "legislating from the bench".  I pointed out that this decision is entirely keeping with the original intent of the constitution - and therefore is originalist . . . certainly not an example of "legislating from the bench" at all.

It's not a red herring.  I'm trying to get you to understand that you are reasoning from your conclusion by pointing to an area where you are not so emotionally invested, or are even emotionally invested in teh opposite position than what I state.  Granted I should have said flat tax instead of head tax since the constitution authorizes the collection of an income tax. 
Regarding the tax analogy, it's been stated several times that these cases are not the same. In the case of taxes, people are taxed differently based on their income which is something they control. In the case of same sex marriage people were given different rights based on their sexual orientation which is something they do not control.

How do you reconcile this to think that it is still an apt analogy?

It's been stated they are not the same without any justification of why they are not the same.   SO they can choose their income (or at least choose to drop it).  Why do you think it matters from a constitutional perspective?  People can choose their religion.  Doesn't mean you can discriminate based on choice of religion.
Multiple people have given justification of why they are not the same. If you disagree with that justification, that's fine, but don't say it hasn't been given.

I'm no longer sure if you're arguing that denying same sex marriage is constitutional or if you're arguing that a progressive tax is unconstitutional...

You are not understanding the argument.  People have not given a justification for why they are making some distinctions and not others.  The point of the progressive tax is that they cannot (or at least have not) made an argument for why equal protection mandates recognition of same sex marriages but does not prohibit excessive tax burdens on people who earn more.  They just think they should be different.  I don't disagree, but ideally we would not have a high court that just votes on their policy preferences. 

I would like the result if the Supreme Court mandated recognition of same sex marriages and forced at least some flattening of our tax code.  But I don't want the supreme court to do either because it is corrosive to our society and politics to have them acting as legislators.
Yes, we have. One is part of someone's being, out of their control. The other is within their control. Why are you ignoring this?
 
I'm not ignoring this.  I'm waiting for somebody to explain why it matters if they are doing something other than just deciding what they think the result should be and then coming up with a justificaiton after the fact. 

It matters because you're trying to use an analogy to justify something but the thing being presented as analogous has this glaring difference.

Quote
Also, as was just mentioned, the 16th amendment is why the use of progressive taxes has been upheld in multiple supreme court decisions.
  The 16th amendment authorizes an income tax; it doesn't specifically authorize a progressive income tax. 

When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 

No, but that wasn't my point. You're right, religion is protected from discrimination by a separate clause and therefore is a poor analogy here. just like taxation.

Quote

So far you've made two cases for why denying same sex marriage is constitutional:

1) It's not discrimination because gay people have equal rights. They can marry anyone of the opposite sex they want.
2) It's ok to discriminate based on sexual orientation because it's ok to discriminate based on income.

I don't think you are going to convince anyone of #2 at this point. But if #1 is true, you don't need #2 anyway. Might I suggest you stick to #1?
  I will cop to not being able to get on people's level sometime.  But I have reread my posts and you coming up with #2 is not on me.
I'm not saying that you believe either of these two things, but rather that your arguments depend on them. Why are you using progressive taxation as a defense of unequal laws for homo and heterosexuals?

To clarify, progressive taxation is discrimination. We've determined that it is acceptable discrimination and I would agree with that. But if #2 is not the argument you're making, then please explain what was you're point in bringing up progressive taxation?

The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause."  The government permissibly makes distinctions all the time.  I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments.  Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution.  But apparently even more people can't even tell the difference between the two approaches. 

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #224 on: July 10, 2018, 12:01:21 PM »
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So you believe that there is no equal treatment for women under the constitution?
  I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking.  For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).

Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?

I did not say that the 14th amendment should be so restrictive that it doesn't even include religion.  I said I was not aware of a case where it had been applied to religion.  And I have not made any exceptions for sex.  I am pointing out instances where the equal protection clause does not prohibit distinctions based on sex.  I haven't done the research to know how the 14th amendment does and does not apply to distinctions based on sex.  That's the entire point.  It's not as easy as saying (or it shouldn't be as easy as saying if the courts are going to actually act as judges), "I think this is the right/good result, so this is what the constitution must mean." 

FIPurpose

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Re: Justice Antony Kennedy retiring
« Reply #225 on: July 10, 2018, 12:25:00 PM »
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So you believe that there is no equal treatment for women under the constitution?
  I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking.  For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).

Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?

I did not say that the 14th amendment should be so restrictive that it doesn't even include religion.  I said I was not aware of a case where it had been applied to religion.  And I have not made any exceptions for sex.  I am pointing out instances where the equal protection clause does not prohibit distinctions based on sex.  I haven't done the research to know how the 14th amendment does and does not apply to distinctions based on sex.  That's the entire point.  It's not as easy as saying (or it shouldn't be as easy as saying if the courts are going to actually act as judges), "I think this is the right/good result, so this is what the constitution must mean."

The whole reason we've gone down this rabbit hole is because you believe the liberal justices made a decision on Obergfell based on nothing more than adding additional meaning to the 14th amendment.

I have to ask if you've read Kennedy's paper on that case. He certainly makes an emotional appeal in it, but has a lot of legal precedent and reasoning in it as well. Unless you have something that you personally disagree with in Kennedy's essay, it sounds like you just don't want to read or understand the constitutional reasons for marriage equality.

RangerOne

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Re: Justice Antony Kennedy retiring
« Reply #226 on: July 10, 2018, 04:33:45 PM »
https://quillette.com/2018/07/04/the-new-york-times-comes-out-against-free-speech/

It appears that Free Speech is increasingly a conservative viewpoint. So a more conservative court may be a blessing in disguise.

I don't know if that is true. But I agree with the decision to not force a religious org to provide information they don't believe in. That was the wrong approach.

I think the right approach clearly was to force them to advertise their guidance as being based in religion not medicine. Organizations dealing with matters of public health should never be allowed to masquerade as medical advice.

It is a clear effort to suppress free speech when the right tries to blur the lines of medical advice and religious advice by drowning out the advice of a non religious medical clinic with their message.

To attempt to trick or force non-religious people to hear their advice can range from an innocent plea to out right harassment and  potentially life threatening ignorant advice.

RangerOne

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Re: Justice Antony Kennedy retiring
« Reply #227 on: July 10, 2018, 04:44:53 PM »
It is really just hilarious how transparent an asshole this President is. Pick the one nominee who thinks its wrong to indict a sitting president.

If anything, this president has shown us this country could run without a president. So you can't really harm the country by over stressing a president.

The reality is even if a Republican who was a decent person won this election we would still be getting f'ed with another conservative justice if you are liberal.

Odds we will still see yet another appointment under Trump. So some states will have to deal with some back ass-wards religious laws for the next few decades. I guess you have to make people feel some pain to get them to vote against people trying to harm them.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #228 on: July 11, 2018, 06:03:17 AM »
When you compared same sex marriage to religion, you weakened your argument because the constitution does protect from religious discrimination, even though it is a choice (I might actually debate whether religion is a choice, but that's not relevant here). In fact, based on the argument you're using, it's ok to discriminate based on race, religion, or anything else. I can use the same argument, why is it ok to discriminate based on income but not race? hmmm, I guess they both must be constitutional?
  The equal protection clause was exactly about race.  If it covers anything at all, it covers race.  Religion is expressly covered by the estalbishment clause and free exercise clause.  I don't know of a case off hand where the equal protection clause has been used to invalidate a law because of religious discrimination.  I assume since you are pointing it out, you do? 


So you believe that there is no equal treatment for women under the constitution?
  I don't believe that the equal protection clause prohibits all sex based distinctions if that's what you are asking.  For example, it is constitutionally permissible to have single sex bathrooms and prisons and to not put women in combat roles and to imprison men but not women for not being able to support their children (although I think doing that to begin with is impermissible for other reasons).

Then I no longer understand your argument. You say not "all sex-based distinctions"? You literally just said that the 14th amendment should be so restrictive that it doesn't even include religion. So why are you making these exceptions for sex?

I did not say that the 14th amendment should be so restrictive that it doesn't even include religion.  I said I was not aware of a case where it had been applied to religion.  And I have not made any exceptions for sex.  I am pointing out instances where the equal protection clause does not prohibit distinctions based on sex.  I haven't done the research to know how the 14th amendment does and does not apply to distinctions based on sex.  That's the entire point.  It's not as easy as saying (or it shouldn't be as easy as saying if the courts are going to actually act as judges), "I think this is the right/good result, so this is what the constitution must mean."

The whole reason we've gone down this rabbit hole is because you believe the liberal justices made a decision on Obergfell based on nothing more than adding additional meaning to the 14th amendment.

I have to ask if you've read Kennedy's paper on that case. He certainly makes an emotional appeal in it, but has a lot of legal precedent and reasoning in it as well. Unless you have something that you personally disagree with in Kennedy's essay, it sounds like you just don't want to read or understand the constitutional reasons for marriage equality.
  What paper or essay are you talking about?  His opinion?  I've read his opinion.  It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution.  His opinion explicitly says it is relying on new insight.  I am not arguing against his reasoning.  I more or less agree with his reasoning.  I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations.  This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution.  This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision. 

I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result."  But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights". 

GuitarStv

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Re: Justice Antony Kennedy retiring
« Reply #229 on: July 11, 2018, 07:15:52 AM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #230 on: July 11, 2018, 11:03:26 AM »
The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause."  The government permissibly makes distinctions all the time.  I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments.  Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution.  But apparently even more people can't even tell the difference between the two approaches.

What paper or essay are you talking about?  His opinion?  I've read his opinion.  It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution.  His opinion explicitly says it is relying on new insight.  I am not arguing against his reasoning.  I more or less agree with his reasoning.  I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations.  This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution.  This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision. 

I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result."  But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights".

Can I just very explicitly agree to a few points so that you can stop repeating them over and over again?

1.  There is no "right to same sex marriage" anywhere in the constitution.
2.  The 14th amendment does not say anything about the government making "distinctions".

For bonus points I also happen to agree that Kennedy's reasoning in the Obergfell case was horrible.  He should have relied on the equal protection clause not the due process clause.

It seems to me like the main disconnect here is that you are trying to replace the word "equal" in the equal protection clause with the word "same".  The two words are not interchangeable like that.  For instance, the equation "2+2" is equal to the equation "1+3" but they are not the "same" equation.  This seems to be why you keep talking about single-sex bathrooms as if they are not providing "equal" protection.  Because what you seem to mean is that they are not providing the "same" protection.  This is why everybody who understands the difference between the two words is confused by your arguments.

FIPurpose

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Re: Justice Antony Kennedy retiring
« Reply #231 on: July 11, 2018, 11:16:34 AM »
I think no other man is more responsible for the politicisation of the court than McConnell. No better way to declare the Court a political body than to deny a supreme Court nominee to make it an election issue.

DarkandStormy

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Re: Justice Antony Kennedy retiring
« Reply #232 on: July 11, 2018, 11:19:06 AM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?

"I am an originalist as long as I don't personally feel the effects of discrimination."

/s but...maybe not /s?

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #233 on: July 11, 2018, 12:27:06 PM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964.  So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner. 

FIRE@50

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Re: Justice Antony Kennedy retiring
« Reply #234 on: July 11, 2018, 12:30:32 PM »
I think no other man is more responsible for the politicisation of the court than McConnell. No better way to declare the Court a political body than to deny a supreme Court nominee to make it an election issue.
I recently saw (maybe last night on twitter) someone say that Obama should have just nominated Garland and sworn him in after the Senate refused to vote. It would have been interesting to see what McConnell would have done then.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #235 on: July 11, 2018, 12:42:34 PM »
The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause."  The government permissibly makes distinctions all the time.  I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments.  Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution.  But apparently even more people can't even tell the difference between the two approaches.

What paper or essay are you talking about?  His opinion?  I've read his opinion.  It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution.  His opinion explicitly says it is relying on new insight.  I am not arguing against his reasoning.  I more or less agree with his reasoning.  I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations.  This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution.  This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision. 

I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result."  But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights".

Can I just very explicitly agree to a few points so that you can stop repeating them over and over again?

1.  There is no "right to same sex marriage" anywhere in the constitution.
2.  The 14th amendment does not say anything about the government making "distinctions".

For bonus points I also happen to agree that Kennedy's reasoning in the Obergfell case was horrible.  He should have relied on the equal protection clause not the due process clause.

It seems to me like the main disconnect here is that you are trying to replace the word "equal" in the equal protection clause with the word "same".  The two words are not interchangeable like that.  For instance, the equation "2+2" is equal to the equation "1+3" but they are not the "same" equation.  This seems to be why you keep talking about single-sex bathrooms as if they are not providing "equal" protection.  Because what you seem to mean is that they are not providing the "same" protection.  This is why everybody who understands the difference between the two words is confused by your arguments.

The main disconnect is that many people don't see the virtue in justices following the constitution and/or don't understand why viewing applying the constitution as a matter of mere wordplay effectively leaves the supreme court unconstrained by anything other than a concern for political backlash.
 

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #236 on: July 11, 2018, 12:44:23 PM »
The point is you can't just say "this is the government treating people differently, so it's a violation of the equal protection clause."  The government permissibly makes distinctions all the time.  I think it would be better to have justices try to stick to the original meaning of the constitution, as modified by amendments.  Other people think that courts should just get the "right" result, as long as their result isn't explicitly prohibited by the constitution.  But apparently even more people can't even tell the difference between the two approaches.

What paper or essay are you talking about?  His opinion?  I've read his opinion.  It cites prior legal precedent but nothing that supports an originalist view that the right to same sex marriage is a fundamental right found in the constitution.  His opinion explicitly says it is relying on new insight.  I am not arguing against his reasoning.  I more or less agree with his reasoning.  I am disagreeing that it's the job of the supreme court to take new insights and come up with new interpretations.  This isn't a situation where say technological advances present a new issue and people can in good faith disagree about how to apply the constitution.  This is a situation where in the roughly forty years since it took the supreme court one sentence to say same sex marriage didn't raise a substantial federal question, society's views on homosexuality and same sex marriage have evolved, and rather than let those evolving views be fleshed out through the democratic process, 5 ivy league educated jurists have decided that they have and should exercise the power to come up with a new constitutional provision. 

I understand people thinking "yea, that's bad, but I'm willing to make the trade-off for the result."  But I would argue that people who aren't at least a little uncomfortable with what they did lack the imagination to think of what it would be like if there were five justices who not only disagreed with them politically, but felt the could permissibly make new policy when their views evolved due to new "insights".

Can I just very explicitly agree to a few points so that you can stop repeating them over and over again?

1.  There is no "right to same sex marriage" anywhere in the constitution.
2.  The 14th amendment does not say anything about the government making "distinctions".

For bonus points I also happen to agree that Kennedy's reasoning in the Obergfell case was horrible.  He should have relied on the equal protection clause not the due process clause.

It seems to me like the main disconnect here is that you are trying to replace the word "equal" in the equal protection clause with the word "same".  The two words are not interchangeable like that.  For instance, the equation "2+2" is equal to the equation "1+3" but they are not the "same" equation.  This seems to be why you keep talking about single-sex bathrooms as if they are not providing "equal" protection.  Because what you seem to mean is that they are not providing the "same" protection.  This is why everybody who understands the difference between the two words is confused by your arguments.

The main disconnect is that many people don't see the virtue in justices following the constitution and/or don't understand why viewing applying the constitution as a matter of mere wordplay effectively leaves the supreme court unconstrained by anything other than a concern for political backlash.

Continuing to repeat a belief over and over again does not make it true.

Edited to clarify:  This position that you keep trying to attribute to people of not wanting the supreme court to be constrained by anything is not one that I have heard anybody state and is definitely not my position.  My disagreement with you is entirely about what the original meaning of the 14th amendment is.  You just keep declaring that what you think the original meaning was is the original meaning without providing any proof or even good arguments in support of your position.  I disagree and have provided multiple arguments in support of my position which you have decided to ignore.
« Last Edit: July 11, 2018, 02:26:12 PM by shenlong55 »

GuitarStv

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Re: Justice Antony Kennedy retiring
« Reply #237 on: July 11, 2018, 01:25:24 PM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964.  So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.

Wait, wait, wait.

Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #238 on: July 11, 2018, 02:11:39 PM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964.  So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.

Wait, wait, wait.

Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
  The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution.  Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875. 





GuitarStv

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Re: Justice Antony Kennedy retiring
« Reply #239 on: July 12, 2018, 07:46:37 AM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964.  So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.

Wait, wait, wait.

Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
  The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution.  Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875.

The Civil Rights Act explicitly expanded the rights of a group of people (women) that are not guaranteed in the constitution.  This is exactly what the legislation passed by Colorado did . . . it expanded the rights of a group of people (gay couples) that are not guaranteed in the constitution.  You were saying that using the former to make decisions in the Supreme court is OK, but using the latter to make decisions in the Supreme Court is overreach and 'legislating from the bench' . . . I'm trying to understand your logic for this position.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #240 on: July 12, 2018, 08:34:27 AM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964.  So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.

Wait, wait, wait.

Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
  The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution.  Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875.

The Civil Rights Act explicitly expanded the rights of a group of people (women) that are not guaranteed in the constitution.  This is exactly what the legislation passed by Colorado did . . . it expanded the rights of a group of people (gay couples) that are not guaranteed in the constitution.  You were saying that using the former to make decisions in the Supreme court is OK, but using the latter to make decisions in the Supreme Court is overreach and 'legislating from the bench' . . . I'm trying to understand your logic for this position.

The Civil Rights Act is a federal statute.  The supreme court applied it in Phillips v. Martin Marietta because they are a federal court.  Had their been a question raised as to its constitutionality, they would have been obligated to address such question (once they granted cert, unless they kicked it down on another ground and so didn't have to address the constitutional question).  So essentially, we became more enlighted, and Congress, being subject to negative or positive response of their constituents, rightly passed legislation essentially reflecting a conclusion that it is wrong to discriminate in employment on the basis of sex. 

That's a massive difference from taking an area of law that previously had been almost exclusively in the purview of the states (except that DOMA dictated how the federal gov't treated marriage for the purposes of federal law, such as with SS benefits), and having 5 justices with lifetime appointments and insulated from any political process other than impeachment, deciding that they had new "insights" and therefore states not rewriting or reapplying their state statutes to include a newly found right would be violating substantive due process and the equal protection clause. 

I'm not sure what your referencing by "the legislation passed by Colordao".  I would assume the antidiscrimination law at issue in the cake baking case, but in context maybe you're talking about them legalizing same sex marriage?  Either way, that's a colorado state law that won't be before the U.S. Supreme Court unless there is a constitutional question they want to address.  In the cake baking case, there was a question over whether it violated by first amendment by mandating expression, and the court punted on that question and instead just ruled that in that particular instance, the colorado commission exhibited such hostility and bias that they had to start the process over.  If you're talking about legalizing same sex marriage, there is no constitutional question for the federal courts raised by Colorado legalizing same sex marriage (don't think there was a colorado plaintiff in the Obergfell case, FYI), unless maybe a full faith and credit issue came up if they later moved to or were traveling to another state where it became an issue.

 

GuitarStv

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Re: Justice Antony Kennedy retiring
« Reply #241 on: July 12, 2018, 08:57:08 AM »
In 1971, the Supreme Court decided Phillips v. Martin Marietta . . . which prevented employers from discriminating against women with children when hiring.  Under the argument you're taking here, the constitution and democratic process said nothing about giving women the right to equal protection.  So, are you deeply disturbed by this decision as well?
FYI, 1971 is after 1964.  So yes, the democratic process had said something about discrimination against women in the workplace, so no, I'm not deeply disturbed by a decision where the court applied a statute in a pretty straightforward manner.

Wait, wait, wait.

Why is the civil rights act of 1964 considered a democratic process allowed to reinterpret the constitution, but the 2008 passing of legislature in Colorado that specifically grants gay people protected class status (as with sex/race) not considered the democratic process?
  The Civil Rights act of 1964 isn't "allowed" to reinterpret the constitution.  Since this is following up in the reference to Phillips v. Martin Marietta, I'm not sure if you're not getting the difference between the constitution and statutes or if you are switching to an argument over why the Civil Rights Act of 1964 wasn't declared unconstitutional (at least with respect to discrimination between private parties) like the Civil Rights Act of 1875.

The Civil Rights Act explicitly expanded the rights of a group of people (women) that are not guaranteed in the constitution.  This is exactly what the legislation passed by Colorado did . . . it expanded the rights of a group of people (gay couples) that are not guaranteed in the constitution.  You were saying that using the former to make decisions in the Supreme court is OK, but using the latter to make decisions in the Supreme Court is overreach and 'legislating from the bench' . . . I'm trying to understand your logic for this position.

The Civil Rights Act is a federal statute.  The supreme court applied it in Phillips v. Martin Marietta because they are a federal court.  Had their been a question raised as to its constitutionality, they would have been obligated to address such question (once they granted cert, unless they kicked it down on another ground and so didn't have to address the constitutional question).  So essentially, we became more enlighted, and Congress, being subject to negative or positive response of their constituents, rightly passed legislation essentially reflecting a conclusion that it is wrong to discriminate in employment on the basis of sex. 

That's a massive difference from taking an area of law that previously had been almost exclusively in the purview of the states (except that DOMA dictated how the federal gov't treated marriage for the purposes of federal law, such as with SS benefits), and having 5 justices with lifetime appointments and insulated from any political process other than impeachment, deciding that they had new "insights" and therefore states not rewriting or reapplying their state statutes to include a newly found right would be violating substantive due process and the equal protection clause. 

I'm not sure what your referencing by "the legislation passed by Colordao".  I would assume the antidiscrimination law at issue in the cake baking case, but in context maybe you're talking about them legalizing same sex marriage?  Either way, that's a colorado state law that won't be before the U.S. Supreme Court unless there is a constitutional question they want to address.  In the cake baking case, there was a question over whether it violated by first amendment by mandating expression, and the court punted on that question and instead just ruled that in that particular instance, the colorado commission exhibited such hostility and bias that they had to start the process over.  If you're talking about legalizing same sex marriage, there is no constitutional question for the federal courts raised by Colorado legalizing same sex marriage (don't think there was a colorado plaintiff in the Obergfell case, FYI), unless maybe a full faith and credit issue came up if they later moved to or were traveling to another state where it became an issue.

 

By 'legislation passed in Colorado', I'm referring to all of the legislation passed guaranteeing equal treatment of gay people (among other protected classes).  This includes marriage, employment discrimination, adoption, military service, housing discrimination, general discrimination, etc.

The Civil Rights Act expands the rights of women beyond what is written in the constitution.  The legislation passed in Colorado expands the rights of gay people beyond what is written in the constitution.

You were arguing that in the Obergfell case, judges were 'legislating from the bench'  . . . despite the fact that much legislature has been passed already in the country regarding gay marriage.  Is your argument that the Supreme court can only consider federal legislature when making decisions about things not covered by the constitution?  I'd argue that it's a pretty good example of the democratic process having said something about discrimination against gay marriage".

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #242 on: July 12, 2018, 09:21:06 AM »

By 'legislation passed in Colorado', I'm referring to all of the legislation passed guaranteeing equal treatment of gay people (among other protected classes).  This includes marriage, employment discrimination, adoption, military service, housing discrimination, general discrimination, etc.

The Civil Rights Act expands the rights of women beyond what is written in the constitution.  The legislation passed in Colorado expands the rights of gay people beyond what is written in the constitution.
  And both are and should be applied by the relevant courts, subject to constitutional limitations.

You were arguing that in the Obergfell case, judges were 'legislating from the bench'  . . . despite the fact that much legislature has been passed already in the country regarding gay marriage.  Is your argument that the Supreme court can only consider federal legislature when making decisions about things not covered by the constitution?
  The Supreme Court should only be able to interpret and apply law.  For the vast majority of the times, the U.S. Supreme Court is going to be applying the U.S. constitution or federal law.  Federal district courts may interpret and apply state law regularly, the circuit courts less regularly (and they're more likely to certify a question to the relevant state supreme court if it's a significant issue), but I don't think most cases requiring an interpretation of state law are going to make it to the U.S. Supreme Court because they take so few questions. 

I'd argue that it's a pretty good example of the democratic process having said something about discrimination against gay marriage".
  That's a good example of a state legislature making state law, which is what it's supposed to do.  That's not a reason to force another state to change the law within their jurisdiction.  But I wasn't intending to imply that the Supreme Court should make new legislation after it had taken a survey of state laws.  I meant that they should leave the legislating to legislative bodies.  Congress for federal  law and state legislatures for state law.