From: stephen@sprunk.org
On 22-May-14 01:39, Adam H. Kerman wrote:
> Stephen Sprunk wrote:
>> On 21-May-14 13:04, Adam H. Kerman wrote:
>>> Your statement here doesn't sound correct. If federal law isn't
>>> applicable, a federal judge will rule lack of subject matter
>>> jurisdication to have the matter heard in federal court. I don't
>>> believe a federal court can rule, "Judgement for the plaintiff
>>> under state law such and such" just "There is no remedy for the
>>> party bringing suit under federal law." But an actual lawyer will
>>> have to explain.
>>
>> Federal courts require a "federal controversy" to have
>> jurisdiction; such frequently arise even in matters of state law
>> due to incorporation.
>>
>> For instance, many states passed bans on same-sex marriage; there
>> is no federal law preempting that, but federal courts are now
>> overturning such laws due to incorporation of the federal equal
>> protection clause, which introduces a federal controversy to those
>> cases.
>
> That's bizarre. Yesterday, changing the fundamental definition of
> marriage wasn't a matter of equal protection, but today it is,
It wasn't "yesterday"; they're using the same justification to do so
that they used to overturn state bans on interracial marriage, going
back to Loving v Virginia (1967).
Also, gay rights have been a equal protection issue since at least as
far back as Lawrence v Texas (2003), though I suppose you might consider
that to be "yesterday". Notably, that case overturned Bowers v Hardwick
(1986), where SCOTUS found that having sex was _not_ a constitutionally
protected activity.
> and federal courts are racing to throw out state laws, ever since DOMA
> was found unconstitutional. But the US Supreme Court decision never
> ruled that way, of course.
No, that one was decided on federalism, which could have been read as
strengthening state anti-gay laws. Apparently that's not how it's being
read by lower courts, though.
Since lower courts are pretty close to unanimous in their readings,
though, it's going to be rather difficult to get SCOTUS to take an
appeal, which they generally only do when lower courts disagree.
> The other blatantly unconstitutional part of DOMA, that states don't
> have to give full faith and credit to marriage laws of other state they
> don't like, wasn't addressed in that decision.
Indeed; I would have preferred they resolve that case that way, but IIRC
they haven't had a good "full faith and credit" case in a long time. I
suspect we'll see that come up first in a follow-on to McDonald/Heller
regarding carry permits, given the leanings of the current court. They
might be avoiding such cases to prevent someone applying the precedent
to gay marriages, though.
>>>> Says someone who is not in one of the minorities still
>>>> oppressed today.
>>>
>>> Sure I am. There's no remedy to obtain decent transportation in
>>> law. I am a member of an oppressed class, just one without
>>> protection.
>>
>> AFAIK, no court has established a right to "decent transportation",
>> but even so, there is no law _against_ you having decent
>> transportation of your own, so where is the "oppression"?
>
> You didn't read what I wrote. I said I have no rights and remedies in
> law. You got it wrong.
You only get "remedies" as a result of your rights being violated; if
you have no such right, then there are obviously no remedies to be had.
>> Just as the right to free speech does not require the govt to
>> provide you a soapbox to speak from, the right to assemble does not
>> require the govt to provide you a bus/train/etc. to your assembly.
>
> Well, no, those analogies suck.
If that doesn't apply to your claimed "right to decent transportation",
then please explain in more detail what you think that right is, how it
is being infringed and what sort of remedy you would expect.
>> I'm not aware of any cases where the Bill of Rights has been found
>> to preempt similar but stronger rights in state law. Cite?
>
> You need to do some basic reading on the effect of incorporation and
> state constitutions, dude.
So you can't cite a single case to support your claim?
>>> btw, my state's supreme court first ruled against compulsory
>>> prayer in 1910, decades before the US Supreme Court got around to
>>> it.
>>
>> Good for you. OTOH, my state's courts are still stubbornly
>> fighting to preserve their "right" to compel other people to
>> pray--in spite of our own state constitution and countless cases
>> overturned by federal courts.
>
> Looking at the state constitution, you have an ERA provision from
> the 40 years ago!
Not that it matters to our state courts; we need federal courts to
enforce our own constitution, thanks to the religious nutjobs.
> I guess I don't understand why your courts can't be bothered to
> follow your own state constitution.
Simple: When the law doesn't agree with their personal religious views,
they choose the latter over the former.
Keep in mind that red-state Republicans are, on social issues, pretty
much the same as the Taliban, just using an older edition of the sky
monster's book of fairy tales.
> Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible
> right to worship Almighty God according to the dictates of their own
> consciences. No man shall be compelled to attend, erect or support
> any place of worship, or to maintain any ministry against his
> consent. No human authority ought, in any case whatever, to control
> or interfere with the rights of conscience in matters of religion,
> and no preference shall ever be given by law to any religious society
> or mode of worship. But it shall be the duty of the Legislature to
> pass such laws as may be necessary to protect equally every religious
> denomination in the peaceable enjoyment of its own mode of public
> worship.
>
> "No man shall be compelled" sounds like plain language to me.
The religious nutjobs choose to interpret that as allowing them to
compel people to attend _some_ place of worship, just not a _particular_
place; IOW, they see a right to choose which sort of theist you are, but
no right to be atheist.
>> There is no equivocation in the right to free speech either, yet
>> courts have still managed to invent all sorts of exceptions on
>> their own, e.g. the proverbial "yelling fire in a crowded
>> theater".
>
> Sure there is equivocation, given that the first amendment was a
> limitation on federal law without making an explicit statement on
> what the civil right being protected is exactly. But Schenck was a
> lousy decision of Holmes.
"Congress shall make no law" seems pretty explicit, with no room for
equivocation.
>> Explain what you mean by "federalized" here.
>
> I'm saying federal courts have asserted subject-matter jurisdiction.
They have always had jurisdiction over any case involving a "federal
controversy"; it's not a mere "assertion".
>> The question is whether federal law preempts state law, in which
>> case there is no valid state law on the matter, or not, in which
>> case a federal court must follow federal law _and state law_ to
>> resolve the case.
>
> You're trying to make a distinction between 14th Amendment cases and
> pre-emption of state law, which doesn't have merit as far as I can
> tell.
There is a massive distinction; if you don't see that, then you have
little hope of understanding decisions in such matters.
> The state bill of rights, if they contain stronger protections,
> no longer apply and state courts must yield to federal
> interpretations.
Only if preempted, which you have not demonstrated to be true.
S
--
Stephen Sprunk "God does not play dice." --Albert Einstein
CCIE #3723 "God is an inveterate gambler, and He throws the
K5SSS dice at every possible opportunity." --Stephen Hawking
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