From: stephen@sprunk.org
On 22-May-14 13:44, Adam H. Kerman wrote:
> Stephen Sprunk wrote:
>> On 22-May-14 01:39, Adam H. Kerman wrote:
>>> Stephen Sprunk wrote:
>>>> 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).
>
> No, they're not. If marriage means between a man and woman, then
> there's an equal protection argument versus anti-miscegenation laws.
If a man can marry a woman but a woman can't, then there's an equal
protection argument there as well: men can do something women can't.
It's the same as saying a white person can marry a white person but a
black person can't.
(Likewise, if a woman can marry a man but a man can't, there's also an
equal protection argument there, but the interest in--or at least
funding for--protecting men from discrimination is lower.)
> On the other hand, if marriage means only what we want it to mean,
All words mean only what we want them to mean.
> then how is it that polygamy lacks equal protection?
Good question; a court may find it is indeed protected, but AFAIK there
haven't been any recent, well-funded test cases. Even the LDS church
backed away from that cause long ago--despite it being the "traditional
definition of marriage" in their faith.
> What about marriage between children? What about marriage to
> animals or dead people
Such entities lack the ability to consent, so it's moot.
> or fictional characters?
If you mean legal fictions, then I suppose it's theoretically possible
for two corporations to get married. Given the Citizens United ruling,
I wouldn't put it past SCOTUS to allow that.
>> 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.
>
> Lawrence was about privacy and follows rather from Griswold; Bowers
> was an abberhation. Nothing to do with changing the meaning of a
> word whose meaning has been clear for centuries.
Lawrence was about equal protection: Texas law allowed women to have
anal and oral sex but not men, which was found to be discriminatory.
After losing Lawrence, Texas made anal and oral sex illegal for women
too, and the new law was found to be constitutional because it oppresses
everyone equally, based on the Bowers ruling that there is no
constitutional right to have sex.
>>> 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.
>
> I just wrote that the DOMA decision didn't find a federal right to
> gay marriage.
And I didn't disagree with that.
> Various federal trial court judges have moved well beyond DOMA,
> and they don't have the power to do that, I thought.
Courts can rule however they want if there isn't a precedent from a
higher court. Higher courts generally only take cases to resolve a
disagreement in lower courts. If the lower courts all agree, as they
seem to be doing in tossing out state bans on gay marriage, then there
is generally nothing for the higher courts to do.
>>> 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.
>
> They damn well better not rule on a matter not being litigated.
They actually did, in a limited way: they said that the federal govt has
to give full faith and credit to gay marriages recognized by the states.
They just didn't say that _other_ states had to. And there are already
dozens of such cases working their way through the courts now; it'll
just take them a few more years to get up to SCOTUS.
>> 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.
>
> That's NOT what the "full faith and credit" clause means. A state
> license NEVER gives one privileges in a foreign state; that's beyond
> the state's jurisdiction. If licenses are valid in foreign states,
> it's due to a voluntary compact between the two states, which is the
> only reason why one's driver's license and vehicle registration is
> valid in a foreign state and Canadian provinces.
States are required to give full faith and credit to each others' legal
instruments, whether drivers licenses or warrants. There is an
interstate compact on handling _citations_, but not the licenses themselves.
That has not (yet) been applied to firearms licenses, but there have
been test cases working their way through the courts ever since Heller
and McDonald.
>>>>>> 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.
>
> You're being a real jerk here, Stephen. You got it wrong about what
> I'd written. Now, shut the fuck up.
Actually, you got it wrong yourself. Your original complaint only spoke
of remedies, not rights. I posited a right that has not been recognized
by any court, and pointed out that without recognition there can be no
remedies. And I questioned whether lacking this alleged right counts as
oppression anyway, as you had claimed.
>>>> 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?
>
> No, it's not my job to do your homework. Do your reading, then we'll
> discuss it further.
You're the one claiming that it has happened; surely you can come up
with at least _one_ case to support your point, as I have done.
>>>> 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.
>
> You've missed it a second time: The plain language of the First
> Amendment (which hasn't been followed by courts in many decades)
> imposed a restriction on Congress; that bit is unequivocal. What it
> did NOT do was create the civil right of freedom of speech (and
> publishing) itself, just the civil right to be free from federal
> regulation of speech and publishing. Madison expected that the
> states could regulate speech or define a liberty in the broadest of
> terms, or a mix of the two.
And now you're back to incorporation. It would really help if you would
stick to one argument at a time, or at least acknowledge when you've
changed arguments because you lost the previous one.
> Schenck, the decision you quoted from, got it terribly wrong because
> the case itself wasn't about deliberately false speech intending to
> cause panic and possible injury resulting from panic. The poor
> schnook was leafletting with quotes from the 13th Amendment,
> informing men of their right to object to the draft.
I wasn't deliberately quoting Schenck; it's a common saying, to the
point courts don't even bother citing a source for it when using it as
justification for creating exceptions in _other_ rights.
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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