Trump nominee; Legalized Same-Sex marriage could lead to legalized pedophillia

[Badger]

You got to reach pretty-damn deep to the very bottom of the barrel, to get the people trump finds for his administration.

[Badger]

http://thehill.com/homenews/administration/347354-trump-nominee-same-sex-marriage-could-lead-to-legalizing-pedophilia

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It is stupid to talk as if when "WE" make a decision to legalize SSM, then the net step must inevitably be that WE will make a decision to legalize marriage between adults and children. WE make distinctions all the time that WE want to legalize A but we do not want to legalize B. Eleven states and countries such as Ireland and Germany have chosen to legalize SSM, but not pedophilic marriage. Nobody is going to tell them that they HAVE to do both.

However, when the decision to legalize SSM is taken out of OUR hands and that decision is made by un-elected judges instead of by US, then many people begin to wonder ... what will the courts do next? If the Equal Protection Clause of the Fourteenth Amendment ("No State shall .... deny to any person within its jurisdiction the equal protection of the laws.") requires that heterosexuals and homosexuals must be treated exactly the same way -- and if you come to that legal conclusion just by looking at the literal words, disregarding them from their historical context -- then why wouldn't the legal logic also be that pedophiles must be treated as the equal of non-pedophiles? Are the courts going to treat all sexual orientations as exactly the same as one another? If the courts have legalized SSM because homosexuals are a "discrete and insular minority" victimized by society's "prejudice" (see below), then why couldn't the same be said about pedophiles? If the courts took the decision about SSM out of the hands of "the people," then what is the likelihood it will take the decision away from them as well when it comes to this other topic? Isn't it scary that the decision is not up to "US"??

The Equal Protection Clause is part of the 14th Amendment, and it was adopted in 1868, in the aftermath of the Civil War. The Supreme Court's first-ever interpretation of that Clause was that it protected the recently freed slaves from being treated worse than the white majority, but that the Clause would not be extended any further than that topic. "We doubt very much whether any action of a state not taken by way of discrimination against negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." (The Slaughter-House Cases.)

Seventy years after the 14th was adopted, the Supreme Court came up with a theory that the Equal Protection Clause protects more kinds of minorities than just racial minorities. The Court said it might look suspiciously at government actions that are based on "prejudice against discrete and insular minorities," because that kind of prejudice will lead to legislative majorities never having any respect for those kinds of minorities. This appeared in what has been called the most celebrated footnote in American jurisprudence: the fourth footnote in the Court's opinion in U.S. v. Carolene Products Co., 1938. Please read about it here.

Another 42 years later, Prof. John Hart Ely published a book called, "Democracy and Distrust," in which he elaborated at length about the ideas in "footnote four." He discussed the idea that "discrete and insular minorities," are not just people who happen to be outnumbered, but that they are victims of prejudice, in that they "keep finding themselves at the wrong end of the pluralist's bazaar for reasons that are, in some sense, discreditable." In a pluralist society, which we obviously are, the are many groups of people who may be outnumbered, but they are able to engage in political wheeling-and-dealing to get their interests protected on many occasions anyway. They win some legislative battles and they lose some. But a "discrete and insular minority" never wins, they always lose, because there is "widespread hostility" and "stereotyping" against that group; no one else will stand up for that minority. In 1980, Prof. Ely said homosexuals fit that description. So, Prof. Ely said, when homosexuals are subjected to laws that treat them as inferior, the courts should look upon that as constitutionally "suspicious." However, Ely also theorized that because gay people were more and more often coming out of the closet (as of 1980), they were gaining more and more social respect, and Ely thought that maybe some day -- he hoped it would happen while his book still remained in print -- the time would come in which gay people, though still a minority, are no longer either "discrete" nor "insular," and then the courts will not need to look "suspiciously" at legislation like that.

I happen to think that this idea of "discrete and insular minorities" should have never been invoked as a reason for courts to strike down any laws. It is an idea that the people who ratified the Constitution never consented to. The Court came up with the idea, almost eighty years ago, without any historical justification as to why it is a constitutional "principle." If this idea does not get buried, because it should never have been born to begin with, then the logic behind it might be such that it will be used by some lawyers to argue to the courts that pedophiles are a "discrete and insular minority" victimized by society's "prejudice." Because of that "prejudice," courts, hypothetically, might start looking "suspiciously" at laws that treat pedophiles as "inferior," which, according to a literal reading of the Equal Protection Clause, is not allowed.

I don't actually think that any court will come to any conclusions that anti-pedophile laws of any kind are "unconstitutional." But what is upsetting is that the decision is not in OUR hands, it is up to the judicial branch to decide. We need to do something about that. See my signature.

MarkD is 100% correct that the marriage decision should have been made by legislators and voters, not by unelected judges.

Your bloviating wall of text aside, you missed the fundamental Keith at the very basis of American constitutional democracy is judicial review of the other two branches of government. Under the constitution of a thousand people and a town vote to close all the synagogues out of reverence for Christianity, and one person disagrees, that one person's right to free practice of religion outweighs the thousand one majoritarian rule seeking to overreach such basic human rights.

 The fact that the court wisely developed over time that the constitution clearly invokes a right to privacy even without using those words, and such basic human rights protected under the Constitution includes those very eloquently stated by Progressive.

 It's all wonderful and peachy keen and rainbows and unicorns to say how nice it would be if the legislature I would not violate the rights of the minority, but when it does that's why we have judicial review. If there was no constitutional concept of the right to privacy, it would be perfectly legal for legislators to ban the use of contraceptives behind closed doors. Griswold vs Connecticut is what started this after all. Are you ready to go down that path mr. So-called strict constructionist?

[Badger]

I have been with my boyfriend since college. We love each other very much. He could not love me more if I were a woman and I could not love him more if he were a woman. I'm uninterested in your meaningless take or vote on whether or not I can marry the person I love. Thank you, judges.

Progressive, if you think I am trying to attack your feelings of love and/or your right to live with your love for the rest of your life, you still do not grasp what I have been talking about. I am not the slightest bit happy with you dismissing my beliefs about what the judiciary is, properly, supposed to do with the legal disputes it hears as being a "meaningless take." That is infuriating and ignorant for you to say that about my beliefs.

Your avatar is for the state of New York. Do you live there now, have you lived there for long, or is that avatar your choice because it was where you were originally from? If you have lived in New York for the last five years or so, then you have no reason whatsoever to "thank" any judges for the fact that you "can marry the person I love." Maybe you should thank the Supreme Court for striking down the federal DOMA in the case of U.S. v. Windsor, if your personal circumstances have been, in any way, similar to that of Edith Windsor's -- i.e., you needed to have the federal government recognize your NY-granted marriage in terms of filing joint income tax or something like that. But in terms of who granted any New York same-sex couple the right to get married, it was not any judges at all, that was done by the Governor and the state legislature.

~~~

Virginia, my goal and my strategy for how to adopt a constitutional amendment that rewrites Section 1 of the Fourteenth is to draft and to campaign for a bi-partisan proposal, an ideological compromise. Believe me, I fully understand the difficulties of getting an amendment proposed and ratified if only conservatives love it or if only liberals love it. I've been brooding about that difficulty for many, many years. My original idea was to propose something that merely returned the meaning of Section 1 of the Fourteenth to its mid-Nineteenth Century meaning. But that idea would only be pleasing to conservatives; liberals would hate it; it would be all about "going backwards." Then about 3 and a half years ago I brainstormed an idea for how to draft the proposal in such a way as it mixes together some ideas for both sides to root for. I realized I could include some of the Twentieth-Century "progress" that has been made with the Fourteenth, as well as make even one more "advance" that the Fourteenth has not yet been used to accomplish. I realized I could create a compromise that would give both sides about half of what they want.

~~~~

Badger, I absolutely, completely agree with the dissenting opinions in Griswold v. Connecticut. If you want to cling to a decision like that, be my guest.

We need judicial review in order to arrive at an accurate understanding of what our Constitution means.

Well, at least you're open about being reactionary to the point of silliness. Kudos for that I suppose.

[Badger]

I have been with my boyfriend since college. We love each other very much. He could not love me more if I were a woman and I could not love him more if he were a woman. I'm uninterested in your meaningless take or vote on whether or not I can marry the person I love. Thank you, judges.

Progressive, if you think I am trying to attack your feelings of love and/or your right to live with your love for the rest of your life, you still do not grasp what I have been talking about. I am not the slightest bit happy with you dismissing my beliefs about what the judiciary is, properly, supposed to do with the legal disputes it hears as being a "meaningless take." That is infuriating and ignorant for you to say that about my beliefs.

Your avatar is for the state of New York. Do you live there now, have you lived there for long, or is that avatar your choice because it was where you were originally from? If you have lived in New York for the last five years or so, then you have no reason whatsoever to "thank" any judges for the fact that you "can marry the person I love." Maybe you should thank the Supreme Court for striking down the federal DOMA in the case of U.S. v. Windsor, if your personal circumstances have been, in any way, similar to that of Edith Windsor's -- i.e., you needed to have the federal government recognize your NY-granted marriage in terms of filing joint income tax or something like that. But in terms of who granted any New York same-sex couple the right to get married, it was not any judges at all, that was done by the Governor and the state legislature.

~~~

Virginia, my goal and my strategy for how to adopt a constitutional amendment that rewrites Section 1 of the Fourteenth is to draft and to campaign for a bi-partisan proposal, an ideological compromise. Believe me, I fully understand the difficulties of getting an amendment proposed and ratified if only conservatives love it or if only liberals love it. I've been brooding about that difficulty for many, many years. My original idea was to propose something that merely returned the meaning of Section 1 of the Fourteenth to its mid-Nineteenth Century meaning. But that idea would only be pleasing to conservatives; liberals would hate it; it would be all about "going backwards." Then about 3 and a half years ago I brainstormed an idea for how to draft the proposal in such a way as it mixes together some ideas for both sides to root for. I realized I could include some of the Twentieth-Century "progress" that has been made with the Fourteenth, as well as make even one more "advance" that the Fourteenth has not yet been used to accomplish. I realized I could create a compromise that would give both sides about half of what they want.

~~~~

Badger, I absolutely, completely agree with the dissenting opinions in Griswold v. Connecticut. If you want to cling to a decision like that, be my guest.

We need judicial review in order to arrive at an accurate understanding of what our Constitution means.

1. Born, "bread and buttered," and living in New York. That doesn't mean that my rights to marry were full since simply because NYS passed marriage equality on that beautiful summer day in July 2011, when across the country, the marriage would not have been legally the same.

2. You can say you are not attacking my relationship all you want. But if you think you should have a say in a ballot box over my civil right to marry then yes you are indeed attacking it. As my law professor said during my 1L year several years ago, "too bad, so sad."

When anyone, including Supreme Court Justices, claim that marriage is any kind of constitutionally-protected "right," they are making an inaccurate statement about the meaning of the Constitution. The Court was wrong, in Loving v. Virginia, Section 2, to say that marriage is a "fundamental right," it was wrong to repeat that mistake in decisions such as Zablocki v. Redhail, Turner v. Safley, and Obergefell v. Hodges. Substituting the adjective "civil" in front of the noun "right," instead of calling it a "fundamental right," or a "constitutional right," does not impress me. It is still just melodramatic rhetoric masquerading as a legal argument. I am attacking those masquerades.

Nonetheless, as Dwarven said about me a little while ago, ...

MarkD is 100% correct that the marriage decision should have been made by legislators and voters, not by unelected judges. However, at this point it is simply not worth it to try to undermine and overturn the decision. We fought the good fight in court, but should accept the loss and move on to more important issues.

There are more important issues than trying to overturn what you, Progressive, are so thankful for. The proposal I was talking about with Virginia in my preceding post is more important. Here are things that are more important:

1) States should have clear guidelines what laws they cannot pass
2) Federal court should have far less discretion in choosing what laws to strike down
3) Rights not enumerated in the Constitution should not be treated as "Fourteenth Amendment rights," and that includes marriage, as well as countless other "rights"
4) We can and should adopt an amendment that will preserve the precedents of Loving, Windsor, and Obergefell, by basing the legal rationale for those decisions on much more narrowly-defined egalitarian principles -- no government discrimination based on race, sex, or sexual orientation. In so doing, we can ensure equality for the LGBT community by writing it explicitly into the Constitution.

Those are more important things for us to discuss. I hope we can discuss them.

Wow. Unwilling to accept the Constitution protects interracial marriage either. I genuinely don't think you are racist, but you are the first person a third-rate racist law school would hire to teach con law.

[Badger]

When anyone, including Supreme Court Justices, claim that marriage is any kind of constitutionally-protected "right," they are making an inaccurate statement about the meaning of the Constitution. The Court was wrong, in Loving v. Virginia, Section 2, to say that marriage is a "fundamental right," it was wrong to repeat that mistake in decisions such as Zablocki v. Redhail, Turner v. Safley, and Obergefell v. Hodges. Substituting the adjective "civil" in front of the noun "right," instead of calling it a "fundamental right," or a "constitutional right," does not impress me. It is still just melodramatic rhetoric masquerading as a legal argument. I am attacking those masquerades.

Wow. Unwilling to accept the Constitution protects interracial marriage either. I genuinely don't think you are racist, but you are the first person a third-rate racist law school would hire to teach con law.

SMH .......

Badger, please comprehend what I said and do not make straw-man fallacies out of what I said. Did I say that the Court's conclusion in Loving v. Virginia was wrong? Do I have to belabor the point now that I agree with the Court's unanimous conclusion in Loving v. Virginia because of what the opinion said in Section 1 of it's opinion?

Section 1 of the Court's opinion in Loving v. Virginia explained why miscegenation laws violate the Equal Protection Clause of the 14th Amendment.

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(Internal citations omitted.)

I do not disagree with that reasoning whatsoever. Again, that came from Section 1 of the opinion, not from Section 2. This is the passage in Section 2 of the Court's opinion that I was explicitly saying above that I disagree with.

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I did not say that I disagreed with the Court's conclusion, nor that I disagreed with Section 1 of the opinion. I said, explicitly, that I disagreed with Section 2 of the Court's opinion.

A profoundly silly notion that has rightly found itself on the scrap heap of History