Balkinization  

Sunday, June 28, 2015

The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism"

Sandy Levinson

Consider the following passages from the anguished dissents filed by Justices Scalia and Alito in Obergefell:


Scalia:  “[t]he substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage "

Alito: "The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not…. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."

It's especially interesting, I think, that Alito echoes Justice Holmes in Lochner that the Constitution was made for people "with fundamentally different views."  We know that Holmes had no patience at all with any theories of "natural law" or any other substantive notion of justice.  His conception of law had literally nothing to do with justice and everything to do with recognizing sovereign authority.  There is, I think, much to be said for Holmes's view, but, to say the least, it's a bit odd to it reflected in the opinions of two of the Justices who are viewed as the most "serious Catholics" on the Court.  And if there's one thing we thought we knew about Catholicism, it is that it professes a robust view of natural law and does not recognize the complete separation of law and morals. (A famous article written by a Catholic law professor connected "Hobbes, Holmes, and Hitler," for example.)  

Federalism is also often praised not only for allowing little islands of experimentation, but also, as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality and allowing state A to adopt a very different answer to such questions than state B.  Again, there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states.

But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery.  Unlike the hotheaded Lincoln, who noted that "I have always hated slavery, I think as much as any Abolitionist," Douglas professed himself indifferent to the moral critique of slavery.  Perhaps he even would have said that it was "not of immense personal importance to me."  What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom.  Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners.  Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too.  The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.  


Obviously we did decide, after 750,000 people died, that one size should indeed fit all, and the Thirteenth Amendment was added to the Constitution, luckily for Scalia and Alito. In the absence of the Amendment, and given the incontrovertible fact that the 1787 Constitution did indeed have elements of "a Covenant with Death and an Agreement with Hell," could Alito or Scalia possibly have denied the right of a "sovereign state" (a term much found in recent opinions of Scalia--and, for that matter, Anthony Kennedy when he wears his pro-federalism hat) to continue to maintain that "traditional" system of regulating the labor force in many of the states?  One might, of course, ask the same question of Chief Justice Roberts, given his reliance on (and some would say creation of) a doctrine of "state equality in Shelby County that gives the green light to Republican legislatures (whether or not flying the Confederate flag) who wish to do what they can to suppress the vote of racial and ethnic minorities.  

This is not meant as (merely) a snarky point.  As I have written on other occasions, the notion of "popular sovereignty" is immensely important, under-analyzed, and at one and the same time very attractive and a recipe for injustice and even catastrophe.  But it does strike me that, for better or worse, Kennedy is truly taking the Lincolnian posture and Scalia and Alito the position embraced by Douglas and then, in an important variant, by Holmes.  I.e., we live in a radically pluralistic world where we simply do not agree that there is a "fact of the matter" as to the justice or injustice of slavery or the legal rights to be accorded gays and lesbians.  And the task of politicians, including judges, is to realize that there is no agreement on fundamentals and thus to try to design some kind of a modus vivendi rather than a genuinely just political order.

What (if anything) does it say that this view is presupposed, even if not explicitly set out, by two strongly Catholic Justices?  (It is now fair game, I think, to mention the demographics of the Court given that Scalia himself took such pains to mention them.)  One could, of course, ascribe it to sheer opportunism.  Take any port in a storm, and federalism, with its "diversity" and entailed moral relativism, is convenient in the case of same sex marriage or abortion.  Certainly political liberals, over the past decade, have been speaking up for federalism with regard to the rights of states to embrace same-sex marriage and denouncing DOMA.  And Robert George, in his excellent Making Men Moral, noted that there is a "pragmatic" strain even in classical Catholic thought that a political state should indeed move only with "all deliberate speed" when imposition of what is in fact the one true understanding of morality would generate too much resistance. 

 But, of course, one could offer the same kind of defense of Douglas, who was altogether correct in his basic insight that whether or not the "house divided" could stand, it was certainly the case that it would not withstand--except at the cost of 750,000 lives--an attempt to impose a single national solution.  (I put to one side, for these purposes, the fact that Lincoln himself was Douglasian in his emphasis that he was not at all opposed, as a political/legal matter, to recognizing the validity of slavery in the states where it already existed.)   

For what it's worth, I taught my students in April that there was no real doubt as to how the case would come out, not least because of the extraordinarily slipshod way the Court handed the decisions below in refusing to stay them.  It was literally incredible to believe that there weren't always five votes to nationalize same-sex marriage when the Court felt it appropriate to do so.  So the only interesting question was really why now (and, of course, exactly what Kennedy would say, given that one could also predict that it would be he writing the opinion).  Putting to one side that Judge Sutton and the Sixth Circuit created an embarrassing conflict in the circuits that was otherwise not present, I emphasized to my class the key fact that public opinion had moved so fast on the issue, that many more Americans today support the right to same-sex marriage than supported inter-racial marriage at the time of Loving v. Virginia.  The Court is not really "leading" the country, but, rather, following what has become the national majority view and decided that it's now safe to impose on "outliers." 

 But what if the public opinion polls were different?  What if there really were good reason to believe that the opponents would not accept defeat more-or-less graciously, after some predictable harrumphing about judicial overreach, and instead would engage in "massive resistance" (whatever that might mean in this context, which, frankly, is hard to figure out, unlike school desegregation where "white flight" and the rise of segregation academies was an all too possible reaction, not to mention simply shutting down the public schools)?  Does the support for the decision rest on the pragmatic fact that the Court is basically getting on the last car of the train that has already left the station?  Or do we think that the Court should have done this in, say, 2003, when Scalia accurately surmised that if "logic" does have anything to do with the law, then Lawrence would inexorably lead to same-sex marriage?  Lincoln, after all, didn't support the repeal of the Fugitive Slave Law until 1864, and he was offering compensated emancipation into 1863, at least for the slave states that had remained loyal to the Union.  (And, notably, the Emancipation Proclamation, as a legal matter, did not apply to those states at all.)   Was the Court right to wait until now (which entails that the "liberals" were righ, as a political matter,t to join in Roberts's indefensible decision on standing in Perry), or should Kennedy have been able to write his opinion no later than 2013?

   




Comments:

"Was the Court right to wait until now (which entails that the "liberals" were right, as a political matter,t to join in Roberts's indefensible decision on standing in Perry), or should Kennedy have been able to write his opinion no later than 2013?"

Well, 2013 is better than 2003, when the Supreme Court ruled that sexual relationships should be protected for same sex relationships. Constitutional law develops over time. As to Perry, I don't think it is "indefensible," agreeing with former solicitor general Walter Dellinger and others. Likewise, Windsor was not about establishing same sex marriages nation-wise as some have suggested. It was a more limited issue that clearly was a big step.

I was interested -- given your book on public monuments and -- in your thoughts on developments on the Confederate flag and related issues. But, thanks for your .02 on this particular issue.
 

Or as The Onion so eloquently put it:
Supreme Court Legalizes Gay Marriage After Landmark 193,000,000-115,000,000 Decision

www.theonion.com/graphic/supreme-court-legalizes-gay-marriage-after-landmar-50765?
 

I think the question is not, "What if the polls were different?", but, "Why should one believe the polls?"

If public opinion had changed to favor SSM, you'd expect it to be adopted by legislation and initiative. The courts are how unpopular causes prevail. Democracy is how popular causes win. By that criteria, we would, absent these polls, conclude that SSM is quite unpopular across most of the nation.

I think what we're looking at here is preference falsification. The media have created the illusion of widespread public support for SSM, a number of cases have established that it's legally dangerous for bakers and florists, and who knows else, to oppose it. And the public have responded predictably by lying to pollsters.

Now, if there's no particular reason for opposition to SSM, if it genuinely doesn't have horrible consequences, preference falsification will, gradually, turn into real opinion. But that's going to take some time, real opinions don't turn on a dime like this.

I think the advocates of SSM are aware that this is the case, that the public opinion they claim supports them is an illusion and a house of cards, and that a preference cascade could sweep their foundations out from under them in an instant. This is why they were so desperate to get things nailed down beyond the reach of public opinion to change, and why they've been so over the top in punishing highly placed dissent. When you're standing on a potential avalanche, you take every falling pebble seriously.

If they can hold the line for a generation, they can transform their victory into something real. But they're going to have to hold that line, or see it all swept away, and this is the greatest danger for them. SSM itself is probably fairly harmless. The relentless determination to punish anyone who dissents from it, though? That's got the potential to make things turn ugly, fast.
 

Brett, while I'm not denying that there could be a social desirability effect in polling that leads to people answering pollster's questions in the way they think is 'socially acceptable,' I'm less likely to relegate the alleged shift in public opinion regarding SSM to it considering the rather marked change in SSM's electoral fortunes recently when it won at the ballot box in states like Maryland, Minnesota, Washington and Maine.

I also find the recent conservative focus on what you describe as 'the relentless determination to punish anyone who dissents from [SSM.' While I actually agree that actual witch hunts of dissenters seems problematic, I wonder where was this concern for those who were the focus of 'relentless' social stigma when it was gay men and women (the case for most of our history up until quite recent times). It seems that nothing makes some people more sensitive to social stigma than when they are suddenly on the receiving end of it...
 

I wouldn't claim that opinion is uniformly against SSM across the states. Likely it's popular in some states, unpopular in others.

"It seems that nothing makes some people more sensitive to social stigma than when they are suddenly on the receiving end of it..."

Quite true. Espically when it's majority opinion that's being subjected to social stigma. Getting fired for supporting a *winning* ballot initiative must have a special sting.

My main reason for thinking we're looking at preference falsification, is that I don't believe public opinion changes this quickly.
 

Same sex marriage was "adopted by legislation and initiative" in multiple states. One problem with the remainder was that same sex marriage was singled out for state constitutional provisions that blocked normal political processes. Hawaii was an exception. In the 1990s, they gave legislatures discretion; they weren't blocked for a certain aspect of marriage concerning something particularly involving gays and lesbians, from changing policy. What did they do? They changed the policy.

There are various signs that same sex marriage has been accepted, including no big push when it was put in place by court action or otherwise to override it. But, constitutional barriers like the state mini-DOMAs don't require simple majorities. It requires supermajorities. Moving passed Brett's academic musings here ("preference falsification"?), it is unclear the evidence that the polls (is this true about large support of gun regulation blocked because supermajorities are needed to pass it in Congress too? or is it only for issues Brett disagrees with? sorry for the cynicism, but he has been selective in these sort of things in the past) are somehow media creations.

As to changing quickly, opinions on same sex relationships have been developing for years now. Some sort of tipping point, especially when people look at tens of thousands of couples with families etc. that seem just like them, is sure to arise. IRELAND just voted for SSM after all.

Anyway, we do live under a Constitution, and equal protection of the law and such (such as gun rights) aren't merely put up to popular vote, especially when it takes a supermajority selectively to burden a certain group like this.
 

To return to the OP, it seems to me that a good choice for the basic principle would be the same one which guided the Convention in allocating powers to Congress: “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation…” Thus, the Court should ignore "states rights/federalism" issues in cases of national scope, particularly when different rules in different states would disrupt harmony (e.g., in this case, marriages valid in one state would become invalid in another, raising a host of difficult issues).
 

But what if the public opinion polls were different?

What makes you think the handful of polls showing majority adult support for SSM (in which the pollsters almost certainly internally reweighted the raw polling results) were an accurate reflection of the national electorate?

If the national electorate actually held a majority consensus supporting SSM, Kennedy would not have had to issue a decree reversing the democratically enacted civil marriage laws of almost 40 states, reasoning that "the dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right." The reality is that support for SSM is concentrated among a minority of urban whites, including our political and legal elites, and has little purchase among Democrat minority groups or GOP social conservatives. Everyone else really does not care.

This is Roe all over again - a Supreme Court without any constitutional basis imposing its policy preference on the people in a matter of democratic dispute. Indeed, Obergefell is arguably the worst of the ignominious line of Court substantive due process cases. While Lochner could point to the Constitution's protections of contract and Roe could point to protections of privacy to provide fig leafs for their decrees, Kennedy completely discarded past tests for determining unenumerated rights and applying equal protection and decreed the majority's "enhanced understanding" of the issue created a new fundamental right to SSM. It is hard to point to a more law free and thus lawless decision in Supreme Court history. The drafters of our Constitution would recognize Justice Kennedy's reasoning as analogous to the divine right of kings prevalent in Europe at the time.

For those of you who support redefining civil marriage to include homosexual unions, consider carefully the implications of Kennedy's reasoning before you celebrate it. Because the Obergefell decision is completely unmoored from the law and relies entirely on the arbitrary policy preferences of a court majority, five justices supporting traditional marriage could have just as easily reversed the democratically enacted SSM laws and reimposed traditional marriage.

Those who live by dictatorship, eventually die by dictatorship.
 

" including no big push when it was put in place by court action or otherwise to override it."

Seriously, what do you suppose those state constitutional provisions you're complaining of were, anyway? The states did what they could to stop this trend of judicial imposition of SSM. It just wasn't enough, pro-SSM sentiment among the political elite prohibited the federal amendment that would have done the job, (And likely would have been ratified in record time.) from ever emerging from Congress.

"But, constitutional barriers like the state mini-DOMAs don't require simple majorities. It requires supermajorities."

No, most state constitutions can be amended by mere majorities. And even where a supermajority is required, it's no more of a supermajority for repeal than enactment. All you're doing is demonstrating what I'm saying: Opposition to SSM demonstrated that it was real by prevailing democratically. Support for SSM has not, outside of a handful of states, demonstrated it's reality in that way.

As I said above, if there's no good reason for opposing SSM, if there aren't any bad consequences from legalizing it, even if current 'support' is preference falsification, it will become real over time. Opinions people are afraid to express don't get passed on.

Ironically, the most effective way for anti-SSM opinion to harden and become entrenched, is for the pro-SSM side to over-reach. And I think that's inevitable, the left never settles for tolerance.
 

Brett:

"Ironically, the most effective way for anti-SSM opinion to harden and become entrenched, is for the pro-SSM side to over-reach. And I think that's inevitable, the left never settles for tolerance."

The only way social change becomes accepted is through democratic debate and enactment. People will not oppose laws enacted by a majority of their neighbors to nearly the same extent that they will decrees imposed from above.

Politically, this is Roe all over again. The GOP would be wise to have their candidates concentrate on the economy and Obamacare, while their PACs hang the Obergefell albatross around Mrs. Clintons neck by targeting minority groups and social conservatives with messages of how Clinton opposed SSM before she supported the Supreme Court imposing it, concluding with examples of how the government is forcing Christians to support and service SSM. This will get the social conservatives out to the polls, will put many devout Catholic Hispanics in play and lower African American church support for Clinton.


 

The Supreme Court just applied their eraser to the Election Clause of the Constitution: "There is no suggestion that the Election Clause, by specifying “the Legislature thereof,” required assignment of congressional redistricting authority to the State’s representative body."

You mean no suggestion apart from the quoted language?

http://www.supremecourt.gov/opinions/14pdf/13-1314_kjfl.pdf

This may be the most lawless session of the Supreme Court in well over a generation.
 

Mark Field makes a good overall point though the Constitution does not merely have an open-ended principle but enumerates in some detail things. One more reply to Brett & then I will concern myself more with today's actions.

Seriously, what do you suppose those state constitutional provisions you're complaining of were, anyway?

A pre-emptive strike that closed off means of change by regular political process in the midst of changing times. When such process was more open or court action provided a work-a-round as it does in our republican system, the reaction in state after state was much more tempered.

The states did what they could to stop this trend of judicial imposition of SSM.

Hawaii provided another approach -- it gave the legislature, by normal political process, the power over marriage as a whole. As with other aspects of marriage that changed over the years, normal political process, not some need for supermajority change of state constitutions that specifically burdened certain groups, was allowed to operate. In multiple states, legislature then passed same sex marriage.

It was not "judicial" imposition that prevented numerous states from having legislative action as normally crafted decide this question. Preventing such selective burdening of rights, including by judicial review ("impositon" -- like when D.C. voters couldn't ban handguns -- if you wish) is part of our system too.

It just wasn't enough, pro-SSM sentiment among the political elite prohibited the federal amendment that would have done the job, (And likely would have been ratified in record time.) from ever emerging from Congress.

A supermajority of states, including some blue states, would "likely" have passed a constitutional amendment selectively singling out same sex marriage for burdensome treatment? Simply put, this is not a correct view of reality -- the general public was not so supported of such a thing; it was not the 'political elite' that wasn't SO against same sex marriage to find that warranted. It was a limited segment of the population.

No, most state constitutions can be amended by mere majorities.

There are various methods to amend state constitutions & in general it is harder to change state constitutions than normal legislation. This is the basic point of constitutions -- there are more stable and harder to change.

And even where a supermajority is required, it's no more of a supermajority for repeal than enactment. All you're doing is demonstrating what I'm saying: Opposition to SSM demonstrated that it was real by prevailing democratically.

There was a moment of accelerated concern, one might say unreasonable fear, by now over a decade ago in the face of one or two states having same sex marriage (Hawaii never even got it, showing how overblown the reaction was), and it put in a constitutional barrier that burdened a specific group in an unconstitutional way. This put a special burden on change by normal legislative action as society was in the midst of having a majority agree with same sex marriage. Some of these amendments even blocked domestic partnerships and similar marriage-lite alternatives.
 

[cont]

Support for SSM has not, outside of a handful of states, demonstrated it's reality in that way.

A significant block of populated states did pass same sex marriage laws or not overturn state constitutional provisions. As I noted, the rest put up selective barriers to change. Normal legislative process itself changes slowly. Overall, noting there remains pockets of resistance, it has not be shown the majority shift (which isn't alone enough to change things legislatively; you like this btw -- you want loads of bottlenecks that block things even if a majority would agree) is "media" created here. It is a logical result of changing trends going on for decades.

As I said above, if there's no good reason for opposing SSM, if there aren't any bad consequences from legalizing it, even if current 'support' is preference falsification, it will become real over time. Opinions people are afraid to express don't get passed on.

Yes, eventually, the bottlenecks will be fought thru, though a few states will resist longer. This will take time & meanwhile people's constitutional rights, burdened further by unconstitutional special barriers to normal legislative action, will be denied.

Ironically, the most effective way for anti-SSM opinion to harden and become entrenched, is for the pro-SSM side to over-reach. And I think that's inevitable, the left never settles for tolerance.

The public at large support same sex rights and marriage is a logical result there. As same sex couples grow along with their families, such support will grow. When IRELAND passes a same sex marriage law it is a notable tipping point. Same sex marriage is supported by many outside the "left," in part because marriage in fact can be a conservative alternative to not being married at all, including living in an outlaw state.

Your continual citation of "the left" is duly noted. You are selectively concerned with governmental power & liberty. The legislative change you are open to above is not warranted for guns, for instance. Except to the degree they didn't go far enough, you weren't concerned with Heller blocking millions from having gun regulations. No fear of "overreaching" there.
 

"(in which the pollsters almost certainly internally reweighted the raw polling results)"

Given you're track record of reading important polls here I'm a bit amused you went there...

"Indeed, Obergefell is arguably the worst of the ignominious line of Court substantive due process cases."

How do you think it stands in relation with Pierce or Meyer?

"The only way social change becomes accepted is through democratic debate and enactment."

So much for Brown I guess :)

"The Supreme Court just applied their eraser to the Election Clause of the Constitution"

But what about when the Legislature allows initiative and referendums? A state's legislature and people can't decide to delegate that power granted them by the Constitution? I thought you were a fan of 'state's rights?' And would it have been a good idea if one of the justice switched here and we got a "decree imposed from above" instead of a "law enacted by a majority of their neighbors?"

 

" Except to the degree they didn't go far enough, you weren't concerned with Heller blocking millions from having gun regulations. No fear of "overreaching" there."

Heller overturned the laws of a few outlier jurisdictions on the basis of an explicit and entirely on point constitutional guarantee, and on the basis of what that guarantee has always, except for a recent result driven fad among lawyers, been understood to mean.

This ruling overturned the laws of most states in favor of imposing the outliers' position, on the basis of an amendment not on point, using an interpretation that would have gotten you laughed at until only a few years ago. That literally no one having anything to do with the adoption of the amendment would have agreed to.

So, no, I don't think the cases are at all similar.

The Arizona case I view as much more defensible, you could make a good argument either way on it, and the majority had a good point about Congress having amended the law to accomidate initiative based redistricting. I probably wouldn't have come down on the side of the majority, but the decision wasn't outrageous.

Not like Obergefell, which in terms of the legislative history of the 14th amendment was a complete joke. Result oriented jurisprudence at it's very worst.
 

while their PACs hang the Obergefell albatross around Mrs. Clintons neck by targeting minority groups and social conservatives with messages of how Clinton opposed SSM before she supported the Supreme Court imposing it, concluding with examples of how the government is forcing Christians to support and service SSM. This will get the social conservatives out to the polls, will put many devout Catholic Hispanics in play and lower African American church support for Clinton.


# posted by Blogger Bart DePalma : 11:13 AM


Albatross? LOL Take a look at Clinton's Twitter account.

https://twitter.com/HillaryClinton

I suspect her political instincts are a little better than Bart "These poll numbers are great news for McCain" Depalma.
 

This comment has been removed by the author.
 

bb:

Do you actually consider a politician's twitter account (even if the politician did not have a long history of deleting embarrassing electronic communications) is somehow representative of the national electorate?
 

This comment has been removed by a blog administrator.
 

Do you actually consider a politician's twitter account (even if the politician did not have a long history of deleting embarrassing electronic communications) is somehow representative of the national electorate?
# posted by Blogger Bart DePalma : 1:23 PM


I believe that her ability to evaluate polling results is far superior to yours.

"These poll numbers are GREAT news for John McCain!!" - Bart Depalma 2008
 

Mr. W:

Every poll reweights its results demographically because so few people participate any longer and they can no longer get representative random samples. All a pollster needs to do to enhance support for SSM is overweight urban and cell phone (disproportionately a younger demographic) results. You won't see it unless the pollster reports their internal cross tabs. Additionally, between 40% to 50% of adult polling pulls in non-voters. Thus, the polls Sandy cites bear no relationship to the actual national electorate.

Obergefell is hands down the worst substantive due process case the the Supreme Court has ever imposed. The Court established tests for determining unenumerated rights and for applying equal protection, but Kennedy does not even bother to give them lip service. Kennedy's year old paean to the Constitution's grant of power to the states to define civil marriage was nowhere to be found. instead, our "swing justice" very clearly stated that the Court can create (or not) an unenumerated fundamental constitutional right based upon its "enhanced understanding" derived from a political campaign to change the law.

If you consider Obergefell (creating fundamental rights out of thin air and reversing the laws of 39 states) along with King (rewriting a statute of Congress to add language) and now Arizona State Legislature (rewriting the Constitution to erase a hardwired provision), the Supreme Court is making it clear that a progressive majority will now announce the law rather than enforce it in order to impose its preferred progressive policies. (Sorry, a state legislature cannot legally delegate its constitutional powers and any more than Congress may.)

Tell me again that I am being hyperbolic when I note that our Republic is giving way to dictatorship. Anyone who actually believes in the rule of law should be appalled.
 

Here's what one lawyer had to say about the argument in Obergefell:

There is no federal constitutional right to same sex marriage.

But that was then, when she actually had to worry about the democratic process. This is now, when she's 20% of a permanent constitutional revision committee.
 

now public opinion has shifted

The person who wrote that article does not appear to share your views on the current level of public support for SSM.
 

Bart, with all respect, I'm afraid your credibility re: understanding polls is shot here given your wildly inaccurate readings of them in Presidential elections. Sorry. Even were that not the case I think actual wins at the polls for SSM in recent referendums speaks to the fact that at least a significant amount of the upsurge in poll results has a tracking tick upwards in the electorate (I'd also contest your idea that the opinions of 'non-voters' is somehow unimportant).

"Obergefell is hands down the worst substantive due process case the the Supreme Court has ever imposed."

Again, how worse than Meyer and Peirce (two early cases that were interestingly handed down by a much more libertarian Court)? Have you read those cases? What was the "established tests for determining unenumerated rights" in those cases?

"Tell me again that I am being hyperbolic when I note that our Republic is giving way to dictatorship."

OK, you're being hyperbolic when you note that our Republic is giving way to dictatorship. I mean, let's put aside that your up-until-recent hobbyhorse on this line of yours, Obama's immigration deferral of action, has been stopped by the Courts so far. And let's put aside that incredibly conservatives can one day be crowing about how Obama has lost more 9-0 SCOTUS decisions than any President and the next day claiming he's heading an unchecked dictatorship. Even if Ogberfell is an incorrect decision, this nation has no more become a dictatorship as a result than it did in the wake of Meyer, Pierce, Lochner, Griswold, Roe, or Lawrence. To claim such is a hypberbolic insult to all those who have had to live under actual dictatorship (many of whom would expend much to escape them to live in this great nation today).


 

True, I'd say it's more of a drift towards dictatorship at this point, than a lurch. The courts still occasionally thwart Obama, and he hasn't had any of those judges executed yet.

But I'd agree with Bart about the direction of the trend.
 

Brett, are you perhaps being too cynical (NTTAWWT necessarily)? Coming from a conservative perspective, think about how just in recent history we've gone from no federally recognized right of individuals to bear arms to one firmly recognized by SCOTUS, how affirmative action has been greatly curtailed (with this new grant today, perhaps laid to rest soon), etc. Those things would have been unthinkable in, say, 1975.
 

Giving an oppressed group the same rights as everyone else is a drift towards dictatorship? Wow.
 

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bb:

Giving an oppressed group the same rights as everyone else is a drift towards dictatorship? Wow.

In our Republic, we elect legislators to enact our will into law.

In a dictatorship, an unelected person or persons waives the law of our legislatures and issues their own law by decree.

Either a legislature or a dictator may create new government benefits, but a system where the latter decrees those benefits is a dictatorship.
 

I'll grant you, it's a mixed bag. We've made advances on some fronts, suffered losses on others. Heller and McDonald were a great advance, though it appears the Court is now letting the lower courts dismantle those decisions. And it looks like we might actually at some point establish that, no, equal treatment under the law doesn't mandate racial discrimination.

But, Obama has gotten away with some things which do make the drift towards dictatorship charge have some weight. Apparently the President's constitutional duty to see the law faithfully executed permits him to decide to simply not enforce laws he dislikes at all. To change black letter implementation dates on other laws. Extend benefits to people who flatly do not qualify for them.

Then there are extra-legal programs like Operation Chokepoint. Very nasty, that, federal regulators using the threat of abusive regulatory actions to coerce banks and credit card companies to cut off service to legal businesses the government happens to disapprove of. And the IRS abuses, which were not, let's be real, restricted to the IRS, and which haven't really stopped, either.

I'd describe Obama as a frustrated would be dictator, but without the nerve to force things to an actual confrontation. He just goes around pushing everywhere, looking for places where he doesn't get enough pushback to stop him.

He has the fundamental instincts of a dictator, the conviction that he's the only actor in the system entitled to make decisions, but not the ruthlessness to make it stick.

I don't think he's going to cancel the 2016 elections and declare himself President for Life. But he's setting precidents some future dictator would find very useful.
 

Mr. W:

If you do not believe me concerning how modern polling is conducted, by all means educate yourself at 538.com or some similar site. The Courts obviously did not believe the polls and had no faith in the democratic process ton enact their preferred definition of civil marriage. Attacking the messenger is not going to change that reality.

Yes, Obergefell is much worse than Meyer v. Nebraska and Pierce v. Society of the Sisters. Unlike Obergefell, the Court in Meyer and Pierce correctly identified liberty as freedom from government direction and identified freedom of education as a long-established unenumerated fundamental right. The error in the earlier cases was employing substantive due process rather than noting that this liberty is protected by the Ninth Amendment and enforced against the states by the Fourteenth. Meyer and Pierce certainly did not claim that the Court could simply decree new "fundamental rights" based on its "enhanced understanding" derived from a political campaign to change the law.

Obergefell is in the same category as Griswold, Roe and Lawrence in that they all make up constitutional rights out of whole cloth, but Obergefell breaks new ground.

Griswold, Roe and Lawrence negatively removed laws restricting individual freedom, while Obergefell affirmatively rewrote the law to create a new favored class of government beneficiaries.

Griswold, Roe and Lawrence imposed their policies by citing to unrelated privacy rights in the Constitution, while Obergefell created a new arbitrary power of the Court.

In doing so, Obergefell moved us substantially further along the line away from a constitutional republic and toward a dictatorship.

The fact that our progressive political economy employs a more diffuse and less harsh bureaucratic dictatorship than those inflicted by say Nazi Germany or Soviet Russia hardly makes our system less dictatorial. Rather, ours is more like the dictatorships in effect during the final days of the Roman Republic, appointed dictators ruling by decree in response to real or imagined crises. ("Never allow a crisis to go to waste" was not an original thought of Saul Alinsky and members of the Obama administration.) Many of the Roman dictatorial decrees providing bread, circuses and the like were popular with the public, so unsurprisingly the republic gave way to empire, and temporary dictators became the permanent Caesars.
 

Blankshot, no one is creating new benefits. Previously existing benefits are now available to an oppressed minority. Big difference. If you think that fairness is a threat to democracy, you have a pretty warped view of democracy.
 

Bart

"he Court in Meyer and Pierce correctly identified liberty as freedom from government direction and identified freedom of education as a long-established unenumerated fundamental right"

While I grant that the first point does have a well established philosophical pedigree, I don't buy either point. I'll have to see some citation about this 'freedom of education as a long established unenumerated fundamental right,' because the Meyer court seemed to pluck it out of air. As to the other point, I'm not sure your "freedom from government direction" distinction is going to help you in the current debate, since here is the Meyer court speaking for itself (All Caps Mine), and it doesn't seem to recognize your distinction, to wit:

"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, TO MARRY, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

"The fact that our progressive political economy employs a more diffuse and less harsh bureaucratic dictatorship than those inflicted by say Nazi Germany or Soviet Russia"

Goodness what an incredible understatement! I for one recall in history class where at the height of his dictatorial powers Hitler saw repeated rejections of his desired legislation by filibuster in the Reichstag, courts slapping down many of his executive directives, and half of the citizens of Germany daily, openly mocking him as a secret Ottoman.
 

"But, Obama has gotten away with some things which do make the drift towards dictatorship charge have some weight."

Brett, I really think that's an exaggeration. It's not that I don't think there's reason for concern for what appears to be political action by the IRS or cronyism in favoring political friends, it's just I think that that falls short of such a strong word as 'dictatorship.' I've seen more than a couple administrations in my time, and they all seem to engage in some comparably shady shenanigans for political advantage. Bush for example faced charges of politicizing federal prosecutors, and before that Clinton the same for example. Bush also, by executive 'decree' tried to change EPA and other environmental administration in many ways that Courts ultimately slapped down as violating the laws. I don't say this as a tu quoque, or to excuse any instance of this as 'normal' and therefore we should look the other way, but just to submit that our basic democracy and basic civil liberties still seem to be in good shape in the end.
 

Mr. W:

There is not as much daylight between fascism/communism and our progressive political economy as you might think.

Do you realize that, in the 1920s and 1930s, progressives considered fascists and communists as political rock stars, the New Dealers openly admired the Soviet Gosplan, and New Deal programs like the AAA and NRA were modeled after fascist corporatism?

Today, Obamacare and Obama's "clean energy economy" plan are textbook German Zwangswirtschaft ("controlled economy") socialism where the government declines to nationalize an industry and instead abuses its police, taxing and spending powers to direct the industry as if it were the owner to redistribute wealth. The Austrian economists called this "war socialism" because the Germans employed this system during WWI and WWII.

The Gulag is the primary difference between fascism/communism and our current progressive political economy. Of course, if we continue along this path, that difference may also vanish.

 

What, Mr W, you're not willing to call it a drift towards dictatorship until the elections are canceled, and the President's political enemies are being disappeared?

The President has taken to ruling by dictate. "I've got a pen and a phone." He seems not to accept that Congress makes the laws, and if Congress chooses not to make a law he'd like, it isn't a law. (And, contrarywise, if Congress DID make a law he doesn't like, it still IS a law.) We've got the NSA playing secret police. We've got extra-legal attacks on legal enterprises. We've got not just the IRS weaponized.

Now he's purging the military of commanders not loyal to him.

So, he hasn't canceled the elections or had his domestic enemies shot on US territory. I'd rather we reversed this course BEFORE we reach that point.
 

Bart, admiring something or someone and being that someone and something are two different things. One reason for this is often the admirer lives in works in a different environment. The culture, traditions and law of American society are different, and however much this ignorant progressive might have admired communists of that social conservative might have admired fascists, these things help keep them from becoming the objects of their desire.

"New Deal programs like the AAA and NRA were modeled after fascist corporatism"

Case in point, right, both of these were struck down. I don't recall Hitler's pet projects being struck down.

"German Zwangswirtschaft ("controlled economy") socialism"

I've seen this before, and as I've replied you're idiosyncratically arguing with the dictionary itself here.

SOCIALISM
1: any of various economic and political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods
2
a : a system of society or group living in which there is no private property
b : a system or condition of society in which the means of production are owned and controlled by the state

http://www.merriam-webster.com/dictionary/socialism

You're engaging in a texbook equivocation, trying to evoke the emotional reaction to 'socialism' as widely understood as the above definitions but while referring to something different.

 

"ou're not willing to call it a drift towards dictatorship until the elections are canceled, and the President's political enemies are being disappeared? "

That point is so far ahead of where we are now, so far. I admire vigilance but we shouldn't let it verge into paranoia (I say this as someone who rejected my friends on the left's talk of 'Bushitler' during the previous administration mind you).

"The President has taken to ruling by dictate."

1. All administrations do some of this, all of them. When the Clinton administration came into office it told its US attorney's office to stop prosecuting adult obscenity cases and voter fraud cases. When the Bush administration succeeded it, his attorney's were directed to focus on both (but to give less attention to civil rights cases). When Obama came in, yet another change! We weren't a dictatorship at any one of those times, and therefore during none of them.

2. Even if some administrations embrace this approach more than others, we've got other branches which have weapons to push back against it (the legislature and judiciary), and we see this happening all the time. Some of the President's 'dictates' have been turned back by filibuster, or forced to change in compromises with the legislative branches, many others have been stopped in their tracks by the Courts. That is so far from someone 'ruling by dictate' as to make such statements very close to, if not squarely, hyperbole.

None of this is to say we shouldn't be wary of any steps that take us, albeit in relatively small steps, towards a state that would be a nightmare. I'm all for 'Standing with Rand' and Wyden to end the NSA surveillance (and extra-legal drone attacks I'd add), and by all means let's get to the bottom of political use of the IRS. But what good does it do to yell to the public that 'we are in a dictatorship?' They know we're not, and they'll just dismiss that as crying wolf making us all less ready to deal with the very real (though not exaggerated) challenges to our freedoms and civil liberties out there.
 

Look, he's actually now doing things HE said he couldn't do because he wasn't a dictator. He stands condemned from his own mouth.
 

Mr W:

Bart, admiring something or someone and being that someone and something are two different things. One reason for this is often the admirer lives in works in a different environment. The culture, traditions and law of American society are different, and however much this ignorant progressive might have admired communists of that social conservative might have admired fascists, these things help keep them from becoming the objects of their desire.

You are correct to a degree. The New Deal removed us from our nation's last free market period in the 1920s and entrenched progressivism. That alone was a sea change which required a depression to finally convince the American people to accept. However, Team Roosevelt did go further.

The New Dealers attempted to impose fascist corporatism by creating the NRA and AAA. If not for the Supreme Court striking them down as unconstitutional, they might have succeeded.

The Roosevelt administration's direction of the economy during WWII was inspired by the Soviet central direction of their economy. Thankfully, Truman ended this direction after the war.

Since the advent of progressivism around 1890, the United States has gone through cycles of government expansion followed by partial liberalizations, but the net movement has alway been towards greater government control.

You need to realize that progressivism is a totalitarian political economy. Please allow me to explain this before your knees start jerking. Progressives do not believe in a limited government where areas of our liberty are off limits to government. Rather, progressives believe that there is no problem which cannot be solved or at least mitigated by government direction, even those caused by previous government misdirection. Once government direction of an area of our lives is established, progressives will fight to maintain it. Thus, the trajectory of the progressive political economy is toward ever greater government control.

Your dictionary definition of socialism begins and ends with classical socialism - a government owned and directed economy. However, all classical socialist governments from Soviet Russia to the British Labour Party all ran mixed economies with both nationalized and privately owned industries. Because classical socialism did not work, socialists tried two other variations - Zwangswirtschaft (privately owned, but government directed) and economic democracy (worker owned, but government directed). These worked no better than classical socialism because the problem is not who owns the means of production, but rather that government cannot run an economy.

Every nation in the OECD - most recently the United States - has to varying degrees adopted a hybrid of progressivism and socialism. Our governments use both approaches where they see fit.
 

"That point is so far ahead of where we are now, so far. I admire vigilance but we shouldn't let it verge into paranoia (I say this as someone who rejected my friends on the left's talk of 'Bushitler' during the previous administration mind you)."

I wish it were far ahead of where we are now. The problem is, those last few steps take hardly any time at all, once the groundwork is laid.

Even disappearing people isn't unknown in America. And Operation Chokepoint isn't a fantasy, it really happened. Political enemies of the President really HAVE been targeted for retaliation by the bureaucracy, and not just the IRS.

We're closer to becoming a dictatorship than you want to admit, and this "it can't happen here" willful blindness about it isn't helping.
 

To be explicit, if you don't mean to fight dictatorship with a gun, you need to fight it before IT picks up the gun. You need to fight it while the press is still (sort of) free, while there are still elections.

You need to fight it while it's laying the foundations, not after it's decided it's time for a Reichstag fire and arresting the opposition party. You need to fight it while it still wants people doubting that's where it's headed.

You need to fight it while people are still in denial about where things are headed.
 

Bart,

The fact that you have distinguish between 'classical' socialism and these other types, and that "Every nation in the OECD - most recently the United States - has to varying degrees adopted a hybrid of progressivism and socialism" demonstrates my charge of equivocation. People aren't terrified of 'socialism' because they're thinking of regimes where there's regular, institutionalized and effective opposition parties, media and movements, enduring protections for civil liberties, etc.

Either way, we need spend no more time on your excursion here. Substantive due process, the topic here, can and has been in our nation's history used to advance 'anti-socialism' (Lochner) more than 'socialism', and is most often found in areas of social policy both conservative friendly (Meyer, Pierce) or not (Griwold, Roe, Lawrence and now Ogberfell).


 

Brett, like I said, I'm fine with vigilance. My concern is with crying wolf. Constant cries about how we're one step from Nazi Germany, when in actuality whatever perennial problems we have and should take seriously in combating are accompanied by the plain evidence to most folks that we live in a country where the administration is regularly blocked, openly mocked and generally opposed by institutionalized forces, cheapens the charge of dictator leading to really concerning events brought to light to be dismissed. There's space between taking things like Choke Point, the NSA spying, etc., seriously and crying the sky is falling at every turn, a space tied to effectiveness in fighting these things.
 

To turn my excursions with Brett and Bart back to Sandy's original post, it's interesting to ask, how many substantive due process rulings have been followed by popular cries of democracy being subverted? We all know that such cries followed Lochner, and Roe, and to some extent Lawrence and we're hearing them some now after Ogberfell. Will Ogberfell/Lawrence outrage last like Roe's has? What about Meyer and Pierce (or for that matter Griswold, I know there've been fierce legal critics, but was there popular outcry)? I'm unaware of any political outrage and movements charging that our democracy was being usurped by such decisions. Any substantive due process ruling is theoretically going to potentially draw such charges, but only some really seem to draw ire and then lead to long term political opposition. Why is that?

Also, as an aside, where's Shaq? I hope all is well with him and we hear from him soon.
 

"Will Ogberfell/Lawrence outrage last like Roe's has?"

I think not, unless the SSM advocates double down on forcing opponents into complicity.

Roe was the Court mandating the legality of what a large part of the population regards as nothing less than murder. Infanticide. More, what nods to permitting democratic regulation of the new 'right' the court made in Roe, it took away the same day with Doe; The first case said later term abortions could be limited to medical necessity, the latter case said that claims of medical necessity could not be challenged. Leading to the present situation, where doctors specializing in abortion will declare a late term abortion "medically necessary" on the basis that the woman being upset about not getting it is a psychiatric threat. The "medical necessity" requirement is effectively void due to Doe.

The Roe/Doe decision was remarkably extreme in those regards.

Ogberfell is potentially limited in it's scope. If the Court merely mandates that SSM be legal, and leaves it at that, opponents can still avoid complicity in what they object to.

On the other hand, if opponents of SSM are forced into complicity, compelled to actually participate in the SSM, as hosting venues, caterers, bakers and florists, Ogberfell will probably become another Roe/Doe. It's easy to ignore what you think is wrong, if you're not forced to participate in it. If you are so forced, you have no choice but to care.

I have to say the record to date suggests that SSM advocates WILL compell complicity. They don't want just tolerance here, they want to force people to change their minds, or at least act as though they have. Already the ACLU has abandoned it's support of the RFRA, because it would get in the way of forcing people to participate in SSM.

And, if I'm right about this, the fight will be very ugly. Even Roe didn't compell people to become abortionists. (Though attempts have been made in that direction.)
 

I think not, unless the SSM advocates double down on forcing opponents into complicity.

# posted by Blogger Brett : 8:59 AM


I'm pretty sure no one is going to force you into a same sex marriage.
 

"I'm pretty sure no one is going to force you into a same sex marriage."

They better not, at least until they've mandated that polygamy and polyandry be legalized. (Guessing that's going to take a couple years, anyway.) I'm already married. (Interracial, which is why I find it such a hoot when I'm accused of racism.)

They're already talking about taking the tax exemption away from any church that won't perform same sex marriages. So, I'm pretty sure they're going to force complicity, and make this case as much of a big deal as Roe.

No victory for the left is ever complete, if the loser gets to retain their principles.
 

This comment has been removed by the author.
 

Mr. W:

Interesting questions.

To start, our Republic is designed to be constitutionally limited and enforcing the Constitution's guarantees of liberty will by necessity "subvert" our democracy.

The question thus becomes what liberties does our Constitution protect?

With one exception (Roe), the Court's substantive due process forays have not created a lasting popular backlash because they involved preserving or expanding individual liberty. Lochner was really only controversial among the progressive elites of the time who wanted to use the government to direct the economy.

Roe was a fundamentally different critter because the Court was legalizing a form of homicide. In trying to define a classically liberal (today libertarian) society, John Stuart Mill argued that the only proper laws in such a society were those that prohibited people from harming one another. Abortion restrictions fell into that exception.

Obergefell is also fundamentally different, but for a different reason. Kennedy did not expand individual liberty (freedom from government direction), he redefined government civil marriage to compel society to provide benefits and recognition to homosexual unions. Now if the effect of the decision stopped with government benefits and recognition, then I suspect that Obergefell would soon be forgotten. After all, the newly subsidized unions are less than 1% of the population and hardly a burden.

However, SSM proponents will not be satisfied with government benefits. They are already attempting to have the government sanction churches, businesses and individuals who decline to recognize or service their newly decreed civil marriages. I suspect that THIS will and should create a very strong popular backlash.

http://fusion.net/story/158096/does-your-church-ban-gay-marriage-then-it-should-start-paying-taxes/

http://aclu-co.org/court-rules-bakery-illegally-discriminated-against-gay-couple/

Government should not be in the business of defining marriage in the first instance and certainly should not be sanctioning people for declining to recognize the government definition.

 

They're already talking about taking the tax exemption away from any church that won't perform same sex marriages. So, I'm pretty sure they're going to force complicity, and make this case as much of a big deal as Roe.

# posted by Blogger Brett : 9:24 AM


I'm an atheist. I'm very much in favor of all "religions" paying taxes. Tax exempt status for institutional bigotry is a ridiculous scam.
 

bb:

I am a libertarian and the government should only be taxing individuals and not abusing this necessary evil to benefit the organizations the political class favors and sanctioning the organizations they do not.
 

I am a libertarian
# posted by Blogger Bart DePalma : 9:48 AM


And I'm the Pope. All "religions" should be taxed.
 

and not abusing this necessary evil to benefit the organizations the political class favors and sanctioning the organizations they do not

That is EXACTLY why I would tax ALL "religions".
 

In respect to taxes, I think a neutral rule regarding non-profits is appropriate, and religious institutions in that respect would fit as part of a general principle. Some special rules regarding religion are present to further the separation of church and state & protect free exercise of religion which is specifically cited in the 1A.

There is a concern that religious institutions that do not marry same sex couples will lose tax benefits etc. & some note that "they" are talking about it. You can cite various things, including Bartbuster's minority view about ending tax exemptions to churches. But, what exactly is special about same sex marriage that suddenly makes this an issue? The Catholic Church, e.g., doesn't allow women priests, don't let those divorced get the sacrament of marriage, discriminate base on things like contraceptive (constitutional right) use etc.

They have every right to do this regarding their internal affairs, including their clergy and teachers of the faith. Why exactly do people think same sex couples getting married suddenly changes these things except that some specifically are religious and/or morally opposed to this sort of thing more than divorced people getting remarried or contraceptive use (deemed a sin to many)?

A link also is provided that suggests the breadth of the claims. There is a claim made that even selling a cake that will be used for a wedding that one morally opposes means a public accommodation should be allowed not to serve someone. Again, not a novel issue. Brett is consistent. He thinks it is a form of "slavery" to require people to sell to blacks. But, if merely selling a cake is a problem, why stop there? A cake to celebrate any sort of gay related event might be deemed immoral. And, perhaps they can't be too careful -- maybe you shouldn't even have to serve gay people at all certain things, just to be on the safe side.

Anyway, the principle is not based on a civil right to marry since even without it, the bakery would be arguing they can deny the cake to a same sex couple (or someone divorced who is getting remarried or is morally loose or is a Jew etc.) just having a private wedding. Anti-discrimination laws contra the majority opinion of Hobby Lobby saying otherwise would have a big loophole.


 

BTW, Shag is around, and referenced Prof. Levinson's comment over at Dorf at Law.

Not sure why he didn't comment here exactly.
 

Washington (CNN)Most Americans say they support each of the two major Supreme Court rulings issued late last week, and nearly four in 10 now say they view the Court as too liberal.

According to a new CNN/ORC poll, 63% support the Court's ruling upholding government assistance for lower-income Americans buying health insurance through both state-operated and federally-run health insurance exchanges. Slightly fewer, 59%, say they back the ruling which made same-sex marriages legal in all 50 states.


It's like Hitler has returned, except the gays will be the ones running the concentration camps this time.
 

Bart and Brett's comments suggest a few criteria which, as an empirical matter, seem reasonable as to which substantive due process cases provoke significant backlash. Two that strike me as potentially powerful are 1. the number of states having laws like the one invalidated, which can also be taken as some measure of the national level of popularity of the stricken law and 2. the strength of moral feeling on the matter. So, for example, no backlash to Meyer and Pierce because 1. they didn't overturn laws that were operating in a lot of states and 2. while they might have seemed like good enough ideas to get legislation passed in those few places, even in the nationalistic atmosphere they were passed, the idea of children getting foreign language instruction or attending parochial schools was not that outraging to people. Likewise, little comparative outrage to Griswold and Lawrence as few states had laws like those struck down and fewer were enforcing them. But great opposition to Roe and perhaps Ogberfell as many states had laws like those struck down and the issue they deal with are seen as so morally crucial (life or death of what might be seen as a person and the proper form of marriage).

That's an empirical assessment. Now it seems like the question is, should the Court take that kind of thing into account? Should the fact that some law they will strike is accepted in a significant amount of the states or that it is seen as a critical moral issue make them hesitate to recognize a substantive due process right striking down that law, perhaps for Burekean political philosophy reasons or deference to democratic federalism like those expressed in Robert's dissent, or perhaps deference to ensure the Court doesn't take a hit in legitimacy? Or is this sort of thing exactly why we have a Constitution, to protect minorities from majorities, no matter how large or fervent the latter? Interesting questions.


 

Joe, I agree with you that the fears that many like Brett and Bart are putting forward in the wake of Ogberfell are likely exaggerated. Surely any petty municipal official or liberal activist who makes some remark about church officials illegally discriminating against same sex couples is going to get wide broadcast in the conservative media chambers in the near future. There are some extant (but again, much overhyped in my opinion) cases of bakers, florists or photographers facing penalties for refusing to serve customers based on opposition to gays or gay unions involved, but these cases don't seem to me, as you mention, to hang on the Ogberfell decision but rather on state by state and municipal by municipal anti-discrimination laws. It's interesting to note the heightened concern over these few cases involving gays when anti-discrimination laws have been applied to protecting Christians (and other religious groups) from that kind of discrimination for decades with nary a peep of concern for the trampling of basic liberty...

http://www.wsj.com/articles/SB10001424052702304682504579153462921346076

 

" Now it seems like the question is, should the Court take that kind of thing into account?"

No. Absolutely not. If a law is genuinely unconstitutional, they should strike it down, root and branch, and absolutely not re-write it to be some constitutional law the legislature didn't actually pass. (As Roberts has done twice now with the ACA.) They should strike it down no matter how popular it is, no matter how widespread it is, they should strike it down though the heavens would fall and little girls lose their ponies. Keeping the heavens up there, and little girls on their ponies, Isn't Their Job.

IF a law is genuinely unconstitutional.

On the other hand, if a law is constitutional, they should uphold it, no matter how unpopular, no matter how rare, no matter how much damage it causes. And if they can't do that, they should resign, they're not fit to be judges.

Consequences and popularity are not their concern, where constitutionality is the question. Those are the legislature and executive's jobs, not the judiciary's.

The ideal judge would be an emotionless, disinterested robot.

I realize that the Democratic party rejects this idea of the role of the judiciary. They'd say judges are supposed to make things work, and lots of other blah blah blah that just means that the job of judges are to see to it that Democrats' preferred policies are implemented regardless of the text of the law or who wins elections.

And the Democratic party is pretty darned good at selecting reliable partisan hacks for the Supreme court, I'll give them that. Look at that graph! The liberal justices are cookie cutter liberals, there's not an inch of ideological diversity between them.

Partisan hacks in black robes, who think their job is making policy.
 

"As Roberts has done twice now with the ACA."

Yes, he altered the Medicaid portion (Congress structured the mandate as a tax) but agree with RBG that it was constitutional the first time but if it was a problem, what he did was the best approach per precedent. The second time, it wasn't an issue at all & Kennedy -- who announced the joint dissent the first time -- agreed.

Judges are people. That is what the Constitution and our system always accepted and assumed. They are not "robots" and in our system the ideal judge would not act like one since that is not what we aim for. We aim for actual people who adjudicate as people and take some consideration of results since that is part of the overall calculus. This doesn't mean that should replace what the law clearly says, but the law often is tricky. On balance, same sex marriage should be protected, in part because Roberts' analysis did not take into case all the complexities as for example Judge Posner noted at Slate.

Brett again is being partisan. Like the dissents over the top rhetoric, that makes it harder to take him seriously. It is just silly to suggest Republican presidents haven't tried to put ideologically supportive people on the bench since the days of Reagan in particular. Was this a bad thing? Not really as a whole (some choices left something to be desired) -- the Constitution gives the President the power to nominate and "election has consequences" there.

When Alito, e.g., consistently votes in a conservative way is he merely a "hack" who supports "preferred policies," or is it that a conservative President nominated a conservative judge who honestly has an interpretative vision that leans that way? Overall, Scalia, Thomas & Roberts have been consistently conservative too with exceptions that show the complexity of judicial ideology. For instance, on sentencing issues, Breyer often agrees with some conservatives.


 

"judges are supposed to make things work"

This is also a simplistic account of the argument. Pragmatism in fact isn't merely something "Democrats" support (a big pragmatist out there is Judge Posner, a Reagan appointee). But, overall, one issue there is to try to see what the law's overall purpose is and what the text as a whole says in various cases where the text of a specific law is in doubt. The law can be a liberal one or a conservative one, so this is not merely a means to "win elections" etc.

This is not supposed to replace clear text. What really is happening here often is that there are a bunch of longstanding debates over text that one or the other side think is obvious & they figured 'well, I'm obviously right, so the other side must just be making stuff up for partisan etc. reasons."

Simple strong disagreements are hard for some -- on both sides at times -- to accept. So, they make it a personal failing issue.

 

"in various cases where the text of a specific law is in doubt. "

That's the problem, it wasn't in this last case, or the previous. I think Scalia, whatever you think of his snark, was perfectly correct, that "established by a state" could never be ambiguous enough to encompass "NOT established by a state".

And the text of the law was quite specific that the penalty was just that, a penalty, not a tax. (Though were it a tax, it failed to comply with the origination clause.)

I know there's debate over the meaning of the text. Debate only makes something debatable in a tautological sense. Living constitutionalism has reached the point where EVERYTHING is debatable, if the meaning of the text is found offensive.

There's only one thing that cheers me about the ruin the Supreme court is making of our Constitution: Contemplating just how few legislative seats the Republican party is away from being able to amend the Constitution. I think it won't be too much longer before a constitutional convention erases this damage.
 

I agree with those, including some who opposed the law or even thought it unconstitutional (Kennedy), and join with the holding. At best, it's a matter of reasonable debate. Your disagreement is duly noted.

ACA also in various ways treated it as a tax including referencing a portion of the code involving taxes. Taxes can be for various purposes, including penalties. A tariff is a sort of tax & can be in place more as a protective measure than revenue enhancing. But, this one results in revenue all the same. It did not fail to comply with the origination clause since it originated in the House.

"Everything" is not debatable. The Supreme Court generally takes hard cases. Even then, many times supermajorities agree. There are various easy cases there.

And, why do you think a constitutional convention is going to "erase damage"? What is going to be ratified by a supermajority? Some of your positions are not exactly mainstream there. Are Democrats not going to be able to choose judges or something? The results are going to leave a lot of room for interpretation like before. Republicans would likely pass certain things furthering governmental power, just as they are doing in legislatures now.
 

Mr. W:

There are some extant (but again, much overhyped in my opinion) cases of bakers, florists or photographers facing penalties for refusing to serve customers based on opposition to gays or gay unions involved, but these cases don't seem to me, as you mention, to hang on the Ogberfell decision but rather on state by state and municipal by municipal anti-discrimination laws.

The SSM proponents are using a combination of the court decisions finding a right to SSM and anti-discrimination laws reaching sexual orientation. If the law recognizes SSM, then it is discrimination not to provide services for the SSM. These suits are no small thing to the targeted businesses, who are fined out of business if they do not provide the demanded services.

The demands to tax/fine churches and presumably clergy for refusing to conduct and recognize SSMs are even more direct assaults on our right to free exercise of religion - a fundamental right which is actually written into the Constitution.
 

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Joe:

And, why do you think a constitutional convention is going to "erase damage"? What is going to be ratified by a supermajority? Some of your positions are not exactly mainstream there. Are Democrats not going to be able to choose judges or something? The results are going to leave a lot of room for interpretation like before. Republicans would likely pass certain things furthering governmental power, just as they are doing in legislatures now.

A constitutional convention needs to enact a series of amendments drafted in categorical language reversing most of the progressive project and then leash the courts by expressly requiring them to use public understanding textualism, apply a presumption against the government where the language is vague, declare that all prior cases in conflict with the text of the Constitution have no precedential value, and provide Congress the powers to impeach outlaw judges and replace Supreme Court opinions with a supermajority vote.

This is my current book project.
 

You lost me at that last one.

The problem here isn't that judges and justices are haring off in random directions, implementing their own fancies. It's that they are implementing, in place of the Constitution and law, the ideology of those who nominated them. Look at that link I posted at 7:27; The liberal justices aren't a bunch of crazy lunatics, they are very disciplined party hacks. The Republican justices aren't any less hacks, most of them, it's just that the Republicans have been electing Presidents that range from moderately conservative to RINOs, and the various justices have reliably produced what the Presidents who nominated them expected. (It's just that those Presidents lied about what they expected.)

And you can't say there's a shortage of deference to Congress among the judiciary. Quite the opposite, the vast expansion of the federal government has been due to an excess of judicial deference to federal officers. So, how is giving Congress another tool to rein in the judiciary going to solve that?

I don't think ordering the judiciary to use originalism helps much, either, though it won't hurt. Stevens claimed to be an originalist in his Heller dissent. The justices are already willing to issue bad faith rulings, that would just inform them what the cosmetics of the bad faith rulings should be; A lying claim to have employed public understanding textualism.

Which of the recent cases would these reforms of your's fix? A supermajority doesn't exist to reverse them in Congress, except perhaps for Kelo, and even there the state legislatures have shown how easy it is to craft a "fix" that fixes nothing.

No, I don't think the answer lies in commandments any sophist judge could evade without breaking a sweat, and Congressional powers to undo what not enough members of Congress WANT to undo.

The fix has to be structural. Judges will always exhibit bias in favor of the views of those who chose them, and with enough bad faith, find a way to implement those views. We need to change who chooses judges, and especially Justices, in order to redirect that bias.

I'm thinking a federal constitutional court appointed at the state level, and with the power not just to reverse the rulings of lower court judges, but to sanction them, right up to removal from office, if they try to pull a Reinhardt.

That, and the state governments need to be given more leverage over the federal government, to replace what they lost in the 17th.
 

I should admit that Thomas probably wasn't what Bush intended. But we can't just arrange for every Justice to get so pissed off by their treatment during their confirmation hearing that they just don't care what anybody thinks anymore.
 

"The SSM proponents are using a combination of the court decisions finding a right to SSM and anti-discrimination laws reaching sexual orientation. If the law recognizes SSM, then it is discrimination not to provide services for the SSM."

Iirc, in the New Mexico photographer case, the state there did not recognize SSM but penalized the photographer for violating its anti-discrimination law which covered sexual orientation (and race, and gender, and, interestingly, religion!). It just found the photographer's reason to refuse the gay person service-that they objected to the private commitment ceremony-was evidence of refusing on the basis of sexual orientation.

"The demands to tax/fine churches and presumably clergy for refusing to conduct and recognize SSMs are even more direct assaults"

Has there been any serious proposal to do this?
 

" Look at that link I posted at 7:27; The liberal justices aren't a bunch of crazy lunatics, they are very disciplined party hacks. "

I'd be hesitant to take evidence of a set of judges voting together as evidence of concerted hackery necessarily. For example, that voting pattern could be indicative of a Court that has moved to the Right in the past few years having the power to take more cases entertaining conservative legal theories that wouldn't have been 'mainstream' enough to appear before the court in the past. Of course the predictable result of that would be that non-conservative judges would be united in their rejection. Some evidence that this might be the better explanation (or at least one that is just as plausible) can be seen in Scotusblog.com's 'state pak.' It indeed shows 90%+ agreement between Breyer, Sotomayor, Kagan and RBG, but look that it shows that Republican nominee and famous 'moderate' Kennedy had markedly high agreement with the liberal judges (around 80%, compared to 65 and 70 percent with Thomas and Alito, respectively).

http://www.scotusblog.com/statistics/
 

It's appreciated that you -- eventually/when pressured -- managed to be evenhanded but it usually takes a while. But, to repeat an ongoing theme, there is nothing special about executives nominating judges with legal ideologies that net will result in results that overlap with their political vision.

This is the case from the days of John Marshall and will continue until some other selection process is there. As usual, you seem to not like the constitutional system in place. See, "robot judges as ideal."

This doesn't result in "hacks" but judges who have certain legal views. Republican nominees have been consistent on various issues. As to this term, other analysis have noted that the conservatives are pushing the envelope (so, e.g., conservatives tried to overturn a view on fair housing that was the law as understood by something like 10 circuits for years). On a range of issues, conservative justices and judges have shifted the law over the last two decades.

Disagreement on what text and original understanding means is not "lying" even if repeatedly it results in rulings conservatives etc. disagree with or think wrong-minded. Selection on the state level will be of marginal help. If you think partisanship is clouding the judges, this won't change merely because states pick judges. Put aside this is national judiciary so it makes sense for a national selection. Judges already can be impeached.

There has been a long opposition to doing so based on difference of opinion on results. This was the case before and after the 17A, so that wasn't the problem either. Even if there was a constitutional convention, there also is no apparent support from the people to take away their right to directly elect senators instead of the people electing the people who choose senators. There was a move to the result in place now even without the 17A.

Anyway, overall, the public has not shown so much opposition to the results that they want to remove judges. Even on the state level, this is rarely done, and repeatedly because of political opposition to some result. Judicial review is supposed to take certain things out of normal political processes.

As to Thomas, Bush replaced two liberal lions. In one case, he chose a moderate Republican, the other someone the base would like. Neither were really a surprise to those who paid attention.
 

"Put aside this is national judiciary so it makes sense for a national selection."

On the contrary, that it's a national judiciary is exactly why it doesn't make sense for it to be selected at the national level. "Nemo iudex in causa sua.", no man should be a judge in his own case. It's an old, old principle.

How is it any better for a man to be entitled to nominate and confirm the judge in his own case? You can't expect a judiciary nominated by the federal President, and confirmed by the federal Senate, to be impartial when judging cases where the power of both is at stake.

That's why the federal judiciary, or at least the part of it making final constitutional decisions, should NOT be selected by federal officers.
 

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I always find the irony more than a bit amusing of people who so loudly excoriate rule by 'political elites' over 'the people' then calling for the repeal of the 17th Amendment...Because the people can't be trusted in picking their elected officials, instead they need career politicians in their states to do it for them!
 

Brett:

The political elites of both parties and the legal profession are disproportionately progressive. They come from many of the same neighborhoods, went to the same schools and often worked together. Thus, the chances are rather high that the political class will appoint judges the federal bar with a disproportionately progressive world view, regardless of how they self identify politically and ideologically.

The Germans call this bureaucratic quasi-aristocracy bildungsburgertum or "educated middle class."

Our bildungsburgertum judges are not so much party hacks as they are ideologues who feel entitled to set public policy.

The progressive judiciary can freely set policy because the Constitution does not provide any checks on the judicial branch.

Time to change that.
 

"That's why the federal judiciary, or at least the part of it making final constitutional decisions, should NOT be selected by federal officers."

I doubt you'd have wanted judge chosen by the state of Illinois deciding the Macdonald case, would you?
 

"The progressive judiciary can freely set policy because the Constitution does not provide any checks on the judicial branch."

Sure it does. Amendment. Selection by the political branches. And if necessary, impeachment. Once again, you're confusing 'the American people don't want to use these processes for the reasons I would like them to' with 'there are no such processes!'
 

BD: "The SSM proponents are using a combination of the court decisions finding a right to SSM and anti-discrimination laws reaching sexual orientation. If the law recognizes SSM, then it is discrimination not to provide services for the SSM."

Mr. W: Iirc, in the New Mexico photographer case, the state there did not recognize SSM but penalized the photographer for violating its anti-discrimination law which covered sexual orientation...


The NM courts analogized the lesbian commitment ceremony to a marriage. Here in CO, the case of the baker involved a hay couple who were married in MA.

They are variations of the same legal two-step.

BD: "The demands to tax/fine churches and presumably clergy for refusing to conduct and recognize SSMs are even more direct assaults"

Has there been any serious proposal to do this?


Within days...

http://time.com/3939143/nows-the-time-to-end-tax-exemptions-for-religious-institutions/

http://fusion.net/story/158096/does-your-church-ban-gay-marriage-then-it-should-start-paying-taxes/
(See the quoted Alito exchange during oral arguments)

Remember that, a decade ago, no one thought the SSM was a serious proposal. When the judiciary is acting outside the law to impose its preferred social policy, anything is possible.

 

"I doubt you'd have wanted judge chosen by the state of Illinois deciding the Macdonald case, would you?"

The state of Illinois alone, certainly not. All the states? Sure, why not? At this point, the jurisdictions with egregiously bad gun laws are just a few outliers. A national judiciary chosen mostly by the states that aren't outliers wouldn't humor their desire to violate rights most states respect.

No system is going to be perfect, any system for selecting judges is going to exhibit bias. You can only manage the bias, and direct it where it will do less damage. A federal judiciary that's biased in favor of the states, and state judiciaries that are elected, and so biased in favor of popular opinion, is about the best you can do, I think.

Barring robots, and even those need to be programed, so the bias just gets moved back to the programer.


 

"The NM courts analogized the lesbian commitment ceremony to a marriage."

Wait a minute, I read that case. It was not based on discrimination against marital status but sexual orientation. The defense of the photographer was actually that she was not discriminating against gays in general but the ceremony in particular.

And your cited sources re: revoking tax exemptions are two commentators, not government officials (the exchange between Alito and the SG was about whether it would be possible, not whether it's proposed). You can find a commentator from some media outlet willing to say all kinds of things that don't ever lead to any serious policy efforts.
 

"All the states? "

So something like a Confederacy or Union of the State Governments?
 

On the contrary, that it's a national judiciary is exactly why it doesn't make sense for it to be selected at the national level.

So state judges shouldn't be decided by members of their own state either?

"Nemo iudex in causa sua.", no man should be a judge in his own case. It's an old, old principle.

The judge didn't appoint themselves, have a duty to recuse when it is "his own case," but that isn't applied as broadly as you wish. It has to be a certain personal interest that would lead to bias, not some general law that might affect him or her as a general citizen of the state or country. The appeal to history is prime created law office history at work.

How is it any better for a man to be entitled to nominate and confirm the judge in his own case? You can't expect a judiciary nominated by the federal President, and confirmed by the federal Senate, to be impartial when judging cases where the power of both is at stake.

Your scenario does the same thing -- the federal judiciary is going to try cases relevent to the state actors you wish to choose them as well.

That's why the federal judiciary, or at least the part of it making final constitutional decisions, should NOT be selected by federal officers.

The selecting body is going to be in some fashion connected to the people selected unless foreigners do it or something. Your method ultimately rests on a policy choice of local v. national (contra Madison et. al. on this subject) with the irony that it would logically take power from states to pick their own judges. After all, the "his own case" rule is a basic principle of due process of law, which is applied to the states as well.
 

"state judiciaries that are elected, and so biased in favor of popular opinion, is about the best you can do, I think."

So the people should pick the judges but they're not up to and shouldn't be picking their Senators...
 

BD: "The progressive judiciary can freely set policy because the Constitution does not provide any checks on the judicial branch."

Mr. W: Sure it does. Amendment. Selection by the political branches. And if necessary, impeachment. Once again, you're confusing 'the American people don't want to use these processes for the reasons I would like them to' with 'there are no such processes!'


Let me take these contentions one at a time.

Selection by the political branches

As I noted above, most of our federal judges come from our progressive "bildungsburgertum." Read the posts and books here on Balkinization produced by the law professors from our "elite" law schools. Do these men and women believe in the rule of law when it conflicts with their progressive world view? Are they teaching students to respect the rule of law? Are most of those students likely to respect the rule of law on the bench, no matter what they tell the Congress during a confirmation hearing? I think not.

impeachment

The progressives have largely taken impeachment off the table by limiting it to criminal acts and, after Clitnon, it appears that committing felonies short of murder is no longer a ground to impeach. We need to better define the grounds for impeachment, which brings us to...

Amendment

This is our last best hope to return the rule of law. However, amendments providing checks on the judicial branch need to be comprehensive and categorical to be effective against a judiciary which has shown no compunction at all against rewriting the law. I offered some suggestions above.

 

"biased in favor of the states, and state judiciaries that are elected, and so biased in favor of popular opinion"

So, "We the States" over "We the People" and less independent since they like members of the legislature or the executive, will be up to vote. And, for some reason, "public opinion" as channeled thru officials people vote for is not good enough as is. It has to be a certain type of opinion. As to "egregious," before Heller, the nation's capital and populous states like CA, NY, IL and MA had such laws. The rest as a whole were okay with local option.

It is unclear how a USSC appointed by the states would have resulted in much different results on that particular issue. It boils down to the 2A apparently clearly protecting the right to keep and bear arms. The 14A also protects equal protection of the laws. The opposition of many people in various states to the former didn't stop Heller & the latter shouldn't stop the SSM ruling. A national Constitution will result in certain such cases.
 

BD: "The NM courts analogized the lesbian commitment ceremony to a marriage."

Mr. W: Wait a minute, I read that case. It was not based on discrimination against marital status but sexual orientation. The defense of the photographer was actually that she was not discriminating against gays in general but the ceremony in particular.


Generally, the parties have to be similarly situated before you can claim that the business discriminated against one of the parties based on sexual orientation (or any other ground). Marriage or its equivalent in the eyes of the court is that similar situation.

And your cited sources re: revoking tax exemptions are two commentators, not government officials (the exchange between Alito and the SG was about whether it would be possible, not whether it's proposed). You can find a commentator from some media outlet willing to say all kinds of things that don't ever lead to any serious policy efforts.

Remember that the SSM movement and the reasoning in Kennedy's opinion had little to do with the institution of marriage itself and almost everything to do with compelling society to recognize homosexual unions the same as heterosexual unions. Why do you think that the SSM movement or the courts who created a right to SSM are going to stop with government recognition?

The GOP House is drafting a bill to shield churches and businesses from these kind of SLAPP suits. I'll bet the Democrats will nearly all oppose this bill. The ACLU just announced that it will not longer defend religious liberty suits when the defendant is discriminating against SSM.

You have to be blind not to see what is coming.

 

"So the people should pick the judges but they're not up to and shouldn't be picking their Senators..."

I think you're going to have to point out where I suggested repealing the 17th amendment. Sure, I think it had bad structural implications for the operation of the federal government, which were not appreciated at the time, but I don't see any going back on that. People don't care much about bad structural incentives when you propose to take away their vote on something, and perhaps rightly.

OTOH, there's no particular reason for the citizenry to prefer a Supreme court nominated by the President, and confirmed by the Senate, over a Constitutional court nominated by Governors, and confirmed by state legislatures. The selection of the judiciary is exactly as indirect relative to the individual citizen in either scenario; They're electing the Governors and legislators, too, just as much as they are the President and Senators.

I think we can agree that the balance between federal and state power was too much in favor of state power in under the Articles of Confederation, and the Constitution was adopted to remedy that. I'm of the opinion that the last couple of centuries have conclusively demonstrated that they over-shot, especially after the 17th amendment took the states' leverage over the selection of the federal judiciary away.

So, I think we should correct a bit, back in the opposite direction.
 

"most of our federal judges come from our progressive "bildungsburgertum.""

The judges can be selected from whatever the elected officials nominating and approving them want, it's just that the people are not electing officials who are doing this.

"The progressives have largely taken impeachment off the table"

Haha, it's better said that the absurd use of impeachment in the Clinton case has discredited it.
 

"I think you're going to have to point out where I suggested repealing the 17th amendment. "

Fair enough, if you don't want to, mea culpa. You seem to think it was a bad idea though (you favor more power to the states and say that the Amendment led to less power for them).


 

"Generally, the parties have to be similarly situated before you can claim that the business discriminated against one of the parties based on sexual orientation (or any other ground). Marriage or its equivalent in the eyes of the court is that similar situation."

You're just incorrect on this, admit it. The decision says plainly it was about sexual orientation. NM has a statute that says you cannot discriminate on the grounds of, among many other things, sexual orientation, and that applies whether the discrimination be selling them ice cream to eat by themselves, selling them investment advice, or refusing to provide services for a commitment ceremony. The refusal to work the ceremony was taken as evidence of discrimination based on the orientation. Here's the opinion of the Human Rights Commission in that case:
http://www.volokh.com/files/willockopinion.pdf

"The ACLU just announced that it will not longer defend religious liberty suits when the defendant is discriminating against SSM."

To my knowledge the ACLU has never defended a suit where the party claimed a religious liberty to violate discrimination statutes, whether that discrimination be based on sexual orientation, gender, race, or, again, religion.

It's fascinating all the cries of the trampling of liberty now that a few states and localities have added sexual orientation to what was a long list for decades of protected classes, religion being one! Somehow, protecting religious people from discrimination for decades before such protections were extended to gays didn't seem to upset the same people who now think the same applied to gays is the greatest affront to liberty in recent history...
 

Yes, I think it was a bad idea, but not all bad ideas have to be directly remedied. Sometimes an indirect approach is better.

"The judges can be selected from whatever the elected officials nominating and approving them want, it's just that the people are not electing officials who are doing this."

In theory we could elect officials who favor term limits, too. But the reality is that term limits got implemented in pretty much every state that had the initiative, and no state that lacked it, for a reason: When a subject too directly implicates the interests of the office holder, representative democracy usually fails. It also fails when you have a cohesive political class with views that systematically differ from the public's views on a topic.
 

Mr. W:

Here is the takeaway holding of the NM Supreme court in Elane Photography, LLC v. Willock:

First, we conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.

http://www2.bloomberglaw.com/public/desktop/document/Elane_Photography_LLC_v_Willock_2013NMSC040_309_P3d_53_Court_Opin/1

Similar situation is a necessary element of a discrimination case.

If the photographer declined to photograph a same sex couple skydiving, the couple could not make a discrimination case based on the fact that the photographer photographed heterosexual marriages.

Now that the Supreme Court has rewritten New Mexico's civil marriage law to include SSM, the NM court will no longer have to analogize between a commitment ceremony and a civil marriage.
 

It is unclear how far the political class is from the public's view on topics really though it probably can be shown in various cases. But, republican government will result in this in some respect since it channels democracy.

Then, we will have more spinning of poll data to show how people really don't support same sex marriage or national and state gun regulation and "elites" or the "media" are tricking us.

Term limits only so far as well -- my city has term limits but it is unclear how it changed things overall to the extent we are talking about here big picture on issues. I think a twenty year or so limit on justices would make sense. But, limited effects.
 

Term limits was more of an example of how, when an issue directly implicates the interests of office holders, representative democracy breaks down. Never mind the merits of it as a policy, it had a huge level of public support, but the democratic process simply could not elect legislators who'd do it.

Same reason you can't elect politicians to a level of government, and expect them to limit that level's power. It's just too much not in their personal interest, they won't do it.

But, if you can transfer that decision to a different level of government, so that the politicians are attacking the personal interest of OTHER politicians, not their own, it becomes feasible.
 

Joe: "It is unclear how far the political class is from the public's view on topics really though it probably can be shown in various cases."

There is a chasm between the two.

Scott Rasmussen did extensive polling on their fundamentally different point of views, which is assembled in his book entitled Mad as Hell.


 

Term limits are in place a lot of places and the powers that be manage to adapt to it. There are rotation among those who obtain the support needed these days to get funding etc. It's debatable how useful it is in various respects & since it would require a constitutional amendment on the federal level, hard to change there. The impetus for it is just not strong enough to change it on that level.

There are various checks and balances on political self-interest in this country. But, yes, concern about limits of the tyranny of local majorities, to use the language they used, led Madison et. al. to support the federal system that Brett wants to alter. Madison also strongly opposed the two senate rule, supporting dividing it by population.

Again, Brett's logic means locals have too much power -- e.g., they shouldn't choose their own judges. They are too self-interested. As to the "chasm," I'm sure there is some -- that's something you will get a liberal and a Tea Party person to support as a matter of principle often enough. I just wonder how much. And, there is going to be some chasm. It's a republican system, not a direct democracy. Question then becomes a matter of scope. New thread open.


 

Bart, I'm afraid you've rather badly misread that selection and the Elane Photography decision in general. The analogy you highlight is meant to say that just as refusing to photograph an interracial wedding would be taken as discrimination based on race rather than as an objection to the act of people of two different races marrying or calling their ceremony a marriage, the refusal to photograph the same sex commitment ceremony was taken as discrimination against the participant's sexual orientation. IF you serve opposite sex couples, whether that be serving them burgers and fries for dinner or photographing (or catering, etc) their wedding ceremonies, then you must likewise serve opposite sex couples, or discrimination would be found. Photographing wedding services is just the service this particular business offered to the public. This is clearly what it means when it says that it runs afoul of the law because "It provides wedding photography services to heterosexual couples, but it refuses to work with homosexual couples under equivalent circumstances. " This case would have been the same if it were Elane's Burgers and she decided that while she serves family dinners to straight couples she wouldn't serve the same to opposite sex couples because she doesn't recognize them as families.

Here are some of the many passages from the opinion that prove that the complaint, analysis and finding were all about discrimination based on sexual orientation, not marriage, and would have applied if Elane would have served opposite sex couples (or individuals) but refused same sex equivalents in whatever service she offered:

(first line of the case): "By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -13 (1969, as amended through 2007), the Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexual orientation."

"Willock filed a discrimination complaint against Elane Photography with the New Mexico Human Rights Commission for discriminating against her based on her sexual orientation in violation of the NMHRA. The Commission concluded that Elane Photography had discriminated against Willock in violation of Section 28-1-7(F), which prohibits discrimination by public accommodations on the basis of sexual orientation, among other protected classifications."

"As a matter of New Mexico law, the NMHRA prohibits a public accommodation from refusing to serve a client based on sexual orientation, and Elane Photography violated the law by refusing to photograph Willock's same-sex commitment ceremony."
 

"but it refuses to work with homosexual couples under equivalent circumstances."

I'm pretty sure that Bart's point is that, absent the legality of SSM, or something analogous, there can't BE equivalent circumstances. Elaine photographs weddings. If gays can't get married, she can't be compelled to photograph nonexistant weddings.

My own opinion, of course, is that public accomodation laws have become an abomination, amount to a modern violation of the 13th amendment by compelling servitude. (I do recognize that's not majority opinion. It's mine, however.)
 

Brett, NM didn't recognize same sex marriage at the time. There still were "weddings" as in private commitment ceremonies understood by the parties to be weddings. Likewise, if someone is against infant baptism, you don't need state recognition of baptisms to not want to photograph them.

Public accommodation laws go back to the 19th Century at least as noted in the Heart of Atlanta Hotel case. The Civil Rights Cases back in the 1880s held that Congress could not require serving blacks as a matter of 13/14A power, but even they didn't think states couldn't do it. Yes, it is a minority opinion.
 

Brett gets it.
 

"Brett gets it."

No, you both don't. As joe explains, Ogberfell and marriage recognition plays no role in this, Elane was pre-Ogberfell and in a state that did not recognize SSM. The issue was: did Elane refuse to serve gays because they were gay. The only way the specific service offered in this case matters was that Elane's defense was 'I didn't turn them away because of their sexual orientation, I turned them away because I photograph marriages but same sex commitments are not marriages.' This case would have been the same if her business served family style dinners but she refused to serve a gay family because she argued gay families weren't really families hence their dinners were not family dinners. You don't need to have gay or any family dinners recognized to see that the refusal is based not on different acts being photographed but different subjects involved. That's how the court reasoned. To drive the point home more, see this from the NM SC opinion noting the evidence that Elane wouldn't just refuse to photograph what she saw as a different type of ceremony, she wouldn't do other types of photographs, such as portraits, she otherwise would do if the subjects were 'acting gay.' The Court rightly sees this 'action-status' distinction as empty formalism counter to the express intent of the law. (as to whether she had a valid first amendment defense on the grounds of expression based services involved or religious exemption, that's another matter I won't get into here).

"Elane Photography argues that it did not violate the NMHRA because it did not discriminate on the basis of sexual orientation when it refused service to Willock. Instead, Elane Photography explains that it "did not want to convey through [Huguenin]'s pictures the story of an event celebrating an understanding of marriage that conflicts with [the owners'] beliefs." Elane Photography argues that it would have taken portrait photographs and performed other services for same-sex customers, so long as they did not request photographs that involved or endorsed same-sex weddings. However, Elane Photography's owners testified that they would also have refused to take photos of same-sex couples in other contexts, including photos of a couple holding hands or showing affection for each other."
 

"This case would have been the same if her business served family style dinners but she refused to serve a gay family because she argued gay families weren't really families hence their dinners were not family dinners. "

Not quite. It would have been the same, if the definition of "family" had for thousands of years excluded gay families, with gay 'families' being a novel invention.

Suppose they'd been in the business of photographing briss ceremonies... Would they be obligated to take a job to photograph a female circumcision?

No, because THAT'S NOT A BRISS.
 

"if the definition of "family" had for thousands of years excluded gay families, with gay 'families' being a novel invention."

Er, that's actually true history there! For thousands of years the definition of a family would never have included a gay pair at the head of it, through most of that history it is because the pair would have been assaulted/killed or jailed/put into a mental asylum via force. As Kennedy notes it seems an especially perverse way to think about expanding rights to say 'well, traditionally there the idea of 'marriage' or 'family' never included gays because any gays trying to act thus would have been the victims of societal force, therefore that's a good reason to not expand the definition to include them.' The act of their traditional exclusion becomes the justification for their future exclusion.

Your briss ceremony is a good one, but I had one that I admit is a bit more 'adult,' and I hope you'll forgive that about it but I think it demonstrates my point exactly. Suppose Elane ran a photography service that specialized in pornographic photos of couples, and she said 'I'm happy to photograph a man giving a woman cunnilingus but I will not photograph a woman giving a woman the same.' Her argument analogous to the infamous case would be that 'that's not the same thing and I only photograph the former thing' but is there any doubt that this woman objects to GAY sex acts (that is, such acts when done by gays)? That conclusion would be further compounded if it were found that likewise she was happy to photograph a nude man and woman in embrace kissing but not the same for two men or two women. And, of course, in the actual Elane case the Court noted evidence that Elane refused not only to photograph same sex commitment ceremonies, but she also refused to photograph gays holding hands, kissing, etc., in portraits (but photograph the same for opposite sex couples in portraits). One would have to have worse sight than a cyclops with severe glaucoma to not recognize this as discrimination against gays (again, whether such discrimination should be allowed as a matter of policy or under the shield of First Amendment speech/religion is in my opinion different, more difficult questions).
 

The next time I read a blog, I hope that it doesnt disappoint me as much as this one. I mean, I know it was my choice to read, but I actually thought you have something interesting to say. All I hear is a bunch of whining about something that you could fix if you werent too busy looking for attention. Read More Read More Read More
 

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