Recent Survey (via Jana Reiss)

[Gray]

8 minutes ago, Scott Lloyd said:

The constitutionality is based on the intent of the lawmakers at the time the law was enacted. Otherwise, the judicial body in effect becomes a legislative body, thus overstepping its bounds. 

Intent is only one of many considerations. If intent were the only consideration, gun ownership would work very differently in this country, for example.

And of course many amendments (like the 14th) contain quite broad language. They protect American citizens broadly, whether or not the people who wrote the language considered this or that particular group.

Laws must be in compliance with the constitution. The state of mind of lawmakers has no bearing on that.

Edited July 9, 2017 by Gray

[Scott Lloyd]

14 minutes ago, Gray said:

Intent is only one of many considerations. If intent were the only consideration, gun ownership would work very differently in this country, for example.

And of course many amendments (like the 14th) contain quite broad language. They protect American citizens broadly, whether or not the people who wrote the language considered this or that particular group.

Laws must be in compliance with the constitution. The state of mind of lawmakers has no bearing on that.

 

You are contradicting yourself. First, you acknowledge that intent is "one of many considerations." Then you assert a priori  that "the state of mind of lawmakers has no bearing" on constitutionality.

I suggest you school yourself on the concept of legislative intent. Here's a good place to start:

Quote

Legislative intent is a construct that courts use to discern the meaning of legislative action, usually in the form of legislation. The concept is employed in many fields of law—including constitutional law—in the interpretation and application of statutes. In constitutional law, courts also use the concept in determining the purposes or goals of a legislature when they are relevant to deciding the constitutionality of the legislation.

(emphasis mine)

[Scott Lloyd]

34 minutes ago, Gray said:

USU78 is taking the same tack you are. That is to say, ignoring the substance of his response to the question about a legal justification for gay marriage. The answer being equal protection under the law.

As Scalia pointed out in his dissenting opinion "equal protection under the law" is too vague a concept to be relied upon solely as justification for the ruling, and the legislative intent of the 14th Amendment and of laws historically pertaining to marriage must be considered (see my prior post).

Edited July 9, 2017 by Scott Lloyd

[Gray]

9 minutes ago, Scott Lloyd said:

You are contradicting yourself. First, you acknowledge that intent is "one of many considerations." Then you assert a priori  that "the state of mind of lawmakers has no bearing" on constitutionality.

I suggest you school yourself on the concept of legislative intent. Here's a good place to start:

(emphasis mine)

Two different topics - intent of framers of the constitution (and its amendments) vs intent of, for instance, people crafting state laws about marriage. You are actually the one who conflated the two. I sorted them out for you.

[Gray]

8 minutes ago, Scott Lloyd said:

As Scalia pointed out in his dissenting opinion "equal protection under the law" is too vague a concept to be relied upon solely as justification for the ruling, and the legislative intent of the 14th Amendment and of laws historically pertaining to marriage must be considered (see my prior post).

As the majority of the justices pointing in their ruling, both the equal protection clause and the due process clause guarantee gay people the fundamental right to marry.

Edited July 9, 2017 by Gray

[Scott Lloyd]

12 hours ago, Gray said:

As the majority of the justices pointing in their ruling, both the equal protection clause and the due process clause guarantee gay people the fundamental right to marry.

As it happens, the majority of justices in that 5 to 4 decision are wrong. 

Edited to add:

Here's a relevant passage on this from Scalia's dissenting opinion:
 

Quote

 

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.[20] They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,[21] cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.[22] Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”[23] (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”[24] (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”[25] (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.

 

 

Edited July 10, 2017 by Scott Lloyd

[Scott Lloyd]

19 minutes ago, Gray said:

Two different topics - intent of framers of the constitution (and its amendments) vs intent of, for instance, people crafting state laws about marriage. You are actually the one who conflated the two. I sorted them out for you.

You claimed that "the state of mind of lawmakers" has no bearing on constitutionality. I pointed out that their state of mind goes to legislative intent, which I showed is a valid consideration in constitutional law. 

[california boy]

7 hours ago, Kenngo1969 said:

Nothing, if you choose not to.  That's certainly your prerogative.  I think your silence says quite a lot by itself, but perhaps I'm alone in that.  It wouldn't be the first time. Good day.  

Ken, you pick one sentence and completely ignore the rest of the comment.  Then you think you  have made some profound statement.  I am not so sure your snide remark deserves a smily face when you didn't even attempt to engage in the conversation.

If you don't want to engage, why do you write anything about what I post?

Edited July 9, 2017 by california boy

[california boy]

6 hours ago, Scott Lloyd said:

As Scalia pointed out in his dissenting opinion "equal protection under the law" is too vague a concept to be relied upon solely as justification for the ruling, and the legislative intent of the 14th Amendment and of laws historically pertaining to marriage must be considered (see my prior post).

Can you define what religion is?  Or is that too vague a concept to be relied upon solely as justification for a ruling?

Let's say a group claiming to be a religion teaches that in order to get to the highest degree of heaven, they have to marry more than one wife.  Even though when the constitution was written,  not a single religion in America practiced this religious belief.  Is that a religion?  Should they be allowed to practice something that was not in any other religion in America at the time the constitution was written? Should they be allowed the tax benefits given to churches in America?  Or is it too vague of concept to be relied upon solely as justification for a ruling?

How about a region that teaches you can still get to heaven even if you marry someone of the same sex.  No religion even practiced that belief when the constitution was written.  Should that religion be allowed the tax benefits given to churches?  Or is that too vague of concept to be relied upon solely as justification for a ruling?

I would  suggest that it is easier to define what equal protection under the law is than it is to define what counts as a religion.

[Scott Lloyd]

12 hours ago, california boy said:

Can you define what religion is?  Or is that too vague a concept to be relied upon solely as justification for a ruling?

Let's say a group claiming to be a religion teaches that in order to get to the highest degree of heaven, they have to marry more than one wife.  Even though when the constitution was written,  not a single religion in America practiced this religious belief.  Is that a religion?  Should they be allowed to practice something that was not in any other religion in America at the time the constitution was written? Should they be allowed the tax benefits given to churches in America?  Or is it too vague of concept to be relied upon solely as justification for a ruling?

How about a region that teaches you can still get to heaven even if you marry someone of the same sex.  No religion even practiced that belief when the constitution was written.  Should that religion be allowed the tax benefits given to churches?  Or is that too vague of concept to be relied upon solely as justification for a ruling?

I would  suggest that it is easier to define what equal protection under the law is than it is to define what counts as a religion.

I'm not clear on the relevance of this. I'm quite lenient in my allowance of what constitutes religion under the law. So long as the particular religion, whatever it is, is not oppressive to its own adherents or to outsiders, I have no problem with it, and I'm not really interested in establishing a fixed legal definition of religion. 

Edited July 10, 2017 by Scott Lloyd

[Scott Lloyd]

"For my entire political life, I've spoken about the need for the Supreme Court to interpret the law, not make it." -- President Ronald Reagan, who appointed Antonin Scalia and Sandra Day O'Connor to the U.S. Supreme Court.

"I'm in the business of enforcing democracy. What democracy means is that on controversial issues, even stuff like homosexual rights, abortion, whatever, we debate with each other and persuade each other and vote on it." -- Justice Antonin Scalia

The late Justice Scalia was a champion of originalism, which seeks to understand the intent of those who drafted and ratified the Constitution and to interpret the law  in that light.

Edited July 10, 2017 by Scott Lloyd

[Gray]

21 hours ago, Scott Lloyd said:

As it happens, the majority of justices in that 5 to 4 decision are wrong. 

Edited to add:

Here's a relevant passage on this from Scalia's dissenting opinion:
 

 

Ah, well, if you think they were wrong, that clinches it, I guess.

[Gray]

21 hours ago, Scott Lloyd said:

You claimed that "the state of mind of lawmakers" has no bearing on constitutionality. I pointed out that their state of mind goes to legislative intent, which I showed is a valid consideration in constitutional law. 

You seem to be continuing to mix up legislation with the constitution. The intent of lawmakers has no bearing on whether their laws are actually constitutional.

[Scott Lloyd]

44 minutes ago, Gray said:

Ah, well, if you think they were wrong, that clinches it, I guess.

 

42 minutes ago, Gray said:

You seem to be continuing to mix up legislation with the constitution. The intent of lawmakers has no bearing on whether their laws are actually constitutional.

Apparently you haven't bothered to read the quotations from Justice Scalia I have been providing.

Intent has just as much to do with drafting and ratifying of the Constitution as it does to the enactment of statutes.

Scalia was a proponent of the doctrine of originalism, which, as I have already stated, seeks to understand the intent of those who drafted and ratified the Constitution and to interpret the law  in that light. Jurists can ignore the intent, I suppose, but when they do, they become unelected law makers as opposed to law interpreters, which is their constitutionally mandated role. I don't much care for a government where the judicial branch tends to usurp the role of the legislative branch. It strikes me as undemocratic and un-American.

When the five majority members of SCOTUS took it upon themselves to decree that the 14th Amendment and the equal protection or due process clause covered a homosexual "marriage," a new invention that had been unheard of or inconceivable throughout recorded history until now, they invalidated the voice of the people, took the matter out of the realm of the political process, and arrogated themselves to the role of dictator.

Scalia encapsulated it very well when he said, ""I'm in the business of enforcing democracy. What democracy means is that on controversial issues, even stuff like homosexual rights, abortion, whatever, we debate with each other and persuade each other and vote on it."

 

 

Edited July 10, 2017 by Scott Lloyd

[Gray]

23 minutes ago, Scott Lloyd said:

 

Apparently you haven't bothered to read the quotations from Justice Scalia I have been providing.

Intent has just as much to do with drafting and ratifying of the Constitution as it does to the enactment of statutes.

Scalia was a proponent of the doctrine of originalism, which, as I have already stated, seeks to understand the intent of those who drafted and ratified the Constitution and to interpret the law  in that light. Jurists can ignore the intent, I suppose, but when they do, they become unelected law makers as opposed to law interpreters, which is their constitutionally mandated role. I don't much care for a government where the judicial branch tends to usurp the role of the legislative branch. It strikes me as undemocratic and un-American.

When the five majority members of SCOTUS took it upon themselves to decree that the 14th Amendment and the equal protection or due process clause covered a homosexual "marriage," a new invention that had been unheard of or inconceivable throughout recorded history until now, they invalidated the voice of the people, took the matter out of the realm of the political process, and arrogated themselves to the role of dictator.

Scalia encapsulated it very well when he said, ""I'm in the business of enforcing democracy. What democracy means is that on controversial issues, even stuff like homosexual rights, abortion, whatever, we debate with each other and persuade each other and vote on it."

 

 

Again, originalism has to do with the intent of framers of the constitution, not the intent of, say, Alabama state lawmakers.

Originalism is ultimately futile and without value, but at least let's not confuse it with something else.

You know, the same 14th amendment that protects the rights of gay citizens also protects your rights as a Mormon. Maybe it's an overreach not to let people vote on whether Mormons should have civil rights?

Thankfully, though, most gay people are courteous enough not to use scare quotes when talking about LDS marriage.

It's more than a little sad that you'd use the term "dictator" to describe judges who have ruled that the people have MORE rights, not fewer rights. Dictators are usually in the business of taking rights away from minorities, but you don't seem to have a problem with that when it comes to gay people.

Edited July 10, 2017 by Gray

[USU78]

38 minutes ago, Gray said:

Again, originalism has to do with the intent of framers of the constitution, not the intent of, say, Alabama state lawmakers.

Originalism is ultimately futile and without value, but at least let's not confuse it with something else.

You know, the same 14th amendment that protects the rights of gay citizens also protects your rights as a Mormon. Maybe it's an overreach not to let people vote on whether Mormons should have civil rights?

Thankfully, though, most gay people are courteous enough not to use scare quotes when talking about LDS marriage.

It's more than a little sad that you'd use the term "dictator" to describe judges who have ruled that the people have MORE rights, not fewer rights. Dictators are usually in the business of taking rights away from minorities, but you don't seem to have a problem with that when it comes to gay people.

Like the right to be a setup artist, using antidiscrimination laws to enrich one's self at the expense of workaday shlubs running family businesses, just trying to support their families?

[Scott Lloyd]

2 hours ago, Gray said:

Again, originalism has to do with the intent of framers of the constitution, not the intent of, say, Alabama state lawmakers.

Originalism is ultimately futile and without value, but at least let's not confuse it with something else.

 

Legislative intent has to do with what the Alabama lawmakers do. It is akin to originalism, the idea that the intent with which the thing was enacted is a valid consideration.

Quote

You know, the same 14th amendment that protects the rights of gay citizens also protects your rights as a Mormon. Maybe it's an overreach not to let people vote on whether Mormons should have civil rights?

Mormonism existed at the time the 14th amendment came into being. Not homosexual "marriage." The First Amendment guarantees religious liberty, not homosexual "marriage."

Quote

Thankfully, though, most gay people are courteous enough not to use scare quotes when talking about LDS marriage.

I use the quotation marks because homosexual "marriage" is not marriage.

Quote

It's more than a little sad that you'd use the term "dictator" to describe judges who have ruled that the people have MORE rights, not fewer rights. Dictators are usually in the business of taking rights away from minorities, but you don't seem to have a problem with that when it comes to gay people.

USU78 has already indicated how anti-discrimination laws have encroached upon other liberties in the wake of the Obergefell ruling.

In his dissenting opinion, Chief Justice John Roberts warned that the ruling would open the door to infringement upon religious liberty. He was very prescient.

 

Edited July 10, 2017 by Scott Lloyd

[california boy]

10 hours ago, Scott Lloyd said:

I'm not clear on the relevance of this. I'm quite lenient in my allowance of what constitutes religion under the law. So long as the particular religion, whatever it is, is not oppressive to its own adherents or to outsiders, I have no problem with it, and I'm not really interested in establishing a fixed legal definition of religion. 

Well that is exactly the point.  Scalia bases his opinion on his belief that "due process of law" or " equal protection of the laws" as being a vague constitutional provision.  But you could use that rational over anything that comes before the courts.  The definition of religion is also vague.  And how the constitution interprets what is religion is also vague.  So lets look at the dissenting opinion on the situations that I gave you.  While I know your mind is closed on the issue of whether gay marriage should be legal, perhaps looking at something that you may not have such an opinion on might give some insight into Scalia's statement.

Under Scalia's opinion, would the Supreme Court have the power to no longer legally recognize a religion that teaches something that was not in practice in 1787 when the Constitution was ratified.  For example: 

Should a church that believe that in order to reach the highest part of heaven they have to marry more than one wife loose their recognition of a religion because that practice was not in existence when the Constitution was ratified?  

Should a religion that believes couples can be married for time and eternity not be recognized as a religion and should loose their religious tax status because that concept did not exist in any church when the Constitution was ratified.  

Should a religion that claims to have a living prophet of God that speaks for Christ not be recognized as a religion and should loose their tax exempt status because that definition of religion did not exist when the Constitution was ratified?

Could a governor as a duly elected representative of the people have the power to declare Mormonism not a valid religion and strip it of any state benefits it might receive?  Could the people put the Mormon church up for vote.  Let's say that the people voted to have the government no longer recognize Mormonism as a real religion. Could the church loose its legal ability to be exempt from taxes?  What if the government no long recognized anyone married by the Mormon church because the beliefs that Mormons have was not a univerally agreed upon teaching when the Constitution was ratified?  

Would the church have no legal recourse to defend themselves in the courts of this country?

You like Scalia's dissenting brief so much that you think it should have been the law?  How about if the principles that he based his brief on was used against the church that you love so dearly?  

Be careful what you wish for Scott.

[Scott Lloyd]

59 minutes ago, california boy said:

Well that is exactly the point.  Scalia bases his opinion on his belief that "due process of law" or " equal protection of the laws" as being a vague constitutional provision.  But you could use that rational over anything that comes before the courts.  The definition of religion is also vague.  And how the constitution interprets what is religion is also vague.  So lets look at the dissenting opinion on the situations that I gave you.  While I know your mind is closed on the issue of whether gay marriage should be legal, perhaps looking at something that you may not have such an opinion on might give some insight into Scalia's statement.

Under Scalia's opinion, would the Supreme Court have the power to no longer legally recognize a religion that teaches something that was not in practice in 1787 when the Constitution was ratified.  For example: 

Should a church that believe that in order to reach the highest part of heaven they have to marry more than one wife loose their recognition of a religion because that practice was not in existence when the Constitution was ratified?  

Should a religion that believes couples can be married for time and eternity not be recognized as a religion and should loose their religious tax status because that concept did not exist in any church when the Constitution was ratified.  

Should a religion that claims to have a living prophet of God that speaks for Christ not be recognized as a religion and should loose their tax exempt status because that definition of religion did not exist when the Constitution was ratified?

Could a governor as a duly elected representative of the people have the power to declare Mormonism not a valid religion and strip it of any state benefits it might receive?  Could the people put the Mormon church up for vote.  Let's say that the people voted to have the government no longer recognize Mormonism as a real religion. Could the church loose its legal ability to be exempt from taxes?  What if the government no long recognized anyone married by the Mormon church because the beliefs that Mormons have was not a univerally agreed upon teaching when the Constitution was ratified?  

Would the church have no legal recourse to defend themselves in the courts of this country?

You like Scalia's dissenting brief so much that you think it should have been the law?  How about if the principles that he based his brief on was used against the church that you love so dearly?  

Be careful what you wish for Scott.

The First Amendment protects religious freedom. Nothing in the Constitution guarantees unhindered passage of radical and fundamental re definitions of institutions such as marriage. 

By the way, "lose" and "loose" are not synonyms. 

Edited July 10, 2017 by Scott Lloyd

[california boy]

1 hour ago, Scott Lloyd said:

The First Amendment protects religious freedom. Nothing in the Constitution guarantees unhindered passage of radical and fundamental re definitions of institutions such as marriage. 

By the way, "lose" and "loose" are not synonyms. 

Well Scott, I have really made an effort to show why the  majority of the justices disagreed with Scalia's dissenting opinion.  I have tried to put it in a context that you would relate to.  But I can tell from your comments that you really don't want to understand the issues.  You would rater ignore the substance of what is being talked about and revert back to trite platitudes.  

Equal protection under the law is NOT a radical new definition of what the law was written to protect.  You just choose to forever hold on to the idea that gays are not entitled to the same rights as straight couples. That they should be treated as second class citizens.  And that the constitution does not apply to them or their right to marry.  

 

[Gray]

2 hours ago, Scott Lloyd said:

Legislative intent has to do with what the Alabama lawmakers do. It is akin to originalism, the idea that the intent with which the thing was enacted is a valid consideration.

It's really not, Scott.

 

Quote

Originalism: the judicial interpretation of the constitution that aims to follow closely the original intentions of those who drafted it.

 

2 hours ago, Scott Lloyd said:

Mormonism existed at the time the 14th amendment came into being. Not homosexual "marriage." The First Amendment guarantees religious liberty, not homosexual "marriage."

The first amendment guarantees the right to practice your religion, but the 14th guarantees equal protection under the law, which isn't quite the same thing. The 14th amendment protects your marriage as well.

 

2 hours ago, Scott Lloyd said:

I use the quotation marks because homosexual "marriage" is not marriage.

Scare quotes are often used by those intolerant of Mormonism for similarly nefarious purposes.

 

2 hours ago, Scott Lloyd said:

USU78 has already indicated how anti-discrimination laws have encroached upon other liberties in the wake of the Obergefell ruling.

You're confusing privilege with liberty.

 

2 hours ago, Scott Lloyd said:

In his dissenting opinion, Chief Justice John Roberts warned that the ruling would open the door to infringement upon religious liberty. He was very prescient.

 

The marriage ruling hasn't infringed on religious liberty. Ironically, infringments upon religious liberty come mostly from the right wing regime currently in power.

[Gray]

3 hours ago, USU78 said:

Like the right to be a setup artist, using antidiscrimination laws to enrich one's self at the expense of workaday shlubs running family businesses, just trying to support their families?

What a burden it is for fundamentalist business owners to have to cater to "undesirables." I suppose they can console themselves by drying their tears on the good money they're earning from gay customers.

Edited July 10, 2017 by Gray

[Gray]

24 minutes ago, california boy said:

Well Scott, I have really made an effort to show why the  majority of the justices disagreed with Scalia's dissenting opinion.  I have tried to put it in a context that you would relate to.  But I can tell from your comments that you really don't want to understand the issues.  You would rater ignore the substance of what is being talked about and revert back to trite platitudes.  

Equal protection under the law is NOT a radical new definition of what the law was written to protect.  You just choose to forever hold on to the idea that gays are not entitled to the same rights as straight couples. That they should be treated as second class citizens.  And that the constitution does not apply to them or their right to marry.  

 

If equal protection under the law were interpreted as Scott thinks it should be, Mormons would be a in a world of trouble, especially in the South.

What would stop, for example, the Georgia state government from passing a law saying LDS chapels would no longer enjoy police protection when they needed it. Or perhaps a surtax on LDS marriages?

Edited July 10, 2017 by Gray

[Kenngo1969]

32 minutes ago, california boy said:

Well Scott, I have really made an effort to show why the  majority of the justices disagreed with Scalia's dissenting opinion.  I have tried to put it in a context that you would relate to.  But I can tell from your comments that you really don't want to understand the issues.  You would rater ignore the substance of what is being talked about and revert back to trite platitudes.  

Equal protection under the law is NOT a radical new definition of what the law was written to protect.  You just choose to forever hold on to the idea that gays are not entitled to the same rights as straight couples. That they should be treated as second class citizens.  And that the constitution does not apply to them or their right to marry.  

 

Platitudes?  You mean, like, "Love wins"?  "No on H8"?

[USU78]

41 minutes ago, Gray said:

What a burden it is for fundamentalist business owners to have to cater to "undesirables." I suppose they can console themselves by drying their tears on the good money they're earning from gay customers.

How enlightened must one be to be able to group all those who object to participation in obscenity and abomination on religious grounds as "fundamentalist" and "ultra" and "undesirable!"

USU "See what I did there?" 78