04-08-2009, 12:49 AM | #21 | |
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Basically, if laws are creating classes, then they are subject to certain scrutiny. And the level of scrutiny depends upon the category of activity legislated. Categories involving race, gender, ethnic origin and creed are inherently suspect. I can't remember where age falls and the justices appear to be making a similar argument for marriage on the basis of sexual practices and orientation. But I'd have to read the entire opinion to make certain. Most of the stronger constitutional arguments in the arena of private relations originate in the Equal Protection Clause, not in the Due Process Clause, despite Justice Blackmun's opinon to the contrary.
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04-08-2009, 12:51 AM | #22 | |
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04-08-2009, 03:30 AM | #23 |
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04-08-2009, 01:59 PM | #24 | ||||
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Il Pad, here's some links with some opinions you might find instructive:
Blog entry by Ed Whelan Quote:
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"Have we been commanded not to call a prophet an insular racist? Link?" "And yes, [2010] is a very good year to be a Democrat. Perhaps the best year in decades ..." - Cali Coug "Oh dear, granny, what a long tail our puss has got." - Brigham Young Last edited by Tex; 04-08-2009 at 02:13 PM. |
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04-08-2009, 02:24 PM | #25 |
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Vermont just passed it with their legislature.
Probably the best move that gay marriage opponents have left is to carefully study and measure the effects of gay marriage on socially important factors. One statistic that might emerge is an extraordinarily low percentage of gays actually taking advantage of gay marriage. I would also be interested in seeing the cost-benefit analysis of gay marriage, in that domestic partnership benefits should largely be eliminated. |
04-08-2009, 03:10 PM | #26 |
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This is not rocket science. The virtue of originalism is that it places constraints (albeit arguably arbtrary) on power exercised by judges appointed non-democratically and for life. The drawback is that it doesn't account for changing attitudes and our much changed culture; but democracy proovides a corrective to a large extent. Witness the 14th Amendment, enacted by a democratic process, and most states' movement toward at least limited tolerance of abortion (of course Scalia does not desire to ban abortion anywhere). As he says, originalism is not perfect but it's the best available system. It's a discipline more than anything else. Otherwise, if you take the counter argument to its ligical conclusion, who needs a Constitution when you have federal judges?
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04-08-2009, 03:12 PM | #27 |
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I guarantee that if the Supreme Court found a ban on gay marriage implied in Constitutional "penumbras" Tex-types would shed their advocacy for originalism.
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04-08-2009, 03:31 PM | #28 |
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Try me.
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"Have we been commanded not to call a prophet an insular racist? Link?" "And yes, [2010] is a very good year to be a Democrat. Perhaps the best year in decades ..." - Cali Coug "Oh dear, granny, what a long tail our puss has got." - Brigham Young Last edited by Tex; 04-08-2009 at 03:36 PM. |
04-13-2009, 09:07 PM | #29 | ||
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I read over the weekend that Ginsburg (essentially the anti-Scalia) started opining on the value of foreign law again. Among the gems:
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What a load. This is the very heart of "the constitution means what I want it to mean." Why even have the document in the first place? http://www.nytimes.com/2009/04/12/us...g.html?_r=1&em
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"Have we been commanded not to call a prophet an insular racist? Link?" "And yes, [2010] is a very good year to be a Democrat. Perhaps the best year in decades ..." - Cali Coug "Oh dear, granny, what a long tail our puss has got." - Brigham Young |
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04-13-2009, 09:37 PM | #30 | |
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