"Inartful wording..."

[Aguila Blanca]

I’m not an attorney, but it does seem that they ignored the actual wording and focused on the intent of the law. However, doesn’t that work to our advantage?

In my opinion, it does not work to our advantage.

I started out with the same thought -- if they can interpret the language of TACA to mean the opposite of what it says because of "intent," then they can also interpret the 2A based on its intent. The problem is, it only takes five justices who believe (or claim to believe) that the intent was to arm the militia, and the 2A is toast.

In the long term, it is far better (IMHO) for words to have meanings and for laws to be interpreted according to what they say, rather than what a judge or group of judges want them to say.

 

[zukiphile]

Almost makes you wonder why the four did not refuse to participate once they saw what the majority had planned. A 5-0 decision would reflect the abnormal nature of the ruling very effectively.

Some of the most fun reading in the legal world is a Scalia dissent. I would hate for him to have passed that up. So would his clerks. Being permitted to write one of his bon mots is a much sought after privilege.

Thomas is also underrated, imo. He doesn't indulge himself with the sort of flourish Scalia does, but he is impressively direct, which carries a power of its own. His dissent in Raish, the thrust of which is this is what interstate means, and this is what commerce means, and this case isn't about either of those serves to show how far from the text the Court's interstate commerce doctrine has wondered.

He didn't win, but his illustration of why he became part of the ongoing conversation. I wouldn't like to have missed this dissenting opinions.

 

[tyme]

Al,

[Roberts and Scalia whining about SCOTUS activism] So Brown v. Board of Education, and Loving v. Virginia, should have been decided differently? After all, those forced integration down everyone's throat, removing that decision from the democratic process. Why not let the states that wanted to be patently racist continue to be so? Plessy and Pace had established, the century before, that, even post-reconstruction, there was no such right to be found in the Constitution. Where did the court find one in Brown and Loving?

[Thomas: Liberty is freedom from government interference, not freedom to receive benefits] The government already hands out a variety of benefits under the umbrella of marriage, which are difficult if not impossible to get any other way. If there's a genuine equal protection or full faith and credit concern, complaining about the majority's interpretation of the concept of liberty doesn't go anywhere.

[Alito: " deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."] If that's so, perhaps the SCOTUS should have a separate bench and separate bathroom for Thomas. Maybe they should employ children in 14 hour shifts to do some of the menial work that their overqualified law clerks have to do at present.

The court has swung wildly to the side of activism from time to time since FDR's court packing scheme. But they've also pushed social reforms that may not have happened nation-wide any other way. Maybe the social benefits aren't clear, because old habits and biases die hard, but I think there's a seriously up-hill battle trying to argue that many of these kinds of decisions weren't justified on the basic principle of equity.

I don't think any of the liberal justices would object to a law redefining and narrowing the marriage license, or creating an alternatively-named license, specifically for when a couple has or adopts a child, rather than before, explicitly spelling out child support and spousal support terms so that family courts can stop having to make such arbitrary and questionable decisions. The rest of the pro-hetero-marriage arguments are just some hand-waving about indeterminate social ramifications and, underlying it all, a strong desire to have the majority's religious beliefs keep defining marriage.

I think Chemerinsky wrote a good defense of the majority, regardless of what you think about his personal politics: http://www.scotusblog.com/2015/06/symposium-a-landmark-victory-for-civil-rights/

All you need to agree with this decision is that, as the SCOTUS has repeatedly stated, marriage is a fundamental right. Strict scrutiny is a high bar that you can't meet with hand-waving and rhetoric about respect for tradition. It seems to me that the only way to meet it is to restrict marriage explicitly to child-rearing. That would not do what the conservative minority of the Court wants, either, since LGBT individuals can already adopt, and since it's legal for hetero couples to have children out of wedlock. Where would the Court's dissenting minority manufacture a compelling purpose for heterosexual-only reproduction licenses in light of those existing realities?

 

[zukiphile]

If a subjective sense of due process can invalidate a conventional state law, can a person also have a due process right not to be under constant threat of armed fellow citizens?

If a piece of federal law, the ACA, can be rescued from its own text by reasoning that Congress couldn't possible have meant what it wrote, what protection do the words of the 2d Am. provide?

[Roberts and Scalia whining about SCOTUS activism] So Brown v. Board of Education, and Loving v. Virginia, should have been decided differently? After all, those forced integration down everyone's throat, removing that decision from the democratic process. Why not let the states that wanted to be patently racist continue to be so? Plessy and Pace had established, the century before, that, even post-reconstruction, there was no such right to be found in the Constitution. Where did the court find one in Brown and Loving?

Those comparisons are inapposite. Racial discrimination in law is met with strict scrutiny. Sex discrimination, the element at issue in the cases before the court, is not.

The Court here appears to have sidestepped that consideration with a due process rationale.

[Thomas: Liberty is freedom from government interference, not freedom to receive benefits] The government already hands out a variety of benefits under the umbrella of marriage, which are difficult if not impossible to get any other way. If there's a genuine equal protection or full faith and credit concern, complaining about the majority's interpretation of the concept of liberty doesn't go anywhere.

That is incorrect. An equal protection concern as it pertains to gender would ordinarily be resolved by examining whether the law in question was reasonably related to a legitimate governmental end.

Noting that the recent case is distinguishable from Loving because Loving involved a prohibition on freedom to act based on race is not trivial. In that case, the couple could not legally cohabitate.

No such restriction is present in the current case.

[Alito: " deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."] If that's so, perhaps the SCOTUS should have a separate bench and separate bathroom for Thomas. Maybe they should employ children in 14 hour shifts to do some of the menial work that their overqualified law clerks have to do at present.

How would that address a compelling governmental interest? The answer discloses why that would not be permissible under SCOTUS doctrine.

Maybe the social benefits aren't clear, because old habits and biases die hard, but I think there's a seriously up-hill battle trying to argue that many of these kinds of decisions weren't justified on the basic principle of equity.

A nebulous sense of equity is not a constitutional principle.

I don't think any of the liberal justices would object to a law redefining and narrowing the marriage license, or creating an alternatively-named license, specifically for when a couple has or adopts a child, rather than before, explicitly spelling out child support and spousal support terms so that family courts can stop having to make such arbitrary and questionable decisions. The rest of the pro-hetero-marriage arguments are just some hand-waving about indeterminate social ramifications and, underlying it all, a strong desire to have the majority's religious beliefs keep defining marriage.

That is incorrect. The defense of the majority of state restrictions (sex, consanguinity, marital status (you don't get a license if you are already married)) rest in the articulation of a rational relationship between the law and a legitimate state interest.

I think Chemerinsky wrote a good defense of the majority, regardless of what you think about his personal politics: http://www.scotusblog.com/2015/06/sy...-civil-rights/

All you need to agree with this decision is that, as the SCOTUS has repeatedly stated, marriage is a fundamental right. Strict scrutiny is a high bar that you can't meet with hand-waving and rhetoric about respect for tradition. It seems to me that the only way to meet it is to restrict marriage explicitly to child-rearing.

No, there is a rational link between the class of people who can reproduce sexually and marriage laws that that make up a complex web of rights and duties amongst them and the state, therefore one need not have already had a child for the link to be present.


The problem for 2 Am. analysis that is presented by vague notions of equity or fairness or emotionally driven judicial results is that accepting that kind of free form jurisprudence serves to diminish the protection of an explicit right; it detaches the constitutional court from constitutional text and doctrine.

 

[Glenn E. Meyer]

I agree with Tyme.

Here's what I said elsewhere:

To me the issue is simple.

The state should keep out of people's personal business unless said business causes demonstrable harm (which does not include your aesthetic sexual preference). If the state wants to have some specific legal contracts on how couples form, it should be open to any type of consenting adult couple. The religious ceremony is not the state's business.

The issue is also one of discrimination and rights. Our society has decided that certain personal characteristics cannot be used in a discriminatory fashion (hence the protected classes - race, ethnicity, religion, national origin). Sexual preference is being added to list - and that's fine with me. I do not buy into that you have a right to discriminate in business and employment. You could disagree but tough. The person's rights trump you being the dictator of your business that is open to the public.

I regard a primary right as the right to life and the implementation of that through the right to self-defense. Thus, the right to carry guns is fundamental and all states should acknowledge that. Pragmatically, this means that all state licenses (if you have a license/permit system) should be valid throughout the USA. In the same vein, I disagree with the property rights of a business to ban carry if they are open to the public as they infringe on a basic right (as with discrimination) and that trumps their property rights.

Your home is different as it is not open to the public. Bans are only allowed for public places on technical grounds - no gun in the MRI, no tracers on the Hindenburg.

If the 2nd A. community was smart (haha) they would embrace this decision as one supporting personal liberty in the same vein as the decisions supporting the RKBA. In both, the power of the state to limit personal rights and choices is being constrained.

The state should keep its hand off your holster, out of your pants, minimize the dip into your wallet and let you eat whatever brownie you want.

I know that many want to parse legalisms but I opine that the opinions are first driven by the justices' core beliefs (focused by social beliefs, emotions and religion). Then they look for precedents and legalism to bolster their views. I've read scholarly analyses of such.

As I said above and before, Scalia is not an icon for me. His reasonable restriction blather is used strongly against us. His emotion this time is just that - emotion based on an underlying belief structure. I disagree with it.

We should take this opportunity to say that expansion of individual rights and removing the state from personal decisions (that do no overt harm) is to be celebrate.

The 4 liberal justices have a gut oppostion to guns. The 4 conservative justices have a gut opposition to gays. That's what focuses how they decide.

Kennedy has been seen as one who thinks about things a touch more deeply and also relishes his position as swing on the major issues.

Push the individual freedom. Folks who want to constrain adult behavior in one dimension and then wander around the mall with an AR-15 need to rethink the issue of control.

 

[zukiphile]

Glenn, your analysis poses some of the same problems as Tyme's.

The state should keep out of people's personal business unless said business causes demonstrable harm (which does not include your aesthetic sexual preference). If the state wants to have some specific legal contracts on how couples form, it should be open to any type of consenting adult couple. The religious ceremony is not the state's business.

A libertarian impulse is one I share, however it isn't a constitutional doctrine.

Why just couples? Does that arise from a "gut opposition" to bigamy?

What one would like to see as a matter of public policy is distinguishable from that which is impermissible as unconstitutional.

The issue is also one of discrimination and rights. Our society has decided that certain personal characteristics cannot be used in a discriminatory fashion (hence the protected classes - race, ethnicity, religion, national origin). Sexual preference is being added to list - and that's fine with me. I do not buy into that you have a right to discriminate in business and employment. You could disagree but tough. The person's rights trump you being the dictator of your business that is open to the public.

Part of the problem with substituting a libertarian impulse for a cogent constitutional doctrine is the sort of problem you come across above. On the one hand you want the state out of one's business, on the other hand you want the state in someone's literal business to run their business according to your expressed preference.

A simple libertarian impulse isn't an analysis itself sufficient to resolve that sort of question.

If the 2nd A. community was smart (haha) they would embrace this decision as one supporting personal liberty in the same vein as the decisions supporting the RKBA. In both, the power of the state to limit personal rights and choices is being constrained.

That is incorrect. No personal liberty is involved in the recent case. The remedy sought was to compel the state to act, not to permit an individual greater freedom of action. Demanding that the state list me as a spouse on another person's death certificate isn't about what I am allowed to do, but what the state must do.

I know that many want to parse legalisms but I opine that the opinions are first driven by the justices' core beliefs (focused by social beliefs, emotions and religion). Then they look for precedents and legalism to bolster their views. I've read scholarly analyses of such.

Those legal doctrines provide ballast and continuity that keeps those individual preferences from being dispositive. I agree that result oriented jurisprudence occurs, ut it makes a mess of the law and should be discouraged.

His emotion this time is just that - emotion based on an underlying belief structure. I disagree with it.

We should take this opportunity to say that expansion of individual rights and removing the state from personal decisions (that do no overt harm) is to be celebrate.

The 4 liberal justices have a gut oppostion to guns. The 4 conservative justices have a gut opposition to gays. That's what focuses how they decide.

It is tautological to conclude that a person's emotion is emotion, but that plainly isn't just what Scalia expressed. Instead he expressed a critique of Kennedy's position.

While you may speculate about who has a "gut opposition to gays", even where the words spoken from the bench seem to contradict that, that speculation sidesteps the analyses presented.


Reducing a constitutional issue to what people like or dislike does a real disservice to the role of the Court and removes the sort of intellectual ballast that would serve to secure recent 2d Am. advances.

 

[Glenn E. Meyer]

I'm afraid constitutional issues are decided by people on a primary personal basis and the intellectual ballast, so to speak, comes in later to rationalize the decision.

The Constitution itself wasn't the laws of physics - it was a social construction of its times and since modified and interpreted by the social context of the players.

I don't care if such a view does disservice to court. Scalia's analysis of Kennedy has emotional valence that drives it.

That's the way I see it and throw it out for discussion.

 

[zukiphile]

I'm afraid constitutional issues are decided by people on a primary personal basis and the intellectual ballast, so to speak, comes in later to rationalize the decision.

That can't be true where a conventional analysis is employed. Where there is a documented history of a category being treated according to rational basis review, and a long-standing recognition of a legitimate state end, the caselaw can't be mere rationalisation. The analysis was established well before the decision.

Scalia's writing is colorful, but I would think it is a mistake to equate that color with an emotionally dominated reasoning. Thomas and Roberts engaged in critiques that were similar in substance though not style.

I don't care if such a view does disservice to court.

I believe you should care.

That court produced Heller. Demeaning it and cheering for an abandonment of the principles that allow it to resolve genuinely constitutional disputes based on something other than antipathy or affection also diminishes the authority with which the Court could protect an enumerated right.

EDIT- Let me also suggest that his has wider implications for rule of law and representative government.

In the ACA, if the choice is between what Congress wrote and passed and what the court thinks Congress meant, and the Court decides that it will "fix" what Congress wrote, in what sense was Congressional action effective in this very mundane way?

Or does Roberts just have a "gut" support for the Federal medical insurance, and you are satisfied to have the text interpretted accordingly?

 

[Glenn E. Meyer]

I prefer a realistic view to their decision processes. I am not alone in this view - legal scholars have analyzed this principle and I read books on it.

Heller was a close call and 5/4 decisions indicate the legal precedents are not clear. When such are ambiguous, emotion and prejudice come to the fore in most people.

As far as Scalia's colorful language, my psych hat says that he is speaking his emotions. It is the same when the other side denounces the 2nd Amend.

Humans are not known for rational decisions but are known for after the fact BS to explain their decision.

 

[zukiphile]

I prefer a realistic view to their decision processes. I am not alone in this view - legal scholars have analyzed this principle and I read books on it.

Realism will suggest to you that not all decision processes are equally emotional or analytical. Dismissing them all as equal, lumping the worst in with the best, will necessarily do some a disservice.

Was the quality of reasoning and argument on both sides of Heller equal?

As far as Scalia's colorful language, my psych hat says that he is speaking his emotions. It is the same when the other side denounces the 2nd Amend.

Is it also the same with support for the 2d Am. and Kennedy's opinion on marriage restriction, or your own expression about marriage only between two people?

Is any expressed reasoning merely incidental to a decision?

Humans are not known for rational decisions but are known for after the fact BS to explain their decision.

You think rational basis review, which predates not just this week but this term of the Court, was OK before this week, but is now BS, or was it BS before this issue reached the Court?

 

[Glenn E. Meyer]

To cut to the chase - I have little faith in most decisions being rational.

Legal and psychological analyses of such decision making suggest the gut feeling comes first and then the rationalization.

I think the language of Kennedy and Scalia are examples of their guts and emotions talking and then being rationalized. I agree with Kennedy.

Now sometimes, if you have the cognitive resources, analyzing the situation can lead to a rational analysis overwriting the automatic and emotional but that's not the common finding even among the highly educated.

Some references:

The Psychology of Judicial Decision Making (American Psychology-Law Society Series)Jan 8, 2010
by David E. Klein and Gregory Mitchell

Thinking, Fast and SlowApr 2, 2013
by Daniel Kahneman

Forensic and Legal Psychology: Psychological Science Applied to Law , 2nd EditionNov 7, 2014
by Mark Costanzo and Daniel Krauss

 

[zukiphile]

I think the language of Kennedy and Scalia are examples of their guts and emotions talking and then being rationalized. I agree with Kennedy.

Now sometimes, if you have the cognitive resources, analyzing the situation can lead to a rational analysis overwriting the automatic and emotional but that's not the common finding even among the highly educated.

In the absence of a contrary indication, my default approach is to assume that you do actually think what you just wrote, and that wasn't a mere post hoc rationalisation of an emotion.

It allows me to differ with you, but does not require me to discount what you write. It permits a discussion of ideas rather than an attribution of emotions.

 

[jtmckinney]

I am not learned in the law but I do have a gut and my gut is telling me these two rulings are a bad thing.

The ruling on gay marriage is one thing but the ruling on the ACA is much more troubling. The wording in a law has to mean what it says!

I wonder what the future holds for the court. Are they now so divided with maybe even personal contempt for each other they cannot function in a way they were designed to function?

I don't know about the rest of you but I am not sure I want this court ruling on any Second Amendment cases.

 

[tyme]

Why just couples? Does that arise from a "gut opposition" to bigamy?

I have no problem with Heinlein's concept of line marriages. I expect some interesting court decisions when this issue inevitably lands in various circuit courts. The amusing quips some of the justices and commentators have made about marriage to non-humans are just cute quips. When the question is harm to an animal, like medical testing or slaughterhouses, if I don't side with Singer et al, I at least agree that there are difficult unsettled ethical issues. However, social constructs are made for the purpose of relations between humans, and it's easy enough to exclude non-human creatures from marriage on the basis that they're not fully able to participate in human society. Marriage rights for an AI that had human-level cognition and communication ability would be an interesting question, but we're not there yet.

[corporate interference by government to enforce anti-discrimination]

I've tentatively reached the point where I'd rather give up the notions of personhood and rights for corporations than see minorities continue to get abused. There are corner cases where there's harm and abuse, like the ex-Prenda copyright lawyer who's now setting up ADA lawsuits against small town stores that don't meet ADA standards, but in most cases, I have no more sympathy for corporations of any size. If you have employees, and you're not just an LLC or partnership, you should, I think, be prepared to sacrifice a significant amount of liberty in your HR decisions. I'm still conflicted about the ADA... website accessibility requirements and very small company requirements in particular... but that's an exception that could easily be carved out.

No personal liberty is involved in the recent case.

This seems to be the center of your argument, so let me see if I have this right: The racial segregation and miscegenation decisions were proper because those laws or social norms were restricting the freedoms of association and equal access to public physical infrastructure.

There are personal liberties at stake here, as I understand it. They're just not as tangible as freedom of movement/access/association. Is it not a personal liberty to be able to be informed by doctors about your child's medical status?

Those comparisons are inapposite. Racial discrimination in law is met with strict scrutiny. Sex discrimination, the element at issue in the cases before the court, is not.

The Court here appears to have sidestepped that consideration with a due process rationale.

I don't think it needed to. Strict scrutiny applies *either* when there's a suspect class involved, *or* when a fundamental right is at issue, doesn't it? Doesn't it cease to matter what benefits are given to married couples? If marriage itself is a fundamental right, the right to be married is the liberty at issue, strict scrutiny applies, and when certain couplings are denied in a way that doesn't pass the strict scrutiny bar...

Given that, why is rational basis and not strict scrutiny the right standard to apply in this case?

Back to the equal protection concept, doesn't it affect the well-being of children and stability of family for a same-sex couple with children to receive fewer federal benefits than opposite-sex married couples? Doesn't it affect the well-being of children when their parents have difficulty in certain parenting tasks (like the above-mentioned medical decision-making) because a state doesn't recognize the marriage? Those seem like valid rational bases in favor of same-sex marriage to me.

If a piece of federal law, the ACA, can be rescued from its own text by reasoning that Congress couldn't possible have meant what it wrote, what protection do the words of the 2d Am. provide?

I despise the ACA as it's written; if there's something worse than either privatized or socialized medicine, it's this Frankenstein's Monster of a law. However, the criticism of Roberts' tax/penalty equivalence claim seems focused on semantics. Who cares whether it's called a tax or a penalty? That ship sailed a long time ago, when the federal government first started taxing anything not as revenue generation but as a stick to alter behavior. We're all quite familiar with the ATF's taxation of various things. Complaining about the semantics/word-choice, as long as the effects are the same, simply encourages double-speak from legislators, who will continue doing what they want but with less troublesome words.

I think words matter when you're trying to persuade someone, or when the words have an effect themselves, but when they're merely characterizing other parts of the law, for purposes of public policy judgments we should look to effects, not words.

 

[zukiphile]

I despise the ACA as it's written; if there's something worse than either privatized or socialized medicine, it's this Frankenstein's Monster of a law. However, the criticism of Roberts' tax/penalty equivalence claim seems focused on semantics. Who cares whether it's called a tax or a penalty?

People interested in principled limits on government. In a manner similar to the more recent ACA ruling, Roberts' rationale was that Congress didn't mean what it wrote and passed.

I have no problem with Heinlein's concept of line marriages.

What you or I might like as a marriage arrangement can't be a constitutional standard.

[corporate interference by government to enforce anti-discrimination]
I've tentatively reached the point where I'd rather give up the notions of personhood and rights for corporations than see minorities continue to get abused. There are corner cases where there's harm and abuse, like the ex-Prenda copyright lawyer who's now setting up ADA lawsuits against small town stores that don't meet ADA standards, but in most cases, I have no more sympathy for corporations of any size. If you have employees, and you're not just an LLC or partnership, you should, I think, be prepared to sacrifice a significant amount of liberty in your HR decisions. I'm still conflicted about the ADA... website accessibility requirements and very small company requirements in particular... but that's an exception that could easily be carved out.

It isn't a principled limit on government power to allow it to extend more intrusively over those you may dislike.

No personal liberty is involved in the recent case.

This seems to be the center of your argument, so let me see if I have this right: The racial segregation and miscegenation decisions were proper because those laws or social norms were restricting the freedoms of association and equal access to public physical infrastructure.

There are personal liberties at stake here, as I understand it. They're just not as tangible as freedom of movement/access/association. Is it not a personal liberty to be able to be informed by doctors about your child's medical status?

The liberty at stake in Loving was the freedom to live as a married couple without prosecution for it.

No one has been denied his own child's medical status as a result of sexual orientation.

This case was about compelling government to do something, not about a personal freedom.

I don't think it needed to. Strict scrutiny applies *either* when there's a suspect class involved, *or* when a fundamental right is at issue, doesn't it? Doesn't it cease to matter what benefits are given to married couples? If marriage itself is a fundamental right, the right to be married is the liberty at issue, strict scrutiny applies, and when certain couplings are denied in a way that doesn't pass the strict scrutiny bar...

Homosexuals aren't denied the right to marry and have always been subject to the same marriage laws as the rest of the population. In fact, that they are treated the same way as heterosexuals is their complaint.

Consanguinity and marital status restrictions are unlikely to pass your proposed standard either.

Most importantly though, your position begs the question of what a marriage is. Certainly marriage is a fundamental right, and had that been denied to anyone the issue would be quite different. The issue presented is whether it violate the constitution for a state to define marriage according to gender/sex.

Given that, why is rational basis and not strict scrutiny the right standard to apply in this case?

Because the discrimination at issue is gender/sex discrimination. Where the state can articulate a link between that discrimination and a legitimate state end, such a law would stand under a normal analysis.

Back to the equal protection concept, doesn't it affect the well-being of children and stability of family for a same-sex couple with children to receive fewer federal benefits than opposite-sex married couples? Doesn't it affect the well-being of children when their parents have difficulty in certain parenting tasks (like the above-mentioned medical decision-making) because a state doesn't recognize the marriage? Those seem like valid rational bases in favor of same-sex marriage to me.

Rational basis testing isn't a balancing test. One can make an argument for all sorts of different laws, or for laws better than those passed by a state legislature, but that doesn't make them constitutionally invalid.

One can certainly make an argument for a reasonable link between SSM and a legitimate governmental purpose in providing social stability to same sex households. That's a great argument to make legislatively, but mere utility isn't a constitutional standard.

I've tentatively reached the point where I'd rather give up the notions of personhood and rights for corporations than see minorities continue to get abused. There are corner cases where there's harm and abuse, like the ex-Prenda copyright lawyer who's now setting up ADA lawsuits against small town stores that don't meet ADA standards, but in most cases, I have no more sympathy for corporations of any size. If you have employees, and you're not just an LLC or partnership, you should, I think, be prepared to sacrifice a significant amount of liberty in your HR decisions.

I would ask you to consider your reasoning here and whether it is equally compelling on other issues:

I've tentatively reached the point where I'd rather give up the notions of an individual right to arms than more innocent people shot. If you have a gun, you should, I think, be prepared to sacrifice a significant amount of liberty in your decisions, and it should be kept in a locked cabinet at a police station.

 

[Frank Ettin]

...I have no more sympathy for corporations of any size. If you have employees, and you're not just an LLC or partnership, you should, I think, be prepared to sacrifice a significant amount of liberty in your HR decisions....

And you should understand that all employers, however organized (sole proprietorship, partnership, LLC, LLP, corporation or otherwise), are subject to the same employment related civil rights laws.

 

[Aguila Blanca]

[Thomas: Liberty is freedom from government interference, not freedom to receive benefits] The government already hands out a variety of benefits under the umbrella of marriage, which are difficult if not impossible to get any other way. If there's a genuine equal protection or full faith and credit concern, complaining about the majority's interpretation of the concept of liberty doesn't go anywhere.

I have to disagree.

I'm old-fashioned. I accept the definition of "marriage' as the union between one man and one woman. Applying equal protection to marriage, then, would mean that any man should be allowed to marry any woman, and any woman should be allowed to marry any man.

If a man elects not to marry any woman, or a woman elects not to marry any man, that's not a failure of the principle of equal protection, that's a personal choice.

 

[Glenn E. Meyer]

The problem with that view is how you define the rights that go with 'marriage'.

If you want a certificate that says marriage is man and woman and that's it, so what.

But if marriage definitionally also defines property arrangements, medical care provisions, taxes, parental rights of kids in such a relationship and decisions, etc. - then you have a problem. You remove from a class of people in a relationship some rights and abilities.

There will be some unintended consequences. I heard that some companies gave domestic partner benefits to cover their gay employees and their significant others. Now with gay marriage - the companies are ditching those and saying said couples need to get married.

So if you want civil unions that define such processes without the word marriage, then get the state out of granting marriages and have only contracts that define such rights and abilities for couples.

Let institutions outside of the state give you their ceremonial blessing.

 

[Aguila Blanca]

Heller was a close call and 5/4 decisions indicate the legal precedents are not clear. When such are ambiguous, emotion and prejudice come to the fore in most people.

I'm going to disagree, as your statement applies to the Second Amendment. In Heller, Scalia's majority opinion delved in depth into both the grammatical construction of the 2A and the context of the time when it was written. IMHO, his analysis very effectively debunked any claims that the 2A is ambiguous. The losers in Heller were the ones hiding their heads in the sand and refusing to accept the reality that is the 2A because the reality didn't (and doesn't) fit their world view.

You can see that the losers were operating from an irrational basis by reading the dissenting opinion.

In the case of the ACA, any time a decision of major import starts off by admitting that the decision about to be discussed departs from all common practice of jurisprudence, you can pretty well bet that the decision is based on emotion and/or irrational "this is the way it should be" factors rather than on the rule of law or on the Constitution.

In the case of the ACA, as well, there is NO ambiguity. The plain language of the law says "states." The Supreme Court has now redefined "states" to mean "states and the federal government."

Think what this means. The Constitution says that the powers not granted [by the Constitution] to the federal government are reserved to the states, and to the people. But the Supreme Court has just defined "states" to include the federal government. That means the Constitution (Tenth Amendment) should henceforth be interpreted to read:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States and to the United States respectively, or to the people."

Or, in other words, "The powers not delegated to the federal government are delegated to the federal government."

???

 

[44 AMP]

I suppose one could look in the bright side, we no longer "have to pass the bill to know what's in it"! We just ask SCOTUS!