The Supremes are on a roll

[ArtK78]

These types of decisions seem like they should be based on concensus of the people, not a tiny group of old men and women.

Absolutely not.

 

The federal judiciary, and especially the Supreme Court, is the last line of defense against pure democracy - the rule of the people. And there is a good reason for this. The majority is often wrong. If it were left to a majority, most of the rights that the American people enjoy would be subject to the whim of the majority. Think of how the rule of the majority would discriminate against minorities. There are so many examples of this throughout history that I don't have to mention any.

[blackshoe]

You assume a word that does not exist

Do not presume to tell me what I assume.

[Winstonm]

Do not presume to tell me what I assume.

:P

[ArtK78]

From my perspective, we have 3 branches of government, Congress, Executive, and SC.

 

The third branch is the Judicial. It consists of ALL of the federal courts, not just the Supreme Court.

 

 

 

 

 

[Winstonm]

The third branch is the Judicial. It consists of ALL of the federal courts, not just the Supreme Court.

 

Yes, thank you for the correction.

[billw55]

Yeah, I've been thinking about that. Although I'm happy with this decision, it does seem weird that a panel of nine people gets to decide what our entire society means when we refer to "marriage".

It does no such thing. Every person remains 100% free to think whatever they want about the meaning of marriage, and to say so.

[barmar]

Are you getting your information from primarily right-wing sources? I'm not trying to accuse but am attempting to understand why your thinking is as such. From my perspective, we have 3 branches of government, Congress, Executive, and SC. SC was given the job to determine legality of laws and executive actions. These 9 judges determined that the Constitution grants a right to equal treatment, even as regards to marriage, and in no way re-defined marriage. Marriage was never defined as simply male-female union by the Constitution, so it was the judges' jobs to determine a number of issues - including whether or not the decision should be made federally (they took the case to the answer is yes) or by a district judge, or by the states legislature.

 

There is precedent - interracial marriage used to be illegal until the SC ruled that law a violation of the Constitution, as well.

 

What most people do not grasp is that the purpose of the Constitution is to protect the rights of the minority from the oppression of the majority. Rampant democracy can be dangerous and tyrannical if left unchecked. Gays have equal rights. Without the Constitution and the SC, that would not be so.

I'm not getting my information from anywhere, I'm just expressing a personal opinion.

 

I'm very happy with this decision, but the process does seem a little wonky. It takes 12 people to convict someone of a crime, but only 9 people, who aren't even "peers" of most of us, get to decide what counts as marriage for everyone? Yes, the purpose of Constitution is to prevent tyrrany of the majority. That's why it's a representative democracy -- the legislature is expected to be wiser than the people as a whole. But the Supreme Court hardly represents anyone, except insofar as the legislature has to approve their appointments (but since they're appointed for life, their terms can last into an administration that would not have approved of them).

 

I also understand that this is all part of an elaborate system of checks and balances. But SCOTUS does seem to have a particularly strong hand. The President has veto power, but the legislature just needs a supermajority to override it. Overriding a Supreme Court decision requires a Constitutional amendment, a process that usually takes years.

 

The job of the Supreme Court is to interpret the Constitution and laws -- what did the people who wrote them mean? If they're just interpreting the legal language, that's a perfect job for someone with decades of experience as a lawyer and/or judge. But does that background also prepare someone to determine how some old language should be understood in light of changes in society? That seems more like the job of a social scientist, not a judge.

 

Contrast the gay marriage decision with the decision this week about the EPA. They decided against the EPA on a technical point of law (at what step in the regulation process do they have to take cost of implementation into account), they didn't decide whether or not environmental regulation is a good thing or bad thing.

[Winstonm]

Contrast the gay marriage decision with the decision this week about the EPA. They decided against the EPA on a technical point of law (at what step in the regulation process do they have to take cost of implementation into account), they didn't decide whether or not environmental regulation is a good thing or bad thing.

 

The SC also did not rule of whether gay marriage was a "good thing or bad thing". What they ruled was that it was Constitutionally legal. Would you prefer that this law was subject to change every so often depending upon what party was in power, or have each state decide on its own whether or not gays could marry?

 

I guess I simply do not understand your complaint.

[kenberg]

The SC also did not rule of whether gay marriage was a "good thing or bad thing". What they ruled was that it was Constitutionally legal. Would you prefer that this law was subject to change every so often depending upon what party was in power, or have each state decide on its own whether or not gays could marry?

 

I guess I simply do not understand your complaint.

 

 

Perhaps I can help, perhaps not. For me it goes something like this. I have some thoughts about sexual interactions, marriage, children, adoption and so on. The Supreme Court has now informed me that it is a waste of time for me to think about it, they will set the rules. For example. My own adoption was long ago and no doubt things have changed. But it may still be the case that married couples are given preference to unmarried couple or single in adoption applications. Possibly the sexual lifestyle of a couple is a factor in adoption decisions.So now we have a married homosexual couple wishing to adopt. How should the person handling the case approach this? S/he is morally and legally obligated (or so I believe) to watch out for the best interests of the child. The rights of the prospective adoptive couple take second place (or I hope that they do) to the best interests of the child. What do I think? Well, I know, rather close up, a child raised in approximately these circumstances. He is 14 or 15 and gives every appearance of having a happier, less troubled adolescence than my own. So fine. Or is it? Looking back, I think that my being raised by a heterosexual couple was desirable. Probably not essential, but desirable. I am pretty sure that this does not make me a bigot, and I did not consult the right wing about this either. Alternatively, if liking the fact that my own parents were heterosexual makes then the world will just have to cope with that.

 

I guess I would prefer, as Barry is suggesting, that matters such as these be worked through thoughtfully by the citizenry rather than having them decided by edict. I have absolutely no interest in telling anyone how to lead his or her sex life. Adopting kids is a different matter, and I would like to see the discussion proceed with a minimum of name calling.

[billw55]

The whole question boils down to states rights vs. individual rights. The grey area between these is large, to say the least.

 

There are a lot of really absurd laws out there, which seem to arbitrarily restrict rights. For example, in my state and some others, car dealers must be closed on Sunday by law. What nonsense is this? Surely this intrudes on a business owner's rights. No possible harm could come to society from buying cars on Sunday. But there it is.

[kenberg]

The whole question boils down to states rights vs. individual rights. The grey area between these is large, to say the least.

 

There are a lot of really absurd laws out there, which seem to arbitrarily restrict rights. For example, in my state and some others, car dealers must be closed on Sunday by law. What nonsense is this? Surely this intrudes on a business owner's rights. No possible harm could come to society from buying cars on Sunday. But there it is.

 

Specifically car dealers? That is weird!. I suppose that if you need a new car on Sunday then you still need a new car on Monday, so not much harm is done. But yes, it's weird.

 

Many years\ ago I was in Flin Flon (Manitiba). As I recall, the bars were closed for maybe ninety minutes in the early evening. This was explained as a practical matter to make sure that the miners got something to eat. Yep, big gov is always butting into a guy's life. I can't tell you if that has changed.

[blackshoe]

I'm not getting my information from anywhere, I'm just expressing a personal opinion.

 

I'm very happy with this decision, but the process does seem a little wonky. It takes 12 people to convict someone of a crime, but only 9 people, who aren't even "peers" of most of us, get to decide what counts as marriage for everyone? Yes, the purpose of Constitution is to prevent tyrrany of the majority. That's why it's a representative democracy -- the legislature is expected to be wiser than the people as a whole. But the Supreme Court hardly represents anyone, except insofar as the legislature has to approve their appointments (but since they're appointed for life, their terms can last into an administration that would not have approved of them).

 

I also understand that this is all part of an elaborate system of checks and balances. But SCOTUS does seem to have a particularly strong hand. The President has veto power, but the legislature just needs a supermajority to override it. Overriding a Supreme Court decision requires a Constitutional amendment, a process that usually takes years.

 

The job of the Supreme Court is to interpret the Constitution and laws -- what did the people who wrote them mean? If they're just interpreting the legal language, that's a perfect job for someone with decades of experience as a lawyer and/or judge. But does that background also prepare someone to determine how some old language should be understood in light of changes in society? That seems more like the job of a social scientist, not a judge.

 

Contrast the gay marriage decision with the decision this week about the EPA. They decided against the EPA on a technical point of law (at what step in the regulation process do they have to take cost of implementation into account), they didn't decide whether or not environmental regulation is a good thing or bad thing.

Two comments: On "the legislature is expected to be wiser than the people as a whole": This will be true only if we elect wise men and women to the legislature. We don't. On "SCOTUS does seem to have a particularly strong hand": A famous, but probably apocryphal, statement attributed to then President of the United States Andrew Jackson: "Mr. Marshall has made his decision. Now let him enforce it." Jackson did say, in a letter to John Coffee, "...the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate."

[PhantomSac]

It is amusing to me that anyone who thinks that is pro gay marriage but thinks that SCOTUS got this wrong feels the need to say "I'm not a bigot." That is a totally reasonable thing to think and does not at all imply bigotry, in fact I would guess as a group those people are less biased and more thoughtful than either of the other sides.

 

As a bridge analogy it would be like if your teammate took the wrong line of play, but it worked so you won the match, being happy that you won the match but thinking your teammates line of play was objectively wrong. That is completely tenable and does not imply that you actually did not want to win the match.

[kenberg]

Phan: I am not sure if I am who you had in mind. But:

 

With respect to the Supreme Court decision, I plead lack of expertise. So do I agree with it as a legal matter? I'll get back to you on that as soon as I finish my article on the gaps in the theory of relativity. I think I might be able to intelligently discuss whether this decision is or isn't a departure from what could have been expected. Even for that, I am not prepared to do it without study. I am not a constitutional lawyer or any other kind of lawyer and I don't wish to become one. I am pleased for what it means for people whom I know, and for that matter for others whom I have not met. I wish a good life for all, and marriage to a partner of your choice is one way to seek this.

 

As for the "I am not a bigot", reminding me of "I am not a crook": I mentioned earlier that I would start a post on this thread and then I would think better of it and dump it. I just don't feel like discussing whether I am or am not a bigot. I believe I am not seen as one by people who know me.

 

We desperately need some discussions of fundamentals in this country. Insisting that the US is "exceptional", whatever that may mean, is a mistake. We should not romanticize. But we have our own history and we should both acknowledge it and learn from it. We have our own personal histories. They shape our beliefs. My faith in "the wisdom of the people" is not so much that I think that we (myself or others) are wise but rather that I think we had better do our damnedest to be so or else we are for serious trouble. I think that this discussion is most apt to be productive if we are very slow to put anyone in a box and label it.

 

Anyway, I am fine with the decision, but it seems a bit like having someone else solve our problems for us. Among other things we get out of the habit of solving them for ourselves. And we have quite a few.

[PhantomSac]

Ken, I think you misunderstood my post, I think you and I are in 100 % agreement.

 

From my limited knowledge and viewpoint, I think that the supreme court got the decision wrong and overstepped their bounds. But like you, I have no expertise in constitutional law, so I do not think that I am necessarily right.

 

What I feel bad about is that people with that viewpoint have to include "I am not a bigot." I do feel strongly that as a society it is completely horrible to not allow gay marriage, it is bigoted and will be viewed in history like thinking schools should be segregated or that women should not be allowed to vote. There is 0 % chance I am bigoted on this, yet I do feel the SCOTUS made or potentially made a bad choice.

 

For us to have to feel that we should say "I am not a bigot" because we think SCOTUS made a bad choice is a failure of people in general. There is no implication that we are bigoted or anti gay-rights or gay marriage because we think that SCOTUS go this wrong. We might be wrong about that, we might not, but it is certainly not bigoted, it is analyzing a decision in a vacuum. People who say we are "biased" or "bigoted" for thinking that are just as biased as the people who think gay people should not be allowed to be married.

 

I was commenting only on the need (not just in this thread but on the internet/what I have seen in general) to preface this opinion with "I am not a bigot." You should not need to and anyone who thinks that you are probably a bigot for thinking you are for that opinion is probably an idiot.

[helene_t]

Anyway, I am fine with the decision, but it seems a bit like having someone else solve our problems for us. Among other things we get out of the habit of solving them for ourselves. And we have quite a few.

This. The irish solution is much recommended.

[Zelandakh]

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." - Declaration of Independence.

Of course the Founding Fathers famously had an interesting take on the definition of equality:

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

 

And yes, I am aware of why this clause was included and that The South would have been happier with full representation.

 

 

There are a lot of really absurd laws out there, which seem to arbitrarily restrict rights. For example, in my state and some others, car dealers must be closed on Sunday by law. What nonsense is this? Surely this intrudes on a business owner's rights. No possible harm could come to society from buying cars on Sunday. But there it is.

Being forced to work on a Sunday with the threat of losing one's job by refusing also intrudes on the workers' rights. You can argue such points both ways. Are the rights of business owners worth more than workers somehow? This seems relevant in a thread about the rights of one group against those of another. It is often very difficult to see things from everyone's point of view and there is often no solution that can be accommodating of everyone's rights on a subject, although it seems to me possible in both of these examples.

[Winstonm]

The whole question boils down to states rights vs. individual rights. The grey area between these is large, to say the least.

 

 

The issue of states' rights versus federal rights has been resolved by the courts many times - federal law supersedes states' laws. It is the federal government, not each individual state, that has the responsibility to preserve individual rights. This is not a states' rights issue. We witnessed in Alabama under George Wallace the idea of state rights protecting individual rights.

[blackshoe]

Being forced to work on a Sunday with the threat of losing one's job by refusing also intrudes on the workers' rights. You can argue such points both ways. Are the rights of business owners worth more than workers somehow? This seems relevant in a thread about the rights of one group against those of another. It is often very difficult to see things from everyone's point of view and there is often no solution that can be accommodating of everyone's rights on a subject, although it seems to me possible in both of these examples.

"Blue laws" like this one are implementations in law of religious policy, and a clear violation of the Constitutional separation between church and state. As for rights, if a business owner wants to be open on Sunday, I say more power to him. If his employee wants not to work that particular day, more power to him, too. It's not a matter of "you're working Sunday or you're fired" it's a matter of negotiation in good faith. If the owner can't get enough (or any) employees to work on a particular day, for example Sunday, he either goes it alone that day, or he closes for the day.

[barmar]

The SC also did not rule of whether gay marriage was a "good thing or bad thing". What they ruled was that it was Constitutionally legal.

Have you actually read the opinion? I just perused through part of it, and it spends a good amount of time extolling the virtues of marriage, how central it is to living a happy life, raising a family, etc. And just as in Loving, which legalized interracial marriage, they believe that this applies as well to same-sex couples.

Would you prefer that this law was subject to change every so often depending upon what party was in power, or have each state decide on its own whether or not gays could marry?

I guess I simply do not understand your complaint.

As I said, I just find it weird that such a small body gets to make such an important decision that affects the entire country.

 

In this case, I agree with their opinion. But I can understand how the opponents would consider it "anti-democratic" that people they had no hand in choosing got to decide something so central to society. And it doesn't even have to be unanimous, like a criminal conviction does. Many of SCOTUS's most important decisions are 5-4 votes.

 

I'm reminded of some works of fiction:

 

Isaac Asimov wrote a short story Franchise in which voting by the whole population is replaced by a system where a citizen is chosen at random, he's asked a bunch of questions, and a computer uses his answers to determine what the result of an election would have been (basically, extrapolating statistical sampling to its most extreme).

 

And the movie Swing Vote, in which the Electoral College is tied with one state's results to add in, and that state's votes are tied until Kevin Costner's character votes.

[Winstonm]

It is amusing to me that anyone who thinks that is pro gay marriage but thinks that SCOTUS got this wrong feels the need to say "I'm not a bigot." That is a totally reasonable thing to think and does not at all imply bigotry, in fact I would guess as a group those people are less biased and more thoughtful than either of the other sides.

 

As a bridge analogy it would be like if your teammate took the wrong line of play, but it worked so you won the match, being happy that you won the match but thinking your teammates line of play was objectively wrong. That is completely tenable and does not imply that you actually did not want to win the match.

 

 

I am quite certain I am biased by my place of residence, as I live in Oklahoma, where genuine bigotry is alive and well. Regardless of how well-reasoned some, and maybe the majority, are about their dissent about the gay marriage ruling and the ACA ruling, that does not preclude the notion that the week of SC rulings was indeed a bad one for those who are truly bigots.

 

I am sure no one who posts here is one of those, I might note.

[Winstonm]

Have you actually read the opinion? I just perused through part of it, and it spends a good amount of time extolling the virtues of marriage, how central it is to living a happy life, raising a family, etc. And just as in Loving, which legalized interracial marriage, they believe that this applies as well to same-sex couples.

 

As I said, I just find it weird that such a small body gets to make such an important decision that affects the entire country.

 

In this case, I agree with their opinion. But I can understand how the opponents would consider it "anti-democratic" that people they had no hand in choosing got to decide something so central to society. And it doesn't even have to be unanimous, like a criminal conviction does. Many of SCOTUS's most important decisions are 5-4 votes.

 

I'm reminded of some works of fiction:

 

Isaac Asimov wrote a short story Franchise in which voting by the whole population is replaced by a system where a citizen is chosen at random, he's asked a bunch of questions, and a computer uses his answers to determine what the result of an election would have been (basically, extrapolating statistical sampling to its most extreme).

 

And the movie Swing Vote, in which the Electoral College is tied with one state's results to add in, and that state's votes are tied until Kevin Costner's character votes.

 

Like you I have read some of the opinions - none overly wonderful, either for or against, I might add.

 

I still do not grasp this idea of "anti-democratic" you keep using. The people most certainly did have a hand in choosing this decision, as the SC nominees are chosen by the President in power when a SC judgeship opens - if this country wanted a super-conservative government and SC, it could have most certainly had that. It did not happen.

 

For me - probably due to my age - I always go back to the 1964 Civil Rights Act and the response of George Wallace and Alabama as the worst kind of example of pure democracy in action. There is no doubt in my mind that the vast majority of white voters in Alabama did not want to enforce this law, just as the South during the Confederacy did not want to give up slave ownership.

 

I fear a truly democratic society, probably because I live in Tulsa, OK, the bastion of bombastic Bible Belt banality, and I shudder to think of these people legally telling me what I should and should not do. :)

[barmar]

"Blue laws" like this one are implementations in law of religious policy, and a clear violation of the Constitutional separation between church and state.

There have been a number of Supreme Court cases that challenged blue laws, and SCOTUS has decided that they don't. From http://www.firstamendmentcenter.org/blue-laws, here's a summary of one of the decisions:

Most of the Court’s analysis concerned the establishment clause. The justices acknowledged that the original purpose of the Sunday-closing laws was religious in nature: “There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces.” However, the Court determined that the laws now served secular purposes, including establishing a day of rest “when people may recover from the labors of the week just passed and may physically and mentally prepare for the week’s work to come.”

 

The Court further said that “the present purpose … is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals.”

[Zelandakh]

As for rights, if a business owner wants to be open on Sunday, I say more power to him. If his employee wants not to work that particular day, more power to him, too. It's not a matter of "you're working Sunday or you're fired" it's a matter of negotiation in good faith. If the owner can't get enough (or any) employees to work on a particular day, for example Sunday, he either goes it alone that day, or he closes for the day.

As I wrote before, there is indeed an easy solution here. The problem comes when the state is unwilling to protect the workers' right to refuse working on Sunday without being fired. America is fairly notorious around the world for having a hire and fire economy and I am slightly surprised at you advocating government legislature to prevent businesses from doing this knowing your general political views.

[blackshoe]

There have been a number of Supreme Court cases that challenged blue laws, and SCOTUS has decided that they don't. From http://www.firstamendmentcenter.org/blue-laws, here's a summary of one of the decisions:

I suppose in that case you quoted somebody presented to the court actual evidence that this "secular goal" really existed. Or not. If not, well, even the SC can spew BS.