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April 27, 2015

Comments

I'm not the one telling poor people living in hopeless situations to stay there, now, am I?

Pure sophistry. Historically, whites have made it quite clear that they do not want blacks living in there neighborhoods, competing with them for "their" jobs and sending their kids to "their" schools. Having repeatedly ransacked black wealth, whites continue to do this.

This is deeply woven into our social fabric. The evidence is overwhelming.

They cannot escape, yet we blame them for staying.

You are alone, telling us to tell them "be free, leave!" and everybody else is looking at you in exasperation thinking, "Who the fuck is this crazy dude?"

And to imply from that therefore "we" are "telling them to stay" is such a obvious (and really ineptly bad)rhetorical ploy, that we can only wonder....(about stuff that shall remain unsaid).

HSH, I think it should be noted that, when their minds were being poisoned (by experience), the folks doing the poisoning were Democrats. But they mostly migrated elsewhere a few decades ago.

Conservative areas will generally accept anybody who's in the country legally, and is willing to work for a living, instead of expecting others to support them.

To be a bit more pointed, Brett, this claim is utterly laughable. A conservative community will not, as a general rule, welcome homeless, jobless, like-as-not-carless, destitute white Christian males who aren't natives, to say nothing of various peoples who just "don't fit in". Even if they did "accept" them, they have no fixed address and no possessions to speak of, so how are they to get a J-O-B, assuming there are low-skill jobs to be freely had? If by some miracle they do find someone willing to hire a homeless drifter, how will they get from wherever they end up squatting until they can pay rent and where they work, as (again) the urban poor you're castigating for not pulling up stakes are as a rule carless? Since we are talking about good, upright conservative communities, we can only imagine we're looking at suburban or rural population density, and presumably a landscape free of the blight of "public" transit...

(Remember, we're not just talking about single working-age adults here. The lazy parasites perpetuating urban decay at the behest of their Democrat overlords include both families with children, and the elderly.)

This from Jamelle Bouie was interesting, you have to get beyond the headline because he talks about a lot more.

Or you can help people escape

to where? for what?

where the fnck are these millions of unfilled jobs that all of these refugees from the Democratic hellholes are going to fill?

get your head out of the clouds.

Back on marriage - here's a NYTimes article noting that Roberts may rule in favor based on the "it's unconstitutional sex discrimination" rationale.

And this paragraph that flabbergasts me:

That [sex discrimination] theory had gotten only slight attention in scores of lawsuits challenging bans on same-sex marriage, and it is unlikely to serve as the central rationale if a majority of the court votes to strike down such bans, an opinion likely to be written by Justice Anthony M. Kennedy.

Why not! Make it easy! Jeepers.

This is another case where we don't completely have to speculate. We have a recent example of an urban area where a lot of people had to leave, and where we have a reasonable record of where they went and what they did when they left.

In 2005 hurricane Katrina hit NOLA and the surrounding area. About a million and a half people evacuated, and a huge number of them - hundreds of thousands - never went back.

Here's a BLS paper from 2008 discussing where they went and how they made out. Here's an LA Times piece discussing the same issues, ca. 2006. A Texas Tribune piece discussing how the city of Houston, which amazingly absorbed about 100K of the refugees, found the experience some years later.

Briefly, about 150K people left NOLA and the affected Gulf area. Most of them went to surrounding states, with the largest number by far going to Texas, especially Houston.

The reception they received varied. They were neither uniformly welcomed nor rejected.

A lot of them came to the conclusion that their chances were better wherever it was that they landed, and they stayed, or tried to stay.

In general, they are surviving in their new locations, but are not necessarily prospering.

If folks want to dig into this question, there are lots and lots and lots of examples in US history of large-scale migrations from areas where life basically sucked, for any of a number of reasons, to someplace where it seemed like it might be better.

My guess is that the results vary, and that the experience of in-country migration is not that different from emigration from another country. The first generation struggles to get a toehold, subsequent generations do incrementally better, after 50 or 100 years you're a local.

My issue with the idea of "move the hell out of there" as strategy for dealing with economically blighted areas is basically twofold.

First, not everybody can actually move, for any of a variety of reasons. and in general the folks that can't are the folks with the least resources in the first place. So, you end up with the crappy place being even more blighted than it was before.

And second, the place that you're abandoning quite often has things to offer in the way of human and other resources, that are then wasted. In other words, the economic and social situation isn't inherently FUBAR, it's a result of a specific set of circumstances. Historical, social, political, whatever. Any of which can be changed.

So, freaking change them, rather than make everybody move.

I understand Brett's preference for solutions that don't require people to act cooperatively, as a community, but I basically find that mindset unattractive, because there's only so much that can be accomplished by everybody taking care of themselves and only themselves.

When the discussion turns to issues of that nature, we're talking about matters that extend into issues of temperament and worldview, which is to say, personal stance toward the world.

I'm not interested in criticizing Brett's personal stance toward the world, beyond pointing out how it might play out in matters of public life. So, that's all I'll say about it.

My observation is that "get the hell out of the sh*thole!" as an approach to dealing with areas facing economic or social stress is kind of how we end up with places like Detroit, and Baltimore, and central Brooklyn, and the South Bronx. And rural West Virginia and Kentucky and up-country Virginia and the Carolinas, for that matter, and a lot of the rural Northwest, and a lot of the rural West period, and a hell of a lot of other rural areas in this country. It ain't just an urban thing.

All of those places have something to offer. If we are wise, we will find a way to make that potential manifest.

Then, everybody's happy.

Getting out of sh*tholes like the former Confederate states was the motivation for millions of people to move to cities like Detroit in the first place. Now Brett is advocating that the children and grandchildren of those people should move back.

You know Brett is getting desperate when he resorts to using the phrase "our polity" to mean "The United States of America". He's usually reluctant (to use no stronger word) to admit that he shares a political system and a national government with the likes of me and Russell and the rest of you lot. Belonging to a "polity" when he "really dislike[s] solutions that require agreement to implement" must be tough on the poor guy. Appealing to the notion of a "polity" that he routinely deprecates, in order to support his ridiculous position, must hurt like a toothache.

--TP

You mean, we gots to move again?

http://en.wikipedia.org/wiki/Great_Migration_%28African_American%29

http://www.history.com/topics/black-history/great-migration

If Americans from the formerly great urban manufacturing centers could follow their jobs, including the millions of service jobs that supported manufacturing, they'd move to Shanghai.

A lot of the muscle that moved to rural areas like Williston, North Dakota, rural Pennsylvania, and areas of Texas not too awfully long ago for the shale oil boom are now looking to get their pates under the dumb-looking paper hats of the fast food industry.

Where they gonna go, back to Detroit?

You going to pick crops in California's Central Valley?

Nope, not with that drought.

Many of the urban poor are the elderly.

They don't move well.

Fats Domino, for example:

http://www.npr.org/templates/story/story.php?storyId=5259801

And he has a portable talent.

Your white, and black Archie Bunkers whose medical plans were canceled after they retired because a guy can make the same widget for 14 cents an hour in India or Vietnam, are staying put.

What are they gonna do, work for Google in Silicon Valley?

Unfortunately, not everyone can be Fats Domino

http://www.billboard.com/articles/news/61497/bluesman-clarence-gatemouth-brown-dies

I was living 40 miles away from him and didn't even realize it.

https://www.youtube.com/watch?v=5y41jsG_fVY

Ugh: "Why not! Make it easy! Jeepers."

Because the ERA didn't get ratified, so the unconstitutional sex discrimination basis is shaky at best?

There are a lot of proposed amendments that don't get ratified for a lot of reasons. I'm not sure that's a basis to interpret the constitution on.

It's a basis to not interpret the Constitution on.

Let's be clear about what happened: The ERA got defeated, and then the proponents switched over to a drive to have the 14th amendment interpreted so as to make the ERA's defeat moot. Success at that is just about total at this point.

But, if the 14th amendment really covered sex discrimination, why the ERA in the first place? Why the 19th amendment?

This isn't legitimate constitutional interpretation, it's just a determination to make the states' refusal to ratify the ERA meaningless.

Sure about that, Ugh?

Didn't pass a Balanced Budget Amendment, either, so that means the US should go in the exact opposite direction and run up EVEN BIGGER deficits.

Maybe by fixing up the urban infrastructure for the poors.

Nah, that's CRaZy talk.

No, it just means that a balanced budget isn't constitutionally mandated. If the Supreme court were to rule that the federal government could not, constitutionally, run a deficit, I'd condemn that, too. Even though I think that, as a general matter, it shouldn't be running deficits.

If this keeps up, Phyllis Schafly will be sharing a urinal with married gay men.

well the heightened constitutional scrutiny given to sex-based classifications pre-dates the failure of the states to ratify the ERA by several years, at least.

But, if the 14th amendment really covered sex discrimination, why the ERA in the first place? Why the 19th amendment?

Uh, because the 14th amendment states in relevant part: No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws.

That's a pretty straightforward statement, but also very short and thus open to judicial (and other) interpretation.

Do women (or men, FTM) count as persons under the 14th Amendment, yes or no? Would a state law that says only men may own property be valid under the 14th Amendment as you read it, yes or no? Without the 19th amendment, could states ban women from voting today, yes or no? Which view is truer to the phrase "equal protection of the laws," that states can grant marriage rights on the basis of sex, or they can't?

There are a variety of reasons not to ratify the ERA, including that ratification would validate the very view you are espousing. Moreover, amendment ratification may fail even if 90% of the population agreed that it should be ratified, due to the rather anachronistic and undemocratic process for amending the constitution. There's a reason why we've only had 3 amendments in the past 50 years, 2 of which are barely worth mentioning.

All that said, I'm not sure why it should bother anyone from a constitutional standpoint if the Court said "equal protection of the laws" means no sex-based discrimination in granting marital rights and obligations to same sex couples, especially given the court's jurisprudence on that over the past 40 years.

But, if the 14th amendment really covered sex discrimination, why the ERA in the first place? Why the 19th amendment?

Define "really."

One argument against the ERA, at the time, was that it was superfluous because of the 14th Amendment.

--TP

"Moreover, amendment ratification may fail even if 90% of the population agreed that it should be ratified,"

But this was, conspicuously, not the case with the ERA. You'd have been hard put to generate a list of states ratifying and rejecting that better matched the fraction of states to the fraction of the population.

The reason it bothers me is that this represents another step in Article V being rendered meaningless. The power to ratify involves the power to refuse to ratify, and here we have the judiciary taking that power away, responding to the states' refusal to amend the Constitution by simply changing their interpretation of another amendment to incorporate the meaning the rejected amendment had.

And to do it in order to accomplish exactly the end that caused the proposed amendment to be rejected!

What's the point in permitting states to refuse to ratify amendments, if the judiciary won't let it matter?

What you seem to be proposing, Brett, is that the judiciary cannot change its interpretation once an amendment has failed to be ratified if the new interpretation is consistent with the intent of the failed amendment.

How many failed amendments have there been, and how many of them have been rendered moot by a judicial re-interpretation of the constitution? Were such re-interpretations unreasonable?

Brett:

I'd also be very interested in answers to Ugh's questions:

Do women (or men, FTM) count as persons under the 14th Amendment, yes or no? Would a state law that says only men may own property be valid under the 14th Amendment as you read it, yes or no?

One of the best things Obama ever said.

“In those environments, if we think that we’re just gonna send the police to do the dirty work of containing the problems that arise there, without as a nation and as a society saying what can we do to change those communities, to help lift up those communities and give those kids opportunity, then we’re not gonna solve this problem,”

“And we’ll go through the same cycles of periodic conflicts between the police and communities and the occasional riots in the streets. And everybody will feign concern until it goes away and then we go about our business as usual.”

“This is not new, It’s been going on for decades. And without making any excuses for criminal activities that take place in these communities, what we also know is that if you have impoverished communities that have been stripped away of opportunity, where children are born into abject poverty; they’ve got parents, often, because of substance abuse problems or incarceration or lack of education themselves, who can’t do right by their kids.”
“It’s more likely that those kids end up in jail or dead, than that they go to college. In communities where there are no fathers who can provide guidance to young men. Communities where there’s no investment and manufacturing’s been stripped away. And drugs have flooded the community, and the drug industry ends up being the primary employer for a whole lot of folks.”

“When individuals get crowbars and start prying open doors to loot, they’re not protesting, they’re not making a statement, they’re stealing. That is not a protest, that is not a statement, it’s people—a handful of people taking advantage of the situation for their own purposes, and they need to be treated as criminals.”

“We can’t just leave this to the police. I think there are police departments that have to do some soul searching. I think there are some communities that have to do some soul searching. But I think we, as a country, have to do some soul searching.”

“If we are serious about solving this problem, then we’re going to not only have to help the police, we’re going to think about what can we do, the rest of us, to make sure that we’re providing early education to these kids, to make sure that we’re reforming our criminal justice system so it’s not just a pipeline from schools to prisons, so that we’re not rendering men in these communities unemployable because of a felony record for a non-violent drug offense; that we’re making investments so that they can get the training they need to find jobs.”

“But if we really want to solve the problem, if our society really wanted to solve the problem, we could. It’s just it would require everybody saying this is important, this is significant, and that we don’t just pay attention to these communities when a CVS burns and we don’t just pay attention when a young man gets shot or has his spine snapped. We’re paying attention all the time because we consider those kids our kids and we think they’re important and they shouldn’t be living in poverty and violence.”

Yes.

"What you seem to be proposing, Brett, is that the judiciary cannot change its interpretation once an amendment has failed to be ratified if the new interpretation is consistent with the intent of the failed amendment."

Yes, that's exactly what I'd propose. To do that is just naked circumvention of Article V, nothing more.

"Do women (or men, FTM) count as persons under the 14th Amendment, yes or no? Would a state law that says only men may own property be valid under the 14th Amendment as you read it, yes or no?"

The question is not whether women or men count as people. The question is what constitutes equal protection of the law. To give you an example, presently the law may mandate, as in building codes, different bathroom facilities for men and women. The law is not required to treat men and women as though they were interchangable.

A law prohibiting women from owning property could never survive even rational basis review. A law prohibiting women of child bearing age from working in the nuclear industry, or setting up lower radiation exposure? It wouldn't have to pass strict scrutiny.

The ERA was understood to change this. One common argument against it was that it would require unisex bathrooms. Another, dismissed as hysterical by the ERA's proponents, was that it would require... SSM!

Not authorizing SSM can't survive strict scrutiny. Rational basis? If honestly applied, it could survive that, I think.

Marty: Yep.

The president can say what he likes, but there's too much vested interest in the way things are in troubled cities for anything to change for the better very fast, if at all.

Not authorizing SSM can't survive strict scrutiny.

As marriage is a fundamental right (Loving), isn't strict scrutiny the relevant level of review?

Charles:

Also, sadly, true.

Yes, that's exactly what I'd propose. To do that is just naked circumvention of Article V, nothing more.

So, one could, under your proposal, prevent a particular future judicial re-interpretation of the constitution by introducing an amendment, knowing it wouldn't be ratified at that time, having the intent of that future re-interpretation.

Wouldn't that be stripping the judiciary of its constitutional powers of interpreting the law?

On what basis would you be objecting to the judicial re-interpretations that rendered the ERA moot had there never been an ERA?

I'm not suggesting that there is no reasonable objection possible, but I wonder if you would object to those re-interpretations as being clearly unreasonable, since your talking about "naked circumvention of Article V, nothing more."

As far as I know, there's been one failed amendment you could argue was rendered moot by the Supreme Court. How that establishes a pattern of some sort of abuse is unclear to me, short of that instance involving a clearly unreasonable basis, which could be demonstrated even without regard to the failed amendment.

HSH: Calvinball. All the way down.

"As marriage is a fundamental right (Loving), isn't strict scrutiny the relevant level of review?"

Yes, but the question here is NOT whether homosexuals have the right to marry. They have, all along.

The question is, "What is marriage?". And the position of opponents of SSM, is that it isn't a union between two people of the same gender, that what gays want to do isn't "marriage".

They've already got equal rights under the 14th amendment. They just don't want to do what they've got an equal right to do.

The question is, "What is marriage?"

That's a question with about 50 different answers.

The answer that should be relevant to the court is what the law says marriage is.

What the law says marriage is, is a contract, of a particular kind, that creates certain responsibilities, and confers certain privileges.

As far as I can tell, none of the responsibilities or privileges associated with the marriage contract are contingent upon the gender of either partner.

That's how it looks to me. I'm sure the range of opinions will vary.

The argument that "they can get married, just to someone of the other gender" is specious.

Marty, thanks for the Obama quote. The rub, IMO, is here:

If we are serious about solving this problem

It's pretty clear to me that we aren't particularly serious about solving the problem of chronically poor and chronically dysfunctional people and communities.

I disagree with Brett at a fundamental level about how best to address stuff like this, but when he says that folks' best available option is probably to get the hell out, I have to give credit where credit is due and say that, in a lot of cases, that's probably right.

For example, TN Coates, who is a writer I admire and respect, grew up in that environment, worked hard, and succeeded, and part of his path to success was getting the hell out.

Coates no longer lives in Baltimore. He lives in NYC, and spends a lot of his free time in France.

And I'm not faulting him for that, or claiming hypocrisy on his part. It's just reality. He had and has options, and he has taken them.

I think that places like the poor parts of Baltimore, and Detroit, and the South Bronx, and non-hipster Brooklyn, deserve better treatment than we give them, but I don't think they are likely to get it. And, whatever assistance they receive will be resented, and held against them if they fail in any way. As they are likely to, because we all do.

My opinion about the general problem of chronic poverty and dysfunction is that folks are going to have to build their own institutions. Patrol their own neighborhoods, develop their own businesses, build up their own capital in both human and other forms, take control of their own schools, develop their own capacity to go to legal and economic battle with whatever other people and institutions seek to prey on them.

It's insanely unfair that that is so, IMO, but I think it is so.

I think the Panthers had it right, at least that part of it, as did the Nation of Islam, with their emphasis on locally owned and run small businesses.

It's not just inner cities either, and the number of places that face chronic poverty and dysfunction is only likely to rise.

Pander Paul will look into it:

http://talkingpointsmemo.com/livewire/rand-paul-jade-helm

At this point, I favor a military takeover of Texas because I believe, I do, in doing everything to make the wishes, hopes, and dreams of children come true.

Drum's on the Freddie Gray and lead angle.

The question is, "What is marriage?".

That's a fair question with a lot of different answers, and its a fair question. And me, personally, I don't give two shits how anybody answers that for themselves.

I just don't think the state can answer it a restrictive way, and have that answer be consistent with individual liberty. Much like I'm uncomfortable with the government using restrictive definitions of any fundamental right. Freedom of the press has been understood in a sense far beyond printing presses and traditional journalism, for example.

Marriage has been defined a variety of ways by various people, cultures, and religions, and has been recognized as a fundamental right in the US. As such, if the government wishes to enforce a specific definition, it should have to pass strict scrutiny.

My opinion about the general problem of chronic poverty and dysfunction is that folks are going to have to build their own institutions.

Nigel posted a link in another thread which I think is relevant and worth reading:

http://www.theatlantic.com/national/archive/2015/04/generation-nowwhat-people-do-when-there-seems-to-be-nothing-to-do/391571/

Very interesting link, thanks Nigel for posting, and thanks thompson for reposting.

"The answer that should be relevant to the court is what the law says marriage is.

What the law says marriage is, is a contract, of a particular kind, that creates certain responsibilities, and confers certain privileges."

I'm pretty darned sure that, before the courts got into the matter, what the law said was that marriage is a contract, of a certain kind, between a man and a woman... IOW, you've elided exactly the part of the law the courts have been busy overturning.

So, what the courts have been doing, is looking at what the law says marriage is, and deciding they didn't like what the law said.

"I just don't think the state can answer it a restrictive way, and have that answer be consistent with individual liberty."

No argument from me, there. Some aspects of individual liberty are to be found in the Constitution, and some aren't. The proper way to put them there, if that is desired, is by Article V, not by the courts deciding that they're going to redefine words in ways the democratic process has just gone to great lengths to rule out.

thompson, many thanks for the link. there are a few things in there that I may follow up on...

what the courts have been doing, is looking at what the law [...] is, and deciding they didn't like what the law said.

because that's what courts especially the Supreme Court, do.

the judiciary cannot change its interpretation once an amendment has failed to be ratified if the new interpretation is consistent with the intent of the failed amendment.

So if I can get an amendment out for ratification that says that "the United States is a Christian country" (which, heaven knows, has been proposed), and it fails, then any court decision which is in line with Christian theology is invalid? Because, the amendment having failed, the United States must be not a Christian country.

And if I can get one out that says that the US is a libertarian country, that means that nothing of a libertarian view can ever again be the result of a Court decision?

Anybody got a list of all of the Amendments which have failed ratification? Just so we all know what the Courts arre forbidden (under Brett's view) from deciding.

Some aspects of individual liberty are to be found in the Constitution, and some aren't.

Well, perhaps that's where we part ways. I don't view the enumerated rights as a restrictive list. The right to marry, to me, is inalienable. Should the government want to provide legal recognition for some aspects, strict scrutiny should be followed. IMVHO.

One other thought. The 14th (and 15th) Amendment only got ratified because the Confederate States were forced to do so in order to regain representation in Congress. In short, it was done under duress -- and so the ratification could be argued to be invalid. At least, any contract signed under duress would be held invalid, so how could this be?

Assume, for the sake of discussion, that that view prevailed. Would that mean that there is now no right to due process? Or to equal protection? Seriously -- if you hold that failure to ratify amounts to rejection of everything in the amendment, then wouldn't that follow?

wj: http://www.usconstitution.net/constamfail.html

I'm pretty darned sure that, before the courts got into the matter, what the law said was that marriage is a contract, of a certain kind, between a man and a woman

Yeah, you're probably right. I withdraw my comment.

So, what the courts have been doing, is looking at what the law says marriage is, and deciding they didn't like what the law said.

Specifically, they have been deciding whether the law as written is valid.

As cleek notes, it's one of the things they are obliged to do.

I'm not sure the degree to which personal druthers are involved. I doubt you are, either.

I don't view the enumerated rights as a restrictive list.

Neither does Brett, when it suits him.

Specifically, they have been deciding whether the law as written is valid.

adding:
courts decide if a law is valid in the context of the current understandings and interpretations of other relevant laws.

even religions do this.

Per the 9th amendment, it isn't a restrictive list. That doesn't mean any right anybody wants is automatically a constitutional right, either.

The 9th amendment was to secure traditional rights which didn't get enumerated, not to serve as a back door for the judiciary to declare anything they felt like a constitutional right.

SSM, to put it mildly, is not a traditional right, thought so obvious it never occured to anybody it needed enumeration. It's about as far from that as it is possible to get.

The 9th amendment was to secure traditional rights which didn't get enumerated

not everyone will agree with that, and especially not with the word "traditional" (which obviously means different things to those with different traditions).

The 9th amendment was to secure traditional rights

Your use of "traditional" here seems a bit squirrely.

I think the word you're looking for is "natural".

The 9th is a simple statement that the fact that certain rights are specifically called out in the Bill of Rights does not mean that any right not so called out is not held by the people.

What those rights are isn't stated, nor are any criteria given for what is or isn't eligible to be considered a right.

The understanding was that humans inherently possessed certain natural rights, that flowed more or less automatically from their status as sentient, autonomous beings.

Is your use of "traditional" here intended to limit what can be considered a natural right to what people living in the late 18th C would have recognized as such?

If that's the bar, a hell of a lot more than SSM is going to get thrown out the window.

"The 9th is a simple statement that the fact that certain rights are specifically called out in the Bill of Rights does not mean that any right not so called out is not held by the people."

So wait, it EXPLICITLY says that not passing an amendment to secure a right DOES NOT MEAN that there is no such right?

How does that fit with "ERA didn't pass, so we should consider ERAish rights invalid"?

Oh yeah, I forgot: "Calvinball. All the way down"

Thanks, Cleek!

I particularly like the Anti-Title Amendment, which reads in part:

[Any person who shall] accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust
(emphasis added)

Which would be a real blow to many of our politicians, who have almost all accepted presents of one kind or another from foreign governments (specifically chiefs of state). After all, "of any kind whatsoever" would necessarily include even things like bottles of whiskey or wine. We might have to elect a whole new Congress, not to mention masses of state legislators. Wouldn't that be fun!

So, your position is that the 9th amendment is basically a blank check for the judiciary to invent any rights they feel like? I think they've already settled on the 14th amendment for that role.

The understanding was that humans inherently possessed certain natural rights, that flowed more or less automatically from their status as sentient, autonomous beings.

Since it was largely the same men involved in both, it would seem that those natural rights would necessarily include "life, liberty, and the pursuit of happiness." And what is marriage, including gay marriage, but the pursuit of happiness?

SSM, to put it mildly, is not a traditional right, thought so obvious it never occured to anybody it needed enumeration. It's about as far from that as it is possible to get.

Mixed marriages weren't traditional either; is Loving wrongly decided?

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Per a straightforward reading of Loving, marriage to a partner of choice is a fundamental right. Trying to redefine marriage so it only includes marriages that you approve of requires a restrictive interpretation of what marriage is - it's not fundamentally an enduring sworn partnership/contract/what-have-you, but a coupling of specific sorts of people. If it's reasonable to use "tradition" to declare the two people can't be of the same gender, it's equally reasonable to be able to impose other "traditional" restrictions on choice of partners, such as requiring them to be of the same "race". Loving was pretty clear that this wasn't reasonable. IMO, an argument from "tradition" is pretty shaky following Loving.

(Note that this doesn't allow for box turtles to marry, because they're not "people". And it doesn't inherently allow for polyandry and polygamy because those aren't restricting choice of marriage partners, but rather restricting the right to be married to more than one person at once, which is another can of worms.)

Thanks for your contribution, Calvin.

"Mixed marriages weren't traditional either; is Loving wrongly decided?"

Mixed marriages were common enough they felt the need in the south to outlaw them. Nobody doubted a union between a man and woman of different races was a "marriage", and in fact laws against mixed marriages essentially only outlawed them where one of the races was cacasian. Black and Indian? Chinese and Black? No problem. One of the points against them in Loving, as a matter of fact.

That the 14th disposed of laws against mixed marriages was obvious enough to be a talking point against it, and it was almost immediately applied to overturn such laws.

That very neatly elides the question, Brett. Mixed marriages (yes, of a particular sort) ran counter to tradition, and were thus banned. Loving overturned that ban. Was it wrongly decided, or was it reasonable for it to assert that exclusive intimate and social partnerships ("marriages") are a fundamental right and the government has no business in restricting the choice of individuals regardless of prevailing traditions?

(And if you want to argue that, again, "unacceptable" mixed marriages already existed but were socially disapproved of, do you actually want to argue that SSMs haven't existed through history as well, per the partners in question and possibly hidden to evade prosecution on the basis of laws outlawing homosexuality?

Your whole argument hinges on your ability to beg the question. If we allow you to say that the fundamental aspect of marriage is an exclusive enduring sworn intimate and social partnership agreement between a man and a woman, you have an argument. If we say instead assert that the fundamental aspect of marriage is an exclusive enduring sworn intimate and social partnership agreement, you don't. That's what all of your arguments come down to; everything else is smoke and mirrors. And while citing "tradition" props up your definition, it only does so if we consider only traditions that agree with you, and leads us back to the question of why we should credit those traditional understandings as being meaningful understandings of "legitimate" marriages while rejecting understandings of marriage that lead to anti-miscegenation laws.

It's worth pointing out that anti-miscegenation laws weren't quite so colorblind among non-whites as you blithely asserted, BTW. It's also worth noting that your upthread comments about rejected amendments meaning that the SC can't re-interpret to get around existing interpretations means Loving would be illegitimate...)

Gah, NVM that last sentence. That's precisely backwards.

No, of course it wasn't wrongly decided. Loving was just a restoration of enforcement of the 14th amendment as intended, and as it was proceeding until the Supreme court spiked the amendment with bad faith rulings.

And man and woman? Not a tradition, that's what "marriage" MEANT. Meant world-wide until about 15 years ago. Now, polygamy, and to a lesser extent, polyandry, these have very strong claims to being traditional forms of marriage. SSM has no such claim.

Calling SSM traditional marriage is like calling haggis "oatmeal".

So, your position is that the 9th amendment is basically a blank check for the judiciary to invent any rights they feel like?

My position is that what is covered by the 9th isn't limited to what people in the 18th C would have been comfortable with.

Calling SSM traditional marriage is like calling haggis "oatmeal".

Boston marriage.

Come to think of it... would Brett's ERA argument mean that all we need to do to preserve Roe v. Wade for all time short of anti-abortion amendments would be to present an amendment to overturn it that's so shoddily written it'd never get ratified? Given his comments in the various Hugo threads, it seems like his understanding of democracy would mean that a thoroughly bad-faith endeavor of that sort would be perfectly acceptable. Likewise were we to craft an extremely awful amendment that, among other things, prevented Congress from having the authority to restrict firearms ownership - then the SC can't ever try to limit Congressional firearms bans! In fact, wouldn't the smart move at that point be to introduce bills immediately before introducing poorly-crafted bad-faith amendments specifically countering the bills?

(Or no, maybe the whole "if an amendment wasn't ratified, parallel reasoning to it is precluded" argument is silly...)

Until quite recently, "marriage" included "common-law marriages" -- cases where two people simply moved in together, without recourse to church or state. Indeed, for most people, that was "traditional marriage." I believe there are still several states in the US where this is considered a marriage, for at least some legal purposes.

And there are certainly examples of that happening with homosexuals for a long time.

So if I have a sex change operation, who am I allowed to marry and who decides?

Brett: That's because the riot was scheduled in advance. It wasn't spontaneous.

Or was it? The evidence increasingly leads one to the conclusion that the only scheduling in advance was by the police, not the kids.

Read and learn more. Assuming you're willing to learn.

that's what "marriage" MEANT. Meant world-wide until about 15 years ago

history disagrees.

the common definition of marriage is M+F, but that's simply because most people are heterosexual. but records of same sex unions (even state- or culture-sanctioned) goes back basically as long as there's written history.

and M+F marriage itself has changed radically over time. there is no single, traditional marriage any more than there's a single, traditional way to raise children.

And all the arguing about what marriage is/meant is part of why I like the straightforward unconstitutional sex discrimination approach because you don't have to get into all that.

1: Is the state making a sex/gender based classification? Yes.

2: Does the law survive intermediate/strict scrutiny? No.

End of case.

what Ugh said

So if I have a sex change operation, who am I allowed to marry and who decides?

Once you have legally sanctioned reassignment of gender, the "traditional" framework falls apart.

Are you really going to tell someone that he or she can't marry a person of a particular sex, that is, unless he or she gets a sex-change, because that's what's going to make it legal? That's the call the government is going to make?

Let me add that I don't think the existence of sex-changes is a necessary condition under which the justification of constitutionally protected SSM is possible. But I do think it renders the (reasonable?) arguments against it moot.

Not a tradition, that's what "marriage" MEANT.

Which is debatable, and largely irrelevant. Once the state decides to extend privilege to person(s) through legal means, that privilege needs to be accessible to all persons, or restrictions need to pass strict scrutiny.

Spot on, thompson.

If "being married" just meant sending out engraved invites, wearing rings, and the occasional public snogging, who cares?

But when it has tax/healthcare/inheritance/legal implications, then that's government involvement, and equality is required.

The entire SSM "problem" could be solved by just getting the government OUT of the marriage business. Just do whatever you want, via private contract.

I'm looking forward to the "traditional marriage" advocates showing us the "Joint, Married" checkbox on millenia-old MXL forms, to prove that governmental preferences for trad-marriage goes back a long, long way.

Or, to put it in the language perferred by libertarians, is marriage (or should it be) a positive or negative right? As it stands, legal marriage is conferred by the state (which, of course, it what makes it legal) and it's desirable, in part, for a number of purposes because of its legal recognition by the state. So I'd say that makes it, currently, a positive right.

If it were a matter of no one stopping you, but then you're just two people who need to put a lot more stuff in writing to handle your affairs, it would be a negative right, and it really wouldn't matter - gay, straight, polygamous, or whatever.

I think that would suck, and it would never happen.

But it does make me wonder what sort of "quasi-marriage" contractual arrangements are possible among groups of people in greater numbers than two - you know, right now.

But it does make me wonder what sort of "quasi-marriage" contractual arrangements are possible among groups of people in greater numbers than two - you know, right now.

Incorporation.

What Ugh said at 2:56.

If SSM seems weird to you, don't marry a person of your own gender. Problem solved.

If you're invited to one and aren't comfortable, say you have other plans and send a nice card. Or, no card, if it's that much of an issue. Problem solved.

If the picture-taking and cake-baking thing is a bridge too far, fine, we'll allow exemptions of conscience.

Beyond that, it just seems like a MYOB thing. To me, anyway.

What's it to you if *somebody else* does something you don't approve of?

It's not going to destroy the family, it's not going to release the hounds of hell, it's not going to do anything to anyone.

I probably know a baker's dozen of married gay couples, of both genders, including at least one where one of the partners is transgender.

They're plain old ordinary people. OK, mostly. But as ordinary as anybody else. And the fact of them being married causes exactly zero damage to the rest of the world.

My opinion about all of this is based on what I see with my own eyes. I don't see what the problem is.

Women and children used to be considered the chattel property of men. Now they aren't.

The overwhelming consensus used to be that white people were naturally superior to everybody else, full stop. Now it isn't.

Things change.

Incorporation

a marriage could last in perpetuity! it could elect officers, write by-laws and register with the Secretary of State!

Incorporation

And wouldn't it be fun to see what they gave as the purpose of the corporation? Could give a whole new perspective on what marriage is all about. With data!

Meanwhile, in Louisiana:

http://talkingpointsmemo.com/livewire/jindal-ginsburg-kagan-recusal-gay-marriage

Oddly, he doesn't suggest all the Catholic justices recuse themselves because of the church's position on gay marriage, or their own public statements.

a marriage could enter into contracts with other marriages. it could even sue another marriage - or a sue foreign government!

could it issue stock? if so, could it embark on hostile takeovers of other marriages?

this would be an exciting new world. i hope it comes to pass.

"could it embark on hostile takeovers of other marriages?"

If this becomes possible, should my wife and I embark on a state-wide campaign to perform as many hostile takeovers of heterosexual marriages as possible and then dissolve the partnership while liquidating the other marriages' assets? :)

For once, Pat Robertson could wag his finger at the camera, tell his viewers he told them so, and he'd be correct. I don't want to live in a world where Pat Robertson is right... :)

Well, he sure as hell ain't left! *rimshot*

Except, perhaps, as in left behind as the world changes.

Given the Roberts Court's rulings in Hobby Lobby and Citizen's United, it's pretty clear that being incorporated is the way to go.

The Annual Meeting/Orgy makes it all worthwhile.

Interesting....Married, Inc.

Certainly many a marriage was and/or is based on money. Would it have limited liability? Could it deduct all costs as "business expenses"?

What fun.

Judge John Roberts is a squirmin' in his robe, Judge John Roberts is a squirmin' in his robe,Judge John Roberts is a squirmin' in his robe...his truth has now long gone.

Wait, let me get this straight...bobbyp's link seems to indicate Justice Roberts believes that I will somehow be better off not being treated equally, but having to continue to fight for equal treatment?

That's like saying you shouldn't bother to eat the food you ordered at the restaurant, because it can't possibly live up to your impossible expectations, so you're better off staying hungry. I'll be interested to see if he starts taking his own dieting advice.

Ah, tradition! The crotchety old man's last line of defense.

Aside from being a featured song in Fiddler on the Roof, what is "tradition"? Does it ever change? Was "tradition" ever a newfangled innovation that crotchety old men bitched and moaned about? How ancient does a "tradition" have to be for it to be treated as de facto law? How old does a practice have to get before crotchety old men will accept it as "tradition"?

Have any of you people ever started a new tradition? Have any of you ever abandoned one because it started to seem pointless, silly, or morally bankrupt? Did it hurt much?

--TP

Took me years, but I finally managed to abandon the traditions of my religious upbringing. Was quite painful at first, but afterwards I felt a whole lot better. :)

FWIW, I heard long ago of a newly-founded college where some Dean or President announced: "As of today, this is a tradition of our Dear Old Alma Mater," or words to that effect.

I only say Gormenghast. Who's going to be The Secretary?
Including the traditional protest against the traditional violation of the egg colour on the ninth day of the month. "The egg should be blue, not red!"
(for the nitpickers: that's from the BBC miniseries not the books, where similar details are described but not as a basis for a scene.)

Tony P, somewhere I heard an Orthodox Jew talk about their people's "ancient tradition of dressing like 19th century Polish farmers".

Wait, let me get this straight...bobbyp's link seems to indicate Justice Roberts believes that I will somehow be better off not being treated equally, but having to continue to fight for equal treatment?

Judge Roberts thinks it might be better if people would just be quiet and sit down and let everyone's minds change naturally, in their own due time. because if the Court steps in and changes things now, some people won't be ready and they will have great and powerful boohoos and sads.

Bobbyp's link is rather... weird, especially the comments. I'm unclear, is this a case of all the 'conservative' comments being from jokers who use pen names like 'Hitler', or is somebody just going through the comments and changing the names wherever they don't like the point of view expressed? I honestly don't know, after all, some liberal sites think it's great fun to change a person's comment while leaving the name unchanged, why not the reverse?

At any rate, the link leaves me no more informed about what Roberts had to say, than before following it. Not only did the linked post have no actual quotes from Roberts, it only linked to further criticisms of him, not to anything he actually SAID.

That's generally a bad sign, you know, when the person criticizing something doesn't link to it, only to other criticisms. It indicates that they're not especially eager for you to see whether they're honestly representing what they're criticizing.

Not only did the linked post have no actual quotes from Roberts, it only linked to further criticisms of him, not to anything he actually SAID.

It did, in fact, have a direct quote from Roberts. Overall, the link left a lot to be desired in terms of depth. Roberts asked a lot of different questions that are suggestive of different views. For example, what Ugh referenced above:

Counsel, I'm ­­ I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

From the Lemieux article: "Closing the debate can close minds, and it will have a consequence on how this new institution is accepted," asserted the chief justice.

What ARE those funny marks?

Fair enough, there were one or two sentences quoted, without context. Until I can get at the source, I'll even assume they weren't out of context. I withdraw that particular complaint, though a link to where the quote came from would have been appropriate.

Brett:

I linked transcripts above. It's in the 1st half of argument, in a back and forth with counsel for the petitioners (Bonauto).

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