Patterico's Pontifications

10/23/2010

What Ted Olson is Shoveling

Filed under: General — Aaron Worthing @ 7:34 am



[Guest post by Aaron Worthing; send your tips here.]

This adapted from is an old post from my blog, that I consider an “oldie but goodie” to give you guys a little content while I handle some personal matters.  This post in particular will become relevant because I am preparing a piece on the terrible brief Olson and company filed just last week in this case.  I hope you enjoy this post.

In defending the recent ruling that gay marriage is in the Fourteenth Amendment, and no one apparently discovered that for the first 142 years of its existance, former Solicitor General Ted Olson made this idiot comparison between freedom of speech and gay marriage:

Well, would you like your right to free speech — would you like Fox’s right to free press put up to a vote and say, “Well, if five states have approved it, let’s wait till the other 45 states do?” These are fundamental constitutional rights.  The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the Constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law is a violation of our fundamental rights.

First, every time someone says that it’s a throw-something-at-the-screen moment.  I am sick and tired of morons like Olson equating what is not reasonably in the constitution with what is obviously in the constitution.  Olson has made a great argument for amending the constitution, not making crap up in it.  The reason why the first amendment is not up for a simple majority vote is because someone has put it in the constitution. The claim that excluding gay people from marriage is unconstitutional doesn’t pass the laugh test.

Second, it’s funny you should stay that, Teddy boy, because do you remember a little case called McConnell v. the FEC?  In that case they made a facial challenge to McCain-Feingold on the theory that it suppresses freedom of expression.  A few years later the Supreme Court said the same law was unconstitutional precisely because it had that effect.  And guess who was on the side of the FEC and greater restrictions of expression in McConnell?  Then Solicitor General Theodore Olson.  As in you, schmuck.  You personally argued that congress could vote away our freedom of expression.  Indeed, if your arguments were accepted, Fox News, and indeed every news corporation would have been subject to direct federal regulation if congress only decided to do it.

And clearly this was something you believed in, Teddy boy, given that you are on record saying that if the administration doesn’t believe a law is constitutional, they can decline to defend it.

So basically he tried to justify a ruling not supported by the constitution by citing a principle actually written in the constitution that he personally worked to subvert.

What a complete pile of bull.

[Posted and authored by Aaron Worthing.]

117 Responses to “What Ted Olson is Shoveling”

  1. one raghead Tuesday
    morn is what kept his eyes from
    giving back the gaze

    ColonelHaiku (2166fa)

  2. R
    I
    N
    O

    Torquemada (a8a9b2)

  3. You are right, gay marriage is not in the 14th Amendment, or whatever Olson’s reasoning is. It’s in the First Amendment, where Congress shall pass no law against the free exercise of religion. And if my religion says I can get married to any guy who would have me, then fine. And yours says I can’t, then fine. But you all got the law by Congress, DOMA, and state laws galore, which reflects your religious beliefs, however honored and ancient they might be. Thus Congress has passed a law against a religious belief of gay folks to get married in any church that would have us — by specifically outlawing recognition of such marriages, and yet still collecting taxes from said gay couples, all the while allowing all other religions to have their sanctified marriages given the privilege of state recognition and a joint tax return, among other privileges. Gay taxpaying citizens are specifically excluded based on religious grounds, and Congress unconstitutionally passed a law enshrining religious belief. As too with so many state constitutions guaranteeing religious liberty. So either remove marriage from the state, or include gay people in marriage. If you quibble with the word, I’ve proposed Twainage. Others joinage. Still others the rather clumsy civil union.

    I find it fascinating, too, that the people most opposed to gay marriage say we make up just 1% of the population. Which means that there’s just 3,000,000 of us. And since so many still be kids, the sissies bullied, there’d be perhaps, so it’s claimed, 2,000,000 adult gay folks. And that would mean one million marriages if we all went out tomorrow and tied the knot with anyone we might know. But oh, let’s say it’s just 200,000 marriages that might actually happen if it be legal. And if that tiny number of couples imperils the 65,000,000 marriages in this nation we’re all in a lot more trouble in the marriage department than you all realized.

    That DOMA “protects” marriage, or Prop 8, or any other such law, by outlawing it for a tiny few while keeping Divorce perfectly legal for you folks is astounding. Talk about your lousy legal reasoning.

    Jim Hlavac (5d99c6)

  4. It’s in the First Amendment, where Congress shall pass no law against the free exercise of religion. And if my religion says I can get married to any guy who would have me, then fine.

    No, that’s not sound reasoning. If your religion says you can sacrifice infants, that’s not fine. Free exercise of religion does not give you license to violate laws.

    By your logic, Mormons are allowed multiple wives under the 1st Amendment, and we know that’ just not so.

    Some Chump (e84e27)

  5. Is there really only a religious aspect to opposition to same sex marriage, or did Jim just feel like getting a good rant off his chest. You left out screaming homophobe at everyone that disagrees with you, Jim.

    JD (eb1dfe)

  6. That one deserves that line from Billy Madison, same sex marriage is a religion now,

    ian cormac (6709ab)

  7. “You personally argued that congress could vote away our freedom of expression. ”

    Something tells me this was not his argument.

    imdw (4829b2)

  8. lightness of loafers
    political correctness
    like horse and carriage

    ColonelHaiku (2166fa)

  9. Liberalism and AGW are religions, why not same sex marriage?

    JD (eb1dfe)

  10. Randumb thoughts for a Saturday morning…

    If God – or Nature – had intended that one man/woman cleave unto another man/woman, wouldn’t the parts have fit better?

    If this same sex marriage must come to pass, can’t we give the proponents the state of Washington – renamed as Gaylandia – and call it even? That place is irredeemably liberal and on the border of Gay Canada, so it’s a win-win.

    What did Ben Franklin REALLY mean when he opined “all cats are gray in the dark”?

    ColonelHaiku (2166fa)

  11. Back to freedom of speech — it can drive a fella crazy to keep having to make this distinction, but people keep forgetting it, so here we go again.

    Your right to free speech is NOT granted by the Constitution. Your right is not “granted” at all, ever, by any human being or institution — it is a natural right, with which you are endowed by your Creator. Your right to free speech is PRIOR to the Constitution, which merely makes a pact with you that, in exchange for your just consent to a limited (and regrettably necessary, with equal emphasis on both “necessary” and “regrettable”) government, it promises not to encroach on your prior right.

    How in particular this premise speaks to Ted Olson, or to FOX News, or to gay marriage, is a matter for good-faith discussion. But without explicitly underlining this premise at the start of any such discussion, it won’t really be strictly in good faith, and will partake of a sort of knuckleheaded quality best dismissed at once.

    d. in c. (a30317)

  12. “Your right to free speech is NOT granted by the Constitution. Your right is not “granted” at all, ever, by any human being or institution — it is a natural right, with which you are endowed by your Creator”

    What if you have no creator? Then your rights come from the same source as always: struggle.

    imdw (ce700c)

  13. _________________________________________

    I find it fascinating, too, that the people most opposed to gay marriage say we make up just 1% of the population

    That 1% is a lot closer to the truth than the previously greatly exaggerated 10%. Even more so since “gay” on many occasions technically should be substituted with “bisexual,” or the “b” in GLBT. But I guess “bisexual” would imply there is too much free choice and free will involved in human behavior?

    So even though a lot of pro-gay-rights, pro-same-sex activists (almost all of the left) like to throw about the acronym of “GLBT,” they also seem to be hesitant to describe someone as “bisexual” instead of “gay.” Why is that?


    Daily Mail, September 2008:

    And while the convention for film actors is to be ostentatiously keen on women while hiding gay relationships, [Rupert] Everett does the reverse. He talks elaborately about his boyfriends and then discreetly mentions the fact that he has had affairs with a series of high-profile women, including the actresses Beatrice Dalle, who he briefly thought was pregnant with his child, Susan Sarandon and the late Paula Yates.

    ‘I am mystified by my heterosexual affairs, but then I am mystified by most of my relationships,’ he says.

    _____________________________

    The following table lists the ten U.S. Cities with the highest number of same-sex partner households. Nationwide, 701,733 same-sex partner households represented 0.6% of all coupled households in 2003, according to the Census Bureau. Of these, 363,072 were male partners and 338,661 were female partners.

    8,902 2.7% San Francisco, Calif.
    1,418 2.1 Fort Lauderdale, Fla.
    4,965 1.9 Seattle, Wash.
    2,650 1.8 Oakland, Calif.
    788 1.8 Berkeley, Calif.
    2,833 1.7% Atlanta, Ga.
    2,622 1.6 Minneapolis, Minn.
    3,678 1.5 Washington, DC
    2,266 1.4 Long Beach, Calif.
    3,017 1.3 Portland, Ore.

    ^ It’s interesting that the city most associated with homosexuality and gay rights, San Francisco — not to mention the ethos of “if it feels good, do it!” gone berserk and leftism run amok — should rank at not much more than 2.7%.
    _________________________________________

    Mark (411533)

  14. I left my ___________ in San Francisco.

    ColonelHaiku (2166fa)

  15. Some Chump… re: post #4… you’ve been watching too many episodes of “Big Love”.

    ColonelHaiku (2166fa)

  16. I imagine if a law were passed to deny christians the right to get married then it would suddenly be a lot found to be a constitutionally protected dealio.

    happyfeet (42fd61)

  17. Then why deny a man his constitutional right to wed a ewe that is “of age”?

    ColonelHaiku (2166fa)

  18. d. in. c’s post at 10 is something conservatives shouldn’t have to be reminded of: You don’t need to find a right in the Constitution for it to exist. The Constitution gives the government certain powers, but does not attempt to describe all the rights individuals have.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  19. This post is a lot distorting Mr. Olson’s argument I think, which argument is not particularly grounded in the first amendment… he mostly seems to look to the 14th amendment for support. Here’s from that same interview on Fox News.

    We do not permit discrimination, inequality. That’s why we have a 14th Amendment that guarantees equal rights to all citizens. It’s not judicial activism when judges do what the Constitution requires them to do, and they follow the precedent of previous decisions of the Supreme Court.

    WALLACE: But, Mr. Olson, you have also said this. Judges should, quote, “interpret the law, not make it up, not create new rights that weren’t there in the Constitution.” Where is the right to — you talk about the right to marriage. Where is the right to same- sex marriage in the Constitution?

    OLSON: Where is the right to interracial marriage in the Constitution, Chris? The Supreme Court has said that marriage, the right to marry a person of your choice, is a part of liberty, privacy, association and spirituality guaranteed to each individual under the Constitution.

    When you say “same-sex marriage,” you’re saying a particular type of marriage. The Supreme Court has looked at marriage and has said that the right to marry is a fundamental right for all citizens.

    So you call it interracial marriage and then you could prohibit it? No? The Supreme Court has said no. The same thing here. The judge, after hearing three weeks of testimony and a full day of closing arguments, and listening to experts from all over the world, concluded that the denial of the right to marry to these individuals in California hurt them and did not advance the cause of opposite sex marriage.

    He finds marriage to be a fundamental right analogous to freedom of speech, but it’s not the first amendment where he looks for support for his argument in the constitution. He looks to the 14th amendment.

    happyfeet (42fd61)

  20. That smacks of category error, Olson is getting quite soft in his reasoning, it defeats the whole
    purpose of marriage, to change it at a fundamental
    level, into something it is not,

    ian cormac (6709ab)

  21. Anti-miscegenation laws that prohibited marriage between men and women of different races were found by the supreme court to violate the 14th amendment.

    Given that, why would gay marriage, or rather, laws prohibiting women from doing something men can do (marry a woman), not also violate the 14th amendment?

    That is the most compelling argument I have found for gay marriage being in the 14th amendment.

    Nate_MI (68c8a4)

  22. Happyfeet – are you not assuming that marriage is a Right?

    JD (eb1dfe)

  23. Equating sexual preference and race seems to be a dubious comparison, at best.

    JD (eb1dfe)

  24. Interesting stuff, happyfeet. But I’m uncomfortable with the whole idea that the onus is on the individual to show a right exists in the Constitution. The Framers had the burden of proof be on the government, which had limited enumerated powers.

    The Framers deliberately didn’t include a Bill of Rights in the original Constitution because it was thought to be superfluous and possibly dangerous. They feared people would believe if a right wasn’t enumerated, it didn’t exist. And so it has come to pass.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  25. The Dems would much rather talk about same sex marriage than how freaking horrible their policies have been for the American people. I like how Barcky managed to paint people that hold his exact same opinion as hohophobes previously.

    JD (eb1dfe)

  26. I think permitting gay people to marry is consonant with the aspirations of a little country what at one time claimed to value individual freedom and liberty.

    happyfeet (42fd61)

  27. By redefining words to mean things that they have never meant? Civil unions are not enough?

    JD (eb1dfe)

  28. then civil unions, with rights, benefits, responsibilities same as traditional couples.

    ColonelHaiku (2166fa)

  29. #3. Jim. Check out the Reynolds and subsequent cases decided after the Civil War. You have the right to believe what you want. You do not have the right to practice whatever your belief is. Your analysis would permit the worship of Kali and suttee.

    Flashman (9c5c77)

  30. JD
    I like how Barcky managed to paint people that hold his exact same opinion as hohophobes previously.

    Barcky is in favor of anything that expands government power. If we had a Supreme Court that properly understood the Constitution as a body of negative rights, he wouldn’t have succeeded with the Government Motors bailout or semi-nationalizing the banking industry.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  31. If you hold my position you are a hohophobe. But I am not.

    JD (eb1dfe)

  32. What’s a “hohophobe”? Someone afraid of Heidi Fleiss or Kristin Davis?

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  33. ______________________________________________

    denial of the right to marry to these individuals in California hurt them

    The left (or the squishy middle—circa 21st century) has dumbed down various aspects of both society and the judicial system. They expect everyone to weep for the disenfranchised or non-mainstream—of course, as defined by liberals.

    By moving the goals posts to a point where the idea of two guys or two women being hitched should be seen as beautiful, wonderful, compassionate, lovely, heartfelt and sophisticated, it won’t be stretching our sympathies too much to eventually apply that same idea to multiple-partner relationships. That’s even more the case if such situations involve sad, dejected, pitiful, Third-World-ized, put-upon, underdog, minority Muslims.

    montrealgazette.com, October 21, 2010:

    It’s not surprising that breakaway Mormons say they love their polygamous lives in the affidavits they’ve sworn to support their position that practising it is their constitutional right.

    What is surprising is that the affidavits are steeped in the myth of persecution. Filed in advance of the constitutional reference case, which is scheduled to be heard starting Nov. 22 in B.C. Supreme Court, they reveal that almost all of the breakaway Mormons say they live in fear of being jailed or having their children taken away from them.

    Yet, the first time such men were charged in Canada with polygamy was two years ago. The case against prominent polygamists James Oler and Winston Blackmore – leaders of the Bountiful community near Creston, B.C. – was thrown out of court in September 2009.

    B.C. Attorney General Mike de Jong then asked the B.C. Supreme Court to rule on the legality of Canada’s law against polygamy.

    Even though the federal and provincial governments did take First Nations and Sons of Freedom children from their families and put them in residential schools, that has never happened to members of breakaway Mormon sects.

    …The affidavits clearly indicate that these groups believe that if the anti-polygamy section of the Criminal Code is struck down in B.C. Supreme Court, they will get all of the benefits of Canadian society and more. They believe it would mean an unfettered guarantee of religious freedom. And, unlike polyamorists who also want the section struck down, breakaway Mormons want as little as possible to do with secular Canadian society.

    …In another affidavit, a woman identified as Witness No. 2 complains that Revenue Canada has cut back child-tax benefits to some plural wives. It says they are living common-law and must claim the income of the father of their child, regardless of whether others are already claiming it. “This has been a real hardship,” she says.

    Witness No. 2 complains that the breakaway Mormons “have an extremely hard time helping women immigrate when they marry as a plural spouse as it is very hard to get medical insurance.” She complains that education is too expensive and “the kind of jobs we can get working with our own people are mostly not high-paying jobs as we live in a small rural community.”

    But integration is out of the question. “This rural life is precious to us,” she says.

    So, if polygamy is legalized, she wants money for education programs for polygamous women “tailored to our needs.”

    Mark (411533)

  34. Team R missed the boat on supporting civil unions many many moons ago.

    Civil unions are old and busted gay marriage is the new hotness.

    The new hotness also are include Leighton, Raising Hope, and breakfast.

    happyfeet (42fd61)

  35. Ted Olson apparently does not mention that Justices William Brennan and Thurgood Marshall, two justices who interpreted due process and equal protection more broadly than their peers (they were dissenters in Michael M. v. Superior Court of Sonoma County and Crawford v. Board of Education) flat out rejected arguments similar to those Olson made about same-sex marriage.

    Thus Congress has passed a law against a religious belief of gay folks to get married in any church that would have us — by specifically outlawing recognition of such marriages, and yet still collecting taxes from said gay couples, all the while allowing all other religions to have their sanctified marriages given the privilege of state recognition and a joint tax return, among other privileges.

    Not6 all religions.

    Congress passed laws criminalizing Mormon marriages.

    And in Davis v. Beason, the United States Supreme Court, in upholding the Edmunds Act against any constitutional and legal objection, cited this quote from Murphy v. Ramsey as one of its rationales:

    Certainly no legislation can be supposed more wholesome and necessary in the founding of a
    free, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.

    Michael Ejercito (249c90)

  36. I typed that word once to describe people that have an irrational fear of Oliver Willis, and my iPad spell check remembered it. Hohophobe.

    JD (eb1dfe)

  37. _____________________________________

    gay marriage is the new hotness.

    Bisexuality and polygamy actually are the new hotness!

    Mark (411533)

  38. Just because Team R missed the boat does not make it wrong. Team R routinely sucks.

    JD (eb1dfe)

  39. Mark thank you for playing the new hotness game here are some lovely parting gifts

    happyfeet (42fd61)

  40. They feared people would believe if a right wasn’t enumerated, it didn’t exist. And so it has come to pass..

    Yes.

    I understand as a legal matter how this happened – for a court to say that there’s some unenumerated right protected by the 9th amendment would inevitably lead to charges of judicial usurpation and tyranny.

    And yet: they do it from time to time – and both the right to travel among the states (as an example) and the right to marry have been held as protected even though not enumerated.

    (The key case on the right to marry, for those who disbelieve, was Zablocki v Redhail, in which a Wisconsin law that allowed the state to prevent noncustodial parents from remarrying [if they weren’t paying child support] was held to violate the constitutionally protected right to marry.]

    The argument against gay marriage being constitutionally protected is that the ninth amendment only protects rights which were recognized in 1791.

    The arguments against that are that (a) the founders wouldn’t have agreed that new protected rights could not arise over time, and that (b) rules against gay marriage discriminate on the basis of either gender or sexual orientation, and therefore aren’t allowed because such discrimination is generally not allowed.

    The argument against (b), above, is that there is no constitutional prohibition against discrimination on the basis of sexual orientation.

    And that’s really what the fight is about: does “equal protection of the laws” prohibit this particular kind of unequal treatment or not?

    In California, the state Supreme Court said that the state’s Constitution‘s equal protection clause prohibits discrimination on the basis of sexual orientation. (When the voters passed Proposition 8, they left untouched the broader claim about how to interpret the EPC).

    The federal Supreme Court hasn’t really answered the question. It’s both said that discrimination on the basis of sexual orientation should be subject to rational review (the lowest level of review, similar to what most other laws get) and then issued decisions in which it struck down laws using some standard of review which obviously wasn’t rational review.

    aphrael (9802d6)

  41. _______________________________________

    here are some lovely parting gifts

    Happyfeet, one of those gifts definitely should be an evening out with the following guy. Since he swings both ways, he must be quite hot!

    Daily Mail, September 2008:

    And while the convention for film actors is to be ostentatiously keen on women while hiding gay relationships, [Rupert] Everett does the reverse. He talks elaborately about his boyfriends and then discreetly mentions the fact that he has had affairs with a series of high-profile women, including the actresses Beatrice Dalle, who he briefly thought was pregnant with his child, Susan Sarandon and the late Paula Yates.

    ‘I am mystified by my heterosexual affairs, but then I am mystified by most of my relationships,’ he says.

    Mark (411533)

  42. ________________________________________

    the state Supreme Court said that the state’s Constitution‘s equal protection clause prohibits discrimination on the basis of sexual orientation.

    So if a dude is bisexual he should have the right to marry both a guy and girl? Or if a girl is bisexual she should have the right to marry both a chick and dude?

    Sounds fun!

    Mark (411533)

  43. The federal Supreme Court hasn’t really answered the question. It’s both said that discrimination on the basis of sexual orientation should be subject to rational review (the lowest level of review, similar to what most other laws get) and then issued decisions in which it struck down laws using some standard of review which obviously wasn’t rational review.

    Baker v. Nelson

    Michael Ejercito (249c90)

  44. aphrael,
    I understand as a legal matter how this happened – for a court to say that there’s some unenumerated right protected by the 9th amendment would inevitably lead to charges of judicial usurpation and tyranny.

    That’s not quite what I was getting at. I was referring to the argument against having any Bill of Rights at all. The original intention of the Framers was to enumerate the rights of government, not of the citizens. So courts would have been ruling on whether the Constitution gives the government to do something, not whether the Constitution gives citizens a certain right.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  45. Equating sexual preference and race seems to be a dubious comparison, at best.

    Sexual preference with racial preference, or gender status with racial status? Let’s make our comparison on the same dimension. Why is it a dubious comparison?

    Nate_MI (68c8a4)

  46. Can you prefer to be black? Asian?

    JD (eb1dfe)

  47. One is an innate and immutable characteristic. One is a preference in sexual partners and orientation. Comparing it to race and the civil rights movement trivializes it.

    JD (eb1dfe)

  48. (b) rules against gay marriage discriminate on the basis of either gender or sexual orientation, and therefore aren’t allowed because such discrimination is generally not allowed.

    The refutation to that is that there are no rules against gay marriage, only same-sex marriage. The rules on marriage are the same for everybody. So, it’s not actually discrimination.

    Some chump (4c6c0c)

  49. the founders wouldn’t have agreed that new protected rights could not arise over time

    They would have agreed.

    That was what the Article V process was for.

    Michael Ejercito (249c90)

  50. Can you prefer to be black? Asian?

    No, nor can you prefer to be a man or a woman.

    One is an innate and immutable characteristic. One is a preference in sexual partners and orientation. Comparing it to race and the civil rights movement trivializes it.

    Again, you’re confusing the dimensions. We’re talking about the law refusing to allow men to do something women can do, and women to do something men can do.

    How is that not a equal protection issue?

    Nate_MI (68c8a4)

  51. If you cannot even acknowledge the difference between an immutable characteristic and a sexual preference, then we are likely at an impasse.

    JD (eb1dfe)

  52. Again, you’re confusing the dimensions. We’re talking about the law refusing to allow men to do something women can do, and women to do something men can do.

    How is that not a equal protection issue?

    You mean like voting was prior to 1920.

    Funny how the Supreme Court permitted that (Minor v. Happersett)

    Michael Ejercito (249c90)

  53. I am hobophobe
    the irrational fear of
    request for loose change

    ColonelHaiku (2166fa)

  54. there… I said it.

    ColonelHaiku (2166fa)

  55. Again, you’re confusing the dimensions. We’re talking about the law refusing to allow men to do something women can do, and women to do something men can do.

    You’re playing games with semantics. Everyone is bound by the same rules on marriage: you can marry anyone who is:

    (1) of the opposite sex
    (2) not currently married
    (3) of the appropriate age
    (4) non-consanquinous

    This isn’t an issue of equal protection, and never has been.

    Some chump (4c6c0c)

  56. they call him Bovidae Teddy
    he’s always shovelin’ bull

    ColonelHaiku (2166fa)

  57. Brother Bradley, sure. But the framers of the bill of rights conceded to the argument by embedding in the bill of rights an explicit notation that the enumeration of certain rights should not be construed to deny or disparage the existence of others.

    That clause of the constitution is essentially a dead letter, because it’s very difficult for courts to establish a standard for them.

    —-

    Michael Ejercito: Baker v Nelson does not establish the standard for analyzing claims of discrimination based on sexual orientation. It simply denies that restricting marriage to opposite genders raises a federal question.

    Both Lawrence and Romer claim to be using rational basis review while in fact not doing so.

    ———

    Some chump: the law, in its infinite majesty, prevents the rich man and the poor man both from sleeping under the bridge at night.

    ———

    JD: whether same-sex preference is itself an immutable characteristic is under dispute; nobody really knows the answer. The California Supreme Court says that it is, at least for legal purposes in California.

    ——–

    Michael Ejercito – I think the modern understanding of equal protection would suggest that allowing men to vote, but not women, is unconstitutional. Certainly the modern gender discrimination cases are based on a reasoning which would require that result.

    aphrael (9802d6)

  58. Some chump: of course it is.

    Rule (1) means that gay people can never marry someone they would want to have a sexual relationship with, while straight people at least have a chance of it.

    That’s treating people differently based on their sexual orientation.

    The question is whether or not that treating people differently based on a characteristic violates the equal protection clause.

    There are legitimate arguments on both sides of that question.

    But the insistence that people aren’t treated differently is bizarre: it can really only be justified by a belief that being sexually attracted to someone is irrelevant.

    aphrael (9802d6)

  59. Colonel Haiku, @52: Hah! :)

    aphrael (9802d6)

  60. ___________________________________________

    How is that not a equal protection issue?

    Yep, the Constitution also needs to accommodate people like the following:

    timesonline.co.uk, February 2006:

    A couple of years ago many American newspapers printed a report from the Associated Press news agency that the family of the recently deceased Marlon Brando had scattered his ashes in Tahiti and in Death Valley, California. The report continued, intriguingly: “The ashes of Brando’s late friend Wally Cox, who died in 1973, were also poured onto the desert landscape as part of the same ceremony; how Cox’s ashes were in the possession of Brando’s family was unknown.”

    It is hard to credit that neither the agency nor the papers knew that Cox, a comedian, had been Brando’s long-term lover. But such was the strength of the macho heterosexual myth surrounding the actor that he had to be protected even after his death.

    What the media may be excused for not knowing is that Brando not only kept his friend’s ashes for more than 30 years but, when lonely, would sometimes dine à deux with the urn, holding conversations in which he would perfectly imitate Cox’s voice. He left instructions that after his own death their ashes should be mingled and scattered together.

    The media may also be excused for not knowing that Cox was only one of many men with whom Brando had liaisons. Brando was bisexual and voracious. The roles he lived off-screen were even more provocative than those he created in films.

    At his peak his list of lovers read like a Who’s Who of Hollywood and beyond, including Burt Lancaster, Laurence Olivier, John Gielgud, Marilyn Monroe, Marlene Dietrich, Grace Kelly, Rita Hayworth, Leonard Bernstein, Noël Coward, Shelley Winters, Ava Gardner, Gloria Vanderbilt, Tyrone Power, Hedy Lamarr, Anna Magnani, Montgomery Clift, James Dean, Tallulah Bankhead, Ingrid Bergman, Edith Piaf and Doris Duke (at the time the world’s richest woman).

    Yet just as the film studio publicity machines covered up the proclivities of closet gays such as Rock Hudson — another Brando lover — so they hid the extent of Brando’s excesses.

    The world knew of his predilection for “dark-skinned women”, particularly Tahitian and American Indian beauties. That he had a skinny, bespectacled male lover called Wally just didn’t fit the image. Yet he once admitted that he had never been happy with a woman, adding: “If Wally had been a woman, I would have married him and we would have lived happily ever after.”

    ^ Tears are streaming down my cheeks right now.

    It’s terrible and non-compassionate — and racist, homophobic, bigoted, nativist, chauvinistic, classist, imperialistic, nationalistic, capitalistic and xenophobic too! — that someone like Brando (who fittingly had the political biases of an ultra-“progressive”) couldn’t have been recognized by our government and society.

    Shame on us for not allowing such people to have both a wife and husband. Or a husband and wife. Or, better yet, many wives, many husbands. Or many husbands, many wives!

    The possibilities and variations are excitingly endless.
    ___________________________________________

    Mark (411533)

  61. you canNOT marry anyone who is:

    (1) of the same sex
    (2) currently married
    (3) not of the appropriate age (exceptions Alabama, Florida, Arkansas, Tennessee)
    (4) consanquinous (exceptions Alabama, Florida, Arkansas, Tennessee)
    (5) male and fixated on shoe color, draperies, bed clothing, apparel, poodles, eyewear
    (6) female and enjoys working on autos, bowling, swearing, chewing of tobacco or smoking of cigars

    ColonelHaiku (2166fa)

  62. ColonelHaiku: exceptions for (1): Iowa, Connecticut, Massachussets, Vermont, New Hampshire.

    Also: the question is not whether you can marry someone who is of the same sex. The question is whether your state government will recognize your marriage.

    I’m married to another man. The state does not recognize it, but we do, as do our friends and family. That’s really all that matters.

    aphrael (9802d6)

  63. presumably Cox made Brando an offer he couldn’t refuse?

    ColonelHaiku (2166fa)

  64. “I’m married to another man. The state does not recognize it, but we do, as do our friends and family. That’s really all that matters.”

    Sounds reasonable to me.

    ColonelHaiku (2166fa)

  65. I think the modern understanding of equal protection would suggest that allowing men to vote, but not women, is unconstitutional. Certainly the modern gender discrimination cases are based on a reasoning which would require that result.

    That modern understanding conflicts with Supreme Court precedent (Minor v. Happersett)

    The question is whether or not that treating people differently based on a characteristic violates the equal protection clause.

    According to the United States Supreme Court, punishing underage boys for having sex with underage girls, while exempting underage girls from punishment for having consensual sex with underage boys, is not a violation of equal protection. (Michael M. v. Superior Court of Sonoma County)

    Michael Ejercito (249c90)

  66. Rule (1) means that gay people can never marry someone they would want to have a sexual relationship with, while straight people at least have a chance of it.

    There is no right to marry someone with whom you’d want to have a sexual relationship. You’re crafting that out of thin air.

    Look, it’s okay to argue that same-sex marriage should be allowed; it’s a winnable argument. But it’s not an equal protection issue when every person is subject to the same restrictions regarding marriage.

    Some chump (4c6c0c)

  67. One is a preference in sexual partners and orientation.

    See, I don’t wholly agree with this premise, primarily because there is a strong possibility that they’re going to isolate a gene that can cause a predeliction towards being gay, and the additional reality that really, how many people would choose to be gay if they seriously had a choice in the matter?

    With all due respect towards Aphrael, unless you’re a confirmed bi – sexual, I don’t think you’d actively choose to be gay, even in a somewhat more tolerant world compared to the recent past. I would venture that to choose this kind of sexual orientation is still too problematic for most people; therefore, your genetic heritage is most likely the prime determinant.

    Dmac (2110b5)

  68. I think that we should call Chevy’s Mercedes.

    JD (eb1dfe)

  69. BTW, I’ve never cared a whit about this issue – if you want to marry your doorknob, have at it. And for those referencing historical cultural norms as a basis for negating gay marriage, take a good look at the ancient Greeks and then get back to me.

    Dmac (2110b5)

  70. See, I don’t wholly agree with this premise, primarily because there is a strong possibility that they’re going to isolate a gene that can cause a predeliction towards being gay, and the additional reality that really, how many people would choose to be gay if they seriously had a choice in the matter?

    I disagree that homosexuality is chosen, but there is a difference between learned behavior and chosen behavior.

    If homosexuality is purely genetic, from an evolutionary view that trait would be heavily selected against, to the point where it would non-existent after enough generations.

    Some Chump (e84e27)

  71. I really do not care, beyond the attempts to cram this down the throats of the electorate by Judges, flipping the bird to the public. And change the fundamental definition of a word that has been in place since marriage began.

    JD (eb1dfe)

  72. Sorry if I skimmed over a comment making this point but I suspect that Ted Olson’s conservatism died on 9/11/01 when his wife Barbara perished on AA77. He was involved in the Bush 2000 election team but I am unaware of any policy comments that would be called conservative since Barbara died.

    Mike K (d6b02c)

  73. ______________________________________________

    how many people would choose to be gay if they seriously had a choice in the matter?

    I used to buy into that notion until the pro-same-sex-marriage, pro-gay crowd required a closer look at the reality of those people who such activists want society to be so teary eyed about, including folks like the British actor I’ve mentioned previously—I won’t even include Marlon Brando in that category since he never came out in public and described himself as homosexual.

    There’s the phrase “closeted gay.” Actually, an equally accurate phrase would be “closeted straight” (eg, “I am mystified by my heterosexual affairs, but then I am mystified by most of my relationships,” [self-described gay British actor Rupert Everett] says).

    take a good look at the ancient Greeks and then get back to me.

    Speaking of which, a major figurehead of that society, Plato, who originally was a proponent of homosexuality (his take on it early in life sounded exactly like a modern-day leftist excoriating anti-gay sentiment as coming from “barbarians”), changed his tune later in life:

    plato.stanford.edu:

    In the Laws, Plato applies the idea of a fixed, natural law to sex, and takes a much harsher line than he does in the Symposium or the Phraedrus.

    In Book One he writes about how opposite-sex sex acts cause pleasure by nature, while same-sex sexuality is “unnatural” (636c). In Book Eight, the Athenian speaker considers how to have legislation banning homosexual acts, masturbation, and illegitimate procreative sex widely accepted. He then states that this law is according to nature (838-839d).

    Probably the best way of understanding Plato’s discussion here is in the context of his overall concerns with the appetite part of the soul and how best to control it. Plato clearly sees same-sex passions as especially strong, and hence particularly problematic, although in the Symposium that erotic attraction could be the catalyst for a life of philosophy, rather than base sensuality (Cf. Dover, 1989, 153-170; Nussbaum, 1999, esp. chapter 12).

    ^ An illustration of the phenomenon of “as much as things change, some things never change.”
    ______________________________________________

    Mark (411533)

  74. Hypothetical:

    I want to marry my sister. We will not have children. I want her to be able to be able to be declared my dependant so my employer will be forced to give her medical benefits as my dependant. She would be a consenting adult. Also, she would be able to receive my social security if I died. Why can’t we marry?

    peedoffamerican (ec3fdb)

  75. I really do not care, beyond the attempts to cram this down the throats of the electorate by Judges, flipping the bird to the public.

    In that context, I agree completely. Judges have gone wild with their power grabs during the past three decades.

    Dmac (2110b5)

  76. I agree, Mike K. It seemed strange at first, but possibly he was being conservative for her. I wonder if he would admit to that.

    PatAZ (9d1bb3)

  77. I have nothing to say about Mr. Olson, as my position was stated at an earlier date.

    AD-RtR/OS! (1dbed6)

  78. “I really do not care, beyond the attempts to cram this down the throats of the electorate by Judges”

    How come it’s always ‘cram it down the throats’ huh? Delicious.

    imdw (043f60)

  79. Olson was widely considered a lightweight as Solicitor Gen’l, and now he has cemented his reputation for pompous idiocy. Listen, putz: This was on the ballot and Californians voted against it, TWICE. So go home, twit.

    Kevin Stafford (abdb87)

  80. Maybe Ted wants to remarry.

    Torquemada (a8a9b2)

  81. #25–The Framers had the burden of proof be on the government, which had limited enumerated powers.

    No, the federal government had limited, enumerated powers. The states have all other powers, save for those specifically withheld from them. The states, which regulate marriage, do not have the burden of proof.

    Alan (7130c5)

  82. #58–Baker v Nelson does not establish the standard for analyzing claims of discrimination based on sexual orientation. It simply denies that restricting marriage to opposite genders raises a federal question.

    In Baker v. Nelson, the Minnesota Supreme Court held that neither due process nor equal protection guaranteed the right to same-sex marriage. The matter was brought to the Supreme Court, and the Court dismissed the case for want of a substantial federal question. The Supreme Court has explained that a dismissal for want of a substantial federal question is an affirmance on the merits of the lower court’s ultimate conclusion. Meaning, there is no federal constitutional right to same-sex marriage. So any standard of review that would guarantee same-sex marriage is inconsistent with Baker v. Nelson. And the only standard of review that would allow a state to deny same-sex marriage, surely, is rational-basis review.

    Alan (7130c5)

  83. #58–I think the modern understanding of equal protection would suggest that allowing men to vote, but not women, is unconstitutional.

    Only if the modern understanding of equal protection is based on ignoring Section 2 of the Fourteenth Amendment, which makes very clear that the Fourteenth Amendment doesn’t give a fig if women are denied the electoral franchise.

    Alan (7130c5)

  84. How come it’s always ‘cram it down the throats’ huh? Delicious.

    Comment by imdw — 10/23/2010 @ 6:44 pm

    IMDouchnozzle
    find “take it up old wazoo”
    invigorating?

    ColonelHaiku (beb613)

  85. Alan,
    No, the federal government had limited, enumerated powers. The states have all other powers, save for those specifically withheld from them. The states, which regulate marriage, do not have the burden of proof.

    Before the 14th Amendment, that was true. Now it’s not so clear.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  86. Aaron or any moderators around: Comment spam alert

    A few of them have begun showing up.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  87. Now it’s not so clear? How exactly is that? What language in the Amendment so fundamentally transformed the doctrine of reserved powers?

    Alan (7130c5)

  88. So any standard of review that would guarantee same-sex marriage is inconsistent with Baker v. Nelson. And the only standard of review that would allow a state to deny same-sex marriage, surely, is rational-basis review.

    Under current Supreme Court precedent, Proposition 8 would pass strict scrutiny.

    Strict scrutiny is a threefold test- the law in question must further a compelling government interest, be narrowly tailored, and be the least restrictive means in furthering the interest.

    And such an interest was identified in Davis v. Beason.

    In Davis, the Supreme Court heard an appeal challenging Section 5352 of the Revised Statutes of Idaho, which had prohibited polygamists, and advocates of breaking laws against polygamy, from voting, thus imposing adverse consequences for those acts. The appeal had alleged that the law denied the appellant equal protection of the laws (Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41.) In upholding the law against any constitutional or legal objection, the Court quoted Murphy v. Ramsey, stating:

    Certainly no legislation can be supposed more wholesome and necessary in the founding of a
    free, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.

    It is clearly established from Davis that preserving the historical and traditional definition of marriage is a compelling government interest. Proposition 8 furthers that interest in that it legally defines marriage to how the Supreme Court defined it in Murphy and Davis. It is narrowly tailored since it only defines the word marriage. And it is the least restrictive means of achieving that interest because, by itself, it does not disturb any other benefit or right (Strauss v. Horton)

    To be sure, the Court will only use strict scrutiny if a fundamental right is implicated or there is discrimination on the basis of a suspect classification, neither of which is in play in this case. But if strict scrutiny were to be applied, Proposition 8 would pass it easily.

    Michael Ejercito (249c90)

  89. Alan,
    Now it’s not so clear? How exactly is that? What language in the Amendment so fundamentally transformed the doctrine of reserved powers?

    The 14th Amendment incorporates most provisions of the Bill of Rights to apply to the states, according to a series of Supreme Court rulings. Here’s a good Wikipedia summary.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  90. The 14th Amendment incorporates most provisions of the Bill of Rights to apply to the states, according to a series of Supreme Court rulings. Here’s a good Wikipedia summary.

    So it added to the restrictions on states’ powers.

    Michael Ejercito (249c90)

  91. Michael Ejercito,
    Yes, that was my point.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  92. #89–I think Romer v. Evans dooms that argument. History and tradition won’t cut it as compelling interests anymore.

    #90–But of course the actual Amendment’s language doesn’t support the incorporation theory. The Due Process Clause (by its terms guaranteeing process alone) cannot be interpreted as guaranteeing the aforementioned “most provisions of the Bill of Rights.” The incorporation jurisprudence is pure judicial activism.

    Alan (7130c5)

  93. I think Romer v. Evans dooms that argument. History and tradition won’t cut it as compelling interests anymore.

    Nothing in Romer suggested that the historical and traditional definition of marriage was no longer a compelling government interest. The law in question in Romer was found to have made a class of persons a “stranger to the laws” and it was noted for its “sheer breadth” and its denial of “protections across the board”.

    Michael Ejercito (249c90)

  94. If you weren’t persuaded by Justice Scalia’s arguments as to how Romer was inconsistent in principle with Davis, then I don’t think I’ll be able to persuade you.

    Alan (7130c5)

  95. #93,
    The incorporation jurisprudence is pure judicial activism.

    The same could be said about the interpretation of the 14th’s privileges or immunities clause.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  96. #95,
    At least you’ve got my mind working on a Sunday morning, which counts for something. I’ll keep on reading what you’ve posted.

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  97. If you weren’t persuaded by Justice Scalia’s arguments as to how Romer was inconsistent in principle with Davis, then I don’t think I’ll be able to persuade you.

    And since Scalia’s opinion was a dissenting opinion, the Romer Court was not persuaded by his arguments.

    And his argument was that laws singling out a class of persons for unfavorable treatment was precedented, not that the reasoning in Romer implies that the traditional and historical institution of marriage is no longer a compelling government interest.

    Michael Ejercito (249c90)

  98. #96–I disagree. I think that the Slaughter-House Cases were correctly decided. The Privileges or Immunities Clause, by its terms, protected only the privileges and immunities of *national* citizenship. I don’t think that’s an expansive guarantee of liberties. (Privileges and immunities of *state* citizenship fall outside the scope of the Clause’s protection, unless we read the Clause to mean something it clearly doesn’t say. Expressio unius, exclusio alterius est.)

    Alan (7130c5)

  99. The Privileges or Immunities Clause, by its terms, protected only the privileges and immunities of *national* citizenship.

    And would not the Bill of Rights guarantees be privileges of national citizenship?

    Michael Ejercito (249c90)

  100. And his argument was that laws singling out a class of persons for unfavorable treatment was precedented, not that the reasoning in Romer implies that the traditional and historical institution of marriage is no longer a compelling government interest.

    That certainly was not the entire scope of his argument. If it were, then he couldn’t possibly have argued–as he did argue–that the ruling in Romer was inconsistent in principle with Bowers v. Hardwick, where the law at issue did not specifically target homosexuals, but instead categorically prohibited the acts described in the Georgia statute, regardless of the sexual orientation of the persons engaging in those acts.

    And since Scalia’s opinion was a dissenting opinion, the Romer Court was not persuaded by his arguments.

    His argument is equally unanswerable regardless of whether it persuaded his unprincipled colleagues. After Romer, a tradition of refusing to extend to someone a particular legal benefit or freedom is not considered even a legitimate, let alone a compelling, justification for continuing to refuse to extend that benefit or freedom. Romer is a wrecking ball to the importance of tradition and history in constitutional decisionmaking. Likewise Lawrence.

    Alan (7130c5)

  101. Tennis, anyone?

    ColonelHaiku (beb613)

  102. No. The Bill of Rights is not, and has never been called, the Bill of Privileges and Immunities. If it were, the Due Process Clause (immediately following the PoI Clause) would create an inexplicable redundancy in constitutional protection (although the Due Process Clause extends to all persons whereas the PoI Clause protects only American citizens—but why would the drafters have incorporated the entire Bill of Rights for citizens, and then incorporate the Due Process Clause, and only the Due Process Clause, for all persons, both citizens and noncitizens? It doesn’t make any sense.).

    Alan (7130c5)

  103. Also, there’s nothing in the Bill of Rights that says it applies only to citizens. For instance, I don’t think anyone is going to argue that lawful resident aliens have no right to the free exercise of religion. Since the Bill of Rights did not apply specifically and exclusively to American citizens, it’s perfectly obvious that the PoI Clause—which protects only the privileges and immunities of citizens of the United States—doesn’t incorporate the Bill of Rights.

    Alan (7130c5)

  104. That certainly was not the entire scope of his argument. If it were, then he couldn’t possibly have argued–as he did argue–that the ruling in Romer was inconsistent in principle with Bowers v. Hardwick, where the law at issue did not specifically target homosexuals, but instead categorically prohibited the acts described in the Georgia statute, regardless of the sexual orientation of the persons engaging in those acts.

    His argument was that Bowers upheld a law prohibiting the type of conduct identified with homosexuality, and thus upheld a law that effectively treats homosexuals more harshly than Colorado’s Amendment 2.

    And of course, while the Bowers court had pointed out that sodomy is related to marriage, family, or procreation, it never cited protecting marriage as a reason to criminalize sodomy.

    His argument is equally unanswerable regardless of whether it persuaded his unprincipled colleagues.

    His argument requires no answer because it was already rejected by the Supreme Court.

    After Romer, a tradition of refusing to extend to someone a particular legal benefit or freedom is not considered even a legitimate, let alone a compelling, justification for continuing to refuse to extend that benefit or freedom.

    The Romer decision never stated that.

    It repeatedly cited the “sheer breadth” of Colorado’s Amendment 2, stating that it denied “protection across the board”.

    Likewise Lawrence.

    In Lawrence v. Texas, the Supreme Court noted that the Bowers Court failed “to appreciate the extent of the liberty at stake”. While there is no fundamental right to engage in homosexual sodomy, and the Lawrence Court never implied that, it did state that the statute in question sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”

    And of course, Lawrence does not “involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

    Michael Ejercito (249c90)

  105. As Justice Scalia unanswerably pointed out in his dissentng opinion, the purpose of the Colorado law was to reflect the state electorate’s traditional sentiments about sexual orientation. The majority deemed this unacceptable because the majority thought this was just “animus” toward homosexuals–which of course it was. (Traditional morality as regards homosexuality entails the belief that that sexual orientation is immoral and that those who practice homosexuality are inclined to immoral conduct.)

    The fact that the majority diagreed with Justice Scalia doesn’t do anything to refute the proposition, made undeniably clear by Romer, that when all the law has to support it is traditional morality, that isn’t going to wash. Amendment 2 was motivated purely by traditional morality, and that wasn’t good enough.

    Alan (7130c5)

  106. It repeatedly cited the “sheer breadth” of Colorado’s Amendment 2, stating that it denied “protection across the board”.

    This was indeed part of the ratio decidendi, but it doesn’t change the fact that the Court concluded that animus towards homosexuals—which is just an unkind way of saying “traditional opposition on moral grounds to homosexual conduct”—is not a legitimate governmental interest. The objective behind the law was, quite clearly, to enact in law the traditional moral view of homosexuality. The Court held that this was not a legitimate interest.

    Likewise Lawrence. In Lawrence, the Court invalidated a statute that (whether or not you want to admit it) was defended on grounds of traditional morality. Like Amendment 2, the sodomy law was enacted to put traditional sexual morality into the law. The Court said that the law was not rationally related to any legitimate governmental interest. In other words, the Court was saying that traditional morality didn’t count as a legitimate governmental interest.

    Alan (7130c5)

  107. I’ll admit that the majority opinions in Romer and Lawrence don’t explicitly say that the advancement of traditional morality or of tradition is not a legitimate governmental interest. But when you consider, for example, the millennia-old tradition of punishing homosexual conduct, and note that the Court in Lawrence said the law had no rational connection to any legitimate governmental interest; and when you consider how in both Romer and Lawrence the Court determined that rational-basis review was not satisfied by two laws that were supported by (and bore an obvious relationship to the furtherance of) traditional morality… well, you really can’t pretend that Romer or Lawrence is consistent with the idea that tradition alone is a legitimate governmental objective.

    Alan (7130c5)

  108. What does “traditional morality” have to do with the 2nd-Amendment?

    AD-RtR/OS! (9f37bb)

  109. Not the Second Amendment. Amendment 2 to Colorado’s constitution, which the Supremes invalidated in Romer.

    Alan (7130c5)

  110. Speaking of which, a major figurehead of that society, Plato, who originally was a proponent of homosexuality (his take on it early in life sounded exactly like a modern-day leftist excoriating anti-gay sentiment as coming from “barbarians”), changed his tune later in life:

    Plato was always homosexual and the concept of child rearing (not a pun) in The Republic is downright scary. He thought the Spartan mode of raising boys was superior; they were taken from their mothers and raised by men in barracks until they could become soldiers. The English did something similar in the Victorian era with their “public” schools, at least for the upper class.

    The result in both cases was pretty dreary. Ever read “Tom Brown’s Schooldays” ? It also contributed to quite a bit of homosexual behavior that did not persist into later life, a bit like the phenomenon in prisons.

    Societies in which women are excluded and/or confined to harems, tend to have high rates of homosexuality, even if the true rate of the “inborn” trait is no higher than modern society. This was true of Athens in the classical period and women could be wives or courtesans, nothing else. This is also true of Muslim society and, I suspect, the blood curdling treatment of homosexuals has a lot to do with what is going on in Muslim bedrooms. There are lots of boy prostitutes in the middle east.

    One of Plato’s great associates was Phaedo who is thought to have spent time in a boy brothel as a child.

    Mike K (568408)

  111. “IMDouchnozzle
    find “take it up old wazoo”
    invigorating?”

    Let’s see if JD describes it that way.

    imdw (0275b8)

  112. ______________________________________

    Plato was always homosexual

    It’s interesting that the socio-political characteristics of the controversy of homosexuality of today are mirrored in ancient Greece, no less.

    I can easily imagine many intellectuals of the 21st century (most of them of the left) assuming people from early history would have been more innocent and naive — and therefore less “Judeo-Christ-inized” and up-tight — about such things. After all, those ivory-tower experts would proclaim, “the athletes at the ancient Olympic games all performed in the nude!”

    “And the wise, worldly, sophisticated Plato was a fun-lovin’ libertine! He certainly wasn’t a prude and hater (much less a self-hater) about homosexuality!”

    I know I used to make that assumption several years ago. I also was once rather agnostic about homosexuality, certainly involving males, believing that such behavior was so extreme and desperate that only those guys who were super predisposed to being gay (IOW, “they had to be genetically that way!”) would have sex with another male.

    However, I’d be naive to not acknowledge that I’ve observed a percentage of people through the years who do show clearly androgynous qualities (effeminate males, masculinized females) and appear to be affected by biological factors. But it’s humorous to me that even in quite a few of those instances I also recall a variety of them — who I originally thought must have been homosexual — would then start talking about, if they were males, their girlfriends or wives, or, if they were females, their boyfriends or husbands.

    That’s when some of my earlier skepticism and cynicism about the pro-gay, pro-same-sex-marriage agenda started to first crop up.

    As with so many controversies, when I look closer at the reality of some issue, I realize a conservative POV really does have greater merit than even I realized some time ago.

    Mark (411533)

  113. _____________________________________

    the Court was saying that traditional morality didn’t count as a legitimate governmental interest.

    So is resistance towards the idea of polygamy also an aspect of traditional morality that government shouldn’t have an interest in or concern about?

    I know in some cultures of the Middle East (or in various off-shoots of Mormonism) the idea of one male having several wives actually is deemed quite mainstream and acceptable. So the notion of that behavior being unacceptable would be perceived by such societies as on the NON-traditional end of the spectrum. Therefore, it’s the opponents of polygamy who’d come off like the stick-in-the-mud old fogeys.

    Mark (411533)

  114. So is resistance towards the idea of polygamy also an aspect of traditional morality that government shouldn’t have an interest in or concern about?

    I’m not saying I agree with the Court.

    The Court will do whatever it needs to do to uphold the laws against polygamy–probably by saying that polygamy causes social problems (mentioned in the Reynolds case) that the government has a right to prevent. It won’t say that traditional morality is a valid basis for the law.

    Alan (7130c5)

  115. imdw is just getting his hate on while the host is away. His hate is leaking out. Why don’t you go post some other people’s address, imdw? Or make up another name and start sockpuppeting again.

    JD (eb1dfe)

  116. “Why don’t you go post some other people’s address, imdw? ”

    What?

    imdw (60e02c)


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