Freepers In Support Of The Supreme Court

Vanity | 06/28/03 | shred

[Sabertooth]

There are a lot of people who can't think, can't read and comprehend, and don't want to be bothered with thinking about why they can't. Many are Republicans.

[MissAmericanPie]

The supreme court is suppose to judge legislation, not come up with legislation of their own. They granted a flase right under the constitution and flew in the face of the tenth amendment.

[aristeides]

David Frum's column, JUN. 27, 2003: SODOMY IN TEXAS , explains why the effect of Lawrence's overruling of Bowers is to render homosexuals a constitutionally protected group, under Romer v. Evans. Scary.

[Torie]

Well, Frum doesn't get it quite right. What Romer was about was the provision preventing pro gay laws to be passed in the future. It would have been OK just to strip out existing pro gay laws. Instead, there was a process impediment to the passage of future laws, and process impediments which focus on taking one side or the other on social issues are indeed suspect (although I think Romer used rational basis which was squirrely, although I am not sure), and should be. Granted, a process impediment taking the gay side would probably have been OK, so it is true that the die are loaded.

And Lawrence did not make gays a suspect class, and did not use equal protection grounds, as you know. What Kennedy did was much more fuzzy, and we shall see whether how far fuzzy wuzzie is expanded in the future. It certainly is susceptible to expansion, but it is not automatic ala the suspect class regime.

I guess Frum isn't a lawyer.

[AntiGuv]

Frankly, Lawrence legalized prostitution nation wide.

Go cavort with some prostitutes & you'll find out swiftly enough whether Lawrence legalized prostitution nationwide. Good luck....

[ModernDayCato]

Today is my wife's 40th birthday. We spent a lot of time talking today. One of the things we talked about is our belief that we might be persecuted for our beliefs in our lifetimes (we are Christians), and that we might have to leave this country someday.

It's sobering.

[aristeides]

My recollection is that Romer too had some remarkably fuzzy language. Frum furnishes the most plausible explanation I have yet seen of why Lawrence could have led to the result in Limon. The court in these decisions has been very careful not to talk about suspect classes and fundamental rights, and it has -- very unconvincingly -- pretended it was using rational-basis review. But it sure looks to me as though it has in effect created both a protected (I'm not using "suspect" just because it is a technical term) class and a de facto fundamental right. And that that class includes homosexual molesters of 14-year-olds, and that fundamental right somehow covers with a certain amount of protection even the homosexual molestation of 14-year-olds.

[Torie]

Ya, it was fuzzy, because Kennedy didn't want to rule that the process impediment applied both ways, whether it be for or against gays. Process impediments in favor of gays are OK, obviously, and many states have them in their constitutions now. So, he had to dip into the bit about "animus" directed towards a single group, etc.

But again Limon was not about protecting homosexual rape of minors. It was about the differential sentencing requirements for homo and hetero minor rape. It may merely be a directive for the court to review without relying on the now overruled Bowers case. Whether, sans Bowers, Kansas still finds a rational basis for the distinction, then Kennnedy will trundle out Romer again, and find that even though Limon was not about a process impediment, it still is animated by animus towards a particular group, and thus lacks a rational basis, remains to be seen. I doubt that will happen.

If however, it does happen, then gays will become a unique class, ie, the first class protected by rational basis rather than on a suspect class basis. At that juncture, we will really be in the soup, because that means rational basis is now a much stricter standard, almost the functional equivalent of suspect class, which means that SCOTUS can pass any law based on its cultural sensibilites.

[AntiGuv]

My recollection is that Romer too had some remarkably fuzzy language.

Actually, in my view Romer had some of the most incisive language I've read in a Supreme Court opinion..

Frum furnishes the most plausible explanation I have yet seen of why Lawrence could have led to the result in Limon.

Frum's interpretation is wrong - which seems to have become quite a routine trend of late. What Romer iterates is that: even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The object to be attained cannot be the mere expression of animus toward gays as a class, because that is not a rational objective.

The court in these decisions has been very careful not to talk about suspect classes and fundamental rights, and it has -- very unconvincingly -- pretended it was using rational-basis review.

The Court clearly applied rational basis review in the case of Romer, and its subsequent decisions in Dale v Boy Scouts and Equality Foundation v Cincinnati make that transparently evident (as you're well-aware). In the Lawrence ruling the best one might argue is that the Court stopped just shy of explicitly declaring a fundamental right, probably because it didn't need to. The fundamental right to privacy has already been declared in Griswold and in Eisenstadt, which the Court simply stated cannot be withheld from gays (without a rational basis). The mere expression of animus toward gays is not a rational basis.

But it sure looks to me as though it has in effect created both a protected (I'm not using "suspect" just because it is a technical term) class and a de facto fundamental right.

American Academy of Ophthalmology

[Chancellor Palpatine]

Given the alacrity with which the Kansas Supremes moved, its my suspicion that they really despised the inflexible legal result in that case, and grabbed an opportunity to correct the wrong of sending a retarded teenager to prison for 17 years for sex with another retarded teenager, when probation would have been granted had it been a hetero set of teens.

[Torie]

Do you think that a state repealing laws protecting gays from discrimination in say hiring, is an expression of "animus" that lacks a rational basis?

[Torie]

I am sure that they did despise the Draconion sentence, and that might be why they didn't go the harmless error route, and wanted to give Kansas another shot in cleaning the matter up. But it does not necessarily follow, that if Kansas does not, that SCOTUS will then go down the road I outlined above. I tend to doubt that it will.

[AntiGuv]

No, that would require a suspect class designation, which at this point does not exist. If Minnesota, by example, repealed laws protecting gays from discrimination then they could simply state that gays no longer required protection above & beyond that of the general population. If gays enjoyed a suspect class designation, then Minnesota's law would be irrelevant because it would be superceded by Federal law based on the 14th Amendment.

[Torie]

Ok, we are agreed on the bridgework then.

[aristeides]

Give me an example of a sentencing disparity that was struck down that did not involve either a suspect class or a fundamental right.

[Torie]

One does not yet exist, that I know of. I think my post above suggested as much.

[aristeides]

What have the Kansas Supremes done? I'm unaware of anything. Wasn't the Limon case sent back to the Kansas Court of Appeals (not the Supreme Court)?

[aristeides]

So you would agree that this is at the least heightened scrutiny (even if the Supreme Court pretends it's rational-basis review)? And that, under some rationale or other, homosexual molesters of 14-year-olds enjoy the benefit of this heightened scrutiny (whereas heterosexual molesters do not)?

[AntiGuv]

That is reductio ad absurdum. Any given statute may be struck down if it fails rational basis review as well. If Kansas is able to establish a rational objective which requires the sentencing disparity, then the Kansas statute will get upheld.

[Torie]

We shall see. I don't know. I tend to doubt it.