Scalia on Peter Robinson's "Uncommon Knowledge"

[Archaea]

Originally Posted by il Padrino Ute

This quote from one of the judges was interesting:



Is it written in the Iowa Constitution that anyone - straight or gay - has a right to marry? If not, how can he claim insufficient constitutional justification.

Archaea? You're opinion is one that I respect. Perhaps you could explain this to a non-lawyer.

I am quite a few years removed from being in touch with it, but the language sounds similar to Equal Protection Clause arguments I vaguely remember.

Basically, if laws are creating classes, then they are subject to certain scrutiny. And the level of scrutiny depends upon the category of activity legislated. Categories involving race, gender, ethnic origin and creed are inherently suspect. I can't remember where age falls and the justices appear to be making a similar argument for marriage on the basis of sexual practices and orientation.

But I'd have to read the entire opinion to make certain. Most of the stronger constitutional arguments in the arena of private relations originate in the Equal Protection Clause, not in the Due Process Clause, despite Justice Blackmun's opinon to the contrary.

[Tex]

Originally Posted by Cali Coug

"Intimate" knowledge? How about ANY knowledge? You have no idea what the text even says. You simply hear "equal protection clause" and assume it MUST be just like the US Constitutional counterpart, and the justices MUST have totally misconstrued the provision. TYRANNY! Shout away, Glen Beck. It is so much easier than actually learning something so you can have an informed opinion.

Funny, except none of it's true.

[Cali Coug]

Originally Posted by Tex

Funny, except none of it's true.

Sure thing, Glen.

[Tex]

Il Pad, here's some links with some opinions you might find instructive:

Blog entry by Ed Whelan

Amidst the opinion’s 69 pages of blather, there are two key assertions (and they’re nothing more than that):

(1) “[E]qual protection can only be defined by the standards of each generation.” (p. 16)

If you were not attuned to the deceptive rhetoric of living-constitutionalist judges, you would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation reflected in the statute that Iowa adopted in 1998. But no:

(2) “The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” (pp. 16-17)

What gobbledygook.

Column by Matthew Franck

This past Friday, April 3, the Supreme Court of Iowa provided an answer: judicial arrogance transforms into smug self-deception. This is not the question the court thought it was answering. It claimed to be addressing the question of whether “exclusion of a class of Iowans from civil marriage”—namely the “class” of “gay and lesbian people” who wish to marry others of the same sex—can be justified by the state. But the opinion for a unanimous court in Varnum v. Brien, written by Justice Mark Cady, actually says very little about matters of such justification. By contrast, it speaks volumes about the extent to which American judicial power, having burst free of all constraints, is now in the grip of a banal routinization of tyranny so complete that the tyrants do not recognize their own character as they blandly overturn many centuries of civilization in a day’s work.

Column by Andy McCarthy

The Iowa Supreme Court claims that equal protection under the law, the principle employed to foist its social-justice vision on Iowans, has no fixed standards but changes with the sensibilities of each generation. That’s absurd. Constitutions embody enduring values. That is why they prescribe elaborate, supermajority procedures for their amendment. They are the permanent social contract. Consequently, modifications are not legitimate unless they represent a societal consensus.

No, insists Iowa’s judges. The meaning of equal protection changes whenever “the conviction of one, or many, individuals” holds “that a particular grouping results in inequality” — at which point “the judicial system” is free to ignore “the influences that tend to make society’s understanding of equal protection resistant to change.”

That’s not the rule of law. That’s dictatorship. And it can’t last.

A post by Ramesh Ponnuru

Iowa's supreme court has ruled that its constitutional guarantee of "equal protection" for all people requires the state to recognize same-sex marriage. The court overturned a law passed in 1998.

In a democratic system such as ours, it can be perfectly appropriate for courts to set aside laws. Constitutions reflect the permanent will of the people, which trumps the temporary will of the people as expressed in ordinary statutes (if a court is forced to choose between these sources of law to decide a case).

But nobody can plausibly claim that Iowans meant to ratify same-sex marriage when they approved a constitution including equal-protection language. Nor can anyone plausibly claim that Iowans meant to authorize judges to decide such matters as marriage policy when they approved that language.

The court's ruling thus has no democratic or constitutional legitimacy. Whether or not same-sex marriage is a good idea, the decision by Iowa's court to impose it on the state is an outrage.

[MikeWaters]

Vermont just passed it with their legislature.

Probably the best move that gay marriage opponents have left is to carefully study and measure the effects of gay marriage on socially important factors.

One statistic that might emerge is an extraordinarily low percentage of gays actually taking advantage of gay marriage.

I would also be interested in seeing the cost-benefit analysis of gay marriage, in that domestic partnership benefits should largely be eliminated.

[SeattleUte]

This is not rocket science. The virtue of originalism is that it places constraints (albeit arguably arbtrary) on power exercised by judges appointed non-democratically and for life. The drawback is that it doesn't account for changing attitudes and our much changed culture; but democracy proovides a corrective to a large extent. Witness the 14th Amendment, enacted by a democratic process, and most states' movement toward at least limited tolerance of abortion (of course Scalia does not desire to ban abortion anywhere). As he says, originalism is not perfect but it's the best available system. It's a discipline more than anything else. Otherwise, if you take the counter argument to its ligical conclusion, who needs a Constitution when you have federal judges?

[SeattleUte]

I guarantee that if the Supreme Court found a ban on gay marriage implied in Constitutional "penumbras" Tex-types would shed their advocacy for originalism.

[Tex]

Originally Posted by SeattleUte

I guarantee that if the Supreme Court found a ban on gay marriage implied in Constitutional "penumbras" Tex-types would shed their advocacy for originalism.

Try me.

[Tex]

I read over the weekend that Ginsburg (essentially the anti-Scalia) started opining on the value of foreign law again. Among the gems:

Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?

What happened in Europe was the Holocaust, and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.

Ah yes, the Nazis are the reason. All that stands between us and Hitleresque totalitarianism is Ruth Bader Ginsbrrg. Thank you, madam Ginsburg.

What a load. This is the very heart of "the constitution means what I want it to mean." Why even have the document in the first place?

http://www.nytimes.com/2009/04/12/us...g.html?_r=1&em

[Cali Coug]

Originally Posted by Tex

I read over the weekend that Ginsburg (essentially the anti-Scalia) started opining on the value of foreign law again. Among the gems:





Ah yes, the Nazis are the reason. All that stands between us and Hitleresque totalitarianism is Ruth Bader Ginsbrrg. Thank you, madam Ginsburg.

What a load. This is the very heart of "the constitution means what I want it to mean." Why even have the document in the first place?

http://www.nytimes.com/2009/04/12/us...g.html?_r=1&em

In other words, you want the Constitution to mean what you think it means, as determined by your standard of "originalism," which effectively means identifying anything in the early history of the nation which may be construed as supporting a position you have already adopted and then using that information as a bludgeon against anyone who adopts a different standard of interpretation than your own arbitrary standard of interpretation. Got it.