Tea leaves from oral arguments: Supreme Court leaning towards striking down DOMA?

posted at 1:21 pm on March 27, 2013 by Allahpundit

A rare instance in which the left is decidedly pro-federalism. The word from Reuters and SCOTUSblog:

A bit more detail from the WSJ liveblog:

Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

But maybe another standing issue, a la yesterday?

The White House refuses to defend DOMA in court, just as California’s government refuses to defend Prop 8. Do other parties (i.e. House Republicans) who are defending DOMA really have a legal stake in the case or is it mere political interest, in which case there’s no standing?

DOMA’s an especially hard sell with this Court. Conservatives stand a chance on Prop 8 because that case pits gay rights against state sovereignty, two concepts Kennedy has stood for fairly reliably throughout his career. It’s not crazy to think he’d side with the latter over the former given that trends in public opinion might soon solve the problem for him. DOMA, however, aligns the two: He can strike a blow for states’ rights and for gay rights by voting to strike the law. And as SCOTUSblog notes, the Court’s four Democrats are a lead-pipe cinch to vote against it. There hasn’t been an unpredictable vote on social issues among the liberal wing in decades.

Obvious question: How does the White House decide which federal laws aren’t worthy of being defended by the DOJ? The Court’s conservatives would like to know.

“It’s very troubling,” said Justice Anthony Kennedy…

Chief Justice John Roberts pressed government lawyer Sri Srinivasan on how the government will now decide which laws to defend. “What is your test?” Roberts asked.

Justice Antonin Scalia, who served in the Justice Department in the 1970s, criticized its “new regime.”

Two more tidbits from today’s oral arguments, and these may have some bearing on the Prop 8 ruling. Compare and contrast. First, Roberts:

And second, via the WSJ, Clement vs. Kagan:

Justice Kagan said the House report that accompanied the legislation suggested at least some lawmakers had improper motives to enacting the law, such as for the purposes of voicing disapproval of homosexuality. Mr. Clement said the high court has never invalidated a statute on that basis.

Both of those remarks bear on whether the Court might find either DOMA or Prop 8 a violation of equal protection. The point of Roberts’s comments is that, traditionally, the Court only applies “heightened scrutiny” to laws that discriminate against groups that are regarded as being relatively politically powerless. The point of constitutional rights is to protect individuals or minorities who are threatened somehow by the majority, right? But if 53 percent of the country now supports gay marriage, how exactly are gays politically powerless or being threatened? That suggests Roberts would not apply “heightened scrutiny” to DOMA or Prop 8, which in turn means he’s more likely to uphold both laws. Without heightened scrutiny, all the government has to do is show that the law it’s defending has some “rational basis” and the Court will uphold it. (Although do note: Most gay-marriage supporters argue that Prop 8 and other bans have zero rational basis, so it’s possible that Roberts would vote to strike down the laws even without applying heightened scrutiny.) Clement’s remark to Kagan touches on the same point: The Court has never ruled that government discrimination against gays is illicit and thus worthy of heightened scrutiny for purposes of equal protection the way it is for racial minorities. The potential significance of these cases is that the Court might end up tackling that issue head on and addressing whether government discrimination against gays remains more or less legally permissible. But given all the concerns about standing today and, especially, yesterday, it seems a more modest ruling is likely.

Update: Speaking of gay marriage and states’ rights, Gabe Malor flagged this statement from Ted Cruz as being significant. I agree.

Sen. Ted Cruz said Tuesday that he was against same sex marriage and hoped the U.S. Supreme Court would continue to let individual states grapple with the issue.

“I support traditional marriage between one man and one woman,” Cruz said after speaking to the Richardson Chamber of Commerce. “The Constitution leaves it to the states to decide upon marriage and I hope the Supreme Court respects centuries of tradition and doesn’t step into the process of setting aside state laws that make the definition of marriage.”

Says Gabe:

“FMA” is of course “Federal Marriage Amendment,” which is what I assume Huckabee and social conservatives will start demanding from prominent Republicans if the Supreme Court ends up legalizing gay marriage nationwide before 2016. The point of the FMA traditionally has been to ban all attempts at legalizing SSM by stating in the U.S. Constitution that marriage is between one man and one woman. That would take the matter entirely out of the states’ and the courts’ hands. Would Cruz — and Paul and Rubio — oppose that on federalism grounds? If so, will Huck et al. compromise by pushing instead for a new version of the FMA that would return the issue to the states rather than ban the practice of gay marriage outright? It’s hard for me to believe social conservatives would settle for that since, given the poll trends, it would ensure legal SSM in most of the country over the next 25 years anyway. But in that case, what are Cruz/Paul/Rubio to do?

Update: A nice antidote to some of the sanctimony this week:

Follow-up: Was repealing it a particular priority of the liberal base at the time?


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2 3

happytobehere on March 27, 2013 at 2:19 PM

If I’m normal, the lady folks are in real trouble.

cozmo on March 27, 2013 at 2:21 PM

Ceptin’ the Titanic didn’t use studs. She did have frames and rivets though.

cozmo on March 27, 2013 at 2:19 PM

Quit using your gay code language on me.

Bishop on March 27, 2013 at 2:22 PM

What would happen if Doogie Houser declared that he was actually stright? …and. he’s just been acting gay?

kingsjester on March 27, 2013 at 1:41 PM

Maybe someone would make a Christmas themed movie about it?

HarryBackside on March 27, 2013 at 2:14 PM

Yeah, the Leg lamp in the Christmas Story would be a…..

….O.K., I can’t do this anymore….I’ll be back when

Janet Napolitano admits she’s a Tranny…

ToddPA on March 27, 2013 at 2:23 PM

My point is that if Roberts is gay and married to a woman and votes for SSM, then he is a fraud. Like your current down low prez. And There is something WRONG with that.

GhoulAid on March 27, 2013 at 2:23 PM

Whats the col in dallas?

nobar on March 27, 2013 at 2:20 PM

Whats a col?

Smoo…UTD…

Maybe you should go back and re-read what I posted.
SWalker on March 27, 2013 at 2:20 PM

Are we gonna’ go through this…again?

Just admit you were wrong and we can move on. Unlike last time when you spent a page digging the hole deeper.

cozmo on March 27, 2013 at 2:23 PM

Whats a col?

cozmo on March 27, 2013 at 2:23 PM

Cost of Living.

nobar on March 27, 2013 at 2:24 PM

Quit using your gay code language on me.

Bishop on March 27, 2013 at 2:22 PM

Sorry, won’t happen again. My pants were too tight.

cozmo on March 27, 2013 at 2:24 PM

Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

If it’s the states’ role to define marriage, how can Prop 8 be struck down?

p0s3r on March 27, 2013 at 2:20 PM

Good question, it requires a Gay Activist Superior Court Judge (Vaughn Walker) who stands to profit from his striking down a carefully crafted Amendment to a States Constitution.

SWalker on March 27, 2013 at 2:25 PM

If I’m normal, the lady folks are in real trouble.

cozmo on March 27, 2013 at 2:21 PM

So that’s why you’re such a promoter of the gheyness. You think it’ll leave more women-folk for you. Brilliant!

happytobehere on March 27, 2013 at 2:25 PM

Oh, cool! A new topic!

freedomfirst on March 27, 2013 at 1:34 PM

I have posted similar sarcastic comments here, tiring of the number of “same story, different time” post. But, since this IS a national discussion before the SC and does affect, albeit paralyze the social fabric of our country, the topic is quite appropriate.

Rovin on March 27, 2013 at 2:25 PM

Cost of Living.

nobar on March 27, 2013 at 2:24 PM

Ah, last I checked below the average. And that includes the extra the lady folk spend here on hair spray to get that big hair look.

cozmo on March 27, 2013 at 2:27 PM

My point is that if Roberts is gay and married to a woman and votes for SSM, then he is a fraud. Like your current down low prez. And There is something WRONG with that.

GhoulAid on March 27, 2013 at 2:23 PM

Why is that fraudulent? Can a woman of the court not rule on an issue that pertains to women?

happytobehere on March 27, 2013 at 2:27 PM

Exactly how gay must you be to not get married to the opposite sex. What if you’re just, like, a little bit gay?

happytobehere on March 27, 2013 at 2:15 PM

Must be gayer than Anne Heche, Cynthia Nixon and Jim McGreevey.

monalisa on March 27, 2013 at 2:28 PM

happytobehere on March 27, 2013 at 2:25 PM

Dangit! You didn’t have to let everybody know.

cozmo on March 27, 2013 at 2:28 PM

NKorea, Obamacare, assault on 1st, 2nd, 4th, 5th amendments,16.5+ trillion in debt, rising unemployment, rampant government overreach, Fast&Furious, DOE abuses.

Two people I don’t know want to get married. Color me totally ambivalent.

kurtzz3 on March 27, 2013 at 2:29 PM

Just admit you were wrong and we can move on. Unlike last time when you spent a page digging the hole deeper.

cozmo on March 27, 2013 at 2:23 PM

Not wrong, you have a reading comprehension problem. SS America, I.e. allegory to the United States of America.

SWalker on March 27, 2013 at 2:29 PM

Is there a one-drop rule for gayness that the scientific community has come up with yet?

happytobehere on March 27, 2013 at 2:31 PM

What does it say about our nation, if a 3% minority can judicially overthrow the rights of 30 states who voted against that homosexuality is a sexual preference and not a race?

kingsjester

It says we’re a nation of laws.

lostmotherland on March 27, 2013 at 2:34 PM

Is there a one-drop rule for gayness that the scientific community has come up with yet?

happytobehere on March 27, 2013 at 2:31 PM

Of course there is, but you have tom file a FOIA request, be denied three times and provide documented proof of your gayness before you are allowed to see it.

SWalker on March 27, 2013 at 2:34 PM

So if Prop 8 is upheld and DOMA is struck down, how does that not produce a Constitutional crisis? If DOMA is struck down than any same sex marriage performed in MA (or any of the other states where same-sex marriage is legal) must be recognized by another state provided that state does not have a constitutional ban on same-sex marriage. Correct?

libfreeordie on March 27, 2013 at 2:34 PM

happytobehere on March 27, 2013 at 2:31 PM

DOn’t start that on this thread. Good Lt. will come over here with his blasted evolution hijacking again.

kingsjester on March 27, 2013 at 2:34 PM

It says we’re a nation of laws.

lostmotherland on March 27, 2013 at 2:34 PM

Please point to me the law that says that homosexuals have the Constitutional right to marry.

I’ll wait.

kingsjester on March 27, 2013 at 2:35 PM

It says we’re a nation of laws.

lostmotherland on March 27, 2013 at 2:34 PM

Can we pass a law against the stupid, please.. ^^^^

melle1228 on March 27, 2013 at 2:35 PM

SWalker on March 27, 2013 at 2:29 PM

So you do want to spend a page digging a hole…again.

cozmo on March 27, 2013 at 2:36 PM

There are 30 republican governors. If you live in one of those states, you bet get busy and give them federalism. I really seriously think you should start with defining male and female by chromosomes in your constitution. Otherwise the transpeople will be saying that is merely “Assigned” gender not true identity gender and want your state to pay for a lot of things for them.

Then define marriage as one between two people with the correct DNA Chromosomal genders. Define it as having to do with nature, the nature of sex and childbearing.

Redefine parenthood with genders. Call second Mommies and Daddies STEP parent if they are hanging around. Give children the right first, to a male and female parent. Think about defining parenthood for invitro cells and surrogacy.

Demand that unmarried parents behave to a standard, and require unmarried biological parents to jump thru hoops to keep up with the married parents.

Better hurry up.

Fleuries on March 27, 2013 at 2:37 PM

libfreeordie on March 27, 2013 at 2:34 PM

I repeat. Show me int he Constitution where is specifically states that homosexuals have the right to marry.

If it is not in the Constitution, there cannot be a “Constitutional Crisis”, can there, perfesser?

kingsjester on March 27, 2013 at 2:37 PM

SWalker on March 27, 2013 at 2:29 PM

So you do want to spend a page digging a hole…again.

cozmo on March 27, 2013 at 2:36 PM

No need, I think we have already proven that you are an imbecile who only reads what he wants to.

SWalker on March 27, 2013 at 2:38 PM

It says we’re a nation of laws.

lostmotherland on March 27, 2013 at 2:34 PM

ROFL

You still believe that, huh?

Bishop on March 27, 2013 at 2:38 PM

Dear Hot Air,

Thank you for continuing to have that bug that treats me as logged in and then telling me I’m not logged in, combined with the auto-refresh that kills my post as I’m trying to submit it.

Well I am confused. If they strike down DOMA on the basis of states rights, why won’t they have to uphold the original vote on Prop 8 in California?

Cindy Munford on March 27, 2013 at 1:42 PM

That may be the exact hostage exchange that ends up taking place. Congress may scramble to write a new law that does the state separation bit without the federal definition bit, but I’d be surprised if The One signs it.

Again, I’m not saying Roberts is gay.

happytobehere on March 27, 2013 at 2:15 PM

Well, when you call his wife a beard and his kids adopted, you pretty much are. Even if that wasn’t the main point, this contradiction makes it very difficult to understand what you DID mean or where you’re going with this whole line of thinking.

The Schaef on March 27, 2013 at 2:39 PM

If it is not in the Constitution, there cannot be a “Constitutional Crisis”, can there, perfesser?

kingsjester on March 27, 2013 at 2:37 PM

Well the perfesser is a Gay Marxist, so the fact that there is a Constitution at all, constitutes a crises.

SWalker on March 27, 2013 at 2:39 PM

SWalker on March 27, 2013 at 2:39 PM

Excellent point.

kingsjester on March 27, 2013 at 2:40 PM

DOn’t start that on this thread. Good Lt. will come over here with his blasted evolution hijacking again.

kingsjester on March 27, 2013 at 2:34 PM

ROFL!

Blasted Evolution Hijacking – new band name – called it!

22044 on March 27, 2013 at 2:44 PM

No need, I think we have already proven that you are an imbecile who only reads what he wants to.

SWalker on March 27, 2013 at 2:38 PM

Then why didn’t I fall for it when you claimed US v Miller lead to the NFA. You spent an entire page ranting that was how it happened.

cozmo on March 27, 2013 at 2:45 PM

Curious that the MIB weren’t too interested in states rights when it came to Roe v Wade….

PaddyORyan on March 27, 2013 at 2:45 PM

22044 on March 27, 2013 at 2:44 PM

Hey…b.s. by any other name…:)

kingsjester on March 27, 2013 at 2:46 PM

So you do want to spend a page digging a hole…again.

cozmo on March 27, 2013 at 2:36 PM

Give it a rest, cozmo. He was clearly referring to the old expression about “rearranging the deck chairs on the Titanic” and applying it to America.

The Schaef on March 27, 2013 at 2:47 PM

cozmo on March 27, 2013 at 2:36 PM

Give it a rest, cozmo. He was clearly referring to the old expression about “rearranging the deck chairs on the Titanic” and applying it to America.

The Schaef on March 27, 2013 at 2:47 PM

Meh, cozmo is anally retentive and still pissed off that I once told him that I would write my blog the way I saw fit and thanked him for his advise, but refused to take it.

SWalker on March 27, 2013 at 2:54 PM

Curious that the MIB weren’t too interested in states rights when it came to Roe v Wade….

PaddyORyan on March 27, 2013 at 2:45 PM

That was then…this is NOw or sumthin’

workingclass artist on March 27, 2013 at 2:55 PM

I repeat. Show me int he Constitution where is specifically states that homosexuals have the right to marry.

Prior to Brown v. Board of Education where in the Constitution did it specifically say that black children had a right to attend the public school nearest to them regardless of race?

I will shorten that up for you. The Constitution says no such thing. What the Court decided in Brown v. Board is that segregated K-12 education violated the Equal Protection Clause because the schools that black children attended in the Jim Crow south were demonstrably worse than white schools in the same school district. The Court decided that the state was performing an injury to black students based upon nothing but their racial identity.

Now here’s what you’re going to say. “But race and sexuality are different.” Let’s assume you are correct, that race and sexuality are different kinds of social categories (and I think you are). Your argument “that the Constitution provides no right to integrated schooling” could also be used to invalidate Brown v. Board. The question before the Court, however, is not “can we find a set of words in the Constitution.” The question before the Court is whether an existing statute violates the rights enumerated by the Constitution. What those “rights” are is not entirely determined by the text of the Constitution. Indeed, the Founders anticipated the Constitution’s inadequacy by producing means to amend it. If we can assume the Founders anticipated the Constitution’s textual inadequacy then it becomes possible they intended us to interpret the document as well, and to understand concepts like “rights” within the ever changing milieu of society. The Constitution was written in a moment of intense flux and change, when the very relationship between the state and citizens was being revolutionized. To pretend that changing with the times was something foreign to the Founders is to forget that they were *REVOLUTIONARIES* and on the cusp of something new. They were also men who were interested in challenging orthodoxy and producing institutions which allowed for the challenge to orthodoxy. In every sense, conservatism is anathema to the spirit the Constitution was written within.

Is it any surprise that the Federalist society and conservative judicial theory emerged as a direct response to the Warren Court’s Brown v. Board decision? While i disagree that this is a “new civil rights movement.” The arguments Scalia et al are making about same-sex marriage are the exact ones they made about integrated schools after Brown v. Board.

libfreeordie on March 27, 2013 at 2:56 PM

Indeed paddy

Ruthie agrees with ya

cmsinaz on March 27, 2013 at 2:56 PM

libfreeordie on March 27, 2013 at 2:56 PM

Perfesser…even you should know the difference between a sexual preference and a race.

kingsjester on March 27, 2013 at 2:57 PM

SWalker on March 27, 2013 at 2:54 PM

Huh? Where did that come from?

I’m just keepin’ ya’ from makin’ stuff up.

cozmo on March 27, 2013 at 2:59 PM

libfreeordie on March 27, 2013 at 2:56 PM

Perfesser…even you should know the difference between a sexual preference and a race.

kingsjester on March 27, 2013 at 2:57 PM

Here’s a fun thought experiment for you: Explain what “a race” is.

libfreeordie on March 27, 2013 at 2:59 PM

Here’s why everyone should fight against SSM. Even if you do not personally care about gay marriage one way or the other.

The current rush to mainline SSM means that we are very fast approaching a point where SSM is the “preferred” kind of marriage, culturally and legally.

Let’s see what happens when people who don’t subscribe to the “majority” view on marriage (and that means the people in power’s view), shall we?

1800′s, United States. Mormons were jailed for participating in polygamy. Their church and all the church property was seized by the federal government. People engaged in the practice of polygamy were denied their right to vote.

Some states took the right to vote away from Mormons just on their belief that polygamy was okay–from all Mormons, including those who never practiced it. They were punished for their belief alone.

If all of these things were held to be Constitutional by massive majorities (the right to strip all Mormons of the right to vote based on belief alone was 9-0) then who here believes that this is exactly what is coming next for Catholics, Mormons (again), and other’s who do not toe the SSM line?

Are you prepared to lose your right to vote because you don’t agree with SSM? It’s happened in America before. It will happen again. Do you honestly think that the SSM lobby will not start trying to seize and disenfranchise the Catholic church based on Reynolds? Maybe not this year, but within the next few years, certainly.

You don’t stop it now, you or your children WILL be thrown in jail for their beliefs.

Vanceone on March 27, 2013 at 3:00 PM

SWalker on March 27, 2013 at 2:54 PM

Huh? Where did that come from?

I’m just keepin’ ya’ from makin’ stuff up.

cozmo on March 27, 2013 at 2:59 PM

Bullsh!t…

SWalker on March 27, 2013 at 3:00 PM

Resist We Much on March 27, 2013 at 2:55 PM

Heh, Free enterprise, Kansas and God have a sense of humor.

cozmo on March 27, 2013 at 3:01 PM

Now here’s what you’re going to say. “But race and sexuality are different.” Let’s assume you are correct, that race and sexuality are different kinds of social categories (and I think you are).

libfreeordie on March 27, 2013 at 2:56 PM

Perfesser…even you should know the difference between a sexual preference and a race.

kingsjester on March 27, 2013 at 2:57 PM

I have *GOT* to stop assuming you can read.

libfreeordie on March 27, 2013 at 3:01 PM

Think about defining parenthood for invitro cells and surrogacy.

Surrogacy is sort of like human trafficking and everyone is against that.

monalisa on March 27, 2013 at 3:01 PM

Bullsh!t…

SWalker on March 27, 2013 at 3:00 PM

Testy when you get called out, ain’t ya’. Must be that time.

cozmo on March 27, 2013 at 3:02 PM

You don’t stop it now, you or your children WILL be thrown in jail for their beliefs.

Vanceone on March 27, 2013 at 3:00 PM

……..wowza.

libfreeordie on March 27, 2013 at 3:03 PM

libfreeordie on March 27, 2013 at 2:59 PM

It is a genetic variation which ties into the amount of melanin in your skin. Now, please identify the genectic causes/components of homosexuality for me and cite your sources.

I’ll wait.

kingsjester on March 27, 2013 at 3:03 PM

I have *GOT* to stop assuming you can read.

libfreeordie on March 27, 2013 at 3:01 PM

I read very well. You evidently have not ever grasped the difference between something that has not genetic cause and something that is genetically caused.

And, you teach our kids. Scary.

kingsjester on March 27, 2013 at 3:05 PM

“no”

kingsjester on March 27, 2013 at 3:06 PM

It is a genetic variation which ties into the amount of melanin in your skin.

Oh is that so? So everyone of a single race has the same amount of melanin? If not. What is the numerical, scientific amount of melanin necessary to qualify as a particular race. Also what are the “racial” categories?

libfreeordie on March 27, 2013 at 3:06 PM

Indeed, the Founders anticipated the Constitution’s inadequacy by producing means to amend it. If we can assume the Founders anticipated the Constitution’s textual inadequacy then it becomes possible they intended us to interpret the document as well, and to understand concepts like “rights” within the ever changing milieu of society.

libfreeordie on March 27, 2013 at 2:56 PM

You can’t have it both ways. Either we have a means to amend it, which means there is never a need to change the interpretation, or it is open to subjective interpretation, which means we would never need to amend it, just read in the new meaning we wish to apply.

We have 27 amendments, 10 of which were more or less baked in, so we know for a certainty that the means to amend was provided. Therefore, there is no need to pretend that the words mean something different now than before just because the culture has changed over time. Just change the words through the established process.

The Schaef on March 27, 2013 at 3:07 PM

libfreeordie on March 27, 2013 at 3:06 PM

You haven’t answered my question, perfessor. And…you won’t.

Quit deflecting.

kingsjester on March 27, 2013 at 3:08 PM

Oh is that so? So everyone of a single race has the same amount of melanin? If not. What is the numerical, scientific amount of melanin necessary to qualify as a particular race. Also what are the “racial” categories?

libfreeordie on March 27, 2013 at 3:06 PM

Oh, good, now the Party of Accusing People of Having Racist Motivation for Every Policy on Record suggests that race is just a subjective contrivance.

The Schaef on March 27, 2013 at 3:09 PM

Your argument “that the Constitution provides no right to integrated schooling” could also be used to invalidate Brown v. Board. The question before the Court, however, is not “can we find a set of words in the Constitution.” The question before the Court is whether an existing statute violates the rights enumerated by the Constitution.

Tell me again…why can’t I marry my mother?

bobs1196 on March 27, 2013 at 3:10 PM

It is a genetic variation which ties into the amount of melanin in your skin.

Google Image the following names:

Kevin Garnett
Angelina Grimke

Two people who we would categorize as black with vastly different skin tones. If race is genetically determined by melanin how do we explain that all three are of the “black” race.

libfreeordie on March 27, 2013 at 3:11 PM

libfreeordie on March 27, 2013 at 3:11 PM

That has nothing to do with homosexuals getting married, perfesser. Please cite for me the genetic cause for your sexual preference…and why, if it is clearly identified, why it has not been bred out of the population, as a homosexual relationship, does not lead to sexual reproduction.

kingsjester on March 27, 2013 at 3:13 PM

Well, when you call his wife a beard and his kids adopted, you pretty much are. Even if that wasn’t the main point, this contradiction makes it very difficult to understand what you DID mean or where you’re going with this whole line of thinking.
The Schaef on March 27, 2013 at 2:39 PM

So what if he is? Have you got a problem with people being gay? I have no idea if he’s gay or not. Should it matter?

happytobehere on March 27, 2013 at 3:14 PM

Go KJ :)

cmsinaz on March 27, 2013 at 3:14 PM

Two people who we would categorize as black with vastly different skin tones. If race is genetically determined by melanin how do we explain that all three are of the “black” race.

libfreeordie on March 27, 2013 at 3:11 PM

So your argument is, there’s no such thing as black people.

The Schaef on March 27, 2013 at 3:14 PM

Is it any surprise that the Federalist society and conservative judicial theory emerged as a direct response to the Warren Court’s Brown v. Board decision? While i disagree that this is a “new civil rights movement.” The arguments Scalia et al are making about same-sex marriage are the exact ones they made about integrated schools after Brown v. Board.

libfreeordie on March 27, 2013 at 2:56 PM

Oh, look, more bad faith arguments.

Yes, let’s pretend the Federalist Society sprang directly from that one decision, not years and years of liberal overreach on the Warren Court (and later the Burger Court).

Amazing that it took those darn racists 18 years to get so steaming mad about Brown v. Board of Education, eh?

Good Solid B-Plus on March 27, 2013 at 3:15 PM

Just have to love the Bush Presidency. He appoints Roberts, Iraq War, housing market crash, etc. In 50 years the Christian Socialist will be remembered for destroying conservatism.

alanstern on March 27, 2013 at 3:15 PM

You haven’t answered my question, perfessor. And…you won’t.

Quit deflecting.

kingsjester on March 27, 2013 at 3:08 PM

I did answer your question in my post at 2:56, I already ceded that race and sexuality “are different.” You are the one making claims about race being genetic. I’m simply asking you to prove that claim. I have not yet made a claim about sexuality “being genetic.” If you can demonstrate that race is genetic, I’d be happy to hear it.

Oh, good, now the Party of Accusing People of Having Racist Motivation for Every Policy on Record suggests that race is just a subjective contrivance.

The Schaef on March 27, 2013 at 3:09 PM

Race does not have to be genetic in order to animate politics (and a host of other things) in very real and measurable ways.

You can’t have it both ways. Either we have a means to amend it, which means there is never a need to change the interpretation, or it is open to subjective interpretation, which means we would never need to amend it, just read in the new meaning we wish to apply.

We have 27 amendments, 10 of which were more or less baked in, so we know for a certainty that the means to amend was provided. Therefore, there is no need to pretend that the words mean something different now than before just because the culture has changed over time. Just change the words through the established process.

The Schaef on March 27, 2013 at 3:07 PM

Well except that the Founders offered us both ways, and clearly wanted us to make use of both ways. Or do you not consider the Marbury v. Madison decision part of the Founding documents?

libfreeordie on March 27, 2013 at 3:15 PM

Google Image the following names:

Kevin Garnett
Angelina Grimke

Two people who we would categorize as black with vastly different skin tones. If race is genetically determined by melanin how do we explain that all three are of the “black” race.

libfreeordie on March 27, 2013 at 3:11 PM

Really? That’s your new argument? “There’s no such thing as race because all black people don’t look like Kevin Garnett”?

So can I say there’s no such thing as homosexuality because not everyone gay person is as flaming as Richard Simmons?

Good Solid B-Plus on March 27, 2013 at 3:16 PM

Wait…is it permitted to use the term “black” again, because that alone is worthy of its own thread.

Bishop on March 27, 2013 at 3:16 PM

So what if he is?

happytobehere on March 27, 2013 at 3:14 PM

I don’t know. What IF he is? You were the one who introduced the subject. If there was a reason, you would be the one person among us who knows.

Have you got a problem with people being gay?

I don’t see why it would matter. I didn’t bring it up; you did. And you won’t say why it mattered to you.

I have no idea if he’s gay or not. Should it matter?

Why are you asking me? You brought it up, so it mattered to you for a reason yet unstated.

The Schaef on March 27, 2013 at 3:18 PM

I did answer your question in my post at 2:56, I already ceded that race and sexuality “are different.” You are the one making claims about race being genetic. I’m simply asking you to prove that claim. I have not yet made a claim about sexuality “being genetic.” If you can demonstrate that race is genetic, I’d be happy to hear it.

libfreeordie on March 27, 2013 at 3:15 PM

Look in the mirror. Why do you think your skin is the color it is, Prof?

Gamma rays? Eating too much Vitamin A? Sunspots? A wizard did it?

Good Solid B-Plus on March 27, 2013 at 3:18 PM

So your argument is, there’s no such thing as black people.

The Schaef on March 27, 2013 at 3:14 PM

There are people who identify as black. There is a history of legalized racial categorization derived from the development of slave law from the 1640s until emancipation (including dozens of court cases in the Antebellum era where people sued for their freedom on the basis that they were “evidently white” based upon their skin tone). In their enforcement of Jim Crow and anti-miscegination law the state further codified a set of arbitrary racial categories and there is now a census form which does the same. But, in terms of genetic are there “black people.” No. There is no scientific way to determine racial categories.

libfreeordie on March 27, 2013 at 3:19 PM

libfreeordie on March 27, 2013 at 3:19 PM

Here’s a shovel, perfesser. Use both hands.

kingsjester on March 27, 2013 at 3:20 PM

Look in the mirror. Why do you think your skin is the color it is, Prof?

Gamma rays? Eating too much Vitamin A? Sunspots? A wizard did it?

Good Solid B-Plus on March 27, 2013 at 3:18 PM

Oh there is no question that our skin phenotype is determined by genetics. The question is whether “race” is genetic. In order for “race” to be genetic, one has to determine what the boundaries are between genetic racial categories. All I am asking is for an objective standard to determine one’s genetic race. “Looking in the mirror” is not that.

libfreeordie on March 27, 2013 at 3:20 PM

Race does not have to be genetic in order to animate politics (and a host of other things) in very real and measurable ways.

libfreeordie on March 27, 2013 at 3:15 PM

It doesn’t have to be, but race IS interrelated with genetics, and skin color IS one of numerous physical traits that can emerge from those genetic differences. Melanin content may not be wholly reliable but I’m frankly shocked to see you even try to contend that the correlation to skin color was just made up recently for no particular reason.

Or do you not consider the Marbury v. Madison decision part of the Founding documents?

libfreeordie on March 27, 2013 at 3:15 PM

Well, no, I don’t. I consider it to be a court ruling. Another statement from you that I’m surprised anyone would say with a straight face.

The Schaef on March 27, 2013 at 3:25 PM

Oh there is no question that our skin phenotype is determined by genetics. The question is whether “race” is genetic. In order for “race” to be genetic, one has to determine what the boundaries are between genetic racial categories. All I am asking is for an objective standard to determine one’s genetic race. “Looking in the mirror” is not that.

libfreeordie on March 27, 2013 at 3:20 PM

So then you’d say the same thing about homosexuality, right? Clearly, there’s no objective standard for what makes somebody gay. Not when you have people who stay closeted their whole lives, bisexuals, people who claim to have been “cured” of homosexuality, people who flip-flop back and forth, homosexual men who lead double lives by having a wife and kids, and so on and so forth.

In which case, homosexuality isn’t purely genetic, it’s also determined by environmental factors. Isn’t there a compelling state interest in encouraging heterosexuality?

Good Solid B-Plus on March 27, 2013 at 3:27 PM

I knew this thread would go all Michael Jackson at some point.

cozmo on March 27, 2013 at 3:27 PM

It doesn’t have to be, but race IS interrelated with genetics, and skin color IS one of numerous physical traits that can emerge from those genetic differences.

Explain how.

Well, no, I don’t. I consider it to be a court ruling. Another statement from you that I’m surprised anyone would say with a straight face.

The Schaef on March 27, 2013 at 3:25 PM

Considering the centrality of judicial review to American legal history there’s a really strong case that Marbury v. Madison is a formative document in our liberal republic.

libfreeordie on March 27, 2013 at 3:28 PM

No. There is no scientific way to determine racial categories.

Aw hell, that just opened up an entire pallet of canned worms. There goes race-based hiring and quotas.

Bishop on March 27, 2013 at 3:28 PM

But, in terms of genetic are there “black people.” No. There is no scientific way to determine racial categories.

libfreeordie on March 27, 2013 at 3:19 PM

So, your contention is that science says there is zero racial categorization of humanity, which by extension means that any court ruling regarding race is anti-science. Also, all those scientists that say genetic variations make certain races more susceptible to certain diseases, they’re just talking out of their hindquarters also.

The Schaef on March 27, 2013 at 3:31 PM

So then you’d say the same thing about homosexuality, right? Clearly, there’s no objective standard for what makes somebody gay. Not when you have people who stay closeted their whole lives, bisexuals, people who claim to have been “cured” of homosexuality, people who flip-flop back and forth, homosexual men who lead double lives by having a wife and kids, and so on and so forth.

I wouldn’t say “the same” thing about homosexuality because race and sexuality are entirely different kinds of categories. My point is that racial categories are a social construct with zero basis in genetic science, indeed race is a category that precedes our understanding of genetics at all. And yet, despite that fact, has been the basis for lawmaking in this nation since its inception (3/5th clause) and continued to be codified as a legally recognized category in this nation from that moment forward. We didn’t need proof of “genetic” race to have slave codes, to pass the Fugitive Slave Law, for the Dred Scott decision, for the passage of the 13th, 14th, and 15th Amendments, for the establishment of the Freedman’s Bureau for the passage of the Black Codes, for the passage of Jim Crow, for the Warren Court’s Civil Rights decisions, for the passage of the 1964/1965 Civil Rights Acts and so on and so forth. All of that occurred without any kind of scientific consensus on the genetic nature of racial categories.

So why, all of a sudden, have conservatives decided they need “genetic proof” of sexuality to recognize gay people’s existence?

libfreeordie on March 27, 2013 at 3:34 PM

Explain how.

libfreeordie on March 27, 2013 at 3:28 PM

Are you being serious right now? There’s no way you’re being serious. Just spend five seconds googling “race and genetics” and read any of a dozen different articles on the subject.

Considering the centrality of judicial review to American legal history there’s a really strong case that Marbury v. Madison is a formative document in our liberal republic.

No. There is strong evidence that it is a formative early court ruling. There is zero evidence that it is a “founding document”.

The Schaef on March 27, 2013 at 3:34 PM

Once again I note that libfree or die has no reply to MY claim (setting aside the whole idiotic “race is not genetic!” argument he or she is using).

My question is: based on the clear hostility that SSM advocates have for the rest of us, and also based on the evidence that Reynolds v United States and it’s progeny (the anti-Mormon cases of the 1800s)clearly allows voting rights to be stripped from people based solely on their beliefs, the seizure of their property, the jailing of them, and other rights stripped (such as the right to be on a jury, and the right to not testify against your spouse)–if all of these were constitutional acts; then why should not the Catholics and Mormons and others be afraid of a repeat, except this time, its because you preach against the idea of SSM?

Because those cases are clearly good law. Even Davis v Beason still is good law for stripping “criminals” of the right to vote. And we all know SSM advocates want to criminalize “Hate Speech” against gays. Such as reading the Bible and saying that one man, one woman marriage is better. That’s hate speech, dontcha know. And since Davis paints with a broad brush…. you be Catholic or Mormon, no vote for you!

Vanceone on March 27, 2013 at 3:34 PM

Oh is that so? So everyone of a single race has the same amount of melanin? If not. What is the numerical, scientific amount of melanin necessary to qualify as a particular race. Also what are the “racial” categories?

libfreeordie on March 27, 2013 at 3:06 PM

LOL.

Why don’t you explain why Lizzie Warren is Native American, then, and qualified for preferential hiring and treatment based on her race?

And if you’re admitting that there is no scientific basis for race whatsoever, your Barack Obama’s screaming and agitating for banks to make loans based on race and for the Federal government to hire preferentially based on race is shown to be nothing more than arbitrary and capricious bigotry.

You didn’t realize how much this would blow up in your face, did you, bigot? Shows what happens when grades are assigned based on imaginary classifications like what happened to you.

northdallasthirty on March 27, 2013 at 3:36 PM

Some of you SSM supporters should really look up the penalties under the Edmund-Tucker act, the Morril act, and the Edmunds Acts. Just to see what can happen in America if you don’t agree with the “favored” notion of marriage among the elite.

Vanceone on March 27, 2013 at 3:37 PM

My point is that racial categories are a social construct with zero basis in genetic science

libfreeordie on March 27, 2013 at 3:34 PM

Based on what?!?

So why, all of a sudden, have conservatives decided they need “genetic proof” of sexuality to recognize gay people’s existence?

They don’t. They’re just saying that the two are fundamentally different, such that you can’t analogize the two.

The Schaef on March 27, 2013 at 3:38 PM

Also, all those scientists that say genetic variations make certain races more susceptible to certain diseases, they’re just talking out of their hindquarters also.

The Schaef on March 27, 2013 at 3:31 PM

Not exactly. We have all inherited “race” as a “real thing,” there’s a profound historical momentum around “race” goes back centuries now. What scientists are finding however, in terms of sickle cell for example, is a history of the Trans-Atlantic slave trade. Sickle cell anemia is an adaptation that humans in tropical, mosquito heavy, malaria-prone environments develop. This includes sub-saharan Africa, but it also includes other tropical regions in India and Asia. Are those people “racially” the same as African descended people? Or did they adapt to their environment?

libfreeordie on March 27, 2013 at 3:40 PM

Not exactly. We have all inherited “race” as a “real thing,” there’s a profound historical momentum around “race” goes back centuries now.

libfreeordie on March 27, 2013 at 3:40 PM

That’s because there is a correlation between race and geographical ancestry, and amazingly, ancestry means those people have lived in those same places… FOR CENTURIES.

The Schaef on March 27, 2013 at 3:43 PM

So why, all of a sudden, have conservatives decided they need “genetic proof” of sexuality to recognize gay people’s existence?

libfreeordie on March 27, 2013 at 3:34 PM

We’re not asking for proof. We’re asking for cause.

kingsjester on March 27, 2013 at 3:44 PM

Based on what?!?

The undeniable fact that racial categories were codified into law before humanity knew what “genes” were.

libfreeordie on March 27, 2013 at 3:46 PM

“Can gay marriage survive a SCOTUS loss?”

Politico, 26 March 2013

Yes. When the Supreme Court denied cert in Baker v Nelson – the first SSM case – in 1971 relative to the refusal of Minnesota to issue a marriage licence to two men and said that marriage was a state issue, that act didn’t kill the movements to end sodomy laws and legitimise same-sex marriage (SSM). A refusal by the Court to recognise that SSM is a fundamental right will likewise not kill the SSM movement, which has been making great strides at the state level in the last 2 years. Prop 8 would be defeated today at the ballot box.

In 1883, the Supreme Court affirmed that Alabama’s anti-miscegenation statute was constitutional and interracial marriage was strictly prohibited. Eighty-four years later, Mildred Loving, a black woman, and Richard Loving, a white man, got married in Washington, DC, and moved to Virginia where they were promptly arrested, prosecuted, convicted, and sentenced to a year in jail. Their case Loving v Virginia, 388 U.S. 1 (1967), not only blew the disgusting piece of shyt, Pace v Alabama, 106 U.S. 583 (1883), to KKK Hell, it also established that marriage was a fundamental right.

In 1986, the Supreme Court in Bowers v Hardwick, 478 U.S. 186, upheld criminal sodomy laws. Seventeen years later, in Lawrence v Texas, 539 U.S. 558 (2003), it struck ALL sodomy laws between consenting adults down…and Scalia wrote in his dissent that the case made SSM “inevitable.”

As I said earlier, the Court denied cert – basically, talk to the hand and don’t let the door hit you on the way out – in 1971 on an issue involving SSM. Yesterday, it listened to oral arguments in Hollingsworth v Perry. Today, it listened to oral arguments in United States v Windsor.

In listening to the arguments yesterday, I heard a lot of Ginsburgism in the questions, i.e., it is better to leave questions of great import that will drastically transform society to the people and the states rather than have a Court impose its view on over 310 million people. Justice Ruth Bader Ginsburg has said that she believes Roe v Wade, 410 U.S. 113 (1973), was an unforced error made by her predecessors on the Court, who “mistimed the milestone 1973 case that legalised abortion nationwide.” Abortion laws were becoming more lax across the country – Ronald Reagan had legalised abortion in California in 1967. At the time of Roe, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas – where the Roe case originated. Justice Ginsburg has stated, alluding to the four decades of bitter acrimony that has persisted in the wake of the Roe decision, that it might have been the wiser course of action and more prudent for the sake of popular comity “if the justices of that era had delayed hearing any abortion case while the state-by-state process evolved. Alternatively, they could have struck down just the Texas law, which allowed abortions only to save a mother’s life, without declaring a right to privacy that legalized the procedure nationwide.”

“It’s not that the judgment was wrong, but it moved too far too fast. The court made a decision that made every abortion law in the country invalid, even the most liberal. We’ll never know whether I’m right or wrong … things might have turned out differently if the court had been more restrained. The right to abortion might have been more secure had it been grounded in the concept of women’s right to equality rather than in the right to privacy. The Roe decision might have been less of a storm center had it homed in more precisely on the women’s-equality dimension of the issue.”

- Justice Ruth Bader Ginsburg, Columbia Law School, 10 February 2012

Instead of letting the people come to some accommodation and decision on their own, 9 unelected, unaccountable men with lifetime positions issued a one-size-fits-all edict and split the country in half to this day. I think that many on the Court are leery about repeating this, especially on an issue as emotionally charged as SSM and in the wake of the Obamacare decision.

As an aside, at the time that Roe was handed down, Justice Ginsburg believed that the case and the issue of abortion were about population control, not “choice”…not “privacy.” She has admitted this.

For years, I have predicted that Prop 8 and the DOMA case would be the vehicles that the Court would use to overturn all SSM bans with Justice Kennedy writing for the 5/4 (maybe 6/3) majority on the basis on his strong libertarian-bent and his two majority opinions in Romer v Evans, 517 U.S. 620 (1996), and Lawrence v Texas, 539 U.S. 558 (2003), but then, a few weeks ago, I seemed to notice a tell. He was out in California making a speech when he said something that was not noticed by many, but was very profound considering what was on the docket:

“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it’s of tremendous importance for our political system to show the rest of the world – and we have to show ourselves first – that democracy works because we can reach agreement on a principle basis.”

- Justice Anthony Kennedy, 7 March 2013

In other words, he was echoing the concerns that Justice Ginsburg has expressed in the past.

I can see him possibly being the 5th vote to strike down DOMA because marriage is a state issue, but I don’t think he is going to be the 5th vote to strike down all SSM bans and I also see him going as narrowly as possible.

I thought that Roberts might be a 5th, but I doubt it now. He said yesterday:

“If you tell a child that somebody has to be their friend, I suppose you can force the child to say ‘this is my friend,’ but it changes the definition of what it means to be a friend. And that’s, it seems to me, what opponents of Proposition 8 are saying here. All you’re interested in is the label, and you insist on changing the definition of the label.”

— Chief Justice John Roberts, 26 March 2013

Of course, there is ONE VERY BIG CAVEAT with CJ Roberts: He DOES have a habit of changing definition at the last minute. A “penalty” became a “tax.” So, a “friend” could become a “spouse.” In the end, who knows?

Another interesting person yesterday was Sotomayor. Many keep saying “people should be able to marry whomever they love.” She didn’t seem persuaded by that argument, not because she doesn’t “believe in love,” but sees the argument as a slippery slope. If a man and an underage boy, who is really mature even though he is unable to purchase a car because he is as yet the age of majority to enter a contract, are really, really, really in love, should they be allowed to marry? If a happily married, heterosexual couple fall in love with a man, should they be able to marry him? Can a devout Muslim marry 3 wives, if they all really, really, really love one another? If members of some breakaway Mormon sect all really, really, really love each other, should they all be permitted to marry each other? If a woman and her 57 cats all really, really, really love each other, should they be permitted to marry? Do we really want Beyoncé’s “If you like it, you should be able to put a ring on it” to become the law of the land? Some people really, really, really like their AR-15s, should they put a ring on them?

Don’t get me wrong about Sotomayor: Given the chance, she will vote to overturn all SSM bans, but I think she is giving you some advice. Be careful with the “No matter who you love” stuff. Obama uses that line a lot. I realise that most are referring to SSM, but an acquaintance of mine, who is a nationally-recognised constitutional law expert and professor is watching these cases closely because he represents the sister wives people out in Utah or Nevada or wherever the weirdos are located. He’s going in for polygamy as soon as SSM is held legal.

In any event, I doubt that either SSM case will be the “BIG” case this term. They more than likely will overturn DOMA, which I believe is unconstitutional and isn’t really important anyway since, as the Court has acknowledged, marriage is a state issue, cf Baker v Nelson. While it is true that Article IV of the COTUS does require “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”… THERE IS A PUBLIC POLICY EXCEPTION. See Wisconsin v Pelican Insurance Co., 127 U.S. 265 (1888); Huntington v Attrill, 146 U.S. 657 (1892); Finney v Guy, 189 U.S. 335 (1903); Clarke v Clarke, 178 U.S. 186 (1900); Olmsted v Olmsted, 216 U.S. 386 (1910); Hood v McGehee, 237 U.S. 611 (1915); Gasquet v Fenner, 247 U.S. 16 (1918); and Pacific Employers Insurance v Industrial Accident, 306 U.S. 493 (1939), for a few examples.

In Pacific Employers in 1939, the Court said:

“There are some limitations upon the extent to which a state may required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy….And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.”

On Proposition 8, I would expect a very narrow ruling that will likely effect California alone, as it was fairly apparent from the questions and tenor of the arguments that the justices were really more concerned with procedural issues and why they should even rule than whether there is a fundamental, Federal, Constitutional issue involved.

For the “BIG” case of this term, look for either affirmative action case (Texas or Michigan) or, very likely, the end of the Section 5 of the Voting Rights Act. Justice O’Connor wrote a few years ago that it was, for all intents and purposes, on life support. It is fairly archaic. Either apply Section 5 to ALL 50 states or get rid of it altogether. I would bet that the Court will probably pull the plug. The Left will go absolutely, positively batshyt crazy (think Citizens United times 1000) even though it will have no impact in reality.

Resist We Much on March 27, 2013 at 3:47 PM

After the Obamacare decision I’ve sworn off SCOTUS tea leaf reading. A seductive but ultimately futile endeavor.

Missy on March 27, 2013 at 3:47 PM

That’s because there is a correlation between race and geographical ancestry, and amazingly, ancestry means those people have lived in those same places… FOR CENTURIES.

The Schaef on March 27, 2013 at 3:43 PM

So are you saying you believe in the idea that Europeans, Asians and Africans evolved from primates in separate region. They also, somehow, evolved from primates in these different regions in ways that produced measurable genetic differences, and yet made interracial reproduction possible? That makes absolutely no sense. A species evolved in multiple places to the point that phenotypical differences are genetic, but *not* different enough as to be different species. This flies in the face of everything we know about evolutionary biology. But, I suppose when one is invested in the fantasy of genetic race, one is able to believe anything.

libfreeordie on March 27, 2013 at 3:50 PM

Prior to Brown v. Board of Education where in the Constitution did it specifically say that black children had a right to attend the public school nearest to them regardless of race?

libfreeordie on March 27, 2013 at 2:56 PM

Simple. In the 12th – 14th Amendments which were specifically designed to free the slaves and bring equality to them through the law.

njrob on March 27, 2013 at 3:51 PM

The undeniable fact that racial categories were codified into law before humanity knew what “genes” were.

libfreeordie on March 27, 2013 at 3:46 PM

Part of the reason was that you could objective tell that someone was of “minority” and thus protective status therefore you could objective discriminate.

melle1228 on March 27, 2013 at 3:53 PM

Simple. In the 12th – 14th Amendments which were specifically designed to free the slaves and bring equality to them through the law.

Simple. In the 13th – 15th Amendments which were specifically designed to free the slaves and bring equality to them through the law.

FIXED TYPO*

njrob on March 27, 2013 at 3:53 PM

Why don’t you explain why Lizzie Warren is Native American, then, and qualified for preferential hiring and treatment based on her race?

And if you’re admitting that there is no scientific basis for race whatsoever, your Barack Obama’s screaming and agitating for banks to make loans based on race and for the Federal government to hire preferentially based on race is shown to be nothing more than arbitrary and capricious bigotry.

You didn’t realize how much this would blow up in your face, did you, bigot? Shows what happens when grades are assigned based on imaginary classifications like what happened to you.

northdallasthirty on March 27, 2013 at 3:36 PM

See my post at 3:34pm. There is a long history in the United States of recognizing race in the law, one that precedes our scientific understanding of genetics. We don’t need to identify the genetics of “race” to legislate on it. The Founders legislated race long before we understood the genetics of human evolution. Why stop now, especially when (as this board has indicated) so many Americans are steeped in their ironclad belief that race is scientific.

libfreeordie on March 27, 2013 at 3:54 PM

See my post at 3:34pm. There is a long history in the United States of recognizing race in the law, one that precedes our scientific understanding of genetics. We don’t need to identify the genetics of “race” to legislate on it. The Founders legislated race long before we understood the genetics of human evolution. Why stop now, especially when (as this board has indicated) so many Americans are steeped in their ironclad belief that race is scientific.
libfreeordie on March 27, 2013 at 3:54 PM

Probably because you could objectively and visually detect the minority status of the protected group… I know that may be too practical and logical, but there it is.

melle1228 on March 27, 2013 at 3:58 PM

The undeniable fact that racial categories were codified into law before humanity knew what “genes” were.

libfreeordie on March 27, 2013 at 3:46 PM

Wow! That’s amazing! Then, because we were able to distinguish between men and women before we learned about genes, that must mean there is no genetic role in gender either!

Even more amazing, people know what genes are now, and yet we still fill in the bubbles for race on the forms!

That makes absolutely no sense.

libfreeordie on March 27, 2013 at 3:50 PM

Amazing discovery number three: words that I did not say, but which you put in my mouth, make no sense to you!

A species evolved in multiple places to the point that phenotypical differences are genetic, but *not* different enough as to be different species.

Hey, thanks for telling me that humans are not different species from other humans. I would never have figured that out without all your high-falootin’ science, even though I never said anything even remotely resembling that.

But, I suppose when one is invested in the fantasy of genetic race, one is able to believe anything.

You mean like Margaret Sanger, right?

The Schaef on March 27, 2013 at 4:00 PM

Why did we allow BrainFree to derail this topic? I’m guessing most of us are just tired of Hot Air’s “all gay all the time” mentality that we needed a break. Carry on.

Yes, I’m guilty of it too.

njrob on March 27, 2013 at 4:00 PM

Comment pages: 1 2 3