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There is no amendment protecting interractial or gay marriage. Loving v Virgina could be overturned by the Court. And it's likely Obergefell v. Hodges would be

by cmurf 4y ago

There is no amendment protecting interractial or gay marriage. Loving v Virgina could be overturned by the Court. And it's likely Obergefell v. Hodges would be overturned for the exact same underlying reason as Roe: religious belief of a majority of the Court.

SllX 4y ago
There comes a point where you need to look towards a legislative body rather than a court and that’s by design. That’s where real law-making happens because if your “rights” depend on an Executive Order or stare decisis, then you don’t really have them. This is moot because neither Loving nor Obergefell are implicated here or up for reexamination. Also as a note, neither Roe nor Casey has actually been overturned as of this writing. Interestingly enough I was just listening to a podcast from 2015 or 2016 three nights ago where Justice Alito was the interviewee and he explained the process by which majorities are reached, opinions are assigned and he specifically said that no decision by the court is final until the moment it is handed down. It’s rare for this to happen, but in a narrow decision a Justice can indicate to the court at any point until then that today is not a good day to hand it down and he or she might need to rethink some things.
- cmurf 4y ago
  Minorities cannot rely on the majority to make laws protecting the minority. Courts exist, significantly, to protect minorities from the majority. Before going after interracial marriage, opponents would necessarily have to go after gay marriage, and before that they have to go after Roe. Legalized contraception is also at stake, not just gay marriage. Right to contraception and right to marry are not in federal law either. Your path might be correct, only hindsight could tell us, but it will have serious consequences: significantly more political polarization will happen to compel a legislative process, let alone if it will be a constitutional amendment process - which we are really overdue for. No venue can be immune to conversations about the most important subjects of the day - even when quite a few people insist these issues aren't important or are off topic and shouldn't be discussed on HN or at holiday and company parties. Necessarily there will be quite a lot of long deep seated fears expressed verbally with a lot of anger - that's natural. And some people will worry about it, whereas I think repression is worse. If the Court overturns Roe, it is an assertion the state owns an organ only women have as if it were government property. The culture war set aside for so long is going to get so hot, everyone will forget about the Trump presidency. It will divide the country before it has any chance, even if there is a chance, of it coming to a compromise again.
  - SllX 4y ago
    Your premise is flawed: courts have less power to protect minorities than even the legislature does, but there isn’t a law in the world that can protect minorities from the dominant culture they are subject to. Courts are not the guardians of the citizenry, they are a forum for justice to be deliberated and arbitrated according to the Law and they cannot protect someone from the power of a determined people who can make their own laws. I almost included this in my last comment but left it out for brevity and because I saw it as a distraction but I think it’s appropriate here as an example: California has at multiple times sought to disallow gay marriage. First it was a statute, then it was a statute passed by ballot proposition. These were overturned by our courts. Then it was an amendment to our constitution passed by a popular vote in the same year Barack Obama was elected to his first term as POTUS where it retained the force of law until Obergefell in 2015. It had to take a Federal court to disempower Proposition 8 because once it was in the highest law of the State of California, it was beyond the power of a State court to permanently overturn it. A constitution is nothing more than an amendable body of legal text, and you can make this process easier or more difficult and there are arguments to be made for making it easier, but once it is in there not even SCOTUS can overrule it. Maybe you protect a woman’s right to an abortion that way, but maybe you achieve the exact opposite effect and now you’re stuck with it. As a prudential matter, constitutional amendments should be rare because once you pass one, the only way to undo it is with another one and we don’t need more like the 18th and 21st. So what can you accomplish without resorting to the amendment process today? If you were to resort to one, would it be better to go directly at the goals you wish to achieve, or modify the process that makes it more likely to achieve productive changes to the law without having to resort to further amendments? Ultimately this is a political fight, and while SCOTUS can grant legal victories and losses, they cannot grant political victories and losses.
    - cmurf 4y ago
      It isn't about power. It is about fairness. Legislatures are ostensibly representing the majority. How does the minority get a fair hearing before a legislature whose express job is to serve the majority? Continuing to argue that the shitty thing the majority did, should continue to be arm wrestled over politically, not in the courts, means you think the majority should always win. That is the nature of politics in a democracy! The very issue at hand is the Court becoming political and therefore granting political victories and losses, thereby no longer being viewed as capable of providing fair hearings.
- Forgeties79 4y ago
  >There comes a point where you need to look towards a legislative body rather than a court and that’s by design. Except now with these rulings those laws will absolutely be challenged. Do you truly believe they'll be upheld by such a partisan court, with multiple judges picked for the explicit purpose of overturning Roe v. Wade? I mean you've got Montana trying to pass a law prosecuting people for getting abortions in another state. You can't expect people who are dogmatic about abortion to accept compromises in any way, shape, or form. Clearly that's the case given half a century later they are fighting as hard as ever and are about to secure their first major victory.
s1artibartfast 4y ago
The connection to the constitution was a lot more clear in the case of interracial or gay marriage than that of Roe. for Roe it took the the 14th amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This was intepreteted it to say this means abortion bans are OK in the 1st trimester, conditional in the 2nd, and prohibited in the 3rd trimester. Loving took this and said that means interracial partners and gays get equal legal treatment to everyone else.

by cmurf 4y ago

SllX 4y ago

There comes a point where you need to look towards a legislative body rather than a court and that’s by design. That’s where real law-making happens because if your “rights” depend on an Executive Order or stare decisis, then you don’t really have them. This is moot because neither Loving nor Obergefell are implicated here or up for reexamination. Also as a note, neither Roe nor Casey has actually been overturned as of this writing. Interestingly enough I was just listening to a podcast from 2015 or 2016 three nights ago where Justice Alito was the interviewee and he explained the process by which majorities are reached, opinions are assigned and he specifically said that no decision by the court is final until the moment it is handed down. It’s rare for this to happen, but in a narrow decision a Justice can indicate to the court at any point until then that today is not a good day to hand it down and he or she might need to rethink some things.

cmurf 4y ago
Minorities cannot rely on the majority to make laws protecting the minority. Courts exist, significantly, to protect minorities from the majority. Before going after interracial marriage, opponents would necessarily have to go after gay marriage, and before that they have to go after Roe. Legalized contraception is also at stake, not just gay marriage. Right to contraception and right to marry are not in federal law either. Your path might be correct, only hindsight could tell us, but it will have serious consequences: significantly more political polarization will happen to compel a legislative process, let alone if it will be a constitutional amendment process - which we are really overdue for. No venue can be immune to conversations about the most important subjects of the day - even when quite a few people insist these issues aren't important or are off topic and shouldn't be discussed on HN or at holiday and company parties. Necessarily there will be quite a lot of long deep seated fears expressed verbally with a lot of anger - that's natural. And some people will worry about it, whereas I think repression is worse. If the Court overturns Roe, it is an assertion the state owns an organ only women have as if it were government property. The culture war set aside for so long is going to get so hot, everyone will forget about the Trump presidency. It will divide the country before it has any chance, even if there is a chance, of it coming to a compromise again.
- SllX 4y ago
  Your premise is flawed: courts have less power to protect minorities than even the legislature does, but there isn’t a law in the world that can protect minorities from the dominant culture they are subject to. Courts are not the guardians of the citizenry, they are a forum for justice to be deliberated and arbitrated according to the Law and they cannot protect someone from the power of a determined people who can make their own laws. I almost included this in my last comment but left it out for brevity and because I saw it as a distraction but I think it’s appropriate here as an example: California has at multiple times sought to disallow gay marriage. First it was a statute, then it was a statute passed by ballot proposition. These were overturned by our courts. Then it was an amendment to our constitution passed by a popular vote in the same year Barack Obama was elected to his first term as POTUS where it retained the force of law until Obergefell in 2015. It had to take a Federal court to disempower Proposition 8 because once it was in the highest law of the State of California, it was beyond the power of a State court to permanently overturn it. A constitution is nothing more than an amendable body of legal text, and you can make this process easier or more difficult and there are arguments to be made for making it easier, but once it is in there not even SCOTUS can overrule it. Maybe you protect a woman’s right to an abortion that way, but maybe you achieve the exact opposite effect and now you’re stuck with it. As a prudential matter, constitutional amendments should be rare because once you pass one, the only way to undo it is with another one and we don’t need more like the 18th and 21st. So what can you accomplish without resorting to the amendment process today? If you were to resort to one, would it be better to go directly at the goals you wish to achieve, or modify the process that makes it more likely to achieve productive changes to the law without having to resort to further amendments? Ultimately this is a political fight, and while SCOTUS can grant legal victories and losses, they cannot grant political victories and losses.
  - cmurf 4y ago
    It isn't about power. It is about fairness. Legislatures are ostensibly representing the majority. How does the minority get a fair hearing before a legislature whose express job is to serve the majority? Continuing to argue that the shitty thing the majority did, should continue to be arm wrestled over politically, not in the courts, means you think the majority should always win. That is the nature of politics in a democracy! The very issue at hand is the Court becoming political and therefore granting political victories and losses, thereby no longer being viewed as capable of providing fair hearings.
Forgeties79 4y ago
>There comes a point where you need to look towards a legislative body rather than a court and that’s by design. Except now with these rulings those laws will absolutely be challenged. Do you truly believe they'll be upheld by such a partisan court, with multiple judges picked for the explicit purpose of overturning Roe v. Wade? I mean you've got Montana trying to pass a law prosecuting people for getting abortions in another state. You can't expect people who are dogmatic about abortion to accept compromises in any way, shape, or form. Clearly that's the case given half a century later they are fighting as hard as ever and are about to secure their first major victory.

s1artibartfast 4y ago

The connection to the constitution was a lot more clear in the case of interracial or gay marriage than that of Roe. for Roe it took the the 14th amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This was intepreteted it to say this means abortion bans are OK in the 1st trimester, conditional in the 2nd, and prohibited in the 3rd trimester. Loving took this and said that means interracial partners and gays get equal legal treatment to everyone else.