Yeah, I think we're going to take it in the pants on this one.

I'd confirm him anyway; he's obviously eminently qualified. And I have no problem with his position in Romer. But like you say, it's a proxy issue, and this doesn't bode well. Coulter's going to have the last laugh on this one.

The last throatily masculine laugh.

I dunno Ace. Perhaps I'm getting to be a homo-friendly softie in my old age, but it looks as if Roberts was on the right side here.

Granted, I only have a few minutes of research online, but despite the troika (Rehnquist, Scalia, Thomas) dissent in Romer v. Evans, I find it hard to see the Colorado amendment as constitutional, regardless if it is "democratic."

Then again, I'm no lawyer, I'm just a poli-sci guy, and this case was almost certainly a situation of Roberts buying himself some insulation (or, quite possible, the favor for a friend. . . Hell, we all do that. I'd hate to be called onto the carpet one day for lending bail money).

Cheers,
Dave at Garfield Ridge

Does that make him a liberal? Or just a conservative with some liberal-ish or libertarian leanings?

Maybe he it just makes him a decent human being. Of course, that doesn't appear to be occurring to people.

Oh big deal!

He worked for a very large firm. They had/have a pro bono unit. They were handling the case. All Roberts did was help them prep for oral argument before the USSC.

addendum: They asked for his help because he had argued so many times before the USSC. It would have been extremely tacky for him to say no.

I don't know how true this is, but I heard on the news that he devoted about 6 and a half hours to this gay rights case.

I wouldn't necessarily say that's an indicator that he's a liberal championing the gay cause.

I guess I'd ask what guarantee we have that anything could be conceivably guaranteed?

I think that's actually part of the problem - everyone wants their desired outcomes to be assured. Certainly that's what the Left wants to see.

There's nothing about the guy that suggests to me he's prone to going nutso with penumbras and such. I think in this particular case, some on the Right are getting really close to the kind of nitpicking we see so often from the other side.

Rohmer overturned pretty much the only correctly decided S Ct case in the last few decades.

Wrong, dead wrong.

Darn right people want assured outcomes. As the man says - the only honest judge/politician is the one that "stays bought".

These modern weasles you have to rent by the hour/day are ruining the professions.

Was Romer v. Evans the one where people could get retirement benefits, but only if they were a homosexual couple?

I'm not sure about that... why shouldn't unmarried heterosexual couples be eligible for the same benefit? Or two straight friends living together?

If a benefit is extended that you can only get if you're gay, is that reallly equal treatment?

We won't know for at least a year after he is confirmed, but Ann Coulter cites a lot of compelling historical precedent. Souter, Kennedy, O'Conner -- all bona fide conservatives we were told. My money is on Ann.

Um, Dave, do you really think it's unconstitutional not to have special legal protections for people on the basis of their sexual orientation?

"That is to say, the principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws." - Scalia [emphasis on preferential missing]

Maybe he thought that someday he would need a little of the Ole Lefty work in his resume????

I mean think about it. Smart guy, positioning himself for a SCOTUS slot his whole career. He had to know he should throw a bone to the left in his resume somewhere, he ain't that dumb..

Bird

I know one thing- we wouldn't be fretting over wether Edith Jones or Janice Rodgers Brown were doing, "please like me" crap on the sly.( at best!)
This whole thing seemed too clever by half because someone didn't want to take the heat of nominating, and then actually fighting for a conservative in a very dirty and partisan way.
Bush tipped his mitt when he didn't rip the Gang of 14 a new one over "HIS" judges, some of whom were deemed "expendable ".

I keep sayin', y'all oughta listen more to me an' Ann...

This really seems like much ado about nothing. He worked ten hours of pro-bono on this case (which, if I'm understanding it correctly, I think I agree with).

Why do people who disagree with this ruling feel that way? It seems fairly innocuous on the whole (though again, I ain't no legal scholar).

I also don't happen to be an expert, but think about it from this perspective:

You work at a large company, and are and expert in dealing with Company A. Another team in your company is going to visit Company A., and your boss asks you to give them some advice on how to work with them.

Do you tell them no? Not unless you are an idiot. You help out your employer, becuase--get this-- he is your employer.

They didn't ask Judge Roberts to do anything illegal or unethical, they just asked for help with a court case.

Try backing away from teh individual tree and you might be able to see the whole metaphorical forst, which seems to indicate Judge Roberts is a fair, sane, rational human being, beholden to no one.

If you can think of a better person for this country, please, do share.

Damn right it is much ado about nothing. His firm was representing these people pro bono. The attorney in his firm supervising the gay rights attys asked him to help prep for the oral argument. As far as pro bono goes, the firm claimed it as pro bono hours. I wouldn't assume that Roberts wasn't paid for his work by the firm -- if that makes any difference to people.

I find it hard to see the Colorado amendment as constitutional, regardless if it is "democratic."

You're wrong, Dave. Here's the text of the Colorado constitutional amendment in question:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

How could that possibly be discriminatory on the basis of sexual orientation? By its own language, it provides that sexual behavior cannot be the basis of any legal classification.

The only reason this amendment was passed in the first place is because of the insane "civil rights" laws that grant special, protected status in favor of certain racial groups.

As any rational person would readily acknowledge, racial preferences are inherently discriminatory. It makes no difference whether the discrimination is for or against one group or the other -- it is still discrimination on the basis of race. Our vaunted SCOTUS takes the ridiculous position that racial discrimination is fine and dandy, so long as today's preferred race gets the benefits.

Some conservatives call this "reverse discrimination," but that is a misnomer. It is ordinary discrimination. The term "discrimination" covers both scenarios, regardless of which particular group happens to be getting the special benefits and which is getting The Shaft this time around.

Now, in the context of homosexual "rights," Colorado sought to put an end to this nonsense. This amendment simply says that non-discrimination means non-discrimination. Sexual behavior shall not be the basis for any legal status. This amendment is, by its own terms, a plain statement of non-discrimination. It is a requirement that homosexuals not be given special, privileged status.

Now, tell me where in the US Constitution it says that a state cannot declare that certain forms of classification are not allowed. Tell me where it says that a state is not allowed to declare that people must be treated equally.

Roberts is a smart guy. He's eminently qualified. He's been nominated and should be confirmed. But Romer is a rotten decision. The fact that he had a hand in it makes me think Coulter is right.

Phinn -

This question in meant in all seriousness as I really have no idea. Let's say that amendment was still in place and a gay couple was denied a lease on an apartment because of their sexuality.

Would the couple have any legal recourse?

Oh, lord. He told the gay rights attorneys, who his firm had committed themselves to helping, what to expect during oral argument before the ussc. And only attys flatter themselves in thinking oral argument has any significant influence on the outcome of any case.

Phinn--

I am no lawyer. Let's get that out of the way, my friend.

But here's how I see the potential for corruption of the amendment-- it all comes down to two words-- "relationship" and "discrimination."

The amendment's purpose was trying to remove any special protection for gays-- I'm cool with that, and if I understand you correctly, the same way that you are.

But the clumsy wording also appeared to preclude any legal redress on the part of homosexuals who experienced discrimination *because* they are homosexual. Rather than establish a non-discriminatory environment, it says it's fair game to deny homosexuals benefits that others would be otherwise equal to *because* of their orientation.

After all, according to the amendment the state doesn't recognize them as worthy of protection, which would mean that homosexual activity would thus be open grounds for discrimination in housing, benefits, state services, etc.

Basically, it's saying that an entire class of people who undertake a specific behavior-- or even have just the orientation!-- do not have the same legal protection against discrimination that other Americans have. Thus, equal protection under the law goes out the window here.

Was there a way to word this provision to prevent such confusion, and achieve the purpose that Scalia et al. read into it? Sure, probably. . . but I'm no lawyer.

And my dummy now-law-talking-guy view of this reads pretty close with how it was decided.

Of course, who knows what Judge Roberts thought, or thinks, about this. I'm with the folks who say he was probably just helping the firm out (hell, I spent more than 10 hours a week reading this this stupid blog-- will that prevent me from getting a SCOTUS nod?)

Cheers,
Dave at Garfield Ridge

Well, when you can make an argument on both sides, all that's left is what you have to go on; do you trust Bush or not?

I am a big fan of Ms. Coulter, but I'm going to place my money on President Bush.

Don't disappoint me, George.

Later,
bbeck

Let's say that amendment was still in place and a gay couple was denied a lease on an apartment because of their sexuality. Would the couple have any legal recourse?

I have no idea. My guess is no. Nor should they. Fair Housing laws in the US, as with most genuine non-discrimination statutes, say that it is illegal to discriminate on the basis of certain criteria -- race, national origin, religion, etc.

It does not say "thou shalt not discriminate on the basis of anything other than ability to pay rent." In other words, the law does not list the permissible discrimination criteria; it only lists the impermissible ones. (Even that, though, is a grotesque intrusion into people's private affairs.)

Let me ask you this -- what if a landlord said that he would not rent to vegetarians? Or carnivores? Or to computer users? Or non-computer users.

Should these people have "legal recourse"? If so ,why?

If these criteria have no bearing on one's desireability as a tenant, then the free market WILL provide a solution. The landlord who arbitrarily excludes tenants on the basis of economically unsound criteria will be out-competed for the preferable tenants by another landlord who is more rational. If some landlords are irrational in their discrimination policies, that situation necessarily creates a profit opportunity for the rational ones.

Notice that your question deals with discrimination by private actors. I know that few people take property rights seriously anymore, but a landlord is a private person, and he should have the freedom to choose the people he does business with, just as you and I have the freedom to choose those with whom we voluntarily associate.

Roberts ran the appellate division at the law firm he worked for. His job was to help lawyers at his firm win cases. That's what lawyers in his position do.

Basically, it's saying that an entire class of people who undertake a specific behavior-- or even have just the orientation!-- do not have the same legal protection against discrimination that other Americans have.

No, it's exactly the opposite.

People make discriminatory decisions all the time. You discriminate on the basis of height when choosing your basketball team, on the basis of intelligence when choosing a civil engineer, on the basis of hair color when choosing a girlfriend, on the basis of spice-selection when choosing a restaurant.

Why do we not have anti-discrimination laws against short would-be basketball players, or stupid engineers, or brunette would-be girlfriends, or spice-less restaruants?

Why make a special case for sexual behavior?

When you are talking about a state function, I agree -- the state should not be discriminating on the basis of any criteria other than the ones needed to fulfill that agency's purpose. I expect my government to be imminently rational in its decision-making process.

But when you are talking about actions by private persons, on what moral ground is it permissible for the state to control people's decision-making processes?

Dave aGR, the dissent noted what the Colorado Supreme Court said about discrimination in areas such as state services (but the majority somehow omitted when it raised the question):

"“[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes ... Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti-discrimination laws intended to protect gays, lesbians, and bisexuals."

There was no confusion about what Amendment 2 did or did not do. The Supreme Court simply did not like what it did. There was no constitutional basis for objecting to it (as Scalia points out, even criminalizing sodomy was constitutional, which Colorado did not do); especially not on equal protection grounds, as the amendment repealed laws giving non-equal protection to certain groups.

Sorry we're talking past each other here Phinn.

You say that sexual orienation should not be the basis for protection. Which would by extension mean sexual orientation is an acceptable basis for discrimination.

Fine; not PC, but I can accept that for the purposes of discussion.

The dilemma here is that the justification for Romer v. Evans enumerated in Scalia's dissent is that certain behavior can be condemned by the state, and be considered illicit and even illegal. Again, fine, we call those laws.

Of course, the ruling he used to justify that position was the sodomy rulling in Bowers v. Hardwick, which was weakened substantially ten years after Romer v. Evans, in Lawrence v. Texas.

So, we have a ruling that says private sexual behavior between consenting adults is no longer grounds for legal discrimination. . . but justification for Romer v. Evans relies on said obsolete justification (by extension).

I guess this comes down to a basic question: is there a right to sexual privacy? If there is, then no discrimination can be made based upon inference from that private behavior.

So, flip side: does the law protect discrimination against *heterosexuals*? Should it?

I know your answer Phinn-- it's the property rights answer. I don't necessarily disagree with it, but I just urge you to carry it to the logical conclusion.

Cheers,
Dave at Garfield Ridge

Than,

I don't see how that is relevant, since that acknowledgement wording was not *in the text* of Amendment 2, and is thus dependent upon the future grace of Colorado Supreme Court interpretation, which (like SCOTUS) could change at any time.

Cheers,
Dave at Garfield Ridge

Phinn--

"People make discriminatory decisions all the time. "

True. But people aren't the State of Colorado, which would have been instructed by Amendment 2 to provide no protection-- either in the government, or outside-- for sexual orientation.

"When you are talking about a state function, I agree -- the state should not be discriminating on the basis of any criteria other than the ones needed to fulfill that agency's purpose. I expect my government to be imminently rational in its decision-making process."

But do we agree that Amendment 2 would have given the State of Colorado and its executives the power to discriminate on the basis of sexual orientation in state functions?

And if we do agree, do we then agree that such discrimination is wrong, and in violation of the 14th Amendment?

We may not. After all, to do so would require the classification of homosexuality as a "suspect" class, just like race, national origin, etc.

"But when you are talking about actions by private persons, on what moral ground is it permissible for the state to control people's decision-making processes?"

Again, depends on the case-- either the rational basis, or the strict scrutiny test.

Cheers,
Dave at Garfield Ridge

Phinn, Than--

Sorry to have to bomb toss and run, but I gotta wake up in the morning. I'll be happy to pick up the conversation later if it's still going on.

Your humble servant,
Dave at Garfield Ridge

"The dilemma here is that the justification for Romer v. Evans enumerated in Scalia's dissent is that certain behavior can be condemned by the state, and be considered illicit and even illegal. Again, fine, we call those laws."

No it isn't. The justification is that the people of Colorado passed an amendment to the state constitution and there is nothing in the (federal) Constitution to forbid it. Scalia's point was that if states could constitutionally criminalize sodomy, they could certainly prohibit special protections for sodomy practitioners.

"Of course, the ruling he used to justify that position was the sodomy rulling in Bowers v. Hardwick, which was weakened substantially ten years after Romer v. Evans, in Lawrence v. Texas."

Another had no constitutional basis for its outcome. The Court didn'teven try to explain what in the Constitution had changed in the intervening years.

"I guess this comes down to a basic question: is there a right to sexual privacy?"

Not one enumerated in the Constitution or assumed by the law at the time of its adoption.

"So, flip side: does the law protect discrimination against *heterosexuals*? Should it?"

1) Yes, but not based on their heterosexuality.
2) If people want it to. The Court seems to have forgotten that part. Laws in a democratic society don't have to be justified by "compelling state interest" or whatever. They have to be tested in a vote. I'm not talking about the U.S., which is democratic in a broad sense. I'm talking about Colorado, where the amendment was passed in a popular ballot.

Dave, you're no conservative.

I guess this comes down to a basic question: is there a right to sexual privacy?

"I don't see how that is relevant, since that acknowledgement wording was not *in the text* of Amendment 2, and is thus dependent upon the future grace of Colorado Supreme Court interpretation, which (like SCOTUS) could change at any time."

Not at all. This isn't some exemption the state court dreamed up. Amendment 2 doesn't say anything other than what it says. Phinn's post has the entire text.

Under Amendment 2: If Colorado law says every adult male of a protected minorty group gets a free hat, and an official doesn't give some man who is gay (and white, not handicapped, etc.) the hat, that man has no legal recourse because he is not entitled to claim minority or protected status. If Colorado law says every adult male in the state gets a free hat, and an official refuses to give a some man the hat because said man is gay, that man would have legal recourse -- not because he is gay, but because he didn't get the hat to which he is legally entitled. It would be the same in either case for, say, a LARPer; LARPers are a minority, but not a special one.

Under Amendment 2: If Colorado law says businesses have to have 15% of their employees be of Hispanic origin, it can (barring other objections). If Colorado law says businesses must have 3% of their employees be of "homosexual, lesbian bisexual orientation, conduct, practices or relationships," that law is unconstitutional as per the amendment.

That's all Amendment 2 did. Homosexuality was declared not to be a basis for special legal treatment, just as most orientations, conduct, practices, or relationships are not.

And Someone-- if that's even your real name-- your statement is no insult.

Now, off to slumber.

test

Oh, you don't want to come in here, Ace.

The real problem, as Ace noted, is:

No one is allowed to ask candidates what their political or jurisprudential leanings might be, resulting in decisions made without much information at all.

What I really want is for America to snap out of it and realize that we should actually ask prospective judges hard questions. All these guessing games are annoying.

Fine, whatever. . . I can sleep when I'm dead.

Phinn, you're right.

There, now moving on. . .

I allowed my first-order belief to influence my opinion of the second-order issue. Namely, I believe that sexual orientation should not be the basis for *most* forms of discrimination. Meaning, while I do not favor something like gay marriage, I certainly would not condone a state office denying a gay person the right to get a driver's license because they're gay. Or, targeting them for audits. Or, denying them fair hearing in a legal proceeding. Stuff like that-- "rights" that we all exercise every day.

And one of those "rights"-- in quotes because I know as well as any CONSERVATIVE does are not rights enumerated in the Constitution-- is the "right" to a modicum of privacy behind closed doors, to do what I please behind those doors-- whether that's to play Xbox, or to play hide the salami with the pool boy. (Please note: I play Xbox).

I believe that Justice Scalia, as much as I respect him, would disagree with my belief, as that's certainly a very modern, secular position. And I find it difficult to square my belief with my otherwise preference for "originalist" interpretations of the Constitution.

Now, this belief in privacy does not-- and should not-- preclude moral opinions of such behavior. But the State is not in the business of morality, or at least should not be. Its leaders can talk the talk, and lead by example, but I do not feel that it is the place for the State to legislate a preferred morality absent compelling utilitarian reasons (another reason why I disagree vehemently with "hate crime" legislation, because it choose favorites based upon a "moral" viewpoint).

I don't have to like it, and the State can't make me like it, but alternatively I don't know if it is the State's place to prevent it, as long as it is not harming anyone. And besides, laws that allow such action give me the creeps. That's the HYSTERICAL LIBERTARIAN streak in me.

I guess I do have one more question about the Colorado amendment, however: Why? What was the purpose of the amendment, if not to *legislatively enable* discrimination on the basis of sexual orientation? What was the compelling need for such an amendment, and why did the people of Colorado vote for such a thing?

Bottom line: I don't know what to think of Romer v. Evans, except that it failed the SCOTUS test. I'm emotionally uncomfortable with the dissent given that I see no authority to regulate consenual, victimless sexual behavior on the part of the state, whether it be a sodomy law or a law specifically against homosexuality. I admit that there is no obvious constitutional justification for my otherwise emotional position, which means I'm really just ranting here.

I apologize for wasting everyone's time,
Dave at Garfield Ridge

gay "rights," like abortion, is a useful proxy issue

Oh, I guess I really should have looked at the issue this way.

I personally believe that some form of protection-- equal protection, mind you-- should exist for heterosexual and homosexual behavior alike. Perhaps not explicit, but certianly traditional.

That said, the preferred legal means of achieving such protection has been through judical fiat. I am *always* uncomfortable with this, whether we start from the Commerce Clause, or we get to the sodomy decisions, where I believe state law should take precedence.

Of course, I also believe that no state should have sodomy laws. However, that's a political argument, not a constitutional one. Thus, be extension, I should logically have supported the right of the citizens of Colorado to make the Amendment 2 choice for themselves.

But here's my dilemma, and I apologize for getting all Sully on everyone here: while I understand the structural differences between racial civil rights and homosexual "rights," I can't help but feel that there is still some connection there, unspoken.

For instance, would we not all agree that Colorado could not pass Amendment 2 if explicitly called out race instead of sexual orientation?

After all, could not a Scalia-like dissent rely upon the rich history of laws in this country that said it was okay to treat the black man as less than the white man, and thus the states should have that authority because, well, they've always had it before, and we should respect the will of the people?

The rules changed for the black man, through mechanisms proper (the civil rights amendments) and improper (judicial Commerce Clause tyranny). But the end result was the same: recognition that all men are created equal.

Well, how are gays different? And before you say behavior, I don't mean in public (or in the military), but in private homes, just like you or me?

Yeah, I know, I know. . . I'm talking out loud, like Sully. I guess I'm just searching for a *conservative* justification for my emotional position. If there is no justification, then perhaps I should rethink it. But I find it difficult to rely upon transient definitions of personal morality to guide the permament laws of the land.

Good night,
Dave at Garfield Ridge

My original drunken comment conflated Romer with Lawrence. Ungh.

But the Romer case is about another one of those things that the Liberal Elite worldview simply can't process: that "anti-discrimination" laws are, in practice, vehicles for preferences, rent-seeking, and all sorts of nonsense. Naturally the courts themselves are to blame for much of this -- ever looked into the "disparate impact" stuff they made up?

Now a certain amount of this BS may be justified in eliminating the obvious evil of racial discrimination -- though I'd have been as amused as anyone to see Richard Epstein replacing O'Connor. But other contexts? Uhh... No.

Someone-- would you please explain why you conclude that racial discrimination is an "obvious evil," and how that differs from discrimination on the basis of sexual orientation?

I'm honestly just curious.

Constitutional answer: We fought a war for it. It's settled.

Other answer: Race is quite visible, immutable (unless you're Michael Jackson) and not a meaningful difference for an individual. Homosexuality may or may not be unalterable, but its visible manifestations actually correlate to differences in behavior. Not the same sort of thing.

Should ugly people have legal recourse?

bbeck do you trust Bush on small government and illegal immigration/border security issues? President Bush has been right on on the WOT ( and that's the biggest issue of all ) but I can't think that the administration didn't know about this case and that's cause for concern. Just throwing it out there but maybe Bush doesn't really care as much about judicial activism as you or I might. Honest liberals admit Roe v Wade is bad law. If it was reversed tomorrow it would probably help the dems.

About 80% of Americans support some restrictions on abortion. By throwing the issue back to state legislatures where it belongs Democrats wouldn't have to pander to abortion activists within the party the way they do now and social conservatives might vote for strongly pro-life Democrats. That would hurt Republicans.

Jeesh, it's like I stumbled into some leftist moonbat blog. You all sound like democrats. ewww.

Roberts ran the appellate division at the law firm he worked for. His job was to help lawyers at his firm win cases. That's what lawyers in his position do.

Hallajuhah! All this other pseudo-legal interpretations of cases he may have had some remote association with is just pseudo-legal interpretations of cases he may have had some remote association with.

I was just starting law school when this case had come down. It was a novel legal theory Kennedy adopted.

It's not unconstitutional for private citizens to discriminate against each other. If I don't want homosexuals living in my apartment complex, my kicking them out doesn't raise any constitutional question.

Congress may make it illegal, but it isn't unconstitutional.

So how can it be unconst. for a state to permit what already is constitutionally permitted? Well, here, it was Kennedy's incomprehensible "animus" test that was adopted. An absolutely standardless test for the court to create so it could get involved in this case. Horrible decision.

Does it really evidence animus to say look, discrimination on the basis of race, creed, gender, we're going to treat that differently than discrimination based on sexual orientation...we just think it's more serious. How could it evidence animus when the Supreme Court itself adopts different standards for different types of discrimination (ie, race discrim gets the highest test, gender another and sex. orientation the lowest level)?

And if Roberts was a partner at Hogan he could have demurred. And probably should have.

So, flip side: does the law protect discrimination against *heterosexuals*? Should it?

No. Per my original point, discrimination on the basis of some criterion (here it's sexual practices) is discrimination, and the law should take no account of which particular group gets the benefit and which gets The Shaft (no pun intended).

In other words, a landlord (an irrational one) could say that he will not rent to heterosexuals. That's just as irrational as saying one will not rent to homosexuals, but could very well happen (and probably has happened).

Since sexual behavior is not a protected status, there should be no law governing this landlord's decision.

But do we agree that Amendment 2 would have given the State of Colorado and its executives the power to discriminate on the basis of sexual orientation in state functions?

You have to make a sharp distinction between private action and state action. What private people do is largely unrestricted, with the exceptions spelled out explicitly in the law, and those prohibited behaviors should be confined to harmful things, like crime, etc. What is not forbidden is permissible.

The State's prerogative, in contrast, is the opposite. It should only be empowered to do what is expressly granted. What is not granted is impermissible.

There is no legitimate (civil) governmental function that permits a state agency to discriminate on the basis of sexual practice when carrying out its mission.

Amendment 2 does not address whether homosexuals may be discriminated against. It merely says that they may be discriminated for (bad grammar, I know, but that's the sorry state of our equal protection law for you).

What was the compelling need for such an amendment, and why did the people of Colorado vote for such a thing?

As I mentioned, the compelling need was supplied by decades of hypocritical, insane SCOTUS jurisprudence that declares that non-discrimination on the basis of some criterion means that it's perfectly acceptable for a gov't to discriminate on the basis of that criterion, provided that some designated "protected" group gets the benefit of it.

It's the age old "two wrongs ..." principle. In the bad old days, we said that discrimination is fine. Then we wised up and said that the gov't cannot discriminate (in certain ways). Then we went overboard and said that if we just switch the groups that get the benefits of discrimination with the group that gets the onus of it, well, it's not only OK, it's not even discrimination at all!

It's crazy. Equal means equal.

You answered your own question:

But the end result was the same: recognition that all men are created equal.

Would that this idea were honored. Equal under law.

If I am discriminated against on the basis of being an (ex) D&D player, then do I have legal recourse? No. Nor should I.

I take it one step further and say that no one should have legal recourse when it comes to PRIVATE discrimination. That's my libertarian streak talking, Dave. All business transactions should be mutually voluntary.

(Also, there is always the federalism argument to fall back on -- nothing in the federal Const. permits this kind of ruling re: a State Const. )

I don't know about the rest of you, but I get a little creeped out by a GAY rights lawyer presenting ORAL arguments. (not that there's anything wrong with it)

FACT: His firm had a separate pro bono unit. They decided which cases to accept. Roberts had no input on that decision.

FACT: Roberts did not, as a matter of principle, turn down ANY request from the pb department for help.

FACT: His few hours of help in this case involved sitting in on mock trials in front of the USSC as a mock justice Scalia. The most conservative justice.

FACT: He had nothing to do with the litigation of this case.

Add it all up and you have nothing against Roberts.

TomB makes a good point. The alternative to Robert's assisting with the mock hearing was the firm sending a lawyer less than prepared. That's unacceptable.

And we wouldn't even be having this conversation if we still trusted George Bush to be conservative. I wonder if his low polling is a result of more disgusted conservatives. After all, when he signed that godawful highway bill even such a supporter as I almost heaved.

He's a decent man and a good wartime leader, but he is also a real disappointment to anybody who thought he might have a little Reagan in him.

bbeck do you trust Bush on small government and illegal immigration/border security issues?

Rak, when has Bush EVER promised a significant change in border security? When he was governor he let the people of TX down on that issue. OTOH, he's always been pro-life and he's always promised to give us another Scalia-type Supreme court judge. In other words, I don't think his positions on these separate issues are comparable and I'm still willing to give Bush the doubt's benefit here. I don't expect others to agree, and I can't especially justify it because it's an issue of trust, and sometimes you just have to rely on someone who may let you down.

Just throwing it out there but maybe Bush doesn't really care as much about judicial activism as you or I might.

That's cool, but I don't WANT a judicial "activist" anyway. I just want someone who freakin' understands what the Constitution says and rules accordingly.

By throwing the issue back to state legislatures where it belongs Democrats wouldn't have to pander to abortion activists within the party the way they do now and social conservatives might vote for strongly pro-life Democrats.

No, I disagree with that. I think that if abortion went back to the States tomorrow you'd see abortion activists blow a fuse the size of the North American Power Grid and begin mobilizing state to state. As for that 80 percent figure and "some" restrictions, you need to be more specific. I've seen polls that state most people are against abortion, but most people also don't want to see it be made illegal. I honestly don't know which side will benefit by overturning Roe v Wade, but I really don't CARE. I see it as a matter involving human lives, so the political beneficiary isn't exactly a priority.

Later,
bbeck

It merely says that they may be discriminated for

Should read: It [Amend. 2] merely says that they may NOT be discriminated for.

Big difference (was typing with a toddler pounding on the keyboard).

Ace, you disappoint me.

If you disagree with the legal justification for the Colorado ruling, that's one thing. I think it may have been a bad decision myself.

But supporting anti-gay-rights candidates in general because it's a litmus test for conservatism is just wrong. You could say the same thing about cable censorship or teaching creationism.

If you support a morally wrong position just because you tend to agree on other issues with people who hold that position, you are morally bankrupt, and a partisan hack.

Thanks, Phinn, for all your clarification. It helps.

In the hindsight of a (relatively) sober morning, I'd just like to apologize now for talking out of my ass a lot last night.

Upon further reflection, I have no idea why I didn't see this decision for being the travesty that it was.

I was wrong.

Oh well. Never post tired, drunk, or high. Unless you're Ace, of course.

Cheers,
Dave at Garfield Ridge

How can a judge of any conscience rule in any other way than the rule of law? Appointing an individual who is going to take their personal predjudices and twist their rulings to fit them is not qualified for the position, be they right or left. That is why the whole gay rights issue makes such a mockery of the GOP. Less control over individuals? Smaller government? Liberty? ...

Bullshit.

I's not that simple, Thomas. You're talking about special rights for homosexuals in this instance, to begin with. And it would be just as easy to say it's the conservative or libertarian position to leave private behavior out of the scope of government action. In this case, that would preclude the government from getting involved in preferences for homosexuals.

It's all very glib to say that anybody opposed to gay rights is not interested in small government or individual rights, but nothing's that simple. That argument you could extend to all sorts of behavior that you wouldn't be so quick to defend. Like dogfighting, let's say.

Better to understand that any time you say "Butt out of my private life" on one hand and on the other ask for preference because of your proclivities, there's going to be some give-and-take involved. I'm happy to ignore your sexual preference if you will just let me.

Don't turn your mind off when you're presented with bumper-sticker rationalizations. Anytime you grasp the cheap homily regarding something this complex you are taking the easy road, and you're not going to win anybody to your point that way.

This gay rights assistance by Roberts may be significant but the most important point conservatives need to determine is whether Roberts and Bush are buddies.

Ann is right. I said from the 'gitgo (the start in Texese) that if the Liberals weren't screaming like stuck pigs before the barbecue, something was very wrong and they had to know he was really not a conservative. I emailed my congress people and the White House. We should all do the same and make our objections known, unless of course, we want more of the same from the court.

TELL YOUR REPS AND W TO DUMP JOHN ROBERTS, TODAY!

Spongeworthy,
Thank you for your thoughtful comments, it is appreciated. I believe the crux of the argument however is not granting "special" rights to some, but instead extending common rights to all, in other words not descriminating against one group of people becuase of what they do with their genitalia. Could I not take your arguement and say that blacks in the 60's were wanting special rights becuase they wanted to vote, or mixed race couples wanted to marry? Please explain how anal sex, gay marriage, gay worker discrimination, foster parenting are "special" rights.

How can a judge of any conscience rule in any other way than the rule of law?

Excellent idea, Thomas.

Let's start with a few of my favorite Supreme Court rulings that violated the Rule of Law and implemented the justices' personal policy preferences:

1. The entire New Deal and Great Society. Once upon a time, the law was that the federal government was one of limited and enumerated powers. It could only do those functions that were expressly granted. One of those powers was the power to "regulate Commerce between the States."

Then FDR came along and decided it was a good idea for the federal gov't to take over all economic matters (not unlike the philosophies of government espoused at that time by Hitler and Mussolini). He found judges who decided that "regulating interstate commerce" was the same thing as "regulating anything that touches on or relates to interstate commerce."

Of course, everything under the sun "touches on or relates to interstate commerce." If I grow a patch of wheat for my own consumption, that wheat displaces other wheat I would otherwise buy in the market, and wheat is traded interstate. Thus, the Court now tells us, the gov't can tell me not to grow my own wheat. (Actual case, by the way.)

As a result, the federal gov't has the power to do anything it wants. If "the rule of law" were followed, as you suggest, Thomas, the federal gov't would not have the power to do about 90% of what it currently does. Medicare? Unconstitutional. Social Security? Unconstitutional.

Which would suit me just fine. Adhereing to the Rule of Law would mean going back to a limited federal gov't.

2. The Federal Reserve. Paper money? Unconstitutional. The power to coin money is not the same thing as a federal monopoly on money. FDR made gold ownership illegal once.

3. Civil Rights. Again, there is no authority in the Constitution for the federal government to control private economic matters, such as employment, or housing, or hotels, etc. They call these things "public accomodations," but adherence to the Rule of Law would mean that the federal gov't has no power over them. They are private businesses engaged in private business dealings. Or, at least, they once were.

4. Suppression of evidence. Adherence to the Rule of Law would mean that if evidence were obtained without a warrant, it would still be admissible against the Defendant. Why should society suffer the presence of a known criminal because of an illegal search? Evidence is evidence. Conviction of the crime should be an absolute bar to complaining about the way in which the evidence against you was obtained. If you are innocent and the victim of an illegal search, you should be compensated.

Under current law, it's exactly backwards. When a cop conducts an illegal search, the guilty get the benefit of evidence exclusion, whereas the innocent have no recourse at all. Adherence to the Rule of Law would mean that the guilty get convicted and the innocent have the benefit of a civil suit.

5. Abortion. Roe v. Wade was an activist decision that completely disregarded the Rule of Law that existed at that time. Its defenders do not even pretend otherwise.

That's just off the top of my head. I can think of more if you want.

Where do you stand on the Rule of Law again?

Well said, Spongeworthy.

Nuance, Thomas, nuance.

But who am I kidding? I know you guys never really meant that anyway.

That's exactly the crux of the argument in the Colorado statute, which I only point out as being one of the areas there's going to be some give-and-take, and how it's not so simple as just "Real small-government advocates would never let the government get involved in bedroom stuff."

Personally, I couldn't care less but I understand others do care and would prohibit butt-pounding. I also have trouble calling them true conservatives, which is what I call myself--what has historically been called a "liberal".

Anyway, you could advocate against dog-fighting legislation by the same logic--I assure you the dogs consent to the fight and it's hard to figure how it's government business. Nonetheless, we know it's wrong and animals get hurt, so we legislate against it. And we should.

So recognizing there is some morality in all lawmaking and that's not a bad thing, can we then extend that to private behavior bewtween consenting adults? The courts have arrived at "No" and I concur. But suppose a worker flirts with customers of the same sex and loses business for the company? Now we're getting into the area of give-and-take.

So when you fall back upon a "private behavior" argument but insist that "private behavior" is the basis for bringing or defending a court action, it's no longer private behavior. The question we have to ask is if I didn't know your private behavior, if it were truly private, would we be here?

You cannot ignore that increasingly we are publicly asked to ignore your private behavior. I am happy to do so, but please make sure it's private. When it goes beyond that, then we are back to the give-and-take and beyond simple platitudes that glibly seek to pin or remove labels rather than extend understanding.

Shoot, I can do that.

They are special rights because, when granted specifically to homosexuals, they are afforded legal protections that have heretofore been reserved only for special groups.

As was pointed out before, there's no law specifically granting protections to left-handers, those with brown eyes, etc. So why to homosexuals?

Merely to contribute to the discussion, please allow me expand upon Jamie's point, and ask who defines special groups anyway?

The Constitution is silent on matters of gender discrimination, yet there are scores of laws about that. Where do those laws derive their justification?

The dilemma as I see it is that, while we all are flippant about lumping homosexuals in with categories that do not deserve special protection under the Constitution (ugly people, lousy renters, etc.),, there are many cases of special groups offered protections under the Constitution that are not explicitly enumerated in the Constitution (gender, disability, etc.).

While we may favor some or all ofthese protections in practice, as an Originalist, these protections depend upon post-Founding interpretations of the Constitution and its amendments. If the "Living Constitution" is a bad thing for one, it should be a bad thing for all, no?

Unfortunately, the corruption of the Constitution-- most egregiously observed with the small-L liberal interpretation of the Commerce Clause (combined with a flexible interpretation of the 9th Amendment, IIRC), has led to this confusion over unenumerated rights, and the definition of what constitutes a "special group."

Cheers,
Dave at Garfield Ridge

"Please explain how anal sex, gay marriage, gay worker discrimination, foster parenting are "special" rights."

Gay marriage isn't a "special right" because marriage (of any kind) is not a right at all.

Phinn,
If you were sincere you would have addressed my issues instead of pulling your favorite arrows out of your quiver.
1. Laws are written all of the time. Unless a law is written that specifically states, "Homosexuals are not allowed to marry", then it is judicial activism to rule that they can not marry.
2. I really have no opinion on the constitutionality of the end of the gold standard, sorry.
3. To make sure I understand you correctly, are you stating that congress has no right to make laws? I think the preamble makes a pretty strong case for voting rights, etc. but if that is not your point, but instead private enterprize, then sure it is valid point. Not practical but valid, however I would agree with the courts that the government has the right to intervene in matters of commerce. Not the Boy Scouts perhaps, but the piggly wiggly sure.
4. i really don't think you have a leg to stand on with this one. 4th amendment and all.
5. I agree to a degree, r v. w is sketchy, but it is the function of the courts to rule on the legality of laws. Here there was no basis perhaps, but I certainly do not take that to mean that the courts should be powerless to review the constitutionality of laws.

"Laws are written all of the time. Unless a law is written that specifically states, "Homosexuals are not allowed to marry", then it is judicial activism to rule that they can not marry."

Absent a law that says that gay marriage is recognized by a certain state, what authority does a judge have to say that a state must recognize such a marriage? Other than their enforcing their own policy preferences, of course?

If you were sincere ...

I have never been more sincere in my life.

are you stating that congress has no right to make laws?

Are you saying you've never heard of the doctrine of limited and enumerated powers?

Why would they have bothered to list specific Congressional powers (Art. I, Sec. 8) if the gov't had the power to do anything it wanted? They'd have saved a lot of ink if the Constitution just said "Congress has the power to do whatever it feels is a good idea."

BTW, Congress has "powers." People have "rights." They are opposite sides of the same coin. When a gov't exercises a power, it intrudes on some area of behavior that would otherwise be a right. Just to keep things straight (no pun intended).

And, the preamble is not a grant of power.

the government has the right to intervene in matters of commerce

Once upon a time, we had a concept in this society (and the law) of "economic liberty." It took many forms, but the idea was that commercial matters were private. Call it a "right to economic privacy" if you like. Or "the right to choose" ones business associates, prices, etc. As long as one's behavior did not harm someone (i.e., through theft, fraud, broken promises, etc.), the gov't had no power to interfere.

That was before the advent of various forms of economic collectivism, which are essentially old forms of oppression, control, domination, and slavery, dressed up in new clothes.

4. i really don't think you have a leg to stand on with this one. 4th amendment and all.

Where in the 4th Amendment does it say that evidence obtained via unreasonable searches must be excluded? I don't see that in the text.

Incidentally, my brief synopsis of what the law should be, outlined above, on which you say I don't have a leg to stand, happens to have been THE LAW at the time the 4th Amendment was written. It was a violation of the RULE OF LAW, by which you profess to abide, to change the meaning of that Amendment.

5. I agree to a degree, r v. w is sketchy, but it is the function of the courts to rule on the legality of laws. Here there was no basis perhaps, but I certainly do not take that to mean that the courts should be powerless to review the constitutionality of laws.

It wasn't "sketchy." It was an abomination.

Sure, fine. Courts have the power to review legislation. That's not a function actually granted to them in the Constitution, but they do it anyway.

But on what basis do they rule? On what basis do they decide whether a law is Constitutional or not?

Here's a novel idea: they should read the actual Constitution and do what it says. And don't keep changing the meaning of various words and phrases to suit your current political agenda.

One can debate the merits of his involvement in a controvertial case all day, but in the end, it is the quiet reaction of the Liberals that bothers me most.

Do you remember the Bork hearings? They pulled out all the stops. Do you remember the Clarence Thomas hearings? Liberals a created a media circus replete with Anita Hill's false testimony (I believe he did make a pass at her but not in the ways she suggested.)

They went to extraordinary lengths to get Bork because they knew he was a real conservative. They went to extraordinary lengths to get Thomas because they knew he was a real conservative and a Black too! (How dare a black Supreme Court nominee be a conservative Republican!)

Liberal opposition to real conservatives is even more untrue, unfair and outrageous than the usual Liberal shrieking when they know the guy is for real, which convinces me that John Roberts may not be. I also think they're quiet because they don't want to appear as obstructionist and uneasonable as they really are and feel they must pick their battles carefully. And apparently they have decided that this guy is not conservative enough to waste their political and MSM capitol on. This all bodes badly.

DUMP ROBERTS!

"The dilemma as I see it is that, while we all are flippant about lumping homosexuals in with categories that do not deserve special protection under the Constitution (ugly people, lousy renters, etc.),, there are many cases of special groups offered protections under the Constitution that are not explicitly enumerated in the Constitution (gender, disability, etc.)."

Of course. That's exactly what was going on in the early 90s, when Amendment 2 was passed: various interest groups were demanding and getting legal protections (and, let's face it, preferences) that put them above the average white male in the eyes of the law. I argue that's what is unconstitutional, not Amendment 2, but the Supreme Court disagreed, so there it is.

Coloradans finally dug in their heels and denied special protections to a group that was starting to gain benefits from laws passed by cities and from executive orders signed by Governor Romer, orders in which the public has no say at all. Their attempt was denied by the Supreme Court. The Court did not say sexual orientation must be a basis for special status, but it did say sexual orientation must not be rejected as a basis for special status. If that makes any sense. Which it doesn't.

Today there doesn't seem to be as much of a stampede demanding special rights for special groups. The big civil rights issue today is gay marriage, adoption, civil unions, etc. I suspect people looking at Romer v. Evans today often see it from that perspective rather than from the perspective of deciding whether some groups were entitled to special status (and if so, which ones), an argument that for the most part the special rights advocates have long since won. The Supreme Court didn't mandate that victory, but it struck down the defeats.

Homosexuals are allowed to marry. Spouses of the opposite sex, of course.

Dave, protections for the disabled are statutory, not Constitutional. Presumably Congress could invent/enforce such under 14.5 (though the ADA is, IIRC, backed by the expansive Commerce Clause), but they have a bit more latitude than what 14.1 actually mandates.

Phinn, surely you're not calling for a return to Lochner- and Dred Scott-style substantive due process analysis? No judicial tyrrany of any sort, thanks.

Phinn, surely you're not calling for a return to Lochner- and Dred Scott-style substantive due process analysis?

No, I'm an originalist.

But how is substantive due process really any different than the current euphemism for judicial usurpation of power -- "privacy"?

The term "right to privacy" irks me just about as much as "substantive due process." Invariably, people will say "that is private" when what they really mean "the government shouldn't do X."

How is that different from the meaning of the word "right"? All rights are areas where the government cannot intrude. All of our rights are, by definition, forms of privacy.

The "right to privacy" is therefore a redundancy. It is a meaningless phrase.

"Substantive due process" is almost as bad. Things are either substantive or they are procedural. Those terms were invented for the express purpose of describing two separate things.

At least one can make the argument that economic liberty has (had?) a genuine tradition in English common law.

One could also say that the prerogative to choose those with whom one will do business, or the right to set your buying/selling price on mutually agreeable terms, flows from the First Amendment right to Free Association. The association between landlord and tenant is supposed to be mutually voluntary. As it stands, all sorts of mutually voluntary relationships, in the context of employment, housing, education, etc. are all micromanaged by the gov't.

But how is substantive due process really any different than the current euphemism for judicial usurpation of power -- "privacy"?

Ace:

Maybe Charles Schumer should be allowed to grill Roberts on his theory of jurisprudence... because I really would like to know for sure we're putting a conservative, or at least a moderate/conservative, on the Court.

In the words of Will Smith, "Awwww, hell naw!" (Sorry, I watched "I, Robot" last night.)

Allowing Congress to question a judicial nominee on his judicial philosophy validates the current liberal canard that they have every right to oppose any judicial nominee that doesn't subscribe exactly to their philosophy. It's the President's nomination. Congress's role is to determine whether the nominee is generally fit. If so, they should not oppose confirmation.

So any questions on judicial philosophy would be (at least) irrelevant.

Thomas:

Laws are written all of the time. Unless a law is written that specifically states, "Homosexuals are not allowed to marry", then it is judicial activism to rule that they can not marry.

Not true. Most state laws on marriage define a marriage as something that occurs between a man and a woman.* So homosexuality is irrelevant to whether or not someone can get married, but the laws clearly don't allow for gay marriage.

* The Federal Marriage Act also defines marriage as between one man and one woman. But since marriage is not a federal institution, and since all marriages are pretty much exclusively state affairs, the FMA is one of the dumbest and most pointless laws of all time. And I have a feeling that just mentioning the FMA makes Phinn's teeth grind.

By the way, Phinn, you've done a great job of explaining your compehensive judicial philosophy in this thread. I'd vote to confirm you any day. Any chance your real name is "Roberts"?

Hi,

I really do not know enough to worry too much about the federal reserve, but I also feel that Phinn has pretty much represented my views much better than I could (kind of cool to do it with a toddler on your lap :) ).

Mike

I knew Roberts was Spanish for Souter.