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April 19, 2014

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letter to the editor:

Hypocrisy on the high court

In voting against the lawsuit to overturn the Defense of Marriage Act, certain U.S. Supreme Court justices demonstrated their ongoing hypocrisy.

Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas have repeatedly emphasized strict constructionism relating to the U.S. Constitution, yet they seem not to have read that document.

The preamble to the Constitution states that its purpose is to “establish justice, insure domestic tranquility … and secure the blessings of liberty to ourselves and our posterity.”

The 14th Amendment states that “No state may 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 any person within its jurisdiction the equal protection of the laws.”

It seems that those four justices believe in strict constructionism only when it is in line with their preconceived biases.

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  1. The Court is right when it says the times are changing. "About two in three eligible blacks (66.2 percent) voted in the 2012 presidential election, higher than the 64.1 percent of non-Hispanic whites who did so, according to a U.S. Census Bureau report released today. This marks the first time that blacks have voted at a higher rate than whites since the Census Bureau started publishing statistics on voting by the eligible citizen population in 1996."

    Carmine D

  2. Thank God that the old guys like me got to see Time for Beaver before America was turned into the progressive loony bin that it has become.

  3. Sorry readers and Moderator my post here belongs on another thread. :-(
    You can figure out which one.

    Carmine D

  4. I'm pleased to see that the Supreme Court did not make the same error with DOMA that it did with abortion and Roe v Wade in 1973. While the ruling leaves some questions unanswered until the future, it doesn't take away from the Constitutional correctness of this decision: Equal justice under the law for all Americans regardless of their sexual preferences.

    Carmine D

  5. The public is much more accepting of non traditional relationships than in the past. The decision by SCOTUS reflects the change in the public's view. The world will not come to an end with this decision.

    Michael

  6. "Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas have repeatedly emphasized strict constructionism relating to the U.S. Constitution, yet they seem not to have read that document."

    Henkelman -- you didn't really say what you have against these justices in Windsor v. United States. Either that or you're willfully ignorant of the concept of equality under that Constitution.

    "It is true that the watch-words, "separation of church and state" does not appear anywhere in the Constitution."

    BChap -- it comes from the First Amendment's Establishment Clause. The U.S. Supreme Court, the last word on all interpretations of the federal Constitution, has a long history with that principle.

    "I'm pleased to see that the Supreme Court did not make the same error with DOMA that it did with abortion and Roe v Wade in 1973."

    CarmineD -- what error? Roe was about government interference in private matters more than it was about abortion per se.

    "The decision by SCOTUS reflects the change in the public's view."

    wtplv -- I disagree. This decision striking down DOMA plainly stated "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." Protection under the Bill of Rights has never, ever been dependent on public opinion.

    "Congratulations to the families now recognized as legal. It only took 237 years this time to fix."

    Jeff -- excellent point. I'm descended from Mormon polygamists which this same court condemned in the 1880s. Considering how it took a hundred years, from the Reconstructionist Amendments to the Constitution in the 1860s to the 1960s, for government at every level to begin respecting those civil liberties -- and that was after the civil rights movement and a new president's attitude -- this isn't anything new.

    "Indifference to personal liberty is but the precursor of the State's hostility to it." -- United States v. Penn, 647 F.2d 876 (9th Circuit, 1980), Judge Kennedy dissenting

  7. One the hypocrisy scorecard, Justice Scalia scores for complaining about the majority committing the crime of substantive due process. But it was the same doctrine of substantive due process that Scalia and others called into play in the McDonald case to strike down Chicago's handgun ban. It is apparently a good argument when you need it and a bad one when it works against you.

  8. Wallace Henkelman is our nations constitutional scholar. In politics as well as law every decision makes half the country happy and the other half not so much.
    We all have biases. It goes with being human. Maybe we should have robots and computers making all the decisions.Take the human element out of the process.

  9. Comparing gay marriage to polygamy and beastiality is ridiculous. That is nothing less than fear and paranoia creeping into one's imagination. Why do people insert themselves into an issue that has nothing to do with their own lifestyles? A straight will not become gay because of gay marriage. Gay ninjas won't invade our homes and disrupt families. In other words, what the hell are you tight arses afraid of?

    If marriage was to be defended (DOMA) why not write a law banning any and all forms of divorce? I'm sure Newt and Rudy would have fought against such a bill.

  10. The decision(s) were good, and the saga will continue in the future. Human partnerships/commitments should be honored and respected, whether or not you personally subscribe to their personal lifestyle choices. So, good call, Supreme Court of the United States of America!

    Blessings and Peace,
    Star

  11. "Do you think this ruling leads to legal Polygamy? Are you in favor of Polygamy as a law, or is this a personal quest?"

    Jeff -- yesterday's two decisions total 112 pages, so there's no easy answer. It's impossible to predict what our utterly corrupt judges will sign. But I think the roots of the decisions amount to government regulation of marriage is on thin ice. And this is not a personal quest at all -- I've been married and divorced once, and will never formally marry again. State licensing means the state becomes a third party to the marriage contract, and I can tell you firsthand court is the worst place a family should ever submit to.

    "Comparing gay marriage to polygamy and beastiality is ridiculous."

    VernosB -- only the former. The essence of marriage's legal definition is it's a civil contract. Consenting adults are at liberty to do whatever they want, including living communally. Animals can't consent to anything, can they? As for your "law banning any and all forms of divorce" you still miss the point. Everyone is free to associate with whom they wish and equally to disassociate, within the limits of contractual, etc., relations.

    "I heartily accept the motto, 'That government is best which governs least'; and I should like to see it acted up to more rapidly and systematically." -- Henry David Thoreau 1849 "On the Duty of Civil Disobedience"

  12. "As of now there are no valid State laws left defining Marriage. A new law for Polgamy is NOT required."

    Future -- you get that from where? Yesterday's Hollingsworth v. Perry is 35 pages long and it's available to everyone online @ http://www.supremecourt.gov/opinions/12p... Have a look and get back to us here, if you can find the part supporting your post.

    "The court appears to have essentially made marriage the equivalent of a contract, at least as far as the state is concerned."

    NLV-Indep -- no it didn't. The word "contract" doesn't come up in both decisions' total 112 pages. Marriage has always been defined as a civil contract. Black's first edition (1891): "A contract, according to the form prescribed by law. by which a man and woman, capable of entering into such contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and wife."

    "Instead of getting married again, I'm going to find a woman I don't like and just give her a house." -- Rod Stewart about divorce, Sunday Star Times, 10/28/2007

  13. "As for your "law banning any and all forms of divorce" you still miss the point."

    My point was that in defending marriage ,as these consevatives claim, why not make it impossible to divorce? The truth is these people oppose gay marriage due to religious reasoning. What next? Stone women to death for not being virgin on her wedding night or for having an affair? How about killing sons for the sins of their fathers? Why cherry pick parts of the bible that suit your needs and forget about others?

  14. It's still a shame that traditional married couples demand that the rest of the world PAY FOR THEIR lifestyle--via prejudicial tax treatment, inheritance/estate laws, arrogant public attitude that a "traditional" family is best for kids.

  15. It's appalling that anyone would disdain someone who believes only in traditional marriage. For the vast majority it's the only thing that makes sense.

  16. "My point was that in defending marriage ,as these consevatives claim, why not make it impossible to divorce?"

    VernosB -- perhaps I misunderstood. Mine point was the state needs to get out of the marriage business permanently and leave us alone -- you know, like the Bill of Rights repeatedly promises, and that inconvenient "life, liberty and the pursuit of happiness" thing.

    "It's appalling that anyone would disdain someone who believes only in traditional marriage."

    Houstonjac -- I can speak only for myself, but my disdain isn't for their beliefs, it's for those who force them on others, especially by law.

    "The struggle for liberty has been a struggle against Government. The essential scheme of our Constitution and Bill of Rights was to take Government off the backs of people." -- Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 162 (1973), Justice Douglas concurring

  17. Killer B

    As to your comment regarding the use of law
    to force one's belief's on others,that's what laws frequently do. Look at the national outrage over the Affordable Care Act which is about to drain our coffers dry,and decimate our healthcare in this country.

    For so long,as a People,
    Americans stood for common sense
    values ,and promoted these in its institutions and laws. The SCOTUS decision on DOMA is a reversal of this tradition. It's a truly
    disappointing verdict,and reflects our society's increasing obsession with elements that marginalize and weaken it. Little by little the national character is diminished by rulings such as DOMA. Ironically,these are the same values that appear to give you pride. You can rest assured that you are not alone. Therein lies the sad state of America today.

  18. "CarmineD -- what error? Roe was about government interference in private matters more than it was about abortion per se." KillerB

    The error the Court made in Roe v. Wade in 1973 was making abortion a Federal right. Like the ruling on gay marriage and against DOMA, the decision lies with "We the people," aka the States, not the Federal government.

    Carmine D

  19. "As to your comment regarding the use of law to force one's belief's on others, that's what laws frequently do. . . . .For so long, as a People, Americans stood for common sense values ,and promoted these in its institutions and laws."

    Houstonjac -- I know that all too well. Far too often lawmakers pander to whoever they owe their office to and laws are made to impose social/moral agendas, or their donors' private interests. The Constitutions are the instruments which create government and any law conflicting with them is not a valid law.

    I disagree completely that the U.S. Supremes' DOMA decision reversed anything but blatant discrimination. Your point about what "Americans stood for" ignores the principle sewn into our republic's basic fabric -- "all men are created equal." Your post seems to go along with so many anti-gay marriage posters here -- only white christian Americans get to say what equality is. That is blatantly wrong.

    "The error the Court made in Roe v. Wade in 1973 was making abortion a Federal right. Like the ruling on gay marriage and against DOMA, the decision lies with "We the people," aka the States, not the Federal government."

    CarmineD -- the Roe v. Wade court did NOT make "abortion a Federal right." That decision's bottom line was a woman's abortion decision made in private with her doctor is a liberty protected by the federal Constitution. You're wrong about U.S. v. Windsor (the DOMA decision) -- it was restricted to the many federal laws and rules favoring heterosexual couples. Again, the court merely enforced all must be treated equally under federal law. The other decision, Hollingsworth v. Perry, addressed California's Prop 8, and enforced the 14th Amendment's "No State shall...deny to any person within its jurisdiction the equal protection of the laws." You seem to propose "We the people," aka the States" are free to deny anyone that protection. I sincerely hope you're not endorsing that kind of tyranny.

    "...a legislative act contrary to the Constitution is not law." -- Marbury v. Madison, 1 Cranch 137, 177 (1803)

  20. WRT our exchange I concur with your statements about the facts of the rulings. I disagree with your conclusions about the facts. The DOMA ruling, unlike Roe v. Wade, was correct to leave the decision about gay marriage with the States. The 1973 Court ruling on the federal right for abortion was wrong. Abortion rights should be left, like gay marriage, to "We the people..." in other words the states.

    Carmine D

  21. "Burch said that today's court rulings "should embolden proponents of traditional marriage to fight on with even more vigor while we can. Same-sex marriage advocates did not get what they wanted, namely a 'Roe v. Wade' for marriage. The future of marriage remains a dispute open to 'We the People.' The debate on marriage lives on."

    Brian Burch: President of CatholicVote.org

    Carmine D

  22. "The current judicial interpretation of the U.S. Constitution regarding abortion in the United States, following the Supreme Court of the United States's 1973 landmark decision in Roe v. Wade, and subsequent companion decisions, is that abortion is legal but may be restricted by the states to varying degrees. States have passed laws to restrict late term abortions, require parental notification for minors, and mandate the disclosure of abortion risk information to patients prior to the procedure."

    The Court's declaration that DOMA is unconstitutional [for denying equal rights for gay marriage couples] does not match in Federal scope of overreach the ruling on legalized abortion [as a Federal right]. I trust you can see the distinction.

    Carmine D

  23. "The DOMA ruling, unlike Roe v. Wade, was correct to leave the decision about gay marriage with the States."

    "The future of marriage remains a dispute open to 'We the People.' The debate on marriage lives on."

    CarmineD -- you're still confusing the "DOMA ruling" (U.S. v. Windsor) with the Prop 8 ruling (Hollingsworth v. Perry). You should get that straight before you expound on what's "correct."

    About your debate "lives on," the ground rules for the jurisprudential future was decided two days ago. The former is protected by the First Amendment. You seem to have a problem with the latter. Exactly what part of "equal protection of the laws" do you need explained??

    "Imagine there's no heaven
    It's easy if you try
    No hell below us
    Above us only sky
    Imagine all the people
    Living for today..." -- John Lennon (1940-1980) "Imagine"

  24. I'm not. I understand the distinction. I didn't even mention Prop 8. You did.

    Carmine D

  25. "In disallowing many state and federal restrictions on abortion in the United States,[3][4] Roe v. Wade prompted a national debate that continues today, about issues including whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the United States into pro-choice and pro-life camps, while activating grassroots movements on both sides."

    Carmine D

  26. "Exactly what part of "equal protection of the laws" do you need explained??"

    No part. I understand it perfectly. Roe v. Wade uproots this doctrine of the 14th Amendment for fetuses and embryos. Not so with the Court's ruling on DOMA.

    Carmine D

  27. "I come to my main point. If it is true that, at best, the Fourteenth Amendment does not clearly grant to the feds a host of new powers--and even if there are arguments for it (as Thomas himself leans toward), it is clear that there is no such clear grant--then it does not grant them. Just as we interpret serious agreements strictly, and against the drafter; just as we require formalities and writings for serious matters (such as living wills, sales of real estate, and so on), so a wide grant of power to the central state, in the context of a decentralist Constitution where the states historically jealously guarded their sovereignty, must be clear and expressly written to take effect. In other words, the central state should not be allowed--as a matter of constitutional or libertarian norms--to legitimately shift the balance of power away from the states, and toward itself, by vague and ambiguous wording that it itself drafted."

    George C. Thomas

    Carmine D

  28. CarmineD -- I expect we'll generally have to agree to disagree. Who is "George C. Thomas" and why is anything he says relevant here?

    "In Roe v. Wade, the Court held that the "right of privacy, * * * founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action * * * is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." ... Although the Constitution does not specifically identify this right, the history of this Court's constitutional adjudication leaves no doubt that "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution." ... Central among these protected liberties is an individual's "freedom of personal choice in matters of marriage and family life." ... The decision in Roe was based firmly on this long-recognized and essential element of personal liberty." -- Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 427 (1983)

  29. The vote on DOMA had no connection to polygamy because it infringes on their children's right to Life, Liberty and the Pursuit of Happiness.

    Polygamists are extremely good at making babies but not being able to feed, clothe or educate their children.

    The female children are worth a lot to the male because they bring a virtual dowry to the father who appropriates them to older men with a non-monetary gift.

    There is never enough need or money to pay for a females education but that isn't needed since they are assigned more important tasks for the benefit of society and their husbands that don't require academic training.

    Males take up a lot of space when becoming teenagers and so they are pushed out of the house (for issues of discipline) and then the welfare system pays for their upkeep. When they reach 18 years, they go into the Military and learn how to duck.

    Polygamy requires welfare to raise the throwaway kids so it can never be a right.

  30. "The vote on DOMA had no connection to polygamy because it infringes on their children's right to Life, Liberty and the Pursuit of Happiness. . . . .Polygamy requires welfare to raise the throwaway kids so it can never be a right."

    SunJon -- you are so ignorant. U.S. v. Windsor was strictly about discrimination against homosexual couples under the Fifth Amendment. Polygamy "requires" no welfare whatsover.

    "'If the law supposes that,' said Mr. Bumble,.... 'the law is a ass -- a idiot.'" -- Charles Dickens, "Oliver Twist"

  31. KillerB

    You said:
    "Your post seems to go along with so many anti-gay marriage posters here -- only white christian Americans get to say what equality is. That is blatantly wrong."

    You turned the debate into a racial/Christian
    issue. That was not my point,although you seem attached to this line of thought.

    Try to detatch from that for just a moment.
    My point is that traditional marriage is ultimately the best natural plan for society.
    To your point about being anti gay marriage. In fact I am simply not for it. I think that it moves society in just the opposite direction from where it should gravitate. Traditional marriage will always be just that,and always(at least in our life times,unless aliens from another planet come down to populate the earth) have the overwhelmingly broadest participation rate in marriage. That in fact is all that really matters.

  32. "You turned the debate into a racial/Christian issue. That was not my point,although you seem attached to this line of thought. . . . .My point is that traditional marriage is ultimately the best natural plan for society. . .That in fact is all that really matters."

    Houstonjac -- your quote included but you failed to mention the operative word "seems." But you're still missing the point of those two cases -- government simply does not have the authority to give rights or benefits to any of us it bars others from enjoying. That's what "equality" means. That some don't agree with it or worse feel threatened by it, too bad. We left Jim Crow laws behind us about a century and a half ago.

    "The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. . .By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment." -- U.S. v. Windsor, 570 U. S. _(slip opinion at 25) (2013)

  33. KillerB

    You still argue the "equal rights" line of reasoning.That is not the point that I make. Gays are only a small group in society(they frequently make a lot of noise,but are not that large)and their marriages will impact us very little. Traditional marriage will always overwhelm gay marriage,and still define the meaning of marriage in our society. That's my point.

  34. "George C. Thomas III

    Rutgers University Board of Governors Professor of Law and Judge Alexander P. Waugh, Sr. Distinguished Scholar

    Professor Thomas has a B.S. from the University of Tennessee, an M.F.A. (creative writing) and J.D. from the University of Iowa, and an LL.M. and J.S.D. from Washington University in St. Louis. Prior to joining the Rutgers faculty in 1986, he practiced law in Tennessee and was a member of the University of Tennessee faculty. Professor Thomas has published to date four scholarly books and more than 60 articles on various aspects of criminal law and criminal procedure. Double Jeopardy: The History, the Law was published by NYU Press and The Miranda Debate, co-authored with Richard A. Leo, was published by Northeastern University Press. Some placements for his articles include the law reviews of Michigan, Virginia, Texas, UCLA, NYU, California, Illinois, Ohio State, USC, and Northwestern. His casebook, Criminal Procedure: Cases, Principles and Policies, published by West Group and co-authored by Joshua Dressler, is now in its Fifth Edition and is widely used.

    His third scholarly book, The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants, University of Michigan Press, presents a history of Western cultures sorting the guilty from the innocent, as well as an examination of the criminal procedure of France and a series of recommendations for decreasing the likelihood of wrongful convictions in the American justice systems. His latest book, Confessions of Guilt, on the history and future of the law of confessions, co-authored with Richard A. Leo, was published by Oxford University Press in 2012. It is a history of the law of interrogation that also attempts to forecast where the law goes from here. Noted historian Lawrence Friedman said of the book: "This is a comprehensive and deeply researched book, which examines with insight and passion a particularly dark and murky corner of the world of legal doctrine."

    Carmine D

    PS: Rutgers University is my alma mater.

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  37. Comment removed by moderator. If I have to pull this car over ...

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