No, The Gay Marriage Case has Nothing to do with Guns

Fox News commentator Allen West (a non-lawyer) wrote an article recently saying that since the Supreme Court gay marriage case says this must be applied over the entire country, then clearly it has set a precedent to allow for “conceal and carry” in all states.

This shows a real misunderstanding of the law.

First of all, the gay marriage case had to do with the 14th amendment, which prohibits discrimination against people. Despite the fact that the Supreme Court has called corporations “people” it’s not about to call guns, cars, or toasters “people” any time soon.rainbow.ak_

The analysis used in the gay marriage case is old. Like 50 years old. This same analysis was previously used to give rights to blacks and then later to women. It has just been expanded to include gays and lesbians. It is not a new analysis.

If the gun lobby could use this same analysis to do what the gun lovers want, they would have done it 50 years ago.

The short version: If the government wants to take away the rights of someone, the law must pass the “strict scrutiny” test:

It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest. That is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, though the Court generally evaluates it separately.  [NOTE:  I copied this from wikipedia, but it’s correct.]

It is very difficult for laws that discriminate to pass this test. The Supreme Court did not change this test at all, but merely added gays and lesbians to the test (at least as far as marriage goes — other discriminatory laws against gays and lesbians will be challenged under this test soon and should also fail, using this case as precedence).

This test is not used to determine whether everyone has the exact same rights as they travel from state to state — but West (and the people who foolishly believe him) are convincing themselves that they are being discriminated against because they don’t have the same rights as someone in another state.

Under this logic, there would be no more federalism at all. Using that logic, any law passed in any state would have to be enforced in every state.

Does that mean that marijuana would be legal everywhere? Hooray! Oh wait, we’d first have to decide which state laws apply — What if it’s decided that the state laws that prohibit guns from being carried everywhere are the laws that apply over the entire country? Why are these people assuming it’s the law they want that will prevail?

“But but,” the gun lovers scream, “the court said that you have to give gays these rights because it’s based on ‘certain personal choices central to individual dignity and autonomy’ and dadgummit, it’s our personal choice to buy guns without background checks and carry them into churches and shopping malls whenever we want to!”  Besides being ridiculous and not at all what the gay marriage case was about, this is also not what the 14th amendment is about.

Seriously, I’m not even going to dignify this by explaining why. If you can’t see why there is a difference between the fundamental right of all adults to get married and the right to own an inanimate object, then you’ve become so brainwashed by your guns and the gun lobby that there is no hope for you.

Ted Cruz and the Constitution

Supporters say that they like Ted Cruz because he “supports the Constitution.”

What bullshit.ted-cruz

Ted believes states should decide civil rights issues such as gay marriage (which, of course, he opposes). Rights should not be voted on. That’s the same argument the segregationists gave and they were wrong too. For Cruz to claim the Constitution allows states to deny basic rights shows that he doesn’t understand the Constitution.

He also does not support the 1st Amendment, especially the Establishment Clause. He’s constantly bitching about how religion is under attack — you know, the whole fake War on Christmas crap — and there’s a reason he gave his announcement the other day at a college that teaches the world is only 6000 years old.  Cruz hates the Constitution, because it prevents him from forcing kids to be taught his church’s creationist story in public schools.

Cruz passed laws when in Texas having to do with immigration which Texas has no power to regulate, and has said that states have the right to do so despite the Supremacy Clause.  That’s hardly the reaction you’d get from someone who “respects the Constitution”. He proposed something called “interstate compacts” wherein states could get together and nullify federal laws they don’t like. You know, ’cause that worked so well for the confederates before.

As for rights of criminals, he was one of many who fought to take away the rights of American citizens who were suspected of terrorism, despite the Constitution’s guarantees. Sadly, he wasn’t alone there, but that hardly makes him a lover of the Constitution.

And you know that part of the Constitution that says the president signs treaties? Cruz supported the GOP Iran letter, so it’s clear that he has no respect for the Constitution’s separation of powers in these matters. (Of course, if it was a Democrat doing that to a Republican President, he’d be screaming “treason”).

Idiot Who Wants to Swear Oath to Constitution Has Never Read It

Dr. Ben Carson, who has never studied Constitutional Law in his life but has studied medicine and still thinks life begins at conception, recently declared that Congress has the Constitutional authority to remove judges just because they don’t like them.

Most Americans aren’t aware of this Congressional power “because they don’t know the Constitution,” he said.  Exactly where in the Constitution is this power? He didn’t explain. Probably because it’s not there, I dunno.    Obamacare-27

Anyway, Bennie here thinks that judges who rule in favor of gay marriage should be removed because they made an unconstitutional decision. Let’s see, who decides whether a law is unconstitutional according to our Constitution? Is it the judicial branch? No, of course not. It’s Dr. Ben Carson.

Carson, who also believes Obamacare is Unconstitutional, has previously spoken about how wonderful it would be if Congress loved the Constitution like they used to. He then cited Strom Thurmond and Robert Byrd as shining examples of people who loved the Constitution — you know, those two senators who were members of the KKK and believed that the Constitution only applied to white people. Those guys. (Yes, you can now do some psychoanalysis on Dr. Ben if you wish.)

And this guy is on the short list of Republican Presidential possibilities.

I am not making this up.

“Freedom of speech” does not equal “freedom to be free of the consequences”

Mozilla’s CEO Brendan Eich resigned after complaints that he was a supporter of the anti-gay marriage campaign, and now certain conservatives are in an uproar.

You see, when they boycott businesses and TV shows they believe have anti-Christian messages, they are exercising their free speech in a totally American and patriotic way.  But when others do it against issues they support, they are suppressing anti-Christian ideals and trying to silence people in the same way the Nazis did.   boycott

I mean, it’s only logical, right?

Look, this guy has every right to his opinion.  What he doesn’t have is the right to the job.

As the NY Times pointed out:

Mozilla competes in two markets. First, obviously, it wants people to use its products instead of its rivals’ stuff. But its second market is arguably more challenging — the tight labor pool of engineers, designers, and other tech workers who make software.  When you consider the importance of that market, Mr. Eich’s position on gay marriage wasn’t some outré personal stance unrelated to his job; it was a potentially hazardous bit of negative branding in the labor pool, one that was making life difficult for current employees and plausibly reducing Mozilla’s draw to prospective workers.

This company has a policy that supports gay rights, and their guy in charge is working against that policy. It hurts the business’ image with the public, and therefore he has made himself unqualified for the position.

Suppose he had supported the KKK or some other group whose main purpose it was to deny rights to others?  Do you think the company should just look the other way, knowing it would hurt their business and their reputation?

Part of the problem too is that equality for gays and lesbian is indeed a new issue, and hard to understand for some people.  Most who are against it are not necessarily evil or mean, just ignorant or unwilling to take that step yet.  They don’t see themselves as bigots.

However, this was also what it was like at the start of the civil rights movement in the 60s.  Many whites just could not conceive of equality with blacks, and some churches even preached that equality was against God’s will — therefore to allow equality meant you were doing the Devil’s work.  Doesn’t that sound like what some who are against gay marriage are saying these days?

Bigotry is objective.  Are you in favor of denying rights to people over things they do not control?  You’re a bigot.  Sorry if that makes you angry, but that’s the definition, no matter how you may justify it to yourself.

A company has the right to say “We don’t hire bigots.”

I cannot deny that there is a “slippery slope” argument to be made here, where a company can fire you simply because you have a political position they don’t like.  I hold that there is a difference when (a) you are the CEO or someone who speaks for the company and represents its image;  and (b) when your position specifically says “I will be treating some of our employees as second-class citizens and advocating discriminating against them.”    In a sense, his position on that issue directly affects his job, in the same way a nun could be fired for saying “I don’t believe in God.”

This is not the same as an employee saying “I dislike Obama.”  Or even a low level employee who has no control over the company saying “I am against gay marriage.”  I agree that firing someone for those things would be absolutely wrong.

Strict Scrutiny (part two): Constitutional Compromises

The Constitution is a series of compromises, and not a document of Wisdom Handed Down from Our Elders.

In order to get the Constitution ratified, certain concessions had to be made.  In part one, I mentioned how many parts were written purposely vague because that was the only way to get agreement on them. Let’s now look at some more clear-cut examples.constitution_quill_pen

The most obvious may be “The Virginia Compromise.” (Look, it even has “compromise” in its name.) The smaller states wanted each state to have an equal vote so that they wouldn’t be ignored. The larger states wanted it to be based on population which would obviously benefit them. In the end, we got both — a Senate where each state gets the same representation no matter how small, and a House where the states with more people get more representation.

Then there are the first ten amendments themselves (the “Bill of Rights”). Many states refused to ratify the Constitution without these protections, and it’s a good thing they demanded them.

But the clearest example of compromise in the Constitution has to do with slavery. Most of the northern states had already abolished it and wanted the entire country to do the same, but the southern states refused. The south was worried that as soon as this Constitution was passed, the northern states would outlaw slavery completely. Without some provisions to prevent this, the south refused to agree to the Constitution.

Rather than split the country within the first ten years of its existence, a series of compromises were worked out. (Sadly, postponing this only led to the bloodiest war in American history a hundred years later.)

First, there’s Article I section 9 which specifically prohibited Congress from passing any law outlawing the importing of slaves before 1808 (twenty years from the Constitution’s signing). Why 1808? Was there something magical about that year? No, that was just the number that compromise produced. (And as soon as 1808 came about, Congress did exactly what the south was worried about and banished the importation of any more slaves.)

Second, there’s the ridiculous 3/5ths clause. The south demanded that when determining how many representatives they would get in the House, that slaves should be counted as “people” even when they were property in every other respect under the law. The north rightly pointed out how stupid this was, but the south insisted and there was another compromise made. We ended up with a provision that held that 3/5ths of every slave would count. No mention as to which 3/5th of the slave counted, though, but apparently it didn’t include the head since the views of the slaves mattered not.

Third, there’s the 2nd Amendment, which allowed the southern states to keep their state “militias” which were basically armed gangs whose only job it was to intimidate slaves and capture ones who escaped. (More on this later.)

So whenever some Constitutional fundamentalist tries to argue with you that the Constitution is concise and “the will of the Founders,” just point out how many compromises there are in it, thus clearly indicating that there is no “will of the Founders.” It’s all agreements and compromises needed to get the thing passed.

Next: A clear, exact 1st Amendment which doesn’t provide for any exceptions, and then all the exceptions there are to it.

Strict Scrutiny (part one): Constitution Fundamentalists

There are religious fundamentalists out there who are convinced that they know exactly what the Bible says.  They take it absolutely literally and have no doubt in their mind what it all means, and anyone who disagrees with their interpretation is simply wrong.  And, amazingly, what the Bible says matches their own personal views perfectly!

There are Constitutional fundamentalists who have the same view — they treat the Constitution like it was written on stone tablets and handed down by the gods.  Sadly, at least one of these fundamentalists is on the Supreme Court.

The problem with this simplistic view is that it fails to take into consideration Constitutional history and common sense.  The Constitution was written by men, not gods, and they did not all agree on the meaning of the words or what should be in there.  constitution_quill_penThere is no more of a “founder’s intent” than there is a government intent on any bill.  Will people years from now claim that the entire Congress agreed unanimously on Obamacare?  Of course not.  So why do people insist on believing that for the Constitution?

The Constitution is a series of compromises, just like everything done by government.   It was written very broadly, with purposely vague words, because that was the only way it could get passed.  It’s meant to be our guidelines for how the laws will be written — our goals, if you will.  It was not meant to be taken literally to the point where there is only one interpretation.

Those who say that there is just one way to interpret it need to explain why, within a few years, there were Supreme Court decisions about it.  These were the exact same people who wrote the damn thing — why would they need to go to court to have someone explain it to them?

One of the first and most important Supreme Court decisions in those early years was Marbury v. Madison, in which the Supreme Court said that they have the right to review laws to determine whether they were Constitutional.  Makes sense, right?  Who else would do that?  But those words aren’t anywhere in the Constitution.  The founding fathers had to interpret them from the overall document.  And clearly, not everyone agreed.  And these were the people who wrote it!

After all, if everyone agreed on the meaning, there would be no need for a Supreme Court at all.

You’d think people would get that, but Constitutional fundamentalists (who, like religious fundamentalists, are always very conservative) cannot accept this.  Justice Scalia, for instance, chides his fellow Justices all the time for getting it “wrong” when they refuse to acknowledge he has super powers to read the minds of the Founding Fathers and know exactly, for instance, what their views were on internet regulations.

Part two:  Examples of compromises made by the Founders

He’s not the Messiah!

Some people just name their kids really stupid things that can haunt them for lives.

But when someone in Tennessee named their kid “Messiah,” that was too much for a judge. “The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” she said.

Good thing that judge wasn’t around in 1958 when Madonna’s parents were deciding on a name.

So the judge, over the parent’s objection, changed the child’s name, like a magical fairy.

I mean, while I certainly don’t want parents naming their kids “Hitler” or “Asshole,” I also don’t like the idea of the government coming in and deciding for the parents what the child’s name should be.

And it’s especially true here, where the reason for the name change was religion. That judge just didn’t want her personal religion made fun of, apparently.

Hey, wait, wasn’t there a Constitutional Amendment prohibiting this sort of thing? Like, the very first one?