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Monday, July 13, 2015

On Freedom of Speech and Constitutional Freedoms

Ok, I've seen a lot of people talking online about freedom of speech and there are loads and loads of misunderstandings about it.  I've explained this before, but here we go again.

The freedoms contained in the Constitution are there to limit government, not private people or entities.  In other words, freedom of speech merely means that the government has limits on what it can and cannot do in terms of limiting speech.  Since no right is ever absolute, there are naturally limits.  For example, you can't say something that presents a clear and present danger to people (eg yelling "Fire!" in a crowded theater).

What the Constitution does not cover is the actions of private actors (people or companies).  For example, while people are free to think and say whatever they want to (within the limits already set forth), that does not mean that private individuals or businesses can't react to what they say.  If someone says something that you disagree with, you are free to disagree or argue with them.  If a company takes a position that you disagree with, you can boycott them or otherwise protest what it is that they have done.  If someone works for a company and says something in their capacity as an employee or while affiliated with the company, the company can take action against them.

*NONE OF THIS IS VIOLATING FREEDOM OF SPEECH!*

Anyone who has any familiarity with the Constitution can tell you this.  Since the Constitution is between *THE GOVERNMENT AND THE PEOPLE*, its strictures do not apply to private actors.

So please cut out all the bullshit and nonsense about how protests are violating people's rights.  That goes for everyone.  It really pisses me off that people who know better keep lying to mislead people in order to generate the reaction that they want.  Those sort of actions are dangerous because then you have people who don't know how things apply to them.

While I'm on a role, I want to revisit the mythical "persecution" that some Christians claim they are facing and the fallacious claims of "freedom of religion" that people are trying to use in order to deny others their rights.  Freedom of religion means that you can believe and worship how you want to.  It does not mean that you can try and force your religious views on others or that you can ignore laws you don't like if you are a public servant.  Ours is a government of laws in which the church and state are meant to be separate for the protection of both church and state.  While the church can lobby the government the same as any other group, they get no special claim of precedence or anything like that.

Monday, July 6, 2015

On Obergefell v. Hodges

I finally got around to reading the opinions in Obergefell v. Hodges and they were...interesting.  The opinion of the Court was written by Justice Kennedy and joined by Justices Kagan, Souter, Ginsberg, and Sotomayer.  Chief Justice Roberts penned a dissent which was joined by Justices Scalia and Thomas, Justice Scalia penned a dissent which was joined by Justice Thomas, Justice Thomas penned a dissent which was joined by Justice Scalia, and Justice Alito penned a dissent which was joined by Justices Scalia and Thomas.

The majority opinion focused heavily on previous rulings of the Court holding that marriage is a fundamental right that "is inherent in the concept of individual autonomy"; "supports a two-person union unlike any other in its importance to committed individuals"; "that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education", and because "this Court's cases and the Nation's traditions make clear that marriage is a keystone of the Nation's social order."  Basically, Justice Kennedy argues that since marriage is a ceremony with many civil benefits attached, equal protection and human dignity require that states recognize same sex marriages.  He makes sure to note that the states must not only allow same-sex couple to get married, but they must recognize same-sex weddings performed in other states.  He also takes care to note that no church can be forced to marry a same-sex couple.

Chief Justice Roberts' dissent focused mainly on the fact that the decision established a new right that is against the traditional meaning of marriage.  He said that the various changes to marriage over the years have been more tinkering around the edges and not changing the core of what marriage is: a union of one man and one woman.  Of course, he promptly contradicts himself by noting that many societies throughout history have a history of polygamy, which he expresses concern about.  Basically, he says that this decision will open the door to polygamy.  As a personal note, I ask why that is a major issue if all of the people involved are consenting adults.

Justices Scalia and Thomas' dissents are basically extended temper tantrums.  They argue that the wisdom of the ages has told us that marriage is between a man and a woman and that the Founders only envisioned that marriage could be between a man and a woman, so there is no right to a same sex marriage.  Basically, they are looking to freeze the United States in place where it was when it was first written.  Justice Thomas goes so far as to say that liberty is only protection from being physically restrained and the slavery and denial of the right to marry in no way impact on  people's dignity.  Theirs is an overly literalist view of the Constitution that makes no sense whatsoever.

Justice Alito basically argues along a similar vein to Scalia and Thomas.  He says that since marriage has been defined a certain way for "milennia" (which it hasn't, just FYI), it must continue to mean that.  He (and the other dissents) also argue that this decision short-circuits the democratic process and is actually about making policy, not deciding Constitutional meaning.

I am assuming that, if you are reading this, you know which side of the fence I come down on.  Of the dissents, only Chief Justice Roberts' really makes any sense.  The other three are all, more or less, extended judicial temper tantrums.  While Chief Justice Roberts dissent makes some sense, it suffers because he tries to remove judicial decision making from the real world and place it in an ivory tower were the real world impact of a decision is not relevant.  That type of decision making is horribly bad for fairly obvious reasons.  While I am not saying that decisions should be driven by what will happen, the decisions need to take that into account.  That is simple common sense, nothing more.  His dissent also lacks any sort of human angle and focuses exclusively on the philosophical issues, which again makes no sense.

If you want to read the opinions, look here.

Saturday, July 4, 2015

On different things

Okay, this post is going to cover a variety of topics because a lot has happened recently and I wanted to record some of my thoughts.

First off, due to the actions of the Republican party over the past several years, I have not only left the Republican party, I have actually joined the Democratic party.  Believe it or not, for me this has been a major decision.  I have been a Republican for my whole life until last December when I changed my registration to Not Affiliated.  However, as has been made abundantly clear to me from the actions of people in the Republican party, I can no longer vote for anyone in the Republican party as it currently exists.  If the party ever regains its sanity, I may go back.  I know I could stay Unaffiliated, but I really feel that I want to vote in primaries, and in order to do that in Maryland, I have to be in one of the major parties, so I went Democratic.

Second, I have to address the Republican party's reaction to the Supreme Court's decision holding that same-sex couple have the constitutional right to marry.  Listening to their reaction, you would think that the world was coming to an end.  The hellfire and brimstone, apocalyptic rhetoric coming out of the right wing of the country has gone beyond disgusting.  The Republican slate of presidential competitors seem to be racing each other to see who can come up with the most inane and asinine response to the decision.

While I can respect that people may have religious objections to same-sex marriage, there is a line that has to be drawn between people's public duties and their personal beliefs.  Should churches be forced to marry two gay men or two lesbians in a religious ceremony?  Of course not.  Should a public servant be allowed to not issue a marriage license to a same-sex couple?  The answer is again a resounding NO!  If you are performing a public job, you have to serve everyone, period.  If you cannot fulfill the basic requirements of the job, then you should leave the job,  The only general exceptions are relaxing requirements due to physical/medical requirements.  Even then, there are certain basic requirements that must be adhered to.  This is true for almost any job.

Despite what conservatives (or some of them at least) may believe, (1) they are *NOT* a persecuted minority, and (2) the United States is *NOT* a Christian nation.  While a large part of the population may be Christian, that does not mean that they get to impose their beliefs on everyone else.  I have never heard a good or legitimate argument against same-sex marriages that was not based in religion.  Does that mean that they don't exist?  Of course not, but I still haven't heard one.  And arguments based on the "traditional" definition of marriage don't work because there is no single definition of "traditional" marriage.  For much of human history, marriages were arranged as business deals or were polygamous.  The current definition of marriage as "one man, one woman" marrying out of love is a relatively recent invention.

In fact, the reactions of the right and various religious leader has driven me even further from both of them.  I am not talking about simple disagreement,  I am talking about the way that they have totally demonized LGBTQIA people or anyone else who supports same-sex marriage.  Take, for example, the hardware store in Tennessee where the owner has posted a "No Gays Allowed" sign.  While he is not breaking the law, the sign is a gross and blatant display of bigotry and hatred from someone who is a minister in a Baptist church.  To have someone claiming to be Christian and obviously harboring such hatred and ill will is disgusting and will only serve to drive people from Christian churches.  For more disgusting displays of bigotry see this video or this one.

Coming back to the claims that they are a persecuted minority in the United States, I want to know when the last time it was that someone was denied housing because they are Christian.  When was the last time that non-religious parents kicked their kids out of the house because they said they were Christian?  How many Christian kids have been driven to suicide because their parents rejected who they are or told them that they are evil and intrinsically disordered?  How many Christians have been killed and left on the side of the road because they were Christian?  All of these things (and more) happen to LGBTQIA people all the time at the hands of "Christians" and not the reverse.  So stop the disgusting displays of crocodile tears at things that aren't truly happening.

I am not saying that all same-sex marriage opponents are bigots, but I am at the point where I am finding it almost impossible to give them the benefit of the doubt where this is concerned.  I had harbored the hope that I would eventually go back to the Catholic Church or the Republican party, but at this point, I don't see how it can happen without some serious adjustments from both.  Would I go to a more LGBTQIA accepting, inclusive church?  Maybe.  At this point, I am so disgusted with religion in general that I don't see it happening.

Tuesday, February 10, 2015

On the events in Alabama.... (Revised on 2/13/15)

Or, as I prefer to call it, watch the right wings nutjobs contort themselves into some weird positions to accommodate their homophobic and bigoted views.

Regardless of what anyone says, the matter is really simple.  Article VI, Clause 2 of the US Constitution says:

                            This Constitution, and the Laws of the United States which
                            shall be made in Pursuance thereof; and all Treaties made,
                            or which shall be made, under the Authority of the United
                            States, shall be the supreme Law of the Land; and the Judges
                            in every State shall be bound thereby, any Thing in the
                            Constitution or Laws of any State to the Contrary
                            notwithstanding.

Pretty straightforward.  Any law, decision, state constitution, etc. that conflicts with a federal law or court decision is null and void.  Therefore, Justice Moore's decision declaring that the Probate Judges may not issue marriage licenses to same-sex couples is unconstitutional and not binding on any judges.  In fact, they are duty bound to oppose the illegal and unconstitutional order by Justice Moore and uphold the Constitution of the United States.

People are saying that there is a "constitutional crisis", but this is not true.  The law on this, as shown above is perfectly clear.  What we have is a case of a bigoted and hate-filled man who is trying to force his religious views (remember the Ten Commandments issue?) onto everyone, something that is also unconstitutional.  Justice Moore needs to be reprimanded and removed from any sort of judicial office.  I would also love to see him disbarred because he is clearly unfit to be a lawyer or judge because he cannot separate his personal biases from the law.

*******Below Added 2/13/15********

I need to issue a mea culpa.  Based on what I have been taught and read, I thought the above was true.  Today, I read this post from the National Constitution Center which indicates that my understanding is wrong and that the above only applies to Supreme Court decisions.  Honestly, I don't read it that way, but apparently I read it wrong.  So I apologize for inadvertently misleading people.

To summarize the blog post, if a federal decision is aimed squarely at a state official, then that official is bound by it, but other officials are not.  I maintain that this does not make sense given the clear meaning of the clause about, but then again, often the law does not make sense, it just is.