tag:blogger.com,1999:blog-132520298120231193.post8271237469209634048..comments2023-12-23T02:10:09.875-05:00Comments on howl at pluto: That slippery word "liberty"LFChttp://www.blogger.com/profile/13551197682770555147noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-132520298120231193.post-88399547668815686262015-05-04T09:00:52.732-04:002015-05-04T09:00:52.732-04:00Well, from my reading of the transcript of the ora...Well, from my reading of the transcript of the oral argument I think Michigan had 2 or 3 different 'arguments'. They were all weak, but the least bad one seemed to me to be (and I'm loosely paraphrasing Bursch as I understood him): <br /><br />Every definition of marriage is going to include some people and exclude others. Michigan's choice to draw the line where it has drawn it does exclude same-sex couples from marriage, but since every definition will be exclusionary of someone(s), the mere fact of exclusion is not dispositive (or decisive), and while Michigan's basis for this particular exclusion may seem rather questionable, a "rational voter" could conclude that it has some merit, and that's all that is required under the rational-basis test.<br /><br />I don't think this is a good argument, but strategically it seemed a better line for him to take than getting into the substantive claims about an 'adult-centric' definition<br />of marriage leading, over time, to a higher divorce rate and a weakening of the bonds betw children and their biological parents. Those claims weren't flying at all.<br /><br />Whether there are other arguments out there I'm not sure. I think there are probably theological or philosophical arguments (if you want to call them that) resting on some (updated) version of 'natural law', but Bursch had to make legal arguments, and I suspect that what he said was pretty much all there is.LFChttps://www.blogger.com/profile/13551197682770555147noreply@blogger.comtag:blogger.com,1999:blog-132520298120231193.post-16829427902730882642015-05-04T01:21:14.463-04:002015-05-04T01:21:14.463-04:00Is there any better argument than Michigan's o...Is there any better argument than Michigan's out there?Peter Thttps://www.blogger.com/profile/13289172253358199028noreply@blogger.comtag:blogger.com,1999:blog-132520298120231193.post-14874205936453288042015-05-02T23:39:21.104-04:002015-05-02T23:39:21.104-04:00I agree that Michigan has a weak case. At a minimu...I agree that Michigan has a weak case. At a minimum it has to show a "rational basis" for its law (which I think is in the form of an amendment to the Michigan constitution), and the law probably can't even clear that low hurdle.<br /><br /><br /><i>Alito and Scalia kept mentioning tradition. I was surprised that no-one pointed out that the Court's job is to update traditions as required.</i><br /><br />Yes, this gets to ongoing debates about what the role (or the job) of the Court is. Learned tomes have been written about this, so I won't try to say too much in a comment box. <br /><br />The U.S. Sup Ct, as may also be the case in some other legal systems, is an uneasy mixture of a legal and a political institution, which is one reason I find it interesting. And of course its cases can at least occasionally have a society-wide effect, for good and ill. <br /><br />For example, twenty years after outlawing deliberate segregation in public schools in <i>Brown v Bd of Education</i>, the Court held that schools in Detroit, overwhelmingly black in their student bodies, did not have to be integrated with the white schools in the Detroit suburbs unless there was evidence of a deliberate intent on the part of officials to bring about the result of black inner-city schools and white suburban ones. That decision, <i>Milliken v. Bradley</i> (1974), helped condemn an entire generation of African-Americans, esp. in northern cities, to substandard education, and is, I think, one of the worst Sup Ct decisions of the past half-century. (It<br />was a 5 to 4 decision, with Harry Blackmun, a hero to some because he was the author of <i>Roe v. Wade</i>, on the wrong side in <i>Milliken</i>.)<br /><br />While the Court's civil-rights jurisprudence has arguably stagnated in certain key respects (as just mentioned, the full promise of <i>Brown</i> was stymied by <i>Milliken</i>, and there are other, more recent examples (e.g. the <i>Shelby County</i> case, weakening the Voting Rights Act), in the area of individual freedom on 'personal-choice' issues, the Ct's jurisprudence seems to have gone, more or less and with stops and starts, in a progressive (for lack of a better word) direction. That has a lot to do w the make-up of the Court and the way Justice Kennedy, often the 'swing' vote, has gone on these issues.LFChttps://www.blogger.com/profile/13551197682770555147noreply@blogger.comtag:blogger.com,1999:blog-132520298120231193.post-2965683406309755022015-05-02T19:51:59.519-04:002015-05-02T19:51:59.519-04:00I read parts of the transcript, prompted by a sati...I read parts of the transcript, prompted by a satirical article asserting that Roberts had to ask about the civil basis of marriage. Michigan seemed to have no substantive case at all. The main theme was that if gay marriage were allowed, some children might grow up thinking marriage was not about procreation, and therefore more marriages could fail.<br /><br />Alito and Scalia kept mentioning tradition. I was surprised that no-one pointed out that the Court's job is to update traditions as required.Peter Thttps://www.blogger.com/profile/13289172253358199028noreply@blogger.com