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Messages - PABitz

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Current Law Students / Re: substantive due process
« on: December 16, 2008, 02:20:39 PM »
Isn't there no EP argument there b/c homosexuals aren't a protected/suspect/whatever class?

Feckin' con law.

That the Court hasn't recognized homosexuals as a suspect class doesn't mean that there is no EP argument. At the very least, one should still pursue a rational basis argument. Above that, you could argue that the failure to recognize homosexuals as a suspect class has been unprincipled (accident of birth [as is being supported by more sources] + minority historically discriminated against = at least some argument to be made, though a failing one at this point). Also, one could pursue a sex discrimination component for most legislation implicating distinctions on the basis of sexual orientation.

Again, the arguments likely fail, but that doesn't mean one shouldn't raise them and see them through to their natural conclusion.

whom ... and were (not are)

I'll give it a look.

I'd be willing to take a look at it too.

Current Law Students / Re: Attire for EIW
« on: June 16, 2008, 12:05:07 AM »
Your first suit should be a basic 2-button, solid black dark charcoal.  Its conservative and matches everything.  You should have a couple of white shirts, but it isn't written in stone that lawyers need to look like undertakers.  You can wear pretty much any color as long as its conservative and paired with a nice tie.  You will also need a nice pair of black leather dress shoes and a black leather belt.  $400 should be more than enough, if you shop smart.  Make it a point to buy at least 1 or 2 new suits every semester.
(This is probably overkill. It does help avoid having to buy a full work wardrobe all at once, but at the same time, a lot of people gain or lose substantial weight over the course of their law school careers, so sometimes waiting to buy until you need to may be the better plan.

El fixto.

General Off-Topic Board / Re: California Gay Marriage
« on: June 07, 2008, 07:52:12 PM »
never hear equal protection clause?  how discrimination on basis sexual orientation any different than gender?

I don't know what to say.
You have a great constitutional argument for the protection of the gay "minority"
You also have a great scientific argument for the justification that sexual orientation is natural and not merely a preference.
I recognize those arguments but I believe that homosexuality is an inappropriate behavior.  Extremely promiscuous people, and those who are attracted to youth are compelled by society to control their behavior. 

I do recognize the parallels to interracial marriage, but there is one fundamental difference: Whether you are an evolutionist or a creationist, it is obvious that nature intended procreation to involve one man and one woman.   I believe that marriage and procreation are fundamentally tied together.

So... I know of no law that prohibits extreme promiscuity, but if you can provide one, I'll accept that. "Those who are attracted to youth" are regulated because we, as a society, place sufficient weight on consent to overrule actions in the case of people (kids) who are not capable of consenting - Seems like a much different issue to me than the argument against homosexuality.

As for your last sentence, I think it is rather forced. If you are going to raise "nature" as an argument, I'm not sure how you can ignore the fact that only humans have marriage and very few species are monogamous. If what you're saying is that marriage and human procreation are fundamentally tied together, then you're avoiding a whole host of reasons that people get married without ever intending to have kids.

General Off-Topic Board / Re: California Gay Marriage
« on: June 07, 2008, 07:40:10 PM »

never hear equal protection clause?  how discrimination on basis sexual orientation any different than gender?

The answer to this depends on whether you believe sexual orientation is a fundamentally defining characteristic of a person or merely a preference. In the former case, one could make a strong argument for it being just to protect it in the same manner as we do religion. In the latter, that argument falls apart. I'm pretty sure I know where you fall in the argument, but it isn't as if there isn't a good argument on the other side as well.

Uhhhhh.... Pretty sure religion is exactly the WRONG thing for you to to analogize to here. You could have said race or gender, which arguably are "fundamentally defining characteristics of a person." Religions is, in fact, "merely a preference," but we DO protect that, as you point out. Which is why whether or not sexual orientation is a "preference" should have nothing to do with whether or not it should be afforded equal protection.

There's a reason why religion is the only "choice" substantially protected from discrimination. Religion is not treated as "merely a preference". It is a choice considered to be so fundamental to a person's understanding of ones self that the state ought to avoid creating incentives that tend to push one away from one's religion.

Also... race and sex are indeed defining in a sense, but they are protected from discrimination because (for the most part), they are immutable. Sexual orientation may or may not fit into this category. The research produced  is far from conclusive. If it turns out to be a product of genetic predisposition, maybe analyzing it with regards to race/sex would be better. In the mean time, my quote above treats it as a choice, in which case the "defining characteristic" vs. "mere preference" distinction comes into play.

General Off-Topic Board / Re: California Gay Marriage
« on: June 07, 2008, 02:37:59 PM »
I did see your point, and I recognize what you taught me and I appreciate that.

The constitution does not expressly protect marriage at all, but marriage started as a religious expression, and therefore it is protected.  Gay marriage, as a religious expression is protected, but I believe the whole issue of civil marriage is not really a constitutional issue.  Civil marriage represents a license granted to two persons.  I do not believe that it is unconstitutional for the people to decide who is allowed to gain a marriage license.

No, it actually didn't start as a religious expression, but instead an economic transaction.

Marriage is a civil institution. To you it may have a religious connotation but the licenses that are given by states to individuals have nothing to do with religion whatsoever. They confer rights and benefits (1000+ at the federal level) that help to ensure stability and security between two people - medical decision making, tax benefits, social security benefits to name a few. It simply has nothing to do with religion at the government level. So if you personally don't think people of the same sex should love one another or want to spend their lives together then don't date someone of the same sex. But the government has no business telling any consenting adults whom they should love or spend their lives with because they simply have no compelling, reasonable, or legitimate state interest to do so. No matter what you're religion may be, you need to recognize there is something called separation of church and state. You are citing your religion as a basis for your opposition to same sex unions. That's fine for YOU personally but it's not ok for the government.

I agree with what you said for the most part, especially about the stability, and I have in no way suggested that religion should be the basis for the supreme courts decision.  I was asked to tell my personal beliefs about the subject, which are religious.  I just believe that if the majority of people believe that the marital contract should only be observed between 1 man and 1 woman, that the supreme court does not actually have a constitutional basis of overturning it.

If you believe in Adam and Eve, then marriage did start out as a religious expression.

This whole process would have been made infinitely less controversial had governments just "lawyerized" the term to begin with. Who would raise a stink if the classification that granted social protections and benefits were called something like a "license to incorporate as a social partnership" (for both same-sex and mixed-sex couples). Unfortunately, the government adopted a term that has a meaning in religion as well, which clouds the fact that religious marriage and marriage before the law are two separate concepts. Religious marriage may have started with Adam and Eve, but marriage before the law didn't start until some government body conferred rights upon certain social pairs.

never hear equal protection clause?  how discrimination on basis sexual orientation any different than gender?

The answer to this depends on whether you believe sexual orientation is a fundamentally defining characteristic of a person or merely a preference. In the former case, one could make a strong argument for it being just to protect it in the same manner as we do religion. In the latter, that argument falls apart. I'm pretty sure I know where you fall in the argument, but it isn't as if there isn't a good argument on the other side as well.

N.V.A. soldiers dressed in simple green canvas uniforms. Viet Cong troops, who needed to blend in with local populations, most often wore black Ho Chi Minh-style loose pants."

Yeah, so since you seem to like links, I thought I'd give you some.
Or, you could do what I did and google "viet cong uniform" and you'll get a few thousand.

Anyone can call anything a uniform, but that doesn't make it a uniform under the Geneva Convention. The issue of importance under those treaties are whether the combatant wears an insignia recognizable at "a distance". The VC wore civilian or civilian-esque clothing without insignia of army. Furthermore, they did not qualify under the provision allowing for temporary violation of traditional uniform and command structures allowable if a impromptu resistance formed without time to organize properly (They formed full command structures, therefore losing out on any ability to claim resistance fighter status).

The point of the uniform rules was to prevent civilian deaths by giving opposing armies cause to bypass civilian centers without fear of attack from those they believed to be non-combatants. In wars prior to the adoption of the convention, it was relatively common for combatants to spring up out of civilian centers and the era-appropriate response was to eliminate the entire town without regard to who would/wouldn't take up arms (because you just didn't know).

Long story short... for the purposes of this conversation, the VC did not wear uniforms.

Current Law Students / Re: California Same-sex marriage.
« on: June 02, 2008, 01:54:30 PM »
I think a constitutional amendment will be passed in November and that none of this will be relevant. 

You might want to read the Court's decision closely.  Note the bolded below:

"As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this stateís Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individualís liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the
opportunity of an individual to establish ó with the person with whom the individual has chosen to share his or her life ó an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own ó and, if the couple chooses, to raise children within that family ó constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individualís capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individualís sexual orientation, and, more generally, that an individualís sexual orientation ó like a personís race or gender ó does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental
constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."

The court has stated that these rights cannot be "referendumed" away - in fact, it's clear that should voters attempt to do so, the California Supreme Court might determine that marriage, if it can be thus limited, is not an inherent Constitutional right and prohibit it for everyone.

Be careful what you wish for.

Two things wrong with this post:

1) As has already been briefly brought up, California has a three pronged system of popular democracy consisting of: a) the Legislative referendum, b) the statutory ballot initiative, and c) the initiative constitutional amendment. The court has stated that neither of the first two may override their ruling, but the latter is a constitutional amendment in full force and has all the power of such in this matter.

2) As for the second piece in bold, I just want to point out that this is not how rights work. If the Court were to rule that marriage itself is not a fundamental right, all that would do would be to give the legislature the discretion to regulate it. Marriage would not suddenly become a prohibited act.

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