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View Diary: SCOTUS Gets It Right on Military Recruiting (212 comments)

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  •  I disappointed however (4.00)
    that there was not even a single dissent, one that would say that sexual orientation is subject to strict scrutiny and as such, the action was unconstitutional.

    I believe that if Brennan or Marshall were on this Court, they would have dissented in such a manner.  Yet again, an example of why we should call the "liberal" bloc as centrist justices, Kennedy as a conservative, and the Roberts/Scalia/Thomas/Thomalito bloc as reactionary fascists..  

    •  asdf (none)
      I believe Brennan and Marshall were both on the Court when <Bowers</i> (the case which criminalized gay sodomy) was decided.  There were no friends to gays.
      •  That's correct... (none)
        but Brennan and Marshall both dissented.  Bowers was a 5-4 decision, which Justice Powell later said that he deeply regretted.
      •  Excuse me (none)
        Brennan, Marshall, Blackmun, and Stevens dissented from that case.  Brennan and Marshall also dissented from a similar case on sodomy in 1976.

        Brennan and Marshall in 1985 wanted to take a case regarding the discrimination of a public school teacher who was fired for being a lesbian.  When the Court passed over the case, Brennan wrote a stinging dissent saying that discrimination against sexual orientation had no rational purpose, and either strict or intermediate scrutiny should be applied.  Many lower courts have quoted that dissent for decisions.  

        Brennan dissented in 1967 from a case where the INS was allowed to deport gays.

        No friends to gays?  I think not.

      •  Bowers did NOT criminalize (none)
        homosexual sodomy.  It simply said that it is not a protected right and states could choose to legislate in the area if they want to, but certainly they don't have to.
    •  Again, (none)
      even gender is not "strict scrutiny."  What makes you think that sexual orientation will be.

      Not to mention that the underlying "don't ask, don't tell" policy was not being litigated.

      And of course not to mention, that usual civil liberties do not necessarily apply to the military.

      •  this was about Congrss's power (none)
        to legitimze discrimination.

        WE certainly won't get strict scrutiny when "progressive" lawyers like Armando use legalismss to defend such decisions.

        •  In fact, it had NOTHING (none)
          to do with "Congress's power to legitimze discrimination."  The don't ask, don't tell policy itself was not before the Court.

          And you are not going to get strict scrutiny not because of Armando.  No categories get strict scrutiny except for race.  (Maybe nationality, but I have to double check).

          •  EQUAL PROTECTION is basis (none)
            for strict scrutiny.

            The attributes are an ever moving target.

            Remember about the arc of the universe tilting towrds justice?

            We stand behind expansioins in freedoms and equaloity adn liberty.

            Armando (and the SCOTUS) is defending the rights of the military to DISCRIMINATE and OVERCOME equality based restrictions imposed by a university. How low can you go?

            •  Do you even understand (none)
              what you are saying?!

              Equal protection is not a basis for strict scrutiny.  Equal Protection for instance does not require strict scrutiny when the classification is gender based.  Or when it is wealth based or whatever.  Only race triggers strict scrutiny in the EPC analysis.

              Nor does Supreme Court have any power to address an issue not presented to it by the parties.  The validity, constitutionality or even justness of the underlying policy was simply not argued in this case.

              And I must have missed the Constitutional command of the "arc of the universe tilting towrds justice."

              •  wake up fool (none)
                The Strict srutiny test is used by courts when the impacted right or interest is constitutionally protected.

                What the attributes of a constitutionally  protected right and class are evolve and EXPAND. EQUAL PROTECTION/DUE PROCESS is the foundation.

                Privacy almost gets strict scrutiny, as does gender. Sexual orientation should be on this list.

                Race only got into the box by testing the parameters and incrementally expanding the scope -lunch counters, inter-state buses, intra-state buses, schools, housing, public accomodations, everywhere.

                You spout drivel, my friend.

                •  Really? (none)
                  gender gets strict scrutiny?  Care to cite a case?  because it doesn't.  it gets heightened scrutiny, not strict.

                  Privacy doesn't get strict scrutiny either.  See Casey (abandoning strict scrutiny on abortion in favor of "undue burden" test); Lawrence (applying "rational basis" and not "strict scrutiny" to homosexual conduct case).

                  Where does it say that "constitutionally  protected right and class are evolve and EXPAND?!"  Again, citing Casey, the right to abortion was diminished not "expanded."

                  Second, race didn't "only get in the box by testing the parameters and incrementally expanding the scope."  The 14th Amendment was targeted SPECIFICALLY to race.  Consequently, it is applied with greates force to the issues of race.  

                  Third, do you understand that the issue of the military's policy was not before the court?!  

                  •  I said "almost" damnit! (none)
                    And asserted interets in fundamnetal rights like speech, free association, liberty, property, unreasonalbe search as seizure, et al listed in something called the bill of rights also are protected by the strict scrutiny test.

                    It is NOT limited to race.

                    The 14th amendment is an expanding doctrine, not a contracting one, as is the notion of the unenumerated fundamental privacy right.

                    You are an arrogant fool - let me guess: law student, 23 years old?

                    •  I am a member of the bar (none)
                      And you are the one who is arrogant.

                      I said the only group classification that gets strict scrutiny is race.

                      Privacy does not.  It gets just rational basis, except for abortion.

                      That 14th is expanding is nonsense.  See Casey.  though in theory it should neither expand nor contract, as it is not the job of the courts to change the constitution.

                      And again, do you understand that the military's policy was not in front of the Court, for it to opine on it.

                      •  Nonsense? tell me about equal protection cases (none)
                        and the scope of the 14th amendment prior to and after Brown v. Board, then tell me that the parameters are fixed and not evolving.

                        The military's policy was the basis for enacting the university anti-discrimination policy that was before the court, and the military was allowed to not comply with the policy, so the military policy was indirectly before the court, who chose to ignore it. This is a legalism.

                        Why does the court defer to Congress' constitutional powers to raise armies in a way that violates equal protection, free speech, and association, yet feels free to limit Congress' interstate commerce powers when mere economic interests are adversely impacted?

                        We all know what this was about.

                        BTW, how about a group (class) of property owners who allege that their land was "taken" without due process? Are they a "group"?

                        Credentials don't impress, nor do hypertechnical rationalizations.

                        •  Ridiculous (none)
                          First, Courts cannot address issues that were not presented to them.  See Article III.  It didn't "choose to ignore it."  The issue was not before the Court, consequently it was powerless to address it.

                          Second, Congress' power to raise armies is plenary.  The Court explictly ruled that conditioning money on access does not violate either right to free speech or association.  Law schools are free to bar recruiters, but they must forego the money.  

                          Third, i don't even have a clue what you are talking about re: interstate commerce.  Court struck down some laws not because "economic interests are adversely impacted," but precisely for the opposite reason, i.e., that Congress was not regulating any sort of economic activity (e.g., banning guns near schools is non-economic and therefore cannot be regulation of commerce).

                          Fourth, I have no clue what property owners allege that their land was taken without due process.  if you are referring to Kelo, the argument was not due process but whether redevelopment was "public use."  And their rights weren't subject to "strict scrutiny."

                          Fifth, 14th pre-Brown was erroneously cramped by Plessy.  See Harlan's dissent therein.  14th didn't expand, but the erroneous narrowing of it by Plessy was rectified.

                          Sixth, credentials may not impress, but lack of a coherent argument impresses even less.

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