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VitalSigns posted:Alito's argument seems to imply that it would be okay for the Virginia House to pass a law saying you have to be a Republican to get elected. It's also a kinda weird standing question and I'm not sure how I feel about it.
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Jun 17, 2019 16:30
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GreyjoyBastard posted:It's also a kinda weird standing question and I'm not sure how I feel about it. Yeah same, I...sort of agree? Not with the part about the House having an interest in the identity of its members, that's bullshit, in a democracy legislators don't choose themselves: the people choose legislators. It's not the same as a garage band or a bridge club or w/e that's dumb. But in general I kinda agree anyway that the legislature has an interest in defending its own laws in court. If the governor just says "nah not gonna appeal ohhh well" that seems like a backdoor executive repeal.
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Jun 17, 2019 16:42
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VitalSigns posted:Yeah same, I...sort of agree? Not with the part about the House having an interest in the identity of its members, that's bullshit, in a democracy legislators don't choose themselves: the people choose legislators. It's not the same as a garage band or a bridge club or w/e that's dumb. I think it's a question of roles under VA state law - the person tasked with defending laws passed by the legislature is the AG. If the AG elects not to defend a law then the state doesn't allow the legislature to pick up the baton. Since the AG is an elected position, it's probably a mechanism to check situations exactly like the one in Virginia.
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Jun 17, 2019 17:03
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It's less a problem in a case involving ordinary legislature than when you have something enacted by initiative/referendum, where giving the state ag a pocket veto by refusing to defend against lawsuits, even ludicrously weak ones, stands out as hideously antidemocratic.
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Jun 17, 2019 17:22
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VitalSigns posted:Alito's argument seems to imply that it would be okay for the Virginia House to pass a law saying you have to be a Republican to get elected. I think that's probably right. hobbesmaster posted:Gorsuch coming down against the dual sovereigns doctrine seems surprising? Gorsuch has been pretty consistently anti-government. The good bit is that he's anti-government even in the criminal law context, which is where Alito suddenly is willing to buy into the lamest arguments put forward by the police et al. VitalSigns posted:But in general I kinda agree anyway that the legislature has an interest in defending its own laws in court. If the governor just says "nah not gonna appeal ohhh well" that seems like a backdoor executive repeal. There were 2 problems. 1. The AG has the sole power under VA law to do the defense. 2. This wasn't the legislature, just one branch of a bicameral house. But yes, there have been problems. In Georgia at one point the governor and the attorney general were from different political parties. This led to hilarity in determining what cases would and wouldn't be pursued.
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Jun 17, 2019 17:22
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Thranguy posted:It's less a problem in a case involving ordinary legislature than when you have something enacted by initiative/referendum, where giving the state ag a pocket veto by refusing to defend against lawsuits, even ludicrously weak ones, stands out as hideously antidemocratic. Thats a very different question though because then presumably the intervenor would be a "regular" citizen.
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Jun 17, 2019 17:23
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ulmont posted:Gorsuch has been pretty consistently anti-government. The good bit is that he's anti-government even in the criminal law context, which is where Alito suddenly is willing to buy into the lamest arguments put forward by the police et al. Right. Gorsuch is a pretty doctrinaire judicial libertarian, which makes him very different from any of the other conservatives on the Court. It’s a little weird that Trump nominated him, frankly.
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Jun 17, 2019 17:31
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I can't tell if the Virginia Uranium ban was upheld or not
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Jun 17, 2019 17:35
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Nissin Cup Nudist posted:I can't tell if the Virginia Uranium ban was upheld or not It was. I have a condensed version of the opinion upthread. quote:The only thing a court can be sure of is what can be found in the law itself. And every indication in the law before us suggests that Congress elected to leave mining regulation on private land to the States and grant the NRC regulatory authority only after uranium is removed from the earth. That compromise may not be the only permissible or even the most rationally attractive one, but it is surely both permissible and rational to think that Congress might have chosen to regulate the more novel aspects of nuclear power while leaving to States their traditional function of regulating mining activities on private lands within their boundaries.
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Jun 17, 2019 17:40
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rjmccall posted:Right. Gorsuch is a pretty doctrinaire judicial libertarian, which makes him very different from any of the other conservatives on the Court. It’s a little weird that Trump nominated him, frankly. It's not all that weird, seeing as though his jurisprudence was almost certainly not under any deep consideration at that point. Iirc he was given a list of recommended/vetted justices from Heritage and presumably picked the one who looked the youngest/healthiest.
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Jun 17, 2019 17:48
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FAUXTON posted:I think it's a question of roles under VA state law - the person tasked with defending laws passed by the legislature is the AG. If the AG elects not to defend a law then the state doesn't allow the legislature to pick up the baton. Since the AG is an elected position, it's probably a mechanism to check situations exactly like the one in Virginia. That's a good point, if the legislature itself passed a law saying it's the AG's role and not theirs I guess the remedy would be for them to change that law if they don't like it now.
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Jun 17, 2019 18:20
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A dissent by Ginsburg that I heartily agree with. Good job ya old witch. (Double jeopardy case)
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Jun 17, 2019 18:38
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The Virginia Uranium dissent is odd. Virginia is allowed to ban uranium mining, but it’s precluded from regulating the later stages (disposal of byproducts?), and there’s strong evidence that they banned mining because they didn’t like how federal law regulates the later stages, so their ban was a pretextual attempt to regulate the later stages and so is illegitimate? Do courts usually do this kind of pretext analysis outside of fundamental-rights cases? And why is “we want to ban this because it will have consequences we don’t like and can’t control” an invalid state interest just because the lack of control is caused by (purportedly) lax federal regulation rather than being inherent to the thing? If federal law said that bartenders couldn’t cut patrons off and had to keep serving them alcohol until they passed out, would states not be allowed to ban bars unless they could demonstrate that they were planning to ban them regardless of that law?
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Jun 17, 2019 18:38
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rjmccall posted:The Virginia Uranium dissent is odd. Virginia is allowed to ban uranium mining, but it’s precluded from regulating the later stages (disposal of byproducts?), and there’s strong evidence that they banned mining because they didn’t like how federal law regulates the later stages, so their ban was a pretextual attempt to regulate the later stages and so is illegitimate? Do courts usually do this kind of pretext analysis outside of fundamental-rights cases? And why is “we want to ban this because it will have consequences we don’t like and can’t control” an invalid state interest just because the lack of control is caused by (purportedly) lax federal regulation rather than being inherent to the thing? 1. The pretext analysis is done in preemption cases under one of the leading precedents discussed in the opinion: quote:State safety regulation is not preempted only when it conflicts with federal law. Otherwise yeah more or less fundamental rights cases (and employment discrimination, although that's usually private actors). rjmccall posted:If federal law said that bartenders couldn’t cut patrons off and had to keep serving them alcohol until they passed out, would states not be allowed to ban bars unless they could demonstrate that they were planning to ban them regardless of that law? Under Virginia Uranium, probably. Note that Gorsuch completely rejected the pretext analysis, while Ginsburg disagreed that it was relevant. ulmont fucked around with this message at 18:55 on Jun 17, 2019 |
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Jun 17, 2019 18:49
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Huh, that’s a really interesting precedent. I know Gorsuch didn’t suggest it should be overturned, but I bet he‘d vote that way if asked. Thanks!
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Jun 17, 2019 20:31
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Can we get the breakdown of what the punt on the Oregon gay wedding cake case means?
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Jun 17, 2019 22:16
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Javid posted:Can we get the breakdown of what the punt on the Oregon gay wedding cake case means? I suspect it was just the Court buying time since nobody really wanted to go back to that well. That case will come back up.
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Jun 17, 2019 22:26
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Really looking forward to John Roberts applying the same scrutiny to legislative pretext in the remaining gerrymandering cases that he is in Virginia Uranium.
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Jun 17, 2019 22:53
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Javid posted:Can we get the breakdown of what the punt on the Oregon gay wedding cake case means? it was just a general 'uuuh go back and look at this again just to be sure' since that Colorado freak won his 'they were meeeeeeeeeeeeeean to me because I'm Christian' thing. The lower court's just gonna go 'uh yea we're not loving targeting Christians' and this'll come back just in time for the election....yay.
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Jun 17, 2019 23:34
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I can’t even believe that “my private, secular business shouldn’t have to comply with facially neutral anti-discrimination laws because my religion teaches discrimination” is an argument any court has to give the time of day, but there it is. Note that I am aware of the ministerial exception to most anti-discrimination laws. Hence the qualifiers. Ogmius815 fucked around with this message at 00:08 on Jun 18, 2019 |
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Jun 18, 2019 00:06
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yea it whips rear end that our totally normal and civilized country has it carved out as a legal standard that you can just say 'yea I know I'm a fuckin plumber or whatever but my god says queers are gross so I get to discriminate right?'
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Jun 18, 2019 00:10
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ilkhan posted:A dissent by Ginsburg that I heartily agree with. Good job ya old witch. (Double jeopardy case) Thomas also showing off the insanity of "originalism" there --- the Founders didn't think states and feds would prosecute for the same thing, so they didn't ban it, so clearly prosecuting people twice is following the original intent!
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Jun 18, 2019 03:20
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OddObserver posted:Thomas also showing off the insanity of "originalism" there --- the Founders didn't think states and feds would prosecute There is an interesting analogy there for the foreign sovereigns bit although I think Ginsburg has the right of “one country you fucks.”
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Jun 18, 2019 03:43
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OddObserver posted:Thomas also showing off the insanity of "originalism" there --- the Founders didn't think states and feds would prosecute
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Jun 18, 2019 03:47
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Ogmius815 posted:I can’t even believe that “my private, secular business shouldn’t have to comply with facially neutral anti-discrimination laws because my religion teaches discrimination” is an argument any court has to give the time of day, but there it is.
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Jun 18, 2019 05:51
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Dead Reckoning posted:There's a pretty obvious first amendment issue in that someone engaged in a creative enterprise can't be forced to endorse a message they disagree with, even if they do it for money. If a Christian cover band makes themselves available for bookings, you can't sue them if they decline to play Slayer covers for your First BDSM Mass of Black Satan. People have just been twisting themselves in knots to argue that the specialty individually decorated cakes you order for weddings and nothing else don't constitute creative works. Good thing the Masterpiece opinion didn't actually rule on free speech, and instead said that the baker was justified in his illegal bigotry because, after the fact, someone was rude to him when he argued his religious beliefs justified breaking the law.
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Jun 18, 2019 06:33
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Masterpiece was a punt, and this was a punt on top of a punt, but the correct answer should have been, "creative work isn't a public accommodation, this case was creative work, and the lower courts are welcome to hash out where that line is in more detail until an inevitable circuit split forces us to consider the issue again."
Dead Reckoning fucked around with this message at 06:59 on Jun 18, 2019 |
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Jun 18, 2019 06:53
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Dead Reckoning posted:If a Christian cover band makes themselves available for bookings, you can't sue them if they decline to play Slayer covers for your First BDSM Mass of Black Satan. If they don't play Slayer because they are talentless hacks that is one thing, if they play Slayer for certain people, but don't play Slayer for other people protected by anti-discrimination laws, burn their business to the ground. twodot fucked around with this message at 07:03 on Jun 18, 2019 |
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Jun 18, 2019 07:01
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Not really, no. Just because Chris Hemsworth shills for cologne or liquor or sports watches in exchange for money doesn't mean he has to cut ads for the Westboro Baptist Church if they scrape together enough cash.
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Jun 18, 2019 07:05
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Dead Reckoning posted:Not really, no. Just because Chris Hemsworth shills for cologne or liquor or sports watches in exchange for money doesn't mean he has to cut ads for the Westboro Baptist Church if they scrape together enough cash. edit: I guess let's head this off at the pass. Can you distinguish between "participating in a religion" and "being an rear end in a top hat"? Like if a member of the Westboro Baptist Church opened a bakery and argued "I don't have anything against gays, it's just that all gays are mean, and I refuse to serve mean people" they would have some sort of argument, except that the idea "all gay people are mean" is plainly absurd whereas "the entirety of the Westboro Baptist Church are all assholes" is self evident. twodot fucked around with this message at 07:11 on Jun 18, 2019 |
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Jun 18, 2019 07:07
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Dead Reckoning posted:Not really, no. Just because Chris Hemsworth shills for cologne or liquor or sports watches in exchange for money doesn't mean he has to cut ads for the Westboro Baptist Church if they scrape together enough cash. A more accurate analogy would be my Mormon cover band does do covers of slayer for Klan functions but we turned up to perform at a wedding and discovered the dude is marrying a black girl so we've now decided that playing covers of boy band romance songs is an endorsement of this mixed race marriage and won't perform. Clearly as a creative act that would be a ok for the courts here as a first amendment thing?
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Jun 18, 2019 08:02
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lmao did Thomas really write a concurrence just so he could whine about stare decisis for a couple paragraphs?
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Jun 18, 2019 08:04
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Sydin posted:lmao did Thomas really write a concurrence just so he could whine about stare decisis for a couple paragraphs? That was so superfluous that I have to think Thomas learned that the clerks have a betting pool on the number of solo Thomas opinions in the term and he's trying to swing it someone's way.
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Jun 18, 2019 08:11
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Dead Reckoning posted:Not really, no. Just because Chris Hemsworth shills for cologne or liquor or sports watches in exchange for money doesn't mean he has to cut ads for the Westboro Baptist Church if they scrape together enough cash.  that is nothing close to a good faith argument.Masterpiece wouldn't sell them an off the shelf cake. There was nothing creative about it. He just wanted to say no gays allowed in his cakeshop.
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Jun 18, 2019 11:56
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Dead Reckoning posted:There's a pretty obvious first amendment issue in that someone engaged in a creative enterprise can't be forced to endorse a message they disagree with, even if they do it for money. If a Christian cover band makes themselves available for bookings, you can't sue them if they decline to play Slayer covers for your First BDSM Mass of Black Satan. People have just been twisting themselves in knots to argue that the specialty individually decorated cakes you order for weddings and nothing else don't constitute creative works. You're quite correct, no one can be forced to endorse a message they disagree with. Good thing engaging in a creative endeavor in no way endorses the underlying activity, and never has. Baking a wedding cake is neither an endorsement of that particular type of wedding (e.g. gay, post-divorce, mixed race) nor an endorsement of the individual wedding (Sara and Mark). And no one ever thought it was until bigots want to have both a business that serves the general public for profit and wants to discriminate. Your example would be more apt if they played Slayer covers for everyone but for one group they claim a religious right to discriminate against. The cake maker doesn't inquire into the specifics of the marriage, which calls into question the sincerity of his beliefs, of course, but also clearly shows that his work isn't an endorsement. And, of course, your Chris Hemsworth example does not involve a public accommodation. It is, overtly, an endorsement of a particular product, and quite different.
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Jun 18, 2019 13:33
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Hell, turn the example around. Would you want to force an atheist Baker to create a super religious cake? I don't think forcing either side to go against their beliefs is valid.
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Jun 18, 2019 14:20
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ilkhan posted:Hell, turn the example around. Would you want to force an atheist Baker to create a super religious cake? I don't think forcing either side to go against their beliefs is valid. Yes. First, it's not against their beliefs. There's no religious text supporting their position that commercial services must be withheld from sinners. Their belief can be loosely interpreted to say don't gay marry (not really, but you can get there), it doesn't say to shun the gay married (specifically, or sinners generally). Secondly, yes, I'd definitely feel fine under the law and the constitution forcing an atheist Baker to create a super religious cake. Why? It in no way endorses the religion. This same argument was used to discriminate against racial minorities...with better religious support for the position.
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Jun 18, 2019 14:27
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You don't get to tell people what their religious beliefs are. If a Baptist walked into a Jewish bakery and requested a cake with a large cross and "Christ is Lord above all others" piped on it, you think the bakery should be forced to make it? Mr. Nice! posted:
torgeaux posted:You're quite correct, no one can be forced to endorse a message they disagree with. Good thing engaging in a creative endeavor in no way endorses the underlying activity, and never has. Baking a wedding cake is neither an endorsement of that particular type of wedding (e.g. gay, post-divorce, mixed race) nor an endorsement of the individual wedding (Sara and Mark). And no one ever thought it was until bigots want to have both a business that serves the general public for profit and wants to discriminate. torgeaux posted:The cake maker doesn't inquire into the specifics of the marriage, which calls into question the sincerity of his beliefs, of course, but also clearly shows that his work isn't an endorsement. The fact that people in Colorado keep suing this same bakery for refusing to provide "transition celebration" cakes, etc. doesn't bode well for the argument that this is about LGBTQ people being denied public accommodation, rather than forcing people to do endorse things contrary to their religion. Dead Reckoning fucked around with this message at 15:53 on Jun 18, 2019 |
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Jun 18, 2019 15:50
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Now make the same argument about interracial weddings. "Sorry, I won't make a cake that celebrates your white son marrying his black girlfriend because my religion prohibits miscegenation!" Do you realise how that sounds? If this wasn't a case about LGBT rights there would be absolutely no question which way it would go.
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Jun 18, 2019 16:15
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Dead Reckoning posted:You don't get to tell people what their religious beliefs are. In that case couldn't you reject any service under the auspice of a religious belief? There can't be any sort of test for what is a true religious belief so basically you can refuse any work for any reason to discriminate, no? "I don't like blacks" could also be a religious belief. This can go to the extremes pretty fast.
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Jun 18, 2019 16:17
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