Why It Is Important And How It Applies to The Current Debates Concerning Gay Marriage and Healthcare Reform – Part 1

Let me start out by saying that this article does not take a position pro or con on the issues of gay marriage or federally mandated healthcare reform. Rather, the purpose of this article is to address what I perceive as a major gap in the way some people reason while engaging in the current debates. That gap has resulted, I believe, from a lack of understanding of the role legal precedent plays in interpreting Constitutional provisions and applying them to current legal disputes. In other words, It is one thing to desire a particular legal outcome: the right for gays to marry for example, which will be the subject of Part 1 of this article. However, to get there, one must be familiar with the due process and equal protection clauses, how they have been interpreted in the past by the Courts and how the Court’s holdings would need to be extended in order to get to that result: in other words, the role of legal precedent.

Our system of justice was born out of the English common-law system. Put very simply, this means that the courts will be presented with a case or controversy. The Court will issue its holding after applying the law in question to the particular facts of the case. That holding becomes legal precedent for how a future court will rule assuming the same or similar facts under the same law. This is called the doctrine of stare decisis ( let the decision stand). In order for a Court to extend a legal precedent to later cases before it that do not involve the same facts or issues, it must determine that the case before it, while not factually identical, involves parallel issues or is otherwise analogous in some way to the facts presented in a previous case(s) on which the court intends to rely.

An example of this presents itself in examining how the controversial ruling in Roe v. Wade (the Constitutional right to abortion) came to be. A few years before Roe was decided, the U.S Supreme Court struck down a Connecticut law which banned the use of birth control devices. That case was Griswold v. Connecticut, which was decided upon the (also controversial) right to “privacy,” which although not explicit in the U.S Constitution, the Court found to be implied by the 4th and 5th amendments. Roe v. Wade obviously went beyond Griswold, in that now the Court was not dealing with the right to procreate, but the right to terminate a pregnancy after conception. The Court used the same analysis as it did in Griswold, and extended the right to privacy to include the right to abortion.

It is anticipated that, regardless of how the current federal gay marriage trial ends, the matter will be appealed all the way up to the U.S Supreme Court which will have to use legal precedent to reach its decision, assuming it agrees to hear the case.

The main argument on the pro-gay marriage side would be that forbidding individuals to marry the person of his/her choice regardless of gender violates either the due process or the equal protection clause of the US Constitution. It is settled law under due process jurisprudence currently that one has the right to marry someone regardless of race. The Court would need to be convinced that sexual orientation is analogous to race, and thus, the legal precedent should be extended under due process analysis.

As for equal protection analysis, we all know that laws do in fact discriminate. For example, all states have age restrictions on voting and on buying alcohol. The test of whether a law violates the equal protection clause depends upon either the right involved or the class of persons it burdens. The Courts will apply one of three levels of scrutiny to the challenged law to determine whether the equal protection clause has been violated: Strict scrutiny, intermediate scrutiny or minimum scrutiny.

Strict scrutiny of the law will be employed if the Court determines that the law burdens a fundamental right OR involves a suspect classification. If strict scrutiny applies, the state government must show that it has a compelling state interest and that the classification is necessary to serve that interest. Some fundamental rights that have been enunciated by the Courts over the years are the right to vote, the right to travel, the right to contract, the right to have access to the courts, the right too procreate, the right to direct a child’s upbringing and the right to marry a person of any race. Thus far, the right to marry has not been extended to the right to marry someone of the same gender. Hence, if using this rung of the equal protection clause, this is step one–convincing the Supreme Court that under legal precedent, the right to marry a person of ones’ own choosing must include a person of the same gender. Assuming the Court is convinced that the precedent should be extended, it will then apply the strict scrutiny standard to the law in question. If the law in question is in a state like California that has domestic partnership laws, it is unclear how the Court would rule. Presumably, the Court would examine the provisions of the domestic partnership law and determine whether it provides the same legal protections to domestic partners as to married couples. If the Court determines that it does, the law may withstand even strict scrutiny. However, if the Court decides that the word “marriage” is necessary to confer the same rights notwithstanding the provisions of the domestic partnership statute, then presumably, California’s law prohibiting gay marriage would not withstand strict scrutiny.

As for suspect classifications, which also require strict scrutiny, thus far, sexual orientation has not been recognized as a suspect class which currently includes race, religion, National origin, or alienage. Again, if the Court can be convinced that sexual orientation should be included as a suspect class, strict scrutiny and the above analysis would be employed. The next classification is called “quasi-suspect” (which applies to laws that burden gender and illegitimate children) where a law challenged on equal protection grounds is subject to intermediate scrutiny: that is, the law must show that it serves an important state interest, and that the classification is substantially related to serving that interest. Thus, if the Court finds that disparate treatment under the law based on sexual orientation is analogous to that based on gender, the Court will apply this test–which obviously is less stringent than the strict scrutiny test described above.

Finally, all classifications that are not deemed suspect or quasi-suspect or as burdening a fundamental right are subjected to merely, minimum scrutiny or the rational basis test. Under this analysis, the challenged law will stand if it is rationally related to a legitimate state interest. This is the easiest test for the state to pass, particularly in a state like California with an existing domestic partnership statute.

In sum, the due process and equal protection analysis provided above are at the core of the gay marriage issue, and will be used by both sides to frame the debate as the matter is litigated through the federal courts–and most likely all the way up to the US Supreme Court.

(In Part 2 of this Article, I will address what I believe will be the constitutional challenges to the recent healthcare reform legislation.)

On April 7th, the Obama Administration announced it will be striping terms like “Islamic Extremism” from the central document defining the United States’ stances on national security. Evidentially, the Administration is afraid of alienating Islamic nations. Members of the Administration said that defining the war on terror as a war against Islamic extremism would be viewing Muslim nations through a lens of terror. I am of the opinion that doing so may not entirely be a bad idea. It wasn’t the IRA who killed almost 3000 Americans on September 11, 2001.

More and more these days, Islamic leaders are seeing a climate of tolerance in the western world. This climate of tolerance is creating an environment where they are no longer afraid to come out and publicly share their views on subjects like Jihad and the killing of non-Muslims. Below is a video of British Mullah Anjum Chaudri describing how he believes the killing of “non-believers” is justified. This is not an isolated thing as video after video of major players in the Muslim world have come out in support of the “convert or die” mentality.

Calling for Global Jihad…

Espousing the killing of the Jews.

These are but a few examples of what we are dealing with. These people believe that their religion gives them the right to subjugate and or kill you for not believing in their God. This fanaticism has driven thousands to strap bombs to their chests and blow themselves up taking as many as possible with them. This “Religion of Peace” convinced men that blowing up the World Trade Center and killing 2800+ Americans was justified because they didn’t believe in Muhammad. It convinced Nidal Hassan in Texas to massacre 13 Soldiers and wound another 30 while screaming “Allah Akbar” in the name of his religion.

In the month of March, 2010, there were 165 attacks abroad perpetrated by extremists in 15 different nations. These attacks killed 1300+ innocents and critically wounded another 2000+. They call it the “Religion of Peace” but as a friend of mine, Angelo of ConservativeRule.com, likes to put it, Islam is the “Religion of Pieces”. We know where these people came from and we know their motivations.

Islamo-fascism is sprouting up all over the globe. Most people understand that countries like Yemen and Pakistan are hotbeds for terrorism, providing cover for jihadist training camps and affording known figures in the terrorist world aid. What most people are not aware of is that this fanaticism is spreading everywhere like wildfire. Along with the Middle East and Northern Africa, groups like al-Qaeda now have a strong presence in Asian nations like Japan and the Philippines and there are known Islamic terrorist organisations in Chile, Honduras and Columbia as well.

Countries like Russia know the threat well. On March 29th, 2 “Black Widow” female Chechnyans with bombs strapped to their bodies bombed 2 Russian train stations killing 38 people and wounding another 64. An Islamic group from the Northern Caucasus region claimed responsibility for the acts. Russia is a country that has been hit especially hard over the last 10 years. Back in September, 2004, Islamic terrorists took 1,100 hostages at The Beslan School in in the North Causasus. The resulting bloodbath left 334 hostages dead, 186 were school children, and hundreds injured and many reported missing.

What happened in Russia was horrible and inexcusable but no one was hit harder in one single terrorist action than the United States. It’s amazing to me how quickly some forget that day. I remember it well; I watched it live on the television unfolding before my astonished eyes.

Our current government is so quick to denounce these facts that they weaken us. We are no longer to call an act of terrorism for what it is but instead, a “man made disaster”.

Nations like Yemen, Pakistan and Saudi Arabia claim to be against violence in the name of Islam but time and again have been proven to harbour, finance and spread terrorism. Whether it be through direct support or a lack of action, nations that allow terrorism to propagate should be held accountable. If a terrorist act was perpetrated by individuals from Yemen, trained in Yemen and allowed to live in Yemen then Yemen has some responsibility in the situation.

If we don’t hold these nations accountable for their complicity then the war on terror will never be won. Mr. Obama’s willingness to be soft on terror with his warm and fuzzy policies, entertaining civilian trials for those that conspire to kill us and his refusal to confront nations like Iran and their nuclear ambitions will only serve to weaken our ability to protect our homeland.

Iran is an example of how disastrous Obama’s policies could be. Because he drug his feet on the issue of Iran becoming a nuclear state, the material and technology they are developing could very well end up in the hands of a terrorist group bent on detonating a nuclear or dirty bomb on US soil. The resulting loss of life would be staggering and possibly reach well into the hundreds of thousands. Because of his lack of support for Israel, our only ally in the Middle East, nations like Russia and China have now come out saying that an Israeli attack on Iran would result in a “world war”. With the support of the United States, Russia and China would not have been so willing to attempt to tie up Israel’s ability to protect itself from the threat of a nation who’s leader openly calls for the total annihilation of their country.

The Obama Administration’s stance on terror is weakening us and could very well result in another 9/11 style attack on US soil. I pray everyday that it never happens but it seems inevitable.

We need hard lined policies designed to combat this threat to our security and to freedom and liberty world wide. Now is not the time to join hands and sing Kumbayah. Now is the time to take the fight to those who would hurt us. Now is the time to tell these terrorist harbouring nations that we will not allow them to stand by as Islamic terrorist organisations train and prepare on their soil. I can’t remember ever reading about any non-Islamic group detonating anything on US soil unless you include Bill Ayers or the Black Panthers. I don’t need to point out the connections there.

Now is the time to do what ever is necessary to ensure the security of America and free people everywhere. I don’t know about you, but if I knew someone wanted to kill me and I saw them rushing at me with a knife, I’d put em down first and worry about everything else later. This is life or death, not foreign diplomacy.

On March 4th, Sen. John McCain(R-AR) and Sen. Joe Lieberman(D-CT) introduced new legislation aimed at streamlining the arrest, interrogation and detainment process for what they call “Enemy Belligerents”.

The Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010 was received with little fan fair and almost zero media coverage. Do a Google search utilizing the name of the bill to see that outlets like MSNBC, CNN and the traditional networks like ABC, NBC and CBS don’t come up at all.

Considering this bill is set to give the President of the United States the power to arbitrarily suspend habeas corpus on a whim, one would think more coverage would exist.

Click here to read the full text of the bill and here to read Sen. John McCain’s statement to the Senate.

The only major news outlet to pick this up, however scant their coverage, was Fox News.

The legislation by Sens. John McCain, R-Ariz., and Joe Lieberman, I-Conn., would result in banning all civilian trials for terror suspects who have been classified as enemy combatants and forcing their cases into military commissions.

The bill lays out “comprehensive policy for the detention, interrogation and trial of suspected unprivileged enemy belligerents who are believed to have engaged in hostilities against the United States by requiring these individuals to be held in military custody, interrogated for their intelligence value and not provided with a Miranda warning,” according to a release from McCain’s office.

“Unprivileged enemy belligerents considered to be a ‘high-value detainee’” would be required “to be held in military custody and interrogated for their intelligence value by a High-Value Detainee Interrogation Team established by the President,” the release states.

Mandating military tribunals instead of civilian trials for terrorists sounds like a great proposition and should be the standard. The issue I have with this bill is the broad scope and loose language it contains.

Contained in this bill are provisions to detain indefinitely any individual deemed a “possible threat” with no provisions to differentiate between enemy terrorist combatants taken from the battle field and American citizens simply exercising their first amendment rights.

This bill allows, at the discretion of the CIA, FBI, DHS or the President, for someone to be held indefinitely without charges or representation; basically without any miranda rights what so ever, whether they committed a crime or not.

You could be thrown into a deep hole in some secret prison for the rest of your life without breaking a single law and without ever having the ability to redress your accusers. There is no accountability built into this travesty of a bill to check abuse by the governing body of this Nation and no safe guards that it won’t be used for other reasons. The definitions contained within the bill are so vague and loose, anyone could be classified as an “Enemy Belligerent”.

Terrorists should be interrogated and imprisoned long enough to gain as much intelligence as possible. The ultimate goal and end result should be a military tribunal to protect our intelligence community and gathering methods and to ensure justice is done. Although they should not be given the same rights and protections as American citizens, with all the revelations that have come out over the last few months about the activities of the Dept. of Homeland Security, the propensity for abuse encapsulated in this far reaching and broad legislation is easy to see.

Here is a paragraph from a DHS report on domestic extremism.

Right-wing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly anti-government, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.

Quite a few of us could easily fit into the above definition simply for voicing a dissenting view. I vocally express my displeasure with the Federal Government right here on this website. Should they consider me a threat because of my discontent? Should I be detained for possible “future crimes” I may commit down the line? I’m here to inform and share my opinions and am grateful for the opportunity to do so because of the 1st Amendment. Lets not forget why we are here; the dissent and discontent of our Founders who would be turning over in their graves right now if they could read this bill.

I was very surprised to see McCain’s name on this bill. With all due respect and gratefulness to Sen. McCain for the great sacrifices he made for his Country, you would think he would know better than this. He spent the better part of six years as an Enemy Belligerent in the custody of the Viet Cong.

This bill is downright Orwellian in nature and unconstitutional on so many different levels. Where is the line drawn and who will decide who is and isn’t a possible threat? Where is the check to create balance in this proposed system? The American people simply MUST stand up against this extreme violation of the principals that this great Nation was founded on.

They have been chipping away at The Constitution bit by bit for the last 150 years. They just switched from a chisel to a jack hammer.

Political correctness backfires again in the public school system. Continue Reading

February 9th, 2010

The city of King, North Carolina recently declared a state of emergency the other day. This makes sense considering the sheer amount of snow that dropped on them and the ensuing mayhem on the roads. What didn’t make sense is their almost all out ban on personal possession of firearms. There is a law on the books in King that states that during a state of emergency declaration, no one may leave their private property in the possession of a firearm, licensed to carry or not and makes it a crime to have a gun in your personal vehicle. Here is an excerpt from WXII Channel 12 online.

KING, N.C. — Residents in King were fumed over the weekend after a state of emergency declaration restricted the sale of alcohol and the carrying of firearms in vehicles.

King Police Chief Paula May said she’s received hundreds of threats related to the restrictions, which banned driving from 12 a.m. Sunday to 5 a.m.

The state of emergency for King was declared by members of the City Council after Stokes County authorities also declared a state of emergency.

Under North Carolina law, May said, when a state of emergency is put into place that includes a ban on driving, the sale of alcohol and carrying of firearms in vehicles is also banned.

“I think there’s been some misinterpretation that I personally have declared martial law and taken away people’s right to bear arms and that’s erroneous,” May told WXII reporter Jermont Terry. “By law, statue 14-288.7 automatically went into effect. And that law which goes into effect when there’s a state of emergency prohibits the transportation, purchase sale and possession of firearms other than on one’s own premises.”

Click here to read the whole story.

This is alarming on a number of levels and brings to mind Hurricane Katrina in LA and the police going house to house confiscating privately owned firearms. I’m perplexed as to why city or state law is allowed to circumvent and contradict it’s residents Constitutional rights?! Short of declaring martial law, no agency has the right to suspend anyone’s rights or due process and it seems to me someone needs to challenge what happened in King. The law states that a state of emergency prohibits citizens from selling, purchasing, transferring – yes thats right, you can’t give it away to a family member – or possessing a firearm outside of your residence. It also banned the sale of alcohol and put into effect a curfew. So in other words, because of a snow blizzard, they throw the constitution away. This just smacks of an opportinuty for the NRA to file a BIG lawsuit.

I hope they do.

February 8th, 2010

While the Department of Homeland Security is ignoring red flags and allowing known terrorists to waltz into the United States on purpose to gain intelligence, they are also watching us very closely. When it was founded in 2002, DHS was supposed to be a central agency that monitored terrorist activity and responded to natural disasters on US soil. While that is their main charter, it has become more evident every day that they are now dabbling in a little domestic intelligence gathering as well. Actually more than a little when you see all the internal memos that have been leaked over the last year detailing who they view as a possible domestic terrorist threat. It seems they have taken this attitude one step further and are now monitoring peaceful protests, gathering personal background information on those protesting and distributing this information to local law enforcement agencies.

Today, the conservative news outlet CNS News reported that Homeland Security Collected Information on Wisconsin abortion activists on both the pro-life and pro-choice sides leading up to a protest at the University of Wisconsin and then sent the collected intelligence to the local authorities.

The U.S. Department of Homeland Security conducted a threat assessment of local pro- and anti-abortion rights activists before an expected rally last year, even though they did not pose a threat to national security.

The DHS destroyed or deleted its copies of the assessment after an internal review found it violated intelligence-gathering guidelines by collecting and sharing information about “protest groups which posed no threat to homeland security,” according to a department memo written last year.

The report was only shared with police in Middleton and with the director of the Wisconsin Statewide Information Center, an intelligence-gathering hub, according to the memo, which was signed by general counsel Ivan Fong and inspector general Richard Skinner.

It concluded the report was unlikely to “have any impact on civil liberties or civil rights” given its limited dissemination. But anti-abortion groups and the American Civil Liberties Union of Wisconsin on Monday both criticized the federal government’s collection of information on law-abiding protesters.

Read the whole story here.

This makes me wonder what else they’ve been up to and to what purpose their shenanigans really serve. National security is important to maintain and I have no problem with intelligence agencies doing what they do to maintain it within the confines of the Constitution. The actions of DHS seem too close to reducing personal liberty, though, and I would like to know who is monitoring them to ensure the 4th Amendment is not being violated. How far down the rabbit hole does this intelligence gathering really go and should the information be distributed to civilian law enforcement agencies without just cause?

A wise old man once said, “He who would trade liberty for some temporary security, deserves neither liberty nor security.” and I tend to agree with him. If only Ben were alive today, I think he would be less than pleased.

February 6th, 2010

The Council on American-Islamic Relations filed a federal civil rights complaint against Lancaster, Ca Mayor R. Rex Parris on Friday. The pro-Islam group contends that Parris violated the civil rights of people everywhere when he made the statement that he was  ”growing a Christian community” in one of his State of the City addresses attended by Christian ministers at an event he paid for.

I understand the importance of preventing government from endorsing one religion over another  but it seems CAIR is only worried about civil rights violations when involving non-Islamic references. To say Islam is the religion of peace and tolerance is the over statement of the century. Not surprisingly, FOXNews.com was the only outlet to pick this up.

LANCASTER, Calif. — A Muslim group filed a federal civil rights complaint Friday after a Southern California mayor remarked that he was “growing a Christian community” in a state of the city address last week.

In a letter to the U.S. Justice Department, the Council on American-Islamic Relations claimed Lancaster Mayor R. Rex Parris violated the civil rights of non-Christians and shouldn’t have used his official capacity at a city event to advance a particular religion.

The civil rights group also said Parris referred to an April ballot measure that would endorse prayer at city meetings without restricting its content, including references to Jesus Christ, as a way to “validate a Christian stance.”

Such a mixing of church and state is “unhealthy, unconstitutional and very divisive,” said Hussam Ayloush, executive director of CAIR in greater Los Angeles.

“The role of any faith, of religion in general, is needed as much as the role of government… Our concern is when the wall of separation is blurred,” said Ayloush, whose letter requested a Justice Department investigation.

Parris, who was elected mayor in 2008, said he made the comment in a speech to Christian ministers at an event he paid for and thought it was appropriate. He said he was sorry if anyone was hurt by the remark, which was not his intent.

“I think it is totally ludicrous,” Parris said Friday. “Something very dangerous is happening in America when a profession of your faith can end up in actual government hearings.

“All of us get to express our opinion wherever, whenever we want to, including opinions of faith, and that is what I did and that is what I will continue to do.”

So at what point are we going to recognize this for what it is? If a newspaper dares to publish a cartoon depicting Muhammad, a religious fatwa is issued calling for the death of the author. At the same time, no one within CAIR ever stepped up and stood to protect the civil rights of the two beautiful girls in the picture above. Because of a perceived slight that their father thought they perpetrated on him, they ended up being found brutally murdered in the back of their fathers taxi cab after one of the girls managed to place a call to 911 implicating her father before she died from 9 gunshot wounds.

17 year old Sarah and her sister Amina, 18, had a bright future snuffed out by what happens over 5,000 times a year within Muslim communities world wide. I’d like to see CAIR work on their internal issues with the civil rights of their own Muslim women who have been repressed and abused for hundreds of years. Something about a mote and a splinter?

There it is!!!

Ever wonder what attracts certain people to you? Ever wonder if there is something that you may do or say that seems to attract the kind of person you wouldn’t loan a dollar to? I had to excommunicate someone from my Facebook page today. It’s just Facebook and I don’t really know the guy but what gets me is that he thought I would be OK with him calling Kanye West a porch monkey and then going off about black NFL and NBA players going to jail as soon as they get a contract and a white wife. Huh?! What part of sick and twisted racial bullshit does he not understand? But what I am more curious about is what I did to send him the signal that I would even entertain those thoughts on any level? In today’s day and age, I have to wonder what makes people still think it is OK to hate someone based solely on their skin color. What makes these people think it is OK to teach their children this hate and perpetuate the problem?

I wear many hats from day to day. Some would say I am a republican and some would say I am a libertarian. Some would say, for instance Homeland Security, that I am a right wing radical. One hat I will never wear is the white pointy one pictured above. One of the things that attracted me to the GOP was the fact that it was and still is the party of Lincoln. The republican party was the party of abolition and civil rights, the party of life, liberty and the pursuit of happiness. The liberal progressive democrat party has always been the party of inequality and slavery. The party of welfare and placation. And yet we allow them to cram division down our throats by accepting that they will unite us through diversity. How does being different unite?! Racism is the most idiotic form of hatred there is. Differences, not just in skin color, is what makes our world an interesting place but emphasizing diversity just foreshadows what makes us similar and creates division. Forced diversity by the Secular Progressive movement has led to the division that exists today. Why do we concentrate on what makes us different, ignoring what makes us similar? Are we not all Americans? Are we not all members of the same race? The Human Race? It is considered by many in the black community a crime to “act white” but at the same time it is en vogue to “act black” by many young males in the white community. If we are to promote inclusiveness, should we not point out why we are all similar and build on our strengths collectively as Americans instead of trying to unify by singling people out according to their race? Shouldn’t we include everyone in the human race, not exclude some because of color on either side of the coin? At some point in time we need to come together or we will always be perpetually lost in this sea of diversity.

We should be considered diverse because of our individual strengths and weaknesses as human beings, not because we happen to fit into a racial or social demographic. We should be teaching our children to respect others and instill in them a love for humanity, the single most prevalent trait that we all share. If we don’t make race, gender or religion an issue and stress that ALL human being are created equal with natural rights set forth by the constitution, then future generations would have no excuse. The Sharptons, Jacksons and Pelosi’s of this world would love nothing more than to promote “racial diversity”. I think it’s time we rise above.

What do you think? Leave a comment below.