Last week, I left a comment at the ADF's blog in response to a post by Jordan Lorence about judicial activism that was apparently written in response to me (go here, scroll down to my first comment). My comment said:
Simple yes or no question: was Loving v Virginia correctly decided or was it "judicial activism"? It certainly fits your criteria. There was a long tradition of miscegenation laws going not only back through American history but even back to the English common law. No court had ever struck them down before; indeed, innumerable courts throughout the country had upheld them. The equal protection clause basis for the ruling was explicitly denied by those who framed the 14th amendment, who very clearly said that the wording of the amendment was not intended to overturn anti-miscegenation laws. No court had ever recognized a right to interracial marriage before. So a clear case of judicial activism, right?
I got no response. So when I saw his next post, this one on Justice Scalia, I left this comment:
I asked this question on an earlier post but got no response, so I'll ask it again here. Was Loving v Virginia an example of judicial activism? If not, why not?
Still no response. And by now, he has posted yet another post, so it's not as though he's just off doing other work and not paying attention to the blog. Besides, all comments require approval before being posted, so someone there, most likely the author of the post, has to see them. So it certainly seems odd that he hasn't answered the question. Will he do so? Stay tuned. In the meantime, take a look at his latest post, this one about the 7th circuit case that I've already written about. I think he's playing a bit fast and loose with the facts here. He writes:
Piggee gave two Christian evangelistic pamphlets to a student she perceived to be a homosexual. She placed them in the pocket of his smock, asked him to read them and invited him to discuss them at a later date. The two pamphlets state that the Bible regards homosexual conduct as sinful. The student was offended and filed a complaint with the school authorities.
But this is glossing over the reality of those pamphlets, which I linked to in my earlier post. They were Jack Chick tracts, which means they were exactly what you would expect - ridiculous, simplistic and utterly idiotic and offensive. If they had just said what Lorence claims they said, it would be harder to make a case for them being offensive. The first tract, Doom Town, accuses gays of intentionally tainting the blood supply (and calls this "cold blooded murder"), of being so "filled with hate" that they'll "tear to pieces" anyone who preaches to them, and of raping children.
The second tract, Sin City, accuses gays of trying to kill those who protest gay pride parades (I know of many people injured or killed by anti-gay fanatics at such events, most recently several men in San Diego in July where six marchers were beaten and stabbed, but I know of no cases where an anti-gay protestor was harmed), it accuses the police of nearly beating to death anti-gay protestors (I know of no such instances of that ever happening anywhere), and it says that gays are demon-possessed.
So the reality is that these pamphlets did not just say "the bible says homosexuality is a sin". They were highly inflammatory tracts full of false and malicious accusations against gays in an attempt to demonize them. Gosh, I can't imagine why a gay student would perceive that as harrassment or why a college would tell a teacher not to inflict such slanderous ridicule on a student, can you? Lorence then goes on to argue:
The school designed this student clinic specifically to mimic a real-world hair styling place of business. Are we to believe that people who work at a beauty salon only talk about hair styling, and nothing more? That the school uniformly enforced this severe restriction on conversation topics while on the floor? I find that hard to believe. Every time I have been to a barber, the employees and customers talk about a wide range of subjects. Barber shops and beauty salons are legendary for this. If the school allows teachers and students to engage in vigorous debates on upcoming political elections, or whether the Chicago Bears will defeat the Minnesota Vikings in their next game, etc. then the school must have a stronger interest in censoring a teacher than just arbitrarily deciding that Piggee was to talk about cutting hair and nothing more because someone was offended by her views.
An absolutely absurd comparison. If the university doesn't prohibit talking about football games they can't stop a teacher from handing out vile and hateful anti-gay material to gay students? Did he make that argument with a straight face? No company could or would tell an employee that they can't ever talk to any customer about anything other than business, but surely they can order an employee not to hand out repulsive anti-gay tracts to any customer they think might be gay. Doing so jeopardizes their business.
And to a college, students are their customers. Why would a gay student go to a college that allows their instructors to accuse them of being demon-possessed, child-molesting murderers, particularly during class time? I'm sorry, but this is a perfectly reasonable restriction that the college placed on her and it certainly isn't necessary for them to prohibit any discussion about any subject other than cosmetology in order to justify it.
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I can't fathom how you actually read that garbage willingly, I'd lose my mind. I suppose someone has to debunk their horrible logic. Keep up the good work, you brave man.
Ed, I do believe there was at least one case of gay mob violence in DC a few years back, but it is the only one I have ever heard of. In this instance, IIRC, a couple of redneck yahoos decide to "bash some fags" outside one of the most popular gay bars in DC. They were, no surprisingly, surrounded by other patrons of the bar after they attacked someone leaving it, and were injured when the crowd "restrained" them for the police. This can hardly be an example of intolerance or random violence, however.
No company could or would tell an employee that they can't ever talk to any customer about anything other than business, but surely they can order an employee not to hand out repulsive anti-gay tracts to any customer they think might be gay.
No, but a large part of why I fired an employee of the company I worked for back in Michigan was becasue he wouldn't stop talking about business with the customers - not such a huge problem under many circumstances except that he had a tendency to talk about things he knew little to nothing about.
We did have a strict policy prohibiting us from discussing politics or religion with the customers. Because the bulk of our jobs came from word of mouth (my boss hadn't "advertised" in more than 5 years when I started working for him) and pissing off customers is a bad idea in any business, he just had a blanket rule of avoiding controversy in coversations with our customers.
This is a completely absurd agrument - Of course the Bears will beat the Vikings. Have you seen the way Grossman is playing? And the Bears D will be able to shut Chester Taylor down. This is a no brainer.
I still don't get it. If you really want to make the case that you have a consistent view against "acitivist judges" then why NOT say that Loving was wrongly decided. Doing so does not necessarily make you a racist. It's perfectly rational to argue that good outcomes that we all might w3ant are not what judges should seek, but rather carrying out the law. In fact, we all accept that in all sorts of other venues: if the police taint evidence and a real killer gets away, that's just how the law works.
But these guys don't have the courage of their own convictions. So they
This is the first I've heard that the framers of the 14th amendment had explicitly said it would not apply to miscegination. Do you happen to know where I could find out more?
Thanks.
Ahcuah wrote:
You would need to to back to the original debates over the 14th amendment. Those who opposed the bill constantly argued that it would lead to interracial marriage, which was regarded as an almost universal evil at the time, even by supporters of the 14th amendment. This was the standard argument against almost every reconstruction bill, from the Freedmen's Bureau Bill to the Civil Rights Act to the 14th amendment (which essentially wrote the Civil Rights Act language into the constitution). Not a single advocate of the 14th amendment believed it would override miscegenation laws, and they all supported such laws. The notion of interracial marriage at the time, even among black legislators, was that it was so unconscionable that no one would ever propose to do away with such laws.
Ahcuah, as Ed says, you need to look at the original debates over the 14th amendment. It just so happens that those are on-line. The Congressional Globe for the 39th Congress is available here. Check out the first session, pages 322 and 420, for example, to see Senator Lyman Trumbull's opinion on the matter.
The fact that the original framers didn't intend the 14th amendment to overturn the anti-miscegenation laws was used as a defense of those laws in courts, particularly in Loving v. Virginia. So you could download the oral arguments of Loving (available here) to hear the Assistant Attorney General of Virginia argue that the framers' intention regarding the miscegenation laws. That part should start around 58:38 and go on for several minutes.
Hope that helps.
Thanks, Ed and Skemono.
My main knowledge of the 14th comes from Irvin Brant's "The Bill of Rights" (cited by Thurgood Marshall in his dissent in Kelley v. Johnson), and I didn't remember his saying anything about miscegination. Most of that was about Bingham and Bingham's intent that the 14th incorporate the Bill of Rights.
I also have Amar's "The Bill of Rights" but haven't made it to that chapter yet; a quick scan there also didn't find anything relevant.
Again, thanks for the help. Always happy to learn.
C'mon, we all know that Loving vs. Virginia was an activist decision based on even the slimist of criteria. We also all know that the notion of activist judge means a "decision with which I do not agree" as Ed puts it or something, so these people will never regard Loving vs. Virginia as activist even though by their definition it is...it has to be. It would be suicidal to start lumping Loving vs. Virginia, or Brown vs. the Board of Education with Roe vs. Wade...because well you would look like a racist, hillbilly, buffoon if you did.