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Reply #37: Oy. Look up the definition of "strawman" and get back to me. [View All]

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eyesroll Donating Member (1000+ posts) Send PM | Profile | Ignore Thu May-28-09 10:49 AM
Response to Reply #35
37. Oy. Look up the definition of "strawman" and get back to me.
The ACLU worked in favor of the Klan rally not because they support the Klan, but because their rally was legal.

Sotomayor ruled in favor of the gag rule not because she supported the gag rule, but because it was legal.

If a Sotomayor court ruled in favor of the Klan rally, would she then be supporting the Klan?

I am making an analogy. It is imperfect. It is not, however, a strawman. Your "if don't protect women, who will?" question gets perilously close to strawman territory, though.

My point being: Judges are in a difficult position. They are asked to rule on something's legality, under the existing Constitution and existing legal structure we have. Many crappy things are still constitutional, and judges are duty-bound to uphold their legality. They're not allowed to overturn a law simply because it's stupid or counter-productive. In the gag rule case, Sotomayor was relying, in part, on Supreme Court precedent--something an appellate judge is also duty-bound to do.

(This is why some LGBT groups are wary of a Supreme Court battle over marriage right now, and would prefer to wait for a more sympathetic Court--if the Court says it is perfectly constitutional and not violative of Equal Protection or Due Process for states to ban same-sex marriage--that gay and lesbian people aren't barred from marriage because they're free to marry members of the opposite sex, and no there's no parallel between this and interracial marriage-- then that's that, and the federal courts are bound by that precedent.)

**The devil, as always, is in the details, and that's where experience and, yes, empathy, and, yes, politics come in. (For instance: Murder is illegal, period, and nobody argues otherwise. The details, however, complicate things--is abortion murder? Is the death penalty? For that there a parallel between same-sex marriage and interracial marriage? Is sexual orientation a protected class, like race? If we had easy, consensus answers to those questions, we'd have clear policy, but we don't.)
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