The Giant Slalom and the Downhill are separate races the Downhill is longer and has fewer gates than the GS which is longer and fewer gates than the Slalom. In the olympics now there is a Super Giant Slalom which is longer than the Giant Slalom but shorter than the Downhill and fewer gates than the GS but more than the Downhill.

Let's see Sandy baby stay awake for this argument. Maybe she'll tighten up enough to finally draw a distinction - but maybe not.

David:

As I recall, Utah was admitted to the Union on the express condition that it make polygamy illegal. I'm curious what effect that might have on a Utah state court's jurisdiction to rule on the issue.

A consenting 13-year-old?

Based on Hawaii rulings, I'd say, F.A., that the admitting act would control. Hawaii was admitted as a Territory through the "Organic Act," and there have been several cases in which that was found to be controlling.

Harry:

Anybody who goes around chanting "sex is good, sex is good..." but then thinks he can control the parameters through the doctrine of legal consent or obscure 19th century constitutional documents is in fantasy land.

Thirteen year olds are quite capable of consenting, as a question of fact, and the case could be brought in another state.

The simple answer is that the court is bound by the state constitution unless it conflicts with some federal law, be it Constitutional, statutory, regulatory or precedential. In other words, if the Utah constitution outlaws polygamy, then any equal protection or due process provisions of the state constitution cannot overrule that express provision. (Well, "cannot" is too definate, as a court could hold that an after-enacted state version of the 14th amendment would overrule that clause, but this is very unlikely.) If polygamy is outlawed in the act of admission, as I think it is, then no state law, constitutional or otherwise, could overrule that ban.

But, as I understand it, the Utah man is making a federal constitutional claim, which would overrule any provision of the state constitution or the admitting act. He's going to lose, for now, but it's only a matter of time.

But this does remind me that the various federal agencies are free for their own purposes to define "marriage" and the benefits of marriage are being available only to married couples consisting of one man and one woman.

But wait, didn't people like Andrew Sullivan promise us that gay-marriage could not be used to promote polygamy?

Shocking.

What amazes me is that the members of SCOTUS (excepting the dissenters) either didn't see this coming, or didn't care.

Why, Peter, are you closing down the legislatures?

When I was 13, one of my playmates got married. It was legal in Georgia at the time, but as the state got citified, they raised the age.

Hawaii just raised it from 14 to 16 about a year ago. We're getting citified, too.

Harry

No, I'm not. But the courts are.

I thought what heterosexual couples did in the privacy of their homes was already no business of the government.

So why isn't that the start of the slippery slope?

After all, it is heterosexuals we are talking about here, isn't it?

Also, why isn't freedom of religion the start of that same greasy slide?

Jeff:

Do you think most posters here believe that how hetero sex is practiced and promoted is an entirely personal affair that society has no interest in whatsoever? And do you think we deny there is any connection to gay life, paedophilia, etc. etc.? Jeff, is the problem you don't understand what many are saying here or you don't believe they mean what they say?

With respect to religion, greasy slide to what? Oh, let me guess, sectarian slaughter and the Inquisition? It has been many hundreds of years since religion in the West was viewed as that kind of objective, collective absolute, and it never has been seen that way in North America. Why don't you seek out America's most observant Christians and Jews and ask how many believe their faith should be spread by the sword. That is as absurd as my saying I oppose American democracy because the people might rise en masse one day and kill all the wealthy (which was believed and said two hundred years ago. One can make a Guinn-like logical, abstract argument that that is a real threat. Elections are just the start of a very greasy slope!).

No one believes anymore that a given faith should be a public absolute. No one, not even Pat Robertson. So why do you persist in taunting as if they do? However, you will find lots who preach that frequent, varied and unfettered sex is the sine qua non of a fulfilled life.

I can understand those who reject faith, but I simply can't get my head around people who despise and fear it as you do. In 2003 in America?

Jeff -- You're right, that was the start of the slippery slope. To the extent that the start can be pinpointed, it was probably Griswold.

Peter:
It seems everytime this subject comes up, polygamy is the first word to hit the screen.

Since you are Canadian, you might not be so familiar. But if you were to do a word association test in the US, the first thing to pop out of most people's mouths after hearing the word "polygamy" would be "Mormon." Not gay, not Griswold, Mormon.

If you believe in religious freedom, than the question of polygamy being permissible is already settled. That is what I mean by religion and the greasy slope.

You do believe in freedom of religion, don't you? Divine revelation couldn't possibly be wrong, could it?

So, sorry. No hatred or fear there. Just the Book of Mormon.

Oh, one other thing. Just how interested are you in what the neighbors do in their bedrooms?

FYI: Pat Robertson declared 9/11 to be God's payback for all the things of which Pat Robertson does not approve.

David:
Do you want the government making your birthcontrol decisions for you? If so, what decisions do you reserve for yourself? Talk about slippery slopes...

Jeff --

Of course I don't want the state making my birth control decisions for me. It's a bad idea. But the Constitution doesn't outlaw bad ideas. Plus, Connecticut wasn't enforcing the statue challenged in Griswold, because the state knew that it was a dumb idea. Eventually, they would have got around to repealing the statute. The court acted before they got around to it, and the cure -- the abrogation of the people's soveriegnty -- is much worse than the disease.

As for your questions for Peter, of course (claimed) divine revelation can be wrong. It's been wrong for the last, oh, five thousand years. Besides which, the Mormons (actually, they prefer to be called Latter Day Saints and feel that Mormon is a slur) now abjure polygamy through divine revelation.

David:
How long would the US suffered the stain of Jim Crow laws and vicious segregation if we waited around for state legislatures?

What is the cure when one group of people through tyranny of the majority are abrogating another groups inalienable rights?

I know most LDSs now abjure polygamy through a divine revelation that rendered the previous divine revelation inoperative.

The problem is, not all of them buy that second revelation. Within the context of religious freedom, there is no dictating which revelation is wrong.

So. Either you either grant religious freedom and allow polygamy, or decide that it is possible to materially determine the truth value of divine revelation.

I'm sure glad I don't have a dog in that fight.

Peter, I can name you several preachers in my county who do, in fact, preach that their faith should be a public absolute.

Harry:

You live in a very interesting county. Are those preachers coming out against democracy and elections?

Jeff:

OK, I confess. All my fussing about gay marriage is just a cover. Controlling what goes on in my neighbours' bedrooms is indeed my ultimate objective. I dwell on it constantly and it gives me an exquisite, if somewhat tortured, thrill to know I have been chosen to do G-d's work and earn eternal paradise. Unfortunately, David seems to feel the same way, but he is Jewish, so I will have to kill him. Pity, as I rather like him, but that's divine revelation for you.

Polygamy is in the news on the heels of the gay marriage issue, not in response to any freedom of religion case. As you clearly haven't a clue how to deal with this and don't want to try, it appears your strategy is to ignore it and give us all theological lessons instead. Neat trick.

How long would the US suffered the stain of Jim Crow laws and vicious segregation if we waited around for state legislatures?

This is definately your best argument, but it only goes so far. First of all, I can't seem to remember the Supreme Court's decision in Lincoln v. Davis outlawing slavery. It does make a difference that we fought a war and passed three constitutional amendments to put down slavery and guarantee blacks their civil rights. I think the courts' record in enforcing those rights is more shamefull than otherwise.

But this gets to a very interesting modern phenomena. All groups want to show how their experience is Just Like Being Black. Today, as Eve Tushnet says, gay is the new black. That blacks tend to really dislike this (not just from gays, but from everyone) on the reasonable ground that their experience is sui generis, is one of the things that might drive at least a substantial minority to the GOP.

What is the cure when one group of people through tyranny of the majority are abrogating another groups inalienable rights?

Martin Luther King's answer was, "convince the majority that that's what's happening."

I know most LDSs now abjure polygamy through a divine revelation that rendered the previous divine revelation inoperative.

The problem is, not all of them buy that second revelation. Within the context of religious freedom, there is no dictating which revelation is wrong.

This is an interesting question. The general response is that the courts can determine whether the belief is sincere, but not whether it's theologically sound. It's not a bad response, except that it's unworkable in practice. The practical answer, it seems to me, is that religions have freedom, but not cults. That of course has it's own problems. (I think I've mentioned this before, so forgive me, but Michael McConnell once accused me of believing that the First Amendment only protected those religions that were recognized as such in 1789. He was joking and it's a pretty funny joke. But the more I think about it, the more attractive I find it.)

So. Either you either grant religious freedom and allow polygamy, or decide that it is possible to materially determine the truth value of divine revelation.

I have no doubt that legalized polygamy is coming down the pike. In fact, in December 1999, I sent some friends, by way of a New Year's greeting, a list of predictions for the coming century. That was one of them.

Jeff:

A cup of strong coffee and David's thoughtful post have cured my early-morning snarkiness.

You seem to have a very hard time believing that one can hold strong beliefs and principles and yet not wish them to be taken to extreme logical conclusions and applied society-wide. The great conservative thinkers generally understand that life is made up of competing and logically inconsistent impulses and virtues and that great evil can arise if any one of them is allowed absolute free rein, no matter how good it is in and of itself. Great art struggles between familiar form and original creativity. Good law, general predictability and individaul justice. Successful family, traditional atavistic duty and fierce individualistic love. Good politics, order and freedom. Noble faiths are demanding of their followers and accepting of others. Take one side of each of the above without the other and you will have big problems. All these assertions come from human experience and a no-nonsense reflection on human nature, not logical deduction or scientific analysis.

What strikes about David's post is his appreciation that these issues are subtle and should be addressed subtly without starting with a sweeping ideological principle or "scientific truth" and being enslaved by it. But you seem locked into abstract declarations of "freedom" or whether something is "innate." (If gayness were proved to be a matter of choice, could we imprison them all? I would be horrified, but what would you say?) This seems to be why you are so preoccupied with slippery slopes.

I certainly believe it is possible for a society
to tolerate gays and possibly even let them marry without worrying about polygamy, etc. But not on the basis of the thinking of the Mass Supreme court or the gay lobby or the Playboy philosophy.

Peter, you should spend more time in Assembly of God meeting houses.

Why, Harry, you old evangelist, you.

Seriously, are you pining us with the views of the fruitcakes? We would never do that to you evolutionists.

David:
Thanks for a very thorough and thoughtful reply.

I may have finessed my point too much, and am at risk of needlessly repeating it here. When a case comes before the court alleging Constitutional infringement, is the court only allowed to decide in favor of the plaintiff if the majority finds it OK?

Admitting upfront being burdened by my profound ignorance of matters legal, it seems that the courts are the primary bulwark against tyranny of the majority, probably the single greatest weakness of democratic government. Despite the laws and the amendments, court decisions contributed significantly to gutting Jim Crow laws. One might say the same for living in a society where women are allowed to live their lives based on their choices and merits, instead of being chained to some particular construct of what their gender allows.

The African American experience is truly sui generis. But the problem they faced is not. To much smaller degrees, women and Jews have faced it, as well.

The reason I brought up Mormon polygamy is that it, if you are worried about polygamy, it is the fundamental conundrum. There is no way to discern cult from religion. Well, actually, there is. Through material means. But using material means to determine the truth value of divine revelation is a fools errand, one that I would certainly never advocate.

Therefore, fussing over gay marriage as the start of that greasy, precipitous skid, is (mixed metaphor alert) barking up the wrong tree.

(It is a good thing for OJ that your criteria for protecting religions wasn't widely adopted a couple millenia back.)

Here is my bet: legalized polygamy will have all the impact that allowing pigs to fly will. None. Laws or not, women won't choose polygamous marriages, and pigs still won't fly.

Peter:
I am not preoccupied with slippery slopes. Where others see the slick plummet, I see an asphalt parking lot. Or, as regards Mormon polygamy, the slope, such as it is, already well and truly there.

If homosexuality were a matter of choice, then it might make sense to imprison gays, since they could persuade others to make the same choice. Drug taking is a matter of choice, and we imprison drug dealers because they encourage others to make that choice.

But if it isn't a choice, then that reasoning goes by the board. The question one must ask then is: if a birth defect, no matter how repellant you--and I--find it, is our reaction formation sufficient cause to deprive someone of their inalienable rights, even if the majority thinks it is OK to do so?

Apologies for the long winded reply.

Jeff --

Never apologize for legal ignorance. The Constitution should be understandable to any well-educated citizen. It would be, if the Courts would only stick to what it actually says.

And that is the answer to your question. When a constitutional challenge is made, the court's only job is to look at the constitution and see if the law complies with the plain meaning of the constitutional language.

As for tyranny of the majority, I have no idea what line you are drawing between tyranny, on the one hand, and plain old law on the other. I don't like speed limits and ignore them more often then not. If I get stuck for it, though, I don't feel I'm being oppressed. Someone always gets to decide what the fundamental laws are, and that someone is either going to be one person, a minority or a majority. Although I'm no Benthamite, I don't see how it can be argued that either of the first two is more moral than government by a majority.

For the first 90 years after the civil war, the courts were every bit as much responsible for Jim Crow as any other part of government. Brown was all well and good, but saying that "here's a monstrous injustice we've been going along with for almost 100 years and you've got to cure it, with all deliberate speed" just isn't all that heroic. The Civil Rights Act in '64 was much more important in actually ending Jim Crow and segregation.

I think that the situation of gays, Jews, women, etc., are fundamentally different than that of blacks. There are simply no analogies to be drawn. In particular, the idea that the position of black slaves and their white mistresses were in some way the same is, if you think about it, despicable. Society was always a consensual construct agreed to by men and women. When, sometime in the '50s and '60s, a majority of women decided they wanted to change society, society changed -- more or less on a dime. There's just no comparison with black America's 400 year fight for dignity.

Not that that hasn't run its course now, too.

Anyone else I can offend? Oh, yeah, lots of Jews are just whiny crybabies. And don't get me started on Canadians. Good thing no one reads the comments this far down, eh?

Where was I? Oh, yeah. I remember. I hope you're right about gay marriage. I hope you're right about polygamy. I hope there is an effective line that can be drawn to rule out pedophilia and beastiality. I'm not optimistic, however, and I don't think that the majority has infinate patience.

Jeff:

From your remarks I take it that you would tell a gay friend that, as long as science substantiates that his gayness is innate you will fight to the death for his freedom and absolute equality, but the minute new scientifc discoveries show it is not, you may put him in the clink. Yes?

Peter, Assembly of God is by far the biggest church in the county. Fruitcakes or not, they're the vanguard of Christianity around here.

One of the women in my wife's book club is minister at the neighborhood Episcopal Church. She thought the gay marriage decision was wonderful (told one our reporters so, for quotation).

There's a range of opinion among Christians on the issue. Just as there is on divorce.

That ought to induce a little squeamishness into the discussion, oughtn't it?

Harry:

I assure you I was not referring to the Assembly of God, of which I know absolutly nothing. I was talking about the preachers you said wanted to impose a Christian theocracy, without knowing anything more about them than what you have told me.

And that's why you should listen to some Assembly preachers. They're out there doin' what you say nobody's doin', and they get huge crowds.

I think you Christians ought to take Christianity at least as seriously as I do.

Harry:

Well then, let's whack them. If they are giving Christianity a bad name, then I'm in the mood for a little intra-sectarian slaughter.

David:
I'm reasonably well versed in what the Constitution says. But every Constitutional case coming before a court requires a decision of some sort as to what it means. On top of that, there is a fairly widespread civil religious belief about the Constitution that is often not at all connected with Constitutional text.

The easiest example is freedom of speech. Before reading things you had posted here, I had always presumed anything prohibited to Congress is prohibited to any other level of Government. As it turns out, that presumption is wrong.

But the quasi-religious belief behind it won't go away, for me, or I suppose, for virtually anyone you might meet, nearly regardless of how well versed they are.

Similarly for "privacy rights." There is almost certainly no legal basis for taking the Constitution and the Declaration as an indissoluble pair. But for those who see the latter as justification for the former, then privacy rights are implicit to the whole enterprise.

Your citation of speed limits is telling. Many speed limits are a tyranny of the minority, provide government the power to randomly impose a time tax, and encourage corruption of the legal system.

I can't provide a dividing line between tyranny of the majority and plain old law on the other. But depriving a minority group of equality before the law, despite their ability to adhere to the functional requirements of the law, would seem to be one litmus test.

Which is how I equate the kind, if not degree, of the situation Jews and women faced. If a Jew is unable to buy a house in a certain neighborhood, despite the ability to conform to all the functional requirements of home ownership, then the situation the Jew faces is the same as the black, even if their respective histories are different.

My impression of beastiality and pedophilia is the same as polygamy--those pigs won't fly, and the issue of gay marriage has not the first thing to do with them.

Peter:
No. But since I take the case for innateness to be so overdetermined as to be beyond doubt, then I have to admit I haven't given the prospect any thought.

But if that were to turn out to be the case, then almost certainly upbringing would be at fault. Which would make gays the victims, and parents the criminals. Are you going to throw them in jail?

I think Harry is concerned for your welfare in the event such religious belief were to get hold of government power. After all, the first to go might be a heretic like you...

Harry and I are safe, at least according to OJ. We'll just spinelessly sign up to whatever sectarian loyalty oath comes down the pike.

Jeff:

Do not warning bells go off in your head when you start arguing that "for those who see" something is "implicit"? Others, after all, see differently.

I can't provide a dividing line between tyranny of the majority and plain old law on the other. But depriving a minority group of equality before the law, despite their ability to adhere to the functional requirements of the law, would seem to be one litmus test.

Which is how I equate the kind, if not degree, of the situation Jews and women faced. If a Jew is unable to buy a house in a certain neighborhood, despite the ability to conform to all the functional requirements of home ownership, then the situation the Jew faces is the same as the black, even if their respective histories are different.

The reason, Jeff, that corresponding with you is frustrating, in a way that Harry, et al., are not frustrating, is that you are so close to enlightenment that sometimes I can't even see the barrier, and then sometimes you say things like this.

Your position, if I understand it, is that the founding documents imply a right of privacy so strong that we can't stop a woman from killing her fetal child because it has a cleft palate, but is of so little force that we can make an antisemite sell his home to a Jew, despite the explicit deference paid and protection granted in the founding documents to the rights of property and contract. The child only has that one life; the Jew can buy any of a thousand homes.

Can't you see that this is just your personal preferences elevated to constitutional status? Not that you aren't a great guy and if you want to be philosopher king its all right with me, but shouldn't I then be a little concerned that the essence of your personal code is that is in no way extrinsic to you? And isn't it a little much to refer to this system as "democracy"?

What if the woman (like most of us when we do something we know is questionable) is just waiting for someone to tell her what she is doing is wrong and that she can't be both a good person and an abortress? What if the antisemite really, really, really doesn't want to sell his home to a Jew and is scarred for life by the knowledge that where once his proud Christmass tree stood, there is now a Hanukah bush?

Anyway, my point was not that discrimination against Jews is different in kind from discrimination against blacks. It is that the state bears responsibility for discrimination against black but not for any other kind of discrimination. Therefore, interference with private transactions and attempts to remake the very thoughts of the populace, which are tyrannical when applied to anti-Jewish, anti-Muslim, anti-Gay and anti-female discrimination, are tolerable when applied to anti-black discrimination. However, from a policy standpoint, I think that we have now reached the point at which the whole rehabilitative apparatus is doing blacks more harm than good and thus should be shut down.

David:
Right to privacy is different from equality before the law. The Fourth Amendment, to my inexpert eye, certainly implies some privacy right. Moreover, the whole American enterprise relies on strictly limited government, which is anethematic to Government that is allowed to intrude on your most personal decisions.

I fully agree with you that the case you cited is abhorrent. But how do you encode those decisions into law, when the object of your law is not a separable person? I think all available means--short of government intrusion--should have been used to dissuade her. But since there is utterly no societal agreement on where to draw the legal line, then trying to craft such a law would be folly.

I think you are completely correct regarding private transactions--my position was very inconsistent. Privacy rights should extend to them as well, while realizing that freedom of choice--that is, freedom to discriminate-- will sometimes lead to unwelcome outcomes.

The example that occurred to me first, but that I did not use, was limited solely to the governmental sphere: it is wrong to stop, say, women from being, pilots, simply because they are women, and regardless of their flying ability. But that is a far different issue from the one I raised.

BTW: apologies for being frustrating.

You say that, but you don't mean it.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Why can't it just mean what it says?

David:
If it means what it says, then no agency of the government is allowed inside my house without probable cause.

Therefore, any conduct that exists solely within my house leaves no trace outside with which to assume probable cause of anything.

Hence, to my unlawerly mind, a presumption of privacy.

Jeff:

Congratulations. With one post you have accomplished the impossible. You have made me a worried defender of the gay community.

Jeff, surely you don't believe any scientific "truth" about human nature and behaviour is immutable and resolved for all time. Can you name one scientific discovery of this sort of the last hundred years that has never been challenged? They are more like wide ties, coming and going at fairly predictable intervals. If cutting edge scientifc thinking on whether gayness is innate is the only thing making a difference between complete acceptance of gay behaviour and absolute legal equality on the one hand, and seeing them as defective moral failures requiring mandatory punishment or treatment on the other, their future is very unsettled. I think you are getting very close to eugenics.

Peter:
No, I don't.

I take the case for the innateness of sexual orientation as settled in the same way I take cigarette smoking as causing certain diseases settled.

Regardless, the question is there, and one doesn't get to choose both ways.

Based on the available evidence, I choose one way. And that choice means to me that since there is no choice over sexual orientation, there is also no moral component to it.

Besides, you didn't notice my emphasis. If they became gay through upbringing, then they are victims, are they not?

Finally, my position can't possibly be tied to eugenics, because homosexuality almost certainly has nothing to do with genes. Phenotype and genotype are not the same thing.

Jeff:

"Besides, you didn't notice my emphasis. If they became gay through upbringing, then they are victims, are they not?"

Sure, just like all those bank robbers we let walk 'cause they weren't raised right. (Boy, Jeff, I hope they never find out that crime is innate.)

No, they are citizens like you and me with rights and responsibilites. They have always been among us and always will. Western civilization has always found ways to accommodate them and should continue. They have made terriific contributions in many fields and also disturbed us at times. They deserve more than our bouncing back and forth between pretending they are what they are not and insisting we can make them all just like us and should try. We deserve more too.

All of this is true whether they are born that way or not.

That's funny. I didn't realize that homosexuality steals from others.

Jeff -- There is nothing in the 4th Amendment that limits, or suggests any limit on, the subject matter that Congress can criminalize. It just says that any search for evidence of a crime must be reasonable and that warrants must be supported by probable cause. Certainly privacy (abeit defined somewhat unusually) is a concern, but not so as to impinge on the law's substance.

I am also annoyed (not at you, but since you raised the 4th, I'll dump this in here anyway) that when it comes to the 4th, leftists suddenly become strict constructionists and enamored of history. The use of the term "unreasonable" means that searches must be put into context; what is unreasonable in searching for evidence of tarriff evasion in 1804 may well be reasonable in looking for evidence of a dirty bomb in 2004. And yet, when it comes to the 4th, we seldom here about the virtues of a living constitution.

David:
This is why I caveat the heck out of any comments I make regarding law.

Excellent reply, as usual.