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Post by cestlefun17 on Aug 9, 2011 23:32:21 GMT -5
In this circumstance this definition of "arbitrary and capricious" is more relevant (this definition comes from the United States Code):
"..an action not based upon consideration of relevant factors and so is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law." 5 USC. 706(2)(A)
In other words, the rational basis provided by the government must match what the law actually does. So let's take the example I provided several pages back about the Rhode Island billionaire. While Rhode Island's rational basis for passing this law may be to "preserve society's commonly held conception of the demarcation between familial and romantic relationships" (like any other law against incest), what the law does does not actually reflect this, because 1. Not recognizing out-of-state marriages between fifth cousins has never been against the public policy of Rhode Island (showing the capricious aspect: a sudden and unexplained shift in policy), 2. Closer relationships (such as fourth cousins) are not affected by the law, which is nonsensical: if a 5th cousin is close enough to be called family, then so should a 4th cousin (showing the arbitrary aspect), and 3. It can be demonstrated that an ulterior motive is at play due to the unusual timing of a highly publicized proposal and the passage of this law (the arbitrary and capricious aspects cause undue harm to someone).
To win the arbitrary and capricious test in a real-life example of an incest law, you would have to show how a law banning incest and incestuous marriage does not satisfy the given basis of "preserving society's commonly held conception of the demarcation between familial and romantic relationships." You keep saying that "'It's tradition' is not reasonable" but this just isn't the case under the rational basis test. Our system of law, being a common law system is highly deferential to precedent, or in other words, "This is what we've done before, so this is what we will do now."
Unless you can show that laws that burden incest practicers demand a higher level of scrutiny, then it's not the same.
The burden of proof is on the complainant to prove that a heightened level of scrutiny is warranted, not on the government to prove that rational basis is sufficient.
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Post by Admiral Lithp on Aug 10, 2011 0:17:43 GMT -5
This is just you saying that tradition can't be overturned because it's tradition and it's not right to overturn tradition.
Every time I think you can't form a tighter circle with your words, you prove me wrong. I...GUESS that's something....
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Post by Amaranth on Aug 10, 2011 7:29:51 GMT -5
'The important thing is, a British couple who were having sex should follow my definitions of marriage even if they're not married, and follow my American traditions because I said so, dammit!
Also, incest is bad for reasons I cannot articulate, it's significantly more risky even though I cannot back that up and in most cases that has been shot down, and it's totally unlike the "gays are bad" argument except when I feel like it.
Also, noodles are part of a chinese plot to raise Cthulhu.
WHY am I the only one making sense here?
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Post by cestlefun17 on Aug 10, 2011 8:40:15 GMT -5
I said in the beginning that I believe that we all have a responsibility to comport ourselves in a responsible and dignified manner, and that society has the right to set the boundaries of what constitutes such behavior (so long as these boundaries do not contradict the supreme boundary — the Constitution). The American system of law (which I am a big fan of) supports this notion.
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Post by Amaranth on Aug 10, 2011 9:00:43 GMT -5
Except when it doesn't, but WHY LET THAT GET IN YOUR WAY.
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Post by cestlefun17 on Aug 10, 2011 9:04:00 GMT -5
Except when it doesn't what?
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Post by Amaranth on Aug 10, 2011 9:18:11 GMT -5
Support this notion. Please try and keep up if you're going to cintue trolling us.
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Post by cestlefun17 on Aug 10, 2011 9:22:10 GMT -5
How does it not support this notion?
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Post by Admiral Lithp on Aug 10, 2011 10:44:50 GMT -5
"Comport ourselves with dignity" de facto is against the Constitution, because laws are only supposed to exist to protect the freedoms of others, not to dictate how they live, which is the exact opposite of freedom.
Moreover, your claim that the US supports you comes from a quote from a Supreme Court Justice about a case that happened OVER 100 YEARS AGO. You know, a little over 10 years after we finally stopped practicing slavery.
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Post by cestlefun17 on Aug 10, 2011 11:01:33 GMT -5
Where does it say this in the Constitution? You cannot just unilaterally declare the right to practice incest to be a right.
Supreme Court decisions do not have an expiration date. Also, the rational basis standard is used all the time up to the present day in a countless number of cases.
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Post by Amaranth on Aug 10, 2011 11:19:17 GMT -5
How does it not support this notion? I'd say any time a law that violates the Constitution gets a bye would be a decent example, and if you actually live anywhere near America you can probably name a mtric fuckton since 9-11. However, as I very much suspect you're trolling at this point, I'm pretty sure you won't be able to come up with a single one. |
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Post by Amaranth on Aug 10, 2011 11:20:41 GMT -5
Supreme Court decisions do not have an expiration date. Which is why we're often asked to live under outdated "standards." Which is totally okay when it comes to flipper babies, but not homosexuals. |
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Post by cestlefun17 on Aug 10, 2011 11:42:57 GMT -5
Okay, but you have to argue that the law actually is unconstitutional. You also don't get to make up your own definition of "unconstitutional."
I don't understand why it's considered trolling to hold and defend a contrary opinion. At least I'm not calling anybody "stupid" or "illiterate."
Again, you need to make the argument that incest practicers deserve a higher level of scrutiny. If you want an example of such an argument for homosexuals, you should look at the DOJ's brief in the on-going case in Golinski v. OPM.
You have to answer this question: Do laws that burden incest practicers require a heightened level of judicial scrutiny? If so, on what grounds?
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Post by Amaranth on Aug 10, 2011 12:49:39 GMT -5
Okay, but you have to argue that the law actually is unconstitutional. You also don't get to make up your own definition of "unconstitutional." Because that would be trodding on your gimmick of constant redefinition? It's not. Since that's not being said, however, your question is dishonest or demonstrates your lack of understanding. See above. A shame you think knocking down strawmen is less dishonest. Than what? The point was a general one, not specific here. You frequently shift between the two; don't complain when others do. Though it seems more like a dodge than anything else. Hell, speaking of backing things up, please demonstrate using something other than your own specious reasoning, that growing up in an incestuous household spreads incest. You claimed it was different than the same argument for teh ghey, but you've offered no proof that it happens in these relationships. Hell, the only reason I don't ask for proof of your claim that gays don't spread that way is I know better. Even then, you've notproved yourself; you've merely gotten a pass there because it's old hat to pretty much everyone here. I honestly don't know why the fuck you're asking me this, and since I don't understand the question or how it pertains to me, I will not answer until both conditions are clarified. If a mod wishes to yell at me for that, they are free to do so, but I do want clarification on BOTH counts, not just one or the other. EDIT: Also, please note that when I did not understand a statement, I asked what you were talking about. In the future, you might consider this route, instead of making up false arguments to rail against. |
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Post by cestlefun17 on Aug 10, 2011 13:22:40 GMT -5
I did not say that growing up in an incestuous household spreads incest, I said that if you are so depraved as to have a child with a close relative, you are not a fit parent if there is nothing in your brain stopping you from seeing your own close relatives (your offspring also being a close relative who will someday become an adult) as valid sex partners. Children should not be reared by parents who could potentially see him or her as a valid sex partner once s/he is an adult.
In the United States, laws that are accused of intruding on people's rights (whether under the 5th or 14th Amendments) are judged under a certain standard. These standards are (from weakest to strongest): rational basis, rational basis with bite, intermediate, and strict (or heightened) scrutiny. The nature of the action being affected, and the nature of the person or persons being targeted determine which standard is used. The burden of proof is on the complainant (the person challenging the law) to prove that a standard higher than rational basis should be used. If the complainant cannot do this, then the rational basis test is used. The rational basis is highly deferential to the government: it assumes that the law is constitutional and the burden of proof is on the complainant to prove otherwise. On the other hand, if strict scrutiny is used, the law is presumed unconstitutional and the burden of proof is on the government to prove otherwise.
Under the highly deferential rational basis test, the court looks at the precedent surrounding the policy being questioned: does the law mark a sudden and unexplained shift in public policy? The court looks at the basis provided by the government: Does the law actually do what the basis says it will do? Also, the court makes sure the basis does not conflict with any other provision of the Constitution (for example, a rational basis for a law could not cite the Bible because that would conflict with the First Amendment). The rational basis provided by the government does not need to be defended with rigorous argumentation and the government need not cite scientific or academic literature to support it. The reason for this is that, despite conservatives' whining about "judicial activism," the courts have severe reservations about striking down laws passed by the democratically elected representatives of the people. It is for this reason that laws are nearly always upheld under the rational basis test.
To show that a higher level of scrutiny is warranted, you will have to show that the law affects people based on an intrinsic and immutable (unchangeable) characteristic of their individual selves, like race, color, sex, or sexual orientation. To obtain the highest level of judicial scrutiny, you will have to meet four criteria:
1. The law burdens a class of people based on an intrinsic and immutable characteristic of their individual.
2. The law burdens a discrete group of people.
3. The law burdens a minority that is relatively politically powerless.
4. The law burdens a group that has historically been subject to discrimination.
The Supreme Court has ruled that race meets all four of these criteria, and thus any law burdening people based on their race will be judged under strict scrutiny. On the other hand, while sex is an intrinsic and immutable characteristic, forms discrete groups of people (men and women), and people of the female sex have been historically subject to discrimination, women are not a politically powerless minority (they comprise roughly half the population and a woman has as much voting power as a man). Therefore, laws burdening women are judged under intermediate scrutiny.
To show that a higher level of scrutiny is warranted, you will be expected to cite scientific, sociological, and historical studies to back up your assertion. If you are successful, then the government must provide a more rigorous defense of its policy that transcends the simple desires of society, and will also be expected to cite relevant academic studies and call expert witnesses. Using a higher level of scrutiny does not necessarily mean the complainant will win, it means that the government's interest must be "important" (under intermediate scrutiny) or "compelling" (under strict scrutiny), and that the law must "substantially" advance this interest (under intermediate scrutiny), or be "narrowly tailored, using the least restrictive means" to advance this interest (under strict scrutiny). If the government can show this, then the law will be upheld. If they cannot, it is struck down.
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