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PaperclipPerfector  2d ago (text post)   2216 thread views

Small-Scale Question Sunday for June 22, 2025

Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?

This is your opportunity to ask questions. No question too simple or too silly.

Culture war topics are accepted, and proposals for a better intro post are appreciated.

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Apparently some Amish people about 15 years ago were charged with hate crimes for cutting other Amish men's beards.

They tried to argue that the federal government had no constitutional authority to prosecute them, but the judge ruled that since the scissors used to cut the hair, and the vans used to drive to the men, had at some point crossed state lines, this was a valid prosecution under the interstate commerce clause.

I don't really have the time right now to make this into an effortpost for the main thread. But this is crazy. I'm living in crazytown. How we reached the point where such rulings aren't immediate grounds for revolution, I'll never know.

If you like that, then you will love Wickard v. Filburn, where the supreme court ruled that the federal government had a right to prevent a farmer from growing wheat in his own land for his own use because, if a bunch of farmers did that, it would substantially lower the price of wheat in the national market, thus affecting interstate commerce.

And of course, we have all heard about Roe v. Wade and Obergefell v. Hodges, so it's not a problem specific to the commerce clause; a court that can find the right to abortion and gay "marriage" in the fourteenth amendment is a court that can find anything in anything.

Obergefell is correct. The right to marriage does not distinguish between same-sex and opposite-sex couples just as it doesn’t distinguish between same- or mixed-race ones.

I mean, if we had a clean EPC opinion, you might have a case. (Of course, Skrmetti is already casting doubt on whether there's support to push the (often claimed dubious) Bostock reasoning in Title VII into EPC.) But we didn't get that opinion. We got the cluster that is Obergefell. It should be pretty high on the list of people who are pro-SSM-from-a-policy-perspective for "opinions where I agree with the outcome, but disagree with the reasoning".

Is the right to marriage written into the constitution?

As I understand it, Virginia v. Loving says yes.

I will admit that I’m not an expert. But I don’t think the dissents rejected the idea that marriage was a right protected by the 14th. They were more concerned with 1) whether the historical use of the term included the opposite-sex qualifier and 2) whether the due process clause protected positive rights in addition to negative ones. Or maybe that was just Thomas?

As I understand it, Virginia v. Loving says yes

No, I don't care about rulings, I mean the actual text of the actual constitution.

I would say that marriage is firmly under “equal protection under the law.”

This would be an interesting case if some state decided it wasn't going to recognize marriage at all.

I would say it's a massive rabbit-hole with the outcome being far from certain. How do you determine "equal protection under the law" for people who aren't the same? We're kind of debating it with the trans stuff right now. Does a man have a right to women's facilities, explicitly demanded by various "equality acts", for example? Some people say "yes", other's say "men are not women, so a law demanding the creation of women's facilities does not demand that men are given access to them". I would say that whatever the answer is, it's not written in the constitution, and we should stop pretending that it is.

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