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This Is How Fast America Changes Its Mind

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Re: This Is How Fast America Changes Its Mind

#91

Post by mokus »

glial wrote: post #25

From the last graph, it seems like the rate of change (if that's what you'd call it) is closely related to the time period in which the change is taking place, or at least the time period in which the change started. I wonder if this has to do with a general increase in malleability of (judicial) opinions, or faster information transfer, or something else.

Perhaps it's a sampling bias - a slow change that started recently may not yet have been detected to be included on the graph (or may not have enough reliable data to support inclusion).

Re: This Is How Fast America Changes Its Mind

#92

Post by lkbm »

goodcanadian wrote: post #52
twoodfin wrote: post #9

The case comes amid a wave of gay marriage legalization... This phrase, and the title, mask the fact that in the majority of states same-sex marriage legalization came from court cases, not through legislation or referenda[1]. "America", broadly construed, is quickly changing its mind, too, but this "wave" is more a product of judicial thought than public opinion. [1] http://en.wikipedia.org/wiki/Same-sex_marriage_in…

Judicial opinion often follows public opinion more closely than you might think. The constitution did not apply to non-whites until it did. Women did not have equal rights to men, and then they did. It was not the constitution changing but rather the legal interpretation of it. Edited to add: the court cases do not occur until a significant portion of the population believes in an issue enough to be willing to fight…

You need someone to bring a case to court, yes, but do you need a court case and widespread popular support? Interracial marriage hit 50% approval in the US in the mid-nineties.[0] It was made legal (nationally) in the 1960s.

[0] http://www.gallup.com/poll/28417/most-americans-approve-inte...

Re: This Is How Fast America Changes Its Mind

#93

Post by tomjen3 »

dragonwriter wrote: post #79
fizbin wrote: post #20

Earlier quoted context omitted.

And looking at something already settled by the courts, it's also interesting to compare the article's chart on the legal status of interracial marriage with public opinion data: http://en.wikipedia.org/wiki/Interracial_marriage_in_the_Uni... Note that the "Approve" line doesn't cross the "Disapprove" line until the mid-1980s, long after the USSC had spoken. With same-sex marriage on the other hand, the "Approve"/"Di…

> One could argue that in invalidating most of DOMA, the USSC has already spoken strongly - if not definitively - in favor of same-sex marriage, and therefore that we should use that decision when making analogies to Loving Not very convincingly, because it did not hold that States cannot deny equal marriage, which would be the equivalent of the holding in Loving.

That was only because it wasn't the question put in front of the court (and the people involved wouldn't have standing to sue if it was, because they had been married of years).

Re: This Is How Fast America Changes Its Mind

#94

Post by pdabbadabba »

freehunter wrote: post #89
mitchty wrote: post #78

Earlier quoted context omitted.

In my own state of Minnesota the courts had nothing to do with legalization. Nothing likely would have changed either unless it wasn't for a bunch of anti gay bigots really pissing a lot of people off by trying to pass an amendment to the state constitution banning it. That misfire caused everyone that gave a shit about not being jerks to humans to fix that crap pronto by getting that amendment killed, then 6 months…

Well in quite a few cases, the legalization came via a state passing a bill to allow gay marriage then someone challenging it in federal court.

The opposite occurred in the vast majority of cases -- people challenged gay marriage bans and won in court. And many states legalized same-sex marriage simply by virtue of being within a federal circuit that had ruled on the issue.

Re: This Is How Fast America Changes Its Mind

#95

Post by dragonwriter »

tomjen3 wrote: post #93
dragonwriter wrote: post #79

Earlier quoted context omitted.

> One could argue that in invalidating most of DOMA, the USSC has already spoken strongly - if not definitively - in favor of same-sex marriage, and therefore that we should use that decision when making analogies to Loving Not very convincingly, because it did not hold that States cannot deny equal marriage, which would be the equivalent of the holding in Loving.

That was only because it wasn't the question put in front of the court (and the people involved wouldn't have standing to sue if it was, because they had been married of years).

> That was only because it wasn't the question put in front of the court

The "only" here is pure speculation. The fact is that the US Supreme Court has not issued a Loving like decision on same-sex marriage, and that same-sex marriage remains illegal in many states because of that. Therefore, it does not make sense to treat United States v. Windsor (which struck down Section 3 of DOMA) as an equivalent, in the domain of same-sex marriage, to Loving v. Virginia, in the domain of interracial marriage.

The federal government never did something like DOMA on interracial marriage (there was, relevant to Section 3, no federal policy against recognizing state-sanctioned interracial marriages), so Windsor naturally has no parallel among the interracial marriage cases.

Re: This Is How Fast America Changes Its Mind

#96

Post by freehunter »

pdabbadabba wrote: post #94
freehunter wrote: post #89

Earlier quoted context omitted.

Well in quite a few cases, the legalization came via a state passing a bill to allow gay marriage then someone challenging it in federal court.

The opposite occurred in the vast majority of cases -- people challenged gay marriage bans and won in court. And many states legalized same-sex marriage simply by virtue of being within a federal circuit that had ruled on the issue.

Right, what I was trying to get at was the Minnesota case isn't that different. They just didn't have the law being challenged in a federal court. In other cases, the law was changed and then it was taken to court. It's not like the courts just decided to make a ruling out of the blue.

Re: This Is How Fast America Changes Its Mind

#97

Post by kbenson »

gdubs wrote: post #42
intopieces wrote: post #36

The problem with the analysis re: Marijuana is that it appears to leave out the anti-drug treaties we've signed with other UN members. As I understand it, federal legalization is a nonstarter w/r/t that agreement.

The US has a pretty casual understanding of international law...

Or perhaps the US has a fairly nuanced understanding of international law, and when it can circumvent it, when it can ignore it by expending some power or international good-will, and when it will cost too much.

Re: This Is How Fast America Changes Its Mind

#98

Post by jfmercer »

It is worth noting that the first two issues were settled via Constitutional Amendments, whereas the second two were decided by the Supreme Court. If I were a betting man, I would bet that the SSM issue will also be settled by the Supreme Court, not by Constitutional Amendment.

It seems that, as a nation, we Americans can no longer settle divisive national (and therefore Federal) issues via the democratic process envisioned by the Founding Fathers in the Constitution: amendment of the Constitution itself. Instead, we leave ultimate decision making power in the hands of the Supreme Court.

Former Chief Justice Earl Warren expressed concern that if the Court's power became too widespread, America would have, instead of democracy, kritarchy: rule by judges.

Re: This Is How Fast America Changes Its Mind

#99

Post by goodcanadian »

lkbm wrote: post #92
goodcanadian wrote: post #52

Earlier quoted context omitted.

Judicial opinion often follows public opinion more closely than you might think. The constitution did not apply to non-whites until it did. Women did not have equal rights to men, and then they did. It was not the constitution changing but rather the legal interpretation of it. Edited to add: the court cases do not occur until a significant portion of the population believes in an issue enough to be willing to fight…

You need someone to bring a case to court, yes, but do you need a court case and widespread popular support? Interracial marriage hit 50% approval in the US in the mid-nineties.[0] It was made legal (nationally) in the 1960s. [0] http://www.gallup.com/poll/28417/most-americans-approve-inte...

You seem to have focused on my secondary comment rather than my main point. My point was that judges are a product of society as much as anyone. They may make rulings that are unpopular, but they will rarely make rulings that are unthinkable within our society. As for your example of interracial marriage, there is a stark difference between disapproving of something and thinking it should be a crime.

Re: This Is How Fast America Changes Its Mind

#100

Post by hga »

bmelton wrote: post #83
hga wrote: post #82

Earlier quoted context omitted.

Another big thing that I ought to have mentioned in my overall survey of the changes is that most, if not the vast majority of states enacted gun control preemption laws after the Supremes denied cert in 1981 in the lawsuit appealing the outright ban of handgun ownership in Morton Grove, Illinois. Almost needless to say, those didn't include Illinois, which per lawyer David Hardy ( http://armsandthelaw.com/archives/2…

You're probably not wrong, but to put my earlier comments into light, Morton Grove was one of the ones who reversed their position legislatively as a result of the Heller decision. I think it's fair to categorize Morton Grove either way, but perhaps it is errant of me to imply close correlation. Edit: Actually, I recant. Many cities have overturned legislation as a result of suit, but looking at the context, we aren'…

Errr, no, I'm talking about both states and cities.

Although maybe some other cities in non-preemption states, but the only ones I can remember are Illinois, Nebraska (it came up after the state went shall issue), and Colorado for Denver, but that was carved out by the courts (https://en.wikipedia.org/wiki/Gun_laws_in_Colorado#Denver).

This is interesting enough that I checked all the Wikipedia pages after only finding vague "almost all states": Illinois has now preempted most regulations. Massachusetts has "limited preemption", but I remember it to be pretty general. Nebraska is in "most but not all", so I assume the shall issue issues were ironed out, as I vaguely recall. New Jersey is limited (no surprise, it and Massachusetts really would like to outlaw guns altogether and mere ownership is massively restricted), New York of course. Basically Morton Grove's handgun ban lit a fire under state legislatures, most date from the mid-80s.

The above excludes things like some states allowing some cities to outlaw carrying in parks and the like, the usual discharge laws, plus various grandfathered laws, none super-onerous as far as I know aside from registration in Clark County, Nevada (Las Vegas).

Then again, there's been a whole lot of lawsuits to enforce state preemption; that's not Heller based, but it is of course done in the courts. At least a couple of states have made it particularly expensive for cities to resist, legislatures don't like their authority being questioned....

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