Wednesday, July 8, 2015

A Reply to @WAJ_12 - Marriage, Immigration

Apologies for taking so long to get back to you. I think we can agree that while Twitter has its advantages, some conversations do not benefit from brevity but rather suffer for it. As such, I thought it best to gather my thoughts and post them here. Should you wish you reply on your own platform or blog, I will cheerfully establish an account to continue whatever discussion may ensue. Having said that, I thank you in advance for being willing to give me a thousand or so (!) extra characters in which to convey my thoughts.

Penultimate disclaimer: you only have my word for the following: I assure you I am not a troll. I seldom take the time to write at such length; when I do, I have good reason and I typically do only when my would-be respondent seems to be similarly inclined toward having a dialogue.

Thus, as my final disclaimer, if you never bother to read this and never reply, I will know that I wasted no time. If however you prefer to reply just with vitriol and/or childish ranting, I will still know that I took 15 minutes or so to formulate and record my own ideas for future reference. To that extent, I am content with my work.

Brief background:

Following a posting featuring this article, I accused its author of using shoddy reasoning.

You responded with a question to me, paraphrased as follows: "if the article is so "shoddy" then why not provide an answer for the first question in the article - if a President (Obama) can blatantly ignore law, then why can states not exercise their 10th Amendment rights?"

The short answer is that no one can honestly answer that question because it relies on several mutually exclusive premises. To answer--or more properly put, for the following reasons, not to answer--your question, I cannot grant its flawed premises without you at a minimum citing, specifically, how the President's executive order "unilaterally nullified our immigration laws" and "positively established his own immigration system." Presidential exercise of prosecutorial discretion by lack of action (namely, not deporting non-violent illegals for various reasons) hardly constitutes a wholesale and unilateral 'veto of statute by executive order'. You'll really need to work on that partisan language first.

Your other flawed premise is this notion that a state's referendum or constitutional amendment renders it immune from challenge merely because of the Tenth Amendment to the federal Constitution. Also, I do not see how you can think immigration laws and marriage laws can be equated on Tenth Amendment grounds, let alone in terms of the specific legal questions raised in their respective court actions (prosecutorial discretion statutorily granted on immigration vs. the recognition of a fundamental right under due process and equal protection).

As part of their establishment AS states, all state constitutions, both overtly and by inference, willingly subject themselves to the federal Consitution, and thus to the interpretations and opinions of SCOTUS. We can argue about whether the issue of marriage SHOULD be left to the states, and I am pretty sure you and I would have a lively debate on that. But as a matter of law (until we have a duly ratified 28th Amendment on the subject) the SCOTUS decision on marriage equality stands.

My point with all this flowery language, which you will find is my own and not cut/pasted from what you would probably and reasonably assume is some 'left-wing' website, is that no rational person would grant the premises of your question because said premises are inherently unrelated and have no collective merit, meaning that no rational person would or could honestly attempt to answer your question. Furthermore, your attempt to equate prosecutorial deportation discretion in immigration (plainly a federal/executive issue) with marriage (the right to which has now been determined as fundamental) constitutes a false legal dichotomy.

Lastly, any honest observer would at least note that SCOTUS said nothing about any individual state's definition of marriage as to age, such as state parental consent in Alabama at age 14 versus age/consent requirements in other states. As another example, SCOTUS also didn't nullify differing state rules on consanguinity. This rhetoric about "redefining" marriage and Tenth Amendment "rights" comes across as alarmist when the reality is that SCOTUS simply found that a fundamental right to marry exists between adults, regardless of gender. So when you try to make a Tenth Amendment case against Obergefell, you (as a matter of law) will always fail especially now that SCOTUS has spoken on marriage as a fundamental right. You will fail additionally when trying to conflate two wildly different issues with wildly different case law histories.

If we can agree that, if nothing else, we should at least separate marriage from immigration as potential Tenth Amendment issues, and focus on just one, I think we could have a good discussion. Not that you asked, but I personally would find a conversation on marriage more interesting and meaningful than a conversation on immigration.

Thank you again for reading and I hope any reply I receive is at least respectful of our differing viewpoints.