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Why U.S. v. Arizona Matters

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Posted on Aug 6, 2010
Arizona protesters
AP / Ralph Freso

Hundreds of members of the Los Angeles County Federation of Labor march to the Arizona state capitol building in Phoenix on July 29 in protest against Arizona’s SB 1070 immigration enforcement law.

By David Coleman

Let there be no doubt: Federal district court Judge Susan Bolton’s decision in U.S. v. Arizona was a big win for the U.S. Department of Justice from a legal standpoint, a big win for President Barack Obama from a political standpoint, and also a big win for a nation characterized by an increasingly fractious electoral climate with some states eager to embrace a power struggle with the federal government.

The decision issued by Bolton ordered only a “preliminary” injunction, which halts implementation of the most noxious and controversial provisions of Arizona’s SB 1070. That legislation included some small changes to Arizona law regarding such matters as the crime of smuggling immigrants or traffic laws that would apply to vehicles stopped on streets where immigrant laborers congregate. Those traditionally local laws were not seriously opposed by the Department of Justice (DOJ). 

Thus, some provisions of SB 1070 took effect and were not enjoined by Bolton’s order. If Arizona’s legislators want to forbid stopping motor vehicles on a street near a Home Depot, they should (and can) have at it. The cost of driving a little further down the street to a vacant lot where workers gather away from a street will be borne by Arizona’s home improvement contractors.

Why an Injunction—and a ‘Preliminary’ One at That?

To understand the relationship between the politics and the legal future of a lawsuit that has begun with issuance of a “preliminary injunction,” an explanation (as if given in the first person by Bolton) might go something like this:

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I still have to hear the evidence in the case, but I think the DOJ is probably right and the federal government will prevail in this case. In the meantime I don’t want this law to take effect until I can hear the whole case with evidence and legal arguments. That may take months to hear, research and decide upon. Arizona can still present evidence and argument, but I think when the case is over they probably won’t be able to convince me that it is constitutional. But if I wait to make a decision for the months it may take, people will have suffered harm they probably should not have to suffer.

There will be a trial and appeals. But figuratively, this win in the first quarter means the field is tilted at a big angle in favor of the DOJ and against Arizona. It will be an uphill battle for Arizona through the “final” ruling by the district judge. The incline of that legal hill will be even greater in the Ninth Circuit Court of Appeal, thought to be more liberal than many other federal circuit courts of appeal, and preternaturally expected to look with approval on the decisions of lower court judges (which appellate judges frequently recall they once were). 

Some metrics drawn from the football metaphors that crept into the last paragraph might help to convey more clearly the magnitude of Judge Bolton’s ruling. If a lawsuit was scored like a football game, the score might be of this magnitude: United States 48, Arizona 6.   

Why Is Arizona Running Afoul of the Constitution?

SB 1070 provided that for every arrest, a police officer must undertake a mandatory investigation. Further, SB 1070 provided that an immigration inquiry would occur during a detention only if and when the officer had a suspicion that the person detained may not be a citizen or, if an alien, did not have sufficiently convincing proof of lawful presence in the country. Even for those persons merely detained (for a brief investigation or question by an officer), there would ensue an immigration (“your papers please”) investigation if the detaining officer was suspicious of the person’s immigration status. And when that happened, those detentions (like the full arrest) would be “prolonged” and for that reason constitutionally unreasonable. 

A “prolonged” detention is lawyer-speak for an officer in the field holding on to someone after the reason that precipitated the encounter has passed. (“No, you are still not free to go. I have to check your papers and status first.”) In other words, the Arizona Legislature passed a law that urged (and, for arrests, indeed required) police officers to engage in a constitutionally forbidden practice of a prolonged “seizure” of detained suspects instead of letting them go on their way when the reason for the initial detention ended. The Phoenix Suns’ all-star guard, Steve Nash, and Sen. John McCain would need proof of legal authority to be in the U.S. if arrested (e.g. cited and released) for jaywalking. (And that statement is true independent of the fact that Nash is Canadian and McCain was born in the Panama Canal Zone, as we learned in the last election cycle.)

Ironically, this automatic nature—and the attendant prolonged time for the immigration investigation phase—turned out to be its greatest constitutional vulnerability. Any robust (albeit perfectly legal) policing program that interacts at the street level with people in the community will produce false positives: people who, after being stopped, offer a convincingly innocent response to a police officer’s inquiry. 

For this large number of false positives—especially when the false positive detentions vastly outnumber the forensically productive encounters—the separate, and more probing, intrusion of having to show papers adequate enough to satisfy a police officer was not going to be constitutionally permissible. These are repercussions that neither the Founding Fathers, to be sure, nor even some of the most law-and-order members of today’s American public want to be characteristic of life in the United States. 

Bolton concluded the collateral constitutional damage that would be inflicted by the Arizona Legislature’s orders to its police officers was too great:

“Under [SB 1070] all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.”

Two things about this conclusion stand out. First, it artfully focused on the harm it would do to U.S. citizens and legally present aliens instead of harm that might befall illegal aliens or persons with problematic claims to being documented. Second, the opinion (like the DOJ’s brief) never delved into heat-provoking arguments about race and language-based stereotypes that so many commentators believed the bill would engender. 

Proponents of stronger immigration enforcement (who may not care about any potential discrimination by the police) are possibly disappointed that Bolton’s opinion slipped those punches. Opponents of SB 1070 who condemn it as a bill legitimatizing racial profiling are possibly disappointed by the absence in the opinion of any reference to racial or ethnic discrimination. Passionate advocates on each side of the debate will have to wait for another vehicle. For this result alone, Bolton’s approach deserves respect for her legal reasoning, praise for her intellect and courage as judge, and admiration for her ability to avoid adding fuel anybody’s fire.

 


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By REDHORSE, August 9, 2010 at 5:25 pm Link to this comment

NO MORE AMNESTY—EVER!! JAIL CORPORATE EXPLOITERS OF ILLEGAL LABOR!! ENFORCE CORRENT IMMIGRATION LAW NOW!!

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By call me roy, August 9, 2010 at 5:19 pm Link to this comment

Next, Once again Barry Hussein Obama has shown that he considers immigration to be primarily a game of political calculation rather than an issue that deeply affects how many millions of U.S. workers must remain unemployed. His renewed call for massive numbers of work permits for foreign workers is an incredible slap in the face to the 25 million Americans who want a full-time job but cannot find one. Let me pull out just a few of outrageous statements that the President made today and suggest you what they mean.
1) It is incredibly hypocritical for the President to talk about holding employers accountable when his DHS has basically stopped criminal prosecutions of employers who knowingly hire illegal aliens and has completely stopped worksite raids, and when his Justice Department is asking the Supreme Court to overturn Arizona’s E-Verify law, and all despite the fact that 25 million US workers can’t find full time jobs.
2) His contention that our borders are more secure than they’ve been in decades is ludicrous, but then, he wouldn’t know that, since he hasn’t been down there; his claim would come as a big surprise to the law enforcement officers and ranchers who have been shot or shot at in recent months by illegal aliens, and to the human and drug smugglers who are operating with impunity.
3) His contention that our immigration laws are unenforceable is interesting—how would he know, since he hasn’t tried? When he took his oath of office and swore to faithfully execute the laws of the land, he didn’t say, “except those I don’t like, like immigration laws.”
4) The only thing he was actually specific about was his support for amnesty for 11 million illegal aliens who, as he admitted, came here to take jobs from US workers who desperately need them during the current jobs depression.
5) His politicization of this issue is offensive. He talked about all the different groups he’s met with, representing all kinds of views and faiths and beliefs. Unfortunately, the only groups he hasn’t met with are those who represent the American people, who oppose his amnesty plan and his apparent plan to ratchet up already too high legal immigration levels. He also said that Republicans are the ones blocking CIR. Last I checked, Democrats control both the House and the Senate. The fact is that there are sufficient numbers of Democrats who actually represent their constituents and oppose amnesty, but instead of admitting that CIR simply doesn’t have enough support to pass, he blames Republicans.

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By BR549, August 9, 2010 at 4:33 pm Link to this comment

Gerard,
Good and sound points, and certainly from a clearer head. I apologize for my
ranting, but I spent many years along the southern border and California, and
too many people have absolutely no idea why Arizona would have had to take
the course they did. But you’re right. Truthdig should find someone who knows
how to write a balanced article instead of jumping right in and condemning
Brewer or who have you.

During WWII, when the Bracero program made up for the labor deficit from our
having so many men overseas, up through the mid sixties when it ended, the
system was fairly cut and dry and problem free. Something happened, and I’m
not exactly sure what, but it might have been the corporations having gotten
used to cheap labor. And we all know that NAFTA is about cheap labor.

I’ll try to control myself. I feel like I’m having to wear that glove that Peter
Sellers wore in Dr. Strangelove.

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By gerard, August 9, 2010 at 3:30 pm Link to this comment

Looking over all the comments on this important subject, I really want to encourage Truthdig again to put up a balanced, authoritative article on this subject that will take some hear off and throw more light on the border problems.  Please include also the contributions made by the immigrant popularion, the reasons why they risk coming and suffer the sometimes punishing treatment, and share some of Mexico’s economic, social and religious problems as well.  Sounds like a series?  Well, maybe.  But we shouldn’t just be sounding off without knowing more of the relevant facts.  Yes, facts.  Thanks

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By politicky, August 9, 2010 at 2:43 pm Link to this comment

Look the fact of the matter is that no real immigration reform
that makes sense will ever happen because the rich and their
rented politicians in first, second, and third world countries
don’t want it to happen.  The rich profit from cheap, disposable
labor.

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By BR549, August 9, 2010 at 2:14 pm Link to this comment

Dave,
I didn’t see a photo of you with this column, so I can only assume that you are so young and green behind the ears and have your head stuffed so far up there, that you can see daylight past your tonsils.

Where you one of those “Nintendo” children, one of the first victims of latch key child care, or what is it, because you obviously have no understanding of THIS issue? You take this pseudo-journalistic stance and then portray the bleeding
heart liberal viewpoint ....... and I’m not even a Republican. I voted for Obama, and he has clearly overstepped himself on this one. Bolton is too young to understand what the fcuk she was deciding on and how she ever made it into that position is beyond me. Aren’t judges supposed to be able to temper their
ruling with at least a modicum of life’s experience?

I thought I would read the article to see what I might not have gleaned yet, but this wasn’t even news; this was just your own personal rant against the “evil system”.

Next time, try digging up some old clips of Huntley and Brinkley, or even Walter Cronkite; THAT was journalism, this was crap.

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By NABNYC, August 9, 2010 at 1:59 pm Link to this comment

Illegal immigrants have only one right under the constitution, which is called due process:  the right to have a hearing as to their claim that they are legally present.  That’s why the judge focused on potential harm to or discrimination against citizens in enjoining part of the law.

The proponents of open borders are advocating for a rule which would make it illegal for any state representative to ask anyone about their immigration status unless the person had been arrested for a non-immigration crime.  That is an absurd suggestion.  When our nation is being flooded by illegal immigrants from Mexico, of course the state agents can inquire of people as to their immigration status even if the people have not been arrested.  Asking questions is not by itself an offense.

Our immigration system is not broken and should not be revised.  We just need to enforce our laws.  What the democrats propose is a “path to legalization,” meaning that people who are here illegally should be able to apply for relief from deportation.  But our laws already include such a provision, which allow any illegal immigrant who has been here for 10 years and is self-supporting, clean record, can apply for the right to stay, and that right is routinely granted.  We already have such a provision.  The idea that we should change the laws yet again, so that someone who’s been here for a week suddenly can become a citizen, for no good reason at all, is absurd.

The judge dodged a bullet before the election, which was smart.  But people should not interpret this order as rejecting the entire concept of states being involved in detecting illegal immigrants and turning them over to the federal government for deportation.  Existing federal law is clear that is appropriate as long as the underlying basis is a state law.  In this statute, the state law involved is trespass.  That precise issue has not been tested, but I would expect the courts ultimately would rule it is not preempted.

The only reason this is a crisis is because millions of illegal immigrants have flooded into our country.  They should be deported.  The fact that it may be inconvenient for law enforcement or for the federal government is not a good reason to refuse to enforce the law.  I’ve got an idea:  end the wars, bring the troops home, and use that money to secure our borders instead of killing people in Afghanistan.

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By randyjet, August 9, 2010 at 11:23 am Link to this comment

Bolton’s reasoning is wrong because she said that the part of the law checking on somebody’s legal status would NOT be subject to the same rules that provide prima facia evidence of their legal status. So she stated that NO person arrested could use their AZ driver license as proof of their legality in being here. THAT is why she made up the scenario that ICE would have to check the valid status of ALL arrestees, even if it was obvious by their documents that they were US citizens. That defies common sense.

In Muehler vs Mena handcuffing and inquiring about a persons legal status was perfectly LEGAL even though the person was NOT arrested. That was a UNANIMOUS SCOTUS decision by the way. She is WAY off base on this one.

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By Richard Nixon, August 8, 2010 at 6:59 pm Link to this comment

Carl I am serious. I love all those sources you posted. All those outlets are great at
reporting facts, showing every side of the story and getting money from
independent sources. I don’t see how other people can’t understand that yahoo
news is the all time non corporate non spin machine.

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By Inherit The Wind, August 8, 2010 at 5:43 pm Link to this comment

Dave,

Your argument is fundamentally irrational.  I simply replaced YOUR words on Gay Marriage etc, with Christianity.  The argument is the same, the context is different.  But by substituting forcing all to worship Christianity, for forcing all to accept that marriage must be between a man and a woman, I am able to show VIVIDLY that your argument fails.  It’s the same argument but in a different context.  Both agree that forcing Christianity down everyone’s throats is UnConstitutional.  (actually, the EXTREME right claims we are a “Christian Nation” which is totally false).

Back to the topic: Arizona.  Border control is one—and that is clearly the domain of the Federal Government.  But for police to be able to stop and demand legal residency or citizen papers without reasonable suspicion is flatly forbidden in the Constitution—and if it’s forbidden there, it’s forbidden to the states as well.

But when it is BLATANTLY obvious that it’s going to be applied solely to brown people who don’t look African-American, then it becomes equally obvious that it is directed at a particular ethnic group—and that is flatly illegal and has been since 1865.  My younger son would, at 5 years old, probably have to produce some sort of papers as he was born in Central America and adopted.  We wouldn’t dare go to Arizona with him unless we had to, and only THEN carrying his US passport.  That’s sick and illegal—any American is legally permitted to live and work in any state of the Union.

You are trying to apply a simple solution to a complex problem and hoping it works out “somehow” without having the foggiest idea of how or what ramifications it will have.

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By PatrickHenry, August 8, 2010 at 12:50 pm Link to this comment

We live in the age of computers where at the simple imput by the police of a vehicle TAG number or drivers licence number will give all the pertinent info they need.

Anyone driving or over 18 should be required to have a state registered ID where residency and immigration is verified.

Vagrancy, trespass, and other local crimes should be handled at the local jurisdiction and are no business of the federal government.

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By Brittanicus, August 8, 2010 at 12:01 pm Link to this comment
(Unregistered commenter)

When the National Liberal press have no choice but to inform about the illegal alien occupation of our country, than even some of the moderate Liberals and Democrats, finally see the financial destructive power of foreign nationals skirting our sovereign laws to get here. It has been seen that legal families, contain numerous illegal aliens and so the system of checks and balances are badly compromised when it comes to government benefits.

JUST THE TIP OF THE FINANCIAL ICEBERG

No state has remained untouched in supporting monetarily illegal aliens and families as welfare is easily accessible through citizen-children born here under the 14th Amendment of the Constitution. According to FAIR, (Federation for American Immigration Reform) Illegal Immigration expenditures have reached $113 Billion annually as a Drain on U.S. Taxpayers, with a very large plus additional of $60 billion dollars earned by illegal aliens in the U.S. each year. This being Mexico’s largest revenue streams (after exports and oil sales) consists of money sent home by legal immigrants and illegal aliens working in America.

Those who believe we can keep on accepting millions of people annually should read this repeated excerpt about a family of illegal immigrants described in the Spring 2005 Journal of American Physicians and Surgeons:  Below is the consequences of the instant citizenship that has become a national plague in the last twenty years. TAKE A MINUTE IN INVESTIGATING OF EXPENDITURES FOR ILLEGAL ALIENS AT GOOGLE AND YAHOO.

“Cristobal Silverio came illegally from Oxtotilan, Mexico, in 1997 and brought his wife Felipa, plus three children aged 19, 12 and 8. Felipa … gave birth to a new daughter, her anchor baby, named Flor. Flor was premature, spent three months in the neonatal incubator, and cost San Joaquin Hospital more than $300,000. Meanwhile, (Felipa’s 19-year-old daughter) Lourdes plus her illegal alien husband produced their own anchor baby, Esmeralda. Grandma Felipa created a second anchor baby, Cristian. … The two Silverio anchor babies generate $1,000 per month in public welfare funding. Flor gets $600 per month for asthma. Healthy Cristian gets $400. Cristobal and Felipa last year earned $18,000 picking fruit. Flor and Cristian were paid $12,000 for being anchor babies.”  This is of course Mexico, but other countries citizens are aware of this gaping hole, especially poor undeveloped countries. But for the price of an airline ticket, they can gain access to American hospitals and receive free natal treatment, as well as the baby born there where payment reverts to the taxpayer.

CALL THE CAPITOL AT 202-224-3121 AND DO SOMETHING ABOUT IT?

Closely scrutinize any new lawmaker relating to their platform on illegal immigration. The power of our vote can deny them access to Washington or State government. Demand they follow the “Rule of Law” People who comment should stand up to the plate and bombard their federal lawmakers at 202-224-3121 NumbersUSA has an immigration grading system showing who should not be reelected in Mid-Term elections. For Facts, figures and other statistics at Immigration Counters.

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By gerard, August 8, 2010 at 9:35 am Link to this comment

Truthdig Editors:  Please put up a lucid factual article on border problems, including drugs and crime so people can get educated on the main problems and their ramifications.

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By RayLan, August 8, 2010 at 9:17 am Link to this comment

This ruling is established on a rationale similar to the Partiot Act. Forget individual civil rights - the end justifies the means. The singular objective pushed by paranoia similar to the fear of terrorism, of stopping illegal (Mexican) immigration, will gain a rush of reckless support. It is of course, out of jurisidiction and unconstitutional since it imposes legal burdens on the suspects of alleged infractions, simply on the basis of police ‘profiling’ and subjective hunches.

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By DaveZx3, August 8, 2010 at 8:44 am Link to this comment

By Inherit The Wind, August 8 at 10:41 am

““Rights” apply to EVERYBODY, not just the majority.”

ITW,  You failed to comprehend my whole sentence,
which I will paste here:

“If a majority of Americans legitimately want controlled borders and controlled immigration, it is reasonable to expect this could be handled by a minimally competent administration within the framework of a constitutional republic without violating anyone’s rights.  PERIOD.”

Notice the qualifier, “without violating anyone’s rights”

I am saying that controlled borders and the preservation of everyones rights are not mutually exclusive.  Do I violate someones right to burglarize my house by locking my door?  Do I violate someones right to sneak across the border by putting up fences and gates? 

How do you see controlled borders and controlled immigration as a violation of someones rights?

Your other deficient counter example is pasted here: 

“If a majority of Americans legitimately want freedom of religion to be legally defined as the practice of Christianity, it is reasonable to expect the same without violating anyone’s rights. PERIOD.”

As you can see, this does not qualify as “reasonable to expect” as it violates the constitutional establishment of religion prohibition.  So it is not reasonable to expect religion to be defined as Christianity or anything else. 

Surely you can understand the differences. 

Regarding your question, “Please explain to me how allowing Gay marriage has ANY effect on YOU.”

I never actually inferred it had an effect on me personally.  I said you were being intolerant of others who felt that it had an effect on society.
It has to do with the cultural/religious idea that open homosexuality is a step in the downward spiral or the destruction of a society and/or the wrath of God.  You know, the Sodom and Gomorah thing.  Right or wrong, valid or not valid, I am not making judgement.

But when a sub-culture, ie: the gay community, is being deprived of their rights, it is wise not to butt heads with a different sub-culture in the process of securing those rights.  Non-reconcilable sub-cultures have a chance of coexistence if they are not constantly confronting each other. 

If a culture claims that marriage is the union of man and woman, that idea can be considered to be of little consequence to the gay culture securing their rights by establishing their own individual cultural norms, which they have pretty much done anyway. 

Of course when we meet at our workplaces, private or public, it is expected that we leave our individual subcultures at home and adopt the workplace culture. 

This is all just about having respect for other cultures where we all have to live and work in close proximity.  We are not going to all believe the same stuff, it is impossible.  But there must be respect where a cultural norm or rule is involved. 

As I said before, when in India, don’t abuse the cows. 

So, my point again is that it is possible for all to secure their rights and benefits without having to beat up each other.  Let one culture have marriage, and the other can have civil union, or whatever they want to call it.  Separate and equal with no culture being threatened.

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By Peter Knopfler, August 8, 2010 at 7:12 am Link to this comment

Border problem has nothing to do with Gay rights of a few that want it up the butt, but, say NO to border crashing. What you do to your own personal biology, is your personal problem, no one should have to change any laws because some like it up the butt, and not to mix this with border crashing, illegal is still that illegal. Broder rights for Gays Now, You suck the big one you get to go across, what nonsense, send them all back to their origin, so they can be more original. The border community: They don`t speak good enough english, they don`t speak good enough spanish, thay have an entirely different border culture of violence. Interior of Mexico they laugh at border people`s Spanish, and laugh at their english too, bunch of killers, 28,000 dead since 2006, 1,234 murders just this past JULY, doesn`t the USA have enough prisoners, highest prison pop. in the world, and USA begging for more.- SECURE THE BORDER; SEAL IT UP, America does it everywhere else in the world!?! Why not at Home doesn`t charity begin at home?

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By Inherit The Wind, August 8, 2010 at 6:41 am Link to this comment

Dave,

Please explain to me how allowing Gay marriage has ANY effect on YOU.

If a majority of Americans legitimately want controlled borders and controlled immigration, it is reasonable to expect this could be handled by a minimally competent administration within the framework of a constitutional republic without violating anyone’s rights.  PERIOD.

If a majority of Americans legitimately want marriage to be legally defined as the union between a man and a woman, it is reasonable to expect the same without violating anyone’s rights. PERIOD.
**************************

“Rights” apply to EVERYBODY, not just the majority.

Let’s reword your last sentence to keep the legal implication but change the context:

“If a majority of Americans legitimately want freedom of religion to be legally defined as the practice of Christianity, it is reasonable to expect the same without violating anyone’s rights. PERIOD.”

It’s as simple as that.  The majority does NOT get to define such things at the expense of the minority.

This is a “feel good” issue because for most of us the idea of two women or, worse, two MEN (notice the bias?) getting married to each other makes us go “EEWWW”.  But, you know what? Unless there is a legitimate interest of the State in blocking such a thing, the “EEWWW” factor is, for any decent moral person, irrelevant.

My marriage to my wife may be legally sanctioned as a “marriage” by the State, but that is IRRELEVANT.  The only part that matters to the State is the “Domestic Civil Union” component.

Nor does that ability of “Alan and Steve” to get married have ANY effect on the ability of “Adam and Eve” to get married.

Where is your respect for the rights of two happily consenting adults to do with each other what they please? (“as long as they don’t do it in the streets and frighten the horses”—as a 19th century English wit put it)

You are right: Rights are “endowed by their creator” whoever or whatever that is, not the State. And, the State ONLY has a right to restrict those rights when it has a LEGITIMATE interest in doing so. This usually means during a natural catastrophe, insurrection or war, or to protect the rights of others.

Where is the State’s legitimate interest in preventing Gay marriage?  Whose rights are impinged on by allowing it?  Yours? Because you want EXCLUSIVITY to define marriage as between a man and a woman?  What right have YOU to that “exclusivity”?

Just because of your “EEWWW” factor? Or that 51% of the voters MAY have that “EEWWW” factor?  Nowhere in our Constitutional history does the “EEWWW” factor hold legal legitimacy.

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By Carl, August 8, 2010 at 1:40 am Link to this comment

Gee, your demand for more news sources opened up a real can of worms.
http://www.washingtonexaminer.com/local/Illegal-immigrants-13_-of-Pr_-William-DUI-arrests-1007690-100077919.html

He had two other DUIs, and the rubbery fed judge still refused to take action and let him loose to do all those nasty jobs “lazy” Americans will not do. As we all know the hard right wingers think American workers are all lazy, especially if they are union workers.

I won’t mention that 13% figure in the article. And this is far, far, from the border. Keep in mind that the judge who dismissed this democratic objection by voters is an established far right wing Republican, nominated by far right wing nut Republican Senator Kyle.

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By DaveZx3, August 8, 2010 at 1:40 am Link to this comment

By Inherit The Wind, August 7 at 8:36 pm

“You fundamentally fail to understand what makes (or should make) our republic different than simple majority rule on everything.”

Wrong.  You compleltely misunderstood my post in this respect.  I am not a proponent of absolute majority rule or pure democracy.  I actually despise the idea that a majority could ever think to have the power to violate the rights of a minority.  I fully understand what makes the constitutional republic different from the simple majority rule of a democracy. 

The most important distinction, I believe, is that the rights of individuals are considered to emanate from the Creator, and not from the majority or the state. 

But with regards to your statement, “Gay Marriage wouldn’t be an issue if a bunch of busy-bodies who are totally unaffected by it hadn’t made a shouting match out of it.”  It is not surprising that you have no idea how ignorant and intolerant the words “totally unaffected by it” are.  I would explain this to you if you really have no idea. 

Because of this intolerance and ignorance of legitimate American cultural ideas, progressivism takes on an extremely offensive nature, which is irritating to a very significant portion of the population.  And it becomes doubly irritating when that large portion of the population are subsequently called ignorant and racist because of these ideas. 

There are very few declarations of ignorance and racism against Islamic or other cultures from progressive bloggers, so it is not hard to get the impression that this offensive, on the part of the progressive left, has nothing to do with tolerance and rights, but with the annihilation of American culture, if not the annihilation of the people of the culture.

If a majority of Americans legitimately want controlled borders and controlled immigration, it is reasonable to expect this could be handled by a minimally competent administration within the framework of a constitutional republic without violating anyone’s rights.  PERIOD.

If a majority of Americans legitimately want marriage to be legally defined as the union between a man and a woman, it is reasonable to expect the same without violating anyone’s rights. PERIOD.

Why solutions to these issues, and others like them, can’t seem to be accomplished is either the result of some type of agenda to disempower the populace by special interests, or we are in possession of one of the most incompetent governments ever.  Which is it?

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By Carl, August 8, 2010 at 1:29 am Link to this comment

When you are have nothing to counter a fact, attack the messenger. Very corporate and childish. Perhaps you have heard about search engines. Feel free to dismiss these dozens of news sources.
http://news.search.yahoo.com/search?ei=UTF-8&fr=moz2-ytff-&type=all&age=all&p=Virginia+illegal+nun+killed

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By Richard Nixon, August 7, 2010 at 7:24 pm Link to this comment

Yahoo News!

your #1 source for non corporate spin machine news 10 years and counting.

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By Carl, August 7, 2010 at 7:07 pm Link to this comment

This is what this issue is all about:

http://news.yahoo.com/s/ap/us_drunken_driving_nun_killed

An illegal alien that had been arrested several times in Virgina, then was finally turned over to the Feds for deportation. The Feds released him, so he got drunk and killed a nun. Now the Virginians are mad, so it must be racism—right?

If Truthdig dared print this story, I’d send a contribution. I stopped last year when I realized they had become a covert Corporate spin machine, pushing anti-worker and anti-American issues like amnesty for illegals.

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By Carl, August 7, 2010 at 6:58 pm Link to this comment

I have lived near the Mexican border in San Antonio, Chula Vista, Laredo, and Las Vegas. I speak Spanish (and Mexican [an inside joke]) and many of my friends are of Mexican descent. We can pick out an illegal by the way they dress and even their accent. Most are “Sur” from Southern Mexico or from Central America. They are a different breed from the traditional “Nortenos” from along the border. Some are “Indios” who don’t speak decent Spanish.

As part of its “racist” campaign to keep cheap labor flowing across the border, corporate America often displays wealthy, articulate, educated people with some Spanish blood on TV, and pretends they may be harassed in Arizona because of profiling. I saw the singer Shakira claim the law frightened her, and even faux Latin American, Governor Bill Richardson, agreed that he could be questioned about his status.

This spin is laughably absurd. It doesn’t matter what you look like, if you have a valid state driver’s license you are not suspect. If you “lost” your driver’s license yet speak decent English and know your social security number and home address, you are not suspect. But if you are confronted by a policeman for sleeping in a park, drinking beer behind a 7-11, or loitering in front of Home Depot for two hours, and have no ID, speak limited English, and don’t know your social security number or alien number, you may be questioned further. If a name/date of birth computer check turns up nothing, and you don’t recall your home address, police will find that “suspicious” especially if you are with a group of men with the same lack of ID.

All this media hysteria is a corporate assault on the power of local people to use democracy to force change, and is now being spun as an excuse to push through a second illegal immigration amnesty disguised as “reform”. It is laughable to watch these corporate spinmasters on TV insist they don’t support another amnesty. Yet they say we must forgive the illegal issue and allow them to remain and work in the USA and provide them with a “pathway to citizenship”, which would not be available to aspiring immigrants outside the USA. They claim this is the only choice, but reasonable action is blocked by “politics” and “racism.” They make bizarre claims that deporting illegals is impossible, even though around 300,000 a year are already deported.

Meanwhile, corporate strongmen seek legal and business reasons to punish Arizona for resisting their control, and their chief enforcer, Barak Obama, has begun to act. He may be successful even though half of Democratic Congressmen oppose amnesty, because most Republicans quietly support “immigration reform”. Bi-partisan legislation to slip through another amnesty that is strongly endorsed by our corporate media may succeed despite overwhelming public opposition.

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By Inherit The Wind, August 7, 2010 at 4:36 pm Link to this comment

If progressivism is about changing every institution, every definition, every cultural meme, till people have no culturall foundation, then it will be wholly and totally rejected, absolutely by the majority of the people.

It is not about fear, it is about the insanity of jerking everything around just for the sake of satisifying the wishes of the few.
**************************************

You fundamentally fail to understand what makes (or should make) our republic different than simple majority rule on everything.  The majority would rule (now) that the Republican Party is illegal.  In 1994, the GOP wanted to rule the Democratic Party illegal.  The MAJORITY of Americans are Christian.  Is it OK to make every other religion (or Agnosticism) illegal?

The idea was that while majority rules, the individual has rights that the majority (aka, the State) cannot violate. Period.

Therefore, when a particular person or group can demonstrate that the status quo violates their PROTECTED rights, that status quo can be overturned.

Gay Marriage wouldn’t be an issue if a bunch of busy-bodies who are totally unaffected by it hadn’t made a shouting match out of it.  As Justice Brennan said to a reporter: “Shame on you! They are not ‘technicalities’.  They are the fabric of our freedom!”

**************************************
Call it “civil union” and give similar tax consideration and benefits and be done with it.  That is all it takes.  Do it under the radar.  The fact that it has to become so contentious gives one the impression that it is actually about destroying culture, rather than making a few legitimate changes.  The issue is disingenuous and the average person senses that. 
***************************************

While I actually agree with you, it’s too late for that.  I thought that the Gay community needed to first establish a legal entity that was the equivalent of marriage but didn’t use the word.  So WHAT if they called it “marriage” themselves?  They can do that with even an UN-sanctioned union.  But, tactically, I felt it was a mistake to go for the word “marriage” before the legal status of civil unions was established.

There are lots of other civil unions between members of the same sex we don’t even THINK about!  I have a “civil union” with my 2nd son, because we adopted him.  Adoptions have even occurred between adults (the famous scientist, Charles Steinmetz, adopted his assistant and with it obtained a daughter-in-law and a slew of grand-children!  Steinmetz was a dwarf and a hunch-back and didn’t want to pass his genes on.)

Personally, I would like to see the word “marriage” removed from the state-sanctioned legal system and replaced with “civil domestic union”.  Let the churches, synagogues, mosques and temples define themselves whether a civil domestic union is, to them, a “marriage”.  It wouldn’t change MY relationship with MY wife one iota.

Why should it?

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By Carl, August 7, 2010 at 1:40 pm Link to this comment

The most outrageous news about the Obama administration has been mostly ignored. He has openly stated his right to execute American citizens without trial, specifically a American cleric in Yemen. Why not obtain a criminal indictment, and issue an arrest warrant, since Yemen says its our ally in the war on terror? If that fails to yield results, he might be “accidentally” killed in an anti-terror strike. But what is the point of making a mockery of American rights and laws by publicly putting him on a hit list?

Obama has no authority to whack U.S. citizens at will, which is why past U.S. President’s kept their hit list secret. This case has become more obscene because the Feds refuse to allow the ACLU to challenge his death sentence in court by arguing that would be providing material support to a designated enemy combatant. 

I find it bizarre that supposed left-wing “activists” follow the corporate media directions and deploy to Arizona to express outrage about a minor state law that allows police to ask about someone’s immigration status. Police can ask for your name, address, date of birth, SSN, if you use drugs, if you have been drinking, where you work, if you have been arrested, what are you doing—just about anything. But asking foreigners if they are here legally is forbidden. The horror! Why not deploy to D.C. to protest Obama’s personal hit list?

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By Uncle Ernie, August 7, 2010 at 12:52 pm Link to this comment
(Unregistered commenter)

Whats wrong with Coleman’s rant? Oh where to begin? Consider the author is from the same club at Berkley that has such other brilliant legal scholars as John Yoo. And hooray for the feds, what could be wrong with that? Again, oh where to begin? What it comes down to is the illegal invasion will continue until there are no jobs left that pay a living wage as the illegals not only do a lot of damage to the states but also to the workers. Cest la guerre. Just remember that Abraham Lincoln didn’t die in vain, he died in Washington DC!

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By Mike789, August 7, 2010 at 12:47 pm Link to this comment

Davezx3; “As a gay or lesbian, work to legalize whatever rights and benefits you feel you are lacking without bashing the culture.  Establish your own culture and words, and leave marriage to be defined as the union of man and woman.  This is how you get along.  By not destroying a culture selfishly for your own benefit.”

First off I’m not gay. I’m a retired Navy veteran sworn to the Constitution. I never married. So I consider myself unbiased.

I’m saying that mixing religion and state is a perverion of what the Founding Father’s intended.

If you want to focus on changes that you do not agree with you will always be dissatisfied.

Calling gay marriage by any other name has been tried with stiff resistance as well.

Marriage evolved out of pagan ritual and was adapted to the control fo chattels. It was sanctioned by the Church whose interest was in the offspring from such unions. Once divorce came into it’s own, marriage has been cathexed with it’s secular intent more and more.

If you choose to adhere to the religious interpretation, it should not be up to government to decide what it is. That is Church law.

If you look at the material end of it, possessions, who get’s custody rights, etc, gender mixes of what every combination should be considered from the stance of equal citizenry. The Church used to be the decider, but since the Enlightenmen, it has faded. Nonetheless it wants it’s say about the kids.

Furthermore, if vows have any bearing, they are between the individuals themselves and whatever higher authority they choose and not the state or even the Church. If their beliefs are that they are married, even by a justice of the peace, who has the right to contradict their beliefs?

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By gerard, August 7, 2010 at 12:19 pm Link to this comment

Read the signs:  WE ARE ALL EQUAL!

Ask why some people feel they are NOT equal to others.  Ask why they feel they have to stand up and demand equality. 

Ask yourself how you would feel if you were not treated equally; in fact, time and again were treated as unequal, as less worthy than others.

Read the Constitution. Ask yourself whether you believe in it or not. Then ask yourself what you would do if you DO believe in it.  And last of all, ask yourself what you would do if you DO NOT believe in it.

That pretty much covers the Arizona situation.  It’s not rocket science, as they say.

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By Richard Nixon, August 7, 2010 at 11:55 am Link to this comment

DaveZx3 wrote:

‘People do believe what they believe’

I don’t think they just believe what they believe, they are told what they told and
being told over and over leads them to a belief.

For instance the environmental article never mentions that dispersants could
have led to it ‘disappearing’. Obviously I can connect that in my head, but other
people cannot.

Same with ‘climategate’, people are told a certain narrative and they form a
belief off the narrative they are given.

If I read that stuff and couldn’t think for myself, which many people can’t from
the education they receive in this country which revolves around standardized
testing, I would be upset too.

Also your stab at social justice makes no sense. Also we are not seeing
socialism, we are seeing inverted totalitarianism.

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By REDHORSE, August 7, 2010 at 11:24 am Link to this comment

Great slight of hand. The “illegal” invasion continues and fat cat employers still get to exploit cheap labor. Nothing changes for the rich and, as in all other instances, at a time of national crisis, average Americans fighting for survival, pick up the tab.

      The corrupting political, economic and criminal impact of the “illegals” problem is so great, that Americans nationwide, have pressured their State leadership for local crime and immigration enforcement. An obvious Federalist toady, Coleman takes the opportunity, to defend a national government so corrupt, it bears hardly any relationship to “—We the people—”, and chastise State governments who have tried to respond to the peoples will. I appreciate his clarification of the smokescreen legal reality but, as intended, the invasion continues.

      The real question remains. We have good immigration law. Why isn’t it enforced and who benefits?

      NO AMNESTY EVER!! JAIL CORPORATE EMPLOYERS OF ILLEGALS!! ENFORCE CURRENT IMMIGRATION LAW NOW!!

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By Money is funny, August 7, 2010 at 9:47 am Link to this comment

I do not blame people for being angry about this one because the whole argument reeks. People should be allowed to express what is happening in their communities without being accused of racism.

Who will win this? Lawyers will win this (choo choo gravy train)

Draining a states resources is NOT FUNNY. Stop smiling about that please you silly pricks.

I believe in social justice etc. but this should not be used a political game to gain money and votes.

This whole charade boils down to campaign contributions to the Democratic party based on an ironically “divisive” issue.

Prop 8 was polluted by money from churches to other churches (lots of it).

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By DaveZx3, August 7, 2010 at 9:42 am Link to this comment

Mike789,

I don’t think there is a call for a “static culture” or for governmental laws to define marriage within my last post. 

I am not saying change is bad, but it must solve a real issue, as perpetual changing just ends up in confusion.  And if the change is cultural in nature, it must come up through the culture, not be hammered into it against its will. 

Governments are not in the business of defining words, cultures do that through common usage.  Words come to mean what the culture wants them to mean.  Belligerently attacking this cultural process will always result in very, very bad feelings at best. 

America, like Europe, is having a cultural identity crisis.  The melting pot has melted everything to where there is a lot of hard feelings and misunderstandings.  A lot of it gets misidentified as racism, but it is not, really.  Desiring to preserve ones culture is not illegal or immoral except when it does so at the expense of another.

Not too long ago, there was a certain American culture which immigrants actually aspired to, my family being among them.  Now, American culture is obscene to many immigrants, and they flaunt their opposition to anything American.  Is that the way to get along? 

Governments enact laws, but cultures loosely establish rules regarding certain expected behaviors, values and beliefs.  In America cultural rules are not legally binding, and you don’t go to jail for disobeying them.  But you don’t win any friends either. 

When in India, respect the cows, even though you hate cows.  That is how you get along in India. 
Now if you move to India, and you embark on a campaign to show that worshipping cows is stupid, what would be the purpose of butting heads with that culture?  Is that the way to get along? 

Now if you live in a country where 80% of the culture defines marriage as a union between a man and a woman, and you are gay, what is the purpose of butting heads with the culture.  Is that the way to get along? 

Now in India, if your problem with the cows is they are in the street and cause you to be late to work, you adjust your own behavior a bit and leave for work early, and wave and smile to the cows as you pass thew up.  That is the way to get along.  Show respect for the culture you live in. 

As a gay or lesbian, work to legalize whatever rights and benefits you feel you are lacking without bashing the culture.  Establish your own culture and words, and leave marriage to be defined as the union of man and woman.  This is how you get along.  By not destroying a culture selfishly for your own benefit. 

I bet few would notice new legislation which granted rights and benefits similar to marriage for couples of any mixture who wish to establish a lasting union.  Call it what you want, except marriage, because that is a part of a loosely established rule regarding a union between a man and a woman and entails certain expected behaviors, values and beliefs, according to the culture. 

Sorry if the “marriage” issue got off the subject of this thread, but the idea is still pertinent to the immigration issues. 

Immigrants have made this country, no doubt.  We are almost all the offspring of immigrants.  Few Americans are anti-immigration.  We have very, very liberal laws regarding immigration compared to almost any other country. 

But America is a nation of laws.  The culture expects everyone to at least attempt to follow the laws. If the speed limit is 60, try to keep it under 70.  Americans are getting upset by a government and millions of immigrants to openly expect to ignore the law without penalty.  That is not the way to get along. 

Is this so strange?  Is there something unusual about a culture which expects to be acknowledged and preserved? 

If you live in India, and you really, really hate the cows, it is time to move.  India will, after all, be India.  They will not change just because you think they are stupid.

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Peter Knopfler's avatar

By Peter Knopfler, August 7, 2010 at 8:35 am Link to this comment

July 2010 the deadliest month in MEXICO 1,234 deaths.
28,000 killings since 2006.
You still want to invite them in,
There is their track record, that is 44 dead people daily for the month of JULY.
AMERICANS ARE YOU SMART ENOUGH TO LEARN FROM THOSE NUMBERS.
Everyone travels with their habits.
Killing seems to be a bad habit, seeing Mexico murder capital of the world.
Amnesty for all, and then HIDE, or WHAT?
take the 12million, spread over the kill ratio, your percentage of murders and your STATE murder rate will go up 10 fold do the math,it will blow you away.

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By Peter Knopfler, August 7, 2010 at 7:31 am Link to this comment

Didn`t take much brains for the Judge to do what she was told to by OBAMA MAN! No Brainer on that one!, “Give Arizona the scraps and take out the best parts.” Revenge is mine says OBAMA MAN!“Sit your five dollar butt down before a I make change” And He made change! Now the real fight starts, today OBAMA MAN gets to put another of his Jundge puppets in power, good for later USE, so i will continue my abuse, at home and abroad, well rounded evil, Ha Have nice DAY!

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By Peter Knopfler, August 7, 2010 at 7:24 am Link to this comment

The AUDACITY OF CRIME! Crash the border, no papers, milk and cookies waiting! Now isn`t that a great law, then march with your pals the next day screaming for some rights, only their own and
ONLY IN A AMERICA, DUMB ENOUGH TO PUT UP WITH IT:
I guess America deserves this abuse, since they will not get off their butts and show themselves in MASS. Maybe not Until some illegal rips off his 3 Televisions, and car and daughter, what do think?
Time to move Arizona citizens! Good place to pick this fight, Mexicans are NOT out numbered.  Some how this ancient thought came forth, “Choose your battles wisely”, or “Only choose those you know you can win!” There is no win win deal here, someone has to go!

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By Mike789, August 7, 2010 at 4:36 am Link to this comment

Citing Davezx3: “A majority of citizens wish to define marriage as a union of man and women.  That is traditional and legitimate and implied in an overwhelming majority of instances.  Do they have a right to defend that definition?”

I honestly do not think it requires defending. It is illusory that your personal definition is impinged upon other than that you choose to have it so. I feel for your advocacy of a static culture, but that is not what history embodies. Tough it out in your own way, with your own partner.

But if you insist, sure they do, but then the burden of proof that a concept should be defined in only one certain way as if it were a Universal Truth in a diverse world is quite a reach, especially in an egalitarian society where enacting governance that might harm a minority will not hold water and the where the pursuit of happiness depends upon personal perspective. 

To surmise that there is any harm done to the majority here is dubious at best and that is another burden for proof. Advocating the civil oourts to uphold your will upon others who in no wise have harmed you physically or monetary has no footing and seems amply clear that harm could be affected up the rights of a minority.

Your freedom is not contigent upon your interpretation or perception of what someone else’s freedom ought to be. That’s why the Consitution entails protection for minorities. You may be a King in you own castle here, but I warrant you not impose any such constrait upon our public standing.

Moreover, how is it that a government is supposed to adjudicate over the definition of a peculiar pagan rite and keep religion out of State? It should not go there.

Concluding that laws should be changed by and through application or ammendment of the Constitution is the point of this article. Make it so.

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By ardee, August 7, 2010 at 4:04 am Link to this comment

“When great changes occur in history, when great principles are involved, as a rule, the majority is wrong.”  Eugene V. Debs

The argument that a thing is right because a “majority” supports it is an argument built upon a shaky foundation. This is precisely why our Founders created the three branches of govt with the Judicial most able to stop such wrongheaded, unconstitutional and incorrect actions as this Arizona effort, regardless of its mob appeal.

Demonizing and striking at the rights of any race because of any situation will lead us in precisely the wrong direction.

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By DaveZx3, August 7, 2010 at 2:48 am Link to this comment

By Richard Nixon, August 7 at 4:27 am

“It is just disturbing the kind of comments I see on there and the negative attitude toward social justice and environmental issues.”

You are witnessing an extreme backlash on the part of average people who are starting to realize the government absolutely acts contrary to the legitimate wishes of the majority.

For instance, it is legitimate and lawful to want borders and immigration controlled.  When 80% of the population ask that to happen, and the federal government does not do it, the 80% will get highly irritated.  Is that surprising? 

A majority of citizens wish to define marriage as a union of man and women.  That is traditional and legitimate and implied in an overwhelming majority of instances.  Do they have a right to defend that definition? 

If progressivism is about changing every institution, every definition, every cultural meme, till people have no culturall foundation, then it will be wholly and totally rejected, absolutely by the majority of the people. 

It is not about fear, it is about the insanity of jerking everything around just for the sake of satisifying the wishes of the few. 

Call it “civil union” and give similar tax consideration and benefits and be done with it.  That is all it takes.  Do it under the radar.  The fact that it has to become so contentious gives one the impression that it is actually about destroying culture, rather than making a few legitimate changes.  The issue is disingenuous and the average person senses that. 

It is as simple as that.  People sense they are being jerked around.  There will be more and more backlash until politicians start governing as to the will of the majority of the people.  It is what America stands for. 

Democrats are hypocritical because they only stand up for democracy when the vote goes their way.  If it does not, they bail out of democracy and try to get things solved in back rooms or judicially. California votes, and a gay judge vetoes it.  Should Californians be upset?  That is not justice, 

People do believe what they believe, and they have a constitutional right to believe it and to express it.  The government is suppodedly “of the people, by the people”  It is not “of the minority, by the minority”

Constitutional rights and the law are extended to all people equally.  But rights are misunderstood.  I have a right to be successful, but maybe I don’t have the ability.  That is no one’s fault.  Do I have a right to take from others because I am unsuccessful? 

Social justice is a flawed concept.  It is saying that everyone is guilty or innocent for the actions of a few.  Were all whites slaveowners?  Were all blacks innocent of the institution of slavery?  Is every illegal immigrant a hard-working person?  It is not about social justice, but individual justice.  Each is guilty or innocent and judged based on his personal acts and behavior according to the law.  If the laws are bad, change them constitutionally. 

But what you are seeing right now, is the minority dictating to the majority.  This is antithesis to Democracy and republicanism.  It is socialism and elitism, and the American people will reject it, totally, with the same sense of urgency and intensity that they defended their rights over 200 years ago.

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By Richard Nixon, August 7, 2010 at 12:27 am Link to this comment

I just go there once in a while to check up on what ‘average americans’ are
thinking. I mean they have the comments and a lot of people put thumbs up or
down for approving it.

It has gotten quite scary though especially a thing a week or two ago I saw for
the oil spill.

It was a story on how the oil ‘disappeared’ and many people on there were
talking trash about environmentalists and how many of the facts were made up
and some secret agenda from environmentalists like ‘usual.’ Many also
expressed how nature had just completely taken care of it.

I mean you put that much dispersant on it of course it is going to break up.
That isn’t ‘nature’.

It is just disturbing the kind of comments I see on there and the negative
attitude toward social justice and environmental issues.

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By Xntrk, August 6, 2010 at 11:07 pm Link to this comment

R.N., If you think yahoo is bad [I don’t visit it] make an occasional foray into The Daily Beast. It’s like reading the grocery store tabloids with letters to the editor. Today they are discussing the issue of Global Warming, and the flat-earthers are ahead. It seems it snowed in Washington DC last winter…

I hope this law, and Prop 8 in California, are both found unconstitutional. Too bad I have little faith in the Supremes deciding to uphold the Constitution rather then voting their individual prejudices.

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By Richard Nixon, August 6, 2010 at 8:29 pm Link to this comment

I don’t know if this was a big political win for Obama since it seems like a lot of
people are for the bill.

Personally I’m kind of split on it because I don’t want bosses exploiting illegal
immigrants, but obviously this bill is targeted at hispanics which I do not
support.

It is kind of scary going on sites like Yahoo News! and seeing people make
comments on SB 1070 like “I AM BEHIND JAN BREWER 100 PERCENT! DON’T
STOP JAN GET THIS PASSED”

And see 1200 thumbs up and only 200 or so thumbs down and that is all there
is for conversation.

It just like on the internet people get in little clans and they don’t see outside
their little world. You can’t even have a discussion with a differing viewpoint
without immediately getting shot down because everyone on that site thinks
the same way.

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