Comments on: Fifth Circuit Says Lawrence Extends to Commercial Transactions http://www.kipesquire.net/2008/02/fifth-circuit-says-lawrence-extends-to-commercial-transactions/ A Stitch in Time Saves Nine ... But Haste Makes Waste Mon, 29 Nov 2010 16:02:21 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Terrence Watson http://www.kipesquire.net/2008/02/fifth-circuit-says-lawrence-extends-to-commercial-transactions/comment-page-1/#comment-5930 Terrence Watson Fri, 15 Feb 2008 02:23:24 +0000 http://www.kipesquire.net/?p=3940#comment-5930 Hey Kip, <BR /> <BR />You may or may not get some traffic from this, but I gave you a Hat Tip in my post on the 5th Circuit's decision on the Western Standard's Shotgun blog. You might want to take a look at the discussion. I made the explicit connection between the court's decision to strike down the law and Ron Paul's opinions on Lawrence and the 14th Amendment in general. <BR /> <BR />'course, the Paulies are going kind of nuts about the post. <BR /> <BR />Here is a <a href="http://westernstandard.blogs.com/shotgun/2008/02/ban-on-sale-of.html" rel="nofollow">link.</a> <BR /> <BR />Anyway, just wanted to let you know :-). Keep up the good work! <BR /> <BR /> <BR />Terrence Hey Kip,

You may or may not get some traffic from this, but I gave you a Hat Tip in my post on the 5th Circuit's decision on the Western Standard's Shotgun blog. You might want to take a look at the discussion. I made the explicit connection between the court's decision to strike down the law and Ron Paul's opinions on Lawrence and the 14th Amendment in general.

'course, the Paulies are going kind of nuts about the post.

Here is a link.

Anyway, just wanted to let you know :-) . Keep up the good work!

Terrence

]]> By: Tony http://www.kipesquire.net/2008/02/fifth-circuit-says-lawrence-extends-to-commercial-transactions/comment-page-1/#comment-5929 Tony Thu, 14 Feb 2008 18:02:51 +0000 http://www.kipesquire.net/?p=3940#comment-5929 I wonder how vehemently social conservatives will use this to argue about activist judges. I skimmed the conclusion in the ruling, and even to my non-legally-trained mind, it seems the Court rejected an opportunity to explore all the issues raised in the case. Rather than ruling on the First Amendment claim to "make law", the Court said it wasn't necessary because the basic Fourteenth Amendment question settled the dispute. It used the minimum to decide the case properly rather than the maximum. I wonder how vehemently social conservatives will use this to argue about activist judges. I skimmed the conclusion in the ruling, and even to my non-legally-trained mind, it seems the Court rejected an opportunity to explore all the issues raised in the case. Rather than ruling on the First Amendment claim to "make law", the Court said it wasn't necessary because the basic Fourteenth Amendment question settled the dispute. It used the minimum to decide the case properly rather than the maximum.

]]> By: Brad http://www.kipesquire.net/2008/02/fifth-circuit-says-lawrence-extends-to-commercial-transactions/comment-page-1/#comment-5928 Brad Thu, 14 Feb 2008 08:33:20 +0000 http://www.kipesquire.net/?p=3940#comment-5928 Yeah, it's a high-profile circuit split, but I doubt it's all that likely a cert candidate, legal-realistically. If I recall correctly (I don't have the opinion in front of me right now), the majority said that court-sanctioned or non-court-overruled bans currently only exist in three or four states. Even if you add in the states with bans that have been overturned, you're still not talking about a huge number of potentially questionable statutes. So given the relatively small reach of any decision saying "yes of course we meant what we said in Lawrence" (which would be the correct result), I doubt the Court is likely to wade into this. Especially since there's plenty more cert-worthy non-political circuit splits that the Court doesn't see fit to place on its relatively empty docket. See, e.g., the Booker/Rita/Gall/Kimbrough fall-out. <BR /> <BR />That said, there's a potentially cert-worthy question on the fed-court-nerdier issue concerning a federal court's invalidation of state statute as facially invalid at the summary judgment stage. That sounds more like the kind of extremely narrow question that might pique the CJ's professed interest in judicial minimalism, if no one else. And which might result in an extremely narrow decision providing little to no guidance to lower courts. Cf. James v. U.S. from last term, which beget Begay (op. forthcoming). Yeah, it's a high-profile circuit split, but I doubt it's all that likely a cert candidate, legal-realistically. If I recall correctly (I don't have the opinion in front of me right now), the majority said that court-sanctioned or non-court-overruled bans currently only exist in three or four states. Even if you add in the states with bans that have been overturned, you're still not talking about a huge number of potentially questionable statutes. So given the relatively small reach of any decision saying "yes of course we meant what we said in Lawrence" (which would be the correct result), I doubt the Court is likely to wade into this. Especially since there's plenty more cert-worthy non-political circuit splits that the Court doesn't see fit to place on its relatively empty docket. See, e.g., the Booker/Rita/Gall/Kimbrough fall-out.

That said, there's a potentially cert-worthy question on the fed-court-nerdier issue concerning a federal court's invalidation of state statute as facially invalid at the summary judgment stage. That sounds more like the kind of extremely narrow question that might pique the CJ's professed interest in judicial minimalism, if no one else. And which might result in an extremely narrow decision providing little to no guidance to lower courts. Cf. James v. U.S. from last term, which beget Begay (op. forthcoming).

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