5. The Established Precedent

In overturning the interracial marriage bans, and thus obliterating the precedent of Naim v. Naim, the court established that marriage is a fundamental civil right, and therefore cannot be barred on a discriminatory precedent. It outlined what the proper exceptions to the Equal Amendment Clause were - that if there were a permisive, valid, state objective which necessitated otherwise illegal and/or discriminatory action, the bans would have been justified. However, with no permisibe or valid state objective requiring the action other than the separation of races, the laws were not fit for constitutionality.

The ruling established a packing punch for civil rights, as the obliteration of segregation in public places had done before it - that separate could not be equal, and therefore could not, and would not, be protected by the court without vigorous scruitny of the circumstances.

4. Reasoning of the Court

Throughout the Court's statements are a variety of quotes relating back to what is an is not covered by the Equal Protection Clause of the 14th Amendment. Simultaneously, it discusses the exceptions, notably the end decision of Korematsu v. United States in 1944. "At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html)". Korematsu v. United States was a case regarding the deportation and containment of Japanese-Americans by the U.S. military and whether or not it was an action required for security purposes. The Court had ruled that the Equal Protection Clause did not apply if there was a legitimate reason necessitating the ordinarily discrimitory act (http://www.infoplease.com/us/supreme-court/cases/ar18.html).

With that clear outline of what constituted the legal exceptions of the Fourteenth Amendment, Chief Justice Warren had gone on to state: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html)". This translates to the State failing to present a permissible state objective other than the separation of races. Consequentally, the Court's ruling on Loving v. Virginia overturned a prior ruling concerning an identical matter - Naim v. Naim. "In Naim, the state court concluded that the State's legitimate purposes were 'to preserve the racial integrity of its citizens,' and to prevent 'the corruption of blood,' 'a mongrel breed of citizens,' and 'the obliteration of racial pride,' (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html)".

The Court's final thoughts were as such:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html)".

This quotation is perhaps the end-all-be-all of what the Court was considering. Chief Justice Warren had already outlined the invisible reasoning behind the barring of interracial marriage, thus establishing that there was no permissible State objective other than the separation of races, which the Fourteenth Amendment barred. Within his final thoughts, he specified that Marriage is considered one of the 'basic civil rights of man', concluding that it was not a right that could be infringed - it is inalienable, and therefore protected under individiual choice.

In summary: Virginia's argument was not substantial enough to sustain the laws they had set into place. Though the rulings were overturned and interracial marriage made legal, some laws banning on it remained on the books as long as 2000. Alabama was the last to remove the ban from its books (http://www.usatoday.com/news/vote2000/al/main03.htm).

3. Decision of the Court

After the grueling legal process of justifying their marriage, the Lovings were offered a decision of comfort. On June 12th of 1967, the case was decided and closed. The Supreme Court had ruled in their favor, stating it clearly with a 9-0 vote (http://www.answers.com/topic/loving-v-virginia). It was unanimous. The Virginia ban on inter-racial marriage was unconstitutional, and thus stricken from the books.

Written in Chief Justice Warren's closing statement regarding the case is the underlying reason: " The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html)."

Essentially, it was found that Virginia's argument that the law was constitutional on the basis that it said no white person could marry a person of color, as well as the vice-versa, was frivolous. The law was written only to ban the marriage of a white person to a person of color, thus was an outline of White Supremacy, and an unconstitutional act violating the Fourteenth Amendment.

2. Issues of Loving V. Virginia

"This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection Clause of the Fourteenth Amendment" (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html)

The above statement was issued within the introduction of one of the closing statements to Loving v. Virginia. It's relevance to the case as a whole is perfectly clear, as it distinguishes the exact issue which drove the case into the Supreme Court. The Fourteenth Amendment's Equal Protection Clause states the following:

"Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. " (http://caselaw.lp.findlaw.com/data/constitution/amendment14/11.html#8)

The bolded statement is where the constitutionality of Virginia's ban on interracial marriage surfaces. The Lovings were citizens of the United States, and, likewise, citizens of the State of Virginia. Under the Fourteenth Amendment, it was proposed that banning their marriage and relationship would be a violation of their right to due process, as well as equal protection under the laws of the country and state. On the flip side, the state of Virginia argued that the ban on interracial marriage was constitutional, because it excluded whites from marrying people of color, as well as excluded people of color from marrying whites. The law did not apply to interracil marriages between 'people of color' - such as a latino woman and an Asian man.

First Monday in October

I have never made my opinion of censorship unknown. In fact, of all things to float through my mind, censorship comes as the one I hold most dear. This is either liberal, or it’s the truth and the price of real freedom. Justice Snow stated something along the line of “It doesn’t matter if it’s crap – it has the right to be crap”. I concur. My personal offense to the material of certain products and developments is irrelevant to the legal standing of said products. Offense is subjective, and you cannot base a legal principle upon what is effectively subjective. Law, in and of itself, is intended to be objective. For personal morality to infringe upon the rights of an individual is to establish that one person, or set of persons, opinion is more valid than that of another. Government, law, is set into play to protect the rights of the minority, not to appease the consensus of the majority.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There has been a lot of argument regarding what the meaning of ‘speech’ is. Speech is often understood to be synonymous with expression. On public property, a man is free to do as he wishes provided his actions do not infringe upon the rights of others or violate legal statutes. In the case of the movie in question, a legal statue was violated – but that raises the question of constitutionality of the statue, does it not? The question posed to the court is not whether or not a pornographic film had violated the law, but whether or not the film was within its realm of constitutionality, and whether or not the statue infringed upon the right of free speech. I believe that the statue did, as it effectively barred the existence of something based on the moral consensus of the majority. The majority’s objection to pornography is irrelevant. Is there a practical reason for the ban? Is there a scientific, statistic-based study proving that the existence of films such as The Naked Nymphomaniac somehow cause harm to society, and should therefore be outlawed? There’s a lot of concern over dignity and the effects of porn, yet I raise the question: how has anyone’s dignity been affected by the existence of porn? Have the actors been degraded? I believe not, and certainly if they had been taken advantage of that raises an onslaught of different legal issues. However, what we are speaking about involves an action between two adults who may consent to an action. Two legal adults can consent to having sex, being filmed, and having that film distributed.

I, however, support a rating based system. I believe the rating system in place is adequate, though its enforcement is slack. As the rule goes, no one under the age of 17 can see a film that is rated ‘R’, and, likewise, a pornographic film cannot be purchased by someone under the age of 18. I have no issues with this arrangement; it ‘protects children’ while simultaneously allowing first amendment freedoms which may be disagreeable to exist harmoniously with dissent of its existence. As the rule goes: if you don’t want to see it, don’t watch it.

This raises me into other inquisitions and concerns. Pornography distinguishes itself as sexual exploits for sexual gratification and viewing. It’s the equivalent of watching two chimps go at it in a zoo – minus the chimps, plus the humanity. This, surprisingly, does not offend me. I’m not startled, shocked, or sickened by the object of sex – if anything, I’m passive. Maybe this is a product of the new age, but I can’t recall ever being raised to comprehend or believe such things. Sex, censorship, obscenity, never touched my home – which is something I’m grateful for, as it’s a mark of educational freedom on my behalf. Regardless, sex is not offensive. Nudity is not offensive. I have never understood the public outrage of the human body, or of natural human action. However! I have always been confused about the passive viewing of extreme violence. Torture-films are becoming popular with the innovations of Saw, Hostel, so forth and so on. The Slasher genre of horror films has evolved to become something bloody, grotesque, to the point in which graphic images resembling war time horrors can be wagered. For the love of anything, Hostel featured an eyeball dangling from a socket, as well as a man drilling through the legs of a teenage boy with a power drill. When I pit this acceptable form of entertainment expression against porn, I wonder why porn requires an NC-17 labeling in most cases. Hostel and Saw passed the marker for an R rated film. All of the Saw sequels have passed the rating for an R rated film, including one featuring an individual whose rib cage is torn to shreds. These images, I feel, are more detrimental to the morality and well-being of society than the projection of sex on a movie screen.

Even so, I stand by my thoughts: it’s a movie, and I have the right to see it or not to see it. I choose not to see it, because I find the images disturbing, if not traumatic. However, I have friends who get excited and start laughing because they like a good thriller movie and have some grotesque senses of humor. No offense taken – I have no business barring them from their gory escapades, just as I have no business barring them from porn – and vice versa. We’re legally consenting adults.

If the concern is about accessibility to children, then regulation and distribution need to be addressed. I feel the rating system does it well when cinema managers actually do what they’re supposed to and check I.Ds while telling parents they can’t take their five year old into the theater to see an R rated film. Accountability to manage the accessibility to minors, or parental responsibility. I felt the same about Mature rated games – parent buys game for child, the parent is responsible, because the labeling is correct.

Ahem, this is getting rather long, isn’t it? Jolly good, because it’s important that it be said: parents need to be accountable for their kids and the material their kids are sifting through. If they’re concerned about pornography on the internet, monitor your child’s bloody internet activity until they are of legal age, by which time, even as a parent, you have no authority to prevent them from the action. For the sake of time, I’m going to stop swimming in circles. Point in case: I don’t believe in censorship. I believe in ratings and distribution regulation. Even the most grotesque, disgusting, loathsome of films, artwork, statements, deserve to be stated. They do not infringe upon the rights of anyone, but preventing their existence infringes upon the rights of not only the creator, but the viewers.

As an edited afterthought, yes, I would also be inclined to support the legality of prostitution. Again, I see no reason behind barring consensual acts between legal adults. If a woman, or a man, wants to sell their sexual service and status, so be it. I have no authority or right to prevent a consensual act between legal adults, and I see no reason why the State should either.

The second half of this question was in regards to the importance of a female Supreme Court Justice. I have mixed feelings about the specific importance of women on the court – but I feel that there is an importance regarding ‘minority’ or ‘suspect classes’, as some define it. It’s my opinion that the court should have representatives of suspect classes. It should have diversity – ethnic diversity, sex diversity, so forth and so on. Then again, I guess I’m one of those bloody hippy-liberal folks who believe in equal representation. The significance of a woman on the Supreme Court is a mark for feminism, and it’s the object of hope for other suspect classes. That’s how I view it. It’s a sign of progression.

Illicit Activities

"Have you ever committed an Illicit act?", asks the judge.

The teenager replies: "Who has not?"

Asking whether or not the current generation has ever downloaded a song, a movie, a program, or otherwise ever participated in the "Illicit market" is redundant. It's almost an understood characteristic of modern day culture. You would be hard pressed to find any single teenager who has not, at least once, done something, even in ignorance - which I have a number of times (such as purchasing what I thought was a legitimate copy of Photoshop when it turned out to be a copy - the advertisement had shown the box, the CDs, everything official, so when it arrived on my door step as a small package with a burned CD, naturally I was all "what?").

Nevertheless, that's not the point. The question was 'have you ever committed an illicit act?'. The answer is: once upon a time when I was in middle school and peer-to-peer networks were fresh. I stopped because I'd rather pay for my merchandise than risk killing my computer thanks to monitoring ware, pop-under advertisements, which bypassed by filters, or worse. Not only that, I have some integrity - and had integrity then. I rarely downloaded anything if I could obtain it reasonably in the U.S.

I don't download anymore. Contrary to the belief that teenagers all download, I quit, and I purchase my songs from iTunes, or I use my CDs, or I borrow CDs from friends who bought theirs - which, by the way, I see nothing wrong with - it's not the same thing as peer-to-peer, and it's definitely not the same thing as 'buying a knock-off Gucci bag on the streets of New York, thus funneling money to Mexican Drug Cartels'. My borrowing a CD my friend legally purchased from, say, Wal-Mart, does not funnel money to Mexican Drug Cartels. Certainly, it depletes the record sales of the record label, but, in my opinion, what's the problem? Say my little sister bought a CD - am I not allowed to use that CD because I wasn't the one who purchased it, therefore, even with the permission of my sister, I can't use it? Bullocks, I say.

However, this is where I come in and say that I do believe peer-to-peer sharing can indirectly funnel money to Mexican Drug Cartels, or the Mafia, or whatever. In a peer-to-peer network, there's a 50/50 chance that what you're downloading happens to be monitoring ware that can track your passwords, find your social security if it's anywhere, your credit card information, etc., etc. It's plausible that, if such ware were implanted onto your computer, you could become the victim of identity theft. The money stolen from you could be sent to Mexican Drug Cartels. No doubt, it possibly could, though it could also be sent to some obscenely intelligent programmer in Nova Scotia. Food for thought, and another reason why I don't believe downloading is worth it - unless it's advertised free from an official sort, or is underground/idependently marketed samples from unsigned bands / film-makers.

There's your answer: I did once, though the material is long since gone, and I'm scot-clean, baby. Scot-clean.

Supreme Court Update

There has undoubtedly been a bit of a late start on my behalf. Fortunate for me, I'm quick at locating educational resources (always search for the .edu or indication of legitimacy as a resource, correct?). The case that I chose was Loving v. Virginia; I chose it for good reason. The topic matter is the subject of debates even in the modern time. That is not to say people protest interracial marriage, but I'm sure you know what I'm alluding to - they had hearings on March 5th in California regarding the topic, and one of the key points often referenced amongst debaters is interracial marriage and its relevance to the current situation.

Regardless! I skittered about the internet like a sleuth mouse and dug up some delightful resources regarding Loving V. Virginia, including a website detailing quotes from the court's ruling, another detailing the entire history, and the third outlining the history of the Fourteenth Amendment. It is my intention to review the case and outline the key points throughout the week, as well as begin solidifying my reference sources (as more than three seems legitimate for any research assignment). However, first thing is first thing: identifying who was sitting on the bench at the time of the case, as well as who voted concurring, and who voted dissenting.

1. Loving V. Virginia

In June of 1958, Mildred Jetter and Richard Loving were married in the District of Columbia, which, at the time, had laws permitting their marriage, which was interracial. Shortly after being wed, the couple moved and was subject to what was the majority law of Virginia: no interracial marriage. "At the October Term, 1958, of the Circut Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages" (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html).

Shortly thereafter, the Lovings claimed guilt to the charge, leading to a year-long jail sentence. The judge overviewing the trial, however, claimed he would suspend the sentence if the Lovings would "leave the State and not return to Virginia together for 25 years" (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html).

Choosing to leave, the Lovings moved back to the District of Columbia, and, several years into their exile, filed a complaint in a state trial court. They claimed that the Fourteenth Amendment was violated.

The Fourteenth Amendment states: "all persons born or naturalized in the United States," which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws" (http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html).

After the case went through both the state trial court, and the court of appeals, it was filed for the Supreme Court, which accepted it into its docket on the basis of questionable constitutionality.