Supremes to take on same-sex marriage issue

mayqueen

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I'm incredibly nervous.
 

Deleted member 42

This Wall Street Journal article strikes me as offering a succinct explanation of why the Supremes are looking at the two specific cases.
 

Maxinquaye

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Urgh, I would have liked to see them take up DOMA but leave Prop 8 well alone. This court at least. Scalia will more than likely strike down DOMA because it interferes with "a state matter", but Prop 8 is a state matter, and the outcome is much less clear. I would have liked to see a couple of replacements on the bench before they took that on.
 

Manuel Royal

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With this SCOTUS, I'm at a loss as to what might happen. Hoping for a couple of replacements during the next four years.

ETA: I honestly think Scalia might have dissented in Loving vs. Virginia, the unanimous 1967 decision that ended state miscegenation laws. He really seems not to like social progress.
 

blacbird

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My take is that Breyer, Ginsburg, Kagan and Sotomayor will be pretty predictable. For them it will be a civil rights issue. Thomas will follow Scalia, but this is a bit of a toughie for the states-rightie righties on the court. That goes for Roberts and Alito as well. As usual, Kennedy is the coin-flip, and about as unpredictable as can possibly be. There could be some really twisted semantics involved in the opinions rendered.

But Roberts surprised us all with his majority-making decision on the Health Care law earlier this year, so, you can sum up this SCOTUS in one word:

Ya never know.


(I stole that gem from 1970s pitcher Joaquín Andujar, who famously said it about a baseball game that ended in a crazy fashion.)

caw
 

rugcat

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ETA: I honestly think Scalia might have dissented in Loving vs. Virginia, the unanimous 1967 decision that ended state miscegenation laws. He really seems not to like social progress.
I don't think so. You can argue a clear distinction on equal protection against laws that specifically take race into account, and I think he would..

He did however dissent on Texas V Lawrence, which struck down anti sodomy laws, saying:
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

I think you can rest assured that whatever his reasoning, he will find in favor of the state (or nation) to ban gay marriage.
 

Maxinquaye

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Basically, as I understand it, and I may of course be wrong... DOMA is an "easy" choice because it's only about the federal government's power. DOMA interferes with states rights to regulate something, and it is fairly neutral against states that have bans against same sex marriage. I can see the conservative hawks agreeing that it is an unacceptable federal intrusion into states rights.

Now Prop 8 is another kettle of fish, because if the court agrees that prop 8 is unconstitutional, then it invalidates all the same-sex marriage bans in all the fifty states. I could see the conservative hawks being all over that one.

I also don't trust the geriatric leftists on the court, because remember it was the 1990s democrats that gave us the perversions called DOMA and DADT. I'm not sure about them either, and I could well see that a majority could vote to uphold the constitutionality.

As I said before, I'd like to see a few replacement on the court before Prop 8 was handled. Institutionally though, I understand that there's a time limit.
 

absitinvidia

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Now Prop 8 is another kettle of fish, because if the court agrees that prop 8 is unconstitutional, then it invalidates all the same-sex marriage bans in all the fifty states. I could see the conservative hawks being all over that one.


Not necessarily.

My understanding is that the court agreed to review this on a "narrow" basis; specifically, that the California Supreme Court had granted the right to marry, and marriages took place, and THEN Prop 8 took away that right. So the question is whether a referendum can be used to take away rights that have already been "guaranteed' (can't think of a better word).

This is a unique situation that applies specifically to the state of California, as Prop 8 takes away rights that were already in place. If the Supreme Court rules solely on this basis, then the ruling would not apply anywhere else (well, I think possibly also in other states where the state courts determined that same-sex marriage was a right and marriage was made legal; not sure, IANAL).

My guess is that the lawyers on either side will try to make the broader argument as well, but I don't know that SCOTUS will rule on that.
 

clintl

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I think the court will strike down DOMA. I have a hard time seeing that both Roberts and Kennedy will vote to uphold it, and it's even plausible that some of the other justices will vote to strike it down.

I have no idea how they'll rule on Prop 8, though. I can see it going either way, given the makeup of this court.
 

Melanie Dawn

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I'm not too worried. I mean if they take away their ideology, it's a civil rights issue, regardless of how much the church wants to make it a religious issue.
 

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It strikes me as interesting that Justice Clarence Thomas' marriage would not be considered legal were it not for a previous action by the Supremes.
 

raburrell

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The idea of this court taking up the issue makes me nervous, but I also think Roberts is a guy who's concerned about his legacy, and as such, doesn't want to go down in history as the guy who oversaw what would eventually be seen as hate legislation.

Or at least that's what I'm telling myself.
 

Melanie Dawn

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It strikes me as interesting that Justice Clarence Thomas' marriage would not be considered legal were it not for a previous action by the Supremes.

That's what I am thinking as well.

The idea of this court taking up the issue makes me nervous, but I also think Roberts is a guy who's concerned about his legacy, and as such, doesn't want to go down in history as the guy who oversaw what would eventually be seen as hate legislation.

Or at least that's what I'm telling myself.

Yep..that's what makes me think this will be a victory for equality.
 

blacbird

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At least I think Roberts will have improved his inauguration performance over the last one. And we should all give GWBush some pats on the back for pushing Roberts forward for Chief Justice, rather than the person everybody expected: Antonin Scalia.

caw
 

benbradley

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Urgh, I would have liked to see them take up DOMA but leave Prop 8 well alone. This court at least. Scalia will more than likely strike down DOMA because it interferes with "a state matter", but Prop 8 is a state matter, and the outcome is much less clear. I would have liked to see a couple of replacements on the bench before they took that on.

Basically, as I understand it, and I may of course be wrong... DOMA is an "easy" choice because it's only about the federal government's power. DOMA interferes with states rights to regulate something, and it is fairly neutral against states that have bans against same sex marriage. I can see the conservative hawks agreeing that it is an unacceptable federal intrusion into states rights.
On the other hand, married same-sex couples often do business across state lines, so one might say that the Interstate Commerce Clause would come into play, just as the Supreme Court has claimed it does when a farmer grows wheat for his own use.

I doubt those doing research for SCOTUS are reading this thread, though I wouldn't want to give them this idea. Some of these rulings look really bizarre.
 

Maxinquaye

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It strikes me as interesting that Justice Clarence Thomas' marriage would not be considered legal were it not for a previous action by the Supremes.

I think it comes down to whether Thomas will do like many other black civil rights leaders and feel that the LGBT-civil rights is not equatable with Black Civil rights. In fact, many black civil rights leaders feel offended that such a link is made in the first place.
 

Melanie Dawn

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I think it comes down to whether Thomas will do like many other black civil rights leaders and feel that the LGBT-civil rights is not equatable with Black Civil rights. In fact, many black civil rights leaders feel offended that such a link is made in the first place.

really? I though it was the other way around... huh...
 

Maxinquaye

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rugcat

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I'm not too worried. I mean if they take away their ideology, it's a civil rights issue, regardless of how much the church wants to make it a religious issue.
As far as Scalia goes i don't think it's ideology that will drive his decision. He has explicitly denied that his rulings on legal issues are influenced by his religion, but I don't buy it.

As a very conservative Catholic, he clearly believes homosexuality is both unnatural and morally wrong, and its acceptance as a norm on a par with heterosexuality is destructive to society as a whole.

And. according to him, society has the right to prohibit behavior that is destructive to itself -- which is clearly the essence of his dissent in Lawrence v Texas their decision.

I believe that's the basis he will start from, and then reverse engineer in a fashion to come up with a legal justification that supports that underlying belief.

Thomas will follow, of course, and Alito as well. But as has been said, i find it hard to see both Roberts and Kennedy going along with them.