I'm unsure about Prop 8 due to it being a more complex legal issue on the wrong side of federalism for this Supreme Court, but like I've been saying for a while, DOMA is dead in the water. Still, narrower interpretations of the Prop 8 case are being tailored to Kennedy's ruling on Romer v. Evans, which makes me think Kennedy will be the swing vote that will strike down the referendum for California. They're taking on Windsor v. United States---the only thing keeping that bird getting fried is the whole homosexuals as a quasi-suspect class thing. Here's a good breakdown--- If SCOTUS were to rule in favor of striking down DOMA Section 3, then all future cases would consider the opinion of homosexuals as a quasi-suspect class---which would make striking down all sorts of homosexual discrimination easier. It might also hold the court back, I, for one, think DOMA Section 3 is utterly indefensible from both a federalism (the federal government cannot legislate marriage, only the states can) and a due process point of view, it's just a matter of what sword SCOTUS uses that matters at this point. Quick notes---Kennedy has ruled against discriminatory laws against homosexuals on a rational basis test (the weakest level of scrutiny, weaker than intermediate scrutiny) in Romer v. Evans and Lawrence v. Texas. And guess who else played a role in those? http://articles.latimes.com/2005/aug/04/nation/na-roberts4 In short, DOMA Section 3 is dead, Prop 8 will probably be gone thanks to Kennedy, and a constitutional right to same-sex marriage might arise depending on how far Roberts wants to take his legacy along for a spin.
Thank you Obama for Kagan and Sotomayor, making my aforementioned possibility more than likely a reality!
I agree, DOMA won't survive. I think it will be a comfortable 6-3 ruling striking down the relevant provisions of DOMA. I'm not quite so optimistic about the rest of it though. I think the conservatives don't want to be the ones to legalize gay marriage but they know they can't rule against gay marriage entirely without opening the Supreme Court up to a gigantic wave of scrutiny. (the same logic that pushed Roberts to uphold the affordable care act) Striking down DOMA but upholding Prop 8 will allow the Court to avoid the distinction of being totally out of the mainstream while allowing it to avoid coming anywhere close to legalizing gay marriage on federalism grounds.
I'm no lawyer, so my viewpoint is only from observation. With the passage of gay marriage legalization in Maine, Washington, etc (by popular vote, not through courts like in Iowa), I don't see any rational way that it can continue to be denied. The states with legal gay marriage seem to be saying "You are entitled to these equal rights, under the law, because of who you are (human beings)" while, on the other side of the binary, the states who specifically prohibit gay marriage seem to say "You are not entitled to these rights, under the law, because of who you are." I've started to care more about this issue, despite being a straight male, because it's more apparent to me that the opposition to gay marriage cannot wish to preserve the "sanctity" of marriage without denying the exact same thing to somebody based upon who they intrinsically are as people. Invoking the "sanctity" line also bothers me in two ways: 1. It implies that homosexuals being denied marriage are somehow morally evil and will sully marriage due to their very being. By going out of your way to deny them access to marriage and its benefits, you are thereby discriminating against them on the basis of their personhood. As an American, I like to believe we don't do this. 2. The "sanctity" argument is usually paired with a religious one. Argue all you want about the influence of religion in public life; the invocation of religion to deny equal benefits to others under the law is unconstitutional and, at a base level, a double-standard. For all of the wasted hours that have been spent to pass laws against a non-existant Sharia threat, fundamentalists sure are eager to impose their own religious standards to everybody, regardless if they are also of the flock or not. It's encouraging to see examples of Roberts' past work and Kennedy's voting record. In the end, I wish that the majority so vocally opposed to gay marriage had the courage to actually come out and say that they really don't like homosexuals.
Kennedy doesn't care, as he's amply demonstrated every time gay rights has come at the bench. See: Romer v. Evans, Lawrence v. Texas. In fact, the Prop 8 trial case has been written in a way that almost exactly mirrors the opinion Kennedy himself wrote in Romer v. Evans (where the Supreme Court also struck down a state constitutional amendment that discriminated against homosexuals voted in by referendum), so it's hard to see him not take that bait. I'd always figured him for a libertarian rather than a conservative, and those types don't tend to zap you on social issues. I think the baseline scenario is Prop 8 will be struck down for California, but the justices will stray away from the minefield of a constitutional right for same-sex marriage. Of course, Justice Roberts seems to have an eye for his legacy. Twenty years is a long time. Given how the country is swinging now, he might just decide to define himself here and now as the chief justice that ultimately pushed America to the right direction.
It is about a reinterpretation of the word marriage Remove MAN and WOMAN and replace with PERSON A and PERSON B by making it more generic terms. . .we can open it up. If this goes down . . . Next I think we really should look at our Polygamy laws If 3,4,5 etc consenting adults wanna be married. . . what's the difference? it will open up a nice possibility of things Personally .. I think the Gov should be out of the Marriage businesses completely. Rocket River
I sympathize with that in a big way, but you have to set out a framework for survivor's rights, inheritance, hospital visitation, insurance policies, and so on and so on. "Marriage" as recognized by the states is meaningful in all these areas. Polygamy (your other point) always comes up, and I feel like it's always shot down as a red herring, but there's no need to trudge through that again. But hey, maybe you are looking to, you know, expand your castle. Can't fault a guy for trying.
I think the Warren Court proved justices have a little more "backbone" or "stubbornness" than that with regards to unconventional or unpopular rulings.
And here I was thinking that marriage was a state law issue. It is an interesting dichotomy that the party that aggressively pursues federal prohibition of gay marriage is the same party that claims to want a smaller, less intrusive federal government.
So when I talk to a welder about marrying two pieces of metal I shouldn't use that term? This reminds me of those architects who get upset when IT people use the term "network architecture". The difference is that there is a whole infrastructure regarding benefits, property rights, custody and inheritance set up for a two person system. That said I personally would be fine with having a societal discussion regarding polygamy. I think it should be that way also but as noted there is a whole infrastructure set up for civil marriage already. Also I find this line of argument hypocritical from those defending heterosexual marriage on the basis of tradition. Government has been in the marriage business pretty much as long as government has existed but all of a sudden you hear people saying government should get out of marriage once gays want to get married. Where was all this talk of government getting out of marriage when gay marriage wasn't an issue?
ON this issue I agree with those that oppose gay marriage that the only way to stop it is a Constitutional amendment. I think the very language of the Constitution makes it inevitable that it will eventually become the legal in the whole country. Marriage has always been a state issue and on that ground DOMA should be unconstitutional. While the full faith and credit clause should make gay marriages in states that allow it recognized in states that don't.
yea this will be very interesting. The California case is pretty unique to that state so perhaps no national ramification in that instance. To sum that up the State Supreme Court ruled gay marriage legal only to have the people vote to make it illegal. Up to the Supreme Court to decide if the people can take away a right that the court granted. The DOMA is the one to keep an eye on. Social security and other benefits on the line for gay couples. In theory the court could recognize gay marriage as a constitutional right and invalidate all these amendments these states passed to ban it. Give the layout of the justices, unlikely it'll go that far.
Reminds me of the Louis CK bit where he wonders aloud about why people are opposed to gay marriage/homosexuality. "I mean really, it's not like they're being gay at you. I could understand if it was guys running around ****ing strangers in the *** or something. But otherwise, why do you care?"
Did anyone else giggle at the "Oral Arguments" part? Just let them get married and get along with something that's actually important.
Well, setting aside the fact that I think you can absolutely have moral feelings about whatever you want, that statement is ridiculous. Does "murder" happen between two consenting individuals? By it's very definition it is impossible. Silly. You can certainly think homosexuality is morally wrong, just like you can think premarital sex and adultery are morally wrong. That doesn't mean you can justify making them illegal though. For my money, marriage in the eyes of the state is nothing more than a contract of civil union between two parties. It allows them to share the assets and liabilities of the other party, have survivorship rights, entitles them to certain health benefits, social security, etc. There is no justifiable reason for the government to tell someone who they can or can't enter into that contract with as long as both parties are consenting adults.
