US Supreme Court to look at same-sex marriage

[lopri]

3 states appealing isn't really a big deal for the SCOTUS. They can stay put while waiting to see what comes next.

The bigger problem for them is this:

32 states ask Supreme Court to settle gay marriage

Fifteen states that allow gay marriage, led by Massachusetts, filed a brief asking the justices to take up three cases from Virginia, Utah and Oklahoma and overturn bans. And 17 other states, led by Colorado, that have banned the practice asked the court to hear cases from Utah and Oklahoma to clear up a "morass" of lawsuits, but didn't urge the court to rule one way or another.

 

[shira]

His ruling on the ACA was the point at which I realized he was a complete hack.

Scalia is the man who said that an individual who grew marijuana at home for his own use could still be regulated under the interstate commerce clause: http://en.wikipedia.org/wiki/Gonzales_v._Raich

He then later said that the fact that all of us participate in a health care system that spans the entire country was not interstate commerce.

I found this law review article to encapsulate it pretty well:
http://www.law.northwestern.edu/lawreview/v103/n2/727/lr103n2koppelman.pdf

That article is pretty damning, especially the conclusion (bolding mine):

In short, the “originalism” that one now finds on the Supreme Court is a phony originalism which is opportunistically used to advance substantive positions that the judges find congenial. There are originalists who deserve to be taken seriously, but none of them are Supreme Court Justices.

The conclusions of this Article do not in any way impugn the work of originalist scholars who are conscientiously striving to determine the original meaning of the Constitution. It is the scholars, not the judges, whose work comprises this Symposium. The Justices’ disingenuousness however raises the question what originalist scholars are, objectively, doing.

One thing that originalist scholarship will certainly do is stir the pot of constitutional interpretation, turning up new and potentially revolutionary meanings for old provisions. Those new meanings may subsequently be refuted by subsequent scholarship, as has happened with Cord and with the jurisdictional reading of the (incorporated) Establishment Clause. But the function of all this scholarship in the Supreme Court is somewhat different than its authors intend: “originalist” Justices opportunistically use the scholarship to attack areas of the law that they don’t like. Since the conclusions of historical scholarship shift over time and since the judges are not constrained by the fact that a conclusion reached by some scholar at some time has since been refuted, the consequence is to expand the field of judicial discretion by presenting judges with a broad menu of possible interpretations, each of which have sufficient originalist credentials to qualify for citation in the U.S. Reports.

In his classic work of anticommunist propaganda, Masters of Deceit, then-FBI Director J. Edgar Hoover listed the various types of supporters upon whom the Communist Party relied for its nefarious ends. “The fellow traveler, while not a member, actively supports (travels with) the Party’s program for a period of time.” Fellow travelers are valuable to the party precisely because they are not affiliated with it. “They are more valuable outside: as financial contributors, vocal mouthpieces, or contacts between Party officials and non-communists. They constitute, in fact, fronts for, and defenders of, the Communist Party.” The party also depends on the “dupe,” the person who “unknowingly is under Communist thought control and does the work of the Party.”

Hoover did not want to be too hard on the dupes. Most of them, he wrote, were “loyal, but deceived, citizens.” Most originalist scholars do not mean simply to be shills for the agenda of the Republican Party. They should, however, understand the function they are performing. They are being used.

 

[Cozarkian]

I suggest you read the Appellate Court's opinion:

http://media.ca7.uscourts.gov/cgi-b...4/C:14-2388:J:Posner:aut:T:fnOp:N:1412338:S:0

All the arguments you are bringing up have been shot down rather thoroughly.

I really only brought up one argument, there is no discrimination based upon sexual orientation. The appellate opinion fails to shoot that down thoroughly. In order to attempt to satisfy the existence of discrimination, the court indicates they denied the right to marry an unmarried adult "of their choice."

Choice/desire cannot be used to affect the analysis of whether discrimination exists. Imagine if every singe homosexual person in the world had no desire to marry a person of the same sex. Suddenly, the law is no longer discriminatory because there is nobody being denied the right to marry the person of their choice. That's absurd. A law either discriminates or it doesn't. Thus, choice cannot be a factor considered in the analysis.

If someone tried to outlaw Pepsi, that would be a stupid law that should be changed. It would also have an unconstitutional impact on Pepsi employees. It would not, however, be unconstitutional based on the denial of equal protection to Pepsi-lovers compared to Coke-lovers.

Here's another illustration of the problem of using choice. Imagine this law: Heterosexuals can only marry heterosexuals and homosexuals can only marry homosexuals. This law would make everyone happy, because everyone can marry the person they choose. However, it discriminates in the exact same manner as a law that says black persons can only go to school A and white persons can only go to school B. If you are given a different set of rights, there is discrimination, if you are given the same set of rights, there is no discrimination. It is irrelevant whether the rights given are what you would choose, only whether your rights are the same as those given to others.

 

[werepossum]

I really only brought up one argument, there is no discrimination based upon sexual orientation. The appellate opinion fails to shoot that down thoroughly. In order to attempt to satisfy the existence of discrimination, the court indicates they denied the right to marry an unmarried adult "of their choice."

Choice/desire cannot be used to affect the analysis of whether discrimination exists. Imagine if every singe homosexual person in the world had no desire to marry a person of the same sex. Suddenly, the law is no longer discriminatory because there is nobody being denied the right to marry the person of their choice. That's absurd. A law either discriminates or it doesn't. Thus, choice cannot be a factor considered in the analysis.

If someone tried to outlaw Pepsi, that would be a stupid law that should be changed. It would also have an unconstitutional impact on Pepsi employees. It would not, however, be unconstitutional based on the denial of equal protection to Pepsi-lovers compared to Coke-lovers.

Here's another illustration of the problem of using choice. Imagine this law: Heterosexuals can only marry heterosexuals and homosexuals can only marry homosexuals. This law would make everyone happy, because everyone can marry the person they choose. However, it discriminates in the exact same manner as a law that says black persons can only go to school A and white persons can only go to school B. If you are given a different set of rights, there is discrimination, if you are given the same set of rights, there is no discrimination. It is irrelevant whether the rights given are what you would choose, only whether your rights are the same as those given to others.

Honestly, that law wouldn't make me happy. I'm more concerned that government not be empowered to arbitrarily infringe on individual liberty, even if they find a way to jigger it so that no one is complaining about discrimination.

EDIT: I don't think it would work anyway, as a significant number of gay people are more or less bisexual. Of the few gay people I know, the older ones have usually jumped between same sex and opposite sex relationships more than once.

 

[AyashiKaibutsu]

Or enlist/re-enlist in the (Air Force) military.

I was able to re-enlist in the Air Force without any mention of gods.

 

[Cozarkian]

Honestly, that law wouldn't make me happy. I'm more concerned that government not be empowered to arbitrarily infringe on individual liberty, even if they find a way to jigger it so that no one is complaining about discrimination.

That's the point. The above law does arbitrarily infringe (based upon sexual orientation), but the court's test would uphold the law because nobody would have a basis for complaining about the very real discrimination.

EDIT: I don't think it would work anyway, as a significant number of gay people are more or less bisexual. Of the few gay people I know, the older ones have usually jumped between same sex and opposite sex relationships more than once.

Attempting to defeat a hypothetical by attacking its assumptions, rather than addressing the validity and soundness of the argument, is dodging the question. Assuming everyone in the world is either heterosexual or homosexual, with no other variations of sexual preference, if the court's test for finding discrimination were applied to the law I hypothesized, the test would find no discrimination. Since it is a clear case of discrimination, that shows the test used by the court is a bad test. The reason it is a bad test is because individual desire or opinion is not an element that can be reliably used for applying the law.

Woman A cannot marry woman B. Is there discrimination? Based on the court's test, the correct answer is, that depends, is woman A gay? Assuming woman A is gay, is there discrimination? Actually, that still depends. Does woman A want to marry woman B? Maybe woman A loves and wants to marry woman C (who was born a man and is legally able to marry a woman despite woman's C sex change operation), or maybe woman A has no desire to get married, ever. In those situations, the court's test would find there is no discrimination against woman A.

The proper tests for determining whether traditional marriage laws discriminate based on sexual orientation (i.e. checking whether the same rights are given regardless of preference) would find no discrimination. Since that doesn't fit the court's objective, rather than properly interpreting the law, they created a test that produces arbitrary results. I find that depressing, because it sacrifices the integrity of the court in the name of achieving a desired political outcome.

 

[nehalem256]

Honestly, that law wouldn't make me happy. I'm more concerned that government not be empowered to arbitrarily infringe on individual liberty, even if they find a way to jigger it so that no one is complaining about discrimination.

EDIT: I don't think it would work anyway, as a significant number of gay people are more or less bisexual. Of the few gay people I know, the older ones have usually jumped between same sex and opposite sex relationships more than once.

Except the only way its arbitrary is if you want to pretend either that there is no fundamental difference between men and women, or that marriage has nothing to do with sex.

As the first is obviously false, and the 2nd is in direct contradiction to claiming that prohibiting same-sex marriage discriminates against people with same-sex sexual attractions, any discrimination isn't arbitrary.

 

[Cozarkian]

Except the only way its arbitrary is if you want to pretend either that there is no fundamental difference between men and women,

It's not quite that simple. The question isn't whether fundamental differences between men and women exist, the question is whether those fundamental differences justify gender-based discrimination in marriage laws. For example, a law stating women can't be doctors would be unconstitutional regardless of the differences between men and women.

 

[nehalem256]

It's not quite that simple. The question isn't whether fundamental differences between men and women exist, the question is whether those fundamental differences justify gender-based discrimination in marriage laws. For example, a law stating women can't be doctors would be unconstitutional regardless of the differences between men and women.

Considering that pretty much everyone agrees that sex is fundamentally connected to marriage. I mean such a belief is necessary in order for people to claim there is discrimination against homosexuals. It seems pretty clear that gender-based discrimination is more than arbitrary.

 

[Cozarkian]

Considering that pretty much everyone agrees that sex is fundamentally connected to marriage. I mean such a belief is necessary in order for people to claim there is discrimination against homosexuals. It seems pretty clear that gender-based discrimination is more than arbitrary.

I agree the fundamental differences between men and women are much more closely tied to marriage than one's choice of profession, but I haven't really thought about it enough to decide whether I think the court should find those differences justify gender-discrimination. Right now, I'd just like the see the court take up that analysis rather than trying to create a clear-cut case by inventing discrimination that doesn't exist.

 

[nehalem256]

I agree the fundamental differences between men and women are much more closely tied to marriage than one's choice of profession, but I haven't really thought about it enough to decide whether I think the court should find those differences justify gender-discrimination. Right now, I'd just like the see the court take up that analysis rather than trying to create a clear-cut case by inventing discrimination that doesn't exist.

I would say justify is a higher standard than arbitrary which is my point.

You could logically say that discrimination based on gender is unjustified. But it isn't arbitrary.

 

[werepossum]

That's the point. The above law does arbitrarily infringe (based upon sexual orientation), but the court's test would uphold the law because nobody would have a basis for complaining about the very real discrimination.

Attempting to defeat a hypothetical by attacking its assumptions, rather than addressing the validity and soundness of the argument, is dodging the question. Assuming everyone in the world is either heterosexual or homosexual, with no other variations of sexual preference, if the court's test for finding discrimination were applied to the law I hypothesized, the test would find no discrimination. Since it is a clear case of discrimination, that shows the test used by the court is a bad test. The reason it is a bad test is because individual desire or opinion is not an element that can be reliably used for applying the law.

Woman A cannot marry woman B. Is there discrimination? Based on the court's test, the correct answer is, that depends, is woman A gay? Assuming woman A is gay, is there discrimination? Actually, that still depends. Does woman A want to marry woman B? Maybe woman A loves and wants to marry woman C (who was born a man and is legally able to marry a woman despite woman's C sex change operation), or maybe woman A has no desire to get married, ever. In those situations, the court's test would find there is no discrimination against woman A.

The proper tests for determining whether traditional marriage laws discriminate based on sexual orientation (i.e. checking whether the same rights are given regardless of preference) would find no discrimination. Since that doesn't fit the court's objective, rather than properly interpreting the law, they created a test that produces arbitrary results. I find that depressing, because it sacrifices the integrity of the court in the name of achieving a desired political outcome.

Agreed, and understood. I was just sayin'.

Except the only way its arbitrary is if you want to pretend either that there is no fundamental difference between men and women, or that marriage has nothing to do with sex.

As the first is obviously false, and the 2nd is in direct contradiction to claiming that prohibiting same-sex marriage discriminates against people with same-sex sexual attractions, any discrimination isn't arbitrary.

I'm not saying the discrimination is random, merely arbitrary in that there is no particular basis for drawing the line at that particular point. Otherwise we'd hear better rationales for opposition than "It's always been that way" and "eeww." Same with laws against miscegenation; yes, there are fundamental differences between races* but those differences do not necessarily affect marriage other than to make it very slightly different. Whether my neighbors are two dudes butt-slamming each other, or a dude butt-slamming a lady, or a lady butt-slamming a dude with a strap-on, or two extremely devout Evangelical Christians who only have proper missionary sex in the dark on alternate February 29ths while singing hymns make absolutely no difference to me unless I choose to be annoyed. (Unless the hymn singing is too loud for me to ignore.)

* It's also worth pointing out that generally there is greater diversity within a particular race than between races, because race is an artificial construct and therefore has to strain to accept some criteria to group based on other criteria. Peter Dinklage and Conan Stevens obviously vary quite a lot more that do Hallie Berry and Angela Uyeda, yet by race we group Dinklage and Stevens as Caucasian and do not group Berry and Uyeda, even though the latter two are incredibly more similar. That's significant both because our marriage laws used to discriminate similarly arbitrarily on race and because there are similar relative diversities in marriage. A young hetero married couple with two small children obviously have more in common with a young gay married couple with two small children than with a hetero married couple who are sixty year old childless BD/SM swingers.

 

[MovingTarget]

Movie night?

...only if the ghost of Potter Stewart can be successfully summoned.

:whiste:

 

[lopri]

Woman A cannot marry woman B. Is there discrimination? Based on the court's test, the correct answer is, that depends, is woman A gay? Assuming woman A is gay, is there discrimination? Actually, that still depends. Does woman A want to marry woman B? Maybe woman A loves and wants to marry woman C (who was born a man and is legally able to marry a woman despite woman's C sex change operation), or maybe woman A has no desire to get married, ever. In those situations, the court's test would find there is no discrimination against woman A.

I do not know which court has written such an opinion. Do you have a citation? If woman A desires to marry woman C then woman B is irrelevant to the analysis. If woman A has no desire to get married, then she has no claims (discrimination or else).

The ban on same-sex marriage is:

1) On its face, a discrimination on the basis of sex.
2) In its application, a discrimination on the basis of sexual orientation.

The two are inseparable, IMO, but the legal strategy of LGBT groups have been pushing 2) so far despite 1) being more clear-cut as a matter of logic. I am sure there are reasons for that.

Often people believe there is no sex discrimination in man-woman requirement for marriage because it appears that men and women are treated equally. As to why it is a sex discrimination, it is useful to engage in a thought experiment. (Miscegenation is also directly analogous but some people seem to have difficulty accepting that analogy)

Imagine a state had a heterosexual marriage law that said, when dissolving a marriage (i.e. divorce), male should take the custody of son(s) and female should take the custody of daughter(s). I said "imagine it" but this was actually a state law in the U.S. history. Do we see anything problematic in this? If so, why? After all, men and women are treated equally in this example.

The sexual-orientation discrimination portion is easier to understand. There are many justifications offered by proponents of heterosexual marriage (only), but the bottom line is that we all know/knew why laws like DOMA/DADT were enacted by Congress, and subsequently by many states. (It was not to prevent at-risk heterosexuals from abandoning their families in pursuit of homosexual lovers.)

 

[sportage]

Looks like a done deal after all.
Unless Ginsburg should drop dead before this June.
Of suffer some disabling health condition.
Should that happen, that would screw things up royally.
And that fear should be on the minds of all Gay people.

Or... who knows?
Maybe Ginsburg has already hinted at the courts ruling come this June?
Ginsburg did say that "IF" one of the circuit courts should dare rule against marriage equality, that the high court WOULD INDEED STEP IN.
And thus now the high court have committed to doing exactly that.
Just exactly as Ginsburg had warned.

Then consider Antonin Scalia and his comment.
He said that if DOMA were shot down, all gay marriage hell would break out across the nation.
Well, it was, and it did.
So, could Scalia have already given his own warning that he will indeed vote pro equality this time round?

I actually feel and believe there is a very strong and likely chance of an unanimous decision from the high court, come June.
Ginsburg has definitely hinted at such.
And Scalia has definitely tossed in the towel after their DOMA ruling.

How would the news media react from an unanimous decision from the high court come June 2015?
And would that unanimous decision actually be their internally required necessity?
Providing that much needed cover for the court, after their ruling on such an hot topic issue?

If ever there were that belief in one for all and all for one, this would be it.
The high court will catch hell, but much less hell and more evenly divided hell, if they remain unanimous on this one.
Sure, some people will be totally shocked by an unanimous ruling.
The media will be shocked.
The religious right wing will suffer total meltdown starting immediately afterward.
And the republican congress?
Hell... They will proclaim they were all for this marriage equality thing, all along.
From day one, more less.
Their anti marriage equality rhetoric had been simply "mis-understood".

And our United States Supreme Court will survive, the country eventual forget, and move on.
That is IF the court sticks together for this one.

After listening not only to Ginsburg strong statement of past, but more so listening to Scalia after DOMA was shot down, I would not at all be that surprised if unanimity were the name of the game, as well as the absolute necessity, for this firestorm ruling.

 

[shira]

Looks like a done deal after all.
Unless Ginsburg should drop dead before this June.
Of suffer some disabling health condition.
Should that happen, that would screw things up royally.
And that fear should be on the minds of all Gay people.

Or... who knows?
Maybe Ginsburg has already hinted at the courts ruling come this June?
Ginsburg did say that "IF" one of the circuit courts should dare rule against marriage equality, that the high court WOULD INDEED STEP IN.
And thus now the high court have committed to doing exactly that.
Just exactly as Ginsburg had warned.

Then consider Antonin Scalia and his comment.
He said that if DOMA were shot down, all gay marriage hell would break out across the nation.
Well, it was, and it did.
So, could Scalia have already given his own warning that he will indeed vote pro equality this time round?

I actually feel and believe there is a very strong and likely chance of an unanimous decision from the high court, come June.
Ginsburg has definitely hinted at such.
And Scalia has definitely tossed in the towel after their DOMA ruling.

How would the news media react from an unanimous decision from the high court come June 2015?
And would that unanimous decision actually be their internally required necessity?
Providing that much needed cover for the court, after their ruling on such an hot topic issue?

If ever there were that belief in one for all and all for one, this would be it.
The high court will catch hell, but much less hell and more evenly divided hell, if they remain unanimous on this one.
Sure, some people will be totally shocked by an unanimous ruling.
The media will be shocked.
The religious right wing will suffer total meltdown starting immediately afterward.
And the republican congress?
Hell... They will proclaim they were all for this marriage equality thing, all along.
From day one, more less.
Their anti marriage equality rhetoric had been simply "mis-understood".

And our United States Supreme Court will survive, the country eventual forget, and move on.
That is IF the court sticks together for this one.

After listening not only to Ginsburg strong statement of past, but more so listening to Scalia after DOMA was shot down, I would not at all be that surprised if unanimity were the name of the game, as well as the absolute necessity, for this firestorm ruling.

I don't think it's going to be unanimous. I think (hope) it will be 5-4 striking down anti-SSM laws, with Kennedy breaking the tie. Possibly it will be 6-3, with Roberts joining the majority.

 

[Moonbeam]

It would be sad if bigotry got one vote.

 

[cabri]

It would be sad if bigotry got one vote.

The problem is that some will consider this to be a matter of state's rights.

I personally feel that the 5th circuit should be slapped down.