Split decision on marriage equality?

Brian37
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Split decision on marriage equality?

Some pundits even on the left are speculating that the decisions on Prop 8 and DOMA could be split. What the fuck? I expect this crap from Fucked News, but I have to wonder what year it is when even the left is saying this?

If this court does the right thing it should be a 9 to nothing vote striking down ALL institutionalized homophobia allowing ALL states to legalize same sex

marriage.

 

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The United States is

The United States is changing and the right wing extremist douches are losing ground. If one or two of the on the Supreme Court do not step down or die, then the next Democratic President will appoint one or two judges who will side with the opinion of equality.

 

 


Brian37
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digitalbeachbum wrote:The

digitalbeachbum wrote:

The United States is changing and the right wing extremist douches are losing ground. If one or two of the on the Supreme Court do not step down or die, then the next Democratic President will appoint one or two judges who will side with the opinion of equality.

 

 

Well even if this court hands down a decision of "states rights", the younger generation will eventually make it legal all over the country. The same crap was argued about inter racial marriage.

 

I do not expect a unanimous decision, BUT it would also not surprise me if the court in a 5-4 or 6-3 decision declared both laws unconstitutional.

 

I will say this any judge who writes the dissenting opinion is going to get an earful from me.

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Beyond Saving
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 It is an issue of standing

 It is an issue of standing in the Prop 8 case. Most Court watchers on both sides agree that the plaintiffs against prop 8 do not have the standing to bring the lawsuit. As such, it is very likely that the Court will avoid making a decision on whether or not gay marriage is a Constitutional right. I haven't listened to the arguments yet, but apparently the questions asked by the justices made it very clear that almost all of them were skeptical about whether there was any standing for them to decide the case on. The problem is that the law was passed by ballot initiative and the State of California has refused to defend it. As such, the most likely scenario is that the Court says they do not have the legal authority to decide the case and the Court of Appeals decision stands. The Court of Appeals decided that the law is invalid, so the net effect is that the law is overturned and gays are allowed to get married in California. However, since the result is that SCOTUS did not make a decision, future lawsuits either over the California law or similar laws in other states will make it to SCOTUS.

The other option is that the Court decides whether or not gay marriage is a right inherent in the Constitution. I think it is highly unlikely that they will decide it is a right with our current Court. There is a slim possibility that they will uphold Prop 8 and declare it a states right issue, but I agree with the experts that the most likely outcome is that they refuse to decide on that question and use the legal technicality of standing to punt the issue down the road.  

http://www.scotusblog.com/2013/03/what-will-the-court-do-with-proposition-8-todays-oral-argument-in-plain-english/

 

The DOMA case on the other hand is about whether or not the federal government has to recognize legal marriages in states where gay marriage is legal. So that question really falls onto the question of whether the federal government has any business in deciding whether to recognize a marriage or if the decision lies with the states. Since historically, marriages have always been defined by the states I suspect that even conservative justices like Scalia will be forced to find DOMA unconstitutional. At least if they are going to be consistent. 

 

Edit: For those interested in listening to the actual legal arguments rather than just making pronouncement on what should happen based on your personal political views, the audio is available here

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X


Brian37
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Beyond Saving wrote: It is

Beyond Saving wrote:

 It is an issue of standing in the Prop 8 case. Most Court watchers on both sides agree that the plaintiffs against prop 8 do not have the standing to bring the lawsuit. As such, it is very likely that the Court will avoid making a decision on whether or not gay marriage is a Constitutional right. I haven't listened to the arguments yet, but apparently the questions asked by the justices made it very clear that almost all of them were skeptical about whether there was any standing for them to decide the case on. The problem is that the law was passed by ballot initiative and the State of California has refused to defend it. As such, the most likely scenario is that the Court says they do not have the legal authority to decide the case and the Court of Appeals decision stands. The Court of Appeals decided that the law is invalid, so the net effect is that the law is overturned and gays are allowed to get married in California. However, since the result is that SCOTUS did not make a decision, future lawsuits either over the California law or similar laws in other states will make it to SCOTUS.

The other option is that the Court decides whether or not gay marriage is a right inherent in the Constitution. I think it is highly unlikely that they will decide it is a right with our current Court. There is a slim possibility that they will uphold Prop 8 and declare it a states right issue, but I agree with the experts that the most likely outcome is that they refuse to decide on that question and use the legal technicality of standing to punt the issue down the road.  

http://www.scotusblog.com/2013/03/what-will-the-court-do-with-proposition-8-todays-oral-argument-in-plain-english/

 

The DOMA case on the other hand is about whether or not the federal government has to recognize legal marriages in states where gay marriage is legal. So that question really falls onto the question of whether the federal government has any business in deciding whether to recognize a marriage or if the decision lies with the states. Since historically, marriages have always been defined by the states I suspect that even conservative justices like Scalia will be forced to find DOMA unconstitutional. At least if they are going to be consistent. 

 

Edit: For those interested in listening to the actual legal arguments rather than just making pronouncement on what should happen based on your personal political views, the audio is available here

I am sorry, but you are trying to cop out to "technicalities" when the cases have already reached the Supreme court, and their over all habit is to uphold the lower courts.

This is the same bullshit cop out excuse they had when the Supreme court threw out the 9th district court ruling in the Newdow case. Most people thought it upheld "under God" when what the cowards on the Supreme Court were avoiding was upholding the lower court's initial ruling. It did not mean a future case could not be brought to the court.

You suck at civil liberties because if you really upheld them this would be a no brainer. If this court cops out to "state vs federal" then why stop there? Why not have some states ban women voting? Why not allow some states to own slaves?

There is no debate at all. Gays should be allowed to sign the same documents of a marriage license and be entitled to the same tax status, inheritance rights and child custody rights as heterosexual couples.

"Legal arguments" Yes Beyond laws did exist in favor of women being banned from voting and owning slaves so yea if you want to make a case that what we have is fine, you can, but you are an idiot if you do, because compassionate people don't think gays should be discriminated against any more than interracial couples were.

 

"The prior Supreme  courts say" Yea, they did, but that was then and this is now and this is why power is never stagnant or should remain stagnant. I am so glad you are not a Justice nor a member of congress or president, you would SUCK at it.

 

 

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Beyond Saving
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Brian37 wrote:I am sorry,

Brian37 wrote:

I am sorry, but you are trying to cop out to "technicalities" when the cases have already reached the Supreme court, and their over all habit is to uphold the lower courts.

I am flattered, but I have no control over how the Court decides. Those schmucks don't even ask my opinion, so I am not trying to do anything. I am simply reporting what most of the lawyers who watch the court believe. Their general habit is not to uphold lower courts. Their general bias is towards upholding the laws passed by legislatures or following previous Supreme Court decisions. Most cases that appear before them get there because two lower courts had conflicting decisions. 

 

Brian37 wrote:

You suck at civil liberties because if you really upheld them this would be a no brainer. If this court cops out to "state vs federal" then why stop there? Why not have some states ban women voting? Why not allow some states to own slaves?

Because for both of those we had Constitutional Amendments passed that directly address them. Until the amendments passed, such decisions were left up to the states. There has not yet been an amendment regarding gay marriage. 

 

Brian37 wrote:

There is no debate at all. Gays should be allowed to sign the same documents of a marriage license and be entitled to the same tax status, inheritance rights and child custody rights as heterosexual couples.

Of course there is debate. We live in a democracy where people debate all sorts of issues. 

 

Brian37 wrote:

"Legal arguments" Yes Beyond laws did exist in favor of women being banned from voting and owning slaves so yea if you want to make a case that what we have is fine, you can, but you are an idiot if you do, because compassionate people don't think gays should be discriminated against any more than interracial couples were.

The Supreme Court only deals with legal arguments, they are not charged with deciding what is compassionate, they are charged with deciding what is legal. If you want to argue what is compassionate, you should go to the legislature. 

 

Brian37 wrote:

"The prior Supreme  courts say" Yea, they did, but that was then and this is now and this is why power is never stagnant or should remain stagnant. I am so glad you are not a Justice nor a member of congress or president, you would SUCK at it.

Does the law change all on its own? I have no desire to be a Justice, congressman or President. I would suck at it because the first thing I would do on my first day in office is resign. I have no desire for the power or headache and I certainly don't want to work that hard. 

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X


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 I'm not sure the SC is

 I'm not sure the SC is going to issue any decision.  The constitution is silent on the topic of marriage so it would have to be an amendment specific to marriage.  One of the justices referred to the 14th amendment, which addresses citizenship and the rights of citizens.  Basically, according to the constitution, gays should already have the right to marry.  The individual states allow or disallow as they see fit.  I don't think the SC is opposed to amending the constitution, but the case currently presented isn't asking for that.  Legalese at its finest!  

Marriage between two consenting adults will be allowed in the not so distant future regardless of what the left or right thinks.  Public opinion is changing; the younger generations support it (or don't really care one way or the other); the right is losing votes over it...it will happen.  However, I still think the fight needs to be fought.  Nothing ever gets accomplished without bringing it to the public's attention AND ensuring politicians lose votes.  They hate that.


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 http://www.oyez.org/cases/2

 http://www.oyez.org/cases/2010-2019/2012/2012_12_307

The arguments for the DOMA case are above. The first 50 minutes or so are dealing with the procedural question of whether the government has standing when it is opposing its own law. That technicality is unlikely to effect the actual opinion in this case so unless you are a legal nerd you probably want to skip  it. 

After listening to it, my thoughts are that the justices seem inclined to view marriage as a state decision. The conservative justices on the Court had to practically browbeat the gay rights representation to get away from the equal protection argument and focus on the federalism issue. It is always risky to try to predict based on the oral arguments, but my sense is that the conservative justices are leaning towards striking down DOMA on federalism grounds, while the liberal justices are probably willing to strike it down solely on equal protection grounds. Most likely there is going to be a large majority, maybe even a unanimous court ruling to strike down DOMA.

The battle will be over drafting an opinion and how far it will reach. My guess is that they will rule that the federal government laws referring to "marriage" implicitly mean marriage as recognized by any state and it is a violation of equal protection and authority to arbitrarily decide to ignore one class of marriages. I would be surprised if anything in the decision suggested that states refusing to allow same sex marriages are violating equal protection and believe that in the current Court, a case arguing that would lose. 

Most likely the opinion will be issued in June, so now we just sit and wait. 

 

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X