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(The Volokh Conspiracy)   Mawwage... Mawwage is what the Supweme Cowt will discuss when it heaws a case on the constitutionawity of Pwoposition Eight   (volokh.com) divider line 333
    More: Interesting, SCOTUSblog, Jeffrey Toobin  
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1867 clicks; posted to Politics » on 07 Dec 2012 at 4:38 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-12-07 03:25:18 PM
Voting this one up. Great headline Subby!
 
2012-12-07 03:29:01 PM
I don't get it.
 
2012-12-07 03:29:37 PM

OtherBrotherDarryl: Voting this one up. Great headline Subby!


Too bad the link is to some derpy blog.
 
2012-12-07 03:30:59 PM

make me some tea: I don't get it.


Me either. Elmer Fudd was gay? Who knew?
 
2012-12-07 03:32:23 PM

make me some tea: OtherBrotherDarryl: Voting this one up. Great headline Subby!

Too bad the link is to some derpy blog.


Ugh, I fell in love with the headline so much I didn't even click the link. Resubmit and link to a better source, subby?
 
2012-12-07 03:33:31 PM

make me some tea: I don't get it.


Inconceivable!
 
2012-12-07 03:33:34 PM

make me some tea: I don't get it.


www.future-shape-of-church.org
 
2012-12-07 03:36:02 PM

Relatively Obscure: make me some tea: I don't get it.

Inconceivable!


I'm just going to have to find a new giant, that's all.
 
2012-12-07 03:37:22 PM
The Supreme Court is the brute squad.
 
2012-12-07 03:38:42 PM
So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?
 
2012-12-07 03:40:37 PM
Ok, this headline took me a minute. Very good!
 
2012-12-07 03:45:34 PM

nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?


DOMA is a federal statute, so yes.
 
2012-12-07 03:47:26 PM

MorrisBird: nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?

DOMA is a federal statute, so yes.


Prop 8 is a state ban, though. Would ruling a state gay marriage ban unconstitutional strike down all the state bans?
 
2012-12-07 03:48:10 PM
Anybody want a peanut?
 
2012-12-07 03:50:48 PM

kid_icarus: MorrisBird: nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?

DOMA is a federal statute, so yes.

Prop 8 is a state ban, though. Would ruling a state gay marriage ban unconstitutional strike down all the state bans?


if the defense of marriage act is repealed, then marriage can be between any two people. so then the supreme court would have to strike down prop 8.
at least my horridly basic understanding of "the law" makes me think this is so.
 
2012-12-07 03:52:20 PM
actually, that is a good question because repealing the defense of marriage act doesn't say homosexuals CAN get married, right? it just takes away the definition of marriage as that of a man and woman.
 
2012-12-07 03:53:33 PM
Personally, I can't think of any logical way Prop 8 could be considered constitutional

/but I also fear Scalia can defy logic
 
2012-12-07 03:55:10 PM

nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?


Breaking this down: If the Supreme Court agrees with the 9th Circuit on Prop 8, it will allow gays to get married in California, and nothing more. If they disagree and strike down the 9th Circuit, all it will do is restore Prop 8 and make gay marriage against the California Constitution.

However, they also took the DOMA case; if they agree with the 2nd Circuit that DOMA is unconstitutional, then it is struck down across the land and the federal government must recognize all gay marriages for federal purposes. This will have no effect on the generalized right to gay marriage. If they disagree, then DOMA stands, and only Congress can get rid of it (for now).

From a constitutional law perspective, I'm nervous that they took the 2nd Circuit's case. That case was decided on intermediate scrutiny, with the majority opinion deciding that gays were a quasi-suspect classification for the purposes of Equal Protection. The Court has been very, very hesitant about adding in new groups to be called "quasi-suspect", and hasn't given that status to a new group for decades.
 
2012-12-07 03:56:07 PM

kid_icarus: MorrisBird: nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?

DOMA is a federal statute, so yes.

Prop 8 is a state ban, though. Would ruling a state gay marriage ban unconstitutional strike down all the state bans?


According to MSNBC: Now that the Supreme Court is wading into the battle, the justices could decide the more basic issue of whether any state can ban same-sex marriage under the Constitution's guarantee of equal protection of the law. Or they could limit their ruling to apply only to the ban in California.
 
2012-12-07 03:57:15 PM

talulahgosh: if the defense of marriage act is repealed, then marriage can be between any two people. so then the supreme court would have to strike down prop 8.
at least my horridly basic understanding of "the law" makes me think this is so.


No, all DOMA says is that for the purposes of all federal laws that give benefits regarding marital status, gay marriage will not be accepted. So striking it down would have zero effect on the underlying question of whether gays can get married.

Marriage itself is traditionally left up entirely to each state to determine rules for marriage. The federal government has no say over the issue. Similarly, that means that the Court's decision on Prop 8 will not affect any other state, unless the Court decides that there is a general right to gay marriage (very unlikely).
 
2012-12-07 03:57:43 PM

MorrisBird: kid_icarus: MorrisBird: nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?

DOMA is a federal statute, so yes.

Prop 8 is a state ban, though. Would ruling a state gay marriage ban unconstitutional strike down all the state bans?

According to MSNBC: Now that the Supreme Court is wading into the battle, the justices could decide the more basic issue of whether any state can ban same-sex marriage under the Constitution's guarantee of equal protection of the law. Or they could limit their ruling to apply only to the ban in California.


It's amazing to me to think I could get married in my home state within my lifetime. I honestly never thought that would happen.

/and it might still not, but it's weird to think it theoretically could
 
2012-12-07 04:01:22 PM

kid_icarus: MorrisBird: nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?

DOMA is a federal statute, so yes.

Prop 8 is a state ban, though. Would ruling a state gay marriage ban unconstitutional strike down all the state bans?


I just read up on the interracial marriage bans and the 1971(Loving v. Virginia) ruling that did away with them. The SC ruled that a law banning interracial marriage in Virginia violated the due process and equal protection clauses of the 14th amendment. So it invalidated all laws and constitutional amendments banning interracial marriage. So I would assume that a ruling against prop 8 or DOMA based on the 14th would result in the same outcome. And in my totally non-professional opinion Loving v. Virginia set a precedent in favor of over-turning the gay marriage bans/amendments.
 
2012-12-07 04:03:42 PM
Just in case there are some poor souls out there who have yet to see The Princess Bride...

Twue Wove
 
2012-12-07 04:06:58 PM

kid_icarus: MorrisBird: kid_icarus: MorrisBird: nekom: So any SCOTUS watchers able to answer this: IF they strike it down, does this have any farther reaching implications? I mean outside of California?

DOMA is a federal statute, so yes.

Prop 8 is a state ban, though. Would ruling a state gay marriage ban unconstitutional strike down all the state bans?

According to MSNBC: Now that the Supreme Court is wading into the battle, the justices could decide the more basic issue of whether any state can ban same-sex marriage under the Constitution's guarantee of equal protection of the law. Or they could limit their ruling to apply only to the ban in California.

It's amazing to me to think I could get married in my home state within my lifetime. I honestly never thought that would happen.

/and it might still not, but it's weird to think it theoretically could


We live in interesting times, in the very best of ways. It's exciting to watch history unfold at what's turning out to be a pretty rapid clip.
 
2012-12-07 04:07:24 PM

Callous:
I just read up on the interracial marriage bans and the 1971(Loving v. Virginia) ruling that did away with them. The SC ruled that a law banning interracial marriage in Virginia violated the due process and equal protection clauses of the 14th amendment. So it invalidated all laws and constitutional amendments banning interracial marriage. So I would assume that a ruling against prop 8 or DOMA based on the 14th would result in the same outcome. And in my totally non-professional opinion Loving v. Virginia set a precedent in favor of over-turning the gay marriage bans/amendments.


Don't assume that. The Prop 8 decision at the 9th Circuit level specifically did not address that issue, and most Court watchers are pretty certain the Court will not address the issue. They don't have to either, unlike in Loving v. Virginia where they granted the case specifically to answer that question. Here, the Court will likely decide to solely address the issue raised, which was whether Proposition 8 is an Equal Protection violation because gay marriage had already existed prior to Prop 8, and then was a right that was taken away by the Proposition. That's different from Loving because there, blacks and whites had never had the ability to marry in the first place.

Also, the Court is probably not going to deal with the issue of Gay Marriage in general yet because they're very aware of the politics.
 
2012-12-07 04:08:38 PM
it'll be interesting watching the conservative wing of SCOTUS try to keep religion out of this discussion.
 
2012-12-07 04:11:07 PM

Rincewind53:

Also, the Court is probably not going to deal with the issue of Gay Marriage in general yet because they're very aware of the politics.


I dunno. the court might decide to jump in and play politics. conservatives got their asses beat in the recent elections. it wouldn't surprise me if certain members of SCOTUS decided to just say 'f*ck it' and flat out make same sex marriage illegal.
 
2012-12-07 04:11:22 PM

rynthetyn: We live in interesting times, in the very best of ways. It's exciting to watch history unfold at what's turning out to be a pretty rapid clip


I agree, but it's still kinda sad it's taken this long and there are still people who have such blind hatred for such stupid reasons.
 
2012-12-07 04:12:33 PM

Weaver95: it'll be interesting watching the conservative wing of SCOTUS try to keep religion out of this discussion.


Oh, if the SCOTUS rules in favor of equality, it's pretty much guaranteed that Scalia will be ranting and raving about the SCOTUS being out of touch with real America because law schools are out of touch with real America and real America believes that gay marriage is immoral and the SCOTUS is just helping advance the "gay agenda" that has "infiltrated law schools". Also, plenty of "I told you so's" about how Lawrence would inevitably lead to gay marriage.
 
2012-12-07 04:13:42 PM
Have Conservative Farkers made their predictions yet? Because I would assume the opposite of that will happen.
 
2012-12-07 04:14:27 PM

rynthetyn: Weaver95: it'll be interesting watching the conservative wing of SCOTUS try to keep religion out of this discussion.

Oh, if the SCOTUS rules in favor of equality, it's pretty much guaranteed that Scalia will be ranting and raving about the SCOTUS being out of touch with real America because law schools are out of touch with real America and real America believes that gay marriage is immoral and the SCOTUS is just helping advance the "gay agenda" that has "infiltrated law schools". Also, plenty of "I told you so's" about how Lawrence would inevitably lead to gay marriage.


absent religious reasoning, can SCOTUS even justify deciding against same sex marriage...? there's nothing anywhere in the Constitution that specifically says 'gays can't get married'.
 
2012-12-07 04:14:40 PM

kid_icarus: It's amazing to me to think I could get married in my home state within my lifetime. I honestly never thought that would happen.

/and it might still not, but it's weird to think it theoretically could


Hey man, I hope you get that chance. Of course, you have to have a boyfriend first. With you being a TFer and all, I kinda doubt it. :P

But yeah, in my 20s I figured issues like gay marriage and even legal marijuana to be too untouchable. Now in my 30s - just 15 years later - that reality seems to be moving forward with "all deliberate speed." It's nice to know we aren't a nation completely dominated by troglodytes.

Hell, I'm straight and gay marriage is something I've wanted for a long time now (lol). Being denied the same basic benefits afforded to a straight couple is, in a word, wrong. I just don't see what the issue is. When you tell me that two people who are in love cannot legally express it, you're directly insulting my friends, co-workers, and neighbors (I live in a gay town).

And you know what? That farking offends me.
 
2012-12-07 04:14:42 PM

Weaver95:
I dunno. the court might decide to jump in and play politics. conservatives got their asses beat in the recent elections. it wouldn't surprise me if certain members of SCOTUS decided to just say 'f*ck it' and flat out make same sex marriage illegal.


They can't do that. The most they could do would be to say that there was no right to same sex marriage, which would make it a state-by-state question.
 
2012-12-07 04:15:49 PM

Weaver95: Rincewind53:

Also, the Court is probably not going to deal with the issue of Gay Marriage in general yet because they're very aware of the politics.

I dunno. the court might decide to jump in and play politics. conservatives got their asses beat in the recent elections. it wouldn't surprise me if certain members of SCOTUS decided to just say 'f*ck it' and flat out make same sex marriage illegal.


I don't think you're going to get 5 to do that. Not when Roberts is concerned about his legacy and doesn't want to go down in history as the chief justice who oversaw a ruling that would forever be compared to Dred Scott. That's not how he wants history to write about him. Besides, I'd be shocked if Kennedy votes against equality given his opinions in Lawrence and Romer. You'll get a Scalia temper tantrum out of it, but that's all.
 
2012-12-07 04:15:49 PM

Rincewind53: Weaver95:
I dunno. the court might decide to jump in and play politics. conservatives got their asses beat in the recent elections. it wouldn't surprise me if certain members of SCOTUS decided to just say 'f*ck it' and flat out make same sex marriage illegal.

They can't do that. The most they could do would be to say that there was no right to same sex marriage, which would make it a state-by-state question.


sure they can. SCOTUS can do whatever they want. it's like making a deal with the devil - its all in how you phrase your wishes.
 
2012-12-07 04:16:14 PM

Weaver95: absent religious reasoning, can SCOTUS even justify deciding against same sex marriage...? there's nothing anywhere in the Constitution that specifically says 'gays can't get married'.


Marriage is a power given the States (because it's not mentioned in the Constitution at all). The question that the Supreme Court would have to answer would be whether or not gays have an Equal Protection right under the Constitution to get married. If no, then the federal government is required to leave it up to the States.
 
2012-12-07 04:16:34 PM

dickfreckle: kid_icarus: It's amazing to me to think I could get married in my home state within my lifetime. I honestly never thought that would happen.

/and it might still not, but it's weird to think it theoretically could

Hey man, I hope you get that chance. Of course, you have to have a boyfriend first. With you being a TFer and all, I kinda doubt it. :P



Hey, I said theoretically :)
 
2012-12-07 04:17:15 PM

rynthetyn: Weaver95: Rincewind53:

Also, the Court is probably not going to deal with the issue of Gay Marriage in general yet because they're very aware of the politics.

I dunno. the court might decide to jump in and play politics. conservatives got their asses beat in the recent elections. it wouldn't surprise me if certain members of SCOTUS decided to just say 'f*ck it' and flat out make same sex marriage illegal.

I don't think you're going to get 5 to do that. Not when Roberts is concerned about his legacy and doesn't want to go down in history as the chief justice who oversaw a ruling that would forever be compared to Dred Scott. That's not how he wants history to write about him. Besides, I'd be shocked if Kennedy votes against equality given his opinions in Lawrence and Romer. You'll get a Scalia temper tantrum out of it, but that's all.


all i'm saying is that it wouldn't surprise me to see the more fanatical conservative members of the court trying their level best to push a religious agenda and cloak it in legal frippery. I hope you're right though and the court limits the scope of their ruling.
 
2012-12-07 04:18:55 PM

Rincewind53: Weaver95: absent religious reasoning, can SCOTUS even justify deciding against same sex marriage...? there's nothing anywhere in the Constitution that specifically says 'gays can't get married'.

Marriage is a power given the States (because it's not mentioned in the Constitution at all). The question that the Supreme Court would have to answer would be whether or not gays have an Equal Protection right under the Constitution to get married. If no, then the federal government is required to leave it up to the States.


which would still not satisfy the religious right in this country...but hey, better than nothing.
 
2012-12-07 04:19:06 PM

Weaver95: sure they can. SCOTUS can do whatever they want. it's like making a deal with the devil - its all in how you phrase your wishes.


Well, no, not really. As I mentioned before, the federal government has no power over marriage, the states do. If the Supreme Court went ahead and said that gay marriage was illegal, literally no State would go along with it, the Federal government would reject their decision as unconstitutional, it would be a massive constitutional crisis, etc..., etc...

It is outside of the realm of possibility.
 
2012-12-07 04:19:27 PM

Weaver95: rynthetyn: Weaver95: it'll be interesting watching the conservative wing of SCOTUS try to keep religion out of this discussion.

Oh, if the SCOTUS rules in favor of equality, it's pretty much guaranteed that Scalia will be ranting and raving about the SCOTUS being out of touch with real America because law schools are out of touch with real America and real America believes that gay marriage is immoral and the SCOTUS is just helping advance the "gay agenda" that has "infiltrated law schools". Also, plenty of "I told you so's" about how Lawrence would inevitably lead to gay marriage.

absent religious reasoning, can SCOTUS even justify deciding against same sex marriage...? there's nothing anywhere in the Constitution that specifically says 'gays can't get married'.


If my brain wasn't completely fried and ready to explode from spending 24 hours straight working on my International Law take home final, I could probably come up with a halfway decent non-religious argument against same-sex marriage (the thing that annoys me is that I can usually come up with better arguments than the opponents). Right now though, I don't think I could put forward a good argument for it even. My brain needs to reboot itself asap, I still have my sex law final that's probably going to ask me to do just that.
 
2012-12-07 04:19:55 PM
As I understand it, if they strike down DOMA, it means that other states must recognize the marriages of states where gay marriage is legal. If they uphold it, the status quo is maintained. In other words, if you're gay and marry in NY, Pennsylvania does not have to recognize it.
 
2012-12-07 04:25:43 PM

MorrisBird: As I understand it, if they strike down DOMA, it means that other states must recognize the marriages of states where gay marriage is legal. If they uphold it, the status quo is maintained. In other words, if you're gay and marry in NY, Pennsylvania does not have to recognize it.


No, that's a separate issue. As far as I can tell, DOMA was only challenged on the grounds of the denial of federal benefits. I don't think the provision about not requiring states to recognize other state's marriages will be addressed. Even if I'm wrong, it's still up to the States, striking down DOMA would not require states where gay marriage was illegal to accept marriages in other states; someone would have to challenge their denial in Court and have that whole issue go through the court system separately.
 
2012-12-07 04:25:46 PM

Weaver95: rynthetyn: Weaver95: it'll be interesting watching the conservative wing of SCOTUS try to keep religion out of this discussion.

Oh, if the SCOTUS rules in favor of equality, it's pretty much guaranteed that Scalia will be ranting and raving about the SCOTUS being out of touch with real America because law schools are out of touch with real America and real America believes that gay marriage is immoral and the SCOTUS is just helping advance the "gay agenda" that has "infiltrated law schools". Also, plenty of "I told you so's" about how Lawrence would inevitably lead to gay marriage.

absent religious reasoning, can SCOTUS even justify deciding against same sex marriage...? there's nothing anywhere in the Constitution that specifically says 'gays can't get married'.


Prop 8 is the people of California saying the can't get married. Laws are allowed to be discriminatory if you can show something causes undue harm to society. That is where Prop 8 falls apart. The lower court ruled that there was no basis for discrimination based on gender. There was no way that society was being hurt by this.

For SCOTUS to overrule this, they would have to demonstrate how it harms society to let same sex people marry each other. In other words they won't overrule it.

/I hope anyways
 
2012-12-07 04:27:33 PM

mrshowrules:
Prop 8 is the people of California saying the can't get married. Laws are allowed to be discriminatory if you can show something causes undue harm to society. That is where Prop 8 falls apart. The lower court ruled that there was no basis for discrimination based on gender. There was no way that society was being hurt by this.

For SCOTUS to overrule this, they would have to demonstrate how it harms society to let same sex people marry each other. In other words they won't overrule it.

/I hope anyways


Not exactly. They just have to decide that the law has some rational basis. "Harm" is not a part of the test.
 
2012-12-07 04:31:47 PM

Rincewind53: No, that's a separate issue. As far as I can tell, DOMA was only challenged on the grounds of the denial of federal benefits. I don't think the provision about not requiring states to recognize other state's marriages will be addressed. Even if I'm wrong, it's still up to the States, striking down DOMA would not require states where gay marriage was illegal to accept marriages in other states; someone would have to challenge their denial in Court and have that whole issue go through the court system separately.


You're right. The article I read totally missed the boat.
 
2012-12-07 04:35:40 PM

Rincewind53: Breaking this down: If the Supreme Court agrees with the 9th Circuit on Prop 8, it will allow gays to get married in California, and nothing more. If they disagree and strike down the 9th Circuit, all it will do is restore Prop 8 and make gay marriage against the California Constitution.

However, they also took the DOMA case; if they agree with the 2nd Circuit that DOMA is unconstitutional, then it is struck down across the land and the federal government must recognize all gay marriages for federal purposes. This will have no effect on the generalized right to gay marriage. If they disagree, then DOMA stands, and only Congress can get rid of it (for now).

From a constitutional law perspective, I'm nervous that they took the 2nd Circuit's case. That case was decided on intermediate scrutiny, with the majority opinion deciding that gays were a quasi-suspect classification for the purposes of Equal Protection. The Court has been very, very hesitant about adding in new groups to be called "quasi-suspect", and hasn't given that status to a new group for decades.


Thanks for clearing that up. I was a bit confused at the mention of both prop 8 and DOMA.

So a repeal of DOMA would be good news for maybe homosexual couples who are entitled to federal employee benefits maybe? But no bearing on the individual state laws, right?

Of course I guess the precedence set could be cited in future cases. Just trying to wrap my head around the complexity of all these layers of government. Even as a lifelong USA resident and a political junkie, the SCOTUS is just one thing I only vaguely understand.

/hoping equal rights will prevail
 
2012-12-07 04:36:02 PM
Alright, let me type up a brief discussion of the issues raised by each case, since there seems like a lot of confusion on the issue:

Proposition 8 case

The Supreme Court agreed to hear the case on two grounds:
1. Whether Proposition 8 was a violation of the 14th Amendment (Equal Protection)
2. Whether the people defending Prop 8 in court had the standing to defend it

The second issue is important primarily because it may give the Court the ability to sidestep the issue of Equal Protection entirely and simply say that because California declined to fight the challenge, Prop 8 should have been unilaterally overturned on those grounds. The first issue was addressed at the 9th Circuit level, with the majority opinion saying that because gays had already had a right to marriage prior to Prop 8, to take away the right to marriage without a rational basis is a violation of the Equal Protection clause.

What are the possible effects?
1. If the Court affirms, then Prop 8's reversal at the lower court level will stand, and gays will be allowed to marry in California. That's it, there will be no effects outside of California (unless the Supreme Court completely steps outside of the bounds of the case and says there is a general right to gay marriage, which is very unlikely).
2. If the Court reverses, then we go back to Prop 8 being the law of the land in California. No effects outside of California, again.

I'll deal with the DOMA case in a separate post.
 
2012-12-07 04:36:23 PM
Humperdink.
 
2012-12-07 04:37:04 PM

Rincewind53: mrshowrules:
Prop 8 is the people of California saying the can't get married. Laws are allowed to be discriminatory if you can show something causes undue harm to society. That is where Prop 8 falls apart. The lower court ruled that there was no basis for discrimination based on gender. There was no way that society was being hurt by this.

For SCOTUS to overrule this, they would have to demonstrate how it harms society to let same sex people marry each other. In other words they won't overrule it.

/I hope anyways

Not exactly. They just have to decide that the law has some rational basis. "Harm" is not a part of the test.


I read the decision at the time. When it was first overthrown by a lower court. Protecting the relatively new traditional nature of marriage is a rational reason. It is discriminatory however so you would have to show that allowing the nature of marriage to change by issuing same-sex marriage licenses would hurt society or be bad for society. Which they couldn't show. I thought the term "hurt" or "harm" was in the decision in terms of what the side for Prop 8 had to prove and couldn't.
 
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